The pressure of war often drives change. This was no less true of the Peloponnesian War in its effect on constitutional thinking at the end of the fifth century. While Thucydides in his analysis of the Peloponnesian War suggests that it was differences between constitutional types that lay behind the conflict (democracy versus oligarchy), it was in fact the war that clarified these differences. Thus it was that ideas around democracy became more clearly defined. However, it was thinking about oligarchy which experienced the most radical changes. Earlier in the fifth century, oligarchy had been recognised as a constitutional form but had been fairly loosely defined. By the end of the war, however, some Athenians in particular, who wanted to effect regime change, played with ideas of oligarchy in a fairly imprecise way based on number, wealth or class. Initially, this lack of clarity worked in the favour of the reformers, but eventually it led to the downfall of both the oligarchies of 411 and 404/3. Nevertheless it was the war itself which ultimately forced the conceptual opposition between oligarchy and democracy, which Thucydides was then able to write retrospectively into his analysis of the Peloponnesian War.

The final chapter demonstrates what the implications of the model developed are for one of the central figures of Late Antique society, the emperor, which plays a crucial role in current interpretations. Building on and nuancing the two current frameworks, constitutionalism and acceptance theory, the chapter argues that we can make sense of imperial power in Late Antiquity by seeing it as a virtue-based social role and tied into practices that both enabled the emperor to exercise power and constrained it. Whilst a long scholarly tradition considers that the Later Roman Empire is marked by the expansion of imperial power and an increased distance between emperor and subject, symbolized in the expansion of bureaucracy and ceremony, it is argued here that even in this period the role of the emperor was conceived of, and exercised, in interaction with other individuals and the people.

This chapter, serving as the introduction, begins by posing a series of pivotal questions to engage the reader and by providing a summary of the key points. The section on institutional divergence paints a broad, motivating picture of the divergence in institutions since the late nineteenth century between Japan on the one side, and Russia and China on the other. Both Russia and China initially emulated Japan’s efforts toward a constitutional monarchy. After outlining the nature of China’s institutional evolution, the chapter then emphasizes how the concept of institutional genes, stemming from both China's imperial legacy and the institutional genes transplanted from Soviet Russia, can be utilized to explain the rise and development of communist totalitarianism in China.

This chapter examines the role of property rights as foundational institutional genes influencing social, economic, and political systems. It argues that the distribution of property rights, whether dispersed as those in ancient Greece and Rome or centralized as those in Imperial China, deeply affects the evolution of institutions such as the rule of law, constitutionalism, and democracy. Broadly held private property rights foster the development of these institutions, which become self-replicating over time. In contrast, centralized property rights lead to monopoly power and coercive institutions that not only frequently restrict individual freedoms but can also lay the foundation for totalitarianism. The chapter seeks to clarify the concept of property rights to offer deeper insights into these institutional dynamics.

This chapter tackles MacCormick’s lifelong engagement with and reflection on nationalism, including both in terms of how he lived it politically and how he philosophised it. It situates MacCormick’s nationalism in the historiography of Scottish nationalism, resisting attempts to frame the field on the basis of either pro- or anti-independence views. MacCormick’s nationalism cannot be shoehorned in this way. Instead, the chapter explores MacCormick’s particular kind of nationalism by reference to its relation to time – e.g., in the form of gradualism – as well as how he reflected on the constitutional importance of the Union of 1707. It also considers how MacCormick conceptualised nationalism – as liberal and civic – and how this was explored both in his philosophical work as well as in his political life, e.g., in his various campaigns as SNP candidate in Westminster elections. The chapter also considers MacCormick’s contributions to the SNP’s Constitutional Policy Committee, and in particular his work on the Draft Constitution for a Future Independent Scotland. In so doing, the chapter examines how MacCormick’s nationalism and constitutionalism can be read as a matter of character.

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.