Debating Legal Pluralism and Constitutionalism in the Global Age

Guillaume Tusseau is currently professor at Sciences Po Law School, a member of the Institut universitaire de France and a former member of the High Council of the Judiciary. His main fields of expertise, in which he both lectures and publishes extensively, are Legal philosophy, Constitutional law, and Comparative Law. Among his most recent publications are one of the leading French handbooks, written with Olivier Duhamel, Droit constitutionnel et institutions politiques (5th ed., Paris, Editions du Seuil, 2019, 1058 p.) and two collections he edited from the works of the Centre Bentham, La déontologie publique. Trajectoire et présence d’une notion ambiguë (Paris, Institut francophone pour la justice et la démocratie, diffusion LGDJ Lextenso, coll. « Colloques et essais », Vol. 92, 2019, 232 p.) and Codification, religion et raisonnement pratique : sur les ambitions et les limites du paradigme benthamien (Paris, Institut francophone pour la justice et la démocratie, diffusion LGDJ Lextenso, coll. « Colloques et essais », Vol. 91, 2019, 183 p.). Today, he presents a new collection of essays entitled Debating Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age (Springer, 2020 ). This book results from the XXth General Congress of the International Academy of Comparative Law in Fukuoka, Japan (22-28 July 2018).

Discussing the major contemporary changes occurring in and problems faced by domestic legal systems in the global age, this book describes how and to what extent these trends affect domestic legal orderings and practices, and challenges the traditional theoretical lenses that are offered to tackle them: constitutionalism and pluralism. Combining comparative law and comparative legal doctrine, and drawing on the national contributions, the general report concludes that most of the classic tools offered by legal doctrine are not appropriate to address most of today’s practical and theoretical global legal challenges. Starting from detailed case studies, this book also offers new intellectual tools for the global age.

*  *  *

It is a common truth that contemporary legal culture faces many challenges. Yesterday’s law was based on several essential pillars that precisely defined who its author was, what kind of sources expressed it, what kind of ordering these sources were submitted to, and what form of normativity they enjoyed. This familiar representation has been dismantled. Public, private, national, supranational, transnational, and unofficial sources of law have been burgeoning. Clearly hierarchised mandatory norms have given way to interconnecting networks of weaker standards. Up to now, legal theory has not met these significant challenges successfully. Drawing concrete data from nine national reports by María Carlota Ucín on Argentina, Charles Manga Fombad on Botswana, Ana Paula de Barcellos on Brazil, Constantinos Kombos on Cyprus, Lars Viellechner on Germany, Ioannis A. Tassopoulos on Greece, Jaclyn L. Neo on Singapore, Jennifer Corrin on the Solomon Islands, and Athanasios Psygkas on the United Kingdom, Guillaume Tusseau’s general report takes a step in this direction.

This collection especially questions the explicative and normative fruitfulness of two major lenses that have been advanced to face today’s conceptual and practical disorder: constitutionalism and pluralism. Contemporary constitutionalism can summarily be characterised by the apparition of a normative standpoint. The constitution is understood as a type of law that prescribes what agents ought to do. From a formal point of view, it closes the legal system. It defines the characteristics that all the other elements of the system must exhibit to belong to it. Moreover, it presents itself as a superior norm because of both its active capacity to repeal other norms and its passive capacity to resist being repealed by other norms. From a substantive point of view, the constitution is considered to be a document in which the most important values a society wants to protect are established and guaranteed.

Today, it is not exceptional nor illegitimate anymore for authors, NGOs, institutions, firms, practitioners, or activists to think of a multiplicity of non State-related contexts through the ideas of constitution, constitutionalisation, or constitutional law. For instance, the UN Charter has been deemed a constitution for the world, while the CJEU has alternatively claimed to enforce a “constitutional charter” or a “constitutional framework.” Private transnational corporations epitomise what Gunther Teubner called “societal constitutionalism.” Latin-American “new constitutionalism” promotes unforeseen forms of constitutional autonomy to infra-state groups, and especially to autochthonous communities, whose ways of life have hitherto been ignored and silenced.

These constitutions meet the definition of Article 16 of the Declaration of the Rights of Man and the Citizen, according to which “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.” They first claim formal and substantive (axiological or value-based) primacy in their own legal sphere. Then the constitutional systems assert their independence and autonomy towards other legal spheres. That is why there is no hierarchical relation between these spheres. – on the contrary, their relations are “heterarchical”.

Potentially important conflicts result from such pluralism. It is not difficult to imagine a situation in which, regarding a professional sportsperson, the constitutional law of a State (e.g. the principles of tax collection or the workers’ fundamental rights), sports constitutional law (e.g. the principles of repressive measures against doping or measures for equality among clubs) and European constitutional law (e.g. the principle of free movement of workers) are in conflict. The absence of a hierarchy among these different normative systems makes it difficult to foresee a priori an obvious solution. The reflection that has developed about “global constitutionalism,” “constitutional pluralism,” “multi-level constitutionalism,” “transconstitutionnalism,” “composite constitutionalism”, etc., precisely aims to face that issue.

Constitutionalism is frequently portrayed as unifying the legal landscape by organising it from the formal viewpoint and imposing on it a specific substantive telos. It tends to offer a vernacular that is apt to remedy global fragmentation and as a consequence to belittle the significance of autonomy. On the contrary, pluralism tends to be presented as rejecting any dimension of hierarchy or even of order, and as admitting disorder, and even welcoming it as evidence of social vitality and equal consideration for varying forms of institutionalisation of social spaces. Whereas constitutionalism tends to impose a single narrative that results from the national States’ historical experience alone, pluralism seems to be more welcoming, more tolerant, and more open-minded regarding the contemporary blurring of traditional intellectual and practical patterns and its fruitfulness.

Whereas some authors have tried to offer a sort of middle ground between these two conflicting poles, on may fear that there is an antinomy comparable to the one that Alf Ross has highlighted in Towards a Realistic Jurisprudence. In the present case, one could attempt to formulate the antinomy in the following way:

Thesis: Pluralism implies respect for the autonomy of self-emerging legal spheres and excludes the external superimposition of hierarchical authority in the name of paramount substantive fundamental values.

Antithesis: Constitutionalism allows legal spheres to organise their own autonomy through internal supremacy and external equality, depending on their values, in order for each legal sphere to interact with other legal entities.

According to the thesis, pluralism implies autonomy and excludes constitutionalism, whereas according to the antithesis, constitutionalism is one of the ways to express autonomy. Both terms refer as well to phenomena and ways of conceptualising those phenomena. That double dimension is at the core of this book’s purpose. It aims at measuring to what extent the mutations of legal systems today are upsetting the operation of positive law. At a deeper level, it aims to understand how the intellectual or cultural backgrounds, which are at the basis of the perception of those mutations, are affected.

With this general background in mind, starting from the information provided by the nine national reports and relying on a structure that is common to all of them, the general report tries and offers a picture of the current tensions and accommodations between constitutionalism and pluralism. It successively addresses five major groups of topics, which frequently follow, or draw, from one another. First, it sets the stage for the study of legal interactions in the global age. It sheds light on the degree of pluralism each of the studied legal systems admits, both in its relations with other legal systems that reach beyond the States, and in its relations with inner more or less autonomous forms of legal normativity. Then, it tackles the forms of interactions that take place among legal actors in the context of an increasingly plural landscape, and how these interactions contribute to changing legal mentalities. Next, the general report focuses on legal actors’ legal reasoning, whereas the following part addresses legal scholarship, contributing to highlighting what “thinking like a lawyer” means today. Finally, it identifies how little neutral, and how value-laden, the current discussion about pluralism and constitutionalism as it appears in the legal systems under review is. The very concepts that are currently used to confront today’s major legal changes testify to the ideological dimension of legal analysis. But as the final part of the document proves by using comparative methodology, making that clear does not necessarily allow one to avoid ideology. At best, it helps to be minimally aware of its possible impact on legal discourses.

Posted by Professor Guillaume Tusseau (Sciences Po Law School).