Thoughts on the Degeneration of Democracy and Regeneration of Constitutionalism

Conférence organisée par le Groupe de recherche en droit et économie politique

Cycle 2025 - 2026 : La part d'ombre du constitutionnalisme

 

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Note : Cette conférence sera présentée en anglais

Constitutional documents are often associated with “the people” and, by extension, with aspirations to emancipation, social progress, and equality. They are seen as safeguards against purported abuses of sovereign power. Yet, did constitutions historically seek to circumscribe the arbitrary powers of the king, or rather to circumvent the far-reaching economic changes entailed by a genuinely popular government (namely, an alternative distribution of wealth)?

Most often than not, constitutions have proven to be instruments of domination, giving priority to so-called ""economic"" rights (primarily, the notion of private property) over so-called ""social"" rights (labor law, in particular), although it was never set in stone that these were to fundamentally be in conflict. How then could we characterize the ambiguous relationship, the tension that exists between constitutionalism and democracy? What does it mean to be defending the ""rule of law""? Does the constitution seek to protect the sovereignty of the people, or the free functioning of the market? Are constitutions truly capable of bringing about the ideals of social progress and emancipation they proclaim?

Emeritus Professor of Public Law at the London School of Economics & Political Science Martin Loughlin advanced a vast and profound critique of constitutionalism in Against Constitutionalism (Harvard University Press, 2022). The book argues that constitutionalism is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. Nevertheless, advocating separated powers and limited government was, by the mid-twentieth century, widely regarded as an anachronism unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation: once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity. Yet, the emphasis placed by constitutionalism on rights and their judicial protection tended to undermine the democratic content of our institutional systems and to transform collective political problems into individual issues that are left in the hands of judges and courts.