Michael Wilkinson

Michael Wilkinson

Email: M.Wilkinson@lse.ac.uk
Administrative support: Anna Lisowska
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. Prior to taking up his post at LSE in 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) and National University of Singapore (NUS).

Research Interests
  • European Integration

  • Constitutional Theory

  • Legal, Political and Social Theory


Constitutionalism beyond Liberalism, Michael W. Dowdle and Michael A. Wilkinson eds. (Cambridge University Press, 2017)

Constitutionalism Beyond Liberalism bridges the gap between comparative constitutional law and constitutional theory. The volume uses the constitutional experience of countries in the global South - China, India, South Africa, Pakistan, Indonesia, and Malaysia - to transcend the liberal conceptions of constitutionalism that currently dominate contemporary comparative constitutional discourse. The alternative conceptions examined include political constitutionalism, societal constitutionalism, state-based (Rousseau-ian) conceptions of constitutionalism, and geopolitical conceptions of constitutionalism. Through these examinations, the volume seeks to expand our appreciation of the human possibilities of constitutionalism, exploring constitutionalism not merely as a restriction on the powers of government, but also as a creating collective political and social possibilities in diverse geographical and historical settings.

Selected articles
and chapters in books

(with Marco Goldoni) 'The Material Constitution' Law, Society and Economy Working Paper Series 20-2016 (2016)

What is the material context of constitutional order? The purpose of this paper is to offer an answer to that question by sketching a theory of the material constitution. Distinguishing it from related approaches, in particular sociological constitutionalism, Marxist constitutionalism, and political jurisprudence, the paper outlines the basic elements of the material constitution, specifying its four ordering factors. These are political unity, the dominant form of which remains the modern nation-state; a set of institutions, including but not limited to formal governmental branches such as courts, parliaments, executives, administrations; a network of social relations, including class interests and social movements, and a set of fundamental political objectives (or teloi). These factors provide the material substance and internal dynamic of the process of constitutional ordering. They are not external to the constitution but are a feature of juristic knowledge, standing in internal relation and tension with the formal constitution. Because these ordering factors are multiple, and in conflict with one another, there is no single determining factor of constitutional development. Neither is order as such guaranteed. The conflict that characterizes the modern human condition might but need not be internalised by the process of constitutional ordering. The theory of the material constitution offers an account of the basic elements of this process as well as its internal dynamic.

(with Michael W. Dowdle) 'Introduction', in ‘Foundations of Public Law’, a special issue of Jus Politicum: Revue de Droit Politique (July 2016; Wilkinson and Dowdle eds.)

Martin Loughlin’s Foundations of Public Law offers a radical reworking of public law scholarship, converting it into an interdisciplinary enquiry into the political character of the state. Bringing public law into conceptual and discursive interplay with political theory, political sociology and state theory, Foundations explores the core legal-political relation as it evolves with the evolution of the modern state. The project raises a number of questions that are critically interrogated in this special issue. Does Foundations neglect the emancipatory and normative potential of public law? Does it fully capture the material forces at work in conditioning the evolution of the state and its law? Does public law, at least in its administrative branches, depend upon a foundation at all? And, at its most basic, is an enquiry into the foundations of public law misguided in light of the plurality of its forms?

'The Brexit Referendum and the Crisis of “Extreme Centrism' German Law Journal (2016) 17 (Brexit Supplement) pp.131-142

'The Reconstitution of Postwar Europe: Lineages of Authoritarian Liberalism'  LSE Law Society and Economy Working Paper Series, 05-2016

The historical conjuncture reached in the European Union recalls the spectre of authoritarian liberalism, with politically authoritarian forms of government emerging in defence of practices and ideas associated with economic liberalism. Offering a long view of this formation, the paper traces its relation to the project of European integration from the interwar breakdown of liberal democracy to the ongoing Euro-crisis, by way of its postwar and post-Maastricht reconstitution. Postwar Europe was constituted to restore liberalism and protect it not only from sovereign violence and political nationalism, but also from the perceived threat of democracy. Contributing to the taming of sovereign authority, the erosion of constituent power, and the de-politicisation of the economy, this geopolitical constitutionalism functioned during the early years of the common market to produce a relatively stable settlement, through a mixture of supranationalism, ordoliberalism, corporatism and social democracy. But after Maastricht, and in the shadow of geopolitical transformations inaugurated by the fall of the Berlin Wall and the unleashing of global capitalism, Europe was reconstituted on a neo-liberal basis which left the European Union and its Member States unable to respond to financial crisis other than through circumvention of the rules and principles of integration, technocratic discretion and political and economic coercion. This response now prompts concerns of regional imperialism and German hegemony as well as the return of anti-systemic political parties, leading to a conjuncture reminiscent of interwar authoritarianism, as any democratic or constitutional alternative to economic liberalism and its ideology of austerity is obstructed. It might therefore be worthwhile to recall that the authoritarian liberal repression of democratic socialism in the interwar period was followed by an authoritarian illiberal counter-movement of dramatic, and devastating, proportions.

(with Michael W. Dowdle) 'On the Limits of Constitutional Liberalism: In Search of a Constitutional Reflexivity' NUS Law Working Paper No. 2015/009 (forthcoming in Michael W. Dowdle and Michael A. Wilkinson, eds., Constitutionalism Beyond Liberalism, Cambridge University Press, 2016)

Analyses of comparative constitutional law are frequently framed by a particular vision of constitutionalism that we call the 'structural-liberal' vision. This vision sees the purpose of constitutional as being one of limiting state power - its ‘liberal’ component - which is done through the construction of a particular set of institutional architectures - such as judicial constitutional review, judicial protection and enforcement of fundamental rights, separation of powers, rule of law, etc. - its 'structural component.' In this paper, we argue that such analyses are incomplete. The structural-liberal vision is but one of a number of ways of conceptualizing constitutionalism. It is the product of a particular time and place, and reflects the particular concerns and experiences of that time and place. Conversely, there are other kinds of important constitutional concerns and experiences that the structural liberal-vision renders invisible. These include processes of constitutional emergence and evolution, and symbiotic relationships between constitutionalism and other aspects of the regulatory environment (such as the economic structure of the state). In order to be complete, analyses of comparative constitutional law need to be more attentive to the distinctive concerns and experiences of the subjects of their attention. This involves allowing the subject system to speak for itself within the context of the larger, human discussion of constitutionalism - an analytic methodology that we call constitutional reflexivity.

'Austerity, Grexit and the Battle for the Euro' LSE Law Policy Briefing Paper 10/2015

Does the European Central Bank ('ECB') have the mandate to do ‘whatever it takes’ to save the Euro? While the German Constitutional Court answered the question with a clear 'no', the European Court of Justice suggested that the ECB did in fact have that mandate. This judicial battle for the Euro, however, is only part of a story that involves political power struggles between Merkel and Tsipras; that saw the emergence of ideological schisms in the EU; and created the real risk that for the first time a Member State would be forced to leave the EU.

'The Euro is Irreversible! ... Or is it?: On OMT, Austerity and the Threat of "Grexit"' German Law Journal (2015) 16 (4) pp.1049-1072

'Politicising Europe’s Justice Deficit: Some Preliminaries' in D. Kochenov, G. De Burca and A. Williams (eds) Europe’s Justice Deficit? (Hart, 2015)

'Authoritarian Liberalism in the European Constitutional Imagination: Second Time as Farce?' European Law Journal  (2015) 21:3 pp.313-339

The current crisis in Europe recalls the theory and practice of authoritarian liberalism, the idea that in order to protect economic liberalism and respect for fiscal discipline, representative democracy must be curtailed. This configuration was first identified by Hermann Heller in late Weimar as a response to the imperative to maintain the ideological separation of state and economy and presented by Karl Polanyi as conditioned by broader geo-political pressure to maintain the gold standard in the inter-war period. Authoritarian liberalism is now conditioned by conflicting imperatives to maintain the project of the single currency, respect ordo-liberal concerns of moral hazard, and protect ‘militant democracy’ but only in one country. Does this reflect a broader geo-political disequilibrium, due to tensions between market integration, constitutionalism and democracy?

'Political Jurisprudence or Institutional Normativism? Maintaining the Difference Between Arendt and Fuller' Netherlands Journal of Legal Philosophy (2014) 3

Can jurisprudence fruitfully pursue a synthesis of Arendt’s political theory and Fuller’s normative legal philosophy? Might their ideas of the juridical person and the legal subject be aligned as a result of a shared concern for the value of legality, specifically of an institutional complex which is structured through the stability and predictability of the rule of law? It is doubtful that Arendt's concern for the phenomena of plurality, political freedom and action can usefully be brought into line with Fuller's normativist focus on legality, subjectivity and the inner morality of law. This doubt is explored by juxtaposing Arendt's theory of action and her remarks on the revolution, foundation and augmentation of power and authority with Fuller's philosophy that, however critical of its positivist adversaries, remains ultimately tied to a Hobbesian tradition which views authority and power in abstract, hierarchical and individualist terms.

'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