Positive and Negative Constitutionalism and the Limits of Universalism: A Review Essay
Oxford Journal of Legal Studies (Forthcoming)
20 Pages Posted: 12 Apr 2021 Last revised: 21 Jun 2021
Date Written: March 21, 2021
In The Principles of Constitutionalism, Nicholas Barber provides a sophisticated yet highly readable introduction to fundamental constitutional principles. At the same time, Barber seeks to reorient constitutional theory scholarship away from a mistaken ‘negative’ understanding of constitutionalism towards a ‘positive’ understanding. This essay examines that argument. We suggest that the idea of ‘positive constitutionalism’ has a weaker and a stronger sense. In its weak form, the argument calls for greater attention to what constitutions enable as well as what they restrict and thus serves as a welcome reminder of the full potential of constitutional principles. However, it cannot be regarded as the correction of a widespread mistake. In its strong form, the argument calls for greater recognition that the state’s essential function lies in advancing the ‘well-being’ of its members. Although this does amount to a significant reorientation, it weakens the theory’s claim to universalism. These tensions indicate limitations to efforts to construct general theories of constitutionalism.
Keywords: constitutional theory, constitutionalism, positive constitutionalism, negative constitutionalism, NW Barber
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