Michael Wilkinson

Michael Wilkinson

Email: M.Wilkinson@lse.ac.uk
Administrative support: Jennifer O'Connell
Room:  New Academic Building 6.28
Tel. 020-7955-6608

Mike Wilkinson, Associate Professor of Law at LSE, studied at University College London, the College of Europe, Bruges, and completed a PhD at the European University Institute, Florence, on ‘The Idea of Postnational Constitutionalism’. Prior to taking up his post at LSE in September 2007, Mike was lecturer at Manchester University, EU-US Fulbright Research Fellow at Columbia and NYU and was called to the Bar (Lincoln’s Inn) in 2000. He has also taught at Cornell University as adjunct professor of law and been a visiting professor at Université Panthéon-Assas (Paris II).
 

Research Interests
  • European Integration

  • Constitutional Theory

  • Legal, Political and Social Theory

 
Selected articles
and chapters in books
 

'Economic Messianism and Constitutional Power in a "German Europe": All Courts are Equal, but Some Courts are More Equal than Others' Law Society and Economy Working Paper Series WPS 26-2014 December 2014

Since the financial crisis there have been extraordinary efforts by the European Central Bank to protect the single currency, alongside pronouncements by European political elites that the Euro determines Europe's fate and must be rescued at any cost. In its OMT reference, the German constitutional court challenges this emerging 'Economic Messianism' on the basis of a constitutional logic of the democratic Rechtsstaat. And yet, the German Court is also promoting an ordo-liberal logic of avoidance of moral hazard, fiscal competitiveness and austerity that undermines the project of European integration and erodes constitutional democracy in the debtor states. These tensions – between supranational economic integration, state sovereignty and domestic constitutionalism – reveal the depth of the constitutional disequilibrium in the EU, and also reflect broader contradictions in the development of late democratic capitalism.

'From Karlsruhe, with Love? Questioning the Constitutionality of Unconventional Monetary Policy'  LSE Law: Policy Briefing Papers 6/2014

The programme of outright monetary transactions (OMT) announced by the European Central Bank, allowing it to act in effect as a lender of last resort for Eurozone states in financial difficulty, has widely been credited as an economic success. Constitutionally, however, the programme has faced difficulties. The German Constitutional Court challenged it earlier this year as ultra vires and unconstitutional, and now the European Court of Justice will rule on its legality. The case is noteworthy as being the first ever reference from Karlsruhe to Luxembourg, testing the relationship between the most powerful domestic court in Europe and the supranational court of the EU. But the challenge raises the broader issue of the fate of the Eurozone and the EU itself, exposing the weakness of the constitution of Economic and Monetary Union and its ‘currency without a state’.

'Politicising Europe’s Justice Deficit: Some Preliminaries' LSE Law Society and Economy Working Paper Series, 08-2014

Normative political theory is divided on whether questions of distributive justice properly extend beyond the state. From a functionalist perspective, however, justice reflects a balance of material forces, subject to the logics of ‘market’ and ‘social’ justice, or ‘capitalism’ and ‘democracy’. The justice ‘deficit’ is the imbalance or disequilibrium in these logics, an imbalance which the constitution of the post-war European state stabilises through their constraint. European integration, initially an important feature of this post-war settlement, now increasingly comes to be viewed as a significant threat to it. Whereas market logic and capital have been rapidly supra-nationalised, social-democratic logic has struggled to transcend the state, the EU, in particular, lacking the channels of contestation to legitimise redistribution. This leads to an imbalance in the forces of capitalism and democracy, a justice ‘deficit’, which destabilizes national as well as supranational institutions, but also leads to questions being asked of what Germans owe Greeks, or vice versa. The justice deficit and reaction to it now appear to be threatening core features of state sovereignty. But it also suggests that the logic of the state - and the question: to whom are obligations owed? - must itself be subject to contestation; the dilemma of market and social justice, or capitalism and democracy, must be replaced with a trilemma, of market, social and democratic justice.

‘The Spectre of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union’ (2013) German Law Journal  14 (5)

‘Political Constitutionalism and the European Union’ (2013) Modern Law Review  76(2), pp.191-222.

What kind of constitution is emerging in Europe? Answers to this question can be separated into two types. The first, based on a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, based on a ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity-building, a third approach, ‘political constitutionalism’, is proposed, which captures the dynamic quality of the process of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.

'Dewey's "Democracy without Politics": On the Failures of Liberalism and the Frustrations of Experimentalism'  (2012) 2 Contemporary Pragmatism pp.117-142

Democracy, for John Dewey, is emphatically not just a form of government; it is an ethical way of life. And yet, historically, it is in a state of fragility, due to the ascendancy of classical liberalism with its ideological individualism and market holism, and practical inability to meet the social needs of the day. Exposing the politics of individualistic liberalism, Dewey suggests replacing its social forms with those of the scientific community of enquiry, thus separating the pathologies of modernity (the social forms associated with individualism and liberal capitalism) from its qualities (the scientific progress achieved through intelligent interaction and mutual learning). But Dewey neglects the politics of democratic experimentalism, which, it is suggested here, undermines the contemporary revival of Deweyan pragmatism as a public philosophy committed to democracy as an ethical way of life.

Review of Under Weber’s Shadow: Modernity, Subjectivity and Politics in Habermas, Arendt and Macintyre by Keith Breen (Aldershot: Ashgate, 2012). LSE Review of Books. August 2012 [click here for review]

'Between Freedom and Law: Hannah Arendt on the Promise of Modern Revolution and the Burden of "the Tradition"' in Hannah Arendt and the Law, edited by Marco Goldoni and Christopher McCorkindale (Hart, 2012); working paper published in LSE Law Society and Economy Working Paper Series, 05-2011 August 2011

What are the juridical implications of Hannah Arendt’s conception of freedom as political rather than personal, based on action in the circumstances of plurality rather than an absence of interference in the context of isolated contemplation? This is not a question of mere philosophical speculation. According to Arendt, the experience of modern revolution, beginning in America and France at the end of the 18th century, marks the appearance of freedom as a worldly, political phenomenon with the potential to change our understanding of the constitutional foundations of authority. And yet this potential is betrayed due to the inability of our juridical imagination to escape two conceptual dead-ends: the image of law as command and the model of constitutionalism as a process of fabrication, both of which, in different ways, suppress our sense of political freedom by expressing constitutional foundations in terms of sovereign ‘absolutes’. In so doing the modern juridical imagination neglects the significance of two older conceptions of law, the Greek nomos and the Roman lex, neither of which depend upon such absolutist foundations. The Roman lex might suggest a way out of this conceptual impasse, by conceiving law as relational, dynamic, and intertwined with the political at its root, but in a manner captured by the metaphor of constitutionalism as ‘political grammar’ or ‘syntax’.

Review of Public Law and Politics: The Scope and Limits of Constitutionalism, edited by Emilios Christodoulidis and Stephen Tierney. (Aldershot: Ashgate, 2008)' (2010) 16 European Public Law pp. 475–479

'Is Law Morally Risky? Alienation, Acceptance and Hart’s Concept of Law' Oxford Journal of Legal Studies (2010) Issue Number 3

According to Hart’s concept of law one of the distinctive characteristics of a legal order is that it is sustainable on the basis of official acceptance alone. Can we go further and say that law is morally risky in the sense that it is endemically liable to become alienated from its subjects? On the basis of Hart’s weak formulation of acceptance there is nothing to suppose that acceptance and (an absence of) alienation are connected. However, on closer inspection, this weak formulation is defective, failing to account for the normative and collective aspect of the law qua social norm. Pursuing a stronger notion of acceptance as a critical reflective attitude does establish a link between acceptance and (an absence of) alienation, but it fails to establish that the legal regime is, by its nature, endemically alienating in a way that a pre-legal regime is not. It does, however, help to explain why any official-centred picture of the legal regime is problematic in terms of accounting for law’s normativity. Whether alienation materializes, it is concluded, depends on the social and political factors that condition our attitude towards the law rather than on the nature of law as such. 

'Three Conceptions of Law: Towards a Jurisprudence of Democratic Experimentalism'  Wisconsin Law Review (2010) Issue Number 2

The article takes as its starting point the recent transformation in our legal, political, and social relations that is suggested in the literature on “new governance.” It asks, what are the implications of this transformation for our conception of law and legality, and, specifically, what is the relationship between law and new governance? The existing responses to this question are presented as generally falling into two groups: those that argue that law is transformed in the move to new governance, and those that argue that there is an irreducible conceptual and normative gap between law and new governance. At the back of each of these accounts of the relationship between law and new governance is a more fundamental conception of legality: in the former case, a functionalist, and in the latter case, a liberal-legalist conception of legality. Arguing that neither of these approaches is satisfactory, I propose a third account of the relationship between law and new governance, the contingency thesis, which is supported by a democratic conception of legality.

Review of Coyle 'From Positivism to Idealism: A Study of the Moral Dimensions of Legality' (2009) 72:4 Modern Law Review 677 - 683

'Between Constitutionalism and Democratic Experimentalism? Law and New Governance in the EU and the US' (2007) 4 Modern Law Review 680 – 700

This piece focuses on the new scholarship associated with ‘democratic experimentalism’ (also called ‘directly deliberative polyarchy’) as it has been developed by Charles Sabel et al. and applied in various different legal contexts in the EU and the US. The thrust of my investigation is examining how democratic experimentalism relates to the practice and idea of constitutionalism and in particular the difficulty in reconciling the tensions between law, democracy and the constitution of the polity.

'Who’s afraid of a European Constitution?' (2005) Vol. 30 No.2 European Law Review 297 – 314

This article focuses on the various attempts to reconceptualise a European constitutionalism that is based on a more plural, bottom-up and heterarchical normative framework than the classic constitutionalism of the nation-state, and concludes that such attempts are problematic because they often leave behind the core tenets of constitutionalism itself.

'Civil Society and the Re-imagination of European Constitutionalism' (2003) 9:4 European Law Journal 451 – 472

This piece, which was written as a contribution to a special issue of the ELJ on Civil Society, attempts to chart a middle way between the ‘national demos’ and ‘European market’ approaches to European constitutionalism, rejecting the two poles as a ‘false dichotomy’. It explores the potential of a Habermasian framework in which republican ethos might transcend the nation-state and concludes with an examination of the ‘agonistic’ and ‘experimentalist’ alternatives to his ‘post-national constellation’.

'Postnationalism, (Dis)organised Civil Society and Democracy in the European Union: Is Constitutionalism Part of the Solution or Part of the Problem?” (2002) 3:9 German Law Journal

The focus of this article is the difference between what might be termed a ‘bottom-up’ and a ‘top-down’ approach to the construction of a constitutional polity in the postnational context of the EU. Criticising several of the dominant models in the Habermasian vein as being overly ‘top-down’ and state-centric, it examines whether constitutionalism can be rethought in more pluralistically democratic terms.

'Constituting Europe: Flexibility or Finality?' (2002) 1 Oxford Journal of Legal Studies 177 – 187