The Rule of Law

The rule of law requires that law make the differences it purports to make; linking the formal demands of law and the reality of the rules that structure power within a community. The chapter begins by outlining the rule of law. There are two aspects to the principle: first, the rule of law requires that laws be expressed in a way that enable people to obey the law; secondly, the rule of law requires that the social context is such that people are led to obey these rules. The second part of the chapter examines the connection between the rule of law and the state. First, it will be contended that states need to comply—to a degree—with the rule of law in order to exist. Secondly, in societies such as ours, non-state legal orders require the existence of the state, and state legal orders, for their successful operation.

The Separation of Powers

The point of the separation of powers is examined, and it is argued that accounts of the principle that identify liberty as the guiding purpose of the principle are flawed, the products of an unattractive account of the state. A richer understanding of the state produces a richer understanding of the principle. The second and third parts of the chapter outline such an account, reflecting on the institutional framework required by the separation of powers: the divisions and connections that the principle demands. Different state institutions are well-placed to identify different aspects of the common good and, through their differing skills and instruments, well-suited to modify the policies of the state in light of these assessments. The constitution then combines these decisions into a single state action. The chapter then considers apparent exceptions to the separation of powers.

Sovereignty

This chapter presents sovereignty as a normative principle but, in so doing, will also explain its descriptive aspect. The first part of the chapter connects sovereignty to an account of the state. Sovereignty captures two groups of elements that are necessary features of this institution: on the one hand, the characteristic authority claims made by the state; and, on the other, the demand that these claims be—to some extent—effective. The second part of the chapter considers the importance of sovereignty: the moral reasons that we have for creating institutions that possess its characteristics. Third, the chapter considers whether there are some situations in which sovereignty is unattractive or, perhaps, situations in which non-state institutions are preferable locations for sovereignty. The chapter concludes by arguing that for the vast majority of people today, sovereignty is of significant moral value.

Conclusion

This chapter begins by outlining the ways in which the principles of constitutionalism interconnect, bringing together a number of points made elsewhere in this book. The interconnectedness of the principles entails that no single principle can be fully realized without the demands of the others also being satisfied. The second part of the chapter seeks to mitigate the apparent absolutism of constitutionalism by reflecting on the ways in which constitutionalism may be realized differently in different states, and has different relationships with institutions within those states. The third part of the chapter considers situations in which there are justifiable exceptions to the principles, situations in which state institutions should permit constitutionalism to remain unfilled. Having started the book by presenting constitutionalism as an ideal, this final chapter contends that there are reasons why, on occasion, deviations from this ideal should be accepted, and we should embrace, or tolerate, ‘good enough’ constitutionalism.

Subsidiarity

Subsidiarity speaks both to the constituency that votes for a legislature and, also, to the powers that the legislature should possess. It requires that the boundaries of democratic units track those who are affected by the outcome of its decisions. The chapter contrasts this account of subsidiarity with the broader Catholic version of the principle, a version that speaks to the construction of society more generally. The second part of the chapter examines the application of the principle, considering the implications of subsidiarity at three levels: the allocation of power within the state, the creation of the state, and the implications of subsidiarity at the international level. The chapter closes by considering a rival to subsidiarity: the principle of national self-determination. It will be argued that this principle is incompatible with constitutionalism, and should not be regarded as a guiding principle for the creation and structuring of states.

Introduction: Constitutionalism

This chapter considers the nature of constitutionalism. It begins by examining accounts of constitutionalism that present the doctrine as a constraint on state power. These understandings of constitutionalism, negative constitutionalism, rest on accounts of the state that present that institution as a threat to its people, and constitutions as sets of rules that are imposed on, and constrain, the state, mitigating this danger. This understanding of constitutionalism misses an important aspect of the doctrine and rests on a misleading account of states and constitutions. Constitutionalism requires the creation of an effective and competent set of state institutions; it has a positive dimension. In contrast to negative constitutionalism, positive constitutionalism recognizes that the state exists to benefit its people, and the constitution is that set of rules that empowers and constructs state institutions. The account of constitutionalism provided in this chapter sets the agenda for the rest of the book. It locates constitutionalism within constitutional theory, and examines the connection between constitutionalism and the principles discussed in the following chapters.

Democracy

This chapter begins by examining and critiquing the version of democracy that might come closest to the common understanding of democracy: direct democracy. It is argued that the problems that direct democracy presents are insurmountable; it cannot give citizens the type of control over the institutions of the state necessary to ensure good government. The chapter then discusses representative democracy, those models of democracy in which decisions are made by legislatures elected by the citizenry. The role of the legislature as a forum for determining the policy direction of the state will be considered. The final part of the chapter examines the role of political parties. Whilst political scientists have long studied—and valued—political parties, outside of this discipline parties are frequently reviled and often overlooked. It will be argued that the mediating role of political parties is essential for the functioning of democracy.

Civil Society

Civil society is the interface between the public and the private: the rules and dispositions that define the relationships between the state and other social institutions, shaping both the state and these private entities. The first part of this chapter considers the apparent tension between the public and the private. The chapter then argues that, in contrast, the state should see the private realm as a necessary and beneficial counterpart to the public. This section invokes the idea of ‘invisible hand’ systems. It is an argument from the invisible hand that allows us to reconcile the restricted concern that is characteristic of the economic and social realms with the broader concern of the state, showing these to be complementary rather than set in tension. The chapter concludes by examining the constitutional structures needed to facilitate success in the private realm.