Oxford Constitutional Law: Liberalism

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 16 April

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Content type: Encyclopedia entriesProduct: Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]Article last updated: December 2016

LiberalismMassimo Fichera

Subject(s):

Principles and objectives of constitutions — Liberalism

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum. Managing Editor: Ana Harvey

https://oxcon.ouplaw.com/


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A. Definition1. Liberalism as a concept belongs both to political philosophy and constitutional doctrine. It expresses the political-philosophical ambition to craft a free, just, and prosperous society in which the projects of individual’s lives ought to be developed independently of any unjustified interference by private or public authorities. However, liberalism may also be understood as a doctrine emphasizing the fundamental principles of constitutional (ie limited) government, → rule of law and → individual rights. Both configurations—liberalism as a political-philosophical concept and liberalism as a form of constitutionalism—stand on their own, and have been refined in several ever subtler ways over the centuries, beginning in the late seventeenth century. Yet, the line between the two is rather blurred; they feed each other and can often be considered interchangeable, drawing on a common, overarching set of values. Despite this proviso, it makes perfect sense to identify a cluster of distinct features which are attached to liberalism as a constitutional doctrine—namely, the idea of the rule of law and limited government, the emphasis on the protection of individual rights and the need for a more or less intense form of → judicial review, standards for the protection of minorities, and so on. From this perspective, the rule of law, and its German equivalent the Rechtsstaat, can always be seen as a ‘grandiose tautology’, a self-referential formula which is employed by a liberal legal system to differentiate itself from the political system (Luhmann 370). It follows that the idea of state—with its connected apparatus, modus operandi, and functional tools—is essential to liberalism. The growth of state machinery and the promotion of individual freedoms go hand-in-hand as the main engines of the liberal agenda. In a sense, it can even be argued that throughout the centuries, and especially in the twentieth century, liberalism in its most progressive form has relied upon continuous crisis to strengthen its appeal and consolidate support for an enlarged state (Starr 8). Nowadays, new challenges to liberalism concern both national legal systems and transnational forms of integration.

B. History2. This section provides a historical overview of the development of liberalism. It focuses on, firstly, the birth of liberalism; secondly, on the relevance of the notion of the rule of law; and thirdly, on the evolution of liberalism in the twentieth century. The aim is to show the multiple facets of liberalism across time and space.

1. The Birth of Liberalism: Classic Liberal Theories between the End of the Seventeenth Century and the Nineteenth Century3. Liberalism as a doctrine and practice of government—essentially, a European product— is in constant evolution and has been implemented in numerous ways in different cultural and geographic contexts. Correspondingly, it has also been interpreted variously, both as an innovative project which is constitutive of modernity, and as a justificatory paradigm for the dismantling of the welfare state (D Bell 683–685; → social or welfare state). Traditionally (and correctly), the birth of liberalism is located between the late seventeenth century and the beginning of the eighteenth, and is associated with the 1688 Glorious Revolution, the religious wars across Europe, and Jeremy Bentham’s utilitarian theories. However, especially in the Anglophone literature of the twentieth century, liberalism proper has often been considered to be born between the late eighteenth and the early nineteenth century, as a direct consequence of the French and American Revolutions and the diffusion of capitalism (D Bell 692). Be that as it may, the development of liberalism is due less to chance than to reasons related to the socio-cultural milieu of that age, when the thriving European elites frequently came in contact with each other and exchanged ideas on what a good society ought to look like (Forster 7). In fact, the nineteenth century ‘age of converging revolutions’, in France and the United States, and later in Spain, Greece, Russia, and other European countries, was also characterized by contacts developed across


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boundaries between revolutionaries (Isabella 21–31). This phenomenon heralded the birth of a transnational civil society, promoting the notions of → popular sovereignty, constitutional rights, and representation as essential features of a legitimate polity (Isabella 21).

4. Liberalism is thus inevitably a worldview, an ambitious human artefact, as well as a political theory and a system of government. In other words, liberalism allows us ‘to view capitalism not as a mere set of economic relationships but as a part, perhaps the most important part, of a way of life’ (Girvetz viii). We may distinguish between conceptual and historical roots of liberalism.

(a) Conceptual Roots of Liberalism

5. Although some scholars do not hesitate to distinguish between ‘ancient’ liberalism (typical from classical Greece) and ‘modern’, decaying liberalism, whose forerunner would be Machiavelli (Strauss 26), the conceptual roots of liberalism are, as noted earlier, traditionally considered to lie in Bentham’s utilitarianism, as well as in classic social contract approaches emphasizing the idea that life can only be secure under the conditions created by law. John Locke’s account of the collective need to establish a → civil society to overcome fear and constant strife, and to introduce the → separation of powers to prevent abuse is very important for the development of liberalism. On the other hand, Hobbes’ configuration of self-interested autonomous individuals, who are willing to associate in political groups and obey a sovereign for the mere desire to avoid the ‘state of nature’, is more controversial. Although Hobbes’ conception of liberty is considered by some commentators to anticipate modern liberalism (Skinner 8–10) and express a ‘liberalism of peaceful coexistence’ (Gray 2–3), his idea that people relinquish responsibility for law- making to the sovereign is often connected with an authoritarian view of politics (Newey 4– 7, 150–157; → authoritarianism).

(b) Historical Roots of Liberalism

6. The historical roots of liberalism, however, date back at least to the Middle Ages, when the so-called merchant class emerged and prospered in Europe, mostly relying on trade and property. The rise of this class, and with it the ever stronger claim that people’s natural rights (→ philosophical foundations of natural rights) cannot be usurped by any authority, including the King, contributed to the demise of → absolutism, a claim typically put forward through historic documents, such as the Magna Carta Libertatum agreed by King John of England on 15 June 1215, the → Bill of Rights (1689) which set out the rights of Parliament as against the Crown, the Petition of Right (1628), and the Habeas Corpus Act (1679).

7. Enlightenment intellectuals, mainly in Scotland and France, elaborated complex theories on the evolution of institutions such as morality or the market as a result of spontaneous interactions among self-interested individuals (Smith; Montesquieu). In addition, the diffusion of Protestantism, which promoted an individualistic form of relationship between the soul and God, may have played a role in the development of liberal ideas: the erosion of certainty, in religious and other matters, and the practical question of allowing the peaceful co-existence of different religions, contributed to the growing legislation on tolerance (Munch 132–142). Emphasis on rational enquiry as the principal factor of human progress led many Enlightenment thinkers to mark a distance between their own age and the ‘dark’ Middle Ages, and find a direct connection with Greco-Roman antiquity (Siedentop 8).


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8. Both the US Declaration of Independence (1776) and the → French Declaration of the Rights of Man and of the Citizen (1789) drew upon liberal ideas of liberty, → equality, and autonomy. These ideas spread across Europe, and contributed to the uprisings of the nineteenth century. In particular, the term liberales was born in Spain, and originally indicated those who opposed the French invasion and supported the 1812 Cádiz Constitution (Isabella 25; D Bell 693). In France in 1810–1820, liberalism almost automatically made the symbol of revolution its own (Voegelin 508).

9. Later on, the Industrial Revolution, which began in the UK and spread across the Atlantic to the US, seemed to promise a new era of wealth and progress based on free market and technological innovations. Classical laissez-faire liberal ideas thus inspired the early steps of Western capitalism. However, social liberalist approaches soon developed towards the end of the nineteenth century, and proposed solutions to the harsh conditions in which the majority of the working class found themselves as a consequence of the process of industrialization. Social liberalism’s assumption is that individuals and societies are intertwined, and the government has a positive obligation to ensure a sufficient wage, education, and other rights currently associated with the so-called welfare state (Hobhouse 83). As a result, the rights of property cannot be assumed to be ‘axiomatic’, and inheritance taxes and taxes on high incomes are viewed as necessary measures to improve social conditions (Hobhouse 54). Conflicting claims thus coexist within the same political theory: on the one hand, free trade and minimal state intervention are advocated; on the other hand, the duty of the state to ensure the welfare of its citizens is upheld (Tamanaha (2008) 543–547).

2. Liberalism and the Rule of Law10. A key component of liberalism is the notion of the rule of law. As is well known, the idea of setting out limits on arbitrary power and absolute sovereignty was developed in the UK system even before the French Revolution (Costa 81). However, the voluntaristic revolutionary model (which viewed law as the expression of a founding act of the people’s sovereign will, in particular the constituent will of the people as a nation) may be contrasted with the British model (which viewed the legal system and the structure of rights as an objective and impersonal mechanism for the protection of individual claims) and the US model (which combined the two models, retaining voluntaristic elements without emphasizing the notion of the nation’s omnipotence) (Costa 83–84).

11. Taking their cue from Kant’s idea of ‘just constitution’, French, German, and British liberal thinkers of the nineteenth century attempted to reconcile the protection of individual rights, in particular freedom and property, with the sovereign power’s propensity to circumvent rules in the name of efficiency or necessity. In Germany, the Rechtsstaat theory was often associated with the theory of the state’s ‘self-limitation’ (Selbstbeschränkung), which claimed that the sovereign state, while absolute, is bound to respect the objective law and the rights of individuals—in other words, the state’s action is separate from private action, and some individual rights must be left free from state intervention (Jellinek (1922) 419–420). As a result, ‘the general rights of subjects’ take the form of duties on the part of the state, rather than definite individual legal claims (Jellinek (1901) 3). Later, in the twentieth century, questions relating to the interaction between sovereignty and law were resolved by prominent German jurists such as Kelsen by blending together the notions of state and law (Kelsen 318). Yet, historically, the German idea of sovereignty and the civic values that were appealed to by liberals ‘grew out of an age-old political tradition of local jurisdiction’ (Crosby 28). In other words, the roots of the identification of sovereignty with jurisdiction and self-governance in Germany are to be found in the conflicts of law that took place in the Middle Ages, when towns and rural communities attempted to resist the emperor’s and pope’s demands for supremacy in municipal affairs (Crosby 30). The slow


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and steady evolution of liberalism in Germany has thus been associated with the idea of ‘bourgeois revolution’, although it has been argued that, in contrast to the UK, France, and US, ‘while there was a forcible acquisition of political liberalism, revolution was made through nonviolent means’ (Crosby 12).

12. In the UK, scholars such as Dicey focused equally on the relationship between sovereignty, the state, and individual rights. However, according to Dicey, while continental constitutions were replete with abstract declarations or definitions of rights, they paid no attention—unlike the British constitution—to the provision of adequate remedies to actually enforce those rights (Dicey 116 et seq). British constitutional tradition has avoided referring to the concept of state, and tends to treat executive government as the emanation from ‘the Crown’, Parliament as the rival of the Crown, and the judiciary as a body that seeks to distance itself from both (MacCormick 128–129).

13. In the US, the elaboration of the rule of law has been characterized by the simultaneous need to (a) protect individual rights from abuses by the legislative power, and (b) express the popular sovereignty element from the perspective of republican self- determination (Casalini 201–202; → republicanism). While the idea of the rule of law in the US is contested, especially for its indeterminacy, it has been argued that, after all, Americans tend to have a strong cultural predisposition to comply with it (Charlow 95). Yet, → parliamentary sovereignty has never featured in the US tradition. By way of contrast, in France the relationship between the rule of law and the French version of the doctrine of parliamentary sovereignty has been deeply influenced by Montesquieu’s interpretation of the principle of separation of powers—which restricts the role of the judiciary—and the notion of parliament as a body that incarnates the general will of the people. As a result— not dissimilar to the UK—constitutional review of the acts of parliament did not exist until recently, because ‘the rule of law simply involved the subjection of the executive and citizens to the laws made by Parliament, and did not involve legally enforceable limits on Parliament’s powers’ (J Bell 1). However, the dominant paradigm of the loi as general will has been challenged by an alternative paradigm, emphasizing judicial protection of human rights as enshrined in the declarations made after the French Revolution (le bloc de constitutionnalité). The configuration of the powers of the constitutional court thus represents a compromise between these different conceptions (Adjei 294).

3. Evolution of Liberalism in the Twentieth Century14. Liberalism was consolidated as an antagonist of → totalitarianism between the 1930s and the 1950s and, as a result, was associated with ‘liberal democracy’ and emerged as the constitutive ideology of the West (D Bell 698). In particular, pro-collectivist and Keynesian liberal ideas almost monopolized Western societies in the first half of the twentieth century, until the late 1940s, when classical laissez-faire liberalism was reconceptualized and reformulated as neoliberalism (Turner 68). Two main strands can be identified. According to the first strand—promoted by the so-called ‘Mount Pelerin society’ which was established in 1947 and led by the Austrian economist Friedrich von Hayek—any form of state planning, which was advocated by Keynesian liberals in the UK and New Deal progressivists in the US, is to be rejected as unfeasible and harmful to individual liberties (Turner 70). The exercise of government powers ought to be limited within the formal framework guaranteed by the rule of law: market is to operate above politics. A second strand of neoliberalism, developed in Germany under the label of ‘ordo-liberalism’, also rejected central planning, but at the same time believed in the necessity of some degree of government intervention which would ensure fair competition (Mudge 715–716). Law would thus ensure the separation between the economic sphere and the political sphere. Hayek, who was initially closer to ordo-liberalism and later moved towards a more radical free market-oriented line of thought, was a key theorist of neoliberalism. His philosophical mindset was inspired by a


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strong scepticism towards man’s ability to control or reshape society through reason, the belief in the spontaneous nature of social interactions (Kukathas 185), and a conceptualization of freedom in negative terms as ‘absence of coercion’ (Hayek 11). However, until the 1970s capitalism was, in a sense, tempered through the implementation of social policies and the creation of the welfare state (Judt 47). Ordo-liberal views influenced the development of European judicial review, because courts were supposed to uphold open and free market principles against state interference (Gerstenberg 221). However, the Kelsenian, centralized model of judicial review, with a constitutional court at the apex of the legal system, insisted that, in addition to this free market promoting tasks, the constitutional court would have the role of adapting the constitution to changing social values (Gerstenberg 222). Instead, the diffused model of judicial review of the US delegated to ordinary courts the power to declare a law unconstitutional (Stone Sweet 2770).

15. In the decades immediately after the Second World War, mostly in Europe, liberal constitutionalism was reinvented in an effort to reconcile, on the one hand, capitalism and democracy, and on the other, labour and capital (Bickerton 74–113). Moreover, liberal and Christian organizations, especially in France, West Germany, and Italy, often found some common ground, and many liberals shifted towards more conservative and clerical positions (Voegelin 508).

16. The sequence of economic crises between the mid-1960s and the 1970s turned neoliberalism into hegemonic thought in the Western world, as Keynesianism seemed unable to offer appropriate solutions (Mudge 709). As a result, neoliberalism—particularly Hayek’s approach, as well as the Chicago School of Economics—was very influential in both UK and US policy-making in the second half of the twentieth century, starting with the administrations of Margaret Thatcher and Ronald Reagan (Mudge 721–724). Interestingly, in the same period, a form of neo-Kantian liberalism claimed that the coercive power of the state could be justified to those who disagree through the so-called ‘overlapping consensus’, achievable by way of a democratically legitimate procedure which decides how disagreements over the substance of law should be managed (Rawls).

17. Following the end of the Cold War, liberal constitutionalism faced strong contestation from both the left and right of the political spectrum. Two geopolitical areas may be roughly identified: Europe/North America, and the rest of the world.

18. On the one hand, in Europe liberalism has been normally associated with either moderately conservative or welfarist political ideas, whereas in the US the self-avowedly liberal agenda is generally politically progressive (Voegelin 507). However, starting from at least the 1990s, different types of populist parties and movements in Western countries have contested the dominant liberal agenda.

19. On the other hand, in the non-Western world, particularly Africa, Asia, Latin America, and the former Soviet Union, different forms of hybrid or overtly authoritarian regimes emerged (Levitsky and Way (2002) 51). Several definitions have been employed to describe this phenomenon, such as ‘semi-authoritarianism’ (Olcott and Ottaway), ‘competitive authoritarianism’ (Levitsky and Way (2002)), and ‘electoral authoritarianism’ (Schedler). More generally, the so-called ‘authoritarian constitutionalism’ would situate itself at an intermediate level between illiberal and liberal democracies, in the sense that free and fair elections would still be held and individual freedoms would be protected to some extent, but it would not be legally possible to challenge the government’s public policy decisions (Tushnet 396). A typical illustration of ‘authoritarian constitutionalism’ would be represented by Singapore, which, for example, authorizes → detention without trial of individuals considered to be a threat to → national security, and is characterized by some degree of → judicial deference, strict regulation of public spaces for political purposes, and


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limits to → freedom of the press. Other commentators prefer to employ the term ‘abusive constitutionalism’ for those regimes which are characterized by both a relative lack of → political accountability by means of vertical and horizontal checks on the political leadership, and a significant lack of rights protection and high corruption (Landau 200; → corruption and bribery). Examples under this label would include Hungary (see further in this chapter), Colombia, and Venezuela. However, challenges to liberalism have also been developed from the 1990s in Latin America, especially in Bolivia, Venezuela, and Ecuador, because of a deep discontent within the population regarding the socio-economic inequality of their country. These new regimes, for which the term ‘New Andean constitutionalism’ or ‘populist constitutionalism’ is employed (Baldin), claim liberalism is not able to redistribute wealth, protect minorities against → discrimination, or promote participatory democracy (Rovira Kaltwasser 480; Schilling-Vacaflor).

C. Essential Features of Liberalism in Constitutional Theory and Practice20. The core constitutional principles which are associated with the modern liberal state, resulting from the developments briefly illustrated in the previous section, are thus considered to be the following.

1. Protection of Individual Rights21. As liberalism typically emphasizes the freedom of individuals and the satisfaction of their aspirations, protection of individual or human rights against abuse by public authorities and harm by other individuals is considered a central component of a liberal state.

2. Separation of Powers22. The idea of the separation of the legislative, judicial, and executive function reflects the need to curb governmental powers and to avoid that one function prevails on the other. However, it should be borne in mind that this conventional understanding of the principle of the separation of powers is currently under review, and is facing a growing trend towards recognizing the existence of a separate so-called ‘integrity’ or ‘oversight’ branch consisting of independent bodies such as the → ombudsman, auditors-general, inspectors-general, privacy and information committees, administrative tribunals, public sector committees, and human rights agencies (Ackerman 691–693; Spigelman). A concrete example is the independent oversight agencies operating at the federal level in Australia (McMillan 1).

3. Belief in Representative Institutions Such as the Parliament, and in Free and Fair Elections23. Liberal democracies are characterized by the importance given to the parliament, whose members are elected by the citizens and represent their will (→ discretion of the legislative body). Generally, the use of tools of → direct democracy, such as the referendum, is limited.

4. Neutrality of the State towards Competing Visions of the Good, Secularism, Tolerance towards Dissenting Opinions24. The idea of neutrality is central to liberalism. A liberal state is supposed to allow different and sometimes competing articulations of the good so long as the basic tenets of tolerance and mutual respect are complied with. Yet, neutrality does not entail indifference towards the form of state. From a liberal standpoint, alternative visions that do not promote neutrality or a prominent position of individual rights are not acceptable (Tamanaha (2004) 41–42). It is thus not necessary for the state to hold a substantive vision of the good: it is


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sufficient that a mutual non-interference agreement ensures the peaceful coexistence of individuals in a morally pluralistic society.

5. Rule of Law and an Independent and Impartial Judiciary25. The rule of law and → independence of the judiciary are essential to ensuring the respect by both private and public persons of the norms of a legal order. According to a ‘thin’ understanding of the rule of law, both government officials and citizens ought to be bound by and act consistently with the law. Often, a constitutional court is created with the task of checking whether the acts of parliament comply with the provisions of the constitution. The ideal is that of a legal order characterized by the stability, certainty, and predictability of its rules, which would allow like cases to be treated equally. However, whether a ‘thick’ conception of the rule of law, based on substantive criteria of justice and/ or democracy, is achievable is a matter of debate (Rosenfeld).

6. Limited Government, Free Trade and Liberalization of the Economy26. From a political-economic perspective, liberalism promotes free markets and limited intervention by the state, although the interpretation of these principles may differ depending on the context in which they are applied (→ market economy).

7. Right to Property27. Last but not least, another key component of the evolution of liberalism is the → right to property, which has been regulated in different ways across the world. This section will focus on the US, UK, French, German, South African, and Indian systems. The US constitutional system, for instance, has shifted from placing emphasis on absolute property rights (in a context in which low levels of economic activity made conflicts over land unlikely) to promoting a more dynamic and instrumental view (which favours the productive use and development of the land) (Horwitz 31). In particular, from Palmer v Mulligan (1805) (US) and Platt v Johnson and Root (1818) (US) onwards there emerged the idea that ownership of property essentially implies the right to develop that property for business reasons. Although the two cases above have been mainly interpreted as stepping stones in the process of the liberalization of common law rules of priority and natural use in the interest of private economic development, it is also important to point out that the Court ruled that private enjoyment of public waters cannot be allowed to the exclusion of all other private users (Novak 133).

28. In the Constitution of the Republic of South Africa: 11 October 1996 (S Afr) (s 25), the right to property is regulated in detail, in particular as regards expropriation (→ state interference with private property) and related compensation, and more importantly as regards the duty of the state to take reasonable legislative and other measures to enable citizens to gain access to land on an equitable basis. In case the tenure of land is insecure as a consequence of apartheid, the person or community affected is entitled either to legally secure tenure or to comparable redress (para. 6). In addition, those who suffered forced removal during the apartheid regime have a right to → restitution (para. 7). This provision reflects a socio-cultural context in which the resolution of land disputes is central to the process of national reconciliation (Budlender 224). By way of contrast, the constitutional protection of property in the UK does not have a recent background of political tension and conflicts. However, property legislation in the UK is a complex set of rules which are different in England and Wales, Scotland, and Northern Ireland. The way these rules have developed has been strongly influenced not only by liberalism but also by the ancient feudal system. Yet, although English law still allows for the fragmentation of property rights (lacking a unitary conception of property), in Scotland the feudal system was abolished by


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the Abolition of Feudal Tenure Act 2000 (Scot). In France, the protection of the right of property and of freedom of enterprise was proclaimed in 1982 by the Constitutional Court, as part of a general trend towards the judicial review of statutes (Decision No 81-132 DC (1982) (Fr)). Importantly, on that occasion the Court concluded that the need to protect the right of property and freedom of enterprise could be inferred from the full constitutional value of the principles stated by the 1789 Declaration of the Rights of Man and of the Citizen.

29. In the Constitution of the Republic of India: 26 January 1950 (India) (Article 300A), the right to property is no longer considered a fundamental right belonging to the ‘basic features’, although it still qualifies both as a constitutional right and a human right (Basu 555; Jilubhai Nanabhai Khachar v State of Gujarat (1994) (India); Indore Vikas Pradhikaran’ v Pure Industrial Cock and Chem Ltd and Others (2007) (India)). This is the outcome of the 44th Amendment Act, 1978, which repealed the provisions on the right to property and moved the remaining section from Part III on fundamental rights to Part XII on finance, property, contracts, and suits. As a result, if an act of parliament or any other rule having the force of law takes away property without compensation, there is no remedy before a court—although if property is affected by the executive without the authority of law, legal remedies before ordinary courts are available (Bishambhar Dayal Chandra Mohan and Others v State Of Uttar Pradesh and Others (1981) (India) paras 41–43).

D. Outlook: New Challenges to Liberalism30. At the beginning of the twenty-first century, especially in the aftermath of the 2007– 2008 financial crisis, liberal constitutionalism is being challenged across Europe: populism, Euro-scepticism, and Eastern European authoritarianism are three recent phenomena which are at times intertwined. Eastern Europe is an interesting case in point. Although conditions for democratization were highly unfavourable in post-communist Eastern European countries (eg Croatia, Macedonia, Serbia, Slovakia, and Albania; → communism), the move from ‘competitive authoritarianism’ to liberal democracy between the end of the twentieth century and the beginning of the twenty-first century was relatively quick and facilitated by prospective EU membership (Levitsky and Way (2010) 87–129). However, in some Eastern European countries which have recently become EU members, particularly Hungary and Poland, constitutional changes underway have weakened the system of → checks and balances in favour of the ruling party. For example, in Hungary constitutional amendments have allowed the government to control the composition and activity of the Constitutional Court, and the possibility of an EU procedure for violation of the EU basic values has also been discussed (Bánkuti, Halmai, and Scheppele; Jakab and Sonnevend 136). This transformation of the Hungarian form of government has been considered by some commentators as a move towards authoritarian constitutionalism (Tushnet 434–435). Similar developments in Hungary and Poland have been criticized by the Venice Commission (see eg European Commission for Democracy through Law ‘Opinion on the Fourth Amendment to the Fundamental Law of Hungary Adopted by the Venice Commission at its 95th Plenary Session, Venice, 14–15 June 2013’ (17 June 2013) CDL-AD(2013)012-e; European Commission for Democracy through Law ‘Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland, Adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March 2016)’ (11 March 2016) CDL- AD(2016)001-e 2016). The crisis of → legitimacy of the EU liberal project (revolving around a common market operating across a number of Member States sharing minimum standards of protection of the rule of law and fundamental rights), is also a formidable challenge to contemporary liberal constitutionalism.


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31. In a different context, recent reforms in the UK both before and after the post-1997 Labour government may be interpreted as moving towards a new version of liberalism in which calls are increasing for wider → public participation, → egalitarianism, and greater openness (King 67–68; Turpin and Tomkins 24–47). Although parliamentary sovereignty is still relevant, constitutional review of legislation has been enhanced and recourse to referenda has become ever more frequent, and this has prompted some scholars to argue that a new constitutional settlement has been achieved (King 345–365). In fact, it is true that the Constitutional Reform Act 2005 and the Legislative and Regulatory Reform Act 2006 have, inter alia, changed the relationship between the government and Parliament’s law-making powers, and provided for the creation of a Supreme Court replacing the appellate committee of the House of Lords and the judicial committee of the Privy Council. Yet, despite these important changes, the so-called ‘Westminster model’ can be considered largely untouched (Turpin and Tomkins 36).

Select BibliographyAckerman, B, ‘The New Separation of Powers’ (2000) 113 HarvLRev 634.Adjei, C, ‘The Comparative Perspective and the Protection of Human Rights à la Française’ (1997) 17 OJLS 281.Austin, G, The Indian Constitution: Cornerstone of a Nation (Clarendon Press 1966).Baldin, S, ‘The Concept of Harmony in Andean Transformative Constitutionalism’ (2015) 17 Revista General de Derecho Publico Comparado.Bánkuti, M, Halmai, G, and Scheppele, KL, ‘Hungary’s Illiberal Turn—Disabling the Constitution’ (2012) 23 Journal of Democracy 138.Basu, DD, Constitutional Law of India (revised and enlarged by Banerjee, BP and Gandhi, BM; 8th edn Lexis Nexis Butterworths 2009).Bell, D, ‘What is Liberalism?’ (2014) 42 Political Theory 682.Bell, J, French Constitutional Law (Clarendon Press 1992).Bernstein, DE, Rehabilitating Lochner—Defending Individual Rights against Progressive Reform (The University of Chicago Press 2011).Bickerton, C, From Nation-States to Member States (OUP 2013).Bingham, T, ‘The Rule of Law’ (2007) 66 CLJ 67.Boykin, S, ‘The Commerce Clause, American Democracy, and the Affordable Care Act’ (2012) 10 The Georgetown Journal of Law and Public Policy 89.Budlender, G, ‘Restitution of Housing and Property Rights: Some Lessons from the South-African Experience’ (2000) 19 Refugee Survey Quarterly 224.Casalini, B, ‘Popular Sovereignty, the Rule of Law and the ‘Rule of Judges’ in the United States’ in Costa, P, and Zolo, D, (eds), The Rule of Law—History, Theory and Criticism (Springer 2007) 201.Charlow, R, ‘America’s Constitutional Rule of Law: Structure and Symbol’ in Sellers, M, and Tomaszewski, T, (eds), The Rule of Law in Comparative Perspective (Springer 2010) 89Cosby, MB, The Making of a German Constitution—A Slow Revolution (Berg 2008).Costa, P, ‘The Rule of Law: A Historical Introduction’ in Costa, P, and Zolo, D, (eds), The Rule of Law—History, Theory and Criticism (Springer 2007) 73.Dicey, AV, Introduction to the Study of the Law of the Constitution (1915; Liberty Fund 1982).Eberle, EJ, ‘The German Idea of Freedom’ (2008) 10 Oregon Review of International Law 1.Epstein, R, The Classical Liberal Constitution: The Uncertain Quest for Limited Government (Harvard University Press 2014).


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Forster, R, and Forster, E, (eds), European Society in the Eighteenth Century (Palgrave Macmillan 1969).Gerstenberg, O, ‘(The Failure of) Public Law and the Deliberative Turn’ in Mac Amhlaigh, C, Michelon, C, and Walker, N, (eds), After Public Law (OUP 2013) 218.Girvetz, HK, From Wealth to Welfare—The Evolution of Liberalism (Stanford University Press 1950).Gray, J, Two Faces of Liberalism (Polity Press 2000).Hayek, FA, The Constitution of Liberty (2nd edn The University of Chicago Press 1978).Hobbes, T, The Leviathan (1651; CUP 1996).Hobhouse, LT, Liberalism (OUP 1964).Horwitz, MJ, The Transformation of American Law (Harvard University Press 1977).Isabella, M, Risorgimento in Exile––Italian Émigrés and the Liberal International in the Post-Napoleonic Era (OUP 2009)Jakab, A, and Sonnevend, P, ‘Continuity with Deficiencies: The New Basic Law of Hungary’ (2013) 9 EuConst 102.Jain, SN, ‘India’ in Caiden, GE, (ed), International Handbook of the Ombudsman— Country Surveys (Greenwood Press 1983).Jellinek, G, The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History (1895; Henry Holt and Co 1901).Jellinek, G, Allgemeine Staatslehre (Springer 1922).Judt, T, Ill Fares the Land (Penguin 2010) 47.Rovira Kaltwasser, C, ‘The Responses of Populism to Dahl’s Democratic Dilemmas’ (2014) 62 Political Studies 470.Kelsen, H, Pure Theory of Law (1967; The Lawbook Exchange 2008).Kukathas, C, ‘Hayek and Liberalism’ in Feser, E, (ed), The Cambridge Companion to Hayek (CUP 2006) 182.Landau, D, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189.Lester, A, ‘Fundamental Rights in the United Kingdom: The Law and the British Constitution’ (1976) UPaLRev 337.Levitsky, S, and Way, LA, ‘The Rise of Competitive Authoritarianism’ (2002) 13 Journal of Democracy 51.Levitsky, S, and Way, LA, Competitive Authoritarianism: Hybrid Regimes after the Cold War (CUP 2010).Locke, J, Two Treatises on Government (1689; CUP 1988).Luhmann, N, Law as a Social System (OUP 2004).MacCormick, N, ‘Constitutionalism and Democracy’ in Bellamy, R, (ed), Theories and Concepts of Politics. An Introduction (Manchester University Press 1993) 124.Manning, J, ‘Separation of Powers as Ordinary Interpretation’ (2011) 124 HarvLRev 1939.Marrani, D, Dynamics in the French Constitution—Decoding French Republican Ideas (Routledge 2013).McMillan, J, ‘The Ombudsman and the Rule of Law’ (2005) 44 Australian Institute of Administrative Law Forum 1.Montesquieu, C, The Spirit of the Laws (1748; CUP 1989).Mudge, SL, ‘The State of the Art—What is Neoliberalism?’ (2008) 6 Socio-Economic Review 703.Munch, T, The Enlightenment: A Comparative Social History (Arnold 2000).Newey, G, Routledge Philosophy Guidebook to Hobbes and Leviathan (Routledge 2008).


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Novak, WJ, The People’s Welfare—Law and Regulation in Nineteenth Century America (The University of North Carolina Press 1996).Olcott, MB, and Ottaway, M, ‘Challenge of Semi-Authoritarianism’ (1999) Carnegie Paper No 7.Olivier, M, ‘Constitutional Perspectives on the Enforcement of Socio-Economic Rights: Recent South-African Experiences’ (2002) 33 Victoria University Wellington Law Review 117.Pohkear, PD, A Study of the Ombudsman System in India (Gyan Publishing 2010)Rawls, J, A Theory of Justice (Harvard University Press 1971).Rosenfeld, M, ‘The Rule of Law and the Legitimacy of Constitutional Democracy’ (2001) 74 SCalLRev 1307.Schedler, A, (ed), Electoral Authoritarianism: The Dynamics of Unfree Competition (Lynne Rienner Publishers 2006).Schilling-Vacaflor, A, ‘Bolivia’s New Constitution: Towards Participatory Democracy and Political Pluralism?’ (2011) 90 European Review of Latin American and Caribbean Studies 3.Siedentop, L, Inventing the Individual—The Origins of Western Liberalism (Harvard University Press 2014).Skinner, Q, Liberty before Liberalism (13th edn CUP 2010).Smith, A, The Wealth of Nations (CUP 1959).Spigelman, J, ‘The Integrity Branch of Government’ (2004) Australian Institute of Administrative Law National Lecture Series on Administrative Law No 2 1.Starr, P, Freedom’s Power—The History and Promise of Liberalism (Basic Books 2007).Stone Sweet, A, ‘Why Europe Rejected American Judicial Review’ (2013) 101 MichLRev 2744.Strauss, L, Liberalism Ancient and Modern (University of Chicago Press 1998).Tamanaha, B, ‘The Dark Side of the Relationship between the Rule of Law and Liberalism’ (2008) 3 New York University Journal of Law and Liberty 516.Tamanaha, B, On the Rule of Law—History, Politics, Theory (CUP 2004).Turner, RS, ‘The ‘Rebirth of Liberalism’: The Origins of Neo-liberal Ideology’ (2007) 12 Journal of Political Ideologies 67.Turpin, C, and Tomkins, A, British Government and the Constitution (CUP 2011).Tushnet, M, ‘Authoritarian Constitutionalism’ (2015) 100 Cornell Law Review 391.Voegelin, E, ‘Liberalism and its History’ (1974) 36 The Review of Politics 504.Wing, AK, ‘The South African Constitution as A Role Model for the United States’ (2008) 24 Harvard Blackletter Law Journal 73.

Select CasesAbhörurteil 2 BvF 1/69, 2 BvR 629/68 and 308/69 (15 December 1970) BVerfGE 30, 1 (Ger).Bishambhar Dayal Chandra Mohan and Others v State of Uttar Pradesh and Others (1981) 1982 AIR 33, 1982 SCR (1)1137 (India).Brown v Board of Education (1954) 347 US 483 (US).Chandra Bhavan Boarding and Lodging v State of Mysore and Another (1969) 1970 AIR 2042, 1970 SCR (2) 600 (India).Eppler 1 BvR 185/77 (3 June 1980) BVerfGE 54, 148 (Ger).Eshugbayi Eleko v Government of Nigeria [1931] AC 662 (Privy Council).Falkerjagdschein 1 BvR 290/78 (5 November 1980) BVerfGE 55, 159 (Ger).


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Glenister v President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) (17 March 2011) (S Afr).Indore Vikas Pradhikaran’ v Pure Industrial Cock and Chem Ltd and Others (2007) 8 SCC 705 (India).Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262 (UK).Jilubhai Nanabhai Khachar v State of Gujarat (1994) AIR 1995 SC 142 (India).Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 (India).Lawrence v Texas (2003) 539 US 558.Lebenslange Freiheitsstrafe 1 BvL 14/76 (21 June 1977) BVerfGE 45, 187 (Ger).Lochner v New York (1905) 198 US 45 (US).Loi complétant les dispositions des articles 5 et 7 de la loi du 1er juillet 1901 relative au contrat d’association (16 July 1971) Decision No 71-44 DC (Fr).Loi de nationalisation (16 January 1982) Decision No 81-132 DC (Fr).M Nagaraj and Others v Union of India and Others (2006) 8 SCC 212 (India).MacCormick v Lord Advocate [1953] SC 396 (UK).Marbury v Madison (1803) 5 US 137 (US).Palmer v Mulligan (1805) 3 Cai 307 New York Supreme Court (US).Platt v Johnson and Root (1818) 15 Johns 213 New York Supreme Court (US).S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) (S Afr).South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000] ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000) (S Afr).

Select DocumentsVenice Commission ‘Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland’ (11–12 March 2016) CDL-AD(2016)001-e.Venice Commission ‘Opinion on the Fourth Amendment to the Fundamental Law of Hungary’ (14–15 June 2013) CDL-AD(2013)012.

Oxford Constitutional Law: Liberalism

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