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

In this contribution, the key elements of the book’s progress narrative will be discussed. The focus will be set on the ‘backbone’ of the book, which consists of three ideas or elements: the periodisation decision (II), the claim of a specific conception of social change (III), and a specific understanding of international law (IV). In regard to each of those elements it will be asked how they are justified, what insights they provide and whether there are blind spots.

When a constitutional court faces opposition from other branches of government or significant segments of the public, should it always hold fast to what it considers constitutionally right, even where this would potentially harm its status and perceived legitimacy? Or are constitutional compromises sometimes justified? Such ‘institutionally hard’ cases – those characterised by a sharp tension between constitutional principle and institutional prudence – pose a true dilemma for constitutionalism. This article advances a realistic, yet principled, liberal-constitutional approach to this dilemma, put forth in the vein of Rawlsian non-ideal theory. It addresses a troubling gap between, on the one hand, the idealising discourse of constitutional theory – which overlooks or downplays the actual social and political pressures that courts must confront – and, on the other, a growing political science literature which, in the name of ‘realism’, views judges solely as strategic actors, leaving no role for principled reasoning. What has stepped into the gap in normative theory is a vague notion of ‘judicial statesmanship’, which praises or criticises judges post hoc, on an intuitive basis, without any tangible prescriptive bite. Developing evaluative and prescriptive guidelines for institutionally-hard cases, a non-ideal theory of constitutional adjudication should construct principles that both reinforce the commitment to ideal constitutional principle, and properly situate constitutional courts within the real – contingent and often very non-ideal – social and political contexts in which they operate.

The article discusses the concept of popular sovereignty over natural resources and its possible applicability to a broader account of natural resource justice based on a moral interpretation of international law. Leif Wenar’s recent proposal to entrench popular resource sovereignty as a counterclaim to illegitimate uses of natural resources by corrupt and authoritarian regimes serves as the starting point for the discussion of the possible meaning of popular resource sovereignty and its role in an account of natural resource justice. Three key aspects of Wenar’s conception are in focus: 1) the framing of popular resource sovereignty within the current system of sovereign territoriality, 2) the notion of collective ownership of natural resources as the content of popular resource sovereignty, and 3) civil and political rights as the key set of norms determining the conditions of legitimate exercise of resource sovereignty. The article argues that collective sovereignty claims over natural resources can neither be framed exclusively through boundaries of current sovereign states, nor understood in terms of full and unlimited property rights. Concerning civil and political rights, I argue we need to move past the liberal conception of legitimacy toward a more comprehensive human rights-based conception of justice serving as a standard for assessment of legitimacy of both sovereign and non-sovereign entities which have rights over natural resources.

What, if anything, can constitutions do to resist democratic backsliding? The collapse of the Weimar Republic has led scholars of comparative politics to conclude that constitutional forms and institutions can do little to resist the breakdown of democracy and the rise of autocracy. This paper offers a constitutionalist response. The outlines of that answer can be found in decades-old policy documents produced by a set of German émigré scholars during and in the immediate aftermath of the Second World War: Franz Neumann, Herbert Marcuse, and Otto Kirchheimer. The secret reports root constitutional stability in the creation of a framework for bounded partisan pluralist contestation among political parties that track the principal social and economic cleavages, and that is rooted within, and does not seek to overthrow, the underlying political economy. Second, the secret reports highlight the importance of constitutional design in creating a constitutional infrastructure for bounded pluralistic political contestation, especially with respect to the role of political parties. Third, the secret reports suggest a counter-narrative of the German Basic Law as creating a framework for political contestation that reinforces constitutional stability instead of undermining it.

Since the early 2000s, regimes and institutions of global governance have undergone a paradigmatic shift in their relations with multinational corporations. The United Nations, in particular, has increasingly embraced big business as ‘partner’ in humanitarian response and development with the establishment of ‘global public–private partnerships’ (GP3s). This article situates this emerging mode of global governance within the recent academic discussions on Global Constitutionalism from a critical political economy perspective, focusing on the case of the UN Refugee Agency’s GP3s in refugee protection and assistance. Critically inquiring into GP3s not only as informal global constitutional arrangements but also as a set of political relations, this article asks: what is the constitutional and political nature of UNHCR–business partnerships? What impacts, if any, do they have on the agency? And, what does this mean for understanding global constitutionalism? The article argues that UNHCR partnerships are constituted as asymmetrical political relations in terms of their distributions of power, benefits, risks and commitments, that they are having neoliberal-oriented constitutive effects on the agency and that these constitutional dynamics challenge the more mainstream and liberal-based conceptualisations, analyses and promotion of current global constitutionalism processes.

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.

These comments address three themes concerning Oona A Hathaway’s and Scott J Shapiro’s The Internationalists (Hathaway and Shapiro 2017), a great contribution to scholarship about international relations, international law and international legal theory. I first explore further some game theoretical themes, how the Peace Pact arguably contributed to avoid war by creating institutions – such as international courts – that helped stabilise an assurance game among states by providing trustworthy information and commitments, in turn influencing practices and beliefs concerning mutual non-aggression. Second, I suggest that the authors should not claim more than that the Peace Pact was one cause of the massive shift in reduced warfare. Further arguments are needed to show that this treaty was the trigger that ‘began a cascade’. Third, I suggest that the lessons for the future are limited, as we explore how to preserve and improve on the New World Order of the Pact, rather than backsliding into the Old World Order.

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

This article aims to provide an alternative account of political constitutionalism by situating it in a broader process of constitutional politics than the traditional court vs parliament debate has suggested. Drawing upon Robert Cover’s distinction between the jurispathic and the jurisgenerative constitution, I argue that parliamentary decision-making is not necessarily more congenial to a jurisgenerative constitutional order than judicial review as political constitutionalists contend. I trace the jurispathic character of current scholarship on political constitutionalism to the presupposition of institutional sovereignty in a narrow understanding of constitutional politics, which its defenders share in common with the supporters of judicial supremacy. To move towards a robust version of non-court-centred jurisgenerative constitutionalism, which I call constitutional jurisgenesis, we need to rethink the place of politics in a constitutional order. From Cover’s idea of constitutional nomos I take two further lessons for this new understanding of constitutional politics. First, constitutional theory should reconsider the role of institutional sovereignty in the relationship between law and politics in constitutional orders. Second, to engage the people in constitutional politics, we need to shift attention from the popular sovereignty-centred debate to constitutional narratives, which are oriented towards nomos-building.

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

Why has interstate war declined and why do states refrain from territorial conquests in the post-Second World War order? The 1928 Peace Pact cannot account for these remarkable developments. This article argues that outlawing war is not enough to promote international peace. International Relations debates on the influence of weapons of mass destruction, democratic regime types and political cultures on interstate behaviour provide further important insights into the delegitimation of certain types of war. Since the 1990s, a changing character of war and warfare has emerged that is especially promoted by democratic states. How democratic states have justified their military use of force and how they have conducted their military interventions has a strong and ambivalent impact on the liberal world order.

With the progressive digitisation and use, in particular, of the internet of things and artificial intelligence by industries, commerce, financial services, science and education, the public administration, health services as well as individuals, our society and daily life gets more and more dependent on the security of the net: cybersecurity. The new risks are self-made, a threat to almost everybody and new in kind. And they have a global dimension. For the difficulty of attribution of cyber attacks traditional concepts of deterrence and defence are not a solution. Given the new conditions of the ‘digital constellation’ this article aims at exploring instruments and methods of cybersecurity governance in a broad sense, learning from internet governance and taking a constitutional perspective. It is based upon shared responsibility, resilience and citizens’ participation in the making and future application of an inclusive global rule-making system. Multi-stakeholder mechanisms are combined with deliberative processes, standardisation and legislative action. In accordance with the principles of global constitutionalism this new framework of global rule generation would emerge as a common democratic instrument of people to meet common challenges in addition and complementary to action for cybersecurity at the local, regional, national and supranational levels.

If the main merit of The Internationalists is to shed light, in a powerful and convincing way, on the transformative power of rules, the role of institutions – and in particular of the United Nations and its collective security system centred around the activity of the Security Council – does not come out of the book as clearly as it might. It is submitted that the decision to concentrate upon the rule – the prohibition to use force – while limiting the attention paid to the institution – the United Nations and its collective security system – is not without consequence, particularly given the strict link existing, in the common perception, between the rule and the institution. This brief comment will focus on certain ambivalences emerging from the book about the contribution of the United Nations, as a peace-enforcing organisation, to fostering the emergence of a New World Order, as well as its continuing relevance for preserving the effectiveness of the principle on non-use of force.

The Internationalists is a fascinating book. The authors present a clear proposition about the significance of the 1928 Pact for the Renunciation of War for a more peaceful world. My focus is on the role of what the authors call outcasting, as an alternative to war. I argue that outcasting is hardly new. It has been known as reprisals or self-help, and currently as countermeasures. It is essential that such measures are brought under international control. What is more, the current US administration is a threat to the current world order. Other states and civil society need to continue to develop internationally controlled sanctions against violations of international law – also in the absence of the USA.