Modern Constitutionalism and the Challenges of Complex Pluralism

Abstract

The abstract idea of a written constitution as the foundational basis of modern democratic societies is a largely undisputed element in much of social, political, and legal theory. At the same time, the nature, form, and distinct functions of the constitution in - and increasingly also beyond - modern democratic societies is an evermore frequent object of dispute. Notwithstanding the identification of a global trend, of the last half century or so, of convergence to an 'amplified' form of modern constitutionalism around a form of ‘new constitutionalism’, more recent trends of pluralization seem to provoke profound changes in the nature of modern constitutionalism and its theorization. While the trends in some ways seem to amplify legalistic and monistic tendencies, they also indicate strong corrosive and diversifying implications for the modern constitutional template. The trends discussed are the fragmentation of sovereignty, cultural pluralism, and substantive or interpretative pluralism. The argument is that the challenges of complex pluralism undermine many of the constraining features of modern constitutionalism, but, while in some cases forms of autonomy and democratic participation are strengthened, in many others, constitutional pluralism tends to further compromise the democratic dimension of constitutionalism. In a normative sense, the chapter critically discusses a number of theoretical reflections on these challenges, and in particular emphasises those approaches that search for the potential reinforcement of participatory, open-ended, and inclusive dimensions in the current constitutional predicament.