Transnational Constitutional Law
40 Pages Posted: 6 Feb 2018 Last revised: 3 Apr 2018
Date Written: February 5, 2018
This chapter provides an overview of the emerging field of transnational constitutional law (TCL). Whilst questions of constitutional law are typically discussed in the context of a specific domestic legal setting, a salient strategy of TCL is to understand constitutional law and its values by placing them ‘in context’ with existing and evolving cultural norms and political, social and economic discourses and struggles. Drawing on socio-legal investigations into the relationships between law and non-law and the significance of legal pluralism, TCL considers what role constitutional law and its values might play in shaping and bringing about social and legal transformation within an emerging global economic order in which non-territorially confined spaces of struggle involve transnational actors and social formation dynamics.
TCL thus emerges out of constitutional law in a transnational legal context. Based on Zumbansen’s concept of Transnational Law (TL) as a methodological framework to study the Actors, Norms and Processes of legal formations in a global context, rather than positing TL as a distinct legal field, we examine transnational constitutional law phenomena in their social, political and economic contexts. This allows us to revisit and reassess well-known constitutional law concepts such as the rule of law, equality and access to justice in a new light, in particular where we confront – in this paper – legacies of these concepts in both the Global North and South. This engagement renders visible lived experiences of constitutional law and constitutionalism in local and transnational contexts, drawing attention to the growing number of those who have, through processes of globalisation, fallen out of, or were never made party to, the Western ‘social contract’.
We present TCL as emerging on two levels. On a macro level, studies of comparative constitutional law and post-colonial approaches to law shine light on processes of globalisation and financialization as they manifest themselves in conflictual dynamics within trade law, and international human rights law, with regard to civil, socio-economic and cultural rights. TCL also emerges on a micro level through careful ethnographic and anthropological studies that examine different forms of what Saskia Sassen persuasively coined “Expulsions”, meaning struggles and resistance against different forms of expropriation, eviction or alienation, within volatile economic and political landscapes.
Finally, our transnational critique of the ‘rule of law’ reflects our hope for a ‘thick’ and historically reflective RoL concept. In contrast to an idealised rendering of a pret-à-porter, universal rule of law, we argue for the continued need to explore transnational constitutional methodologies which are sufficiently differentiated to capture the manifold manifestations of constitutional conflicts, locally and spatially. The case study presented here applies this TCL approach to the struggle for indigenous identity, land rights and consultation.
Keywords: Transnational Constitutional Law, Constitutionalism, Global Constitutional Law, Rule of Law, Transnational Law, Actors, Norms, Processes, Land rights, Legal Pluralism, Development
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