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Dr Jennifer Lander is Lecturer in Law at De Montfort University of Leicester. Prior to taking up this position, she held an Early Career Fellowship at the Institute of Advanced Study at the University of Warwick (2017-2018) after completing her PhD in Law (University of Warwick). Her teaching and research interests include transnational law, development studies and constitutional theory.

Abstract:

Law and society scholars of all varieties have increasingly latched onto the language of the “constitutional” to give weight to the normative and institutional forms of ordering that appear to be occurring beyond the national state as a result of legal and economic globalisation. The approaches taken to constitutionalism vary widely, as does even-handed attention to its distinctive-yet-connected legal, economic and socio-political dimensions. In this paper I argue that where the systems-oriented “multi-constitutionalism” literature decentres the state – focusing largely on legal and economic relations “beyond” it – the critical new constitutionalism literature tends to overcorrect and focus on the disciplinary impact of transnational legality and global economic disciplines “upon” the state. These emphases reflect divergent conceptions of the constitutional, the former emphasising the constitutional in the sense of systemic legal coherence and compliance, and the latter emphasising the constitutional in the triumph of law over politics in securing space for global market expansion within the jurisdiction of national states. To move beyond both fragmented and disciplinary approaches to constitutionalism, this paper develops an alternative constitutional perspective drawing on the powerful interdependencies of transnational legality, market capitalism and state power. It argues that the increasingly well-trod ground of global, transnational and “new” constitutionalism has fallen short of offering an analytical perspective which is sufficiently sensitive to each of these three elements. A new framework is needed which takes the state seriously as the node through which ordering aspects of transnational legality and the global economy become constitutional in both a formal and functional sense. This paper offers a modest gesture in that direction.