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Introduction: Constitutionalism
Abstract
This chapter considers the nature of constitutionalism. It begins by examining accounts of constitutionalism that present the doctrine as a constraint on state power. These understandings of constitutionalism, negative constitutionalism, rest on accounts of the state that present that institution as a threat to its people, and constitutions as sets of rules that are imposed on, and constrain, the state, mitigating this danger. This understanding of constitutionalism misses an important aspect of the doctrine and rests on a misleading account of states and constitutions. Constitutionalism requires the creation of an effective and competent set of state institutions; it has a positive dimension. In contrast to negative constitutionalism, positive constitutionalism recognizes that the state exists to benefit its people, and the constitution is that set of rules that empowers and constructs state institutions. The account of constitutionalism provided in this chapter sets the agenda for the rest of the book. It locates constitutionalism within constitutional theory, and examines the connection between constitutionalism and the principles discussed in the following chapters.
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“Unlike the traditional perspective of negative constitutionalism, positive constitutionalism, which better corresponds to the medical perspective, gives rise to positive obligations to not only respect but also actively protect, provide and fulfil individual rights as well as the common good.”
From Dark side of the principles of non-discrimination and proportionality: the case of mandatory vaccination (2025) · cites this paper as [38]
Citations
Cited by
Backer, L. C. (2009) · SSRN Electronic Journal · doi:10.2139/ssrn.1325792 · Cited by 22
The Rule of Law under Pressure
Shaffer, G., & Sandholtz, W. A. (2025) · Cambridge University Press eBooks · doi:10.1017/9781009460286.002 · Cited by 5
Horák, F., & Dienstbier, J. (2025) · Journal of Medical Ethics · doi:10.1136/jme-2023-108998 · Cited by 6
Constitutional Law, Federalism and the City as a Unique Socio-economic and Political Space
Arban, E. (2021) · European yearbook of constitutional law · doi:10.1007/978-94-6265-431-0_15 · Cited by 4
Republican Theory and the EU: Emergency Laws and Constitutional Challenges
Herlin‐Karnell, E. (2021) · Jus Cogens · doi:10.1007/s42439-021-00044-3 · Cited by 2
“89 NW Barber 2018, Ch 1.”
Background
Metadata
- Authors
- Barber, N. W.
- Corresponding author
- Barber, N. W.
- Venue
- The Principles of Constitutionalism
- Publisher
- Oxford University Press
- Published
- 2018-08-02
- OpenAlex
- W4252262085
- Cited by
- 31
- References
- 0
- Citations by year
- 2026: 3 · 2025: 5 · 2024: 4 · 2023: 5 · 2022: 8 · 2021: 3 · 2020: 1
- FWCI
- 7.48
- Type
- book chapter
- Language
- en
- Open access
- closed
- Locations
- Oxford University Press eBooks (publishedVersion)
- Topics
- Social Sciences › Political Science and International Relations › Comparative constitutional jurisprudence studies
- Social Sciences › Economics, Econometrics and Finance › Economics and Econometrics › Legal and Constitutional Studies
- Social Sciences › Political Science and International Relations › American Constitutional Law and Politics
- Keywords
- constitutionalism, state power, state institutions, constitution, constitutional theory
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