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On the Limits of Constitutional Liberalism: In Search of a Constitutional Reflexivity

Michael W. Dowdle and Michael A. Wilkinson, eds., Constitutionalism Beyond Liberalism, Cambridge University Press, 2016

NUS Law Working Paper No. 2015/009

30 Pages Posted: 5 Nov 2015  

Michael W. Dowdle

National University of Singapore (NUS) - Faculty of Law

Michael A. Wilkinson

London School of Economics - Law Department

Date Written: November 3, 2015

Abstract

Analyses of comparative constitutional law are frequently framed by a particular vision of constitutionalism that we call the 'structural-liberal' vision. This vision sees the purpose of constitutional as being one of limiting state power - its ‘liberal’ component - which is done through the construction of a particular set of institutional architectures - such as judicial constitutional review, judicial protection and enforcement of fundamental rights, separation of powers, rule of law, etc. - its 'structural component.' In this paper, we argue that such analyses are incomplete. The structural-liberal vision is but one of a number of ways of conceptualizing constitutionalism. It is the product of a particular time and place, and reflects the particular concerns and experiences of that time and place. Conversely, there are other kinds of important constitutional concerns and experiences that the structural liberal-vision renders invisible. These include processes of constitutional emergence and evolution, and symbiotic relationships between constitutionalism and other aspects of the regulatory environment (such as the economic structure of the state). In order to be complete, analyses of comparative constitutional law need to be more attentive to the distinctive concerns and experiences of the subjects of their attention. This involves allowing the subject system to speak for itself within the context of the larger, human discussion of constitutionalism - an analytic methodology that we call constitutional reflexivity.

Keywords: Comparative constitutional law, Constitutional theory, Comparative public law, Constitutional reflexivity, Constitutional listening

Suggested Citation

Dowdle, Michael W. and Wilkinson, Michael A., On the Limits of Constitutional Liberalism: In Search of a Constitutional Reflexivity (November 3, 2015). Michael W. Dowdle and Michael A. Wilkinson, eds., Constitutionalism Beyond Liberalism, Cambridge University Press, 2016; NUS Law Working Paper No. 2015/009. Available at SSRN: https://ssrn.com/abstract=2686013

Michael W. Dowdle (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

Michael A. Wilkinson

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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