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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.
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