This chapter explores the Manichean narrative between political and legal constitutionalism. Examining the rival arguments of Jeremy Waldron and Ronald Dworkin, this chapter argues that we need to move beyond Manicheanism in order to capture the multi-institutional modes of rights protection in contemporary constitutional democracies. It argues that both Dworkin and Waldron succumb to the nirvana fallacy, a fallacy we need to shake off if we are to devise realistic accounts of how the key institutions act, counteract, and interact in a constitutional democracy. The chapter also puts pressure on the notorious ’counter-majoritarian difficulty’, arguing that we need counter-majoritarian checks, not only in the name of rights, but in the name of democracy as well. This chapter defends the idea of ’mediated majoritarianism’. Finally, it turns to the ongoing schism between political versus legal constitutionalism in UK public law, arguing that it suffers from similar flaws to the broader Manichean narrative. Instead of a zero-sum game between courts and legislatures, the branches of government can interact in mutually respectful and supportive ways.

The first chapter defines the counterpopular dilemma that courts face when, as an individual-rights-protecting, state-limiting institution, they are mandated to opine on the collective expression of political freedom. By enforcing rights – or, as is more typically advanced as the correct understanding of election law, restructuring democratic process to prevent abuses by those in power – politically nonaccountable courts are mandated to constrain the realization of democratic will. This creates a fundamental tension between the principle of democracy as empowered by and empowering the constituent members of the polity and judicial authority.

For years, Tom Tyler’s construal of procedural justice has been offered as a cornerstone of police reform under the logic that it will breed descriptive legitimacy, and in doing so enhance voluntary compliance with police instructions and decisions. While not rejecting this logic, the argument here dismisses it as incidental to the reform project of grounding democratic policing in a normative commitment to impartially produce practical substantive justice. In this regard, Tyler’s characterization of his version of police procedural justice as being entirely psychological leave it unable to perform this project’s crucial normative work. It also leaves its adherents open the worry that it can be used as a persuasive tool to pursue unjust ends unless one incorporates the normative commitments that Tyler explicitly eschews as a feature of his model of procedural justice. As an alternative, the argument here considers models of procedural justice taken from jurisprudence that ground the law’s normative imprimatur to impose coercive judgments. It concludes by rejecting the primacy of Tylerian procedural justice for a normative conception that tracks and closely aligns with the pursuit of substantive justice and normative legitimacy.

This chapter investigates H.L.A. Hart’s characterization of law as the union of primary and secondary rules, and its implications for international law’s status as genuine law.While Hart is frequently identified as an international legal skeptic, that conclusion rests on a misreading of his analysis of international law or, in some cases, a misreading of his analysis of law.Hart does not deny that international law is law, only that it constitutes a legal system.Properly understood, this is a claim few of his critics will deny.

This chapter considers the extent to which the (so-called) international legal order provides an example of government in accordance with the rule of law.It begins in the first two sections with a discussion of the elements that comprise that ideal, before turning in the third section to competing accounts of its value; that is, explanations of what makes government in accordance with the rule of law (morally) superior to other forms of rule. The chapter concludes with a somewhat pessimistic assessment of the degree to which the international legal order exhibits fidelity to the ideal of the rule of law.