The chapter explains the context of writing the Grundgesetz (the German Constitution). It introduces Article 15 which allows to ‘socialise’ land (and housing) and turn it into democratically managed commons. It also shows how the notion of ‘misuse of economic power’, an important context in which Article 15 was written into the Grundgesetz, gains a new meaning today.

This chapter explores the terms of letters patent for internal colonial government. It observes that every patent to a private colonizer prescribed a balanced colonial constitution: Some type of independent legislature in the colony, separate from the colonial executive, was to consult on laws and taxes. The chapter presents a strategic model to explain why this served the crown’s interest: An independent colonial legislature could restrain excessive extraction from colonists by colonial executives, which the crown itself – given the distance and its limited capacity – could not do.

This chapter takes stock of institutional configurations in the New World colonies at the time of the American Revolution. It observes that the same bundle of institutions that made individual colonies autonomous relative to the crown also made them autonomous relative to each other. In turn, this mutual autonomy presented major constraints when American state elites bargained over a national constitution. These bargaining constraints, as well as the institutional models of imperial government, resulted in some of the core institutions of the American state that structure so much policy making today: Federalism, checks and balances with a powerful legislature, judicial review, and even specific executive bureaucracies. The chapter concludes with a summary of the book’s argument.

As English state capacity grew and the crown faced growing financial constraints at home, colonies became tempting targets. This chapter explores the crown’s attempts to unwind the institutions of contractual imperialism and assert unilateral, direct control over colonies. However, when the crown made these attempts, colonial institutions had taken deep root over decades. The chapter explains why the crown was unable to force its vision of government on the colonies autocratically, and instead pivoted to a negotiated model of governance: Regulatory imperialism.

This chapter reviews the Framers basic design principles, including separation of powers, federalism, and a frank recognition that all governments are and must be coercive.  It then presents a simple baseline for describing voter (un-)happiness with whatever policies the government adopts. The chapter ends with a detailed roadmap of succeeding chapters.

This chapter begins by arguing that rule of law exists in the probabilistic sense that dispassionate judges often reach similar legal conclusions for reasons that appear to be universal across humans. Well-designed legal systems amplify these probabilities so that majority opinion quickly hardens into clear rules. Still, the question remains why judges should elevate rule of law above their own personal preferences. The answer seems to be that the legal communities they serve value and reward predictable outcomes. Still, the strength of this incentive varies from one era to the next, and is almost always weaker in highly polarized eras. Politicians threats to pack or otherwise hamstring the Court can compromise its rulings. Despite this, the Court remains an indispensable check on Congress, the Executive Branch and, through the antitrust laws, private power.

Antitrust may contribute to reduce the politico-economic power of certain dominant firms in the digital era. The perspective must however be broadened beyond antitrust, at least de lege lata, as the time may have come to elaborate upon a new scheme of separation of powers. Separation of powers is generally approached from a state-centered perspective, but a power-centered perspective more easily allows for a multidimensional approach to this principle.

Firms are not organized in a monolithic way; their organizations include checks and balances imposed by various sources. Separation of powers may be used, by analogy, in antitrust matters, especially to define organizational remedies or commitments. The search for an analogy between separation of powers and antitrust starts intuitively with the power of an agency or court to break up or unbundle a firm and naturally follows with merger control. A more promising avenue for analogy, though, resides in the fact that firms sometimes possess, de facto, regulatory powers in an industry, raising concerns inter alia on their organization. The reflection on organizational remedies or commitments is premised on the need for additional checks and balances within or on dominant firms whose platforms have a significant impact on society or democracy. It may ultimately lead to the creation of platform assemblies or parliaments. Finally, antitrust may also be raised as an argument or a defense to avoid or reduce sanctions and to get a merger approved.

This chapter explains the logic behind the choice of institutions that the book highlights. A liberal order is impossible without the capacity to form organizations able to act on behalf of private constituencies. Apart from providing shared goods, private organizations restrain entities capable of repression, including the state. Hence, a section of the book is devoted to exploring the political effects of Islamic and modern waqfs. Whereas the former played key roles in keeping civil society anemic, the latter is now invigorating civic life. Religious repression has been ubiquitous in the Middle East. In inducing preference and knowledge falsification in broad domains, it conceals doubts about policies promoted in the name of religion. In the process, it impoverishes and distorts public discourse. For these reasons alone, religious freedoms are also essential to liberal governance. Economic freedoms are pivotal because they shape political incentives and capacities. Private property rights, the freedom to invest, and predictable taxation are among the determinants of private political capacities. So are characteristics of the available forms of economic organization. Institutions that limit the scale, longevity, and complexity of Middle Eastern enterprises have reduced the political reach of private economic actors.

One motivation for this volume is to question the way that academic models of the political process depict preference aggregation and public policy formation. More significantly, this analysis has implications for democratic political institutions. There is an illusion, promoted by the political elite, that democratic oversight of government can control its power and direct it toward the public interest, but the powerless cannot control the powerful, even if the powerless far outnumber the powerful. The ability of constitutional constraints to limit government power and direct it toward the interests of the masses is also questionable, because those constraints must be enforced. If public policy is designed and implemented by the political elite, ultimately the power of government can be controlled only by a system of checks and balances that enables some of the elite to control the power of others. Democratic institutions can play a role in determining who holds political power, and constitutional constraints can play a role if there are institutional mechanisms to enforce them, but without a system of checks and balances that enables some elites to control the power of others, democracy and constitutional constraints are ineffective.

After the discussion of the powers of the Security Council in the previous chapter, this chapter considers some of the limitations on these powers, real or imagined. In particular, it examines limits deriving from the Purposes and Principles of the United Nations and the norms of jus cogens. Then, it explores some checks and balances on the actions of the Council. Ultimately, our response is that states do not have the right to do this, and would be acting unlawfully if they purported to exercise such a right. But they do, of course, have the ultimate option as a matter of policy of simply disregarding binding obligations imposed by the Council, with all the consequences, political and legal, that might flow from such a course of action. That is why the Council needs to exercise self-restraint and use its undoubted powers responsibly and only where it really is necessary to do so in order to ensure prompt and effective action to maintain international peace and security. This is the most effective check on the Council’s power.

The constitutional doctrine of separation of powers seeks to divide governmental power between three arms, or branches, of government – the legislative, executive and judicial branches – with the aims of preventing arbitrary or oppressive government, and of promoting efficiency in the operation of government. Separation of powers has historically played an uncertain role in the constitution of the United Kingdom as it is argued to be incompatible with the doctrine of parliamentary sovereignty. This chapter will examine how far the UK Constitution can be said to reflect a separation between governmental institutions and their functions, and how far the values of separation of powers can be seen in our constitutional arrangements.

In this chapter, I demonstrate that the system of checks and balances, which was one of the fundamental innovations of modern constitutionalism, was also marked, from the beginning, by a strongly anti-democratic bias. This bias began -I maintain- with the pretense of balancing the “ambition” of the landowning minorities with the “ambition” of the indebted majorities. The choice was made to value political stability and social balance over democratic principles, which came at a very high cost. In this way, majority rule lost much of its meaning. Moreover, I claim that the system of checks and balances was conceived from a logic that is particularly worrying for those who defend a “conversational” or “deliberative” approach to democracy. I refer to the fact that the system was much more motivated to “avoid war” between factions than to promote dialogue between them. Thus -I claim- “constitutional dialogue” was possible, or at least not prevented by the institutional system erected, but the system certainly did not promote it and did in fact pose obstacles to it

Using an original worldwide data on 195 constitutions adopted in 118 countries from 1974 to 2015 as well as an original dataset of all constitutions in the Middle East and North Africa from 1861 to 2020, this chapter studies the impact of the process of drafting constitutions on their democratic content. It suggests that both individual-level participation and group-level inclusion improve the democratic content of constitutions by guaranteeing more rights. Particularly, this chapter builds on participatory and deliberative theories of democracy, first to conceptualize and operationalize democratic processes and democratic constitutions, and second to emphasizes the importance of constitution-making processes for democracy. Differentiating between individual-level participation and group-level inclusion as two democratic, albeit distinct, forms of democratic processes, this chapter offers robust statistical evidence that greater inclusion and participation are associated with an increased number of democratic provisions in constitutions, specifically de jure constitutional rights, indicating that broad participatory and inclusive processes can improve the democratic content of constitutions.

Chapter 2 discusses the notion of populism as approached in the political science, legal, and economic literature. It explains in detail how populism is understood in the book, what actions it is associated with, what its principal characteristics are, and what are the possible reasons behind the success of populist politicians. It analyzes the difficult relations between populism and liberal democracy and liberal markets. In particular, by studying the experiences of Hungary and Poland, the chapter provides the reader with two case studies which can be used in an analysis of how a populists’ government’s rule specifically affects liberal democracy and liberal economy. This discussion provides the reader with a concrete context within which the influence of populism on competition law systems can be studied. The chapter concludes with a finding that populism may work as a driver of illiberal change in democracy and the economy.

Chapter 3 builds on the findings of Chapter 2, i.e. that populists’ rule may work as a driver of illiberal change in democracy and the economy. It identifies two variables by means of which the scenarios concerning the impact populists’ government may have on competition law system can be determined. The first variable is related to the dismantling of checks and balances as well as the rule of law, both of which are inherent to a liberal democracy. The second variableis related to the state-centered character of an economy and economic patriotism. These two variables give rise to four possible scenarios of populists’ government’s influence on a competition law system: the deconstruction scenario, marginalization scenario, atrophy scenario, and limited impact scenario.

Chapter 1 introduces the reader to the book’s topic and the existing debates which the book addresses. It also frames the book’s scope and research questions and explains the methodology and the selection of specific countries. The meaning ofthe principal concepts is explained.

This chapter discusses China’s legal system and governance environment. In terms of its legal system, China is weak when it comes to developing a rule-based governance structure in which the laws are independently and impartially enforced. The author will review what hinders China’s legal development from cultural, economic, and political perspectives. The author’s central argument is that in the absence of a rule-based system, China has been relying on a relation-based system in which transactions and disputes are governed by private relationships. Understanding relation-based governance is key for foreign investors to protect their interests. The author addresses under what conditions the relation-based system can be efficient, and whether it will be replaced by the rule-based system in China.