Reconceptualizing Law and Politics in the Transnational Constitutional and Legal Pluralist Approaches

Abstract

Despite the apparent fluidity that characterizes this historical moment as well as this moment in legal scholarship, this paper argues that there is also an enduring rigidity in the persistence of a modernist conception of law. In the way that the important questions raised for legal scholars in the current moment are identified as questions for legal theory, they are also already 'framed' in terms of a particular approach to the relationship between legality and legitimacy. This is revealed in debates over post-national constitutionalism which, even as they purport to transcend the nation-state, fail to escape some form of reinscription of the relation between law and a centralized sovereign authority. The author suggests that an alternative, more capacious approach to re-imagining law in the transnational might be found in a turn to legal pluralism, understood as a metaphor or style of thinking about law.

Keywords: Legal Pluralism, Postcolonial Legal Theory, Transnational Constitutionalism, WTO Constitutionalism

JEL Classification: K10, K33