Economic Models and Constitutional Amendments. Comparative Law and the Promotion of Legal Change

Abstract

The essay examines how Neoliberal economic models trigger changes in the realm of constitutional law. It suggests such changes be assessed by a double change of mood. The first change regards the perspective whereby legal studies consider how economic variables affect and change the law. Instead of merely focusing on the current financial crisis, the essay assumes that economics and constitutional law have been interacting for centuries. The second change points to legal methodological innovations. The essay argues that comparative law provides us with an adequate methodology when it comes to analysing how economics affects the legal domain. Owing to its subversive potential, comparative law methodology assists us in examining how economics, democracy and legal change interrelate. In challenging legal formalism, comparative law broadens the scope of legal research so as to consider how non-legal factors trigger changes in the field of constitutional law. The essay then considers the quantitative turn in law, and therefore focuses on the constitutionalisation of balanced budgetary rules in the aftermath of the financial crisis. The essay argues that such a constitutionalisation is a by-product of the Neoliberal economic agenda, whose aim is to impose constitutional recipients to adapt to the needs of transnational financial actors.

Summary:
1. The economic roots of constitutional change. – 2. Methodological underpinnings: resurgent formalism and constitutional change. – 3. Neoliberal economic models and nominal democracy. – 4. Facing methodological biases: Comparative law and and the defiance of the Neoliberal paradigm. – 5. The reasons for constitutional change: The quantitative turn in legal studies. – 6. The change in lawyers’ mentality and its symptoms: Constitutionalising budgetary rules. – 7. The economic turn triggered by balanced budgets: Rights, lawmaking and federalising processes. – 8. Econometric constitutions and federalism. – 9. Economics triumphant? Lawyers’ autism and the role of comparative law.