THEORIES OF

G LO B A L I Z AT I O N I N
CONSTITUTIONAL LAW

Pooja Naik Gaonkar

LLM ( Semester I )
G R Kare College Of Law
 Introduction

Globalization of Constitutional Law

Theories of Globalization in constitutional Law

FLOW OF  Conservative Theory
PRESENTATION  Liberalist Theory
 Marxist Theory
 Political Realism Theory
 Feminist Theory

Globalization of Law and Democracy

Conclusion
INTRODUCTION

“
Our difficulty is not about the ultimate future.
Our difficulty is how to make the heterogeneous mass that we have
today take a decision in common and match on the way which leads
us to unity.
Our difficulty is not with regard to the ultimate,
Our difficulty is with regard to the beginning.

- B. R. Ambedkar
Development of constitutional law worldwide is definitely
a gradual process. It was only in the late 18 th century that
various philosophers, thinkers, intellectuals felt the need
of reciprocating the social needs, values, ethics, law and
order and other such constitutional principles in their
constitutions of the country so as to give legal sanctity to
these principles.

This is how the constitutional law globally started

evolving. The central idea around which constitutionalism
worldwide revolves is the application of constitutionalist
principles in international legal sphere

A commitment to the Rule of Law, Democracy, Human

Rights, Separation of powers etc. are the accepted core
features of the constitutional laws globally.
 Globalization is not a new concept.
It had started with the international influence of
Globalization of economies and cultures when the traders in ancient
world used to travel to different countries for
Constitutional exchange of goods. Along with the exchange of
Law goods, there was exchange of ideas as well which led
gradually to development of legal systems.

This development of legal systems by way of adopting

the legal principles of one country by another country
is known as globalization of law.

Globalization of constitutional law can be said to be

an agenda that incorporates the application of
constitutionalist principles in the international legal
fraternal sphere.
In general parlance, Globalization of law means an umbrella under which certain
globally accepted norms or set of rules exists and the constitutions of various
countries necessarily reflect these principles of globally accepted rules in
themselves ( Constitutions / Laws of the land ) at international level.

These principles of law are adopted at international level through global

consensus and developed to suit the prevailing social conditions of the countries
worldwide.
 Conservative Theory
Theories of
Globalization of Liberal Theory
Law
Marxist Theory

Political Realism Theory

Feminist Theory
The idea of Globalization of Law was backed by certain
theoretical explanations by various philosophers, thinkers
who believed that the society, legal system ought to function
in a particular way so as to achieve the ideal goals of welfare
state. It was the result of these intellectuals’ beliefs and
thought process which gave rise to various theories of
constitutional law and its practices worldwide.

Conservative Theory
The Oxford English
dictionary defines the term
‘Conservative’ as, ‘averse to
change or innovation and
holding traditional beliefs’.
The theory also finds its
relevance in the similar
meaning as its definition.
Conservatives typically see Richard Hooker (1554–1600) as the founding
father of conservatism, along with the Marquess of Halifax (1633–1695),
David Hume (1711–1776) and Edmund Burke (1729–1797)
Conservative theory is believed to have originated in Greek and Roman
culture. It is a political and social philosophy which promotes traditional
social institutions in the context of culture and civilization.
The central tenets of conservatism include tradition, organic society,
hierarchy, authority, and property rights. Conservatives seek to preserve a
range of institutions such as religion, parliamentary government, and
property rights, with the aim of emphasizing social stability and continuity.
The conservatists believed that the institutions of power are
1. Monarchy
2. Aristocracy
3. Church
4. Patriarchal family
Roman constitutionalism is known to us through Polibious. The Roman
constitution according to Polibious consisted of—Rules supported by laws
which in turn were supported by Religion.
 According to Christiandom ‘only those laws are good which have their base in
religion.’ In the Medieval period, the role of Church is important. Church restricts the
monarch from becoming a tyrant. Political thinkers followed the trend set by St.
Augustine and St. Thomas in making secular authority subsequent to the authority of
the Church.

According to Quintin Hogg, the chairman of the British Conservative Party in 1959:
"Conservatism is not so much a philosophy as an attitude, a constant force, performing
Edmund Burke a timeless function in the development of a free society, and corresponding to a deep
and permanent requirement of human nature itself.

Edmund Burke, an 18th-century politician ( also known as the Father of Modern

Conservatism ) who opposed the French Revolution, but supported the American
Revolution, is credited as one of the main theorists of conservatism in Great Britain in
the 1790s. According to him, colonialism is bad, radicalism is dangerous and
democracy is a threat to the social stability. According to him, governmental
conventions are based on spiritual power and they should not be tinkered with.

According to Russell Kirk, In essence, the conservative person is simply one who
Russell Kirk finds the permanent things more pleasing than Chaos and Old Night. Yet conservatives
know, that healthy “change is the means of our preservation.”
 General principles of
Conservative ideology
There is no single set of policies regarded as
conservative because the meaning of
conservatism depends on what is considered
traditional in a given place and time. Thus
conservatives from different parts of the
world—each upholding their respective
traditions—may disagree on a wide range of
issues.
There are certain common principles which
support the Conservative ideology.
Society is guided by an enduring moral
order and prudence
Church and State are inseparable and
derived from God
Individual conscience is directed by
Prescription, Presumption and Prejudice
Meaning of life is found in tradition and
folklore
Monarchy is the only form of right
government
Social order adheres to custom,
convention and continuity
No society is perfect
The change desired ought to be gradual
 Society is guided by an enduring moral order and prudence

Conservatives believe that there exists an enduring moral order. That order is made for man, and man is made for
it. Human nature is a constant, and moral truths are permanent. A society in which men and women are governed
by belief in an enduring moral order, by a strong sense of right and wrong, by personal convictions about justice
and honour, will be a good society—whatever political machinery it may utilize; while a society in which men
and women are morally adrift, ignorant of norms, and intent chiefly upon gratification of appetites, will be a bad
society—no matter how many people vote and no matter how liberal its formal constitution may be.

This society which lays its basis on moral principles is guided by principle of prudence. Any public measure
ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity.
Liberals and radicals, the conservative says, are imprudent
because they dash at their objectives without giving much
heed to the risk of new abuses worse than the evils they hope
to sweep away. As per John Randolph Prudence moves slowly,
but the devil always hurries. Human society being complex,
remedies cannot be simple if they are to be efficacious.
 Church and State are inseparable and derived from God

They believe that the Church and State are inseparable in spiritual sense. Both these institutions are
derived from God for the maintenance of social order and hence they are supreme and divine. There is no
requirement of seperate law and legal institutions for protecting the rights of the people because the
Church and State are alone capable of protecting the rights of people.

 Individual conscience is directed by Prescription, Presumption and Prejudice

Conservatives sense that modern people are dwarfs on the shoulders of giants, able to see farther than their
ancestors only because of the great stature of those who have preceded us in time. Therefore conservatives
very often emphasize the importance of prescription—that is, of things established by immemorial usage.
Similarly, they say that our morals are prescriptive in great part. Conservatives argue that we moderns, are
unlikely, to make any brave new discoveries in morals or politics or taste. It is perilous to weigh every passing
issue on the basis of private judgment and private rationality. Burke declared that the individual is foolish, but
the species is wise. In politics we do well to abide by precedent and precept and even prejudice, for the great
mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man’s
petty private rationality.
 Meaning of life is found in tradition and folklore

The Conservatists believe that the idea of freedom is mere an illusion. It is not enough to be free without there
being a meaning to life. This meaning of life, they say, is found in our ancient traditions, cultures, folklore,
myths, fairy tale stories, etc. which have devolved upon the modern society through ancient times. The roots
of purpose of life, the idea of prudent, morally orderly society is found in these traditions and heritage of
society which helps to build an ideal social order.

 Monarchy is the only form of right government

The Conservatists believe that Monarchy is the righteous form of government. They say that it is most
capable of maintaining the society because it derives its authority from the God. It is based not on social
contract but on virtuous principles. The undivided rule and absolute sovereignty guided by virtuous principles
accredited to the Monarch help him to make the appropriate decisions required by the society and hence
Monarch unlike in Anarchy protect the rights of people.
 Social order adheres to customs, conventions and continuity

Conservatives are champions of custom, convention, and continuity because they prefer the devil they know
to the devil they don’t know. It is old custom that enables people to live together peacefully. The
Conservatists are of the opinion that the destroyers of custom demolish more than they know or desire. It is
through conventions that we try to avoid perpetual disputes about rights and duties. Law at base is a body of
conventions. Continuity is the means of linking generation to generation. It matters as much for society as it
does for the individual; without it, life is meaningless.

The Conservatists strongly say that When successful revolutionaries have effaced old customs, derided old
conventions, and broken the continuity of social institutions— which is why, presently many countries
discover the necessity of establishing fresh customs, conventions, and continuity; but that process is painful
and slow and the new social order that eventually emerges may be much inferior to the old order that radicals
overthrew in their zeal for the Earthly Paradise.

Human society is no machine, to be treated mechanically. The continuity, the life-blood, of a society must not
be interrupted. However adhering to the necessity for prudent change, conservatives argue that change ought
to be gradual thereby keeping the continuity of the customs and traditions intact.
 No society is perfect

Man being imperfect, no perfect social order ever can be created. Because of human restlessness, mankind
would grow rebellious. The conservatives say that we are not made for perfect things. All that we reasonably
can expect is a tolerably ordered, just, and free society, in which some evils, maladjustments, and suffering
will continue to lurk. By proper attention to prudent reform, we may preserve and improve this tolerable
order. But if the old institutional and moral safeguards of a nation are neglected, then the anarchic impulse in
humankind breaks loose.

 The change desired ought to be gradual

Conservatives believe in gradual change. Change is essential to the society, just as it is essential to the human
body. A body that has ceased to renew itself has begun to die. But if that body is to be functioning, the change
must occur in a regular manner, harmonizing with the form and nature of that body otherwise change produces
an undesirable result. The conservative takes care that nothing in a society should ever be wholly old, and that
nothing should ever be wholly new. This is the means of the conservation of a nation, quite as it is the means
of conservation of a living organism. They further clarify that how much change a society requires, and what
sort of change is needed, depends upon the circumstances of the nation.
Forms of Conservatism

Liberal conservatism Conservative liberalism

It holds the view of minimal government Conservative liberalism is a variant of

intervention in the economy. Individuals should liberalism that combines liberal values and
be free to participate in the market and generate policies with conservative stances. The
wealth without government interference. roots of conservative liberalism are found
However, individuals cannot be thoroughly
at the beginning of the history of
depended on to act responsibly in other spheres
liberalism.
of life, therefore liberal conservatives believe
that a strong state is necessary to ensure law
and order and social institutions are needed to
nurture a sense of duty and responsibility to the
nation.
Libertian conservatism
Libertarian conservatism describes certain political
ideologies most prominently within the United States
which combine libertarian economic issues with
aspects of conservatism. They support strict laissez-
faire policies such as free trade, opposition to any
national bank and opposition to business regulations.
They are vehemently opposed to environmental
regulations, corporate welfare, subsidies and other
areas of economic intervention. They typically
oppose efforts to charge high tax rates and to
redistribute income to assist the poor. Such efforts,
they argue, do not properly reward people who have
earned their money through hard work.
Fiscal conservatism
Fiscal conservatism is the economic
philosophy of prudence in government
spending and debt. Edmund Burke argued
that a government does not have the right
to run up large debts and then throw the
burden on the taxpayer: The public,
whether represented by a monarch or by a
senate, can pledge nothing but the public
estate; and it can have no public estate
except in what it derives from a just and
proportioned imposition upon the citizens
at large.
National conservatism
National conservatism is a political term
used primarily in Europe to describe a
variant of conservatism which concentrates
more on national interests than standard
conservatism as well as upholding cultural
and ethnic identity while not being
outspokenly nationalist or supporting a far-
right approach. National conservatism is
heavily oriented towards the traditional
family and social stability as well as in
favour of limiting immigration.
Traditional conservatism
Traditionalist conservatism is a political
philosophy emphasizing the need for the
principles of natural law and transcendent moral
order, tradition, hierarchy and organic unity, high
culture as well as the intersecting spheres of
loyalty. Some traditionalists have embraced the
labels "reactionary" and "counterrevolutionary",
Having a hierarchical view of society, many
traditionalist conservatives, including a few
Americans, defend the monarchical political
structure as the most natural and beneficial social
arrangement.
Cultural conservatism
Cultural conservatives support the
preservation of the heritage of one
nation, or of a shared culture that is not
defined by national boundaries. The
shared culture may be as divergent as
Western culture or Chinese culture. In the
United States, the term "cultural
conservative" may imply a conservative
position in the culture war. Cultural
conservatives hold fast to traditional
ways of thinking even in the face of
monumental change. They believe
strongly in traditional values and
traditional politics and often have an
urgent sense of nationalism.
Religious conservatism
Religious conservatism principally apply the
teachings of particular religions to politics,
sometimes by merely proclaiming the value
of those teachings, at other times by having
those teachings influence laws. Religious
conservatives typically oppose abortion,
homosexual behavior, drug use, and sexual
activity outside of marriage. In some cases,
conservative values are grounded in religious
beliefs, and conservatives seek to increase the
role of religion in public life.
Social conservatism

Social conservatives believe that society is built upon a fragile network of relationships which need to
be upheld through duty, traditional values and established institutions and that the government has a
role in encouraging or enforcing traditional values or behaviours. A social conservative wants to
preserve traditional morality and social morals, often by opposing what they consider radical policies or
social engineering.

Social conservatives in many countries generally favour the pro-life position in the abortion
controversy and oppose human embryonic stem cell research . they oppose expansion of civil marriage
and child adoption to couples in same-sex relationships; atheism, secularism and the separation of
church and state. They support a traditional definition of marriage as being one man and one woman;
view the nuclear family model as society's foundational unit; promote public morality and traditional
family values; support the prohibition of drugs, prostitution and euthanasia; and censorship of
pornography and what they consider to be obscenity or indecency. Most conservatives in the United
States support the death penalty.
Paternalistic conservatism
Paternalistic conservatism first arose as a distinct
ideology in the United Kingdom under Prime Minister
Benjamin Disraeli's "One Nation" Toryism.
Paternalistic conservatism is a strand in conservatism
which reflects the belief that societies exist and develop
organically and that members within them have
obligations towards each other. There is particular
emphasis on the paternalistic obligation of those who
are privileged and wealthy to the poorer parts of
society. Paternal conservatives support neither the
individual nor the state in principle, but are instead
prepared to support either or recommend a balance
between the two depending on what is most practical.
In Germany, during the 19th-century German
Chancellor Otto von Bismarck adopted policies of
state-organized compulsory insurance for workers
against sickness, accident, incapacity and old age.
Authoritarian conservatism
Authoritarian conservatism refers to autocratic
regimes that center their ideology around
conservative nationalism. Authoritarian
conservative movements show strong devotion
towards religion, tradition and culture while also
expressing fervent nationalism akin to other far-
right nationalist movements. Examples of
authoritarian conservative leaders include
António de Oliveira Salazar and Engelbert
Dollfuss. Authoritarian conservative movements
were prominent in the same era as fascism.
  United Kingdom
According to historian James Sack, English conservatives celebrate Edmund Burke as
their intellectual father. Burke was affiliated with the Whig Party which eventually
Conservatism became the Liberal Party, but the modern Conservative Party is generally thought to
derive from the Tory party and the MPs of the modern conservative party are still
in today’s frequently referred to as Tories.
world
 United States
The meaning of "conservatism" in the United States has little in common with the way
the word is used elsewhere. Since the 1950s, conservatism in the United States has
been chiefly associated with the Republican Party. Major priorities within American
conservatism include support for the traditional family, law and order, the right to bear
arms, Christian values, anti-communism and a defense of "Western civilization from
the challenges of modernist culture and totalitarian governments". Economic
conservatives and libertarians favor small government, low taxes, limited regulation
and free enterprise. Some social conservatives see traditional social values threatened
by secularism, so they support school prayer and oppose abortion and homosexuality.
Most recently, the Tea Party movement, founded in 2009, has proven a large outlet for
populist American conservative ideas. Their stated goals include rigorous adherence to
the US Constitution, lower taxes and opposition to a growing role for the federal
government in health care.
 France
Conservatism in France focused on the rejection of the secularism of the French Revolution, support for the role of
the Catholic Church and the restoration of the monarchy. The monarchist cause was on the verge of victory in the
1870s, but then collapsed because the proposed king refused to fly the tri-colored flag. Religious tensions
heightened in the 1890–1910 era, but moderated after the spirit of unity in fighting the First World War.
Following the Second World War, Conservatism has been the major political force in France since the Second
World War. conservatives in France have been nationalistic and emphasized tradition, order and the regeneration of
France. The number of conservative groups, their lack of stability and their tendency to be identified with local
issues defy simple categorization. The word "conservative" itself is a term of abuse in France.

 Greece
The main inter-war conservative party was called the People's Party (PP), which supported constitutional monarchy
and opposed the republican Liberal Party. Both it and the Liberal party were suppressed by the authoritarian, arch-
conservative and royalist in 1936. In 1974 the New Democracy party was found. This new conservative party had
four objectives: to confront Turkish expansionism in Cyprus, to reestablish and solidify democratic rule, to give the
country a strong government and to make a powerful moderate party a force in Greek politics.
The Independent Greeks, a newly formed political party in Greece, has also supported conservatism, particularly
national and religious conservatism. The Founding Declaration of the Independent Greeks strongly emphasises in
the preservation of the Greek state and its sovereignty, the Greek people and the Greek Orthodox Church.
 Australia
The Liberal Party of Australia adheres to the principles of social conservatism and liberal conservatism. It is
liberal in the sense of economics. Other conservative parties are the National Party of Australia , Family First
Party, Democratic Labor Party, Shooters, Fishers and Farmers Party, Australian Conservatives, and the Katter's
Australian Party.

 India
In India, the Bharatiya Janata Party (BJP), represent conservative politics. The BJP is the largest right-wing
conservative party in the world. It promotes cultural nationalism, Hindu Nationalism, an aggressive foreign
policy against Pakistan and a conservative social and fiscal policy

 Russia
Under Vladimir Putin, the dominant leader since 1999, Russia has promoted explicitly conservative policies in
social, cultural and political matters, both at home and abroad. Putin has attacked globalism and economic
liberalism. Russian conservatism is unique in some respects as it supports Economic intervention with a mixed
economy, with a strong nationalist sentiment and social conservatism with its views being largely populist.
Criticism
 Liberalism theoretically means a state of being liberal . it is a political
philosophy held by people who strongly believe in the principles of
liberty, freedom, civic rights and equality for all.
Liberal Theory
17th century British philosopher John Locke is credited with being the
“founding father” of liberalism, Locke’s argument was that every man
is entitled to “a natural right to life, liberty, and property,” and that the
government should not do anything to violate these rights.

 History of Liberalism

 The Glorious Revolution

The Glorious Revolution of 1688 led to what many consider to be the
first modern, liberal state in England.
Three significant contributions that the Glorious Revolution made in
the history of liberalism included:

Thomas Hobbes John Locke a) The right to petition the monarch was granted to all, and “cruel and
unusual punishments” were deemed to be criminal acts, no matter the
circumstances that may have “warranted” them.
b) The Act of Toleration of 1689 was drafted, which allowed Nonconformist Protestants the freedom to worship
how and where they wanted, so long as they pledged oaths of Allegiance and Supremacy to the Anglican Church.

c) The Commons refused to renew the Licensing of the Press Act in 1695, which led to an unprecedented level of
freedom of the press.

 The Age of Enlightenment

The Age of Enlightenment was a period in history during which people were continually questioning the
traditions they had been taught. This spurred a significant expansion of the liberalism movement. The
American Age of Enlightenment, which was heavily influenced by the European Age of Enlightenment,
encouraged scientific reasoning to be used to evaluate differing ideals, such as religion, politics, and even
scientific notions. The American Age of Enlightenment, as an example of liberalism, also saw the promotion of
religious tolerance, and a restored importance and appreciation being placed on creative fields, such as
literature, arts, and music, as professions worthy of being studied.
 The American Revolution

Thomas Jefferson, who had John Locke’s ideals in mind, had written:
“We hold these truths to be self-evident, that all men are created equal, and are endowed by their creator with
certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
After the Revolutionary War, the Articles of Confederation were found to be inadequate to maintain a functional
government, so leaders debated on how exactly they should proceed from that point forward. It was then that the
beginnings of the Constitution began to take shape, and the federal government that Americans now know today
was established.
For the era in which it was written, the Constitution was a document that embraced both republican and liberal
ideals. The drafters of this document sought to create a strong national government, while providing a distinct
separation of powers among the executive, legislative, and judicial branches of government, so as to prevent any
one branch from being more powerful than others. The Bill of Rights, which serve as the first ten amendments to
the Constitution, were put in place to restrict the government’s powers, and to protect the natural rights used by
the liberal-minded revolutionaries to justify fighting the American Revolution. The Bill of Rights remains the
oldest working liberal government document in the world.
Liberal theory was further supported by Thomas Hobbes, Thomas Harrington, Jeremy Bentham, John Stuart Mill,
etc.

 Locke favored constitutionalism, limited government, people have right to give themselves a constitution. He
supported natural rights because according to him it restricts the government. He was in favour of division of
law making power since this way law was used to put restriction on sovereign government.

 Hobbes rejected the idea of constitutionalism. He was in favour of unrestricted power in the hand of Levia-
than.

 Thomas Harrington was in favour of government of laws. He was against government of men.

 Western writers like Thomas Saine, James Bryce, Harold J. Laski, Herman Rines, Charles H. Mcliawain, C.F.
Strong, Carl J. Friedrich etc. who favoured Liberalism were of the opinion that constitutionalism is both an
end and a means. They said that the ultimate end of the constitution is protection of rights of people and
building up well founded social order, which could be done by using the constitution as the means to achieve
the ultimate end.
  The three great utilitarian thinkers—Jeremy Bentham (1748-1832),
James Mill (1773-1836) and J.S. Mill (1806-1873) conceived the idea of
a state whose chief function would be to protect the democratic rights of
the citizens and ensure, through the adoption of measures, the free
functioning of democracy. They believed that it is the function of the
state to protect the citizens from all sorts of oppression. In order to
Jeremy Bentham establish people’s right and the expansion of the scope of participation
all of them forcefully advocated for periodic elections, granting liberty
to press and other media, importance of public opinion etc. They said
that not only the rights and interests of the individuals are to be
protected but also the interests of the community in general are to be
sustained.

John Stuart Mill

 Recognition to the importance of individual

Features of Opposition to blind faith and tradition

Liberalism
Support for Human rights, freedom and liberty

State is the means and individual is the end

Limited power to government

Support for Democracy

Faith in secularism

Establishment of Pluralist society

Liberalisation of Economy

Supporting the spirit of Internationalism and brotherhood

 Recognition to the Importance of Individual:
Liberalism prioritizes the importance of individual and grants him high position. Individual is accepted as the central point of all
political, economic and social activities. It is meaningless to talk of society without the individuals, because a society is nothing
but a large and active group of individuals. The society is a means to the end, which is the individual. Society is for the
individual and not the individual for the society.
It also focuses on the intelligence and rationality of individual. Liberalists believe that Being rational, every individual knows
well what is good for him and what is not. No person can be and should be forced to accept and follow such conventions, laws
and principles which do not conform to his logic and intellect. The supporters of Liberalism place emphasis upon the organised
intellectual power of human individual as the basis of all human progress and development.

 Opposition to Blind Faith and Tradition:

In the Conservatists era, superstitions and traditions gained positions of respect. The political, economic and religious
institutions were looked upon as the ideals. The liberalists opposed these institutions and prepared the way for further changes.
The liberalists had little faith in superstitions and old dogmatic traditions. They stood for a society free from superstitions and
irrational traditions.

 Support for Human Rights and Freedom and Liberty:

The liberal thinkers supported human rights and ideals of freedom and liberty. They were of the view that No State or society
should abolish or restrict the freedoms and liberties granted to them. The State is to protect all the rights. According to them the
basic rights are: the right to life, right to property and the rights to liberty, equality and justice.
The liberalists also supported liberty as the most cherished ideal. The fraterna of liberty involved liberty of expression, liberty of
family, liberty of religion, economic liberty and social liberty. According to liberalists, liberty is not defined as absence of
restraints rather It stands for some rational restraints which seek to eliminate irrational ones.
 State as the means, Individual as the End
Liberalism regards State only as an institution which has been created for the comfort and full development of the individuals
living in it. The State is the means and its aim is the development of individual. According to Bentham, the aim of the State
was to promote ‘the greatest happiness of the greatest number’. Modern liberal thinkers consider the State as an instrument of
general welfare and justice.

 Constitutional and Limited Government

Liberalism supports constitutional and limited government. While looking upon State as the means for individual
development, liberalism does not favour the unrestricted power of the state and its government. According to them the powers
of the government should be limited and every government must function within its constitutional limits.. However, with the
passage of time it changed its own outlook and began to accept the role of the state as a hamonising factor between individual
good and the social welfare.

 Support for Democracy

Liberalism was born as a reaction against the absolutism of the rulers. It upheld democracy because it alone could really
ensure the rights and freedoms of all. According to Locke, “a government should born out of the people’s consent and should
be based on people’s consent.” Liberalism believes in representative institutions, universal adult franchise, free and fair
elections, independent, impartial judiciary, rule of law and social welfare.
Faith in Secularism:
Liberalism supports the view that there should be no special religion of the state. All religions must enjoy equal
freedom. People belonging to all religions should enjoy equal rights and freedoms. A very large number of countries
all over the world now accept the secular views of liberalist.

Establishment of Pluralist Society

In a pluralist society, there are people associated with all kinds of classes, castes, religions and cultures. Each class or
sect or religion or culture has its own interests and the individual sect or class are entitled to protect their interests by
way of forming groups and associations. A State has to function among all these groups and associations.

Liberalisation of Economy
Initially liberalism favoured absence of state action in the spheres of business, trade and economy. It favoured laissez
faire economy, open competition and free trade. Later on, liberalism accepted the concept of welfare state. Presently,
it backs privatization, free trade, open competition, free trade, market economy and globalization. It, accepts the role
of state in the economic life of society. They believe that the state must adopt monetary policy which would be able
to reduce the volume of unemployment, extent of poverty and ensure stability in the field of production. The state
must see that the produced commodities are properly distributed among the persons who really require them. It was
urged that the state cannot have monopoly power over the economy, but absolute free and competitive economy is
neither desirable. It is the duty of the state to keep a vigil over both the money market and production market.
Supporting the spirit of Internationalism and Brotherhood:
Liberalism supports internationalism, world peace and brotherhood of all people. The motto ‘Live and let live’
guides the viewpoint of liberalists. liberal thinkers believe in the sovereignty of each State and its indivisibility.
They support the right of every State to develop itself without any consideration of being big or small, rich or poor
and developed or underdeveloped. It urges all nations to get together and try to find solutions to all human problems
through international co-operation.
 Neo-
Classical Progressivism
Types of
Liberalism
Liberalism
Classical Social
Liberalism Liberalism

Liberalism

Economic Modern
Liberalism Liberalism

Neo
Liberalism
 Classical liberalism

Classical liberalism advocates for civil liberties under the rule of law with an emphasis on economic freedom. This
ideology was developed in the early 19th century, as a response to urbanisation and to the Industrial Revolution in
Europe and the United States. Notable individuals whose ideas contributed to classical liberalism include John
Locke, Jean-Baptiste Say, Thomas Robert Malthus and David Ricardo.

Core beliefs of classical liberals included following ideas—

 Classical liberals believed that individuals are "egoistic, coldly calculating, essentially inert and atomistic" and
that society is no more than the sum of its individual members

 Classical liberals agreed with Thomas Hobbes that government had been created by individuals to protect
themselves from each other and that the purpose of government should be to minimize conflict between
individuals that would otherwise arise in a state of nature.

 Adopting Thomas Robert Malthus's population theory, they saw poor urban conditions as inevitable, believed
population growth would outstrip food production and thus regarded that consequence desirable because
starvation would help limit population growth. They opposed any income or wealth redistribution, believing it
would be dissipated by the lowest orders.
 Drawing on ideas of Adam Smith, classical liberals believed that it is in the common interest that
all individuals be able to secure their own economic self-interest. They were critical of what
would come to be the idea of the welfare state as interfering in a free market. They argued that
individuals should be free to obtain work from the highest-paying employers while the profit
motive would ensure that products that people desired were produced at prices they would pay. In
a free market, both labor and capital would receive the greatest possible reward while production
would be organized efficiently to meet consumer demand.

 Classical liberals did not necessarily support neither democracy nor government by a majority
vote of the citizens because as per them the idea of majority rule showed that majorities will
always respect the rights of property or maintain rule of law.

In the late 19th century, classical liberalism developed into neo-classical liberalism, which argued
for government to be as small as possible to allow the exercise of individual freedom.
 Economic liberalism

Economic liberalism is associated with free markets and private ownership of capital assets.
Historically, economic liberalism arose in response to mercantilism and feudalism. Today, economic
liberalism is also considered opposed to non-capitalist economic orders such as socialism and
planned economy. It is an economic system organized on individual lines. The greatest possible
number of economic decisions are made by individuals or households rather than by collective
institutions or organizations. It includes a spectrum of different economic policies but its basis is on
strong support for a market economy and private property in the means of production. Although
economic liberals can also be supportive of government regulation to a certain degree, they tend to
oppose government intervention in the free market when it inhibits free trade and open competition.

Neo-liberalism is a term that refers primarily to the 20th century resurgence of 19th century ideas
associated with laissez-faire economic liberalism. These include extensive economic
liberalization policies such as privatization, fiscal austerity, deregulation, free trade, and reductions
in government spending in order to enhance the role of the private sector in the economy.
 Social liberalism

Social liberalism, also known as left liberalism in Germany, modern liberalism in the United States and new liberalism
in the United Kingdom, is a political ideology that endorses a regulated market economy and the expansion of civil
and political rights.
Under social liberalism, the common good is viewed as harmonious with the freedom of the individual. Social liberal
policies have been widely adopted in much of the capitalist world countries. A social liberal government is expected to
address economic and social issues such as poverty, health care, education and the climate using government
intervention whilst also emphasising the rights and autonomy of the individual.
In the United States, current political usage of the term social liberalism describes progressivism or cultural liberalism.

 Modern liberalism

Modern liberalism emerged as a reaction against the free market capitalism. According to advocates of this theory,
freedom could no longer simply be defined as being left alone. Free market capitalism had failed to provide freedom
to all and a very different approach was required to curb this situation. This led to a shift away from classical
liberalism. Modern liberalists sought to have a variant approach by Maintaining a capitalist base, and still favouring
the adoption of welfare state. This was an attempt to bring about a fusion between rights and liberties of the
individuals and the larger interests of the society so as to provide social justice to the deprived sections of the society.
The ultimate aim here was to carve out a public policy which protects and promotes each person’s equal opportunity
to develop their potentials to the optimum
 The issue was whether or not the government overstepped its boundaries and
infringed upon Charles Schenck’s right to freedom of speech.
During the course of World War I, Charles Schenck, a prominent socialist, mailed
Judiciary circulars to draftees that compared the draft of the First Amendment to an act of
“involuntary servitude,” and stated that “the war was nothing more than an event
On Liberalism created by money-hungry big-wigs to line their pockets”, and called upon draftees to
repeal the draft.
Schenck was ultimately convicted of violating the Espionage Act by attempting to
cause a revolt within the military.

The U.S. Supreme Court issued a unanimous decision that Schenck’s actions were not
protected by the First Amendment.
Schenck
Justice Oliver Wendell Holmes, Jr., in written decision, stated:
v. “The most stringent protection of free speech would not protect a man in falsely
United States shouting fire in a theatre and causing a panic …”
(1919) The decision in this case gave birth to the phrase “clear and present danger,” as the
yardstick by which someone’s statements are to be evaluated in determining whether
they can be suppressed. Justice Holmes further clarified that there are likely to be
things that can be said during peacetime, that simply cannot be said during wartime –
because they present a danger – and that Congress has every right to prevent the evils
that can be inspired by certain types of speech.
 Liberalism was again debated in 2011, as accusations were made that the mega retailer
Walmart was prohibiting gender equality by discriminating against women in their policies
concerning pay and promotions.
Betty Dukes, a 54-year-old Walmart employee from California, filed a class-action lawsuit
Walmart Stores, Inc.
against the company, claiming Walmart discriminated against female employees based on
v.
their gender. Dukes claimed that, Walmart had a nationwide policy that resulted in women
Dukes
being paid less than men for doing the same job and despite receiving positive performance
(2011)
reviews over the course of the six years that she had worked for the company, she was still
denied the training that would have been necessary to move her into a higher and better-
paying position.
The lawsuit ultimately involved 1.5 million female employees, all of whom had begun
working for Walmart since 1998. The prime issue was whether the litigant could continue
with the class-action lawsuit ?
The U.S Supreme Court upholding the Rule of Law held that a class action lawsuit can be
carried forward on the principle of Commonality. Since in this case, the aggrieved employees
had nothing in common with respect to the cause of action, the case cannot be allowed to be
continued as a ‘class action lawsuit’.

 Freedom of Speech
In 2014, Raif Badawi, a Saudi Arabian writer and the creator of the website Free Saudi Liberals, was sentenced to ten
years imprisonment and Rs. 1,000 fine for "insulting Islam“.
   Edmund Burke, considered by some to be the first major proponent of modern
conservative thought, offered a blistering critique of the French Revolution by
Criticism targeting the liberal pretensions to the power of rationality and to the natural equality
of all humans.

  One of the most outspoken critics of liberalism was the Roman Catholic Church,
which resulted in lengthy power struggles between national governments and the
Church. In the same vein, conservatives have also attacked what they perceive to be
the reckless liberal pursuit of progress and material gains, arguing that such
preoccupations undermine traditional social values rooted in community and
continuity.

  Karl Marx rejected the foundational aspects of liberal theory, hoping to destroy both
the state and the liberal distinction between society and the individual while fusing the
two into a collective whole designed to overthrow the developing capitalist order of
the 19th century.
  Fascists accuse liberalism of materialism and a lack of spiritual values. In particular, fascism opposes
liberalism for its materialism, rationalism, individualism and utilitarianism. Fascists believe that the
liberal emphasis on individual freedom produces national divisiveness, but many fascists agree with
liberals in their support of private property rights and a market economy.

  According to Russian President Vladimir Putin, as reported in the Financial Times, "liberalism has
become obsolete". He claims that the vast majority of people in the world oppose multiculturalism,
immigration, and rights for people who are LBGT. Hence liberalism still feels an illusion.
 Marxism is a social, political, and economic theory given
birth by Karl Marx, which focuses on the struggle between
Marxist Theory capitalists and the working class. Marxism was first publicly
formulated in the 1848 pamphlet, The Communist Manifesto,
by Karl Marx and Friedrich Engels, which lays out the theory
of class struggle and revolution. Marxian economics focuses
on the criticisms of capitalism brought forth by Karl Marx in
his 1867 book, Das Kapital.

According to Marx, every society is divided among a number

of social classes, whose members have more in common
with one another than with members of other social classes.
In a capitalist system, Marx believed that the society was
made up of two classes, the bourgeoisie, or business owners
who control the means of production, and the proletariat, or
workers whose labour transforms raw commodities into
valuable economic goods.
Karl Marx Friedrich Engels
The bourgeoisie's control the means of production which
gives them power over the proletariat, and allows them BOURGEOISIE
to limit the workers ability to produce and obtain what CLASS
they need to survive. According to Marx the power CONFLICT
relationships between capitalists and workers were
exploitative and would inevitably create class
conflict. He believed that this conflict would ultimately PROLETARIATS
lead to a revolution in which the working class would
overthrow the capitalist class and seize control of the
economy.

Marx believed that capitalism is based on commodities,

which are things bought and sold. In Marx's view, an COMMUNISM
employee's labour is in a form of commodity. However, REVOLUTION
since ordinary labourers do not own the means of Proletariats win over the
production, such as factories, buildings, and materials, Bourgeoisies and ideal
society free from
they have little power in the capitalist economic system. oppression is established
Workers are also readily replaceable in periods of high
unemployment, further devaluing their perceived worth.
To maximize profits, business owners have an incentive to get the most work out of their labourers while paying them
the lowest wages possible. They also own the end product that is the result of the worker's labour, and ultimately
profit from its surplus value, which is the difference between what it costs to produce the item and the price for which
it is eventually sold.

To maintain their position of power and privilege, the bourgeoisie employ social institutions as tools and weapons
against the proletariat. The government enforces the will of the bourgeoisie by physical coercion to enforce the laws
and private property rights to the means of production. The banking and financial system facilitates the consolidation
of capitalist ownership of the means of production which further undermines the workers bargaining power.

Marx felt that capitalism creates an unfair imbalance between capitalists and the labourers whose work they exploit
for their own gain. In turn, this exploitation leads the workers to view their employment as nothing more than a
means of survival since the worker has little personal stake in the process of production. While laborers are focused
on basic survival, capitalist business owners are concerned with acquiring more and more money.
Thus he thought that the capitalist system inherently contained the seeds of its own destruction, because the alienation
and exploitation of the proletariat that are fundamental to capitalist relations would inevitably drive the working class
to rebel against the bourgeoisie and seize control of the means of production. As a result of the revolution, Marx
predicted that capitalism will be abolished and private ownership of the means of production would be replaced by
collective ownership, under communism or socialism.
Marx identifies five stages of social evolution. The Communal
stage, the Slave stage, the Feudal stage, the Capitalist stage and the
Communist stage. Each is followed by the other. The present
capitalist stage is bound to be followed by the Communist stage.
The transformation is bound to come through a revolution.

According to Marx the establishment of a communist society—a

classless and stateless society in which each one works according
to his capacity and each one gets according to his needs is the ideal
society. After the overthrow of capitalism by a proletarian
revolution, the dictatorship of the proletariat will be established.
Under it capitalism will be fully liquidated. The state will also
wither away.
Marx on Constitutional law

The constitution is not an end in itself; it is just a means to implement the ideology of scientific socialism. It is a tool
in the hands of the dictatorship of the proletariat that seeks to establish classless society that would eventually turn into
a stateless condition of life. The purpose of having the constitution is not to limit the powers of the government but to
make them so vast and comprehensive that the ideal of workers state is realized and a new type of state comes into
being.
The real aim of the constitution in such a country is not to ensure liberty and equality, rights and justice for all but to
see that the enemies of socialism are destroyed and the new system is firmly consolidated.
The Marxist concept of constitutionalism is based on the principles of a particular ideology of Marxism-Leninism
according to which the state is viewed as a class institution whose raison is to act as an instrument of exploitation and
oppression by one class over another. What the constitution of the state but the policy of communist party is supreme.
State and thus constitutionalism is seen to have class character. It incorporates rights.
Marx on Property
Marxism regards private property as the chief enemy of the society. Private Property has been the source of all evils
— inequalities, exploitation and poverty of the masses. It is the hall-mark of capitalism. State and religion uphold
private property and that is why these are also evil institutions.
Private property has to be abolished for securing the end of all the evils of society. It has to be replaced by a system
of public ownership in which all own everything in common. Communism permits personal property i.e. ownership
of articles of daily use only.

Marxism and Religion

Marxism is opposed to religion. Religion is also an evil because it is used by the rich for justifying their ‘property’
and evil deeds. It is used by the rich for checking the growth of the idea of revolution among the poor. Religion
preaches ‘satisfaction with the lot’ and calls upon the people to accept their existence as the will of God. Religion,
according to Marxism, is the opium of the masses. It justifies exploitation and property in the name of God’s will.
There is to be no place for religion in the communist society.
  Various economists have argued that a socialist state would by its very nature erode the rights
of its citizens. The U.S. neoclassical economist Milton Friedman argued that under socialism
the absence of a free market economy would inevitably lead to an authoritarian political
regime.
Criticism
 Friedrich Hayek, also believed that capitalism is a precondition for freedom to flourish in a
nation state. Democratic socialists and social democrats reject the idea that socialism can be
accomplished only through class conflict and a proletarian revolution.

 Anarchists have also argued that centralized communism will inevitably lead to coercion and
state domination. Mikhail Bakunin argued that the new-found power of the proletariats would
fundamentally change their view of society and thus lead them to "look down at the plain
working masses".

 The labor theory of value is one of the most commonly criticized core tenets of Marxism.
British economist Alfred Marshall attacked Marx, saying: "It is not true that the spinning of
yarn in a factory is the product of the labour of the operatives. It is the product of their labour,
together with that of the employer and subordinate managers, and of the capital employed".
Marshall points to the capitalist as sacrificing the money he could be using now for
investment in business, which ultimately produces work. Through the law of supply and
demand, Marshall attacked Marxian theory of value. According to Marshall, price or value is
determined not just by supply, but by the demand of the consumer. Labour does contribute to
cost, but so do the wants and needs of consumers.

Political Realism
Theory
The proponents of this theory are interested
in issues of state power, pursuit of national
interest, and the conflict between the
States. Globalization has been explained as
a strategy in the contest for power between
the states in contemporary world politics.
The political realists believe that the states are competing with each
other so as to win the power. Hence they are of the view that when
any attempt is made by one state to achieve world dominance then
this should be collectively countered by other states so that there is
balance of power.
Currently USA (Hegemon state) maintains and defines international
rules and legal institutions that both advance its own interests and at
the same time contains conflicts between other states.
Thus this theory highlights the issues of power struggles and role of
states in generating global consensus.
However the criticism by certain states put forth the view that states
are not equal in globalization, some being dominant and other sub-
ordinate in various respects. Others say that everything in
globalization does not come down to merely supremacy and exercise
of power since countries have cultural, economic, ecological and
other dimensions associated to it.
 The Feminist theory aims to understand the nature of gender
inequality, role of women in society, discrimination, sexual
Feminist Theory objectification of women, oppression, patriarchy and stereotyping
women.
Toril Moi believes that ‘One is not born, but rather becomes a
woman’.

Feminist theorists emerged in late 17th

century through publications such as ‘A
Vindication of the Rights of Woman’ by
Mary Wollstonecraft, ‘Ain’t I a Woman’
by Sojourner Truth and many more.
These books primarily focused on the
limited rights that women have due to
men’s and society’s flawed perception
about women.
In 1949 Simone de Beauvoir wrote a book
‘The Second Sex’ whereby she strongly
questioned the position of women.
Betty Friedan, explaining the concept of Feminism states that ‘For women, it is not a question of asserting
themselves as women, but of becoming full-scale human beings’.

Feminism is a range of social and political movements, ideologies that share a common goal- to help women achieve
the respect as human being and secure her dignity in all aspects. To achieve this goal various campaigns have been
conducted for women’s rights including right to vote, hold public office, work and earn minimum fair wages, equal
pay, rights within marriage, maternity leave, child bearing rights, property rights, etc.

These movements have secured the dignity of women to a larger extent in today’s world. The world countries have
come together to achieve the goal of gender equality.

 Position in USA
In 1966, the National organization for Women started to seek women’s equality through Equal Rights Amendment.
Although this Amendment did not pass, the states enacted their own laws in lieu of this.

In the case of Roe v. Wade, reproductive rights of women were enunciated whereby woman’s right of whether to
choose to carry a pregnancy or terminate it, allowing reliable birth control and family planning systems were given
prime importance.
 Position in India
Women were given political representation rights by way of 73 rd and 74th Constitutional Amendment Act.

Sexual Harassment of Women at Workplace (Protection, Prevention, Redressal) Act, 2013 has been enacted by
adopting the International Convention on Elimination of All Forms of Discrimination Against Women and by
incorporating the guidelines pronounced in Vishakha v. State of Rajasthan

Actresses from Bollywood also asserted the fact that despite of their great acting skills they are not paid equally as that
of their male counterparts.

“ME TOO” movement helped society raise voice against the sexual abuse and torture suffered by women.

Criticism

Male participation in feminism is encouraged by feminists as is seen as an important strategy for achieving full societal
commitment to gender equality.
Critics argue that feminism promotes elevation of women’s interests above men’s which they foresee as a threat to the
basic structure of the society.
Some critics say that the goals achieved by feminism and humanism largely overlap and therefore rather than
categorizing it as feminism which becomes gender sensitive it becomes desirable to cover this under broad arena of
Humanism.

GLOBALIZATION OF
LAW & DEMOCRACY
On the global frontier the arena of
Globalization of law and Democracy is
combinely termed as
‘DEMOCRATIZATION’.
This globalization of democracy has
helped several countries to rise above all
their existing social, political
Economic, cultural lacunas to a large
extent.
However it is correct to say that global democrcy requires more than
being a democratic state. It cannot control its jurisdiction’s
involvement with global flows. Global democracies are also not
adequately equipped with tools and techniques to measure territorial
connectivity and globalization.
The ambivalence of globalization is also reflected in the process of
Democratization in Indonesia. The New Era Government which
started in 1967 the concept of REPELITA (5 years Development
Plan) directly or indirectly is the impact of globalization of economic
development at that time.
A number of economic reforms, spirit of transparency in government,
anti-corruption, good governance which developed since 1997 in
countries like USA, India, Germany, Russia, Switzerland, France
have also boosted the globalization of constitutional law.
The increased technological support in democratic countries referred
to as ‘TECHNOCRACY’ which has helped the countries come closer
and provided new platform for globalization is also very crucial in
this regard.
 CONCLUSION

Globalization of law has found strong ground in the Constitutional laws of different countries.
Not only the theories associated with globalization of law display the different ideologies but
they also pave a pathway towards progress of the world countries by upholding civic rights of
human beings, opening economic scopes, abolishing discriminatory practices, prioritizing
supremacy of law, etc. thereby giving democratic constitutional recognition to a country on the
global frontier.

Globalization of Law is definitely a successful step towards enunciating the ideal

principles of modern constitutionalism in the constitutional law !
Thankyou!
Any Questions ?

@Pooja_Naik_Gaonkar