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.

Chapter 3 shifts to the period in which the constitutional debates following the revolution of 1688 gave way to a long period of greater political stability. The Tories were ousted with the coming of the Hanoverian dynasty in 1714, after which the Whigs settled into power under the leadership of Robert Walpole. The chapter first shows how the Whig oligarchy was opposed by a new generation of ‘commonwealthmen’, notably Trenchard and Gordon, and by a more conservative opposition led by Bolingbroke, who appropriated many ‘commonwealth’ themes. Next the chapter surveys the success of the Whigs in countering these opponents and cementing themselves in power. After their triumph over the Jacobite rebellion in 1745 the Whigs presided over an outpouring of patriotic sentiment. They were congratulated for repudiating arbitrary power, granting the people a voice in making the laws and guaranteeing their basic rights, and thereby ensuring that Britian was genuinely a free state.

Chapter 2. The removal of James II from the throne in 1688 and the settlement of the crown jointly on William and Mary gave rise to an extensive debate about the legitimacy of the new regime. Many wrote to celebrate the ending of arbitrary rule. Some commentators (notably James Tyrrell) focused on the final securing of the fundamental rights of the people in the manner promised by the ancient constitution of England. But others (notably John Locke) preferred to appeal to the natural rights of the people as the only sound basis for guaranteeing freedom under government. At the same time, however, many rejected the settlement of 1688. The Jacobites objected that William and Mary were merely usurpers, while in the course of the 1690s a group of ‘commonwealth’ writers began to argue that the crown and executive were failing to keep their promise to outlaw the use of arbitrary power. The chapter concludes by discussing the contributions of Molesworth, Trenchard and Toland to the development of ‘commonwealth’ claims about the policies that will need to be followed if the freedom of the people from subjection and dependence is to be secured.

Finally, Chapter 6 reads the main findings about trilogues in the light of the democratic principles set out in the Treaties. In particular, the chapter argues that trilogues offer an important democratic contribution because they put compromise at the very heart of the European legislative process. Compromise, through its practice of mutual concessions, is arguably the best means to approximate two constitutional requirements: equality and representation – or, better put, the aspiration to democratic equality in a system of representative institutions. Furthermore, the chapter argues that the existence and prevalence of trilogues reveal the EU’s structural closeness to those polities that belong to the model of “negotiation democracy.” This model was developed by Gerhard Lehmbruch with special reference to Germany, Austria, and Switzerland. The chapter argues that Lehmbruch’s model provides a fruitful basis for comparative research and a solid foundation for understanding the EU.

The British Constitution possesses many distinctive features: from its uncodified character and lack of entrenchment to the status as ordinary statutes rather than ‘higher’ law of those written rules that comprise it. However, all these features can be regarded as manifestations of its most distinguishing characteristic – its quality as a predominantly ‘political’ rather than a ‘legal’ constitution.1 Whereas codification, and those other features that the British Constitution notoriously lacks, comprise essential elements of a legal form of constitutionalism, their absence has traditionally been deemed necessary for the integrity of the UK’s political constitution.

This introduction is focused on two main points. First, it provides an explanation of the continued relevance of the notion of the material constitution in constitutional studies and beyond. It does so by showing the added epistemic value of the notion compared to other conceptions: the political constitutions, the living constitution, the mixed constitution. Second, it gives an overview of the contents of the Handbook by explaining its organisation and its thematic unities.

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 aims to recover a specific intellectual tradition, a tradition that I describe as ‘democratic republicanism’.I do so by focusing on four different early modern thinkers: Johan and Pieter de la Court, Baruch Spinoza and Jean-Jacques Rousseau. I show that they were all part of the broader republican tradition unearthed by Quentin Skinner. But, as this chapter shows as well, the De la Courts, Spinoza, and Rousseau differed from English republicans such as Harrington and Sidney in that they were more democratic (which is, of course, why I call them ‘democratic’ republicans). They were more democratic, first and foremost, in a very straightforward way: they were in favour of a relatively inclusive political regime that they themselves described as ‘democracy’. But I will also show that they were more democratic in a second and perhaps less obvious sense of the word, in that they were committed to majoritarianism, to the idea that freedom could only be preserved if the people – which meant, in the absence of unanimity, the majority of the people – was allowed to rule without restraint.

This chapter builds on the framework and context established in Chapter 1, which in many ways shaped the political experience of Henry St John, 1st Viscount Bolingbroke (1678–1751). It provides a revisionist interpretation by demonstrating that, rather than an anti-party writer, Bolingbroke is best understood as the promoter of a very specific party, a systematic parliamentary opposition in resistance to what he perceived to be a Court Whig faction in power. Drawing on all of Bolingbroke’s well-known works, as well as his lesser-known journalism and unpublished sources, the chapter shows how most of his writings were calculated to legitimise opposition in the shape of a specific kind of political party: the Country party.

This chapter demonstrates the importance of Paul de Rapin-Thoyras (1661–1725) for subsequent discussion of political parties in the eighteenth century. Before his famous Histoire d’Angleterre (1724–7), the Frenchman had already made a name for himself by writing a pamphlet entitled Une Dissertation sur les Whigs et les Torys (1717), which is the chief focus of this chapter, although the Histoire is also briefly surveyed and contextualised. The chapter examines Rapin’s intervention against the backdrop of his expulsion from France along with other Huguenots in 1685, the Glorious Revolution of 1688–9, and the Treaty of Utrecht of 1713. By focusing on Rapin’s Dissertation, this chapter demonstrates the centrality of religion and religious denominations in the construction of political parties. In political theory, Rapin’s Dissertation can be regarded as an intellectual milestone, as it was the first clear expression of the idea that balance between parties, as distinct from Machiavelli’s social orders, is recommendable as a way to achieve proper balance in a mixed constitution.