The Constitutional Protection of CapitalismIn 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. |
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Contents
1 | |
2 The World Trade Organisation and the Sanctity of Private Enterprise | 47 |
A Faithful Expression of the Capitalist Ideal? | 82 |
Property as a Human Right | 128 |
5 Neoliberalism as the Constitution | 152 |
165 | |
183 | |
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Appellate Body argued argument Article 345 Britain British constitution Búrca capitalism Cassis choice Commission Commission’s commitments compensation competition conception consensus constitutional law constitutionalisation constitutionalism contestability contrast Convention Council decisions democracy democratic dispute settlement domestic EC Treaty ECHR economic policy effect entrenchment EU law EU’s European Communities European Court European Parliament European Union expropriation Factortame favour free movement free trade freedom GATS GATT global globalisation Hayek human rights Ibid increasingly institutions international law judicial judiciary Labour Party legislation liberalisation national courts nationalisation negotiations neoliberal nonetheless normative obligations organisation panel parliamentary sovereignty politicians principle private enterprise private sector privatisation procedure property ownership property rights protection public ownership public procurement rules Single European Act social substantive tariff TFEU thereby tion transnational constitution transnational regimes Treaty whilst World Trade World Trade Organization WTO Agreements WTO law WTO Members WTO’s