Constitutions and their Ideal Types

David Schneiderman*

Adam Ferguson maintained in 1767 that ‘[n]o constitution is formed by

concert, no government is copied from a plan.’ Instead, constitutional design is the
product of particularisms – they are ‘derived from an imperceptible ingredient
mingled in the soil’ (Ferguson [1966] at 123) – as Montesquieu had argued twenty
years earlier (Montesquieu [1989]). How then to explain the commonality of
constitutional norms and forms now widespread in the contemporary world?
Professional experts clutching drafting manuals and promoting ‘global best
practices’ have turned constitution making into a machine for universalism (Kendall
[2020]). If Ferguson is correct, could all this advice essentially be pointless (Tushnet
[2008] at 1474)? Or do both sides overstate their case (Hirschl [2014] at 203;
Ginsburg [2017] at 26)?
This chapter understands constitutions as the by-product of late modern
thinkers and framers, serving to both limit and empower government. Even if
constitutions have almost always been preoccupied with framing limits to
government (Stourzh [1988] at 38), constitutions are about more than limiting
power (McIlwain [1947] at 21). In addition to enabling government, modern forms
authorize citizens to participate in government, by selecting representatives, and
even contemplate participation of citizens in processes of constitution making. For
these reasons, a capacious view of constitutions is adopted, represented by the idea
of constitutional culture. This is meant to capture the ensemble of rules, institutions,
and practices that portray dominant understandings of a state’s basic law
(Schneiderman [2015]). The method deployed steers clear of traditional categories:
oligarchy/monarchy/republican; rigid versus flexible; variations on liberal themes:
genuine vs. sham constitutions. Also avoided are ‘common core’ conceptualizations
(Castiglione [1996] at 434). There are commonalities to be sure – one finds ‘generic’
elements in many of the world’s constitutions (Law [2004]) – but they will be nested
within complex constitutional compromises, serving differing and, oftentimes,
conflicting objectives.
If it is correct to say that processes of constitution making and change ‘are
not safe subjects for generalization’ (Hawgood [1939] at 4), it may be more helpful
to comprehend modern constitutions as serving multiple purposes – as carriers of
assorted ideal types, discussed below (as ‘archetypes,’ see Frankenberg [2018] at
30). Modern constitutions can be understood as tapestries comprised of variable
combinations of ideal typical constitutions. Indeed, it is rare for a constitution to
pursue exclusively one type to the exclusion of others (Tushnet [1999] at 1229).
Instead, they might as often incorporate ‘contradictory institutional initiatives’ and
‘tensions’ in the articulation of their rights (Gargarella [2018] at 182-83). This non-

*
Professor of Law and Political Science (courtesy), University of Toronto; Affiliated Professor of
Law, University of Stockholm (david.scchneiderman@utoronto.ca).

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exhaustive list of typologies – there are more, to be sure – is meant to offer no specific
hypotheses, rather, these ideal types are offered as a heuristic for undertaking
comparative constitutional work. The mode is functionalist to the extent that ideal
types are in the pursuit of identifiable purposes in the context of differing (sometimes
rival) constitutional aspirations (Michaels [2019]). As revealed below, it often is the
case that constitutional purposes are frustrated or distorted. Relatedly, each ideal
type should be understood as windows into struggles and conflicts that engage
mobilized citizenries and elites. They should not be understood as agentless but the
product of constitutional ambitions that often entail loss and sacrifice.
There is further reason to steer mostly clear of universalizable categories that
aim to capture large patterns in constitution making. It avoids taking sides in the
disputes that motivate constitutional framers and that remain predominant in the
comparative constitutional law field. Normativity in the selection and description of
these idea types, to be sure, is unavoidable (Riles [2019] at 795) as is the difficulty
of obtaining sufficient distance from one’s own legal system (Frankenberg [1985]).
As Weber reminds us, social (and constitutional) policy cannot be settled by purely
technical considerations. Instead, it remains the subject of ‘dispute’ – as a ‘fight
against another person’s ideal on the basis of one’s own ideal’ (Weber [2012] at 104,
106). I leave it to both constitutionalists and comparativists to fight this one out.

The Sovereign Constitution

The claim that the principal object of constitutional law is to identify a sovereign
power arose out of the civil wars in France (Bodin [1992]) and in England (Hobbes
[1968]) and was subsequently sharpened in the cauldron of Weimar-era Germany
(Schmitt [1996]). The constitution, declared Austin, fixes the sovereign who is the
‘determinate and common superior’ (Austin [1954] at 194). As the source of ultimate
legal validity, the concept serves functions that are ‘practically indispensable’ in
contemporary constitutional law (Elliott [1928] at 89). Lawyers ‘need to be able to
locate the authority structure of the state with some precision,’ Loughlin adds
([2003] at 93). However indispensable, the concept remains the product of
‘particular, and partial’ perspectives (Walker [2020] at 377), aimed at containing
threats to ‘civil peace’ (Loughlin [2010] at 465) instigated by menacing ‘others.’ In
the Americas, sovereignty, even if embraced by Indigenous leadership today as a
means of securing autonomy rights, was denied to Indigenous peoples by settler
states (Alfred [2002]). Sovereignty discourse is blamed for stifling the possibility of
transcending the ‘internal’ colonialism in which Indigenous sovereignties are
embedded. The persistence of Indigenous resistance has been described as a
‘nested sovereignty’ from which settler constitutions in the Americas cannot escape
(Simpson [2014] at 11-12). If the sovereign constitution insists that there be a single
‘decisive entity,’ then sovereignty hardly seems adequate to securing civil peace in
states where communities are reduced to serving as recalcitrant sovereign subjects
(Foucault [2003] at 69).

The Imperial Constitution

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Constitutional framers are as often (and sometimes more) concerned about
consolidating or expanding territorial power. The imperial constitution lays down
markers, both internally and externally, declaring the intention to control, and to
potentially expand their reign, over determinate territory (Newton [2006]).
Constitutions, in this mode, have served as ‘empire of the world’ (Harrington [1977]
at 332) entitling European settlers and their descendants to claim exclusive control
over the soil (Golove and Hulsebosch [2021]). These claims may serve the interests
of free trade (Jefferson [1984]) but may also keep ‘subjects and lands together and
intact in a hostile world’ (Colley [2021] at 9). By serving notice to the world,
constitutions foresee growth by incorporating and governing new territories,
acquired either constitutionally or extra-constitutionally (President Thomas Jefferson
feared the latter in the case of the Louisiana Purchase). The 1991 Colombian
Constitution can be understood as a means of securing control over territory and
bringing an end to hostilities with rebel militia groups (Eslava [2009] at 201).
Constitutional reform was an ‘apt’ instrument, the Colombian Supreme Court
declared in 1990, to ‘secure peace.’ But ‘war did not wane’ as a consequence, writes
Lemaitre, it ‘instead intensified’ (Lemaitre [2021] at 147).

The Market Constitution

Entrenching free markets, thereby impeding interference by the political branches,
is a commonly observed function served by constitutions. Despite Justice OW
Holmes’ insistence, in Lochner v. New York, that the US constitution was ‘not
intended to embody a particular economic theory,’ constitutions typically entrench
property rights, contract rights, and due process rights that provide a semblance of
security to market actors, even as they can leave considerable room for state
regulation (Alexander [2006]). German ordoliberals spoke of the constitution in
these terms: as laying down a ‘blueprint’ that would steer free market competition
in a ‘politically-desirable direction’ (Bohm [2017] at 177). Constitutional protections
can grant to agents promoting free markets much solicitude, equipping them with
an ability to challenge intrusions into market freedoms. An express reference to
property rights in the Indian Constitution (Art. 31), for instance, prompted the Indian
Supreme Court to invalidate a series of socio-economic legal reforms, including land
reform, precipitating constitutional amendments intended to defuse the conflict
(Wahi [2016] at 943). The Egyptian Supreme Constitutional Court deployed
constitutional property rights to undo rent freezes that promoted Nasser-era social
policies. These and related rulings were consistently ‘free market in orientation’
(Moustafa [2007] at 126). Limiting, even removing, economic subjects from
democratic control reflects, it is claimed, an ‘authoritarian’ mindset (Alviar García
[2019] at 319).

The Authoritarian Constitution

Associated with autocracy and ‘abusive’ constitutionalism (Landau [2013]), the
authoritarian state aims to consolidate power in as few hands as possible, consonant
with claims that there be a single sovereign power. Typically, this involves not only

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the severance of political authority from democratic processes, but the severance of
democracy from economic power. Barring pluralistic demands for social protection,
the authoritarian constitution aims to ‘depoliticize’ the economy to ensure the
smooth functioning of markets (Heller [2015] at 300). This is what Schmitt called
the ‘total’ qualitative state (Schmitt [1999] at 21). If this version of the state radically
shrinks the space for democratic politics (Poulantzas [2014] at 203), its other side
regulates and guarantees a semblance of security for private property and economic
power (Fraenkel [2017] at 185). Few contemporary constitutions expressly cabin
markets from popular control, even though political capacity continues to shrink in
the face of muscular markets. According to one of its principal architects, the 1980
Chilean constitution – adopted under General Pinochet’s rule – was meant to serve
as a ‘retaining wall,’ shielding markets from politics (quoted in Couso [2017] at 91).
The Constitution of Tajikistan includes a robust right to market participation
(‘freedom of economic and entrepreneurial activity’) (Newton [2017] at 237) while
the European Union’s economic constitution, which aims to separate the economy
from social control (Joerges [2005]), is said to lean in the direction of a liberal-
authoritarian model (Wilkinson [2019]).

The Rule of Law Constitution

The rule of law constitution is not a neutral constitution. In its various guises, the
formulation typically is associated with Weber’s conception of ‘formally rational’ law
which affords calculability and predictability to markets. Its libertarian version,
devised by Hayek, confines the state to the pronouncement of only general and
abstract rules, ensuring impartiality and individual freedom (Hayek [1944] at 75-
76). In Dicey’s version, the rule of law speaks to the ability of judges in England to
review all legislative action and to test them against common law principles. In short,
Dicey declared, the English constitution ‘is a judge-made constitution’ (Dicey [1908]
at 192). This is allied to Justice Holmes’ idea that public power be ‘accountable by
some criteria outside’ of legislators themselves (Hurst [1964] at 65). As a check on
the work of the political branches, judicial review under a constitution is considered
one of the principal indicators of the modern constitutional form. The German
Constitution, for instance, in its associated idea of Rechstaat, declares that ‘all
legislation shall be subject to constitutional order.’ One could say that the sovereign
constitution is somewhat unsettled by the rule of law constitution due to the fact
that courts serve, in many parts of the world, as the final word on the meaning of its
content (Böckenforde [2017] at 146).

The Judicial Constitution

Constitution writers in the eighteenth century, Colley writes, were prolific copycats
(Colley [2021]). This form of mimicry took off, she argues, with Catherine the Great’s
draft of a citizen’s Constitution for the Russian people and was picked up, and
elaborated upon, in subsequent migrations. These documents were not preoccupied
with judicial review but instead sought to enfranchise citizens, rendering them liable
to military service. Among modern constitutions inheriting this emphasis on rights,

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but without genuine judicial review, was the Constitution of the Fifth French Republic
(1958). A Constitutional Court was established, but without authority to review
conduct other than pursuant to abstract review initiated by the executive branch
(later extended to the legislative branch) (Stone [1992]). The French Constitutional
Court later converted this cramped jurisdiction into muscular authority, enforcing
the terms of earlier constitutional texts and principles, including the 1789
Declaration of the Rights of Man and the Citizen (Boyron [2013] at 39). Similar
judicial bootstrapping occurred when the Israeli High Court of Justice treated Israel’s
Basic Laws as if they were constitutionally entrenched, giving rise to a self-
proclaimed ‘constitutional revolution’ (Barak [1993]). The judicial constitution
captures this process whereby the judiciary stands in the shoes of constituent power
and fills out the constitutional order with judicial review associated with the rule of
law (Thornhill [2012]). Judicial enforcement of constitutional norms is now
considered the sine qua non of the modern constitutional form.

The Minimalist Constitution

Constitutions are of varying length and duration, and varying depths of
comprehensiveness. No formal text reveals fully to readers how a constitutional
system operates below the surface. Constitutions can hardly exhibit the ‘prolixity of
a legal code,’ US Supreme Court Chief Justice Marshall famously explained. The
Swedish constitution is a prime example of how a constitutional system can function
well with only terse text: the 1809 Instrument of Government, together with the
Riksdag Act of 1810 (guaranteeing parliamentary rule, replaced in 1975). These
basic laws are accompanied by an 1810 Succession Act, a 1949 Freedom of the
Press Act, and a 1991 Fundamental Law on Freedom of Expression. The minimalism
of Sweden’s constitution is mostly unsurprising – empirical studies reveal that older
and less frequently revised constitutions tend to be less comprehensive than newer
ones (Law and Versteeg [2011] at 1220). What may be considered remarkable is
that Sweden’s minimalist constitution is not enforced by courts and remains
marginal to its political life (Petersson [2016] at 98) (even if modestly supplanted
by the European Convention of Human Rights) (Cameron [2014]). Because social
rights have long been guaranteed extra-constitutionally, it could be said that
Sweden’s constitutional culture comprehends a larger set of unentrenched
commitments. Even if eroded somewhat, these rights remain resilient such that their
disappearance would likely give rise to something akin to a constitutional crisis
(Svallfors [2021]). The regime offers a counternarrative to claims that judicial review
(as in the rule of law constitution) is a prerequisite to genuine constitutional order
(Hirschl [2011]).

The Pluralist Constitution

An important feature of many modern constitutions is to integrate a diverse and
plural citizenry under the banner of a single constitution. This is less than fully
achieved in states where only one religious faith is granted constitutional recognition,
as in Malaysia, where Islam is declared to be the state religion even though various

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of its citizenry pray to other gods (Hirschl [2010] at 127-28). A pluralist constitution
will recognize that its citizens support a more diverse set of commitments even as a
common national identity is expected to be forged out of its multiplicities (Heller
[2000]). A pluralist constitution does not impose an ‘empire of uniformity’ but,
instead, ‘preserve[s] legal, political and cultural plurality’ (Tully [1995] at 183). This
ideal type moves beyond mere multicultural accommodation to incorporate differing
viewpoints, giving rise to some dissonance, even instability in constitutional text. This
is exhibited in the Constitution of India, whose framers sought to integrate a large
Muslim minority, in addition to smaller ethno-cultural groups and backward classes,
into a post-independence constitutional text. The constitution, according to Lerner,
accommodated India’s deeply divided polity by incorporating ‘competing beliefs and
values’ thereby preserving the constitution’s democratic tenor (Lerner [2016] at 70).
The same might be said of the 1996 Constitution of South Africa. Eleven languages
are accorded constitutional recognition, religious pluralism is accommodated,
cultural self-determination affirmed, and traditional leadership recognized. If silent
on ‘group rights’ (Comaroff and Comaroff [2003] at 451), the African customary law
of ubuntu (included in the text of the 1993 Interim Constitution but omitted from its
final version in 1996) has been modestly incorporated into the Constitutional Court’s
bill of rights jurisprudence (Cornell and Muvangua [2012]). Ubuntu is intended to
go some distance in the pursuit of an ethics of solidarity, compassion, respect, and
human dignity (Mokgoro [1998]).

The Buen Vivir Constitution

In alliance with ubuntu, is a constitutional type that refers to living well: in Spanish,
the phrase is buen vivir; in Quechua, sumac kawsay; and in Aymara, as suma qamaña.
The constitution of this type, originating in marginalized Indigenous communities in
the Amazon, aims to harmonize all living things, human and natural, in systems of
reciprocity and solidarity (Acosta [2017] at 2605). Among other features, the buen
vivir constitution signals an alternative to top-down programmes of orthodox
economic development. Instead, the state is constitutionally obliged to steer
development in ways that serve the needs of all (Caria and Domínguez [2016]). In
Ecuador, chapter two of the 2008 constitution outlines the features of buen vivir,
including rights to water, food, and a healthy environment and, in chapter nine,
imposes obligations to ‘promote public welfare and give precedence to general
interests over individual interests.’ Various Indigenous groups are granted
recognition and rights while the environment is declared to have a ‘right to its
reparation and restoration.’ The constitutional declaration of Bolivia as a
plurinational state serves similar ends (Morino [2016]), affirming intercultural
relations between differing peoples living within the same national space (Fajardo
[2015] at 166). Relatedly, local Indigenous governments have been granted some
semblance of autonomy in Peru, though still under the oversight of the central state
(Fajardo [2001]). Nevertheless, governments have not lived up to these
transformative constitutional commitments (de Zaldívar [2017]). Instead, each has

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continued to encourage policies of development without consultation of, and often
detrimental to, Indigenous communities (Villalba-Eguilez and Etxano [2017]).

The Constitution of Needs

T.H. Marshall famously described citizenship rights as moving through three stages.
The first stage began with civil rights (associated with market citizenship), moved
through to political rights (via expansion of the franchise), and, finally, arriving at
social rights (via the provision of social minima). This latter category of rights elevates
citizens to the status of rough equality by providing universal public education and
income support (Marshall [1965]). This goal of distributive justice was supported by
both left- and right- wing regimes early in the twentieth century (Moyn [2018] at 34-
39) and came to be incorporated in ‘second generation’ constitutional rights (Law
and Vesrteeg [2011] at 1196). Addressing the question of whether socio-economic
rights were to be enforced in the same manner as classical ‘first generation’ rights,
the South African Constitutional Court devised a ‘reasonableness’ standard of review
that has had considerable influence abroad. Rather than identifying a minimum core
to social rights, the Court insisted the government prove that it took into account the
conditions of a significant number of those in most desperate need (Liebenberg
[2002] at 171-72). If social and economic right are ubiquitous in constitutions of the
post-cold war world, fulfilment of these rights remains a long way off. In South Africa,
socioeconomic indicators reveal that disparities in income inequality based upon
race – apartheid’s legacy – stubbornly persist (Dugard [2013] at 299). The
Constitution of Colombia contemplates a variety of social rights yet tutela petitions
to the Constitutional Court are less successful (19%) than those grounded in
traditional civil and political rights (31%) (Rodríguez, García-Villegas, and Uprimny
[2003] at 162). Experience under the Indian Constitution, which includes non-
justiciable Directive Principles of State Policy mandating the progressive realization
of social and economic rights, prompts Baxi to characterize the Indian Supreme
Court as taking ‘suffering seriously’ (Baxi [2000] at 157). This has not always
translated into concrete victories, however (Shankar [2013]). It could be said that
social minima can be converted into enforceable constitutional rights only in
circumstances where resources are available to finance them (Chilton and Versteeg
2017) and powerful forces ‘understand themselves to be obliged’ to respect them
(Ignatieff [1984] at 27).

The Global Constitution

Kant famously envisaged the emergence of a federation of republics ensuring peace
among states and hospitality to alien merchants (Kant [1991]). Various mechanisms,
it is said, have precipitated the rise of a cosmopolitan or global constitutional order
serving similar ends that supplement national constitutional orders. Among the
candidates are: institutions of the United Nations (Fassbender [1998]); international
human rights law (Thornhill [2016]); the rules and institutions of international
economic law (Petersmann [2014]); and even the spread of proportionality as a
technique for resolving constitutional disputes (Sweet and Matthews [2019]). It is

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difficult, however, to maintain that there is a global constitutional order that exercises
authority over states and citizens. Instead, there are only partial and regime-specific
intimations (Walker [2015]) of what might become global constitutional law. Such
regimes may resemble national constitutional systems along a number of
dimensions, in respect of rights and structures, for instance (Schneiderman [2016])
but without a demos (Dobner [2010]). Treating global constitutional law as if it were
functionally equivalent to national constitutional law is particularly treacherous as
democracy is emptied out of the equation – it is no longer treated as ‘a constituent
component of constitutional function’ (Christodoulidis [2021] at 268). We should,
for these reasons, continue to treat states as the primary site for the production of
constitutional law and that any global constitutional order – however inchoate – will
only gain ground via chains of legitimation that originate in democratic states
(Habermas [2006] at 141).

Conclusion
The object of this chapter has been to identify several idealized constitutional types
and to link these types to constitutional experiences in a few locales. Readers might
sort this catalogue into one that juxtaposes constitutions of the right from those of
the left, with ‘typical’ liberal constitutions sitting comfortably in the middle – in the
sweet spot of constitutional design, one might say. This sort of reading should be
resisted. These types are not meant to be sorted on a continuum or in opposition to
each other. Instead, they should be treated as exhibits, representative of varying
normative emphases that are available to modern constitutional framers, any of
which have a chance of becoming candidates for constitutional politics.
Ideal types are artifices. They serve as ‘stable points in the stream of events’
(Weber [2012] at 131). The schema offers ‘one-sided accentuation[s]’ – a ‘utopia’ –
that should be tested against empirical realities (Weber [2012] at 125). For this
reason, we should view these types as resources for reading, comparing, and probing
into the lives of modern constitutions.
To conclude, we can say that particularists, like Ferguson and Montesquieu,
are correct in so far as constitutional biographies live singular and, often,
unparalleled lives. On the other hand, consistent with the universalist viewpoint, they
also exhibit many similar tendencies and address, in their different ways, similar
problems. They offer no formula, only a universe of constitutional possibilities.

Bibliography

Alexander GS, The Global Debate Over Constitutional Property: Lessons from American Takings
Jurisprudence (University of Chicago Press, 2006)

Alviar García, H’ Neoliberalism as a Form of Authoritarian Constitutionalism’ in H Alviar García and

G Frankenburg (eds) Authoritarian Constitutionalism: Comparative Analysis and Critique (Edward Elgar,
2019)

Electronic copy available at: https://ssrn.com/abstract=4015759

Alfred, T, ‘Sovereignty’ in PJ Deloria and N Salisbury (eds) A Companion to American Indian History
(Blackwell, 2002)

Acosta, A, ‘Living Well: Ideas for Reinventing the Future’ (2017) 38 Third World Quarterly 2600

Austin J, The Province of Jurisprudence Determined (Weidenfeld and Nicholson, 1954 [1832])

Barak, A, ‘A Constitutional Revolution: Israel’s Basic Laws’ (1993) 4 Constitutional Forum 83

Baxi, U, ‘The Avatars of Indian Judicial Activism: Explorations in the Geographies of (In)Justice’ in
S.K. Verma and K. Kusum (eds) Fifty Years of the Supreme Court of India: Its Grasp and Reach (Oxford
University Press, 2000)

Böckenforde, E-W, ‘The Concept and Problems of the Constitutional State’ in Constitutional and
Political Theory: Selected Writings (Oxford University Press, 2017 [1997])

Bohm, F, ‘Economic Ordering as a Problem of Economic Policy and a Problem of the Economic
Constitution’ in T Brebricher and F Vogelmann (eds) The Birth of Austerity: German Ordoliberalism
and Contemporary Neoliberalism (Rowman & Littlefield, 2017 [1937])

Boyron, S, The Constitution of France: A Contextual Analysis (Hart Publishing, 2013)

Cameron, I, An Introduction to the European Convention on Human Rights, 7th ed (Justus Förlag,
2014)

Caria, S and R Domínguez, ‘Ecuador’s “Buen Vivir”: A New Ideology for Development’ (2016) 43
Latin American Perspectives 18

Castiglione, D ‘The Political Theory of the Constitution’ (1996) 44 Political Studies 417

Chilton, A and Versteeg, M, ‘Rights without Resources: The Impact of Constitutional Social Rights on
Social Spending’ (2017) 60 Journal of Law and Economics 713

Colley, L, The Gun, the Ship and the Pen: Warfare and the Making of the Modern World (Liverwright
Publishing Corporation, 2021)

Comaroff, J and J Comaroff, ‘Reflections on Liberalism, Policulturalism, and ID-ology: Citizenshio

and Difference in South Africa’ (2003) 9 Social Identities 445

Cornell, D and N Muvangua, ‘Introduction: The Re-cognition of Ubuntu’ in D Cornell and N

Muvangua (eds) Ubuntu and the Law: African Ideals and Postapartheid Jurisprudence (Fordham
University Press, 2012)

Couso, J, ‘Constructing ‘Privatopia’: The Role of Constitutional Law in Chile’s Radical Neoliberal
Experiment’ in B Golder and D McLoughlin (eds), The Politics of Legality in a Neoliberal Age
(Routledge, 2017)

Dicey, AV, Introduction to the Study of the Law of the Constitution, 7th ed. (Macmillan and Co., 1908)

Dobner, P, ‘More Law, Less Democracy? Democracy and Transnational Constitutionalism’ in P

Dobner and M Loughlin (eds) The Twilight of Constitutionalism? (Oxford University Press, 2010)

Electronic copy available at: https://ssrn.com/abstract=4015759

Dugard, J, ‘Courts and Structural Poverty in South Africa: To What Extent Has the Constitutional
Court Expanded Access and Remedies to the Poor?’ in D Bonilla Maldonado (ed) Constitutionalism
of the Global South: The Activist Tribunals of India, South Africa, and Colombia (Cambridge University
Press, 2013)

Elliott, WY, The Pragmatic Revolt in Politics: Syndicalism, Fascism, and the Constitutional State (The
Macmillan Company, 1928)

Eslava, L, ‘Constitutionalization of Rights in Colombia: Establishing a Ground for Meaningful

Comparisons’ (2009) 22 Revista Derecho del Estado 185

Fajardo, RY, ‘Judicial Treatment of Cultural Diversity and the Special Jurisdiction in Peru’ (2001) 23
Beyond Law 195

Fajardo, RZY, ‘The Panorama of Pluralist Constitutionalism’ in C Rodríguez-Garavito (ed) Law and
Society in Latin America: A New Map (Routledge 2015)

Fassbender, B, ‘The United Nations Charter as the Constitution of the International Community’
(1998) 36 Columbia Journal of Transnational Law 529

Ferguson, A, An Essay on the History of Civil Society, ed by Duncan Forbes (Edinburgh University
Press 1966 [1767])

Foucault, M, Society Must be Defended: Lectures at the Collège de France, translated by D Macey
(Picador 2003)

Fraenkel, E, The Dual State: A Contribution to the Theory of Dictatorship, translated by EA Shils
(Oxford University Press, 2017 [1941])

Frankenberg, G, ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26 Harvard

International Law Journal 411

Frankenberg, G, Comparative Constitutional Studies: Between Magic and Deceit (Edward Elgar, 2018)

Gargarella, R, ‘Latin American Constitutions in Trouble’ in Mark A. Graber, Sanford Levinson and
Mark Tushnet (eds) Constitutional Democracy in Crisis? (Oxford University Press, 2018)

Ginsburg, T, ‘Constitutional Advice and Transnational Legal Order’ (2017) 2 UC Irvine Journal of
International, Transnational and Comparative Law 5

Golove, D and DK Hulsebosch. ‘The Federalist Constitution as a Project in International Law’ (2021)
89 Fordham Law Review 1

Grimm, D, Sovereignty: The Origin and Future of a Political and Legal Concept (Columbia University
Press, 2015)

Habermas, J, ‘Does the Constitutionalization of International Law Still Have a Chance?’ in J

Habermas, The Divided West (Polity, 2006).

Harrington, J ‘The Commonwealth of Oceana’ in The Political Works of James Harrington, ed. by JGA
Pocock (Vambridge University Press, 1977 [1656])

Hayek, FA, The Road to Serfdom (University of Chicago Press, 1944)

10

Electronic copy available at: https://ssrn.com/abstract=4015759

Hawgood, JA, Modern Constitutions Since 1787 (Macmillan and Co., 1939)

Heller, H, ‘Political Democracy and Social Homogeneity’ in A Jacobson and B Schlink (eds) Weimar:
A Jurisprudence of Crisis (University of California Press, 2000 [1928])

Heller, H, ‘Authoritarian Liberalism?’ (2015) 21 European Law Journal 295

Hirschl, R, Constitutional Theocracy (Harvard University Press, 2010)

Hirschl, R, ‘The Nordic Counternarrative: Democracy, Human Development, and Judicial Review’
(2011) 9 International Journal of Constitutional Law 449

Hirschl, R, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University
Press, 2014)

Hobbes, T, Leviathan, ed by CB Macpherson (Penguin Books, 1968 [1651])

Hurst, JW, Justice Holmes on Legal History (The Macmillan Company, 1964)

Ignatieff, M, The Needs of Strangers (Hogarth Press, 1984)

Jefferson, T, ‘A Summary View of the Rights of British North America’ in Thomas Jefferson: Writings,
ed. MD Peterson (Library of America, 1984 [1774])

Joerges, C, ‘What is Left of the European Economic Constitution? A Melancholic Eulogy’ (2005) 30
European Law Review 461

Kant, I, ‘Perpetual Peace: A Philosophical Sketch’ in Kant, Political Writings, translation by Nisbett
(Cambridge University Press, 1991[1795])

Kendall, S ‘Inscribing the State: Constitution Drafting Manuals as Textual Technologies’ (2020) 11
Humanity 101

Landau, D, ‘Abusive Constitutionalism’ (2013) 47 U.C. Davis Law Review 189

Law, DS, ‘Generic constitutional law’ (2004) 89 Minnesota Law Review 652

Law DS and M Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99
California Law Review 1163

Lemaitre, J, ‘War’ in V Das and D Fassin (eds) Words and Worlds: A Lexicon for Dark Times (Duke
University Press, 2021)

Lerner, H, ‘The Indian Founding: A Comparative Perspective’ in S Choudhry, M Khosla, PB Mehta

(eds) The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016)

Liebenberg, S, ‘South Africa's Evolving Jurisprudence on Socio-Economic Rights: An Effective Tool in

Challenging Poverty’ (2002) 6 Law Democracy and Development 159

Loughlin, M, The Idea of Public Law (Oxford University Press, 2003)

Loughlin, M, Foundations of Public Law (Oxford University Press, 2010)

11

Electronic copy available at: https://ssrn.com/abstract=4015759

Loughlin, M,’ Droit Politique’ in M Loughlin, Political Jurisprudence (Oxford University Press, 2017)

Marshall, TH, ‘Citizenship and Social Class’ in Class, Citizenship and Social Development: Essays by
T.H. Marshall (Anchor Books, 1965)

Merino, R, ‘An Alternative to “Alternative Development”? Buen Vivir and Human Development in
Andean Countries’ (2016) 44 Oxford Development Studies 271

Michaels, R, ‘The Functional Method of Comparative Law’ in M Reimann and R Zimmerman (eds)
The Oxford Handbook of Comparative Law, 2nd ed. (Oxford University Press, 2019)

Mokgoro, Y ‘Ubuntu and the Law in South Africa’ (1998) 4 Buffalo Human Rights Law Review 15

Montesquieu, The Spirit of the Laws, translated and edited by Anne Cohler, Basia Miller, and Harold
Stone (Cambridge University Press, 1989 [1758])

Moustafa, T, The Struggle for Constitutional Power: Law, Politics, and Economic Development
(Cambridge University Press, 2007)

Moyn, S, Not Enough: Human Rights in an Unequal World (Harvard University Press, 2018)

Newton, S, ‘Constitutionalism and Imperialism Sub Specie Spinozae’ (2006) 17 Law Critique 325

Newton, S, The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis
(Hart, 2017)

Petersmann, E-U, ‘The Need for a New Philosophy of International Economic Law and Adjudication’
(2014) 17 Journal of International Economic Law 639

Petersson, O, ‘Constitutional History’ in J Pierre, The Oxford Handbook of Swedish Politics (Oxford
University Press, 2016)

Poulantzas, N, State, Power, Socialism, translated by Patrick Camiller (Verso 2014)

Riles, A, ‘Comparative Law and Socio-Legal Studies’ in M Reimann and R Zimmerman (eds) The
Oxford Handbook of Comparative Law, 2nd ed. (Oxford University Press, 2019)

Rodríguez, C, M García-Villegas, and R Uprimny, ‘Justice and Society in Colombia: A Sociolegal

Analysis of Colombian Courts’ in LM Friedman and R Pérez-Perdomo (eds) Legal Culture in the Age
of Globalization: Latin America and Latin Europe (Stanford University Press, 2003)

Schmitt C, The Concept of the Political, translated by George Schwab (University of Chicago Press,
1996)

Schmitt, C, ‘Further Development of the Total State in Germany’ in C Schmitt, Four Articles, 1931-
38, translated by Simona Draghici (Plutarch Press, 1999 [1933])

Schneiderman, D, Red, White and Kind of Blue: The Conservatives and the Amercanization of Canadian
Constitutional Culture (University of Toronto Press, 2015)

Schneiderman, D, ‘Global Constitutionalism and International Economic Law: The Case of

International Investment Law’ (2016) 7 European Yearbook of International Economic Law 23

12

Electronic copy available at: https://ssrn.com/abstract=4015759

Shankar, S, ‘The Embedded Negotiators: India’s Higher Judiciary and Socioeconomic Rights’ in D
Bonilla Maldonado (ed) Constitutionalism of the Global South: The Activist Tribunals of India, South
Africa, and Colombia (Cambridge University Press, 2013)

Simpson, A, Mohawk Interruptus: Political Life Across Borders of Settler States (Duke University Press,
2014)

Stone A, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective
(Oxford University Press, 1992)

Stone Sweet, A and J Matthews, Proportionality Balancing and Constitutional Governance: A

Comparative and Global Approach (Oxford University Press, 2019)

Stourzh, G ‘Constitution: Changing Meanings of the Term from the Early Seventeenth Century to the
Late Eighteenth Century’ in Terence Ball and J.G.A. Pocock (eds) Conceptual Change and the
Constitution (University Press of Kansas, 1988)

Svallfors, S, ‘Who Loves the Swedish Welfare State? Attitude Trends 1980-2010’ in J Pierre, The
Oxford Handbook of Swedish Politics (Oxford University Press, 2016)

Thornhill, C, ‘Contemporary Constitutionalism and the Dialectic of Constituent Power’ (2012) 1

Global Constitutionalism 369

Thornhill, C, A Sociology of Transnational Constitutions: Social Foundations of Post-National Legal

Structure (Cambridge University Press, 2016)

Tully, J, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press,

1995)

Tushnet, M, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 The Yale Law Journal
1225

Tushnet, M, ‘Some Skepticism about Normative Constitutional Advice’ (2008) 49 William & Mary
Law Review 1493

Varol, OO, ’Stealth Authoritarianism in Turkey’ in Mark A. Graber, Sanford Levinson and Mark
Tushnet (eds) Constitutional Democracy in Crisis? (Oxford University Press, 2018)

Villalba-Eguilez, CU and I Etxano, ‘Buen Vivir vs Development (II): The Limits of Neo-Extractivism’
(2017) 138 Ecological Economics 1.

Wahi, N, ‘Property’ in S Choudhry, M Khosla, PB Mehta (eds) The Oxford Handbook of the Indian
Constitution (Oxford University Press, 2016)

Walker, N, Intimations of Global Law (Cambridge University Press, 2015)

Walker, N, ‘The Sovereignty Surplus’ (2020) 18 International Journal of Constitutional Law 370

Weber, M ‘The “Objectivity” of Knowledge in Social Science and Social Policy’ in HH Bruun and S
Whimster (eds), Max Weber: Collected Methodological Writings (Routledge 2012 [1904])

13

Electronic copy available at: https://ssrn.com/abstract=4015759

Wilkinson, M, ‘Authoritarian Liberalism as Authoritarian Constitutionalism’ in H Alviar García and G
Frankenberg (eds) Authoritarian Constitutionalism: Comparative Analysis and Critique (Edward Elgar,
2019)

Yrigoyen, RZ, ‘The Panorama of Pluralist Constitutionalism’ in C Rodríguez-Garavito (ed) Law and
Society in Latin America: A New Map (Routledge 2015)

14

Electronic copy available at: https://ssrn.com/abstract=4015759