The rule of law is a normative political ideal. This chapter presents two approaches to understanding it. The first is the legal essentialist approach, which derives an account of the rule of law from an account of the essence of legality and legal systems. The second is the limited government approach, which derives an account from a normative theory proposing a role for law in opposing and negating the arbitrary power of persons over others. The chapter contends that the latter approach is more persuasive than the former. However, and despite recent refinements, the approach has a legacy of libertarian thinking and has not acknowledged what the author of this chapter refers to as a regulatory conception of the rule of law which has a prominent social dimension. The social dimension entails a duty founded upon the rule of law ideal to legally regulate private arbitrary powers whose exercise allows some to impose coercion as well as non-consensual exploitation on others. The regulatory conception and its social dimension help us understand the appropriate relationship between the rule of law and human rights, the welfare state, and democracy.

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.

The separation of powers is not a theory of mechanical checks and balances or counterforce. Any sufficiently complex organization will have competing interests or sub-units; most do not have a separation of powers. This chapter identifies the conceptual and normative core of the separation of powers as a particular kind of institutionalization of the rule of law. It is an attempt to guarantee a separation of general rules from applications to particular persons by keeping them apart not only in time but also in personnel and institutional space. The chapter further argues that the idea of the separation of powers as articulated by Montesquieu joined that understanding of the rule of law to bodies and estates of the mixed constitution, relying in particular on independent and high-status nobles to defend the law against the political demands of the executive monarch equipped with coercive force. The democratization of the separation of powers in the American founding stripped away that social independence, and left the separation of powers weaker than has generally been noticed. The chapter concludes with considerations of the modern executive branch, and suggests that separation of powers reasoning might need to be applied internally to it.

Hobbes posed for modernity what we can think of as the puzzle – even the paradox – of sovereignty. The sovereign of a particular polity is the person or body who wields ultimate authority to make law. It follows, he claimed, that the sovereign is legally unlimited. But for Hobbes, any sovereign is legally constituted in that it must comply with what I call the ‘validity mark’ of sovereignty: Legal change must happen in accordance with the criteria of validity. In addition, there is the ‘fundamental legality mark’: To count as an act of sovereign will, a law must be consistent with the laws of nature, in more contemporary terms with the fundamental legal commitments of the legal order. Hobbes’s idea of sovereignty is thus a legal idea, which contrasts with the figure that haunts politics today, the ‘political idea of sovereignty’. I argue that in order to properly oppose the troubling figure of the political sovereign, one needs to have in place not only both marks of sovereignty, but also a political theory of their value. There is a politics to the legal idea of sovereignty.

Climate change, it is often said, is the greatest challenge of our time. As a global phenomenon with a long temporal reach, the impacts of climate change amplify challenges already faced across social, political, economic and ecological spheres. Similarly, constitutional theory is not immune from the impacts of climate change. Yet scholarly engagements between constitutional theory and climate change have thus far been targeted and disparate. This chapter represents an attempt to face up to the challenge of climate change from the perspective of constitutional theory. It takes seriously the discourse of “climate emergency” to argue that emergency is a theoretically defensible framing of the problem. Using the rule of law, rights and federalism as three examples of the challenges that climate change poses for constitutional theory, it highlights some strengths and limitations of existing literatures on these three concepts. Ultimately, it shows that the climate emergency points us to a theory of constitutionalism that builds on these strengths, responds to these limits and provides a path forward for thinking through the role of constitutional theory in a climate-disrupted world.

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.

Despite being nearly universally recognised as a virtue, judicial independence has been challenged in almost all parts of the world. Some commentators even consider it to be so open to differing interpretations as to be a useless concept, that should be unpacked to its smaller components to be studied meaningfully. We are less cynical about the idea. According to our theory, judicial independence exists where powerful actors are unable or unwilling to inappropriately interfere with the workings of the judiciary. Judicial independence is thus a relational concept and always results from the interplay between the capacity and willingness of powerful actors to inappropriately interfere with the judiciary, and the capacity and willingness of judicial actors and their allies to withstand such actions. We distinguish three levels of judicial independence: de jure institutional independence, de facto institutional independence, and decisional independence. Courts are thus independent when powerful actors do not consistently impose their preferences in disputes they have a stake in, either by capturing the courts through formal changes of laws governing the judiciary, through rigging these laws in their favour, or by skewing judicial decision-making. By contrast, a dependent judiciary is the one that is captured, rigged, or skewed.

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 examines the contours of theories and debates about the nature and function of the right to resist as a legal concept. Firstly, it identifies four main approaches to conceptualizing the nature of the right: as moral, legal, both, or other. It then considers three main conceptions of the concept’s relationship to the rule of law. Concerning its other key characteristics, the chapter considers possibilities including that it is: a fundamental ‘human right’ in the political rights cluster; an ‘unenumerated’, ‘implied’, or ‘latent’ right; an enforceable ‘claim’ right; a ‘right’ or ‘duty’ or hybrid ‘right-duty’; a primary or secondary right or both. Secondly, the chapter identifies possibilities for the legal function of the right, including as: a self-help remedy for enforcement or prevention; an exceptional immunity, justification, or temporary permission by license; a form of jus ad bellum; or a lawful exception and lex specialis rule. It concludes non-exclusively that the nature of the contemporary right to resist is a potentially enforceable human right, functioning as a lex specialis rule of exception.

Public administrations are increasingly deploying algorithmic systems to facilitate the application, execution, and enforcement of regulation, a practice that can be denoted as algorithmic regulation. While their reliance on digital technology is not new, both the scale at which they automate administrative acts and the importance of the decisions they delegate to algorithmic tools is on the rise. In this chapter, I contextualize this phenomenon and discuss the implementation of algorithmic regulation across several public sector domains. I then assess some of the ethical and legal conundrums that public administrations face when outsourcing their tasks to such systems and provide an overview of the legal framework that governs this practice, with a particular focus on the European Union. This framework encompasses not only constitutional and administrative law but also data protection law and AI-specific law. Finally, I offer some take-aways for public administrations to consider when seeking to deploy algorithmic regulation.

This concluding chapter reflects on the phenomenon of constitutional intolerance, its many faces, its entanglement in histories of toleration, and its implications for discourses on constitutionalism, illiberalism, and secularisation. It argues that the default lines have shifted from secularisation to fundamental questions about the future of constitutional democracy in Europe, considering the fundamental aspects of constitutional intolerance: the articulation of otherness vis-à-vis the political community and the sanctioning of this othering in public space. The conclusion also considers the rise of “cynical democracy” in the instrumental use of constitutional repertoires to further partisan interests, as well as the right wing tendency towards the overrepresentation of formal-procedural legalism, an attachment of legitimacy to legality, and a weakening of the capacity for normative reflection in the highest courts.

In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This framework chapter defines core concepts, analyzes the relation between national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals, given varying social conditions and contexts. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power is also exercised beyond the state in an interconnected world. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. It notes factors that could explain such decline, and why such factors appear to be transnationally linked. Part IV discusses what might be done given these shifts in rule-of-law protections. In conclusion, we note the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response.

This chapter examines how the Council of Europe sought to promote the rule of law in Russia after the collapse of the Soviet Union. Soviet president Mikhail Gorbachev’s ambition to construct a “common European home,” to be pursued in concert with European states and international organizations, was advanced by Russian president Boris Yeltsin and, at least initially, by his successor as president, Vladimir Putin. But after roughly a decade of concrete reforms, that effort foundered, reversed, and then collapsed. Russia descended again into authoritarianism and, shortly after its full-scale invasion of Ukraine, Russia was expelled from the Council of Europe. Thus, this story now has a beginning, a middle, and an end. This chapter explores that story and how the dynamics of Russia’s pursuit and rocky course of membership in the Council of Europe affected both the Russian state and the international organization that sought to admit it to membership.