Market Discipline and the Constitution

This paper argues that the constitutional identity of Europe has come to be imbued by the constant threat of violence inherent in the idea and practice of market discipline. Central to this configuration is the absence of a European transfer union that would redistribute wealth from richer to poorer states. A notable feature of the constitutional architecture of Europe, and of the EMU in particular, is that Member States enter into negotiations with markets individually rather than on the basis of a common European bond. In turn, the market is free to coerce states into fiscal discipline against the background of a constant threat of increase in interest rates. Implicit, therefore, in this architecture is the Union’s handing over to the markets the power to exert violence upon individual Member States. This paper asserts that the violence of market discipline has become an integral, structural component of the European constitution and examines the significance of this development.

Digital Markets and Structural Violence: the role of competition law

Various concerns have been raised about the impact of AI and the need to imbue ethics and legitimacy in AI design. This paper adopts a novel lens to review the problems associated with data collection and AI decision making in digital markets. It relies on Johan Galtung’s theory of structural violence, which has been very influential in a number of fields. Section II discusses the ‘structural violence’ theory and identifies those attributes that are relevant in the context of digital markets. Section III then discusses the characteristics of digital markets that may be perceived as expressions of structural violence. Section IV questions whether competition law is an efficient tool to address such problems. One suggested solution is the “responsive” remodelling of competition law enforcement, informed by Ayres and Braithwaite’s theory of responsive regulation – and the subsequent development of this theory to embrace restorative justice considerations.

Continuities of Empire in UK Public Law

The governance of the British empire was a staple of constitutional law text books of antiquity. In classic textbooks, a chapter on the ‘Laws of Public Administration’ would sit alongside a chapter on ‘India and the Self-governing Dominions.’ More recent treatment of the legacies of empire have examined the centrality of imperialism in the thought of constitutional scholars that are central to public law teaching today. However, empire rarely, if at all, enters the imagination of contemporary UK public law. The implication is that UK public law is thought to have epistemologically broken from its imperial legacies, initially oriented toward a nation-state centered constitution and then to the transnational constitution that incorporates the UK’s membership of various supranational organisations. This paper counters the ‘break’ from imperialism and begins to sketch out some of the continuities of empire in UK public law, focussing on the war powers prerogative and BOT constitutionalism.

Discussant Paper: Theories of Legal Change

The discussion paper will link the three papers together by thinking about different conceptualisations of public law and processes of legal change. It will contrast idealist approaches with readings drawn from historical materialism, as a theory that allows us to account for the heterogenous forms and varying temporalities of violence that cut across legal structures, including by tracing legal change to changing configurations of capitalism as a social order. Such insights also allow us to examine both the false contingencies and false necessities that are encoded into the law and hence the potential and possible pathways for progressive change.