¹ Hereafter, I refer to the (“fully democratic”) postwar constitution as the radical constitution, to the present constitution as either the present constitution or the neoliberal constitution, and to the 18^th and 19^th century constitutions as the “common law” constitutions.Google Scholar

² The author does not date the beginning of the radical constitution era (indeed, part of the charm of evolutionary constitutions is that they escape easy temporal location). But on the basis of the constant reference in his counterexamples from chapters 2 to 5 to Labor political manifestos from 1945 to the 1980s, 1945 is not a bad guess.Google Scholar

³ The 1911 “Parliament Act” fully confirmed the legislative supremacy of the House of Commons over the House of Lords. From 1906 to 1914 the so-called “welfare reforms” launched by Asquith's Liberal governments laid the foundations of the British welfare state. From a constitutional perspective, see Wicks, Elizabeth, The Evolution of a Constitution: Eight Key Moments in British Constitutional History 83–110 (2006).Google Scholar

⁴ Nicol, Danny, The Constitutional Protection of Capitalism 29, 107 (2010).Google Scholar

⁵ Whereas it may be an exaggeration to claim that Parliament could change at their whim the constitution, that would be clearly closer to British constitutional practice than the (continental) strict proceduralization of constitutional amendment (which results in more or less rigid constitutions) and the explicit or implicit assumption of the immutable character of certain contents of the fundamental law. But more on this in section CI.Google Scholar

⁶ Nicol, Danny, The Constitutional Protection of Capitalism 23 (2010).Google Scholar

⁷ Schumpeter, Joseph A., Capitalism, Socialism and Democracy 269-83 (1976).Google Scholar

⁸ That was indeed a powerful motive leading to the nationalization of the Bank of England (on the evolution of the Labor party's views on the matter, see Tomlinson, Jim, Democratic Socialism and Economic Policy, The Attlee Years 1945–51 ch. 7 (1997). It is however doubtful whether the objective was achieved at all. A prescient contemporary analysis can be found in Karl R. Bopp, Nationalization of the Bank of England and the Bank of France, 8 J'rnl of Pol. 308–318 (1946).Google Scholar

⁹ The phrase, as is well known, was MacMillan's. On 20 July 1957, in a speech in Bradford, Harold MacMillan claimed that “most of our people have never had it so good.” However, public discourse tends not to associate that phrase with the 1970s, which tend to be recollected as a period of repeated crises, decline and uncertainty. However, recent literature has stressed that while political elites were up in arms in the early 1970s, public sentiment was better than ever before and probably even better than it has been since. Richard Vinen argues rather convincingly that optimism was grounded in the fact that wages were higher than ever before and high inflation had drastically reduced the burden of previous debts for most Britons. See Vinen, Richard, Thatcher's Britain 76 (2009). A similarly nuanced assessment can be found in both Andy Beckett, When the Lights Went Out (2009), & Dominic Sandbrook, State of Emergency: The Way We Were: Britain 1970-1974 (2010).Google Scholar

¹⁰ See Mazower, Mark, NoEnchanted Palace (2010).Google Scholar

¹¹ As Nicol mentions, Keynes had contributed to shape the ITO Treaty malgré the fact that the American hegemony grew by the minute as the Bretton Woods negotiations unfolded. Nicol also suggests that the Keynesian mark on the ITO might have been decisive in its rejection by a US Congress, which was at the peak of its red baiting mood, at 52–56.Google Scholar

¹² Madsen, Mikael Rask, From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics, 32 L. and Soc. Inquiry 137-59 (2007). Although focusing on the Universal Declaration of Human Rights and en passant distinguishing the motives and rationales of the ECHR, it is worth reading Mark Mazower, The Strange Triumph of Human Rights, 1933–1950, 47 The Historic Journal 379-98 (2004). Indeed, the Foreign Office would be struck by thunder when Greece pushed the Cyprus decolonization process through the door of the ECHR Commission. See Simpson, Brian, Human Rights and the End of Empire (2000).Google Scholar

¹³ That explains the emphasis on getting rid of quantitative restrictions and measures having an equivalent effect, of “translating” all barriers to trade into visible tariffs in the GATT, as well as the place of honor given to free movement of goods in the EEC Treaty, enshrined in the first of the chapters devoted to substantive policies.Google Scholar

¹⁴ This is why GATT was limited to goods and did not extend to services or capital, and why in the EEC Treaty, free movement of goods was kept separate from all other economic freedoms, the latter relegated to a third chapter following the one devoted to agriculture.Google Scholar

¹⁵ Article 222 of the 1957 Treaty Establishing the European Community read “This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.” For commentary on its present embodiment, see Akkermans, Bram & Ramaekers, Eveline, The Treaties Shall in No Way Prejudice the Rules in Member States Governing the System of Property Ownership: Article 345 TFEU (Ex Article 295 EC), its Meanings and Interpretations, 16 European Law J'rnl 292–314 (2010).Google Scholar

¹⁶ Weiler, Joseph, The Constitution of the Common Market Place: Text and Context in the Evolution of the Free Movement of Goods, in The Evolution of eu law, 349-76 (Paul Craig & Grainne de Búrca eds., 1999).Google Scholar

¹⁷ The well-known Danish legal theorist, Alf Ross, then a judge of the ECHR, seems to have written an article very critical with the dormant state in which the ECHR found itself, but was persuaded by his colleagues not to publish it. See Ross, Alf, En arbejdsl⊘s domstol (1964), unpublished manuscript, referred to by Ole Spiermann, A National Lawyer Takes Stock: Professor Ross’ Textbook and Other Forays Into International Law, 14 European J. of Int'l law 675, 690 (2003).Google Scholar

¹⁸ Case C-120/78, Cassis de Dijon, 1979 E.C.J. I-649.Google Scholar

¹⁹ Similar leading judgments will be given by the ECJ on each of the economic freedoms as years passed by. Cf. Case C-76/90, Säger, 1991 E.C.R. I-4221; Case C-55/94, Gebhard, 1995 E.C.R. I-4165; Case C-415/93, Bosman, 1995 E.C.R. I-4921; and after the entry into force of Directive 88/361 of 8 July 1988, 1988 O.J. (L 178) at, 5-18— on free movement of capital, Case C-163/94, Sanz de Lera, 1995 E.C.R. I-4821. This turn had been nurtured and fostered by the Directorate General for Competition at the European Commission. See especially Grin, G., The Battle of the Single European Market: Achievements and Economic Thought, 1985-2000 (2003).Google Scholar

²⁰ Cf. ‘Declaration of the Commission concerning the consequences of the judgment given by the European Court of Justice on 20 February 1979 (“Cassis de Dijon”),(1980) O.J. C 256, at 2–3.Google Scholar

²¹ Joined Cases 188-90/80, [1982] E.C.R. 2425; Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings,(1980) O.J. (L 195), at 35–37.Google Scholar

²² Nicol claims that this is further confirmed by the extent to which state aid has consolidated into a technocratic policy in which the Commission divines a rational consensus which substitutes for democratic decision-making [117].Google Scholar

²³ C-438/05, Viking [2007] E.C.R. I-10779; C-341/05, Laval [2007] E.C.R. I-11767; C-346/06, Ruffert [2008] E.C.R. I-1989. See also C-319/06, Luxembourg Case [2008] E.C.R. I-4323.Google Scholar

²⁴ For a contextual analysis of the transformation of the ECHR, see Chirstofferse, Jonas & Mikael Rask Madsen (Eds.), The European Court of Human Rights between Law and Politics (2011).Google Scholar

²⁵ Council Regulation (EC) No 3286/94, of 22 December 1994, (1994) O.J. (L 349), at 71, lays down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organization; text as amended available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1994R3286:20080305:EN:PDF (last accessed: 23 December 2011).Google Scholar

²⁶ Perhaps the clearest example is the book produced by Gordon Brown. See Brown, Gordon, Beyond the Crash: Overcoming the First Crisis of Globalisation, (2010). Brown foresees a future in which China would become a major importer of goods and services, thus reversing the present commercial trend. Whether this is a perspective to rejoice at (ecologically and socially) is a question that the former British Prime Minister simply does not address properly.Google Scholar

²⁷ The text is now in force (see http://www.legislation.gov.uk/ukpga/2011/12/contents/enacted) (last accessed: 23 December 2011). See also the “European Union Bill 2010–11,” s. 18, available at http://services.parliament.uk/bills/2010-11/europeanunion.html (last accessed: 23 December 2011).Google Scholar

²⁸ See Socialism and Federation (1941), now republished in Raúl Letelier & Agustín José Menéndez (eds.), The Sinews of Peace 575 (University of Oslo, RECON Report 9/2010).Google Scholar

²⁹ Indeed, one could ask oneself whether on certain subject matters (say the law of trusts) legal education should actually focus so much on British law, as on say Jersey or Caribbean trust law, given that in actual practice, the economic relevance of the latter is actually bigger. While law schools may have very good (normative) reasons to accept that state of affairs (British law offering the analytical and substantive tools to argue for the really relevant set of laws), legal publishers do actively market their books assuming that the readership of, for example, “The Caribbean Law of Trusts” goes beyond the Caribbean states. For example, see Gilbert Kodilinye & Trevor A. Carmichael, Commonwealth Caribbean law of Trusts (2002). The enduring association of the Law of Trusts to Equity is rather ironic given the actual use at which most trusts are nowadays put, namely tax avoidance or outright fraud.Google Scholar

³⁰ A further implication of this approach is that we would be well advised to overcome the separate analysis of international and supranational legal regimes as such. It is not only the case that Community law, as a matter of positive law, serves as the carrier of WTO law and ECHR law into national law, but also that Nicol's historical analysis reveals that all three systems exert quite an effect on the evolution of the others [152]. Indeed, the transnational web is one in which all the four legal regimes under consideration have been enmeshed [67]. Thus, our proper object should indeed be transnational constitutional law, as “an integrated body of domestic and international law that regulates both private persons and states, competition in both the market for private goods and the market for public goods” [157, which is in its turn taken from Joel Trachtman, “The international economic law revolution,” U of Pennsylvania Journal of Economic Law and Politics, 1996].Google Scholar

³¹ Majone, Giandomenico, Europe as the Would-be World Power: The eu at Fifty ch. 3 (2009).Google Scholar

³² Milward, Alan S., The European Rescue of the Nation-State (1992).Google Scholar

³³ One is tempted to add that these two-dimensional perspectives would certainly be of great relevance in assessing the various proposals to overcome the present European financial crisis, but this will be further covered later in this review.Google Scholar

³⁴ Or so have argued. See Agustín José Menéndez, More Humane, Less Social, in The Past and Future of eu Law: The Classics of eu law Revisited on the 50th Anniversary of the Rome Treaty 363–393 (Miguel Poiares & Loïc Azoulay eds., 2009).Google Scholar

³⁵ Among the vast literature, see Stone, l.F., The Court Disposes (1937); Dean Alfange, he supreme Court and the National Will (1937); Edouard Lambert, Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis: l'expérience américaine du contrôle judiciaire de la constitutionnalité des lois (Government of Judges and the Fight Against Social Legislation in the United States: The American Experience of Judicial Control of the Constitutionality of Legislation) (1921). See also the exchange between Carl Schmitt and Hans Kelsen in Carlos Miguel Herrera, la Polémica Schmitt/Kelsen sobre la Justicia Constitucional, (The Schmitt/Kelsen Controversy on Constitutional Justice, 2009); among recent scholarship, see Marían Ahumada, la Jurisdicción Constitucional en Europa (Constitutional Jurisdiction in Europe, 2009).Google Scholar

³⁶ See Nicol, Danny, ec Membership And The Judicialization of British Politics (2001). Both books share a good deal of the basic premises of Ran Hirschl, see especially Hirschl, Ran, Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).Google Scholar

³⁷ See Strange, Susan, Mad Money 5, 38 (1988).Google Scholar

³⁸ Prosser, Tony, Public Law 208–213 (2011).Google Scholar

³⁹ See Varieties of Capitalism: he Institutional Foundations of Comparative Advantage (Peter A. Hall & David Soskice eds., 2001). Georg Menz, Varieties of Capitalism and Europeanization: National Response Strategies to the Single European Market (2005); Mathhew Allen, The Varieties of Capitalism Paradigm: Explaining Germany's Comparative Advantage? (2006); and Beyond Varieties of Capitalism: Conflict, Contradictions, and Complementarities in the European Economy (Bob Hancké, Martin Rhodes & Mark Thatcher eds., 2008). A refreshing approach can also be found in Ha-Joon Chang, 23 Things They Don't Tell You About Capitalism (2010).Google Scholar

⁴⁰ While the literal tenor of the Treaties has remained largely unchanged, the way in which the basic principles are constructed has been dramatically transformed. Consider that the free movement of capital was originally the “Keynesian” freedom of payments, a faculty ancillary to actual trade in goods. Now it has become a meta-freedom, instrumental in the financialization of the economy as a whole.Google Scholar

⁴¹ Indeed, it is part of the ideology of neoiberalism, and indeed of (whether conscious or unconscious) neoiberal interpretations of Community law to downplay how much Community law was transformed by the paradigm shift in the understanding of economic freedoms following Cassis de Dijon (in itself, one should add for the sake of completeness, much influenced by political decisions, including the abandonment of capital controls by Thatcher in 1979). This will be elaborated upon later in the review.Google Scholar

⁴² See the very instructive review of Gilmour, Ian & Garnett's, Mark Whatever Happened to the Tories: The Conservatives Since 1945, in Ross McKibbin, Why One-Nation Tories Can No Longer Make an Impression on the Political Establishment, 20 London Rev. of Books 8-9 (1998). See also Harvey, David, A Short History of Neoliberalism (2007) and David Harvey, The Enigma of Capital (2010).Google Scholar

⁴³ It would be extremely interesting to apply this insight to some of the recent debates on constitutional law and political theory. Consider taxation for instance: Robert Nozick rehashed some (allegedly classical Greek) ideas to defend his claim that personal income taxation was a form of slavery (see Nozick, Robert, Anarchy, State and Utopia 169 (1974), “Taxation of earnings from labor is on a par with forced labor”). This was then popularized by neoliberals, both at the intellectual and rhetorical level, as an argument against the state in toto. Leaving aside for a moment the essential manipulative character of Nozick's claim and its vulgarization (obviously, taxes in authoritarian regimes are a form of slavery, but definitely not most taxes in most European countries, certainly not in contemporary France or Sweden, targets of choice for neoliberals as large and mature welfare states), it must be noticed that by limiting the concept of taxation to money compulsorily requested by the state and paid to it, we leave out of the picture any other form of compulsory extraction of money. So how do we call the exorbitant price that many people had to pay for their houses during the real estate bubbles of the past decade? Indeed, Dühring was perhaps after something when he characterized monopoly rents as taxes by the sword, leaving aside for a moment Engels's quibbles on the extent to which Dühring failed to offer a comprehensive analysis of the problem. See Engels, Friedrich, Anti-Dühring, in Vol. 25 The Collected Works of Karl Marx and Friedrich Engels 200 (1987).Google Scholar

⁴⁴ Cf. The seminal article of Chris Harding, Who Goes to Court in Europe, 17 European Law Rev. 105–195 (1992).Google Scholar

⁴⁵ See MacCormick, John MacDonald vs. Lord Advocate, (1953) SC 396. And the very apt comment of Neil MacCormick, Does the United Kingdom Have a Constitution? Reflections on MacCormick vs. Lord Advocate, 29 N. Ireland Legal Quarterly 1-20 (1978).Google Scholar

⁴⁶ At present perhaps New Zealand would remain closer to the radical democratic British model than the British Constitution itself, although the New Zealand legal system is of course also enmeshed in a transnational legal web.Google Scholar

⁴⁷ Which is historically rather accurate. See Gargarella, Roberto, The Scepter of Reason (2000).Google Scholar

⁴⁸ Whether the only constitutional theory fitting the US Constitution is a Madisonian one is a rather different issue. Cf. Ackerman, Bruce, We the People (1998); Mark Tushnet, Taking the Constitution Away from the Courts (2000); and Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004).Google Scholar

⁴⁹ Griffiths, A. J., The Political Constitution, 42 Mod. law Rev. 1,19 (1979).Google Scholar

⁵⁰ Which indeed was part of the constitutional practice of the US Supreme Court before the New Deal and seems to be on its way back, and that certainly has inspired both the ECJ and the ECHR since the late 1970s.Google Scholar

⁵¹ If one is allowed to paraphrase Walter Bagehot's timeless quip.Google Scholar

⁵² It seems to me that we should distinguish two main continental traditions: (1) a dominantly revolutionary one, of which the French and Italian constitution would constitute clear examples, and within which the constitution is essentially what “we the people” decide it to be. The constitution remains purely procedural, but assumes the existence of a dualistic democratic process, which distinguishes between extraordinary or constitutional politics and ordinary politics; (2) and a more substantive constitutional tradition, which is associated foremost with the German Constitution, and assumes that the constitution is defined by reference to a set of core constitutional values which are placed beyond all politics, both constitutional and ordinary. If within the German tradition one inclines to uphold (as the German Constitutional Court did at some point) the existence of an objective order of values, one comes very close to what Nicol would label as a Madisonian constitutional theory, at least in structural terms. But that is not the only plausible interpretation of the German Constitution, and of its principles.Google Scholar

⁵³ Whether the British Parliament can limit itself is an old riddle in British public law.Google Scholar

⁵⁴ This is the argument of both Jürgen Habermas, Between Facts and Norms ch. 3 (1996); and Robert Alexy, Discourse Theory and Human Rights, 9 Ratio Juris 209–235 (1996).Google Scholar

⁵⁵ See Bentham, Jeremy, ‘On Codification', first part of Papers relative to codification and public instruction, in Legislator of the World: Bentham's Writings on Codification, law and Education 5-54 (Philip Schofield & Jonathan Harris eds., 1998); and Jeremy Bentham, Anarchical Fallacies, in Vol. 2 The Works of Jeremy Bentham 489–534 (1863).Google Scholar

⁵⁶ Fourastié, Jean, Les Trentes Glorieuses (1979) and Milward, supra note 34.Google Scholar

⁵⁷ See Reuter, Paul, La Communauté Européenne du Charbon et de l'Acier, Paris: Librairie générale de droit et de jurisprudence R. Pichon et R. Durand-Auzias, 1953, and G. Sperduti, la ceca, ente sopranazionale (The European Coal and Steel Community, Supranational Entity, 1966).Google Scholar

⁵⁸ On the double democratic deficit, see Agustín José Menéndez, The European Democratic Challenge, 15 European law Jour. 227–308 (2009).Google Scholar

⁵⁹ Directive 2003/48/CEE of the Council, 3 of June of 2003, (2003) O.J. (L 157), at 38–48. See also the bilateral agreements signed with third countries in (2004) O.J. (L 385), at. 28 and 50 (Switzerland), (2004) O.J. (L 359), at 32 (Andorra); 2004 O.J. (L 379), at 83 (Liechtenstein); (2004) O.J. (L 381), at 32 (San Marino); (2005) DOCE (L 19), at 53 (Monaco).Google Scholar

⁶⁰ See among others, Solomon, Robert, Money on the Move: The Revolution in International nance Since 1980 (1999); Gary Burn, The Re-Emergence of Financial Markets (2006); and Nicolas Shaxson, Treasure Islands (2011).Google Scholar

⁶¹ Resulting more from a deep ideological commitment than from a pragmatic assessment of how to render coherent economic policy (in particular, it was rather impossible to reconcile strict monetarism with the free movement of capital, especially with London rapidly establishing itself as the hotbed of international finance and with North Sea oil revenues exploding).Google Scholar

⁶² In addition to Britain, other Member States that would be worth studying would indeed be all those who have been at the forefront of the blocking minorities on tax harmonizing measures within the EU, especially Luxembourg, Belgium and Austria (which negotiated exceptions from the automatic exchange of information system enshrined in the 2003 directive on the taxation of savings income) and Ireland (which has fought hard to maintain its status as a tax haven for corporations).Google Scholar

⁶³ See or example Belén Balanyá, Doherty, Ann, Hoedeman, Olivier, Ma'anit, Adam & Wesselius, Erik, Europe Inc. Regional and Global Restructuring and the Rise of Corporate Power 109–122 (2003). See ‘A Level Playing Field for Direct Investment World-Wide’ COM (95) 42 final (1995), available at: http://aei.pitt.edu/6195/1/003345_1.pdf (last accessed: 23 December 2011). This was indeed preceded by several speeches from Leon Brittan, then the commissioner in charge of commercial policy. See ‘Commission Launches Discussion Paper on Worldwide Investment Rules,” IP/95/52, 19 January 1995, where we can read Brittan's revealing words: “Investment is a desirable and desired thing …. Nonetheless, governments still sometimes find it threatening, because free direct investment limits administrations’ ability to control and shape their countries’ economic destiny. This is a small price to pay for allowing private sector decision-makers to generate economic benefits worldwide. But it is a price that some governments in some sectors still find difficult to pay. That is a tragedy.” See also ‘Commission Calls on European Business to Intensify Worldwide Investment Efforts,’ IP/95/269, of 17 March 1995.Google Scholar

⁶⁴ Still, one should note that the European Parliament, although rather powerless on the terms and contents of the negotiations, was widely critical of both the negotiation procedure and of the contents of the draft MAI. See ‘Resolution on the MAI,’ A4-0073/98 of 11 March 1998, (1998) O.J. (C 104), at 143–144. Indeed, the leakage of the MAI text may have come from Bruxelles, and the French MEP Catherine Lalumiere played a far from minor role in the decision of the French government to withdraw from MAI negotiations, which sealed the fate of the draft proposal. See the report of the commission she chaired, Rapport sur les négociations commerciales multilaterals, available at: http://www.minefe.gouv.fr/fonds_documentaire/pole_ecofin/international/rap_multilateral.htm (last accessed: 23 December 2011).Google Scholar

⁶⁵ About what I would be tempted to label the economic constitution, was it not for the fact that the term is biased and prejudiced as to be best avoided.Google Scholar

⁶⁶ “So as to ensure that the living are not ruled by the dead.” This is a motto with Painean connotations which Nicol rightly endorses in [155], and which we should keep in mind is at the core of the idea of the democratic constitution for both normative and historical reasons.Google Scholar

⁶⁷ See Krugman, Paul, The Return of Depression Economics, Lionel Robbins Lectures (2009), available at: http://cep.lse.ac.uk/_new/interviews/default.asp (last accessed: 23 December 2011).Google Scholar