In this paper I explore the hypothesis that a conception of right(s) that draws from the notion of needs is crucial for a critique of market constitutionalism. To this end, I review different theories of need, revisit the ‘needs versus rights’ debate and set it in the context of the Marxist critique of rights. Market rationality pits ‘needs’ against ‘rights’ (in the legal field) and favours a narrow conception of ‘need’ (in the field of normative theory). In (...) contrast to this, I propose a rich conception of ‘need’ based on Marx’s critique of capitalism and explore its potential for a materialist conception of right(s). I conclude with a tentative exploration of the constitutional implications of adopting a needs-based approach to rights, in terms of both judicial and political decision-making forms. To develop the above argument, I focus on labour rights – especially the ways in which market rationality has affected the conception and application of labour rights in the European Union and the United Kingdom. (shrink)

In this paper I explore the hypothesis that a conception of right(s) that draws from the notion of needs is crucial for a critique of market constitutionalism. To this end, I review different theories of need, revisit the ‘needs versus rights’ debate and set it in the context of the Marxist critique of rights. Market rationality pits ‘needs’ against ‘rights’ (in the legal field) and favours a narrow conception of ‘need’ (in the field of normative theory). In (...) contrast to this, I propose a rich conception of ‘need’ based on Marx’s critique of capitalism and explore its potential for a materialist conception of right(s). I conclude with a tentative exploration of the constitutional implications of adopting a needs-based approach to rights, in terms of both judicial and political decision-making forms. To develop the above argument, I focus on labour rights – especially the ways in which market rationality has affected the conception and application of labour rights in the European Union and the United Kingdom. (shrink)

A legal system is any institution or set of institutions in a given society that provides dispute resolution in a systematic and reasonably predictable way. it does so through the exercise of three functions: the judicial, the legislative, and the executive. The judicial function, the adjudication of disputes, is the core of any legal system; the other two are ancillary to this. The legislative function is to determine the rules that will govern the process of adjudication (this function may be (...) merged with the judicial function, as when case law arises through precedents, or it may be exercised separately), while the executive function is to secure submission (through a variety of means, which may or may not include violence) to the adjudicative process and compliance with its verdicts. A government or state (for present purposes i shall use these terms interchangeably) is any organisation that claims, and in large part achieves, a forcibly maintained monopoly, within a given geographical territory, of these legal functions, and in particular of the use of force in the executive function. now the market anarchist objection to government is simply a logical extension of the standard libertarian objection to coercive monopolies in general.1 First, from a moral point of view, among people regarded as equals2 it cannot be legitimate for some to claim a certain line of work as their own privileged preserve from which others are to be forcibly excluded; we no longer believe in the divine right of kings, and on no other basis could such inequality of rights be justified. Second, from an economic point of view, because monopolies are insulated from market competition and hold their customers by force, they lack both the information and the incentive to provide consumers with fair, efficient, and inexpensive service. The anarchist accepts these arguments, and merely asks why they should apply with any less force to the provision of legal services. (shrink)

This essay analyzes neo-liberal economic agreements and legal and political frameworks or what has been called the “new constitutionalism,” a governance framework that empowers market forces to reshape economic and social development worldwide. The article highlights some consequences of new constitutionalism for caring institutions specifically, and for what feminists call social reproduction more generally: the biological reproduction of the species; the reproduction of labor power; and the reproduction of social institutions and processes associated with the creation and (...) maintenance of communities. New constitutional governance frameworks fundamentally reshape conditions under which the care of human beings takes place. Caring institutions once governed by enabling professions geared to universal care are now determined increasingly by market values and private forces, and driven directly by the profit motive. This is one of the reasons why neo-liberalism is increasingly contested in both the North and the global South. (shrink)

The central argument of this book is that liberalism, constitutionalism, and democracy, as well as, specifically, liberal constitutional democracy all work, when they do, because they serve the mutual advantage of the politically effective groups in the society through coordination of those groups on a political and, perhaps, economic order. These arguments are applied both to the early history of constitutional developments in the United States and to contemporary transitions from autocratic regimes to market democracies. A subsidiary claim (...) is that constitutional political institutions and democratic procedures generally require not so much active support as merely acquiescence in order to survive and work. These are explanatory theses, not normative claims, but they have relevance for normative claims if one takes seriously some relative of Kant's dictum that ought implies can. If we are to insist that some form of government is normatively right for a particular society, we must be able to say that it would or could work for that society. It is commonly argued that what makes democracy right is that it works by consent. If so, it is such a distressingly minimal form of consent—acquiescence—as to be normatively disqualified. If we rule out mere acquiescence as adequate for consent, it seems likely that no credible argument can be adduced to defend liberal constitutional democracy in any detail on grounds of consent or contractarianism. Hence, concern for workability, which should be central to any moral assessment of principles of social order, undercuts the entire consent school of political theory. (shrink)

From a legal-philosophical point of view, The Redress of Law presents a critical analysis of a number of related doctrinal fields: constitutional, labour and EU Law. Focusing on the organisation and protection of work, this book asks what it means to protect work as an essential aspect of human flourishing. This is an ambitious and highly sophisticated intervention in contemporary academic and political debates around a set of critically important questions connected to processes of globalisation and market integration. The (...) author redefines the nature of legal and political thought in an age in which market rationality has exceeded its classic domain and has come to pervade the organization of social and political life. This restatement of critical legal theory is intended to defend the concept of constitutionalism and suggest new ways to deploy the law strategically. (shrink)

Emilios Christodoulidis’ The Redress of Law: Globalisation, Constitutionalism and Market Capture is a rare work in its magnitude and ambition. More than on an argument, the book centres on an impas...

Within the current debates about Euro‐constitutionalism, the conventional options are either to defend a vision of the European Union (EU) which separates global economic law from national sovereignty, and thus relies on the legitimizing powers of free markets, or to regard the legitimation problem (at least under current conditions) as beyond solution: This view argues that any further progress towards an ever closer Union would inevitably increase the legitimation deficit and that therefore the capacity for political action of the (...) nation state should be protected or restored. This paper seeks to break the stranglehold of the, as is argued, false dichotomy (global markets vs. national democracy), and it argues that an extension of democracy beyond the nation state is possible. (shrink)

Efficiency requires legislative political institutions. There are many ways efficiency can be promoted, and so an ongoing legislative institution is necessary to resolve this choice in a politically sustainable and economically flexible way. This poses serious problems for classical liberal proposals to constitutionally protect markets from government intervention, as seen in the work of Ilya Somin, Guido Pincione & Fernando Tesón and others. The argument for the political nature of efficiency is set out in terms of both Pareto optimality and (...) aggregate welfare maximisation, and similar arguments can be generalised to other social values. (shrink)

The article uses the 2010 political success of the Tea Party phenomenon as a jumping-off point to examine a number of ideological tropes and rhetorical devices in American politics. It argues that the political language of the Tea Party is not – as is often assumed – empty moralizing at the expense of intellectual depth, but rather draws on a wide variety of American political and intellectual themes and traditions. The article uses the campaign literature and polemic of key Tea (...) Party affiliates – Sarah Palin, Christine O’Donnell, Glenn Beck, Ron Paul – as entry points to discuss the movement’s political strategies and interpretation of the role of government, individual liberty, American exceptionalism, constitutionalism, the free market, and the common people. In placing these discussions in their historical and intellectual context, the article argues for taking the Tea Party’s political message seriously, not least as a reflection of prevalent democratic concerns and frustrations with the American political system in its current incarnation. (shrink)

This essay offers a critical reading of Drucilla Cornell’s writings on the concept of ubuntu in South Africa, a country with which she had a deeply committed, complicated, ambivalent relationship. It explores her arguments for the contemporary relevance of this deeply rooted cultural concept—despite its appropriation and commodification at the hands of global market forces—not merely to the everyday life of Black South Africans but also for a transformative constitutionalism; a progressive jurisprudence, that is, addressed to the accomplishment (...) of a more equal and ethical post-apartheid society. In so doing, it analyzes how Cornell, a playwright and philosopher committed to estranging the familiar, turned the skepticism of ubuntu redolent among white South African scholars and public intellectuals back on itself by rooting her argument for its continued significance in a combination of ethnographic discovery and the legal history of the present. (shrink)

This article provides an account of rent-seeking in relation both to economic policies and political practices in South Africa. The article draws attention to continuities and similarities in this regard between the two distinct periods of nationalist rule from 1948 to 1994 and from 1994 to 2012. The economic dimensions that are specifically addressed are industrial policy, the labour market, state administration and tenders and service delivery and welfare. The more specifically political dimensions addressed include the electoral system, the (...) relationship between constitutionalism and the judiciary, and the rule of law. The article highlights the dangers posed by excessive rent-seeking and especially its negative implications for redistribution, economic growth and the consolidation of democracy in a highly unequal society. (shrink)

First published in 1987. Towards the end of the twentieth century there was a resurgence of thinking about politics, economics and society referred to variously as the 'New Right', the radical right, neo-conservatism, economic liberalism or libertarianism. Although the New Right is not a single coherent movement it represented a clear alternative to the prevailing social-democratic consensus and had had considerable influence on government policy in both America and Britain. This book presents an introductory survey of the New Right worldwide. (...) It examines the varieties of free-market and 'monetarist' economic thought and introduces the reader to the public-choice critique of public policy. In political philosophy the book analyses American and British conservative thought and compares conservatism with neo-liberalism. The author pays particular attention to the New Right's analysis of constitutionalism and its critique of the dominance of 'politics' over 'economics' during the high-point of the consensus period. The author assesses the success which the different schools of the New Right have had in influencing public opinion and in the formation of government policy. He does not argue for or against the New Right but presents a dispassionate survey from which the reader can draw his or her own conclusions. (shrink)

The article analyses the common notion that the consumer society is a reflection of those principles in the market that also provide the ideas of democracy and liberal constitutionalism with legitimacy in the political realm. The inalienable right to self-development and self-determination makes the individual the starting and ending point of life, rendering all spheres of market and society a ‘republic of choice’. But if consumer society shares the essentials of liberal constitutionalism and the rational, processual (...) nature of democratic representation, then its ontology needs to be investigated for the same reason and in the same manner as legal and political philosophy dissects the legitimacy and validity of the parliamentary institutions of modern democracy. Just as in the political philosophy of the constitutional structure of the democratic state, the question of who is sovereign is key to understanding the ontology of consumer society. But rather than simply placing sovereignty into the hands of the independent, self-determined consumer, the earliest ontologists of the consumer society took recourse to medieval political theology and presented the consumer market as a new corpus mysticum. Thus, it is medieval political theology, not modern liberal thought, which provided for an ontologization of the consumer. This, in turn, directly pertains to the questions of the legitimacy of consumer society per se, of consumer decisions in particular and of their sources of legitimacy. (shrink)

The chapter explores the many varieties of liberal thinking that have developed over time, often in parallel. Those include theories of liberty, individualism, and autonomy alongside notions of community, progress, and welfare, some of which intersect, and all involving different degrees of state intervention or restraint. Constitutionalism, entrepreneurship, individual development as epitomized by Mill, and cultural pluralism are identified as four separate tendencies that both co-exist and clash within the liberal tradition. Their institutional manifestations oscillate between a welfare state (...) and a market society, and between universalistic and particularistic practices. American liberalism in particular emerged as rights-based, but was also prone to criticism that policies undertaken in its name fell short of its own principles, deviating from the ethical and utopian desiderata of Rawls’ philosophical liberalism. Importantly, liberalism has also been surrounded by pretenders eager to exploit its mantle rather than commit to its substance. (shrink)

The authors of Habits of the Heart charge that America is losing the institutions that help “to create the kind of person who could sustain a connection to a wider political community and thus ultimately support the maintenance of free institutions.” Bellah fears that “individualism may have grown cancerous – that it may be destroying those social integuments that Tocqueville saw as moderating its more destructive potentials, that it may be threatening the survival of freedom itself.” Proponents of the liberal (...) free market order should, I will argue, take seriously the concerns that motivate Bellah and company: citizens of a liberal regime cannot live by exchanges alone. Liberal constitutionalism depends upon a certain level and quality of citizen virtue. But while the need for virtue is often neglected by liberal theorists, it is far from clear that the actual workings of liberal institutions have drastically undermined virtue in the way Bellah's dire account suggests. That analysis serves, moreover, as the springboard for a radically transformist argument that seeks, not so much to elevate and shape, but to transcend and deny, the self-interestedness that the free market exercises. Having argued against Bellah's analysis and prescriptions, I shall attempt to show how the phenomena he describes are open to an interpretation that is happier from the point of view of a concern with virtue. I shall end by using Tocqueville to suggest that combining liberal capitalism with intermediate associations like voluntary groups and state and local government helps elevate and shape self-interest, promoting a citizenry capable of and insistent upon liberal self-government. (shrink)

Democracy is in serious difficulties. Three features of the crisis stand out. First is the dominant culture of disillusionment in democracy, which transpires as the mistrust in constitutionalist institutions and values. Second, political authority, both at domestic and international levels, is largely substituted by the rule of non-transparent and unpredictable social powers. Third, democratic states are deprived of much of their capacity to govern, but they retain a non-negligible capacity to coerce.The article is structured as follows. Section I introduces Karl (...) Polanyi’s concept of embeddedness and juxtaposes it to the theoretical defense of market disembeddedness advanced by the classical political economy. It then points to the challenge that the complexity of the contemporary society poses to the idea of embeddedness and identifies the need for further analytical clarification of the idea. Section II tries to explain why the idea of embeddedness is intuitively suspect. One reason is found in the domi... (shrink)

With his Affordable Care Act decision, Chief Justice Roberts saved conservatives from themselves. A constitutional regime that prohibited a mandate for basic health insurance while permitting Medicare and the Veterans Health Administration, presumably on the basis of government taxing authority, would have been a conservative nightmare. These partial U.S. versions of single payer and national health service are permissible, but a coherent private health insurance market is not?! The surprising thing is not that the generally conservative Roberts had the (...) historical and logical sense to realize this, but that he was the only one of his conservative colleagues who did. It is not the only irony presented by promarket, conservative constitutionalism in this case. (shrink)

This chapter contains sections titled: Introduction The Weakest Meaning of “Constitutionalism” Constitutionalism as a Theory Particular and General Constitutionalism Explicit and Implicit Constitutions Constitutionalism and Written Constitutions Constitutionalism and Constraint Empowerment and Authority Democracy: Constraint or Empowerment? Constitutionalism versus Democracy Popular Sovereignty Judicial Review of Legislation Concluding Remark Notes.

Thomas Sattig has argued recently that constitutionalism renders determinism about the actual world false, just in virtue of ordinary facts about ordinary middle-sized material objects. However, it seems that, if determinism about the actual world is false, this should be so for reasons of physics rather than in virtue of ordinary facts about ordinary objects. This is the problem of cheap indeterminism. Sattig also claims, however, that constitutionalists can solve this problem if they abandon an attractive and promising solution (...) to the classical grounding problem affecting their view. In this paper I argue that, against his claims, constitutionalists can solve the problem of cheap indeterminism and the grounding problem simultaneously. (shrink)

This chapter deals with a brief word about the Christian doctrine of Incarnation. The doctrine of the Incarnation, which takes Jesus Christ to be a person fully human and fully divine, requires a slight modification of constitutionalism. Constitutionalism seems to have an advantage over mind‐body dualism about Christ's nature: his human nature is wholly material and his divine nature is wholly immaterial. The chapter also focuses on Christian doctrines of resurrection of the dead. Next, it discusses St Thomas (...) Aquinas's views in particular, and points to a few difficulties it has. It shows how constitutionalism can avoid Thomas's difficulties and provides an understanding of the doctrine of resurrection without immaterial souls. Aquinas gives a way to distinguish between Smith's and Brown's souls between death and the general resurrection. Separated souls are individuated by the bodies that they long for. Each separated soul has an affinity for the body with which it was united during earthlylife. (shrink)

Global constitutionalism : positivism and international law -- International trade law : theories and practices in negotiations -- Making rules in the WTO : negotiations from Doha to Bali -- North-South controversy : developed and developing countries in the WTO -- Self-determination and minority rights under international law -- Human right : the interlocutor of global constitutionalism -- Asian approaches to international law -- The future of international law.

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding the (...) role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating. (shrink)

Constitutionalism: Past, Present, and Future will offer a definitive collection of Professor Dieter Grimm's most important scholarly writings on constitutional thought and interpretation. The essays included in this volume explore the conditions under which the modern constitution could emerge; they treat the characteristics that must be given if the constitution may be called an achievement, the appropriate way to understand and interpret constitutional law under current conditions, the function of judicial review, the remaining role of national constitutions in a (...) changing world, as well as the possibility of supra-national constitutionalism.Many of these essays have influenced the German and European discussion on constitutionalism and for the first time, much of the work of one of German's leading scholars of public law will be available in the English language. (shrink)

The theory and practice of constitutionalism is tightly interwoven with references and appeals to values. However, these references and appeals frequently remain undertheorized and are seldom connected directly to philosophical theories of value. This chapter outlines some ways in which such connections might be established.

SummaryThe Admonition Controversy, largely between Thomas Cartwright and John Whitgift has proven fecund ground for intellectual historians analysing the religious dimension to early-modern political ideas. This paper argues that the religious dimension of Cartwright's mixed constitutionalism needs better explanation, rather than just noting that his ecclesiastical mixed constitutionalism mirrors his political mixed constitutionalism. This paper tracks Cartwright's progressive, dialogical unfolding of his mixed constitutionalism in response to Whitgift's attempt to derive episcopacy from the fact of English (...) monarchy, effectively discrediting the Admonition to Parliament. Furthermore, the essay outlines how the Cartwright–Whitgift debate led Cartwright to emphasise a parliamentarist mixed constitution when most of his contemporaries, especially the more famous mixed constitutionalist, Thomas Smith, portrayed the English parliament leaning noticeably towards the monarch. This analysis accepts that religious polemic was a major driving force in the normalisation of parliamentarism, yet seeks to show exactly how this worked out in one of the most important church–state disputes in Elizabethan England. (shrink)

This paper has several aims. Its main interpretive task is to argue that the democratic aspirations of contemporary critical theory are informed and haunted by an essentially Hegelian conception of constitutional order that I describe in part 1, according to which the modern state represents an institutional structure that integrates society through rational activity by mediating between the different interests of various social strata, connecting them in a common enterprise—haunted, because this Hegelian vision of making individuals free and “at home” (...) in the modern world, reconciled to it by virtue of being able to comprehend their social order as the work of their own shared reasons, remains a griping one, but one that critical theorists starting with the Left Hegelians view as increasingly implausible under modern social conditions. In section 2, I trace the decline of confidence in the prospects for the rational/mediational integration of society Hegel envisioned through Horkheimer and Adorno, and discuss some relevant aspects of Habermas’s initial reception of their views. Section 3 argues that the conceptions of democratic constitutional politics offered by Habermas and Benhabib should be read as attempts to recover, in a critical manner and under changed conditions, Hegel’s idea of social order as the product of rational activity. Along the way, I will make three interpretive and critical points: first, the existence of this link to Hegelian conceptions of constitutionalism demonstrates that interpretations of Habermas’s later work that read him as having broken with the tradition of Left Hegelianism are overstated—my reading of Habermas highlights his essentially Hegelian proceduralism and the social theoretic dimension of his work, and should challenge people who think of him as a neo-Kantian moralist. Second, this Left Hegelian social theoretic backdrop provides a stronger normative justification for the practice of democratically rearticulating constitutional norms—along with its apparent demotion of the stabilizing virtues of the rule of law—than the contextual one that some legal theorists have so far offered. Thirdly, I will comment on the shortcomings of Habermas’s conception of democratic constitutionalism, as well as Benhabib’s modified concept of “democratic iterations,” along with some brief suggestions on how this set of ideas should be developed. (shrink)

Neither the historical tradition of American constitutionalism nor those who have theorized about it have promoted political or theoretical designs hospitable to the valorization or promotion of democratic virtue. This article illustrates this point by canvassing practical interpretations of the American constitution, from the document of 1787–1791 to Bush v. Gore, and theoretical interpretations from Madison to Rawls, Dworkin, Ackerman, Elster, Holmes, and other contemporary theorists of liberal constitutionalism and natural law. Exposing these roadblocks to the theory and (...) practice of democratic virtue in America, it argues, provides a critical corrective to current debates about the relationship between constitutionalism and democracy. (shrink)

A truly inclusive democratic politics must be understandable, or cognitively tractable, for ordinary people busy with the rest of their lives. This extends not only to everyday politics and policy, but to constitutional politics as well—non-specialist democratic citizens should be able to grasp the fundamental law that governs them and imagine their own role in shaping it as political agents. Yet these requirements raise a difficulty: in many countries, including the United States, constitutions are treated as the exclusive domain of (...) lawyers and judges. As a result, constitutional matters are typically discussed using legalistic jargon that is inscrutable even to non-specialist lawyers, let alone ordinary citizens. How then can constitutional politics be made legible to ordinary citizens? In this essay, I argue this challenge is partly one of political ideas—specifically, the ideas ordinary citizens use to think about their constitutions, or their folk constitutionalism. This may sound strange because insofar as constitutions are treated as lawyers’ exclusive turf, the problem may seem to be one of practice, not merely ideas. But popular practices of what scholars like John Finn and Elizabeth Beaumont call popular or civic constitutionalism involve citizens and social movements in transforming constitutions. These transformations often occur behind the backs of everyone involved, as new frames and understandings come to gradually transmute constitutional meaning, which in turn pervades the public political culture and reshapes the public’s constitutional imagination. I suggest we need ideas that more closely reflect what democratic citizens already do in democratic constitutional politics, so that they can do it more self-consciously and dispel the impression of an anti-democratic lack of control that recent constitutional innovations reveal to be illusory. I explore the utility of ideas of unwrittenness and functional multi-textuality to the end of a folk constitutionalism appropriate for democracy. (shrink)

As a metaphysic of human persons, constitutionalism in its most general form is the view that human persons are constituted by their bodies, but are not strictly identical to them. The relation between human persons and their bodies is that of constitution, a type of unity relation whose relata are strictly nonidentical; “constitution is not identity”, as the phrase goes. As the literature on constitutionalism is plentiful the proponents and critics of the view are many the author will (...) interact principally (though not exclusively) with the brand of constitutionalism defended by Lynne Rudder Baker. Constitutionalism runs afoul of an independently plausible principle regarding the relationship between persons and their mental lives, what Andrew Bailey has called the priority principle. The principal motivating factor behind the priority principle is that human persons are the ultimate source or originator of their mental lives. (shrink)

The threat of terrorism once again raises some of the classic questions about constitutionalism: is it possible for constitutions to do what they aim to do—channel and control political power in such a way as to make it safe and beneficent for those under its rule but also competent to govern? Does not terrorism reraise the Schmittian problem of “the exception”, i.e., the situation of emergency that necessarily escapes all constitutional limitations? Although they did not face the problem of (...) terrorism as we know it, the American founders developed three different models of constitutionalism, embodying three different ways of responding to emergent circumstances and yet remaining bound to the constitutionalist aspiration. We develop the main outlines of the three models both conceptually and historically and show how they continue to be relevant to current discussions of constitutionalism in the age of terror. Finally, we make a tentative effort to judge which of the three models is most able to do what constitutions should do in difficult times. (shrink)

The article examines the compatibility of agonistic democracy and populism as well as their relationship to the idea of constitutionalism. The first part shows that Chantal Mouffe’s recent attempts to reconcile her normative approach of an agonistic pluralism with a populist style of politics are not fully convincing. Although there are undeniable commonalities between an agonistic and a populist understanding of politics – the appreciation of conflict, the rejection of moralistic and juridical modes of conflict resolution etc. – the (...) populist mode of the construction of the people (and the denunciation of political opponents as enemies of the people) risks impeding the transformation of antagonistic into agonistic modes of political contest. The tensions between agonism and populism are especially evident in matters of constitutionalism. This topic is examined in the second part of the article, which provides some ideas for reducing the normative and institutional blind spots of contemporary theories of agonistic democracy. It focuses on elementary principles for an agonistic concept of democratic constitutionalism that differs from the populist view of the relationship between politics and law, especially in respect of its interpretation of the concept of ‘resistibility’ of legal norms. (shrink)

The very idea of the draft European Union (EU) Constitutional Treaty was reexamined after the failed French and Dutch referendums and the Treaty of Lisbon (also known as the Reform Treaty) was drafted and entered into force on 1 December 2009 after it’s ratification by all 27 member states. The traditional notion of a Constitution as a national legal document establishing the social contract and a moral minimum for a particular socially unified group still prevails in legal and political thinking. (...) Indeed, the European Union has some constitutional elements, but absence of the so called ‘European demos’ prevents us from recognizing the founding treaties as a real ‘European constitution’ in the proper sense of the word. The author agrees with the decision to exclude the term ‘Constitution’ from the title and contents of the new Reform Treaty. The author also suggests that softer terms, like ‘European constitutional order’ and ‘European Constitutionalism’ might better reflect the scope of contemporary European integration than the term of ‘a Constitution for Europe’. A rethinking of the ‘constitutional core’ of the Lisbon Treaty was inspired following the so-called Lisbon judgments of Czech, Latvian and German constitutional courts. (shrink)

Constitutionalism offers a governance order a set of normative values including, amongst others, the rule of law, divisions of power and democratic legitimacy. These normative values regulate the relationship between constituent and constituted power holders. Such normative constitutional legal orders are commonplace in domestic systems but the global constitutionalisation debate seeks to identify a constitutional narrative beyond the state. This book considers the manner in which the global constitutionalisation debate has neglected constitutionalism within its proposals. It examines the (...) role normative constitutionalism plays within a constitutionalisation process, and considers the use of community at both the domestic and global governance levels to identify the holders of constituent and constituted power within a constitutional order. In doing so this analysis offers an alternative narrative for global constitutionalisation based within normative constitutionalism. (shrink)

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, (...) the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law. (shrink)

Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat (...) the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny. (shrink)

Among contemporary forms of constitutionalism, Luigi Ferrajoli’s Garantismo may be considered as the rather unfashionable attempt to build up a comprehensive and multi-layered theory, which still takes seriously the positivist heritage. This paper offers, in brief outline, a synthetic view of the social setting, the philosophical background, and the basic features of this conception of constitutionalism, when compared with legal positivism and other mainstream forms of (neo)constitutionalism.

The eleven essays in this volume, supplemented by an editorial introduction, centre around three overlapping problems. First, why would a society want to limit its own sovereign power by imposing constitutional constraints on democratic decision-making? Second, what are the contributions of democracy and constitutions to efficient government? Third, what are the relations among democracy, constitutionalism, and private property? This comprehensive discussion of the problems inherent in constitutional democracy will be of interest to students in a variety of social sciences. (...) It illuminates particularly the current efforts of many countries, especially in Latin America, to establish stable democratic regimes. (shrink)

This dissertation argues that the current tendency to define liberal constitutionalism in terms of the impersonal and formalistic ideals of the rule of law diverges from early liberal theories of constitutionalism, which were sensitive to the occasional need for extra-legal discretionary exercises of power to deal with the unpredictable contingencies of politics. This understanding of politics shaped the constitutional and political thought of liberal thinkers from John Locke, David Hume, and William Blackstone to Alexander Hamilton, James Madison, and (...) other Federalists who defended the extraordinary powers of the American presidency. Since these early liberals recognized that it would sometimes be necessary for an executive to perform extraordinary actions in response to unforeseeable events, they were reluctant to place excessive legal checks on executive power. Consequently, they emphasized the importance of limiting executive power to those with "fit characters." In particular, they looked to those politico-moral virtues associated with republicanism to supplement and enhance the constitutional machinery of government that was designed with the ordinary course of politics in mind. Although early liberal theorists and the designers of the American Constitution abandoned many of the core principles of republicanism, particularly its reliance on a virtuous and active citizenry as the best guarantee of free government, they preserved a place for distinctively republican virtues such as patriotism and disinterestedness in the office of the executive. In fact, the Federalists made the American presidency the primary repository of republican virtue in the new government. The first century of liberal constitutional theorists was actually skeptical of the ability of impersonal institutional devices such as the separation of powers and checks and balances to secure a free and effective government without the presence of fit characters. Since formal institutions are imperfect and often inadequate---both in dealing with political contingencies and in checking the executive---these thinkers supplemented legal and institutional safeguards with character requirements to minimize potential abuses of largely indeterminate executive powers irreducible to law. An abiding conviction that uncertainty is the only certainty in politics led them to prefer flexible approaches rather than the rigid formulas in theorizing constitutionalism. (shrink)

Constitutionalism in an Age of Diversity James Tully. these ambassadors from Haida Gwaii conciliate the goods which appear irreconcilable to us? To discover the answer, and learn our way around on this strange common ground, we need to ...

Globalization is a topic of some anxiety among international lawyers. On the one hand, its fluid dynamics — fragmentation, deformalization and empire — undermine traditional diplomatic rules and institutions. On the other hand, the effort to reimagine international law in purely managerial terms appears intellectually shallow and politically objectionable. To avoid marginalization and instrumentalization, many lawyers have begun to think about international problems through a constitutional vocabulary and have often cited Kant in that connection. This Article argues that, while it (...) is always possible to grasp the world through a constitutional vocabulary, this does not provide determinate answers to international problems. Instead of an institutional architecture or a set of legal rules, constitutionalism is best seen as a mindset — a tradition and a sensibility about how to act in a political world. Contrary to a widespread assumption, Kant’s political writings may also be read in this fashion and, if so, a meaningful international transformation might necessitate not only legislative or institutional intervention but a professional and perhaps spiritual regeneration. (shrink)

The overall aim of this thesis is to assess the legitimacy of constitutional laws and bills of rights within the framework of procedural epistemic democracy. The thesis is divided into three sections. In the first section, I discuss the relevance of an epistemic argument for democracy under the circumstances of politics: I provide an account of reasonable disagreement and explain how usual approaches to the authority of decision-making procedures fail to take it seriously. In the second part of the thesis, (...) I provide an account of the epistemic features of democracy and of the requirements of democratic legitimacy. I develop a revised pragmatist argument for democracy which relies on three presumptive aims of decision-making: justice, sustainability and concord. In the third and last section, I first argue for the desirability of constitutionalism. I then explain why constitutionalism, as it is usually understood, is incompatible with my procedural epistemic account of democratic legitimacy. In the last chapter, I offer a two-pronged solution to the apparent incompatibility of constitutionalism and epistemic democracy. I first argue for the appropriateness of political constitutionalism, as opposed to legal constitutionalism, in understanding the relationship between rights and democracy. I then provide an account of rights protection and judicial review compatible with epistemic democratic legitimacy. Finally, I use the notion of pragmatic encroachment to explain how constitutional laws can achieve normative supremacy through the increased epistemic credentials of the procedure. (shrink)

This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation (...) feel bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)

Constitutionalism and the Rule of Law are related ideas about how the powers of government and of state officials are to be limited. The two ideas are sometimes equated. But constitutionalism, generally understood, usually refers to various constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights, which are partly (...) constitutive of a liberal democratic system of government. The Rule of Law, on the other hand, embodies certain standards that define the characteristic virtues of a legal system as such. (shrink)

The article presents a plebeian strand of republican constitutional thought that recognises the influence of inequality on political power, embraces conflict as the effective cause of free government, and channels its anti-oligarchic energy through the constitutional structure. First it engages with two modern plebeian thinkers – Niccolò Machiavelli and Nicolas de Condorcet - focusing on the institutional role of the common people to resist oppression through ordinary and extraordinary political action. Then it discusses the work of two contemporary republican thinkers (...) – Philip Pettit and John McCormick – and contrasts their models of ‘contestatory’ and ‘tribunician’ democracy. Finally, I incorporate a political economy lens and propose as part of republican constitutionalism not only contestatory and tribunician institutions but also anti-oligarchic basic rules to keep inequality and corruption under control. (shrink)