This volume is distinguished both by the ambition of its scope and the consistently high quality of its contributions. Bringing together 63 scholars from a wide range of jurisdictions, it offers 60 chapters that collectively map the contemporary terrain of constitutional theory. The editors, UCL professors of political science (Richard Bellamy) and law (Jeff King), masterfully orchestrate the remarkably rich set of perspectives considered under this title. The editorial design advances the handbook’s central aim: to illuminate the ways in which constitutionalism is articulated, adapted and contested across different legal systems and historical contexts. By assembling contributors who engage not only with their own constitutional orders but also with comparative and transnational developments, the handbook provides a comprehensive account of constitutional law’s interaction with global politics, historical trajectories and social structures. Whether approached as a theoretical intervention or as a contextual survey of constitutional developments, the collection constitutes an indispensable resource for scholars of public law.
The chapters in the handbook are organised into four thematic parts: values (encompassing concepts ranging from human dignity to recognition); modalities (a term used to denote complex “arrangements, processes, or principles”, including impartiality, constitutional legitimacy, proportionality and cost–benefit analysis); institutions (broadly defined); and challenges for constitutional democracy (such as inequality, populism and migration). Given the breadth and depth of the 60 chapters, a comprehensive engagement with the entire volume lies beyond the scope of this review. The discussion that follows therefore focuses on a selection of chapters that are particularly illuminating, with the expectation that other reviewers will emphasise different contributions.
Chapter 2, the opening chapter that follows the handbook’s introduction, is dedicated to human dignity. Its author, Jeremy Waldron, posits in its outset that dignity is a recognised fundamental right in itself, but also (and perhaps more importantly) an “integrating idea across the whole range of constitutional considerations – structural as well as rights-based” (p. 23). More than 150 nations recognise dignity as a distinct right, either in their written constitutions or their jurisprudence; as a system-wide value, human dignity also operates as “the basis of all rights” and as an interpretative tool that may inter alia lead to identifying new rights (e.g. p. 27). Waldron recognises that dignity may have a historical religious basis, but, since the Enlightenment, secular philosophical bases justify its centrality. The enactment of Israel’s Basic Law: Human Dignity and Liberty in 1992 serves as a fitting example of this duality. The politics of this enactment included the acceptance of the Ultra-Orthodox parties, whose support was required to successfully introduce human rights Basic Laws, of the inclusion of human dignity in this Basic Law, since God created man “in his own image” (Genesis 1:27). The refusal of these parties to include the freedom of speech, freedom of religion, equality and the right to family, among others, caused the Basic Law to be essentially flawed as a full Bill of Rights. This shortcoming was partially remedied by the Supreme Court, recognising that these classic fundamental rights could be extrapolated from dignity, at least in cases of a substantive violation of these non-enumerated rights (see e.g. HCJ 4541/94, Alice Miller v Minister of Defence [1995] IsrSC 49(4) 94 (gender equality); HCJ 10907/04, Solodokh v City of Rechovot [2010] IsrSC 64(1) 331 (freedom of religion); HCJ 5329/11, Avneri v the Knesset (15 April 2015); HCJ 7052/03, Adala v Minister of the Interior (14 May 2006 (all of the above, plus the right to family)). Law Professor Aharon Barak, a Supreme Court Justice and its president between 1995 and 2006, mentioned in Waldron’s chapter, was influential in adopting this expansion, both as a scholar and as a Justice.
Another theme explored in Waldron’s chapter – one that resonates elsewhere in the handbook – is the question of whether dignity is conceptually redundant. Waldron asks whether other rights, such as equality, liberty or autonomy, could adequately perform the conceptual work typically attributed to dignity. Alongside the dimension of degradation, which he identifies as less addressed by these other concepts, Waldron finds no basis for discarding dignity. Liberty in particular, he argues, cannot be fully realised without the autonomy component embedded within the idea of dignity (pp. 30ff.). Waldron expresses no concern about the absence of a single, universally accepted definition of dignity. Many constitutional values resist reduction to simple formulations; dignity, as a “thick” value, functions as a generative site for constitutional reasoning rather than as a term requiring strict conceptual closure. Thus, its divergent interpretations across legal systems should not be viewed as a problem. On the contrary, the multiplicity of meanings enriches comparative and transnational constitutional discourse by inviting engagement with different historical, cultural and institutional contexts. Waldron’s chapter thus not only surveys the extensive debates surrounding human dignity but also exemplifies the broader character of constitutional theory as a field that transcends national boundaries and resists simplistic definitional constraints – an insight that reflects one of the handbook’s most significant contributions.
In Chapter 23, George Letsas opens his analysis of proportionality, in a manner similar to Waldron’s, by observing that constitutional scholars “usually refer to it as a principle pertaining to the interpretation of fundamental constitutional rights”, while also noting the possibility that proportionality may function as “a self-standing moral principle” or “an umbrella doctrinal term” (p. 378). Indeed, and notably, proportionality is expressly articulated in the Treaty on European Union as one of the two foundational principles of EU law, alongside subsidiarity. Like human dignity, proportionality, then, illustrates the capacity of certain constitutional concepts to operate simultaneously as doctrinal tools and as broader normative ideas. Moving beyond the conventional teleological model that balances rights against governmental or private interests, Letsas advances a reason-based theory: rather than evaluating the legitimacy of a restriction’s purpose and weighing costs against benefits, he suggests that one may assess the reasons offered to justify the restriction and its normative adequacy. His approach could provide a more refined account of proportionality and traces of such reasoning can indeed be found in judicial practice. A linked aspect pertains to the possible use of this principle (or ground) in non-human rights cases. Proportionality analysis can be relevant whenever a claim concerns the violation of a recognised interest, even if that interest does not rise to the level of a constitutional freedom. For example, a governmental decision to resile from a promise does not, in itself, constitute an infringement of a right; yet the promisee’s interest may still be assessed through proportionality review. Several judicial decisions have developed proportionality in precisely such administrative contexts. Letsas focuses on proportionality within the domain of human rights still yields a detailed and nuanced account of the nature of the rights themselves. In sum, although the chapter successfully synthesises a wide range of literature and theoretical approaches, a commendable and demanding undertaking, it could have further addressed the question of whether, and how, proportionality should be applied in non-rights contexts.
Chapter 34 is devoted to corporatism and illustrates particularly well the editors’ commitment to incorporating a wide range of concepts, including those that have received little sustained attention in earlier collections of constitutional ideas. Corporatism is typically examined by political scientists, most often in comparative analyses of regime structures. Steven Klein – himself a political scientist – approaches corporatism as a concept with both deep historical roots and continuing contemporary relevance. At its core, corporatism denotes a regime in which organised representative bodies, usually of labour and/or capital, are formally recognised by the state and engage in bargaining with public authorities, either as proxies for broader societal interests or as autonomous nodes of power within the public sphere. Although Klein acknowledges that corporatist governance has lost much of its institutional force in an era marked by globalisation, privatisation of state-owned enterprises and regulatory expansion, he maintains that corporatism remains an important analytic category in many constitutional orders. Even if partially or temporarily eclipsed, concepts of this kind warrant continued attention, not least because their apparent obsolescence may obscure their potential for re-emergence – Keynesian economic theory being a familiar example. A further virtue of the chapter lies in its connection to broader constitutional questions, including the role of private organisations in public law and the evolving boundary between public and private authority. Klein begins by tracing the development of corporatist thought up to the late nineteenth century, a period during which the corporation served as a central organising idea in theories of the state. He identifies two principal strands within this tradition. One emphasised the plurality of non-state corporate bodies that operate in the public sphere, treating them as constitutive elements of political and social order. The other focuses on the representative function of corporations formally recognised by the state, highlighting their role as intermediaries between individuals and public authority. Turning to contemporary debates, Klein outlines three principal “pillars” of what he terms “corporatist constitutionalism”. The first concerns forms of self-regulation, understood as the delegation of regulatory authority to non-state actors. This reflects earlier corporatist understandings in which such bodies exercised public power alongside, rather than in subordination to the state. The second discourse situates corporatism within the rise of social rights, conceived as mechanisms designed to “compensate for market processes” (p. 596). The connection between this development and corporatism is not entirely transparent: Klein appears to rely on the shared framework of “economic constitutionalism”, though the precise role of non-state bodies within this framework could have been further articulated. Klein’s third pillar juxtaposes corporatism with democracy. For Klein and other theorists writing in this vein, corporate bodies operating alongside formal governmental institutions can serve as a check on abuses of state power, enhance individual autonomy and structure cooperative forms of authority that temper elitist tendencies. At the same time, he acknowledges the long-standing critique, advanced by figures such as Habermas and Schmitter, that corporatist arrangements may entrench rather than mitigate elite influence. Nonetheless, Klein ultimately suggests that the relatively low degree of formalisation characteristic of corporatist processes enriches democratic practice. While the precise contours of this claim could have been further explicated, the thrust of the argument is that informal, corporatist modes of coordination constitute an integral, if often overlooked, dimension of constitutional ordering.
Space constraints enable this review to address only one additional chapter. Thomas Poole’s contribution on the prerogative (ch. 38) reflects a theme that permeates the entire handbook. The volume’s title signals an ambition to engage with constitutional theory in its broadest sense, rather than confining itself to the theoretical traditions of jurisdictions, whose public law is grounded in the concept of constitutionalism. In keeping with this transnational orientation, Poole’s ideational–historical analysis begins with Plato’s Statesman and Gabriel Naudé’s seventeenth century writing, both far removed from the conventional association of “prerogative” with its English constitutional setting. Poole’s discussion foregrounds the recognition, across multiple systems, of executive powers that operate without statutory authorisation. This comparative angle is particularly welcome. Yet the chapter might have advanced its analytical clarity further by adopting a more general term – such as “non statutory executive powers”, in place of the historically freighted British label “prerogative”. The issue is not merely terminological. In the UK, the prerogative remains conceptually tethered to history, as reflected in Dicey’s enduring definition of powers that are “legally left in the hands of the Crown”. Even within the UK, contemporary studies recognise non-statutory executive powers that lack any historical pedigree. These are sometimes described as “third source powers”, grounded in the state’s legal personality or simply identified functionally as non-statutory (see e.g. B.V. Harris, “The ‘Third Source’ of Authority for Government Action” (1992) 108 L.Q.R. 626; Matthew Weait and Anthony Lester, “The Use of Ministerial Powers Without Parliamentary Authority: The Ram Doctrine” (2003) Public Law 415; Margit Cohn, “Medieval Chains, Invisible Inks: On Non-Statutory Powers of the Executive” (2005) 25 O.J.L.S. 97.) By contrast, the non-British scholars cited in the chapter do not employ the term “prerogative”. Indeed, “prerogative” is not employed, say, in the US, where presidential action beyond law is recognised, at least by presidents, and is semi-formally articulated in executive orders, proclamations and other such measures, that may not be authorised in legislation. In Israel, the Basic Law: The Government expressly provides for such powers without any historical justification. Comparable arrangements, formal or informal, exist elsewhere (see e.g. Margit Cohn, “Non-Statutory Powers in Three Regimes: Assessing Global Constitutionalism in a Structural-Institutional Context”, (2015) 64 I.C.L.Q. 65 (the UK, the US and Israel); Margit Cohn, “Non-Statutory Executive Powers in France: A Comparison between Two Regimes”, in Comparative Law and … 51 (Presses universitaires d’Aix-Marseille, 2015) (France’s Fourth and Fifth Republics). Applying the term “prerogative” to these diverse phenomena risks obscuring their conceptual foundations and misrepresenting the absence of historical lineage in many jurisdictions. Beyond this point, Poole’s extension of the analysis to non-UK systems is commendable. Adding to Plato’s statesman and Naudé’s ruler, his consideration of Schmitt’s holder of sovereignty, Poole shows that each illustrates in different ways the perceived necessity of empowering the state or executive to act swiftly in particular domains. The chapter thus contributes meaningfully to the handbook’s broader project of situating constitutional concepts within a wide comparative and historical frame.
The editors and contributors to this substantial volume deserve considerable praise. The handbook’s introduction makes clear the editors’ commitment to assembling a wide-ranging set of themes, each addressed with careful attention to both historical development and contemporary constitutional thought. There is little doubt that this handbook will enrich future scholarship on the nature of constitutionalism and the evolution of constitutional theory.
I thank the Yale Law School and the Max Planck Institute for Comparative International Law for hosting me during my sabbatical, during which this review was written.
