This chapter lays out the perplexing neglect of the police power in contemporary discussions of constitutional governance and public law. It explains some of the reasons for this neglect, and turns to a set of reasons why a richer understanding of modern constitutional governance requires more scrupulous attention to the police power as a tool of regulatory policymaking.

Ireland’s history within the United Kingdom is, not to put too fine a point upon it, complicated. The question of the shared constitutional history of Ireland and Great Britain is more complicated again by the uncodified nature of the constitution of the United Kingdom. This chapter explores the constitutional links between Ireland and the United Kingdom after 1800. It does so by examining both the experience of constitutionalism in Ireland, and the manner in which this experience was understood and how it influenced constitutional development in the United Kingdom.

Before the Glorious Revolution attitudes towards religion’s position in the state had already helped to define the groupings coming to be known as Tories and Whigs that emerged from pro- and anti-court positions during the 1679–1681 exclusion crisis. Both groups had, however, felt threatened by James VII and II’s circumvention of Parliament and the apparent threat to the Anglican monopoly on power represented by his attempts at religious toleration. The overthrow of the monarch in 1688 made plain the power these elites now wielded through the instrument of Parliament.

The British constitution has always been an imperial constitution. To deny this is a common, if mistaken, position in the civil war over its true nature. The institutional structure and ideological discourse of the British constitution always extended beyond the pale of England and the English people. For nearly a millennium the British imperial constitution has expanded and contracted across the globe to govern millions of disparate peoples as subjects of a common Crown. The Norman reconstitution of the English nation began by fusing the multiplicity of local laws into a single common law for English people. Over the seventeenth century the rise, demise and then compromise of the Crown against Parliament was played out in a long civil war fought across the Atlantic and fuelled by novel political arguments drawing on new colonial knowledge about Indigenous peoples. A second civil war in the following century saw most American colonists break free from the imperial constitution, which was then reconstituted to satisfy some remaining subjects and to suppress others. In the nineteenth century a third civil war of sorts erupted across the empire as Hindu and Muslim, Métis and Māori, and Black men and women from Jamaica to the Gold Coast rose up in armed resistance to British imperial governance. Each rebellion drew on a global discourse on the British imperial constitution that justified or rejected competing political visions of collective life.

Among the first historical writers to reflect on the long sixteenth century (1485–1603), Sir Francis Bacon marvelled at the dynastic fortunes of the Tudor monarchs. Henry VII had ridden from distant exile to win his throne at Bosworth Field (1485) yet his son Henry VIII was a king ‘absolute in the sovereignty’. Then came the reigns of ‘a king in minority; of a queen married to a foreigner; and lastly of a queen that hath governed without the help either of a marriage, or of any mighty man of her blood’.1 These circumstances – a bloody usurpation, the rule of a minor and then by females – seemed perilous to contemporary observers. Contested successions and vulnerable rulers had led to the Wars of the Roses (1455–1485). Even the death of the childless Elizabeth I raised fears about civil war. Consequently, James VI and I’s peaceful accession to the English throne in 1603 signalled a remarkable achievement. After the tumults of the fifteenth century the Tudors had successfully defended their dynastic claims and reconstituted royal authority.

Modern human rights instruments reflect earlier transformations of natural rights into constitutional rights. The effect of this transformation was most apparent in the intertwining of natural rights with emerging conceptions of the separation of governmental powers. For this to take place, early modern natural law theory needed to abandon its defence of absolutist forms of government and embrace ideas developed within the common law. This chapter traces the progress of this surprising marriage. It shows how the concern of common lawyers to secure freedom under law by separating governmental powers came to be justified increasingly in terms of natural law, rather than by reference to English constitutional history. This discursive shift was given political expression in the American revolution and finally adopted into Immanuel Kant’s natural law theory as a requirement of practical reason. The essentially collaborative understanding of the relationship between legislature and judiciary which emerged is still of value in the debate between modern-day natural law theorists over the role of judicial power in the protection of human rights.

This chapter examines the contested concept of constitutional identity in the comparative constitutional law literature and situates it in the specific jurisdictional context of Nepal. In particular, the analysis concentrates on the foundational function of constitutions and explores the relationship between constitutionalism, identity politics, and constitutional design. Nepal is an ideal case study for exploring the notion of constitutional identity because it sits uneasily within the traditional taxonomies used in the discipline. For instance, Nepal is the only South Asian country that was never colonised and whose legal system does not operate in English, but in the country’s national language, Nepali. This unusual level of historical continuity in the process of nation-building has complicated the construction of constitutional identity, as demonstrated by the embattled historical relationship between the Shah-centered “national monarchy” and democracy, the enduring and controversial position of Hinduism in the constitutional framework, and the patterns of legal discrimination on the basis of identity that persist in the new 2015 constitution.

This chapter examines the constitution-making processes in the history of the Turkish Republic to provide an alternative explanation for the authoritarian foundations of Turkish constitutions different from the established explanations based on the center-periphery dichotomy or military tutelage argument. Drawing on Claude Lefort’s theory of modern democracy, the chapter argues that the dominant constitution-making practice in Turkey has been the hegemonic-totalitarian logic, which causes the performative closing of the empty place of power by one actor that claims to exclusively represent the people’s will. This embodiment claim constitutes the authoritarian foundation of Turkish constitutions. These embodiment claims were made by the Republican Peopleʼs Party for the 1924 Constitution, by the military following a coup for the 1961 and 1982 Constitutions, and by the Justice and Development Party as a populist actor holding the parliamentary majority in the 2007, 2010, and 2017 amendment processes. The Constitutional Conciliation Commission ‘Anayasa Uzlaşma Komisyonu, AUK’ could have achieved a democratic departure from the path-dependent authoritarian constitution-making approach.