The French imaginary is a Republican imaginary that is premised on political liberty. The red thread across the political thought and the various constitutions of France has been the pursuit of the ideal political regime that would best realise political liberty and the general interest. That approach stands in stark contrast with the civil-liberty-focused Anglo-American liberal tradition, according to which state power ought to be curtailed in order to maximise individual rights. Those two essentially different traditions could rather peacefully coexist in Europe at the Westphalian time of the nation-states. The clash has, however, become inevitable in a time where globalisation and the latter’s regional avatars act as vehicles of Anglo-American liberalism. This chapter introduces the French constitutional imaginary, relying on the tools provided by intellectual history and constitutional law. It contrasts it with the Anglo-American political thought and shows how the former has remained strong despite the erosion caused by the pervasiveness of the latter.

Chapter 8 focuses on Machiavelli’s mature theory of the state in the Discorsi. It begins by drawing attention to the extent to which his theory continues to be mounted as an attack upon the prevalent pattern of neo-classical political discourse in the humanist writings of his predecessors, which had defined and explicated the civitas, the populus, and the res publica as forms of civil association. Their political arguments had been predicated upon a belief in natural human sociability. As in Il Principe, so in the Discorsi, Machiavelli’s theory of the state involves him in rejecting these philosophical presuppositions entirely and in supplying a new philosophical picture of the state as a body. After identifying some new challenges which now face Machiavelli in his account of ‘the free state’, this chapter shows how Machiavelli uses Book 1, chapter 2, to furnish two novel pieces of his theory. The first consists in a conjectural history of the state; the second articulates a genealogy of virtue. That Machiavelli’s explanation of the generation of a moral vocabulary among humans is ensconced within his account of the formation of the state is of lasting significance for our understanding of the architecture of his philosophy.

Contemporary constitutional theorists typically assume that a system of constitutional adjudication inevitably stands in tension with a majoritarian understanding of democracy. Kelsen’s influential defence of constitutional review, by contrast, goes along with an affirmation of a procedural and majoritarian understanding of democracy. Did Kelsen fail to spot the supposed conflict between constitutional review and democracy? Or did he identify a solution to the counter-majoritarian difficulty? Michel Troper has vigorously argued that Kelsen’s defence of constitutional review is confused and fails to cohere with his conception of democracy. This chapter defends Kelsen’s argument for constitutional review against Troper’s charges. It argues both that Kelsen’s case for constitutional review is fundamentally sound and that it carries the potential to make an important contribution to contemporary debates on the legitimacy of judicial control of constitutionality. Kelsen’s argument for constitutional review offers a compelling case for constitutional review that focuses on the conditions of the proper functioning of electoral democracy rather than on the protection of liberal rights.

On my interpretation of Kelsen’s ‘pure’ theory of law, his basic norm must be understood as a regulative assumption, a claim about inquiry and what individuals must assume if their inquiry is into the authority of law. As such, this idea has both theoretical and practical dimensions. As a matter of theory, it requires an elaboration of authority as legitimate and attention to the way in which the relationship between those who wield authority and those subject to it can be said to be one of right rather than might. As a matter of practice, it requires attention to the way in which, in light of legal subjects’ experience of law, legal order is and should be designed with a view to vindicating its intrinsic commitment to the rule of law and its concomitant commitment to constitutionalism. However, all that cannot be had without acknowledging the drive towards substance in Kelsen’s theory, one that sacrifices its claim to be pure of ideology in the sense of political value commitments. But it preserves purity in an account in exclusively legal terms of how politics can take place in a space constructed by law, internationally as well as domestically.

This chapter discusses the effects on eighteenth-century conceptions of ‘the people’ of the experience of the revolutionary decade of the 1790s and the conservative reaction against it, paying particular attention to the writing of William Hazlitt, William Wordsworth, and their poet-activist friend John Thelwall. It discusses ideas of a convention of the people found in the popular radical circles influenced by Thomas Paine that Thelwall frequented, especially in relation to appeals to the state of exception that might allow for a revolutionary intervention in the constitution via a convention of the people. It ends by discussing the way these debates migrated into a tension between a philosophical idea of the people and an embodied politics that might coalesce around practical objects of reform that continued on far into the nineteenth century.

In crosscurrents of the shift away from an imperial world order surfaced another contentious debate over changing hierarchies within human rights: Were universal human rights primarily about socioeconomic rights (requiring states to strengthen social welfare and economic opportunity), or were they about the right of individuals to exercise their civil and political rights? In underscoring a need for histories of socioeconomic rights that account for interactions between civil, economic, political, and social rights over a long timespan, Steven L. B. Jensen questions the historical accuracy of too stark of a distinction. At the crossroads of decolonization and Cold War geopolitics, however, leaders of liberal democracies insisted that the political and civil rights of the individual were the most important in the universal package, while socialist states emphasized socioeconomic rights (the right to education, the right to work, the right to development) that could benefit individuals as part of their collective belonging, thus furthering the cause of the socialist revolution.

The One Health policy framework offers an appealing model to policy advocates disillusioned with the sustainable use narrative. Through membership of the African Union, South Africa has endorsed the One Health Approach, and the concept recently found renewed resonance in a major high-level government wildlife policy review. This work considers the One Health Framework in detail, arguing that the theoretical appeal of acknowledging the overlapping dependencies that unpin the framework is in practice entirely inadequate to arrest and reverse the destruction of the environment and the institutionalised suffering of animals. This is in part because the framework seeks to balance short-term easily quantifiable commercial benefits to humans with longer-term externalised harms to non-humans and the broader environment. This work explores further how the One Health Framework might be developed to remediate this deficiency, especially in the context of South Africa’s transformative constitutional legal framework, which requires positive action from the state to secure defined and often conflicting socio-economic and environmental outcomes.

Juristocratic reckoning is observable not only “from below.” Collective struggles that employed law animated by the idea that the state should be a vehicle of social justice have provoked a reckoning “from above.” This chapter suggests three dynamics: namely, authoritarian legalism, the dispersion of law, and the tribunalization of law. They reflect differently on the reaction by states and powerful economic actors to what the editors of this volume call “legal apotheosis” but which we would rather refer to as “organic constitutionalism” (Schwöbel 2010). Within these three pathways the chapter observes an active diminishment of the already limited possibilities of law to be mobilized for social justice. In the first modality – the incremental implementation of authoritarian legalism in India – legal measures have been systematically introduced in recent years to “legalize” a dual-law situation long in the making. In a second step, the chapter outlines the dispersion of law in relation to the borders of Europe, where the access to the laws that would nominally regulate these borders (e.g., asylum law) is thwarted by the creation of new legal zones and jurisdictional responsibilities. Third, the chapter observes the tribunalization of law with relation to the regulation of global capitalism, where seemingly egalitarian procedures increase asymmetries and “singularize” injuries. Taken together, the three cases point toward the emergence of a constitutional order that is averse to political conflict being carried out through law. The pathways described in this chapter have hegemonic tendencies; they ensure that political orders are authoritatively institutionalized through law but cannot be contested through it anymore.

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.