PRINCIPLES OF CONSTITUTIONALISM

AUTHOR: NW BARBER

Publisher: Oxford University Press, USA, Year: 2018

ISBN: 0198808143, 9780198808145

The author talks about six core principles of positive constitutionalism in book namely:
sovereignty, the separation of powers, the rule of law, subsidiarity, democracy, and civil society.
According to the author, while these six principles capture interconnected ideals jointly
necessary, for the state to live up to its purpose, the respective fulfillment of these principles can
and sometimes needs to be a matter of degree. This book challenges this simple understanding of
constitutionalism, arguing those who see constitutionalism entirely in terms of constraints on
state power miss an important aspect of the doctrine. Constitutionalism also requires the creation
of an effective and competent set of state institutions; it has a positive dimension.

The first book of the author ‘The Constitutional State’ talks about the nature of the state,
reflecting on the rules that constitute it, its purpose, and its capacity to act and form intentions.
This book is the second part of the series. This book starts where The Constitutional State
stopped and considers the principles that should help the construction and operation of state
institutions.

The book provides a concise introduction to constitutionalism and a detailed account of the
nature and implications of each of the principles in question. It concludes with an examination of
the importance of constitutional principles to the work of judges, legislators, and others involved
in the operation and creation of the constitution. The book is essential reading for those seeking a
definitive account of constitutionalism and its benefits.

He argues for the importance of treating the state and the principles of constitutionalism as a
cohesive whole. Timely contribution to the debate on constitutional structures and the interaction
of lawmakers and society. Interdisciplinary approach that draws on the work of constitutional
lawyers, political theorists, and political scientists. I think it is Essential reading for public law
practitioners and students of constitutional theory and political science, as well as scholars in
related disciplines approaching theories of the state for the first time who are interested in the
constitution.

Author talks about the Constitutionalism, he states that the constitutionalism will examine in 3
stages. First, the common understanding of constitutionalism will be surveyed. He said this
present that constitutionalism in largely negative terms. Second part of the chapter
(Constitutionalism) states about the negative account of constitutionalism. He talks about the
Charles McIlwain’s who work on the Constitutionalism: Ancient and Modern in which argued
by the Charles that there is an alternative, positive, understanding of constitutionalism which can
found in the literature. In the third part of the Constitutionalism positive conception of
constitutionalism is attractive. In Constitutionalism he divided the chapter in 2 parts Negative
Constitutionalism and Positive Constitutionalism. In Negative Constitutionalism he argued that
the purpose of the separation of powers is to protect the liberty of the individual. In Positive
Constitutionalism he said that we should stop and we have to identify the reasons why the
Negative Constitutionalism is unattractive. He said that Waldron includes McIlwain as an
example of negative constitutionalism. He says that there are 3 connections that need to be
considered in order to develop an attractive account of constitutionalism. First, there is the
derivation of constitutionalism from an account of the state. Secondly, there is the connection
between constitutionalism and constitutional principles. Thirdly, there is a connection to be
drawn between these principles and the state.

Author states the Sovereignty, and said that Sovereignty captures 2 groups of elements which are
necessary for the institutions. There are 4 aspects of the Sovereignty. Sovereignty is a principle
that must be present, to some extent, for the state to exist. State institutions are partly created by
legal rules.

For Separation of Power Author says that separation of powers is a principle which can be
understood within the context of the state. The normal mode of interaction is that the 3 branches
working together for a common goal. Separation of powers requires that the constitution includes
mechanisms which enables institutions to put pressure on other constitutional bodies.
Author view for The Rule of Law that it requires the law which make the differences. The Rule
of Law requires the creation of a community willing and able to make use of its legal rights.

Connection between Civil society and the principles of the separation of powers and the rule of
law are relatively clear, but it is difficult to identify the important connection between civil
society and state sovereignty.

Democracy more than any of the principles of constitutionalism closely connected with the
citizenship, to the relationship between the individual and the state.

Subsidiarity principle is inconsistent with constitutionalism and should not be regarded as a

guiding principle for the creation and structuring of states. Subsidiarity talks about 3 levels of
democratic decision making i.e. Subsidiarity within the State, Subsidiarity and the Creation of
the State, and Subsidiarity above the State

At the end of the book, for instance, Barber explains why there may sometimes be good reasons
to tolerate ‘good enough’ constitutionalism, and in other respects too he accounts for different
ways in which constitutionalism may be realized in different states, recurrently using the case of
China as a counterpoint and test case.

NAME- DIVYANSH BHARGAVA

B.A.LLB (Constitutional Law) B2, VII SEMESTER

ROLL NO.- R154216042

SAP ID- 500052812