Collective labour rights, including the right to organize and strike, were recognized in the principles of the International Labour Organization (ILO) as fundamental rights. Despite their importance, different countries enacted legislation that included a ban on police organization in trade unions or a ban just on police strikes. The right of police officers to organize and strike is of particular importance nowadays at a time of increased public scrutiny and large-scale protests over incidents of extra-judicial killing by police. There is a need to recognize collective rights for police officers in order to improve working conditions and organizational justice at work for them as a way of moderating officers’ perspectives of public hostility and improving their capability to carry out their duties. Another benefit of recognizing a right to organize is the union’s capacity to advance important values, including avoiding racism and violence and assuring the compliance of individual officers with the ethics and code of conduct expected from police officers. This article seeks to address the unique topic of the linkage between the collective labour rights of police officers and varieties of constitutionalism in these critical times. It introduces two potential approaches in this regard: (1) global labour constitutionalism; and (2) militaristic labour constitutionalism. The former implements international standards set by the ILO as a basis for constitutionalism while the latter emphasizes domestic issues and the need to maintain the public order and security of citizens. The article examines the possibility of applying global labour constitutionalism as a basis for recognizing collective rights for police officers.

This article aims to explore the new normal in lawmaking during the COVID-19 pandemic. It proves how the pandemic has affected the making of legal norms, in terms of both process and content. It argues that COVID-19 legislation is largely driven by scientific data for the sake of public health. In this context, it explains how national-decision making is influenced by expert advisory bodies that attempt to specify how public health may be preserved during a pandemic crisis. Moreover, it sheds light into the fact that law-making during the first phases of the pandemic was approved and endorsed by the populations of states, due to their fear of the unknown disease. However, as the pandemic steadily became an established truth, the public’s trust in lawmaking started to decrease. These shifts are well explained if one conceives lawmaking by expertise as a sliding scale, the ends of which are legality at one end and expertise coupled with popular acceptance at the other. This unique sliding scale depicts how COVID-19 lawmaking functioned, balancing between opposite trends.

Deliberative constitutionalism is one of the most important developments of recent decades in constitutional theory and practice. It is in this context that Cristina Lafont’s Democracy Without Shortcuts was published. Lafont’s theory provides an opportunity to advance the research agenda on deliberative constitutionalism since she offers a deliberative democratic reinterpretation of judicial review. According to this compelling and powerful idea, citizens can challenge any laws in constitutional courts and thus trigger democratic deliberation about rights. With this issue in mind, this article offers a general approach to deliberative constitutionalism, describes Lafont’s reinterpretation of judicial review, and makes explicit five tensions in this reinterpretation of judicial review vis-à-vis deliberative constitutionalism: (1) the default authority in the interim; (2) the procedural type of constitutional amendment; (3) the scope of judicial review; (4) the irrelevance of constitutional amendments; and (5) the scope of constituent power.

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.

This article argues that the tokenistic appropriation of categories such as gender and race have deprived them of their radical and transformative political and practical roots while facilitating their commodification as a luxury product that is consumed by the depoliticized and privileged. Such (ab)use of gender, as an analytical tool, similar to race and class, has been on the rise within progressive circles. However, with the rise of alt-right populism claiming to know and fight ‘feminism’, as well as the commodification of feminism by progressives, now more than ever a decolonial social reproductive theory is needed to help understand and delineate how women are oppressed in a plethora of intersectional ways based on race, class and ability among other traits, while engaging the specific material historical-constitutive structures, judicial-political and socio-economic dimensions of the world order, as well as the emergence of right-wing populism as white heteronormative backlash. This article argues for a feminist decolonial social reproductive theory that sees gender and racial hierarchy as part of capital’s dynamism (a product), which transforms the natural, social and material world, restructuring and evolving for the ordered extraction of surplus. Although this process may differ temporally and geographically, it nonetheless results in a constellation of class exploitation, governance and struggle that facilitates right-wing backlash and undermines the left’s response, thus obviating the need for decolonial social reproductive theory.

Feminists have utilized manifestos and utopias in order to make important, often revolutionary, contributions to international law. However, these engagements have not been reflected in the substance of international law. The sources of international law – specifically customary international law – rely on a narrow understanding of historical knowledge. This article centres the 1924 manifesto and the ‘New International Order’ created by the Women’s International League for Peace and Freedom, as tools to assess the exclusion of the under-utilized history of feminist peace work from the sources of international law. This allows for a reflection on customary international law’s weaknesses and reaffirms the importance of feminist approaches to international law.

Women use a multiplicity of forms and methods to articulate harms and claim political spaces. Among these are manifestos.1 Women’s manifestos are concomitant with both political convulsion and the enduring, mundane inequalities faced by women; they play a key role in feminist attempts to achieve political and legal ends.2 Manifestos are overtly political acts of legal/political performance; they are in dialogue with each other, with counter and anti-manifestos, and with the legal-political infrastructures they inhabit.3 Manifestos seek to fracture traditional understanding and practices of law, often in the guise of claiming constituent power and political space.

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.

‘Practical’ approaches to human rights hold that analysis of legal human rights must attend to the practice(s) of international human rights law and that the nature and justification of international human rights is best determined by attending to their role(s) in international human rights law’s system of normative practices, not analogous moral rights outside it. These core tenets plausibly explain the apparent normativity of international human rights law despite controversies about the status of many ‘rights’ in the ‘International Bill of Rights’. Yet plausible practical approaches require clear and compelling accounts of which practices qualify as human rights practices. Most existing accounts view ‘responses’ to claims made in the name of the international legal community as key to the identification of human rights. Activities by domestic governments and non-governmental actors qualify as relevant practices. While understandable, these ‘responsive’ accounts of practice create more problems than they solve. This work accordingly promotes a largely unexplored account on which ‘human rights practices’ are strictly defined by international legal doctrine. This ‘doctrinal’ account of practice is most likely to maintain practical approaches to human rights’ potential benefits without generating an unduly expansive rights register or adopting strong theoretical commitments about the nature of law.

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.

This article explores the transitional justice (TJ) dilemmas after revolutions have overthrown autocratic regimes through developing a model that uses a law and economics methodology. The article seeks to answer two questions: Why do post-revolution regimes resort to or ignore TJ policies towards former autocratic regimes? And why is it difficult to adopt and apply welfare-enhancing TJ mechanisms in practice, including popular suggestions within the TJ literature to portray the civil society organizations as the key solution to TJ dilemmas? To answer these questions, the article provides a theoretical positive analysis of the scenarios and dilemmas of TJ. It argues that TJ should function both as an internalization mechanism of negative externalities of the violations of the past-regime, and a form of constitutional arrangements as an ex ante incentives structure to prevent the repetition of these violations. However, due to asymmetric information problems, behavioural biases and the constitutional nature of TJ, the ‘TJ momentum’ precludes most of the traditional solutions for this principal–agent problem.

Scholars of global constitutionalism have recently come to examine international criminal law (ICL) and its associated institutions, in particular the International Criminal Court (the ICC). This article prolongs these efforts by pointing to and remedying two deficits of that project with particular emphasis on the Rome Statute crimes. First, how does one account for the role of the international trial in global constitutionalist terms? Second, can global constitutionalism insightfully explain the content and scope of these crimes – that is, both their substantive definition and the predominant modes of liability developed by the ICC? This article answers both questions affirmatively and offers an account of their nexus. It first shows that the Rome Statute crimes are often perpetrated through a hierarchically organized apparatus of control, and interprets their global constitutional significance via the principle of constituent power. It then makes use of Antony Duff’s relational account of criminal liability to offer an account of the international trial. In the international context, one can conceive of the trial as allowing state or state-like authorities to call each other to account, which renders justice to the core function of enabling and limiting political authority on which global constitutionalism centres.

This article adds nuance to current understandings of the relationship between the populist leader and the public by using the concept of trust. Merging the literature on populism with the growing scholarship on trust from philosophy, psychology and other social sciences, it argues that following on from the populist leader’s appeals to similarity, the populist–public relationship involves an intertwining of two forms of public trust: the public’s trust in the populist and the public’s trust in itself (what we term ‘public self-trust’). Contrary to what political and constitutional theorists have recognized as a tension between public self-trust and the public’s trust in its political representatives, we contend based on the scholarship on trust that in the populist–public relationship these two forms of trust can be mutually reinforcing. This mutual reinforcement, we suggest, has the potential to create a positive feedback loop of public trust that, given the value of public trust to political leaders, empowers the populist.

In 2019, Thailand ratified the International Labour Organization Work in Fishing Convention to protect migrant fishers. The Thai government vigorously promoted the Convention among its constituents. Yet, despite the government’s proactivity, such norms have been weakened upon local translation. This phenomenon is not readily explained by existing norms research that pays scant attention to norms in the domestic space. To address this oversight, this article unpacks domestic processes of norm validation and makes a two-step argument. First, it argues that norm validation is crucial for instigating domestic implementation by allowing stakeholders to deliberate and contest the ‘appropriate’ application of norms. Second, it argues that the locally acquired normative understanding, as influenced by norm antipreneurs, or actors who defend the status quo, weakens norm implementation while the norms’ discursive strength is retained. In presenting the findings, this article contributes to the norms literature by illuminating a new life given to validated norms. The contribution also interrogates norms’ global–local dynamics by scrutinizing norm contestation and the extent to which it generates an internalized sense of legal obligation to implement international norms.

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.

This article investigates how the European and Inter-American human rights regimes have developed communication practices to create loyalty. It argues that communication departments exercise essential functions, in particular by creating diffuse support for international courts. By relying on theoretical analyses developed by Albert O. Hirschman and David Easton, it identifies how international courts can create loyalty through, first, fostering awareness about the existence of the court among the general public, and, second, the establishment of supportive communities around the court through shared practices. By drawing on semi-structured interviews, the comparative analysis of the European and Inter-American human rights regime illustrates both the professionalization of communication actors and the evolution of specific communication strategies in times of backlash. The empirical insights derived from semi-structured interviews with communication officials highlight how they have succeeded in expanding their audiences, but struggle with activating communities of practice. Ultimately, the rise of visual media formats and story-telling narratives might be the most promising tool to portray a more positive and engaging image of the institution.

Global regulatory competition is a recent phenomenon that confronts us in various different fields, ranging from food and chemical safety to climate change, and animal welfare to environmental law. The digital economy is not immune to this trend, and it seems highly unlikely that this will soon come to an end when we consider the radical differences between the European Union and the United States with respect to the importance they assign to the right to privacy and the right to freedom of speech. Nevertheless, despite their differences in content, it can be contended that they both tend to disregard the interest of others even though they have enough resources at their disposal to take them seriously. This becomes visible when the recent case law of the CJEU and the recent regulations such as the GDPR and the US CLOUD Act are taken into account. Their similar attitude to regulating for the globe raises the question of whether we are confronted with a new type of Eurocentrism, which is more contracted and introverted than the previous expansionist version. The article argues that unilateralism should be a selfless one and that it should necessarily consider outsiders if it is to acquire legitimacy.

Although markets are becoming increasingly transnationalized, the social question appears to remain firmly national. The aim of this article is to discuss under what circumstances, if at all, the social question ought to have a transnational dimension and what form it should take. As such, the article seeks to build a normative framework that abandons the conventional taxonomies of moral duties and instead links the concept of responsibility to governance, which takes place in the space of the polis through a reliance on questions of group agency. To this end, the article will draw on different aspects of responsibility. Having established a link between the social question and the concept of responsibility based on outcome and remedial responsibility, it will draw on collective and shared responsibility to consider what, if any, transnational dimension the social question should have.

International institutions underpinning the ‘liberal international order’ are increasingly contested by established Western powers. This article contributes to a better understanding of this novel challenge ‘from within’. We conceptualize four types of contestation frames according to (1) whether contesting states attribute the source of grievances to specific practices or the underlying principles of an international institution; and (2) whether they present their own nation or the international community as the subject of grievances. Combining these two dimensions, we distinguish between globalist-reformist, nationalist-reformist, globalist-revisionist and nationalist-revisionist contestation frames. These contestation frames are consequential as they open up or shrink the discursive space for contested institutions’ re-legitimation. Drawing on the Trump Administration’s contestation of the World Bank, NATO, the UNHRC, and the WTO, we demonstrate that contestation frames and defenders’ responses varied greatly across institutions, ranging from accommodative deliberations about institutional reforms to principled rejection and the justification of the status quo.

This article approaches current constitutional conservatism in Europe, focusing on the limits of equality rights regimes. These frameworks, it is argued, provide little leverage for positive discrimination to become articulated, let alone for them to be implemented by public policies. Equality regimes are further disentangled by means of a multidimensional reading of legal orders: particular attention is devoted to international human rights law (IHRL) and European Jus Commune that may inspire shifts in constitutional thinking at domestic levels. In that sense, equality frameworks steadily open up towards an inclusive understanding of human rights based on the transformative forces of international law. A pluralistic idea of those subjected to such regimes will be embraced, hence developing a clearer conception of rights holder categories and ultimately peoples affected in daily practice, particularly minorities. A dedicated focus is placed on ethnic, cultural, religious and linguistic grounds. This may similarly concern intersectionalities and the complexities of overlapping grounds of discrimination. It is stressed that equality is best addressed by means of a multivariate approach to legal orders, their dynamics and ultimately virtuous effects of application.