Constitutionalism and Political Economy. New Trajectories and Opportunities for Socio-Legal Scholarship

The global economic crisis, which peaked in 2007-2009, has left a permanent mark not only on societies and economies, but has also redirected the attention of social scientists to the interplay between law and economics. A significant debate has ensued around the issue of inequality and the role of the state in shaping the economic sphere (couple of references in parentheses would be good here, e.g.: Pistor, 2019; Mazzucato, 2018). The simultaneous crisis of orthodox approaches in economics and the rise of heterodox approaches made it possible to conceive of inequalities not as the result of independent economic mechanisms, but as a function of the political and legal infrastructure. From this perspective, how we think about the rules of exchange and distribution matters, while all social and economic theories are inescapably normative. The consequence of this was a return to thinking within the framework of political economy – a framework that has expanded to legal studies, through the emergent and increasingly influential Law and Political Economy (LPE) paradigm.

The last few decades have also seen the institutional growth of constitutional judiciary and a process of constitutionalization of the global and European economy. Economic problems, including inequality, began to be framed as constitutional problems. This has given rise to theories of a progressive judicialization of political power, whereby constitutional considerations and arguments and judicial decisions replace democratic political will. This raises the problem of the legitimacy of such decisions and considerations. In the opposite direction, it has also resulted in an unprecedented legal mobilisation of citizens. The discourse of rights has become a tool for limiting the capacity of corporations and private actors to act. Social organisations, such as for example Milieudefensie in the Netherlands, have used litigationto challenge global corporations on their internal rules and operating logic on the basis of international environmental and human rights law. Public litigation is progressively evolving into a way of making public policy and restricting market ordering.

It is increasingly recognised that law plays a role that is not so much restrictive as constitutive of markets. Markets are understood as legal constructs, as the bargaining power of different actors is determined by the legal entitlements that were accorded to them (e.g., property rights) and which may be supported by public enforcement. Therefore, regulations or legal decisions can influence the extent of distributive inequalities and power asymmetries. Setting legal rules can therefore directly shape the economic sphere The economy, from this perspective, is generated by political decisions. The relationship between political economy and constitutionalism is complicated. On the one hand, LPE scholarship seems inherently suspicious of constitutionalism, in the sense that according to certain entitlements (e.g., property rights) constitutional status places them beyond the spectrum of political contestation. On the other hand, a normative agenda of positive constitutionalism could constitute the normative underpinning of progressive legal agendas.

Yet, the question of the normative agenda of the law and political economy paradigm remains open. What legal values should guide the design of institutions and what role should be played here by classical constitutionalist principles such as the rule of law, the separation of powers or the protection of fundamental rights? It also opens up the questions of if and how these rules can be set from the bottom up, by citizens and civil society movements.

Indicative themes of the workshop:
1.    Political Economy as a Critique of Liberal Constitutionalism
2.    The Role of Constitutional and International Courts in Creating Economic Rules
3.    The European Economic Constitution
4.    Constitutionalism and the Critique of Rights
5.    Global Constitutionalism and Political Economy
6.    Legal Mobilization against Free Markets