Corporatism refers to the tradition of constitutional theories that argue that self-organized bodies, such as universities, churches, or labour unions, are independent and important components of a constitutional order. While in the twentieth-century corporatism became associated primarily with economic actors, a central question in corporatist theory was the broader constitutional status of non-state associations and organizations that had their own political powers to govern their members and engage in quasi-legislative activity. In arguing for the independent legitimacy of such diverse corporate actors, proponents of corporatism were united in criticizing more liberal visions of constitutionalism for its abstraction and formalism. Many corporatist theorists thus advocated a sort of societal constitutionalism, where constitutional norms are embodied in diverse institutions that are more proximate to individuals than the state – ranging from major professional and economic associations to a variety of civil society groups. This chapter analyses corporatism both as a tradition in constitutional theory and as an empirical phenomenon that arose in the interwar and post-war periods. It argues that corporatist ideas can contribute to a theory of democratic constitutionalism that emphasizes the importance of organized collective power, and not just the problem of regulating state coercion or distributing formal rights.

Guarantor institutions (such as electoral commissions and anti-corruption watchdogs, which supposedly comprise the so-called ‘fourth’ or ‘integrity’ branch of the state) are increasingly of interest to constitutional scholars. In a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof). Arguing that guarantor institutions are more trustee-like than agent-like in character, this chapter defends the claim that the design of any guarantor institutions should seek to ensure that it has: (i) sufficient expertise and capacity to perform its functions effectively; (ii) sufficient independence from political, economic, or social actors with an interest in frustrating the relevant norm it is meant to guarantee; and (iii) sufficient accountability to bodies with an interest in upholding the relevant norm.

This chapter examines the constitutional role of parties and partisanship. We begin by sketching a conception of constitutionalism as a mechanism for finding an equilibrium between different social interests. Appealing as this ideal of moderation has long been for many, we highlight its limits as a basis for democracy and progressive change. A desirable constitutional model must make space for political conflict and immoderation, and as we go on to argue, partisans and the associations they form are an important foundation for this. The final section connects these observations to the contemporary political world, in particular to the state of parties today and to some of the misplaced anxieties about ‘polarisation’ they give rise to.

Populism in relation to constitutionalism is a widely discussed and critical, topic. In the literature on the phenomenon, there is a prevalence to identify populism as antithetical to constitutional democracy and as eroding the idea and fundamentals of constitutionalism. However, as this chapter will show, much depends on the definitions offered of populism and constitutionalism, and the analytical commitment to study both as historical phenomena with important contextual differences. As I will argue in this chapter, constitutionalism as such is a contested phenomenon, and populism frequently takes up different forms of critique on the predominant legal understanding of constitutionalism. Furthermore, populism is a phenomenon that manifests itself in different ways, displaying diverse guises depending on distinctive ideological position (left- or rightwing), but equally showing variety in terms of positioning regarding characteristic issues, such as sovereignty, the definition of the political community, or relations to constituent power.

The Introduction starts by exploring three varieties of constitutional theory: normative, conceptual and positive. It then offers an account of the basic concept of a constitution, noting how it differs from its various conceptions. This section also defends the analytical structure of this volume into values, modalities and institutions as part of the basic concept of a constitution. The third section turns to constitutional norms, both written and unwritten, and their role within even a codified constitution. Finally, we look at the variety of constitutionalisms as a product of the essential contestability of the values, modalities and institutions of any conception of the constitution, be that conception theorised normatively, conceptually or positively (or draw on elements of all three approaches). This diversity is exemplified by the contrasting views of the contributors to this volume.

The separation of powers is not a theory of mechanical checks and balances or counterforce. Any sufficiently complex organization will have competing interests or sub-units; most do not have a separation of powers. This chapter identifies the conceptual and normative core of the separation of powers as a particular kind of institutionalization of the rule of law. It is an attempt to guarantee a separation of general rules from applications to particular persons by keeping them apart not only in time but also in personnel and institutional space. The chapter further argues that the idea of the separation of powers as articulated by Montesquieu joined that understanding of the rule of law to bodies and estates of the mixed constitution, relying in particular on independent and high-status nobles to defend the law against the political demands of the executive monarch equipped with coercive force. The democratization of the separation of powers in the American founding stripped away that social independence, and left the separation of powers weaker than has generally been noticed. The chapter concludes with considerations of the modern executive branch, and suggests that separation of powers reasoning might need to be applied internally to it.

This chapter provides an overview of the state of the art in constitutional and political theory with regard to the topic of central banks. Central banking, I show, is a highly political domain of policy making that raises thorny and under explored normative questions. I challenge accounts of central banking as involving limited discretion and distributional choices in the pursuit of low inflation, as well as the narrow range of normative questions that such accounts raise. I then ask what to make of central bankers’ political power from a normative perspective. As I argue, some delegation of important decisions to unelected officials is almost unavoidable, often desirable and by itself not undemocratic. I conclude by explaining that we should nonetheless be reluctant to allow for extensive central bank discretion by highlighting six crucial issues that are currently not sufficiently understood: the central bank’s actual level of autonomy from governments, the effectiveness of accountability mechanisms, the effects of depoliticizing money on the broader political system, the effects of democratic insulation on the effectiveness of central banks, the specific practices of deliberation within central banks and the scope for coordination with elected government.

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian, paternalistic and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, while respecting the formalities of constitutional government. In the first part of this chapter, I focus on efforts to reframe the theory and practice of constitutional equality in light of demands for sexual and racial equality. I then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests.

This chapter focuses on the promises and drawbacks of adapting constitutionalism to institutions designed to promote regional integration in the economic sphere. It argues that while constitutional mechanisms can enhance cooperation by locking in states’ commitments, the fact that regional organizations are tasked with specific policy ends creates a significant departure from the fundamental principles that constitutionalism is traditionally prized for advancing. The chapter develops this argument primarily with reference to the European Union, while noting the limits of generalizing from that case. It argues that the EU’s supranational legal order amplifies a logic germane to any constitutional system, but which has often been overlooked by political theorists. Alongside their better-know functions of facilitating democratic self-rule and safeguarding individual freedom, constitutional systems are also expected to enable the effective exercise of public power. Insofar as regional institutions are designed to help states govern more effectively, particularly in the economic domain, they advance this neglected but essential rationale of constitutional rule. The chapter situates this argument in the context of the burgeoning literature on the non-democratic uses of constitutionalism, showing that constitutional mechanisms can be configured to advance different ends, not all of them emancipatory.

Constitution-making acts of persons and institutions are the primary objects of constitutional interpretation. The primary result of constitutional interpretation is an account of the meaning of those acts. This chapter offers an explanation of the prodigious creativity of constitutional courts that involves two elements. First, we all equivocate concerning the meaning of a constitution, treating it variously (or at the same time) as the signification of constitution-making acts, and/or as the significance of the constitution as a framework of governance. Secondly, creativity results from interpreters’ ways of resolving the tension between the rule of constitutional law (that is, adherence to a rule-governed framework of governance) and the demands of constitutional justice (that is, the array of principles of justice in governance that the constitution ought to secure). The boundaries of constitutional interpretation are put in question by the equivocation between meaning as significance and meaning as signification, and by the tension between the rule of constitutional law and the demands of constitutional justice.

This chapter attempts two tasks, conceptual and normative. First, I argue that constitutions need not include rights as a matter of logic: it is possible for a set of laws and conventions to qualify as a genuine constitution of a state or legal system, even if they do not contain any rights – or almost none. Nonetheless, secondly, I argue that rights-free constitutions miss out on something valuable: it is hard to see non-rights constitutions as intended to serve citizens qua individuals. In particular, I argue that there are strong reasons in favour of constitutional rights on both natural rights and democratic grounds. I end by explaining the way in which rights function as limits on government power: we will see that they need not be the limits that constitutionalists endorse.

Impartiality as a property of government is central to many of the major constitutional concerns of liberal democracy. This essay tersely considers the nature and implications of impartiality in three main areas: the rule of law; the distinction between the right and the good; and freedom of speech. Because of constraints of space, each of the discussions in this paper is no more than a sketch of the complex matters that are at issue in debates over impartiality.

In recent years, the history of emotions has acquired an epistemological maturity that has established its legitimacy in the historiographic field. But what is an emotion? Although "emotion" is not a medieval word, the great historian of emotions, Barbara H. Rosenwein, refuses the semantic fixity of the vocables, by slipping voluntarily on the terms and by the playing of the synonymies. Emotional expressionism is the mark of the late Middle Ages in religious life but also in the political, ecclesial, and social worlds. The social sharing of emotions fulfills the function of strengthening the collective identity. In a sense, to rewrite the history of the Great Schism from the perspective of the history of emotions is to consider the great fresco of ecclesiastical passions in their experiences, their discursivity, and their subsequent reception. Passions were often silenced a posteriori by the great official narrative of the Church. That is the gap between archives and narratives.

Situating Enlightenment theories of rights in a broader arc extending back to the Scientific Revolution, this chapter focuses on the Italian jurists and philosophers who incorporated these theories into constitutional thought. Drawing on the works of Montesquieu and Rousseau, in particular, Gaetano Filangieri sought to reformulate arguments about natural rights in terms of a legislative “science.” This science, which would be eagerly received across Europe and Spanish America, sought to incorporate rights and popular sovereignty into constitutional law. Filangieri also drew on Italian intellectual traditions, which (in the case of Antonio Genovesi) insisted on social, alongside individual, rights. Following the influential example of Cesare Beccaria, Filangieri also paid particular attention to rights in penal matters. His constitutional principles were poignantly, if briefly, embodied in the 1799 Constitution of the Neapolitan Republic, drafted by Francesco Pagano.

This chapter seeks to elucidate the confusing rhetoric about rights at the time of the American founding. Influenced by social contractarian principles and common law traditions, American elites generally thought about rights in three ways. Inalienable natural rights, such as religious conscience, were aspects of freedom that individuals could not rightfully surrender to the control of the body politic. Retained natural rights, often summarized as life, liberty, and property, were rights that individuals voluntarily retained upon entering into a political society but that were regulable by law in promotion of the public good. And fundamental positive rights, such as the right to a jury trial, were rights that individuals acquired only upon the creation of political society. By recovering these categories, the chapter attempts to show not only the malleable and multifaceted nature of eighteenth-century American rights talk but also its overall intelligibility.

Following the argument to its logical conclusion, Chapter 7 finally considers when and how the nation did come to be understood in a political sense. It traces constitutional differences between France and England through the writings of John Fortescue and sketches the rise of the nation-state in France by examining the thoughts of Jean Bodin, Michel de L’Hopital, Francois Hotman, and a number of Huguenot thinkers. The chapter challenges theories of “English exceptionalism,” indicating that France’s nation-state status, in theory and practice, arises at about the same time as England’s. In particular, it calls attention to the different forms of “nation-state” that come into being in England and France. In England, the “nation” becomes synonymous with the populus, the people, as understood broadly in classical and medieval thought, and associated with the Parliament. In France, the “nation” becomes synonymous with and subsumed under the new modern state, represented by the King and his centralized administration. The chapter thus lays the groundwork for understanding the distinct circumstances for conceptual recovery in the present, which are discussed in the Conclusion.

Chapter 8 presents German constitutionalism as an example of the rising relevance of the Common Law tradition in the German legal culture. The historical development of constitutionalism is discussed, focusing on the postwar Grundgesetz (Basic Law), which emphasizes human dignity and the rule of law as part of the objective order of values it establishes. The doctrine of Drittwirkung (horizontal effect) is discussed using a private law suretyship case (similar to the case presented in Chapter 7) to show how the constitutional order now impacts private law.