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.

Feminists and women activists use manifestos to express their frustrations with legal and political systems, expose the harms suffered in their lived experiences under patriarchy, colonialism and capitalism, and call for radical political, legal and social change. This special issue on feminist manifestos and global constitutionalism considers the role of feminist manifestos in global constitutionalism. It interrogates the role of feminist manifestos in bringing about legal and political reform, their role as historical texts and sources of global constitutionalization, and their limitations as tools that are potentially both exclusionary and de-political. In their article, Ruth Houghton and Aoife O’Donoghue outline a role for feminist manifestos within feminist approaches to constituent power. Sheri Labenski uncovers from the archives the Women’s International League for Peace and Freedom manifesto from 1924 and the outline for a ‘New International Order’. Gina Heathcote and Lucia Kula centre Lusophone African feminist action in Luanda, Angola, to problematize an approach to feminist manifestos that reiterates dominant feminisms, and instead argue for active silence by those more dominant feminist voices. In her conclusion to the special issue, Emily Jones uses posthuman feminism to interrogate and critique the claim of universality in global constitutionalism. Across this special issue, key themes emerge: the potential of inclusion and exclusion, and the role of manifesto as a method in knowledge production.

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.

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.

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.

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.

The question of whether global norms are experiencing a crisis allows for two concurrent answers. From a facticity perspective, certain global norms are in crisis, given their worldwide lack of implementation and effectiveness. From a validity perspective, however, a crisis is not obvious, as these norms are not openly contested discursively and institutionally. In order to explain the double diagnosis (crisis/no crisis), this article draws on international relations research on norm contestation and norm robustness. It proposes the concept of hidden discursive contestation and distinguishes it from three other key types of norm contestation: open discursive, open non-discursive and hidden non-discursive contestation. We identify four manifestations of hidden discursive contestation in: (1) the deflection of responsibility; (2) forestalling norm strengthening; (3) displaying norms as functional means to an end; and (4) downgrading or upgrading single norm elements. Our empirical focus is on the decent work norm, which demonstrates the double diagnosis. While it lacks facticity, it enjoys far-reaching verbal acceptance and high validity. Our qualitative analysis of discursive hidden contestation draws on two case studies: the International Labour Organization’s compliance procedures, which monitor international labour standards, and the United Nations Treaty Process on a binding instrument for business and human rights. Although both fora have different context and policy cycles, they exhibit similar strategies of hidden discursive contestation.

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.

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.

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 examines the development of the doctrine of the ‘permanent constituent power’ in Mexico. This doctrine reflects a long tradition in constitutional theory according to which the exercise of constituent power is a one-time event: once a constitution is adopted, there will be no legal mechanism in place for the exercise of the people’s original constitution-making authority. This view is nonetheless in tension with a notion that has also been historically embraced by liberal constitutionalism: that the people has an inalienable right to alter the form of government. The constitutional provisions that reflect that idea, we will see, can have important implications in terms of the nature and scope of the amending authority and, at the same time, point toward alternative mechanisms for the exercise of constituent authority. By closely examining the operation of those kinds of provisions in the Mexican constitution, we seek to illustrate a tension central to the liberal constitutional tradition and to suggest a way out of it. In so doing, we aim to draw some lessons from the Mexican case that can contribute to current discussions about constituent power and fundamental constitutional change in liberal constitutional orders.

Through an account of white feminisms and white privilege, this article examines the tensions between local and international knowledge frames. The article considers the possibility of a feminist approach to global constitutionalism and argues for a twofold critique: first, a feminist interrogation of the dominance of a specifically male history of Western and Anglo-European knowledge frames; and second, a self-critique within feminist approaches to global legal regimes that acknowledges the complicity of mainstream feminist tools in the racist histories of knowledge production. To this end, the article examines the space of gender expertise to explore how this can be both an aperture for plural feminist encounters and a refinement of diverse feminist approaches into a form digestible by the contours of international institutions. To explore alternative, decolonized encounters, the article centres Lusophone African feminist silence and action in Luanda, the capital of Angola. The article explores how Angolan gender relations, informal labour and histories of protest unsettle the frame of a feminist manifesto, to argue for a place for active silence as a methodology for undoing the status quo of global constitutional expectations of how knowledge arrives at the global and transnational levels.

Criticizing the insurance theory, this article asserts that to measure post-constitutional political uncertainty, one should consider not only the power distribution among the ‘political’ actors but the power distribution among all actors involved in the constitution-making process, including the public and civil society. Comparing the constitution-making processes of the constitutions of Egypt (2012) and Tunisia (2014), this study presents the duration of the constitution-making process as an alternative measure of power distribution among all actors. The theoretical framework asserts that the long constitution-making process increases the possibility of deliberation at the public level. That will help to develop trust among polarized political actors and improve political actors’ perception of the public as a credible control and constraint mechanism. This will ensure that the incoming government will respect the newly established institutions and lead to the establishment of an independent and powerful judiciary. In the second part of the article, to test this argument, I use a large dataset that covers information on the content and design processes of 140 countries’ most recent constitutions adopted between 1945 and 2018. The empirical results indicate that as the duration of the constitution-making increases, the number of constitutional guarantees for judicial independence also increases.

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.

There is a need for the field of global constitutionalism to consider a wider array of voices, such as women’s voices and perspectives from the Global South. Here, I argue that global constitutionalism must pay attention not only to a wider array of human perspectives, but also to non-human perspectives and to different understandings of what the law is and can be. Evaluating how international law categorizes the environment and non-human animals as things or objects to be exploited for human needs, I argue that posthuman feminism provides an alternative epistemic frame for rethinking both global constitutionalism and international law.

This article interrogates the normative coherence of the label of ‘digital constitutionalism’. In particular, I argue that the use of the label ‘constitutionalism’ in digital contexts often conflates the practical realities of existing contractual governance models with the superficial appeal of constitutional structures. As a result, the label is misleading in both normative and qualitative terms as it obscures the true nature of the governance architectures to which it is applied, which are more appropriately understood as implementing a distinct genre of ‘private policy’.

‘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.

This article addresses the bastardization of constitutional law in Argentina and the corrosive power of legacies of authoritarianism. It offers a genealogy of the use by Argentina’s Supreme Court of self-restraint canons from the time when they were borrowed from the US Supreme Court in the late nineteenth century. Partly resulting from the country’s experiences with military rule, the court transformed or expanded these canons, which entailed a gradual depreciation of statutes as the (uneasy) cornerstone of constitutionalism. Based on a fresh dataset and employing narrative and network analysis, the article focuses on a slogan the court has invoked since the 1960s: invalidating a rule is a matter of extreme institutional gravity and hence a strategy of last resort. Under the 1976–83 dictatorship, the court applied the slogan to various rules, including those passed by the military. It thus invoked familiar canons outside its scope conditions, conveying an illusion of constitutional regularity by masking the abnormal in acceptable garb and contributing to the regime’s legitimation. While the democratic court abandoned the most blatant expressions of authoritarianism, connections persisted, manifesting in the frequent citations to the dictatorship court’s use of the slogan and its extension to any rule. Authoritarian legacies die hard.

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.

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.