Ordinarily, militant democracy is about restricting the rights of those who threaten to overthrow the very democracy that guarantees these rights. Hence, militant democracy permits the defence of democracy by disarming its opponents. Turkey’s recent constitutional reform, which arguably is a move away from liberal democracy, forces militant democracy to face up to its transnational application. Can we use militant democracy’s tools to defend not our own, but another democracy? Maybe we can and even should. This article examines the two transnational manifestations of militant democracy. The first is ‘transnational democracy gone militant’, epitomised by the European Union (EU)’s power to enforce liberal democratic standards in its Member States. The second is ‘militant democracy gone transnational’. This manifestation permits treating people rallying in the EU to attack democracy abroad in the same manner in which we are permitted to treat opponents of ‘our own’ democracy. As long as we are dealing with members of the Council of Europe (CoE), the European Convention of Human Rights (ECHR) gives us the instruments we need. Generally, militant democracy is a militant liberal democracy, which is not neutral towards itself, but is also an opponent of every system that is antithetical to it.

In recent years, conservative governments and their civil society allies have undermined international women’s rights treaties and SOGI rights initiatives and challenged domestic rights protections. The articles in this special issue grapple with these trends by analysing the ideologies, discourses, and strategies of contemporary anti-feminism in global and comparative contexts. Several prominent patterns emerge: the core significance of social hierarchy and biological essentialism to anti-feminist conservative thought; the polarizing demonization of feminists by religious conservatives and populist nationalists; the appropriation of rights discourses and advocacy tactics by anti-feminist campaigns; and the strategic importance of law and legal language as a terrain of rights contestation. Taken together, this research suggests that anti-feminism is not incidental to reactionary anti-democratic politics, but instead a constitutive element of political movements that seek to naturalize inequality and legally enforce conformity with conservative social norms.

Finnemore and Sikkink’s norms life cycle model (NLCM) is a powerful heuristic device that continues to be a mandatory point of reference for theoretical and empirical scholarship on norm change. Yet the internalisation stage as conceptualised in the NLCM is problematic. Drawing from Wiener’s Theory of Contestation, this article proposes to reconceptualise the norm internalisation stage as the phase at the extreme of the norm cascade in which inherently contested norms simultaneously enjoy formal validity, social recognition, and cultural validation among stakeholders. Unlike Finnemore and Sikkink’s, this conceptualisation focuses solely on norm validity and does not assume ‘almost automatic’ compliance. While Finnemore and Sikkink emphasise habit and institutionalisation as mechanisms of internalisation, the proposed conceptualisation highlights the role of applicatory contestation under conditions of high contestedness. Furthermore, I argue that internalised norms continue to be contested. Finally, my conceptualisation explicitly incorporates norm regression as the fourth stage of the NLCM. Norms might regress because they become obsolete, they change, or they are replaced. To assess the descriptive power of the proposed conceptualisation vis-à-vis Finnemore and Sikkink’s, the article applies them to the analysis of the norm that prohibits torture.

A surge in academic interest in the interaction of international law with international politics has recently raised the profile of the rule of law in global politics. The idea of an ‘international rule of law’ is central to many accounts of international order, and to both political science and legal scholarship. Despite its popularity, the concept is rarely defined or examined. This article considers the theory and practice of the international rule of law. It shows first that the international rule of law cannot be deduced from the conventional Anglo-American version of the rule of law in domestic legal theory, as sketched by Joseph Raz and others. It then considers two competing versions of a distinctly international concept of the rule of law, one based on a positivist theory of compliance and the other on a structurationist theory of practice. The former is more common in legal and political scholarship but the latter accounts better for the political power of international law in relation to states.

This article examines the changing status of constituent power in contemporary constitutionalism. It considers how, at face value, contemporary constitutional law reflects a post-constituent constitutional order, which is defined by a rupture with classical constitutional principles, such that the extra-legal source of constitutional order is diminished. However, it argues that the common perception of a decline in constituent power in constitutional norm construction is marked by an excessively literalistic understanding of the origins of constitutional norms and practices. As an alternative, drawing on systems-theoretical methodologies, the article proposes a functionalist, sociologically attuned reconstruction of the historical content of constitutional concepts, including the concept of constituent power. Through this perspective, it explains that constituent power, in conjunction with constitutional rights, always acted, not as an externally founding source of political agency, but as an inner projection of the political system, which served the internal organization of the political system as a distinct societal domain. The article concludes that the transnational constitutional models which are widespread in contemporary society, far from negating constituent power, re-articulate its primary functions, and they realize potentials for preserving the autonomy of the political system which constituent power always contained.

The ‘global turn’ in International Relations (IR), like postcolonial and decolonising approaches, moves away from the Eurocentric dominance of the discipline, and towards the inclusion of plural perspectives on global politics. The article investigates what such a call means in epistemological and ontological terms by focusing on the concept of ‘global conversations’. In section I, we show that the concept of ‘global’ conversations necessarily shifts from an individual ontology to a relational ontology of intra-action within a global space. In section II we explore why ‘conversation’, as distinct from dialogue fits more comfortably with this relational shift and has practical implications for how the engagement takes place. The third section engages in an exploration of some of the obstacles to global conversation, and not least the emotional obstacles, in light of historically embedded and embodied relations of power that shape who can speak and who is silenced or heard. The final section then engages in a discussion of the types of practical engagement and research that might flow from this analysis. In moving beyond ‘dialogue’, the article reveals the intersection of power, language, emotion and embodiment in the constitution of ‘global conversations’, and how these in turn come to constitute the global, its normative structuring, contestations and transformation.

Institutional overlap emerges not only as an unintended by-product of purposive state action but also as its deliberate result. In two ways, this article expands existing research on the causes and consequences of institutional overlap. First, we establish that three different types of dissatisfaction may lead states to deliberately create institutional overlap: dissatisfaction with substantive norms and rules, dissatisfaction with decision-making rules and dissatisfaction with the institutional fit of an existing governance arrangement for a given cooperation problem. Each type of dissatisfaction triggers a distinct motivation for the creation of institutional overlap: to induce policy change, to increase influence on collective decision-making or to enhance governance effectiveness. Second, we demonstrate that whereas the motivation to induce policy change leads to interface conflicts, the motivations to increase influence on collective decision-making and to enhance governance effectiveness give rise to inter-institutional coordination. Three empirical case studies on global energy governance, the governance of global development banking and global environmental governance probe these analytical claims.

This article argues that despite the UK Government’s exaltations of self-determination of its Overseas Territories, provisions of colonial governance persist in their constitutions. Further, it posits that such illustrations begin to answer the broader question of whether British Overseas Territories (BOTs) are modern day colonies. Such claims are not without merit given that 10 out of the 14 BOTS are still considered Non-Self-Governing Territories by the United Nations and have remained the target of decolonisation efforts. Drawing insights from post-colonial legal theory, this article develops the idea of the persistence of colonial constitutionalism to interrogate whether structural continuities exist in the governance of the UK’s British Overseas Territories. The analysis begins to unravel the fraught tensions between constitutional provisions that advance greater self-determination and constitutional provisions that maintain the persistence of colonial governance. Ultimately, the post-colonial approach foregrounds a thoroughgoing analysis on whether BOTs are colonies and how such an exegesis would require particular nuance that is largely missing in current institutional and non-institutional articulations of, as well as representations on, the issue.

The article presents the Round Table form, elsewhere post-sovereign multi-stage constitution making as an independent democratic type superior to the alternatives. It locates the form along with Convention and Constituent Assembly both in a comprehensive typology based on models of regime transformation, as well as historically. After making a set of normative arguments comparing the three forms, focusing on the issue legitimation, I make a case for the synthetic nature of the Round Table in relation to the two important democratic predecessors. Finally, I reluctantly admit the path-determined nature of the Round Table that strictly speaking seems relevant only 1) in the transitions from dictatorships, if 2) new forces do not have the power to accomplish revolutionary change. Nevertheless, I argue that the principles of the Round Table (inclusion, consensus, publicity, legality and veil of ignorance) are relevant to other paths, from the point of view of their legitimation. I further claim with reference to Iraq, Turkey and the European Union that elements of the Round Table can be adopted even under conditions of revolutionary change, as well as constitutional reform.

This essay analyses the consequences of contested multilateralism (CM) for the level of constitutionalisation of specific multilateral institutions. We argue that CM has implications for institutions’ constitutional quality in particular if it is polity-driven and not (merely) policy-driven, that is, when actors’ employment of alternative institutions stems from their dissatisfaction with the political order of an institution rather than individual policies. Given the co-existence of constitutionalised and non-constitutionalised multilateral institutions in today’s international order, state and non-state actors can use alternative institutions to contest the constraining or discretionary character of an institution’s polity. We hold that CM is likely to have negative consequences for the constitutionalisation of multilateral institutions if it is employed ‘top-down’ by states to enhance their freedom to wield discretionary authority, but that it is likely to have positive consequence if it is employed ‘bottom-up’ by society actors to constrain the exercise of discretionary authority through multilateral institutions. We illustrate the empirical plausibility of our claims in two cases involving top-down contestation of the European Economic and Monetary Union (EMU) and bottom-up contestation of the World Health Organization (WHO).

A growing body of literature on the role of courts in democratic backsliding claims that court-packing weakens liberal democracy. However, this is not necessarily the case. The goals of the actors who produce court-packing help to explain why the co-optation of the judiciary can have a substantial negative effect on liberal democracy in some (although not all) cases. In this respect, we distinguish two types of court-packing. First, policy-driven court-packing occurs when politicians manipulate the composition of courts in order to assure a quick implementation of policies. Although this tends to negatively affect judicial independence, it is not per se a first step towards regime change. Second, regime-driven court-packing happens when politicians alter the composition of the courts with the goal of eroding democracy. In this case, court-packing’s negative effect on judicial independence has a systemic negative effect on different dimensions of liberal democracy. Relying on a wide range of primary and secondary sources, we conceptualize these two types of court-packing by comparing two cases: Carlos Menem (1989–99) in Argentina, seeking judicial support to carry out pro-market economic reforms, and Hugo Chávez (1999–2013) and Nicolás Maduro (2013–present) in Venezuela, seeking to control the judiciary in the context of democratic backsliding.

Legal multiplicity in the global realm, and the interface conflicts that ensue from it, are widely thought to have a destabilising effect, blocking the path towards a more integrated and perhaps constitutionalised global order. While this diagnosis may appear plausible if interface conflicts are seen as snapshots and rivalrous institutions as the main actors, it is less convincing if we regard these conflicts as part of social processes of contestation that define the relations between different norms over time. It is also less plausible if actors with other orientations – norm irritation or navigation – are taken into view. This article works towards a more encompassing account, both temporally and as regards actor orientations. It uses two case studies of conflicts at the interface between economic governance and human rights to probe the plausibility of its conjectures. Both cases appear as instances of prolonged norm contestation which, despite continued irresolution of the underlying conflicts as a matter of law, have resulted in a significant reorientation and (partial) consolidation around new interpretations. This suggests that interface conflicts, rather than destabilising the rule of law, may also open a pathway for change in the otherwise rigid structure of the international legal order

This article presents a functional explanation of why proportionality has become one of the most successful legal transplants in contemporary constitutional law. It argues that proportionality helps judges mitigate what Robert Cover called the ‘inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process’. More than alternative methods, proportionality calibrates the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases. The first three sections show, through an analysis of different constitutional styles which I label Doric, Ionic and Corinthian, how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis. This method aims to synthesize fidelity to form and institutional structure (thesis) with ‘fact-sensitivity’ to contexts in which specific controversies arise (antithesis). Proportionality positions judges vis-à-vis the parties and the parties in relation to one another differently from other constitutional methods. The next sections distinguish between constitutional perception and reality. While the normative appeal of proportionality can be traced to the perception of its integrative aims, in reality, judicial technique does not entirely live up to those aims. Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. The final section draws on the works of Kant and Arendt and discusses the implications of an approach to constitutional method such as that reflected in the advent of proportionality for the project of constitutionalism more generally.

Global constitutionalism offers a utopian picture of the future of international law. Its advocates suggest a governance system is emergent that will fill the gaps in legitimacy, democracy and the rule of law present in international law. Speculation about the future of international law is shaped, partly at least, by global constitutionalism aspiring to create a better global legal order, by filling these legitimacy gaps with both normative and procedural constitutionalism. But this raises the question ‘better for whom’? Feminist theory has challenged the foundations of both international law and constitutionalism; demonstrating that the design of normative structures accommodates and sustains prevailing patriarchal forms that leave little room for alternative accounts or voices. Both international and constitutional law’s structures support the status quo and are resistant to critical and feminist voices. The question is whether it is possible for constitutionalism to change international law in ways that will open it up to alternate possibilities. Building on a seven-point manifesto of feminist constitutionalism, previously proffered by the authors, which inculcated feminist concerns into global constitutionalism, this article offers an alternative starting point: feminist science fiction. Feminist utopian tracts such as Charlotte Perkins Gilman’s Herland and Ursula K Le Guin’s The Left Hand of Darkness offer valuable lessons for global constitutionalist discourses. The article uses feminist utopias in science fiction to better understand how to dismantle hierarchical structures, how to build feminist societies, and how to find approaches to governance not predicated on patriarchy. It does so by focusing on feminist alternatives for constructing communities, for understanding constituent power and constituent moments, and dismantling manifestations of the public/private divide. This article demonstrates that reading feminist utopian science fiction facilitates the reimagining of global constitutionalism.

Collective decision-making is often taken as an ‘institutional fact’ when it comes to supreme and constitutional courts. In this article, we focus on the example of the Brazilian Supreme Court (Supremo Tribunal Federal, or STF) to argue that this feature should not be assumed from the outset, as it does not necessarily hold, across countries, for all relevant powers that courts may have. As this example illustrates, the assignment to individual Justices of three distinct powers, namely agenda setting, position taking, and decision making, can have profound effects on the legislative status quo outside the court, amounting in some circumstances to a form of individual judicial review. This expanded typology of court powers both points to an underexplored spectrum for comparing different courts and makes it necessary to discuss if and how particular distributions of such powers within multi-member courts are normatively justified. In the specific case of the STF, we argue that the specific combination of individual allocations of agenda setting and decision-making powers, which gives rise in practice to the possibility of individual judicial review, cannot be reconciled with basic tenets of constitutional theory.

This article argues that a distinction between the public and the private is both desirable and feasible in times of global governance, at least as a regulative idea. The confusion surrounding this distinction originates in different understandings of the relationship between state and society in liberalism and republicanism. Discourse theory with its idea of the co-origin of democracy and human rights reconceptualises the relationship between state and society in a way that does justice to both liberal and republican approaches. Accordingly, the public/private distinction is crucial for the realisation of democracy and freedom. Classifying an act as public or private determines what kind of legitimacy it requires. The article then recalibrates discourse theory to face the challenges of global governance, shifting its focus from hard law to a broader notion of authority, and from the state to a pluralistic, cosmopolitan world order composed of multiple overlapping communities. A community is characterised by communicative action and a common identity. In such a setting, public authority is the authority exercised on behalf of a community in relation to its members. In relation to non-members, the same act may constitute an exercise of private authority. It is a different question whether such authority is legitimate. Some examples illustrate the approach.

This article provides the first comparative reading of the minutes of the General Assemblies of three iconic Occupy camps: Wall Street, Oakland and London. It challenges detractors who have labelled the Occupy Wall Street movement a flash-in-the-pan protest, and participant-advocates who characterised the movement anti-constitutional. Developing new research into anarchist constitutional theory, we construct a typology of anarchist constitutionalising to argue that the camps prefigured a constitutional order for a post-sovereign anarchist politics. We show that the constitutional politics of three key Occupy Wall Street camps had four main aspects: (i) declarative principles, preambles and documents; (ii) complex institutionalisation; (iii) varied democratic decision-making procedures; and (iv) explicit and implicit rule-making processes, premised on unique foundational norms. Each of these four was designed primarily to challenge and constrain different forms of global and local power, but they also provide a template for anarchistic constitutional forms that can be mimicked and linked up, as opposed to scaled up.

There is a growing sense that if the EU is to avoid disintegration, it needs a constitutional renewal. However, a reform negotiated between executives will hardly revitalise the European project. In light of this, commentators have suggested that the EU needs a democratic refounding on popular initiative. But that is easier said than done. Shaping the EU has been an elite enterprise for decades and it is hard to imagine how things could be otherwise. In this article, I map four public narratives of constituent power in the EU to sketch out potential alternatives. Political actors increasingly call into question the conventional role of the states as the ‘masters of the treaties’ and construct alternative stories as to who should be in charge of EU constitutional politics, how the respective subject came to find itself in that position, and how it should invoke its founding authority in the future. These public narratives represent a promising starting point for a normative theory that outlines a viable and justifiable path for transforming the EU in a bottom-up mode.