(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?
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'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.
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(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.
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'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.
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'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?
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'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.
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'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.
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'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’.
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'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.
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‘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.
available as
'Dewey's 'Democracy without Politics': On the Failures of Liberalism and the
Frustrations of Experimentalism'
via SSRN
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’.
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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.
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'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.
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'Who’s afraid of a European Constitution?' (2005) Vol. 30 No.2 European Law
Review 297 – 314
'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’.
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'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.
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'Constituting Europe: Flexibility or Finality?' (2002) 1
Oxford Journal of Legal Studies 177 – 187
