| Book Title | Constitutional Rights After Globalization |
| Book Author | Anderson, Gavin W. |
| Bibliographic Information | Hart Publishing Ltd., 2005, Pages : 160, 30.00GBP, ISBN 1841134481 |
Short review
Constitutional Rights After Globalization. By Gavin W. Anderson. Oxford and Portland Oregon: Hart Publishing, 2005. Pp.xiii, 156.
Reviewed by Professor Christoph Möllers.
The line of argument in this book is well-known and easily recounted: A classical liberal conception of individual rights suffers from theoretical inconsistencies and empirical failures. It is unable to cope with the challenges of legal globalization, especially with the growing power of multi-national corporations. Therefore another paradigm, legal pluralism, has to be applied. Legal pluralism is not only more realistic with regard to power relations in a globalized world. It is also a more promising instrument to protect individual rights in this context.
Anderson´s book gives a readable, helpfully documented and well structured account of this line of argument. It will, in any case, serve as a good introduction to the relation between legal pluralism, critique of rights and globalization. But despite the fact that the reviewer has learned a lot from this book (and many readers should), many aspects of it provoke critique.
First of all, the culprit “liberal constitutional theory” is depicted in a too simplistic way. Does anyone today truly believe that social norms are irrelevant or that positive law constitutes a closed systematic body? What about the long and complicated relationship between liberalism and Common Law, the latter surely not being an ideal representative of centrally state-made law?
Secondly, the critique of liberalism is told as though this were being done for the very first time. Even if the history of ideas is not the topic of this book, the reader might want to learn something about its context. This might be a particular problem of the contemporary English legal discourse, but at least since Harold Laski many of the authors´ points are not as new as they seem in this book.
Finally, there are many little inaccuracies which do not disrupt the line of thought but which do leave the reader unsatisfied: From the quite partial description of the WTO to the fact that Jefferson did not take part in the drafting of the U.S. constitution to a semiquote of the German constitutional court: The impression arises that the author is interested in critique without caring for the criticized object.
The central legal point of the book is an argument in favour of the applicability of rights between private parties. Without any doubt, this touches a crucial question. And one may agree with the author that constitutional jurisprudence has been too timid in this regard. But before his case really starts the book ends. At least two questions could and should have been discussed. What does the constitutionalization of private legal relations mean for any democratic process? One important consequence may be a considerable shift of power from parliaments to courts, i. e. from majoritarian to non-majoritarian institutions.
And, secondly, how do we organize the constitutionalization of rights on a global level? Strangely enough, this book on globalization is only interested in national constitutional courts and not even in their trans- or international cases.
So what we find is mainstream in disguise. It is amazing that after a fruitful century of Holmes and Ehrlich, of Legal realism, Freirechtsschule and Critical Legal Studies, legal pluralism presents itself as a new minoritarian avant-garde. But indeed: if you believe in “Subvert the dominant paradigm” you have to be careful to keep your dominance a secret.
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