The Way Forward
Edited by Michael Faure and André van der Walt
Michael Faure and André van der Walt 1 LAWMAKING BEYOND THE NATION STATE Nancy Fraser has noted that the effects of globalization in the post-Cold War era, including ‘the growing salience of supranational and international organizations, both governmental and nongovernmental, and of transnational public opinion’, are making it increasingly difficult to assume that ‘the modern territorial state is the appropriate unit for thinking about issues of justice, and that the citizens of such states are the pertinent subjects of reference’.1 Similarly, Hans Lindahl has argued that the increasing political power of multinational corporations challenges ‘legal liberalism’s assumption that law is coterminous with state law’, forcing us to recognize that ‘even constitutional law can be generated outside the state’.2 Amongst other things, globalization involves the growth of an international or supranational normative value system that directly and indirectly affects lawmaking in national states. This undermines traditional assumptions about lawmaking in that it establishes new, transnational and transcultural norms and standards that increasingly dominate regional and national discourses about constitutionalism and human rights. Through the pressure exerted by a combination of international, regional and other transnational bodies, powerful states, neighbours and trading partners, nongovernmental interest groups and international or transnational corporations, municipal constitution- and lawmaking bodies are obliged to ensure (or simply find) that their own law conforms to the international value system. The most visible effect is the inclusion of certain human rights norms and standards in bills of rights and in normal domestic legislation so as to bring about the...
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