Constitutionalism and pluralism in a global context

Constitutional pluralism divides opinion. What makes it attractive to some in a globally connected world also accounts for the scepticism of others. Its allure lies in its ambition to square two ideas – ‘constitutionalism’ and ‘pluralism’ - typically understood as incompatible. Constitutionalism has been traditionally understood in unitary and hierarchical terms, with the state as its key unit of analysis. As for pluralism, whether a ‘first order’ pluralism of social constituencies, institutions or values or a ‘second order’ pluralism of legal and political systems as a whole, the emphasis is upon multiplicity and diversity and their non-hierarchical mutual accommodation. The constitutional pluralist retains from constitutionalism the idea of a single authorising register for the political domain while retaining from pluralism a sense of the irreducible diversity of that political domain; the attraction of this is typically a matter both of fact and of value – acknowledging an undeniable circumstance of a globalising world as well as articulating a normative preference. Against this, the sceptic of constitutional pluralism believes that its constituent themes cannot be reconciled. Constitutional pluralism is rejected either because its pluralist credentials do not add up – it is ultimately either constitutional monism with new transnational horizons or mere old-fashioned constitutional plurality – or because if it is genuinely pluralistic this is at the expense of its specifically constitutional quality. The paper addresses these three challenges, showing why they are more forceful in the global context than in the EU where constitutional pluralism first developed. It then considers how some major contemporary theoretical positions on global regulation stand relative to constitutional pluralism. It concludes by arguing that, for all its over-reliance on the European context, there remain today good arguments for pursuing the project of adapting the language and mindset of constitutionalism to meet the pluralist imperatives of broader global conditions.

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