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The Constitutional Protection of Capitalism

By: Danny Nicol
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Published: 29-01-2010
Format: Hardback
Edition: 1st
Extent: 220
ISBN: 9781841138596
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP : £55.00

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Loren Epson

About The Constitutional Protection of Capitalism

In 1945 a Labour government deployed Britain's national autonomy and parliamentary sovereignty to nationalise key industries and services such as coal, rail, gas and electricity, and to establish a publicly-owned National Health Service. This monograph argues that constitutional constraints stemming from economic and legal globalisation would now preclude such a programme. It contends that whilst no state has ever, or could ever, possess complete freedom of action, nonetheless the rise of the transnational corporation means that national autonomy is now siginificantly restricted. The book focuses in particular on the way in which these economic constraints have been nurtured, reinforced and legitimised by the creation on the part of world leaders of a globalised constitutional law of trade and competition. This has been brought into existence by the adoption of effective enforcement machinery, sometimes embedded within the nation states, sometimes formed at transnational level.

With Britain enmeshed in supranational economic and legal structures from which it is difficult to extricate itself, the British polity no longer enjoys the range and freedom of policymaking once open to it. Transnational legal obligations constitute not just law but in effect a de facto supreme law entrenching a predominantly neoliberal political settlement in which the freedom of the individual is identified with the freedom of the market.

The book analyses the key provisions of WTO, EU and ECHR law which provide constitutional protection for private enterprise. It dwells on the law of services liberalisation, public monopolies, state aid, public procurement and the fundamental right of property ownership, arguing that the new constitutional order compromises the traditional ideals of British democracy.

Table Of Contents

1 Transnational Regimes and the Constitution
Two Conceptions of Neoliberalism
The Idea of a Constitution
A Revolution from Above
Transnational Constitutionalism as Insurance
The Criterion of Democracy
The British Model and Contestability
The British Model and Relative Ideological Neutrality
The British Model and Accountability
Limited Democracy: The Triumph of Hayek
Transnational Democracy: Hayek's Heirs?
Markets as Democracy?
British Exceptionalism? Britain, France and the Ratchet Effect
The Ambit of the Argument
2 The World Trade Organisation and the Sanctity of Private Enterprise
Assessing the WTO
Britain and GATT 1947
GATT: Evolving towards Bindingness
From GATT to WTO
The World Trade Organization
WTO: The Dispute Settlement Understanding
The Terms of WTO
GATT and Related Agreements
Public Procurement
3 The European Union: A Faithful Expression of the Capitalist Ideal?
The Original Indeterminacy of the European Project: Article 345 TFEU
Resolving the Indeterminacy
EU Law as British Constitutional Law
The Free Movement of Goods: Control of Imports
Cassis de Dijon
Goods, Regulation and the Corporate Role in Constitution-Building
Standardisation: A Privatisation of Governance?
Free Movement Rights versus Social Rights
From Free Movement to a European Economic Policy
Public Monopolies and Privatisation
Article 106 TFEU
EU Legislation
Public Procurement
State Aid
Defining State Aid: Article 107(1) TFEU
Justifying State Aid: Article 107(3) TFEU
State Aid and the Credit Crunch
Neoliberalism and the Open Method of Co-ordination
4 'The Fundamental Right of the Well-to-Do': Property as a Human Right
Human Rights at the Service of Neoliberalism
Property and Democracy: Four Possibilities
Disagreements over the Right of Property Ownership, 1950–51
Predominant Purpose of the Property Right: The Protection of Existing Entitlements
Transforming the Property Right
The Concept of 'Fair Balance'
'Fair Balance' Fused with Proportionality
Proportionality and Compensation
The Elasticity of 'General Principles of International Law'
Compliance: The Evolution of Effective Enforcement
5 Neoliberalism as the Constitution
The Binding of Parliament
Dismantling the Teleological State


The Constitutional Protection of Capitalism is a highly welcome and well-written contribution to legal scholarhip concerning some of the more profound issues arising from membership of transnational organisations.

[Nicol's] elegant pen and the honest and outspoken writing makes the book difficult to lay down once taken up.

The Constitutional Protection of Capitalism provides a distinguished critique of modern day capitalism and makes a welcome addition to legal scholarship. This book should be of interest to all those concerned with constitutional law and transnational governance.

” –  Martin Hennig, European Law Review, Issue 36

“The book's findings are of general interest [and] we cannot but hail the book as an interesting contribution to the study of the consequences of economic integration for democracy, as well as to the growing debate about transnational democracy, to which, highlighting the national point of view, it constitutes a counterpoint.” –  Fernando Losada Fraga, Global Law Books

“We cannot but hail the book as an interesting contribution to the study of the consequences of economic integration for democracy, as well as to the growing debate about transnational democracy, to which, highlighting the national point of view, it constitutes a counterpoint.” –  Fernando Losada Fraga, The European Journal of International Law, Volume 22, No. 1

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