Beyond ‘Constitutionalism Beyond the State’

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Abstract:

For contemporary constitutional theory, the key challenge posed by globalization undermines the traditional link between constitutionalism and the state: in response to multi‐level governance, theories of constitutionalism beyond the state have been advanced. This focus on levels obscures more fundamental epistemological questions raised by globalization about the nature of constitutionalism itself. Critical analysis of three leading schools of constitutionalism beyond the state – supranational, societal, and new constitutionalism – highlights their shared assumptions with state‐based thought regarding the separation between economics and politics, and the necessarily hegemonic character of constitutionalism. However, globalization intensifies critique of these assumptions, and questions their translation to the transnational context. An alternative scholarly fault line to the state/non‐state cleavage emerges between working within and transcending the politics of constitutional knowledge produced during the nation‐state era. A broader globalization perspective reveals the extent to which such processes of constitutional rethinking are under way through developments in the global South.

Document Type: Research Article

DOI: http://dx.doi.org/10.1111/j.1467-6478.2012.00589.x

Affiliations: School of Law, University of Glasgow, Stair Building, 5–9 The Square, Glasgow G12 8QQ, Scotland

Publication date: September 1, 2012

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