This chapter investigates the problem of how the transplant and borrowing of foreign constitutional law and international law can influence constitution-making processes and constitutional interpretation – state actions which are still considered sovereign. International law, especially international human rights laws, are of pre-eminent importance in this context since they are virtually by definition based on limitations on national constitutional law to assert internationally shared constitutional principles. In other words, the chapter seeks to answer the question of how far the process of the internationalization of (national) constitutional law has progressed; to what extent are the framers of constitutions and the courts that interpret constitutions willing to accept alien, foreign, or international principles and rules? What underlies the decision by the constitutional organs of certain states to accede to such constitutional migration, and the rejection of such migration by their respective counterparts in other countries?

This chapter addresses the issue of democracy, in the context of this book on comparative constitutional law. It is readily apparent that the topic could be addressed from very different perspectives. Thus, the entire chapter could be directed towards differences between democratic and non-democratic constitutions. It might, alternatively, consider differences between constitutions within democratic polities, examining whether there are, or should be, constitutional differences that flow from different forms of democracy, or how far such differences result from the elevation of socio-economic norms to constitutional status. The chapter might have a different, more empirical, emphasis, with discussion as to the relative importance of constitutions in different countries. These are all significant issues, and each would occupy the entire chapter. They are not, however, addressed here.

All courts perform functions of a broadly constitutional kind. They provide a key mechanism for ensuring compliance with law and the peaceful resolution of disputes between people, according to law. Viewed from this perspective, they are integral to the capacity of a state to carry out its responsibility to establish and maintain internal peace and security.1 In one form or another, courts also are likely to be the forum for the resolution of that most challenging category of legal disputes: enforcing compliance with law by the institutions of the state itself. In each of these respects, courts are central to the rule of law. They may be analysed in terms of separation of powers or representative democracy, as well, where these are features of the constitution of the state.

Any analysis of the role of human rights in domestic constitutional law must grapple with a central tension lying at the core of the relationship between the two. Whereas constitutional law is inevitably grounded in a particular place covering defined sets of people, human rights aspire, as the term makes clear, to transcend the political in the name of entitlements that inhere in people wherever they are from and regardless of the governmental arrangements under which they live. National constitutional law can almost always point to a specific moment when the foundational document from which all else follows is agreed and brought into effect, and even in those very few places where this is not the case (the United Kingdom, for example) the ‘constitution’ is made up of a bundle of documents (statutes; judicial decisions; shared practices) which are similarly rooted in time as well as in place and people. In this way too human rights appear different: the vast ambition of the phrase involves a claim to stand outside a history made up not only of people and places but of foundational turning points as well.

This chapter examines the rise of the Independent Fiscal Institution (IFI) within the institutional structures of modern states. A new feature of the regulatory landscape in most of the jurisdictions where they are to be found, these institutions are designed to encourage fiscal responsibility on the government’s exercise of its budgetary responsibilities. The IFI often forms part of post-Global Financial Crisis (GFC) regulatory architecture1 and is familiar to students of political economy and financial regulation. But even though their activities relate directly to government in a way that is less true of other post-GFC innovations, IFIs have been largely ignored in the specialist public law literature, a by-product of the tendency among public lawyers to overlook the political economy dimensions of their field.2

International law has always been conceived as a project involving sovereign and equal states, who would be forever locked in battle with each other – if not literally, then at least metaphorically. The international legal order, such as it is, was always conceptualized as a horizontal order, mostly geared towards facilitating the co-existence of states, and with scant attention for planetary unity, or even for the interests of individual human beings. International law was made by states, to regulate relations between states, and for the benefit of states. What happened within those states was long considered anathema, and nothing was supposed to exist above those states.