National courts, largely in South Asia and Latin America, have deemed unconstitutional certain constitutional amendments that have been enacted into law in their respective jurisdictions. In the article, this author explores the normative arguments for and against the judicial enforcement of implicit substantive constraints on formal constitutional changes. In essence, the author argues that, in determining whether judges should render the substance of constitutional amendments unconstitutional, one must examine how the impugned constitutional amendment was passed. In jurisdictions where a constitutional amendment can be passed by a dominant party/coalition without bipartisan support or the general support of the people, the courts may intervene, but only where the constitutional amendment(s) in question is/are so manifestly unreasonable that such a revision is akin to a substantial destruction of the pre-existing constitution. But no constitutional amendment should ever be judicially invalidated for violating any implied ‘basic features’ of the constitution when the amendment process is particularly cumbersome and requires significant bipartisan support and the general public’s express or implicit endorsement for the amendment to pass.

This article interrogates the intellectual foundations of global legal pluralism as a descriptive and normative position, and assesses its core claims with reference to the changing status of individuals in the postnational realm. In order to uncover the normative core of the pluralist position, the article turns to the rich tradition of value pluralism in political philosophy, particularly as articulated by Isaiah Berlin. It argues that as a normative position, pluralism – whether applied to the abstract sphere of values or the concrete realm of legal regimes – is normatively underdetermined, offering too little guidance as to how the conflicts endemic to a pluralistic world ought to be resolved. Unless it is supplemented by other, more substantive principles of political legitimacy such as democracy, freedom, equality, or justice, the principle of pluralism applied to the global legal realm is poised to reproduce, even exacerbate, existing inequalities of power and resources among those whom it affects.

The emergence of strong authorities beyond the nation state has raised questions about the absence of democratic legitimacy at the supranational level. The usual response to this dilemma has been an attempt to uncouple the strict link between national statehood and democracy, and in the process, to confer a degree of legitimacy on supranational authorities. This article argues that such an uncoupling is unconvincing, and that within the legitimacy-democracy-statehood triangle, the uncoupling of legitimacy and democracy is a more promising strategy. The legitimacy of supranational authorities is grounded in their appeal to ‘public reason’ – a legitimacy-conferring device well-suited to supranational authorities, as illustrated in this article by the examples of the European Court of Human Rights and the WTO dispute settlement system. On this basis, the article argues that we should not see the relationship between statehood legitimacy (based optimally on electoral democracy) and supranational legitimacy (based on public reason) as mutually antagonistic and engaged in zero-sum competition. Rather, this relationship allows scope for synergy, with supranational authorities often playing an important role in supporting democracy at the nation-state level.

The paper discusses recent propositions that, after a period of ‘American exceptionalism’, forms of ‘European exceptionalism’ are now emerging. The paper first asks what makes a political entity ‘exceptionalist’. For this purpose inspiration is sought in the defining features of ‘American exceptionalism’. The paper then discusses whether ‘Europe’ displays comparable features in the fields of international legal policy and domestic rights culture. It also asks whether there are other aspects of European governance which could make it plausible to speak of a European exceptionalism. The paper concludes that it is misleading to use the term ‘European exceptionalism’ because the underlying phenomena are not comparable with what is usually understood as ‘American exceptionalism’.

An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.

This article discusses the contribution of European political parties to democratic backsliding. It focuses on the European People’s Party’s efforts to protect the Hungarian government, and the European Conservatives and Reformists party’s permissive acceptance of the Polish government’s attacks on democracy and the rule of law, analysing these patterns of behaviour as a form of complicity in democratic backsliding. In a second step, the article examines the existing possibilities and normative justification for sanctioning European political parties that make a complicit contribution to democratic backsliding.

This article traces recent changes of the practices and justifications of the use of force in intervention, in the context of African security governance, highlighting how these changes interact with norm transformations at the scale of the global order. In doing so, it conveys how a long-standing pattern of norm contestation between international and African actors over external intervention vs sovereignty, has started to give way to a mutually accepted division of labour. After 9/11, the paradigm of liberal interventionism has been incrementally replaced by the framework of stabilisation, with a re-prioritisation of sovereigntist agendas. This has increased collaboration between international and African actors, specifically prompting the United Nations and the African Union to divide tasks of mandating and enforcement, thereby increasing inter-institutional ‘order’. This consensus, however, far from signifying wider compliance with ‘liberal ordering’ principles, rather indicates the need to revisit central assumptions of the International Relations norm diffusion literature. While the latter emphasises the diffusion of ‘good’ international norms, especially pertaining to human rights and democratisation, the growing consensus on ‘intervention as stabilisation’ instead exposes how post-9/11 justifications of practices that carry the potential to downsize the scope of such norms, are starting to resonate across international, regional and national sites of policy and practice.

This article analyses the rise of populism and its discursive challenge to global constitutionalism (GC). It shows that populist contestation is more ambivalent than often suggested: its challenge depends on the populist variety and can both undermine or support liberal principles of GC. Building on the ideational approach to populism and a framework of transnational politicisation, a proposed typology identifies both communitarian types of populism and cosmopolitan types of populism. Illustrative case studies of the Alternative for Germany, the Polish Law and Justice Party, the Democracy in Europe Movement and Peru’s Alberto Fujimori substantiate these empirically. While all cases contest a perceived lack of popular sovereignty in a largely non-majoritarian global constitutional order, varieties of populism present contrasting responses: communitarian types push for global de-constitutionalisation in line with illiberal nationalist majoritarianism, while cosmopolitan types support global constitutionalisation according to liberal and democratic principles. Further, neo-socialist populists campaign against neoliberal principles in GC, but remain divided about supporting political principles beyond the state. These findings suggest an emerging politicisation of the process of global constitutionalisation at the societal level according to principles of democratic legitimacy; and global constitutional differentiation depending on outcomes of these normatively ambivalent and empirically contingent political contests.

Contemporary scholarship mainly focuses on the crisis of political representation as the key facilitator behind the emergence of populism. If so, populism urges public law to revisit and rethink institutional designs. This article addresses two possible responses to populism. On one hand, an intuitive response could be to hamper popular participation by avoiding plebiscites, referendums or any other kind of public consultation. Alternatively, it is possible to respond to populism from a structural point of view. In my opinion, to resist populism public law should take into account the lack of responsiveness and accountability of representative systems. The article puts forward a proposal in that direction; it advances a response to populism consisting of new institutional systems that generate strong participatory mechanisms to incorporate ‘the popular’. In doing so, the article uses the new Latin American Constitutionalism as an example of both the potentialities and difficulties of designing institutional systems in public law. In the wake of rising populism, it contributes to the existing debate by criticising populism and its constitutional expression, as well as developing arguments in favour of popular constitutionalism.

Taking its cue from Benjamin Constant’s famous comparison of the liberty of the ancients with that of the moderns, this article examines the compatibility of democracy with free markets within the EU. Constant argued that commerce had replaced the political liberty of the ancients with the civil liberties of the moderns. Nevertheless, he contended a degree of political liberty remained necessary to guarantee these civil liberties. The difficulty was whether the political system could operate in the interest of all if modern citizens had ceased to identify with the public interest in the manner of the ancients and preferred to pursue their private interests. Constant believed representative democracy offered a form of political liberty that was compatible with modern liberty. It involved a less demanding view of civic virtue to ancient liberty and a different conception of the public interest as promoting rather than in conflict with private interests. However, for it to operate as Constant expected required certain social and cultural conditions that emerged in European nation states but are not themselves the products of commerce and may even be undermined by it: namely, a national identity; a social contract; and political parties. The EU involves a further deepening of modern commercial liberty beyond the nation state. This article explores three main issues raised by this development. First, have any of the three elements that facilitated the operation of representative democracy within the member states evolved at the EU level? Second, if not, is it possible to create an effective form of representative democracy on a post-national basis as the logical entailment of the liberties of the moderns? Third, if neither of these is possible, can we simply detach modern liberty from political liberty and see social rights as attributes of free movement, and efficient and equitable economic regulations as the products of technocratic governance? All three questions are answered in the negative.

In 2014, the UN Human Rights Committee published its Concluding Observations on the United States’ fourth periodic report on the progress of the implementation of the International Covenant on Civil and Political Rights (UN Doc CCPR/C/SR/3061), in which also the US surveillance practices are criticised. The Committee’s insistence on the right to privacy and its exterritorial effect is an important first step, but it is not comprehensive, as by remaining within the individual rights framework the UN Human Rights Committee fails to sufficiently take into account the systemic challenges in play. Developing a constitution of the Internet would necessitate not only protecting individual fundamental rights against state interference, but protecting communicative spheres by guaranteeing institutional autonomies and subjecting all social spheres to democratic control; this also requires opening up spaces for a critical public, including whistleblowers, and establishing a right to cryptography – a crucial refraction in the polycentric panoptic schema.

Before neoliberalism became global, it was an intellectual project that had a particular view of the power of constitutions to limit sovereign states, anchor economic freedoms and protect markets from democratic pressures for greater equality. In Latin America and the developing world, neoliberalism has long been identified with the political economy of the Washington Consensus. However, the comprehensive study of its legal foundations and institutional arrangements is still an area of limited scholarly attention. This article attempts to advance in that direction. By examining the work of Friedrich A. Hayek, Milton Friedman and James M. Buchanan, it explores a theory of neoliberal constitutionalism within Chile, the so-called first neoliberal laboratory. These authors visited the country during the Pinochet dictatorship (1973–90), and were connected with top Chilean authorities as part of their global ambitions to implement their theoretical agendas in real-world scenarios. The article argues that Chile’s constitution-making process between 1973 and 1980 offered an on-site experiment in introducing neoliberal’s radical economic transformation. It addresses how the dictatorship’s natural law-based rule of law principles were compatible with the neoliberal constitutional ideology by supporting a distinctive view of the state’s role and designing the innovative institutional arrangements necessary to guarantee the market’s priority in the structural and rights dimension of the 1980 Constitution. In the wake of Chile’s recent constitutional change agenda, this article not only contributes to the existing debate by reflecting on the ideological origins of the still-persistent constitutional neoliberal features, but also works as a case study for evaluating new global turns towards authoritarian neoliberal politics.

Fair value of equal political liberties is a key precondition for the legitimacy of a regime in liberal thought. This liberal guarantee is breached whenever a group is permanently or semi-permanently locked out of power. Given the convertibility, subtlety, and resilience of power, gross material inequality – produced by neoliberal economic policies – effectively locks the relative poor out of political power. Such lockout breaches the legitimacy constraint on a liberal constitutional democracy. Neoliberal democracies, sooner or later, become plutocracies. This possibility should concern not only liberal political theory but also liberal constitutionalism. The usual objections to a constitutional concern with gross inequality and plutocracy – based on concerns relating to transparency, counter-majoritarianism and flexibility – are useful design instructions, but do not rule out the constitutionalisation of egalitarian and anti-plutocratic norms. A whole panoply of legal and political constitutional measures – already familiar to or incrementally developed from liberal constitutional thought and practice worldwide – could be marshalled to effectively promote material equality and resist plutocracy. These measures – documented to map the possibilities rather than as a manifesto – seek either to prevent material inequality from becoming excessive or to prevent its conversion into political inequality. Good constitutional design, depending on the context, is likely to deploy several tools from both these toolboxes.

This article is a critical examination of the claim that the emergence of private self-regulatory regimes in the transnational sphere signals a new trend of self-constitutionalization outside the limits of nation-state based or intergovernmental control. It deals with the question to what extent the diffusion of public authority in the sphere beyond the state affects the responsibility of the state(s) to procure the legitimacy of such private self-regulation. First, a conceptual argument is developed which identifies private self-regulatory regimes as rule systems nested in a specific constitutional order of the international society, here described as ‘neo-Westphalian’ (Section I). Second, implications for the responsibility to procure the legitimacy of collectively binding regulatory functions performed by private actors in the sphere beyond the state are considered (Section II). Often cited as a model example of autonomous societal self-regulation, the lex sportiva renders particularly strong plausibility for the claimed non-existence of purely private self-regulation. The regulation of performance-enhancing substances can serve to demonstrate the complex interactions between multiple public and private sites of constitutional authority (Section III). In conclusion (Section IV), I argue that, although the ultimate responsibility for providing legitimacy continues to lie with the state/world of states, the political order of the international society as construed in neo-Westphalian terms provides a dispersed and fragmented constitutional-style legal framework with few reliable guarantees that states are capable or willing to enact their background role. Therefore, a substantial part of the burden of – initial – legitimation must be carried by those directly involved in private self-regulation by constituting and exercising public authority.

The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.

This article shows a novel facet in the complex relation between multiculturalism, the state and the market. Contrary to conventional theories in political science, sociology and anthropology, it shows that it is not just the success, but also the failure of the state and the market to commoditise nature and turn it into property that can actually help to foster ethnic identity. While state-driven market incentives to expand the agricultural frontier in Colombia during the 1960s and 1970s failed, they did help to foster differentiated indigenous identities and organisations, which converged around the revival of long-forgotten nineteenth century indigenous laws and other political opportunities to reclaim lands that had been taken away from them. Moreover, this article also shows that during a period of institutional openness in the late 1980s and early 1990s, the political emergence of indigenous identities became an important component of Colombia’s state-building processes by helping this country to maintain its territorial integrity through a model of delegated indigenous governance.

We can observe some developments that indicate a further strengthening of human rights and the rule of law even after 2001. These developments are puzzling as they occurred despite largely unfavourable scope conditions. This article offers an account of these developments that focuses on dynamics endogenous to the law. These internal dynamics provide a causal mechanism that sets in once a certain threshold of legalization has been reached. We employ the Hartian notion of secondary rules which we think is an especially helpful conceptual tool to analyse the endogenous dynamics of legal systems. To the extent that law is programmed towards consistency, secondary rules become necessary in an environment of rapidly increasing legal density to govern the complexity resulting from this proliferation of norms. Upholding consistency is necessary to maintain the autonomy of law in a Luhmannian sense and the ‘morality’ of the legal system in a Fullerian sense. Our goal is to show this and at the same move beyond an argument of system or normative functionality by identifying causal mechanisms that can explain the law’s built-in drive towards secondary rules, and that are in accordance with broader social science theory. We use some insights from cognitive psychology to develop these causal mechanisms further. While testing these causal mechanisms would be beyond the scope of this paper, we hope to provide the conceptual tools for future empirical research on the dynamics of secondary rule-making and offer some empirical illustrations to demonstrate how dissonance reduction operates in practice.

This article considers the relationship between constitutions and political settlements and locates the special issue articles within this wider discussion. The article points to the apparently paradoxical connection between disillusionment with internationalised state-building techniques on one hand, and increased international faith in constitution-making as a state-building tool on the other. Using understandings of the relationship of the constitution to political settlement which draws on conventional constitutional theory, it argues that the current context of negotiated transitions requires constitution-making to be approached with an eye to the distinctive dilemmas of statecraft that pertain in contemporary transitions. The most central dilemma concerns how power-balances between political/military elites can be broadened to ensure the constitution’s capacity to fulfil its normative role in restraining power and delivering broader social inclusion. The pieces which make up this special issue draw together development and legal discourses. This article suggests how constitutional theory provides a resource for those seeking to promote constitutionalism as a tool for reaching political settlements capable of resolving conflict. It also argues that those who seek to rely on constitutions for conflict resolution need to understand this enterprise as just as political and fraught as all other institution-building efforts.