The Constitutional Protection of Capitalism

by Nicol, Danny

• ISBN13: 9781841138596
• ISBN10: 1841138592
• Format: Hardcover
• Copyright: 2010-02-01
• Publisher: Hart Publishing

Summary

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 globalization would now preclude such a programme. First, 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 severely restricted. Secondly, these economic constraints have been 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 an essentially 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 liberalization, 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.

Author Biography

Danny Nicol is Professor of Public Law at the University of Westminster.

Table of Contents

Preface	p. vii
Table of Cases	p. xi
Table of Legislation	p. xv
Transnational Regimes and the Constitution	p. 1
Two Conceptions of Neoliberalism	p. 3
The Idea of a Constitution	p. 5
A Revolution from Above	p. 12
Transnational Constitutionalism as Insurance	p. 19
The Criterion of Democracy	p. 21
The British Model and Contestability	p. 24
The British Model and Relative Ideological Neutrality	p. 31
The British Model and Accountability	p. 34
Limited Democracy: The Triumph of Hayek	p. 38
Transnational Democracy: Hayek's Heirs?	p. 39
Markets as Democracy?	p. 43
British Exceptionalism? Britain, France and the Ratchet Effect	p. 44
The Ambit of the Argument	p. 46
The World Trade Organisation and the Sanctity of Private Enterprise	p. 47
Assessing the WTO	p. 48
Britain and GATT 1947	p. 51
GATT: Evolving towards Bindingness	p. 56
From GATT to WTO	p. 59
The World Trade Organization	p. 60
WTO: The Dispute Settlement Understanding	p. 62
The Terms of WTO	p. 68
GATT and Related Agreements	p. 68
GATS	p. 70
Public Procurement	p. 75
Subsidies	p. 77
Conclusion	p. 79
The European Union: A Faithful Expression of the Capitalist Ideal?	p. 82
The Original Indeterminacy of the European Project: Articel 345 TFEU	p. 85
Resolving the Indeterminacy	p. 88
EU Law as British Constitutional Law	p. 90
The Free Movement of Goods: Control of Imports	p. 94
Cassis de Dijon	p. 95
Goods, Regulation and the Corporate Role in Constitution-Building	p. 95
Standardisation: A Privatisation of Governance?	p. 99
Free Movement Rights versus Social Rights	p. 101
From Free Movement to a European Economic Policy	p. 104
Public Monopolies and Privatisation	p. 107
Article 106 TFEU	p. 107
EU Legislation	p. 111
Public Procurement	p. 115
State Aid	p. 117
Defining State Aid: Article 107(1) TFEU	p. 120
Justifying State Aid: Article 107(3) TFEU	p. 121
State Aid and the Credit Crunch	p. 124
Neoliberalism and the Open Method of Co-ordination	p. 124
Conclusion	p. 126
'The Fundamental Right of the Well-to-Do': Property as a Human Right	p. 128
Human Rights at the Service of Neoliberalism	p. 129
Property and Democracy: Four Possibilities	p. 131
Disagreements over the Right of Property Ownership, 1950-51	p. 134
Predominant Purpose of the Property Right: The Protection of Existing Entitlements	p. 136
Transforming the Property Right	p. 138
The Concept of 'Fair Balance'	p. 138
'Fair Balance' Fused with Proportionality	p. 140
Proportionality and Compensation	p. 142
The Elasticity of 'General Principles of International Law'	p. 146
Compliance: The Evolution of Effective Enforcement	p. 148
Conclusion	p. 151
Neoliberalism as the Constitution	p. 152
The Binding of Parliament	p. 155
Dismantling the Teleological State	p. 159
Bibliography	p. 165
Index	p. 183
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