Chapter 3 aims to establish whether the new Arab bodies for constitutional review have acquired the potential to subject the executive branch to adequate checks and thus contribute to the processes of democratization more effectively than in the past. The chapter first discusses the origins of constitutional review in the region, as well as the main reasons why, before the Arab Spring, constitutional courts and councils rarely acted as “counter-majoritarian” bodies. The chapter then turns to an analysis of the major changes in the field of constitutional justice introduced by the post-2011 constitutions, including a limited strengthening of the independence of constitutional review bodies, the vesting of these institutions with judicial status, the broadening of access to these institutions, as well as a further expansion of their jurisdiction. The chapter also examines the role that constitutional courts and councils played in the transition processes that followed the outbreak of the Arab Spring. Finally, the chapter discusses the most significant obstacles that constitutional courts and councils still need to overcome in order to emerge as effective guarantors of the principles of constitutionalism.

National courts are central actors in the EU legal system. In a system of remedies against EU acts, they take on a filtering function. Comparatively few civil society actors – individuals, groups, or companies – have direct access to the EU courts. This chapter focuses on the autonomous role that national courts can and do take on in addressing alleged rights violations by the EU. The chapter explores how enterprising civil society actors seize on the ambiguities inherent in a multi-level jurisdiction with contested hierarchies. In focusing on such efforts, this chapter is less interested in doctrinal questions of how to resolve conflicts inherent in a pluralist legal order. Rather, it looks at the circumstances under which civil society litigants – individuals, groups, and companies – address a claim to a national court and where national courts have historically been open to such claims.

This chapter maps the effects and implications of a judicial presence in the constitutional law of parties and elections. It first aims to clarify some theoretical premises of this constitutional design choice raised by a potential judicial role in elections and party managements. It then develops an analytic taxonomy of potential judicial tasks in managing elections, offering numerous examples, with the general ambition of fostering democratic stability. This taxonomy of beneficial uses is complemented with an enumeration of potential risks. This theoretical and analytic work counsels against simple and unidirectional prescriptions about the role of courts in protecting democracies, although it does clarify the stakes of their role, and their comparative advantages (and disadvantages) in relation to fourth-branch bodies.

This chapter investigates legal accountability of financial assistance from the perspective of borrower countries. It adopts an empirical approach taking the Portuguese case to test how accountability of the financial assistance programme, on the one hand, and of the national measures implementing conditionality, on the other, was exercised. The investigation focuses on the judicial review of austerity measures in different institutional contexts comprising the domestic constitutional court, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. It aims at assessing in how far these judicial fora have delivered the accountability goods identified in the introductory chapter, particularly publicness, as the good oriented towards ensuring that public action is guided by common goods, namely that it respects the constitutional principles of equality and proportionality.

Which matters should constitutional courts leave to the democratic process, and what is a tenable relationship between constitutional courts and popular sovereignty in a liberal institutional order? Federalism complicates this issue: There is more than one popular sovereign in the United States. Since popular sovereignty is exercised at the subnational level for some purposes and at the national level for others, courts can thwart popular majorities at one level of government while simultaneously upholding them at another. Promoting the health of the democratic process and limiting the harm majorities sometimes impose on minorities appear to be areas in which constitutional courts could play an important role. Yet, examination of two cases involving equal access to the political process in the context of federalism illustrate some reluctance of the recent US Supreme Court to take on such a role – political gerrymandering in Rucho v. Common Cause (2019) and rights of minorities in Schuette v. Coalition to Defend Affirmative Action (2014).

The presence of foreign judges on the Constitutional Courts of Bosnia-Herzegovina and Kosovo is due to the existence of ethnic conflicts and societal divisions which resulted in the internationalisation of their constitutions and centralised constitutional courts. This chapter examines whether and to what extent the presence of foreign judges on these constitutional courts has met the rationale of helping to end or pacify the ethnic conflicts. It compares the influence of foreign judges on adjudication and constitutional law, and their contribution to the legitimacy of the courts in the eyes of the public and political actors. Differences between the working conditions of each court, degree of judicial activism, and the distribution of legitimacy between the court itself and the foreign judges, arise in each context, but the analysis ultimately suggests that the appointment of foreign judges to resolve ethnic conflicts is a ‘mission impossible’.

Chapter 5 explores legal embedding in Colombia. It tracks why and how Colombian judges – both at the Constitutional Court level and the lower court level – came to be receptive to the new constitutional order, especially claims through the tutela procedure, even when those claims appeared to be beyond its formal scope. The combination of repeated exposure to particular kinds of legal claims in the formal legal sphere and exposure to the problems those claims implicate in everyday life seems to drive judicial receptivity. Judges are particularly receptive to claims when they interpret them as consonant with contemporary socio-legal values.

Comparative constitutional law has experienced a resurgence in recent decades. Whereas two decades ago the field was focused on the North Atlantic and the issue of rights adjudication, there now exists a vibrant literature on many different jurisdictions and issues, covering a wide field of global constitutional arrangements. This chapter will review the history and rapid progress of the field of Constitutionalism in Context. The most encouraging and visible manifestations of this progress include a shift away from Eurocentrism and the traditional focus on apex courts. It will also identify lacunae in the existing literature and questions that would benefit from further exploration. This essay will conclude by proposing a next-generation research agenda for the field.