In this article, we argue that the 2022 Chilean draft Constitution helps to articulate the distinction between a transformative constitutional project and a utopian one. Whereas a transformative project lays down markers for social change that will take time to achieve, a utopian project sets out goals that are unlikely to be achieved within any reasonable timeframe. Utopianism is a product of two relationships. The first is the internal relationship between the transformative goals laid out in a constitution and the institutional pathways through which changes will occur. The second is the external relationship between the goals in the text and the views and support of key groups. In Chile, both relationships were problematic. First, the Convention adopted a draft that was heavy on ambitious programmatic content but lacked a clear vision of how to implement it. Second, the Convention produced a draft that was supported by the ephemeral civil society groups galvanized by the 2019 protests but divorced from the vision of Chile’s parties and public opinion. Some of this was a product of the peculiar electoral context in which the Convention acted, which has already been corrected. But some of it reflects deeper tensions within transformative constitutionalism.

Russia’s continued aggression against Ukraine has sent shock waves around the world. Russia has violated the most fundamental rule of international law and most people intuitively feel that the war in Ukraine has changed the entire landscape of international society. Given what is clearly a turning point, it is difficult to assume that global constitutionalism founded on ‘human rights, the rule of law and democracy’, called ‘the constitutional trinity’, will not undergo any changes. Can global constitutionalism survive such a difficult moment? This is a fundamental question that global constitutionalists must address. This article answers this question in the affirmative. First, despite its gross violations of international law, Russia is not necessarily attempting to withdraw from the current framework of international law. The existing individual-centred elements in international law, which are the central pillar of global constitutionalism, will not be replaced by any alternatives. Second, even if the existing framework of international law remains viable, there is an undeniable risk that the polarization of international law accelerated by the ongoing war will negatively affect global constitutionalism. Such polarization may hollow out the constitutional trinity in international law. However, global constitutionalism will continue to function as the principal cognitive framework for international society because the exercise of individuals’ rights embedded in international law will incessantly provide energy for global constitutionalism. This article concludes that insofar as international law keeps its individual elements, global constitutionalism will be able to retain its normative power under the present predicament in the world.

Can citizens’ interest in non-domination be satisfied by the principle of legality and the guarantee of non-arbitrariness? This comment argues that the rule of law requires an internal organization of law that entails an additional positive law, through conventions, common law, judicial precedents or constitutions, which the sovereign cannot legally override. In the supranational context, the rule of law requires an equilibrium of consideration and respect between different legalities by avoiding a legal monopoly of a supreme authority and fostering the interaction among orders based on content-dependent reasons. The same applies to the relations between the ECtHR and member states. The margin of appreciation, taken as a reminder of the complexities of international institutional relationships, embodies a non-domination caveat to consider (the reasons from) the ‘normativities’ of different orders. Nonetheless, as an argumentative tool of the Court, it allows for an often-disputed discretion. Accordingly, better refined guidelines and justifications are required.

This paper analyses the mutual influence and self-perpetuating cycle of legitimacy of EU legal scholars and the Court of Justice of the European Union (CJEU) in expanding and broadening the free movement rights of Union citizens and their family members. It is argued that legal scholars have played a dual role in promoting the constitutional paradigm of an ever-expanding scope of directly enforceable residence and movement rights in the EU. First, by presenting the expansion of free movement rights as an inevitable outcome of the EU constitutional order based on directly enforceable individual rights, scholars have played a significant role in legitimizing the jurisprudence of the Court in the face of initial resistance from the member states. Second, legal scholars have been an important source for the Court of Justice in developing its case law in this area. The Advocates General in their opinions have drawn on an expanding field of scholarship presenting the expansion of free movement rights as an inherent feature of the EU as a constitutional legal order. Spurred by the objective of turning the EU into more than an internal market, the opinions of the Advocates General have mostly been followed by the Court. Legal scholars have thus served not only as a legitimizing force, but also as a source of inspiration for the perceived constitutionalization of free movement rights in the EU.

In contrast with the decline of liberal constitutionalism around the world, liberal constitutionalism seems to be resilient in Taiwan. Weaving together several threads of history, law and politics, this article first argues that foreign legal education and identity concerns explain why judicial review and constitutional development more broadly in Taiwan have not only flourished but mirrored both German and American constitutional jurisprudence. Second, it maintains that the case of Taiwan poses another challenge to the concept of global constitutionalism since the number of referenced jurisdictions is quite limited.

The Constitutional Convention in Chile, like other constitution-making mechanisms in democracies, carried out its work within the democratic institutional framework. In a democracy, the success of a constitution-making process depends not only on internal factors, such as its capacity for representation and the procedural rules by which it is governed, but also on external factors such as participation, the government’s role and other contingent factors. When the process – including both internal and external factors – fails to produce adherence to the new constitution, institutional resistance to changes is very likely to occur. This article argues that the manner in which the political and social spectrum was represented in the Chilean Convention, combined with the way participation was implemented and the rules governing the Convention, insulated it from society and the rest of the democratic institutions. As a result, party and public adherence to the proposal made by the Convention was low and its contents generated institutional resistance from outside.

In Latin America, the notions of academic freedom or the freedom of science have not had the overarching influence in defining the prerogatives of scholars and the university that we see them exerting over the experiences of Western Europe and the Anglosphere. The governing notion, from whence all other freedoms emerge, is that of university autonomy. In Latin America, university autonomy evolved over the twentieth century as a protection of the university against the encroachment of governments – often authoritarian or outright dictatorial – so they could carry out their missions as they defined them. In Latin America, the locus of what in Europe is understood as scientific freedom is vested in the universities, not in the professoriate. It is assumed that free universities will foster an environment of academic freedom within. The contemporary contestations of university autonomy in Latin America fit squarely into the liberal script, as they seek to make universities more responsive to policy goals in the areas of higher education quality and accountability, efficiency and productivity, expansion of public or private provision, access and equity. Often, universities and their associations have raised autonomy as an objection to these policy agendas.

Presidential term limit provisions are often perceived as a feature of modern democratic systems. It has been argued that their existence is a key intervention mechanism to pre-empt some undemocratic outcomes associated with incumbency advantages. In 2008, the Constitution of Cameroon was amended to abolish the presidential term limit. More than ten years on, there are ostensible signs of a democratic decline. This article takes a retrospective look at the constitutional amendment to assess its constitutionality. It is argued that a conclusion on the constitutionality of the amendment may not be unequivocal. Nevertheless, there are substantial grounds for considering the constitutional change as a constitutional dismemberment. This is premised on the fact that, although the amendment followed the normal rules for constitutional amendments, the transformation amounted to a fundamental break with the constitutional commitment to democracy that underpinned the adoption of the 1996 Constitution.

This short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.

In this contribution, the key elements of the book’s progress narrative will be discussed. The focus will be set on the ‘backbone’ of the book, which consists of three ideas or elements: the periodisation decision (II), the claim of a specific conception of social change (III), and a specific understanding of international law (IV). In regard to each of those elements it will be asked how they are justified, what insights they provide and whether there are blind spots.

The Internationalists is a fascinating book. The authors present a clear proposition about the significance of the 1928 Pact for the Renunciation of War for a more peaceful world. My focus is on the role of what the authors call outcasting, as an alternative to war. I argue that outcasting is hardly new. It has been known as reprisals or self-help, and currently as countermeasures. It is essential that such measures are brought under international control. What is more, the current US administration is a threat to the current world order. Other states and civil society need to continue to develop internationally controlled sanctions against violations of international law – also in the absence of the USA.

International criminal law (ICL) developed in large part from international humanitarian law during the mid-to-late twentieth century. The International Criminal Court (ICC), a permanent institution to investigate and prosecute ICL cases finally was established in 2002. Although widely supported, certain states feared that the ICC would diminish national sovereignty. Yet, in formal legal terms, ICL and the ICC’s Rome Statute are just like other branches of public international law in terms of their relationship with national constitutional arrangements. ICL does not challenge states’ primary executive and judicial powers; it does not introduce any general rights for citizens or particularly onerous obligations for states that are already subject to the rule of law; and its intrusion on national sovereignty is only in evidence when a state’s leaders either are responsible for atrocities or are incapable of protecting their citizens from such atrocities. ICL thus is very different from international human rights law (IHRL), which directly impacts national constitutional arrangements. When ICL does come into play, however, arguably it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power.

This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.

Constitutions are social and historical artefacts that take part in the government of humans. Based on a comparison of how contemporary ‘global’ and historical ‘local’ constitutional documents establish power relations between ‘humans’ and their ‘government’, this article suggests that both types of documents involve different constitutive logics. Global constitutional documents create a ‘new normativity’ – a reversed constitution – that turns the historical relationship between pouvoir constituant and pouvoir constitué on its head. Such documents shift the primary responsibility for human rights from governments to humans. Research in the academic field of global constitutionalism omits this constitutional reconfiguration. By offering a more historically sensitive and reflexive account of constitutionalization, the field of global constitutionalism can realize an as yet unexplored critical potential.

The notion of legal space is increasingly being used to address the challenges of multiple and overlapping spheres of legality that the notion of legal order cannot capture. This article shows how legal space can serve as an alternative (or at least complementary) concept to legal order in view of the limitations of the latter. It sketches out a notion of legal space that is inspired by topology, an approach that analyses the qualitative nature of spaces. It is concerned with understanding the ways in which legalities interact, rather than with ‘measuring’ their spatial dimensions. A topology-inspired approach to legal space can contribute to conceptualizing, in a novel manner, the inner structure of legal spaces, the boundaries of these spaces and their interrelations with other spaces. It offers an analytical toolkit for better understanding multiple legalities, providing categories to characterize sets of legal elements as well as phenomena such as overlaps and hybridity. It is conceptually less constrained than the concept of legal order, and thus allows us to address various bodies of law ranging from classical domestic law, EU law and international law to global administrative law, corporate social responsibility law, platform law and lex sportiva.

The contributions in the volume do a fine job of recounting the sites and modes of unravelling meaty issue-area ‘interface conflicts’ and studying their diverse implications. I have sought to consciously read these contestations here from the broader perspective of the global South. My overall plea is for more politics and not less when it comes to studying ‘interface conflicts’ and norm contestations. What this translates into is to embed the technicalities of norm conflicts in the backdrop of more fully fleshed out political currents and contexts. Methodologically speaking, while sympathetic to the process-driven agential micro-constructivist approach to studying these ‘interface conflicts’, I argue that ‘internalist’ accounts of perceptions must ideally tap on insiders to arrive at a richer appreciation of the anxieties and hopes surrounding particular norm contestations in specific issue-areas.

Owing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System. This is regrettable, not least because the Convention has reconfigured national constitutional authority in a cosmopolitan context. The emerging cosmopolitan constitutionalism is based upon three ideas: first, the exercise of state authority must also be legitimate from the perspective of those who are not citizens; second, a constitution must embrace fundamental rights and the representation of insiders in order to facilitate the representation of all, including outsiders; third, the authority of the constitution doesn’t just depend on endorsement by an independent people but also on recognition by other peoples who pursue the same type of political project. At the same time, any cosmopolitan constitutional system needs to leave space for particularity. It is therefore not accidental that the idea of a ‘margin of appreciation’ is of pivotal significance.

The Conference on the Future of Europe (CoFoE) was the first initiative to include citizens in deliberations about the future of European democracy since the failed Constitutional Convention of 2002/03. Although embedded within broader trends to involve ordinary citizens in the political process, it is of specific relevance in the European context because it raises expectations of democratic catching up and relates to ongoing discussions and struggles about the constitutional character of the European Union. This article argues for a citizen-centred perspective on constitutional renewal in the European Union that places European citizens as constituent subjects at centre stage. It outlines how making the European Union accessible as a political arena allows citizens to regain control over developments that have evolved behind people’s backs. It concludes that deliberative tools of citizen participation should be used to pave the way for a wider reorganization of public authority and a renewal of the European Union’s constitutional basis.

Through the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.