Positive and Negative Constitutionalism and the Limits of Universalism: A Review Essay†

Adrienne Stone and Lael K Weis

Oxford Journal of Legal Studies, 2021, vol. 41, issue 4, 1249-1271

Abstract: —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 amounts 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: principles of constitutionalism; NW Barber; constitutional law; constitutional theory; positive constitutionalism; negative constitutionalism (search for similar items in EconPapers)
Date: 2021
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