Despite the shock provoked by the Snowden revelations, mass surveillance is still a reality in the EU. However, over the past few years, it has been possible to observe a gradual constitutionalization of these practices. This Article maps the ongoing process of progressively defining the constitutional limits and societal affordances of mass surveillance in the EU by focusing on the three main actors who contribute to it. First, this Article presents civil society as the propeller of this trend. Civil society not only advocated for a ban on general surveillance systems in the aftermath of the Snowden revelations, but also promoted a series of strategic litigations to challenge state surveillance practices at national and EU levels. Second, it analyses CJEU case law as the main constitutionalizing engine of this process. The Court pragmatically ascertained that an absolute prohibition of mass surveillance did not appear to be a realistic solution and put significant effort into actively defining the legal boundaries of these practices by striving to find an equilibrium between Member State interests and citizens’ fundamental rights. Third, it considers the approaches taken by national legislators to be a slowing factor. States are still reluctant to incorporate the constitutional standards progressively developed by courts despite the now significant body of judicially created parameters in the field.

CJEU case law has long emphasized the autonomy of the EU legal order, recently triggering the foreclosure of intra-EU investment arbitration. Though academic discourse has treated this as a European peculiarity, autonomy is not unfamiliar to international law as an inherent attribute of all international organizations (IOs). This Article traces how the CJEU employed this as the basis for the development of a legal principle of significant constitutional role in safeguarding the EU’s jurisdictional integrity. First, It considers the EU conception of autonomy on the basis of two identified dimensions of IOs’ autonomy under international law. Political autonomy characterizes the scope of an IO’s powers and its independent legal personality. Institutional autonomy denotes its (im)permeability to external norms. Second, the Article examines autonomy’s different normative status under international and EU law as a legal notion and a constitutional principle, respectively. Rather than viewing the latter as an EU invention, it amounts to a Pygmalian judicial creation—the CJEU drew inspiration from a notion of international law and adapted it within the Union framework. The Article justifies these adaptations by reference to international law in light of the EU’s institutional-judicial architecture and the intertwining of autonomy with, inter alia, Article 2 TEU values.

In conversation with several chapters of Stefan Grundmann’s, Hans Micklitz’s, and Moritz Renner’s book on New Private Law Theory, this paper reflects on contributions that theories of communication and constitutionalization can make to our understanding of the changing role of private law in a globalizing world. More abstract ideals are checked against an assessment of recent judgments of Dutch courts in cases regarding oil company Shell’s responsibility for environmental pollution in Nigeria. Such theoretical readings of case law, it is held, in the spirit of New Private Law Theory, show new directions that private law theories may choose in order to understand and strengthen the private-legal framework for societal questions of our times.

Since contracts form a basic institution of every legal order, the interdisciplinary orientation of concepts of contracts reveals socio-legal inclinations of a legal order more broadly. Contrasting the UK and US Common Law of contracts with developments under German law, this Article examines the relation between normative and social science approaches, notably rooted in economics, economic sociology, and social theory in the genealogy of contract law. A shared leitmotif over the 20th century has been the drive to account for the societal embeddedness of contract. However, conceptualizations of “Contract and Society” differ considerably between legal orders in their disciplinary ingredients and design. In the US, and to a lesser extent also in the UK, the rather continuous reception of legal realism has paved the way for broad interdisciplinary perspectives on contract law, ranging from classical socio-legal, empirical work (e.g., Macaulay), economics (e.g., Williamson), sociology (e.g., Powell), and critical theory (e.g., Kennedy) to today’s landscape, where essentially instrumental and ideal-normative theories compete. Alternatively, in Germany, where the realist heritage was more ephemeral, the transformations of contract law were processed from within legal discourse and foremost in their effects on private autonomy as conceptualized, for example, in German idealism, discourse theory and critical theory. Similarly, the “constitutionalization” of contract law—even if championed for fostering private law’s reflexivity—has, for the most part, defied a socio-legal orientation. Finally, the Article highlights the path dependencies with which these different starting points translate in current debates around the role of contract in transnational governance.

The relationship between state and absent citizens is becoming more important since the globalization of the 1990s. Countries usually try to increase the number of their citizens through two methods. The first is by increasing the number of nationals living abroad using a dual-nationality system. The second is by expanding national power through dual culturalism. These methods increase the international capacity of the home state through the expansion of the de facto state territory from the perspective of network-power theory. Latin American countries have been relatively passive in this diaspora-engagement policy, but recently they have begun to show an active attitude by revising their migration policy—amendments to the Constitution and migration law, dual nationality, dual culturalism, voting rights abroad, and upgrading the status of diaspora agencies, etc. However, it is still unclear how the multinational and multi-ethnic Latin American countries conceptualize diaspora. This paper analyzes the diaspora-engagement policy of Latin American countries from the standpoint of network-power theory and tries to find out what its theoretical framework is. This paper concludes that the theorization work on diaspora should continue to track and analyze these policy changes, since it is difficult to understand what the diaspora concept is and what policy objectives the state is pursuing under the current diaspora-engagement policy.

The article argues that, by bringing a number of changes of systemic proportions in the order of international law, the internationalization of national constitutional human rights law has led to the ‘constitutionalization’ of international law. To build that argument, the paper first critically assesses the constitutionalization narrative. To that end it explains the reasons for its agnostic stance vis-à-vis the constitutionalization narrative and highlights the fact that international law has always contained some general, “constitutional” features that are particular to its systemic physiognomy. The article then explains how human rights law, as a special branch of international law, expands beyond the so-called humanization of international law narrative, acting as an important ingredient in a number of other narratives such as the constitutionalization of international law and the ones that are comparable to it, like legal pluralism and fragmentation. As to the systemic changes the internationalization of human rights has brought to the order of public international law, the examples given are those of collective enforcement at the decentralized level for the protection of common interests/values, sui generis normative hierarchy beyond jus cogens and the idea of the responsibility of states to act in a protective manner linked with the principle of due diligence and the so-called positive effect that human rights develop.

This article argues that the European Court of Human Rights (ECtHR) uses external references as a tool to enhance ‘constitutional justice’. This technique is illustrated by the Court's contribution to an important shift in migration law beginning in the late 1980s and resulting in an enhanced scheme for protection against expulsion in Europe. This shift reflects the changing role of the ECtHR from a court primarily concerned with providing ‘individual justice’ to a court aiming at enabling ‘constitutional justice’. The aim of the article is to contextualize the aforementioned shift with a historical view and to understand it in methodological terms. It argues that the Court supports its dynamic interpretation of the right to privacy in Article 8 of the European Convention of Human Rights in crucial judgments by reference to often non-binding instruments issued by the Council of Europe and to other human rights treaties. In this regard, the case of protection against expulsion illustrates a particular feature of the Court's turn to ‘constitutional justice’, namely the increased application of the principle of systemic integration. This allowed the Court to develop a meaningful and comprehensive protection scheme in the first place. However, the article reveals that once the substantial standard developed by the ECtHR has been formally implemented in domestic law, domestic decisions are reviewed with significantly less scrutiny. This limitation may again be explained by the ‘constitutional turn’ which results in a pragmatic tendency to proceduralization in the jurisprudence of the ECtHR.

After the Lisbon Treaty, the objectives of the European Union are more numerous and ambitious than ever. But what is their importance and function within the ‘thickening’ legal order of the EU? Combining insights from both the law of international organizations and comparative constitutional law, the article traces the diverging role of objectives for, on the one hand, a traditional international organization marked by the principle of ‘speciality’ and, on the other, a maturing legal order increasingly exhibiting ‘constitutional’ traits. It argues that in the case of the EU, objectives and competences have developed into two related but distinct norm categories. While objectives serve to bolster arguments to shape such powers, they no longer represent a rationale in their own right for founding competences. The EU no longer justifies its existence solely by striving for a particular set of goals. Rather, these norms represent an entrenched duty to pursue these objectives through the actors, structures and procedures available, regardless of the Union's ultimate form (finalité). Today, the EU stands for certain values and has been endowed with powers, the exercise of which is guided by promoting these various aspects of the ‘common good’.

There are difficult global challenges that need to be addressed. In response, many have argued for the increased constitutionalization of international law. An argument is often also made that the international order is already constitutionalized in some meaningful sense and that there are founding conditions within the international order that represent something like a global constitution. Nevertheless, when surveying the literature on constitutionalization one is often struck by a general ambiguity about what the term means and with how constitutionalization is meant to operate between theory and institutional practice. In particular, there seems to be an overall ambiguity regarding what is being constituted by the processes of constitutionalization, about how these processes operate, and with whether this legal order is in fact creating the type of progressive cosmopolitanism that is often assumed. To address these ambiguities, this article will seek to better understand what appeals to constitutionalization generally mean and to expose key conceptual problems. The goal in doing so is to highlight areas that need greater conceptual attention and to recommend potential solutions, so that more cosmopolitan minded scholars can feel more confident in prescribing constitutionalization as part of their normative catalogue.

This article contributes to the debate over the whether or not the mainstreaming of Corporate Social Responsibility/Codes of Conduct should be welcomed. It suggests that to grapple with this question requires an engagement with the multiple and necessarily situated performativities (or jursigenerativities) of these codes. The article illustrates the argument through an analysis of two jurisgenerative processes (linked to regulation and to politics) triggered by Codes of Conduct in commercial military markets. It shows that the codes are creating both a hybrid regulatory (or constitutional) network that makes it possible to hold firms accountable and a militarization of politics. It does so by showing that the codes create first-, second- and third-order rules but also processes of misrecognition through distraction, distinction and diffusion that empower military professionals. It draws on a study of three cases involving ArmorGroup, a forerunner and advocate of regulation in military markets. This argument makes sense of the disagreements surrounding the virtues of global constitutionalism by highlighting the tensions that become apparent once it is acknowledged that Codes of Conduct are not only performative but are so in multiple ways. It can provide no easy way to dissolve the specific dilemma this multiple jurisgenerativity poses in the context of military markets specifically. But logically flowing from the argument is a suggestion that encouraging and empowering a broader, non-military/security professional involvement in the debate over the regulation of commercial military markets would be the appropriate way of handling it.

This article investigates the ways in which political parties are codified in modern democratic constitutions, providing a unique cross-sectional and longitudinal overview of the patterns of party constitutionalization in post-war Europe. Although the constitutions of western liberal democracies traditionally have paid little attention to the role of parties, evidence suggests that in contemporary democracies, both old and new, they are increasingly accorded a formal constitutional status. Little is known, however, about the substantive content of their constitutional position or about the normative connotations of their constitutional codification. In this article, we demonstrate that there is a clear correlation between the nature and the intensity of party constitutionalization and the newness and historical experience of democracy and that, with time, the constitutional regulation of the extra-parliamentary organization and the parties’ rights and duties has gained in importance at the expense of their parliamentary and electoral roles. The analysis furthermore suggests that three distinct models of party constitutionalization can be identified – Defending Democracy, Parties in Public Office, and Parties as Public Utilities – each of which is related to a particular conception of party democracy.