Lael K. Weis

In The Principles of Constitutionalism, Nicholas Barber provides a sophisticated yet highly readable introduction to fundamental constitutional principles. At the same time, Barber seeks to reorient constitutional theory scholarship away from a mistaken ‘negative’ understanding of constitutionalism towards a ‘positive’ understanding. This essay examines that argument. We suggest that the idea of ‘positive constitutionalism’ has a weaker and a stronger sense. In its weak form, the argument calls for greater attention to what constitutions enable as well as what they restrict, and thus serves as a welcome reminder of the full potential of constitutional principles. However, it cannot be regarded as the correction of a widespread mistake. In its strong form, the argument calls for greater recognition that the state’s essential function lies in advancing the ‘well-being’ of its members. Although this amounts to a significant reorientation, it weakens the theory’s claim to universalism. These tensions indicate limitations to efforts to construct general theories of constitutionalism.

Rights of nature (RoN) appear to provide a promising alternative to anthropocentric environmental rights. But do they meet the demands of transformative green constitutionalist projects? This article addresses that question by examining the juridical dimensions of RoN. We draw on empirical studies of RoN laws to identify and examine the challenges of redeploying ‘rights’ and ‘legal personality’—concepts associated with liberal normative frameworks—in the service of green normative theory and its fundamental concern for ecological well-being. We reject the dominant rights-based paradigm, which locates the green potential of RoN laws in constituting nature as a rights-bearing legal subject, and we propose an alternative: the governance paradigm. Our alternative locates the green potential of RoN laws in reconfiguring authority relations and supports ecocentric legal frameworks instead of RoN: emphasising ecocentric values and duties instead of rights, and ecological community membership instead of legal personhood.

This paper offers a critical appraisal of the growing body of philosophical work on questions of justice in the exploitation of natural resources. It argues that failure to treat property as a distinct set of considerations from those of distributive justice has led to an impoverished philosophical analysis. Moreover, it demonstrates how a property-based approach contributes to a more complete view of the interests at stake in resource exploitation by drawing attention to aspects of human relationships with the physical environment that cannot be captured through the allocation of wealth, such as environmental and cultural integrity. The reason that philosophers have not, by and large, appreciated this contribution rests on mistaken views about the function of property rules that could be rectified through legal understanding. In pursuing this line of argument, the paper considers a recent proposal that seems promising on this front: Leif Wenar’s analysis of the resource curse. Wenar’s proposal is unique in suggesting that questions of resource justice be analysed and resolved through settled principles of property law, rather than through a theory of distributive justice. However, he makes several key tactical errors. Examining where the proposal goes wrong and why provides important insights into the use of legal concepts to analyse intractable questions of justice in political philosophy, and into the place of property in particular—methodological issues that have not received adequate attention, despite the increasingly interdisciplinary nature of scholarship in this area.

This review essay examines the contribution of Legislated Rights (Webber et al, Cambridge 2018) to a central issue in constitutional theory: namely, how the institutional division of labour between the legislature and the judiciary with respect to the task of giving effect to constitutional rights is best understood and conceived. In doing so, the essay situates the work within contemporary scholarship and adopts a broadly comparative lens — a perspective that is mindful of key developments in constitutional law and theory over the past several decades. Ultimately, it is suggested that a critical weakness of the capacity of Legislated Rights to contribute to contemporary debates about judicial review is its lack of engagement with these developments. As a result, the work’s intervention largely misses its mark. It speaks to an outdated view that does not reflect contemporary constitutional practice or scholarship.