Consociationalism is a distinct regime-type that is designed to deal with the problem of deep diversity, that is, a society divided by differences that are salient enough to consistently polarise groups over time in ways that makes governing together difficult. The defining goal of consociational regimes is social and political stability in a manner consistent with democratic values. The unifying feature of the various measures advocated to achieve that goal is the protection of salient social groups (or segments) from blunt majority rule, especially in areas of particular concern for those groups. But can consociational regimes become sufficiently stable over time? The way in which recognition tends to be prioritised in consociations above other democratic values, we argue, results in democratic deficits that provide resources to actors who would seek to challenge the regime from within. This observation serves as the basis of our claim that consociations are inherently unstable in the sense that they face the permanent risk of evolving into regimes dominated by the majority or into a spiral of progressive disintegration. Without making prescriptions, this conclusion leads us to briefly consider an alternative to consociationalism as a solution to the problem of deep diversity, namely centripetalism.

To examine prerogative is to reflect on how constitutions recast and reshape the story of their own creation. I argue that the term ‘prerogative’ specifies the rudimentary command function that underpins all constitutional order - or, more precisely, what remains of that command function once institutions of law and government have developed and stabilised around it. So understood, the central question becomes how best to understand the place of prerogative within the order of rules that the constitution provides. One answer presupposes the existence of a ‘sovereign prerogative’, that is, an ‘original’ authority inherent to government that is prior to and in some sense superior to law. I show how this model fails analytically and normatively. Another answer constructs prerogative as a set of general executive powers that are derived, enumerated and limited (‘constitutional prerogative’). This second model brings conflicting sources of normative authority into conceptual alignment. While this configuration does much to prohibit recourse to open-ended discretion - so reducing the likelihood of arbitrariness and disruption that tends to result from its exercise - it does not in itself prevent the rise of a prerogative disposition among ruling elites and their client groups.

This chapter tracks the theory and the development of the concept of the material constitution. Historically, it identifies three theoretical attempts at defining the material basis of the constitutional order: materialist political philosophy (mostly, Marx), 20th Century legal institutionalism (Schmitt and Mortati), and societal constitutionalism (Teubner). The following sections capitalise on this historical background and provide a sketch for the contemporary conception of the material constitution. The focus here is on how to make order and the material constitution is understood as a set of political, economic, and legal practices that are organised into some form of political unity with the intention of pursuing certain fundamental aims. The last section of the chapter applies this contemporary conception to constitutional issues such as constitutional identity and change.

Constitutions are, above all, a compact among equals: they represent a contract that aims to include everyone, on an equal footing. This fact is explicitly reflected in a majority of constitutions, which appear openly committed to a principle of legal equality. The problem is that, from its very origins, this egalitarian constitutional ideal encountered enormous difficulties that prevented it from becoming ae reality in practice. Almost every area covered by the equality principle - whether we refer to the rights of racial, sexual or ethnic minorities, or to the workers’ rights – was transformed into a space for legal and political dispute. This chapter explores a few of those “disputed territories”, including conflicts around social rights; gender inequality; and indigenous rights. In this way, this text pays attention to the continuous, unfinished battle between the constitutional ideal of equality and a political practice systematically oriented to defy it.

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.

Regulation is a pervasive feature of contemporary capitalism. How to ensure, in democratic states, that those to whom regulatory power and functions have has been delegated act in line with constitutional norms and values is a perennial, and much explored, question. This chapter seeks to do two things: first to set out a framework for analysing regulatory systems, and second, to use that framework to explore how constitutional actors seek to regulate, or more specifically to constitutionalise, the regulators they have created. In using a regulatory framework to analyse this element of constitutional systems, it thus proposes to ‘flip’ the usual perspective, and not just look (down) at regulatory systems from a constitutional perspective, but also look (up) at constitutions from a regulatory perspective. This flipped perspective will be used to conceptualise constitutions not from the starting point of established constitutional, legal or political theory but from a particular regulatory theory, that of decentred or polycentric regulation, and to explore the different ways in which ‘regulators are regulated’ through the interplay of the constitutional governance system with the regulatory systems it creates: through the goals and values each seeks to pursue, the techniques, organisations and individuals through which each acts, the particular sets of ideas or cognitive and epistemological frameworks those actors bring, and with a continual need both for, and in constant pursuit of, trust and legitimacy in the eyes of those on whose behalf they purport to govern.

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.

Constitutions are fundamental sources of authority in the states that adopt them. Yet, many constitutions offer little guidance about who is eligible for citizenship and what it means to have citizenship. This vagueness often gives rise to fierce contestation about the boundaries of membership in some constitutional states. In the essay that follows, we do not attempt to resolve this contestation. Instead, we distinguish citizenship from other forms of membership, offer an overview of the concept of citizenship, and specify citizenship’s relationship to constitutional theory. We discuss the theories that undergird citizenship practices, the norms that guide its administration, and the ways in which boundaries are established in order to delimit citizenship. We also highlight common boundary problems generated by democratic citizenship even when it is explicitly defined by established constitutional jurisprudence and describe how these boundary problems create complicated challenges that citizens, non-citizens, and states must navigate.

This paper argues for the normative priority of justice as compared to other values. A conception of justice must provide reasons concerning the kind of, for example, liberty or equality that members of a normative order can justifiably claim and demand of each other. Based on a distinction between two ways of thinking about justice, relational-structural accounts of justice versus outcome- and recipient-oriented approaches (such as luck egalitarianism), a conception of justice as justification is developed and located in the first paradigm. That conception considers the question of the power individuals and groups have to co-determine the basic structure of their society as the first question of justice. Developing the substantive and procedural aspects of this view, a particular view of the role and nature of a constitution is suggested. Its task is to establish a basic structure of justification that secures the status of non-dominated legal, political and social equals who ought to be the authorities within that order. In various ways, from enshrining basic rights to democratic procedures and social protections, a constitution raises thresholds of justification in contexts where subjection to forms of unjustified, arbitrary rule is a threat.

The increased interest in deliberative minipublics has generated a debate about their proper role within processes of political decision-making and of constitutional review and amendment. A key question in this debate is whether it is democratically legitimate to confer decision-making authority upon minipublics. To help answer this question, I distinguish between proposals that seek to empower minipublics to do the deliberating and deciding for the rest of the citizenry, and proposals that seek to institutionalize minipublics with the aim of empowering the entire citizenry to influence policy making, set the political agenda, and have the final say on certain political decisions. In contrast to empowered uses of minipublics that would bypass the citizenry’s political deliberation, I argue in favor of using minipublics for contestatory, vigilant, and anticipatory purposes. These uses would improve the quality of deliberation in the public sphere while strengthening citizens’ democratic control over political decisions. Regarding proposals for embedding minipublics within processes of constitutional review and amendment, I argue that they need to identify institutional ways of securing a strong feedback loop between deliberation within constitutional minipublics and deliberation in the wider public sphere throughout the process.

There have been more than 400 years of research surrounding the state, but its concept remains iridescent and varies between different legal cultures. This contribution asks why and how the concept of the state evolved in continental Europe and examines why the term did not enter the legal terminology of England and later the US. It introduces four influential concepts of the state from the constitutional theory of the 19th and 20th century and shows how these concepts have set the paths on which debate around the state still moves today. Finally, the chapter revisits the most famous critiques of the concept, to then answer the central question surrounding the “state” in constitutional theory: what use does the concept retain today.

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.

This chapter deals with a market arrangement at a moment of uncertainty and concern around its continued existence. This arrangement is what I call the impersonal price, or a system of impersonal retail prices, elsewhere also referred to as a system of fixed prices. These phrases describe markets where prices are visible, homogeneous across customers, and non-negotiable. As the chapter shows, impersonal retail prices did not just happen. They are the product of complex interactions between legal regulation, material-technical arrangements, and economic theories, as mobilized in different historical contexts to different socio-political and economic ends.

Over the years, businesses have been trying to identify ways to segment their customer base and engage in price discrimination. The objective is to provide different prices to different consumers based on a range of factors, such as age, location, income, and other demographic characteristics, which are considered capable of revealing the reserve price of buyers. With the increasing use of digital technology, this practice has become even more accurate and sophisticated, leading to the emergence of personalized pricing. This pricing approach utilizes advanced algorithms and data analytics to approximate the exact willingness to pay of each purchaser with greater precision.