This chapter explores the Manichean narrative between political and legal constitutionalism. Examining the rival arguments of Jeremy Waldron and Ronald Dworkin, this chapter argues that we need to move beyond Manicheanism in order to capture the multi-institutional modes of rights protection in contemporary constitutional democracies. It argues that both Dworkin and Waldron succumb to the nirvana fallacy, a fallacy we need to shake off if we are to devise realistic accounts of how the key institutions act, counteract, and interact in a constitutional democracy. The chapter also puts pressure on the notorious ’counter-majoritarian difficulty’, arguing that we need counter-majoritarian checks, not only in the name of rights, but in the name of democracy as well. This chapter defends the idea of ’mediated majoritarianism’. Finally, it turns to the ongoing schism between political versus legal constitutionalism in UK public law, arguing that it suffers from similar flaws to the broader Manichean narrative. Instead of a zero-sum game between courts and legislatures, the branches of government can interact in mutually respectful and supportive ways.

This chapter explores the role of the Executive in the collaborative constitutional scheme, examining the modes and mechanisms of Executive engagement with rights under the UK Human Rights Act 1998. Emphasising that the role of the Executive is to initiate and drive forward new policy, this chapter puts the Executive in the driving seat of the collaborative constitution. However, it also uncovers a ’plural Executive’, highlighting the multiplicity of constitutional actors working within the Executive branch. Therefore, the chapter foregrounds the importance of an ’internal separation of powers’ within the Executive branch, highlighting the dialectical tension between differently oriented actors. Following a close analysis of Executive rights vetting under the HRA, the chapter concludes with an argument that we should imagine an Executive constitutionalism. At the very least, this chapter calls on constitutional scholars not to exclude the Executive in their pictures of constitutional government.

This chapter explores the role of the legislature in the collaborative constitutional scheme. It argues that the central role of the legislature is to scrutinise, check, and deliberate on policy proposals put forward by the Executive. The Executive proposes, whilst the legislature deliberates and disposes. Drilling down into the detail of legislative engagement with rights in the Westminster Parliament, this chapter showcases the Joint Committee on Human Rights (JCHR) as a key site for parliamentary deliberation and scrutiny on matters of rights. In this chapter, the JCHR is presented as a hybrid constitutional watchdog, which works alongside, and in collaboration with, other constitutional and accountability actors across the Westminster landscape.

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.

Liberal constitutional discourse has been dominated by a proceduralist, acontextual, universalising worldview. This Rawlsian vision of constitutionalism castigates thick, substantive, moral commitments (other than fundamental rights) in constitutions as illiberal and unwise, at best to be tolerated as minor deviations only when absolutely unavoidable. In practice, however, the ideal of proceduralist constitutionalism is approximated only by a handful of liberal democratic states, arguably the United States and Australia.1 Many other (sufficiently or aspirationally) liberal-democratic states not only include thick moral commitments in their constitutions, tasking their governments with the duty to govern well, but also specify various facets of (what they believe to be required by) good governance.

Jeff King has characterised such thick moral commitments as constitutional ‘mission statements’.2 An important, but much-ignored, form of these thick commitments is a set of provisions I will call ‘constitutional directives’ or simply ‘directives’.

Federation is an inherently flexible form of political organisation that involves ongoing negotiation, coordination and compromise to meet changing local and temporal conditions.The history of Australian Federation illustrates this: from the origins of the federal idea in the mid-nineteenth century, amid the emergence of quasi-federal arrangements within the British Empire (1847-1890); to the creative outcomes of Australia’s constitution-making decade, when American and other influences garnered attention (1891-1901); and through the subsequent outworkings of the Australian Constitution as it has been interpreted and applied alongside the growth of the nation. The proven adaptability of Federation may inform contemporary approaches to the constitutional recognition of Australia’s First Peoples.

The ideas and practices of constitutions and constitutionalism were first imported into China in the late 19th century. There were three eras of constitution-making in modern Chinese history: the last decade of Qing imperial rule, the republican era, and the communist era. Dr Sun Yat-sen, founding father of the Republic of China (RoC), developed a three-stage theory of China’s political development in which the last stage was to be constitutionalism (xianzheng). Although this was realized in theory when the RoC Constitution of 1946 was enacted, the Constitution became largely suspended as the RoC regime moved to Taiwan and introduced martial law after its defeat by the Communists in the Chinese Civil War. The People’s Republic of China (PRC) was established in the Mainland, which witnessed a new era of constitution-making under the Soviet Union’s influence. However, even today, the discussion of “constitutionalism” (xianzheng) is still discouraged by the PRC regime, although the concepts of the (socialist) Rule of Law and human rights have been affirmed by constitutional amendments. This chapter will review and assess the history of constitution-making in modern China and the discourse of constitutional law scholarship in contemporary China, and it will explore how the case of China both illuminates and challenges conventional understandings of the meaning and significance of constitutions and constitutionalism in the contemporary world.