[Editor’s Note: In this installment of I•CONnect’s Book Review Series, we feature a review of N.W. Barber, The Principles of Constitutionalism (Oxford University Press, 2018).
–Francisco J. Urbina and Clemente Recabarren, Faculty of Law, Pontificia Universidad Católica de Chile
In his book The Principles of Constitutionalism, N.W. Barber offers an account of constitutionalism structured around six principles, each addressed in a separate chapter: sovereignty (chapter 2), the separation of powers (chapter 3), the rule of law (chapter 4), civil society (chapter 5), democracy (chapter 6) and subsidiarity (chapter 7). Barber presents these principles of constitutionalism from the vantage point of an understanding of constitutionalism. Constitutionalism can be understood in negative or positive terms. For negative constitutionalism, “constitutionalism is equated with the demand for limited government.” (p. 2). Positive constitutionalism is concerned with the successful functioning of the state. It is “focused on creating a strong state able to work for the good of its people” (p. 19). On Barber’s account, constitutionalism can be broken down into distinct principles, and these principles can be related to a certain account of the state. Constitutionalism should be understood in connection to the objective of the state. The purpose of the principles of constitutionalism is to ensure that the state is able to achieve its end, namely, “the advancement of the people’s well-being” (p. 18).
Barber is not the first to propose a positive model of constitutionalism, as he acknowledges. Yet his account of “positive constitutionalism” is distinctive in being the product of an underlying methodology that has at its centre a grasp of the purpose of the state, and, consequently, of the principles that serve this purpose. It is from this vantage point that the book explores the different principles of constitutionalism. It thereby studies them as conditions for the well-functioning of the state. The principles of constitutionalism thus appear primarily as aspects of a good constitution—as allowing the state to carry out its purpose successfully—rather than as remedies or safeguards against state wrongs. Though not fully developed in this book, Barber is consistent in this methodology, which echoes the Aristotelian insights that Barber articulates in more detail —following in substance works of Charles Taylor and John Finnis—in the first chapter of his previous book, The Constitutional State, as well as other recent work in constitutional theory. The approach yields an account of the principles in which they cohere in their service to the common good, and, in this way, is able to illuminate the ordinary, normal, operations of the state, rather than only the exceptional and pathological.
On this account, sovereignty appears as an attribute of the state, “taken as a whole” (p. 24), that allows it, among other things, to have “the final say about the creation and jurisdiction of public bodies” (p. 33). The separation of powers is presented as grounded in the need for efficiency of state action (p. 56), which is used to account for the specific characteristics of the three branches of government and explains the book’s emphasis on comity between state institutions, where friction between state organs is presented as a more exceptional feature intended to prevent error and divide constitutional labor (p. 72). The rule of law is conceived as a principle requiring that “law make the difference it purports to make” (p. 85), which even in so called formal versions—such as Dicey’s and Raz’s—demands robust state action in order to secure the conditions that make a legal order capable of “guiding power successfully within society” (p. 117). In the chapter on civil society, Barber addresses the “apparent tension” between the public and the private realms (p. 122). A central aspect of this reconciliation is obtained through “invisible hand systems” (p. 133), on which there is an appendix at the end of the book. The chapter on democracy is concerned with the “mediating roles of, first, legislatures, and, secondly, political parties” (p. 148), and has at its core the virtues of representation considered as a form of trusteeship (p. 160). Finally, the principle of subsidiarity is proposed as a guide to answer the boundary question in the creation and design of democratic units (p. 187).
The book offers a normative study of institutions, of the kind called for by Jeremy Waldron. There are valuable studies in this vein, providing insightful theoretical analyses of a single principle or of a single state power, or of the interaction between branches of government. Barber’s book is distinct for its breadth. It not only provides a clear, rigorous and original perspective of each of the principles, but it also offers a general normative theory of constitutionalism and its defining principles—an understanding of the general structure and aspirations of a well-functioning liberal constitutional order.
One question that arises from such an account of constitutionalism concerns the role of negative constitutionalism in Barber’s account. Whatever the merits of positive constitutionalism, restraining power and limiting abuses is also an important part of constitutionalism, and this idea also illuminates our institutions and practices. This does not need to be because of the impoverished Weber-inspired view of the state (centred on the legitimate use of force) which Barber associates to negative constitutionalism (p. 3-4), but because even on a richer conception, the state retains an enormous amount of power which can be, and historically has been, abused. Barber opens the book suggesting that positive and negative constitutionalism are complementary, yet later on negative constitutionalism is seen more as a distortion and its contribution is muted.
An example is provided by the discussion of the principle of separation of powers, which rejects accounts of the principle “that identify liberty as the guiding purpose of the principle” (p. 51). Such an account, as it focuses on the possibility of abuse of state power, is an instance of negative constitutionalism. Barber, consistent with the general approach of the book, provides his own account, one based on “efficiency”. On this account the separation of powers serves the state by furthering its capacity to act for the well-being of the people. The three branches of government correspond to “different aspects of the common good” (p. 57), which, to be properly addressed, need distinct institutional competences, personnel, functions and procedures.
This account succeeds in explaining the distinct configuration of each branch of government, yet says little about a key feature of the standard model of separation of powers, which is the political independence between the three branches. Efficiency may warrant “the requirement that the state possess the distinct capacities identified by the separation of powers” (p. 77), but it is not clear how we move from there to the relative independence that each branch of government is supposed to have from the rest. An approach centred on efficiency would also struggle, it seems to us, to explain the sense of urgency and peril with which crass violations of the principle are often met. Protest against moves by strong executive leaders to effectively control the judiciary or congress is motivated and justified more by a concern for authoritarianism and tyranny than by a concern for inefficiency; and such worries about authoritarianism are warranted even when the influence exerted does not alter the distinct structure and composition of the judiciary or of the legislature. Such phenomena of institutional capture are ill explained as instances of one power correcting with excessive zeal the alleged errors of another or of failing completely to “appreciate the force of the considerations relied upon by the other body” (p. 81). The possibility of tyranny is also part of the story, and this part is most naturally told in terms of negative constitutionalism. Nothing in this denies the importance of the positive approach of the book. Furthermore, nothing in this denies the value of the approach of the book for the very purposes of identifying pathologies. Much constitutional thought is focused on the risk of abuse of power, yet this is only one of many pathologies in a state. An account of the constitutional structures needed for the state to carry out its fundamental aim entails an account of pathologies as well—of the failure of these structures. Inadequate representation, unequal application of the laws or access to legal protection, insufficient comity between state organs, all these and other pathologies can be serious and, if present to a sufficient degree, threaten the very subsistence of the constitutional order, as the recent crisis in Chile demonstrates. The upshot of Barber’s study is not only a set of accounts on traditional topics of constitutional thought, but also a distinct and fruitful way of thinking about state institutions.
Suggested Citation: Francisco J. Urbina and Clemente Recabarren, Review of N.W. Barber, The Principles of Constitutionalism, Int’l J. Const. L. Blog, Apr. 21, 2020, at: http://www.iconnectblog.com/2020/04/book-review:-urbina-and-recabarren-on-barber’s-“the-principles-of-constitutionalism”
 See, for example, Jeremy Waldron, Political Political Theory: Essays on Institutions (Harvard University Press 2016) ch 2. (“Constitutionalism: A Skeptical View”).
 See Richard Ekins, The Nature of Legislative Intent (OUP 2012), and Grégoire Webber, Paul Yowell, et. al. Legislated Rights: Securing Human Rights Through Legislation (CUP 2019).
 See Waldron (n 1) pp. ix and 5-6.
 See, e.g., Tom Bingham, The Rule of Law (Allen Lane 2010); Eoin Carolan, The New Separation of Powers: A Theory for the Modern State (OUP 2009).
 See, e.g., Ekins (n 2).
 See, e.g., Paul Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review (Hart 2018) and Conrado Hubner Mendes Constitutional Courts and Deliberative Democracy (OUP 2015).
 “Those who see constitutionalism entirely in terms of constraints on state power miss an important aspect of the doctrine”; constitutionalism “also requires the creation of an effective and competent set of state institutions”; “state institutions may need to be limited, but they also need to be effective” (p. 1). Emphasis added.
 See in this respect the distinction between positive and negative dimensions of the separation of powers in Aileen Kavanagh’s illuminating “The Constitutional Separation of Powers” in David Dyzenhaus and Malcom Thorburn (eds) Philosophical Foundations of Constitutional Law (OUP 2016) 234.