Constitutional Rights after Globalization (review)

In the aftermath of Hurricane Katrina, as tens of thousands of Americans were left stranded along the Gulf Coast, one institution was able to bring immediate aid to the victims: Wal-Mart. While the local, state, and federal governments were bickering over lines of authority and wondering what to do next, Wal-Mart was delivering thousands of truckloads of food, water, and emergency supplies to the affected areas. In the weeks that followed, Wal-Mart continued to provide critical support, establishing a Web site for people to locate missing relatives, helping refugees find new jobs, and pledging US$17 million to the relief effort. Katrina revealed many uncomfortable truths about American society, but it also offered a broader lesson: multinational corporations are increasingly playing, even usurping, roles that were once performed only by nation-states.

The idea that multinational corporations are eclipsing nation-states in power, influence, and relevance provides the foundation for Gavin W. Anderson's timely book Constitutional Rights after Globalization. Assuming that the state is no longer the exclusive – or even the predominant – organizing force in Western society, Anderson asks whether our commitment to the state-centric legal liberalist paradigm, and especially our faith that entrenched constitutional rights can fully protect against the unjust exercise of political power, are still appropriate in the age of globalization. He concludes, emphatically, that they are not.

The basic tenets of legal liberalism are eminently familiar – so familiar, Anderson argues, that our entire understanding of constitutional law is shaped, and restricted, by them. Born from the Enlightenment ideals of rationalism, universalism, certainty, and order, liberalism values individual autonomy above all other goals (5). The state, as the exclusive source of both political and legal sovereignty, protects and enhances individual autonomy through a coherent set of systematically enforceable rules (41). Legal liberalism, accordingly, makes three key assertions about the nature of law. First, the law is formal state law, since the state has both the sole authority and the sole capacity to advance individual autonomy. Second, the law is internally coherent, since all (valid) law is directed toward the ultimate goal of promoting individual autonomy. Third, the law is instrumentally effective in achieving this goal, because the ordinary courts provide a mechanism by which individual rights may be protected. All these elements come together most powerfully in the area of constitutional law, where the state guarantees rights in order to advance individual autonomy and the process of constitutional review establishes ground rules so that both the state and its citizens can plan their conduct.

The problem with this paradigm, Anderson argues, is that it no longer describes the true state of affairs in this age of globalization, if it ever did at all. Whether or not there was once a time when it could reasonably be argued that the state was the exclusive source of political power, that era passed with the dawn of the Washington Consensus and the rise of the multinational corporation. More than any other force in modern history, globalization has exposed a gap between the powers the state is thought to possess and those it actually exercises (17). The growing power and influence of corporations and the relative decline of the state challenge the very foundations of the legal liberalist paradigm. This, in turn, challenges our traditional conception of constitutional law. If constitutional law is premised on the assumption that the state is the exclusive source of political power, and if constitutional rights are concerned with protecting individuals from the unjust exercise of that power, then the growing hegemony of corporations suggests the need for a new approach to constitutionalism. For Anderson, the paradigm of legal pluralism offers a way forward.

Legal pluralism offers three alternative propositions that directly challenge legal liberalism's core assertions. First, there are multiple sources of law, of which the state is only one, and political power is often shaped more by the behaviour...