The introduction explains the book’s argument that individuals impacted by the repercussions of interstate disputes dealt with by the Court should and can be further integrated into its procedure and considered in its legal reasoning. Through the lens of social idealism, it explains how the Court’s effectiveness and legitimacy may be compromised due to its reluctant approach towards individuals. It also clarifies the method, methodology, scope, and structure of the book.

A pragmatic approach to international human rights law involves discussing its premises, principles like human dignity, liberty, equality, and solidarity, and structural principles such as democracy, pluralism, and the rule of law. The chapter also examines the conditions, matters, and actors involved in the discussion. It explores how these principles are applied in practice and the challenges faced in their implementation. The chapter emphasizes the importance of a pragmatic approach that considers the practical realities of applying human rights principles in different contexts. It also discusses the role of various actors, including states, international organizations, and civil society, in promoting and protecting human rights.

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 explores the nature of the legislature and its relationship to constitutional government, focusing in particular on the importance of legislative agency and the dynamics that frame its exercise. The chapter begins by reflecting on the objects of legislative action, arguing that authorising a legislative assembly to legislate changes who legislates but not what it is to legislate. The object of legislative deliberation and action should be the common good and securing this end requires agency. The assembly faces many challenges in exercising agency, which it is structured to overcome, partly by way of its relationship to government, a relationship that goes well beyond acts of legislation. The relationship between legislature and government shapes the character of a constitutional order and bears on the relationship between legislature and the people. The legislature’s duty is to represent the people, which makes self-government possible. The legislature should deliberate and act for the people and be accountable to the people, with legislative deliberation taking its place in a wider public conversation. The legislature’s capacity for agency informs how legislative acts should be understood to change the law and helps explain the moral importance of legislative freedom and the limits on that freedom.

Elections are central to the institutional life of actually existing democracies. Though the presence of elections is not a sufficient condition for a society to be considered democratic, it would seem to be at least a necessary condition. Given this fact, it is surprising to note that the question of elections has only been dealt with in a piecemeal way by political philosophers. A research agenda placing elections at the centre of the concern of political philosophers would have to focus on (at least) the following questions. First, are elections the best way in which to instantiate the democratic principle of the equality of all citizens, and if not, what institutional complements should accompany them? Second, which among the very many electoral systems that have been proposed by theorists of elections and attempted in actually existing democracies is best? Third, who should receive the democratic franchise, and are the exclusions that are practiced (along lines of age, residency, citizenship status, and so on) in many societies justified? And fourth, should we seriously consider other methods, such as sortition, to choose our political representatives? These, and many other questions besides, would be at the centre of a research agenda focussed on elections.

The chapter recharacterises the founding instrument of international organisations as constitutions. They function as a legal basis for the organisation, they contain provisions about the mission of the organisation, about the organs/bodies and their competences, and regulate the relationship between the organisation and those who are legally subjected to it. It traces two waves of theories which have espoused different conceptions of constitution: The first wave revolved around the “small c-constitution” in the more neutral sense. The second wave postulated constitutions “with a capital C” that enshrine the constitutionalist trinity: rule of law, human rights, and democracy. In the current constellation of a global shift of power and ideology, a third theory for constitutions of international organisations, more responsive to the global social question and to the demands of the global south, is emerging. This third theory deserves to be pulled out into the light and should be fleshed out further. It should, on the one hand, not fall back on the small-c constitution and, on the other hand, take on board new principles, notably social transnational solidarity and contestatory democracy. This intellectual contribution can provide a basis for responses to the current pushbacks against international organisations.

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.

How much of a role can human dignity play in constitutional law? It can certainly serve as a foundation of some or all of the rights that a constitution comprises, and it may also figure in the specific content of some of these rights. It may do this explicitly or implicitly – implicitly (as in the US Constitution) when dignity’s role is brought out in legal argument rather than the explicit text. Most rights that protect freedom implicate dignity, but so also do social and economic rights in the constitutions that have them. More generally human dignity may serve as a constitutional value, guiding the interpretation of other provisions: it does this, for example, explicitly in the Constitution of South Africa. It may also underpin the constitutional protection of democracy and the franchise, the rule of law, structures of accountability, the importance of citizenship, and the overall orientation of the provisions of the constitution towards respect for the ordinary people of the country that it governs.

This chapter examines the relationship between the administrative state and constitutional values and structures with reference to German and American legal and political theory. It recovers from these intertwined traditions three analytical approaches to the administrative state. The first analytical approach understands the administrative state to implement the constitution. The second understands the administrative state to generate new constitutional structures and values. The third understands the administrative state to displace the constitution with patterns and practices of rule that lie outside of the existing governance framework. These frameworks foreground normative analysis of how the administrative state ought to relate to general democratic principles and the specific constitutional rules that institutionalize them. I argue for a differentiated and developmental understanding of the relationship between democracy, constitution, and administration. The concrete administration of democratic values should allow constitutional rules to shift in light of social and historical context. The administrative state should not be strictly limited by, but rather should facilitate critical interrogation of, the constitution’s current instantiation of democratic values. The administrative state can and should hold the constitution open for the introduction and proliferation of new institutional configurations and forms of public life.

This chapter focuses not on the possible content of a Bill of Rights, such as whether it should contain social and economic rights or only civil and political rights, but on the form any such Bill needs to take to be legitimate in a manner congruent with the moral norms of equal concern and respect underlying both rights and democracy. It explores four conceptions of Bills of Rights and the different ways they relate to democratic theory and practice. I start with the view of a Bill of Rights as distinct from normal legislation and that is ultimately the responsibility of the courts to defend. I distinguish between substantive and procedural accounts, in which the first focuses on upholding the rights necessary to ensure the outputs of democratic decisions reflect democratic norms whereas the second seeks to uphold the rights required for a due democratic process. I then turn to legislated rights and the role of Parliamentary Bills of Rights. Finally, I examine the role of democratic constitutional politics as a means for justifying and legitimising such rights instruments, be they upheld by legislatures or courts.

Freedom in a choice does not just requires the absence of interference by another, whether with a preferred option or with any option; it requires the absence of domination: the absence of vulnerability to a power of interference on the part of another. Law and only law can guard citizens equally against the domination of others by identifying a common set of basic liberties and by providing intuitively adequate resourcing and protection against others to enable people to exercise those choices. But the state that imposes law will itself dominate all or some of its citizens if it is not subjected to a system of intuitively adequate, democratic control over its imposition of law. Such a system should enable people to shape the framework of government, to impose operational checks, constitutional and contestatory, on officials in government, and to appoint or oversee the appointment of such authorities.

This chapter examines Marx’s important but understudied text Critique of Hegel’s Philosophy of Right. It is shown that Marx, beginning from an enthusiasm he shares with Hegel for developing an organic theory of the state, shows Hegel’s execution of his project to be deeply flawed. Hegel’s defence of constitutional monarchy has the strange result of producing, when properly thought through, a defence of radical popular power. His attempt to use the ‘estates’ as an element in the state performing multiple many-way mediations further serves to reveal that something is amiss in the role that Hegel’s logic is being called upon to play.

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.

Throughout the twentieth century, many Europeans agreed that individual freedom had to be defended against an oppressive state. Dissidents strove to do so at the risk of imprisonment and physical violence. Political radicals and neoliberals accused even democratic states of undermining the very possibility of living freely. But for others the relationship was far more equivocal. Social democrats promised to foster working-class people’s freedom by expanding the welfare state, thus rendering them independent of capitalism and the family. Even major dictatorships, out of an interest in mobilization or acquiescence, did not present themselves solely as collectivistic projects. Whether or not the power of the state promoted or stifled freedom thus remained a matter of controversy. This chapter explores three aspects of this relationship: how inmates of concentration and work camps in Stalin’s Russia, Hitler’s Germany, and Franco’s Spain were deprived of their freedom but desperately attempted to safeguard some vestiges of it; how the Third Reich, various Eastern Bloc regimes, and the late Francoist dictatorship tried to accommodate individualistic desires and demands within their repressive structures; and, finally, how the project of social democratic liberty took shape and was challenged from both the left and the right.