What legitimates constitutions? One standard answer is that constitutions are legitimate only if they represent the people they govern. This article identifies two different conceptions of representation. Representation can be grounded either in the consent or the will of the citizens or when the constitution reflects the ‘real’ identity of the members of the nation. Alternatively, it is sometimes stated that the constitution is legitimate because it promotes justice or, more generally, is grounded in reason. While constitutions are typically grounded both in claims to represent the people and in claims concerning the justness and wisdom of the constitutional provisions, we establish that there are two types of constitutions: constitutions that are primarily representational (e.g. the US Constitution) and constitutions that are primarily reason-based (e.g. the German Constitution). We also show that this distinction has important ramifications for how constitutions are drafted and ratified, and how they operate. One central implication is that the legitimacy of constitutions that make weak claims to representation – for example, constitutions that are imposed by foreign powers – can still be defended on reason-based grounds.

Conservative NGOs contesting women’s rights in the United Nations are on the rise, and their activity is increasingly described as an antifeminist backlash. This article focuses a new theoretical lens on this development: socialization. It argues that conservative NGOs’ socialization into transnational practices and the United Nations has played a significant part in facilitating the antifeminist backlash. To support this claim, the article examines socialization comprehensively, applying several analytical angles: its definition, directionality, mechanism, degree and effects. It also treats conservative NGOs’ socialization as both a process and an outcome. As a process, it unfolds horizontally, by conservative NGOs competitively mimicking feminist NGOs in two domains in particular: their manner of transnational organizing and their skilful use of the UN human rights framework. The article finds that conservative NGOs have socialized into transnational NGO practices and the regulative institutional rules of the United Nations, but not into all its constitutive norms. The chief effect of this kind of socialization is polarization. The article singles out and empirically illustrates three of its manifestations: the struggle for institutional spaces; zero-sum politics based on a sense of existential threat; and the use of a strong moralizing discourse.

In their ground-breaking philosophical investigation of the ‘practice turn’ Lechner and Frost prompt a standpoint debate in international relations theory, which touches upon the relationship between practice theory and its subject matter. Lechner and Frost decidedly opt for an internal standpoint, which promises to understand a social practice in terms of the meaning-in-use of its participants. This article argues that the internalist promise will ultimately remain unfulfilled, however, for the aim of collapsing the distinction between the ‘language of action’ and ‘language of observation’ is epistemologically impossible. Taking such an ‘internal’ perspective not only underestimates the problem of the double hermeneutic. It also disregards the gap between theory and practice. Any social enquiry that fails to acknowledge this gap inevitably becomes externalist, for it misses to reflect on its own normative presuppositions. The way ahead is to address this gap reflexively by way of a triple hermeneutics that is bolstered by abductive reasoning.

This paper considers the introduction of a bill of rights to a territory’s constitution as an example of the transnational transfer of norms. Using the case of the Cayman Islands Constitution promulgated in 2009 this analysis looks specifically at the creation of its bill of rights in light of local debate following the legalisation of homosexuality forced by the United Kingdom in 2000. The unique constitutional structure framing the political relationship between the United Kingdom and its Overseas Territories is outlined as explanation for the nature of the Cayman constitution, as well as the historical trajectory leading to it. This trajectory informs the context for the local debate over homosexuality and substantial local resistance to the transfer of an emerging European norm recognizing same-sex marriage to a Caribbean island firm in its Christian heritage. This case interrogates the transference and reproduction of ‘global human rights norms’ in the construction of constitutions in postcolonial societies anticipated by proponents of ‘norm diffusion’ and highlights the contested acceptance offered exogenous norms by the postcolonial society.

The distinction between strong and weak judicial review occupies a privileged place in comparative constitutional law. This article argues that it is necessary to generate a new typology that includes two other increasingly influential models. The two ‘new’ models can be identified as ‘strong basic structure review’ and ‘weak basic structure review’. The former, present in some common law countries such as India and Belize, not only provides judges with the ability to strike down legislation that is inconsistent with a particular constitutional provision, but also constitutional amendments incompatible with the principles on which the constitution rests. The latter model, weak basic structure review, currently present in some Latin American countries, also provides judges with the power to strike down ordinary and constitution-amending legislation, but gives ‘the people’, acting through a constituent assembly, the final word on the validity of any form of positive law. Finally, the article considers the possibility of the development of a fifth model in which even the constituent people would be bound by certain principles to be identified and enforced by judges.

According to Carl Schmitt, constitutional law and international law are analogous in that they are both forms of political law. Schmitt concludes that neither is open to legitimate judicial enforcement. This paper critically explores Schmitt’s analogy between constitutional and international law. It argues that the analogy can be turned against Schmitt and contemporary sceptics about international law: Since we no longer have any reason to deny the judicial enforceability of domestic constitutional law, the analogy now suggests that there is no reason to think that legitimate judicial enforcement of international law is impossible.

The recent wave of popular uprisings in the Middle East and Northern Africa has sparked a renewed attention to democratization across the world. One of many intriguing questions in this context is whether this trend will be spread globally and will flash another wave of democratization among some regions and countries where democratic euphoria has faded away. Another intriguing question is whether this new wave, in the Middle East or elsewhere, will take a constitutional path or will evolve through undemocratic and unconstitutional channels. In this light, it looks perfectly timely to discuss the lessons from and the modern prospects of building constitutional democracies in post-Soviet countries.

This article offers perspectives on challenges facing post-Soviet higher courts in the effort to promote constitutional democracy in their countries. While it argues that there are many such challenges and that their roots are mostly deep in the political culture, selected and discussed are some specific instances which starkly expose the patterns of constitutional perversion and the most relevant limitations facing post-Soviet courts in our days. The solutions to these are seen in the incremental process of institutional learning hence the article suggests some designer strategies which may help moving along this process.

The first section outlines what appears to be a peculiar vision of constitutionalism as embedded in respective societies and assesses this entrenched concept against accepted accounts of Western constitutionalism. The second section discusses some specific challenges to development of constitutionalism in post-Soviet countries, concentrating on inherited mindset and legal culture, as well as corrupt political technologies and flaws in the design of constitutional courts. The third section discusses two illustrative cases before higher tribunals to demonstrate what courts face in the courtroom when confronting the described challenges.

The Internationalists argues that the outlawry of war in 1928 created the modern international order. This review essay critiques this single-cause account of world history. It shows how The Internationalists relies on statistics that obfuscate the character of war and on a juridical model of international politics that makes liberal empire invisible. I argue that war making by Asian and African peasants played more of a role in bringing about decolonisation than peacemaking by Western lawyers.

In this editorial, we consider the ways in which liberal constitutionalism is challenged by and presents challenges to the climate crisis facing the world. Over recent decades, efforts to mitigate the climate crisis have generated a new set of norms for states and non-state actors, including regulatory norms (emission standards, carbon regulations), organising principles (common but differentiated responsibility) and fundamental norms (climate justice, intergenerational rights, human rights). However, like all norms, these remain contested. Particularly in light of their global reach, their specific behavioural implications and interpretations and the related obligations to act remain debatable and the overwhelming institutionalization of the neoliberal market economy makes clear and effective responses to climate change virtually impossible within liberal societies.

Transnational civil society activism has become increasingly prominent in world politics. However, there are significant questions about how these emerging processes of transnational activism can and should interface with existing forms of global and national governance. This essay contends that republicanism can explain how transnational activism can productively relate to global and national governance. Republicanism is able to develop an approach which draws upon both constitutional and discursive aspects of democracy by developing a greater focus on the roles that citizens can play with respect to both formal state institutions and the deliberative practices with respect to transnational activism. This essay develops a position termed critical republicanism which demonstrates that these transnational forms of activism can be best understood as early stages of an incipient process of transnational democratization and that the virtues of citizens need to be rethought so that citizens are concerned about the changing nature of domination at home and abroad, and be willing to engage with transnational sources of information and activism.

Against recent contributions to the debate about the constituent power of the people, the article proposes to reorient the debate by analytically distinguishing three dominant arenas of political struggle – democratic, social and national – in which the vocabulary of ‘the people’ and its constituent power is invoked. The invocation of the ‘will of the people’ and its constituent power in these arenas is associated with different assumptions, risks and implicit ideational trade-offs that must be laid bare. A contextual approach to constituent power counsels caution in dignifying pro-democratic constitutional transformations with the name of ‘the people’. It invites those who theorize constituent power with social struggles in mind to rebalance their attention to constituent power – and devote more attention to imaginaries and strategies that minimize moral hazards implicit in the vocabulary of peoplehood and to maximize the likelihood of the new order’s survival. Finally, a contextual approach rejects the role for constituent power in national struggles, arguing that constitutional theory is incapable of arbitrating between competing assertions of popular sovereignty. In the final part of the paper, I defend the contextual approach against the theoretical interventions currently on offer, and gesture towards its potential in crafting a provincialized constitutional theory.

The judicial use of foreign law in constitutional cases is often unsatisfactorily explained in terms of persuasive authority, judicial learning or judicial dialogue. In this article, I argue that the central case of the judicial use of foreign law involves judges treating foreign case law as theoretically, rather than practically, authoritative. The justification for this approach lies in how case law emerges from a process that is structured in such a way that its outcomes deserve respect. There is, in contrast, no justification for any attempt on the part of judges to treat constitutional cases as an opportunity for interjurisdictional judicial dialogue.

The author’s 2012 book On Global Justice gives pride of place to the idea that humanity collectively owns the earth. Independently, there has been a flourishing literature on the justification of rights to territory. Central to this discussion are a Kantian and a Lockean approach. This paper recapitulates the author’s approach to humanity’s collective ownership of the earth and argues that, properly understood, both of those approaches should integrate the global standpoint constituted thereby. However, the goal here is not to amend the Kantian and Lockean approaches to territory, but to refute them. To that end the paper also argues that both approaches endorse an unacceptably strong view of the justifiability of states and should therefore be rejected. The view in On Global Justice emerges vindicated, according to which territorial rights, the justification of states and immigration all need to be theorized together, and need to be theorized from a genuinely global standpoint.

There is recent scholarship suggesting that the Responsibility to Protect (R2P) has now emerged as a master concept in relation to responding to mass atrocity crimes and that the R2P can further be seen as representative of an emerging global constitutional norm. In critical response, this article provides the first attempt to systematically investigate R2P’s relationship with global constitutionalisation as well as to explore its wider implication with regard to global constitutionalism. In doing so, the article examines existing discussions of R2P and global constitutionalism, tracks the normative evolution of R2P in order to determine its current ‘stage’ of norm diffusion, and further attempts to locate the extent to which the R2P can be perceived as also part of a process of global constitutionalisation. From this analysis the article concludes that although the R2P could be labelled as, at best, a weak emerging norm, it fails to meet the more demanding signifier of an emerging constitutional norm and that there is further evidence to suggest that the R2P might be better understood as a stalled or degenerating norm.

The survival and resurgence of Indigenous legal orders and constitutional traditions in Canada, as elsewhere, disrupt the normative hegemony of the liberal state and articulate a constitutionalism that accounts for a plurality of laws. How can state and non-state legal orders interact across vastly different normative worlds? How can their interaction address the colonial power imbalance and what role should recognition play in this relationship? This article draws on the work of Ralf Michaels on relational legal pluralism and Aaron Mills on Anishinaabe constitutionalism to explore how a legally plural society must embrace Michaels’ challenge of constitutive external recognition: the idea that legal orders mutually constitute each other through recognition without interfering with each other’s factual status as law. External recognition is consistent with strong legal pluralism and is distinct from recognition within the multicultural liberal state, a form of weak legal pluralism and continued colonialism. Mills’ discussion of treaty, rather than contract, as a foundation for shared political community assists in imagining a constitutionalism with/in Canada in which distinct legal orders can mutually constitute each other without domination. Linkage norms may help to establish reciprocal relations among state law and Indigenous legal orders, and the enactment of such ‘tertiary rules of recognition’ from within Indigenous legal orders may itself shift the balance of power.

The article examines the conceptual category of semi-liberal constitutionalism and offers some thoughts on the unique normative challenges that arise in the resolution of human rights conflicts in semi-liberal constitutional systems. Under the definition offered a semi-liberal constitutional system is a system that meets two conditions: first, it exhibits a simultaneous dual normative commitment to liberal rights and principles and to other values or interests that result in enduring and significant restrictions on some of these rights; second, this dual normative commitment is constitutive and is expressed in the basic elements of the system. Describing the problem of shaping and interpreting normative commitments in a semi-liberal constitutional regime, the article argues that an insufficient understanding of semi-liberal normativity may result in skewed reasoning by both courts and policymakers trying to resolve human rights conflicts in semi-liberal constitutional regimes, because the application of liberal rights reasoning in semi-liberal settings neglects the power differentials inherent in such systems and tends to overprotect the rights of some at the expense of the rights of others. Offering Israel as an example of a semi-liberal constitutional system and using one aspect of its semi-liberal nature – the structure of its religion–state relations and specifically of its religious personal laws – the article analyses three decisions of the Israeli Supreme Court, pointing to the special difficulties arising in such settings and offering critiques and corrections to the Court’s rulings where applicable.

The literature on entrenchment as a means to achieve constitutional endurance has grown in recent years, as has the scholarship on unamendable provisions as a mechanism intended to safeguard the constitutional project. However, little attention has been paid to the promise and limits of eternity clauses in transitional settings. Their appeal in this context is great. In an effort to safeguard hard-fought agreements, drafters often declare unamendable what they consider the fundamentals to the political deal: the number of presidential term limits, the commitment to human rights and to democracy, the form of the state (whether republican or monarchical), the territorial integrity of the state, the territorial division of power, secularism or the official religion. This article explores the distinctive role and problems posed by eternity clauses in transitional constitution-building, as guarantees of the pre-constitutional political settlement in such fragile periods. The article also compares unamendability to other techniques of constitution-making in uncertain times, such as sunset clauses, deferring hard choices and other forms of constitutional incrementalism.

Political and economic rights are envisaged as the outcome of an ongoing bargain between citizens and their rulers. Over the long run, this constitutive process shapes the development of both the economy and the state. Globalization, however, corresponds to a period where both the market and civil society extend far beyond the borders of the initial political compact. Hence, citizens may not only ask that cross-border transactions be made easier; they may also challenge the institutional cohesion and integrity of the classical, Westphalian state, i.e., its legal and judicial order, and its bureaucratic capabilities. We are proposing a schematic description of how this political process may gradually exit the national perimeter and deliver four possible models of international or global governance, depending upon the potential structuring of coalitions between the potential winners of the globalization both in the elite and in society, and the losers; national games being ultimately arbitrated by the international competition among elites, but also by the possible formation of global coalitions of citizens and merchants.