This article examines the paradoxical effects of international legal accountability processes on the international law of intelligence. In response to increasing exposure of their intelligence activities, liberal democracies have shifted from a national security culture of secrecy to one of legal rationalisation, offering legal justifications to defend and legitimate contested practices. Rather than improving compliance, accountability processes have enabled states to strategically reshape legal norms to accommodate their preferred policies. Focusing on how legal justifications affect international law’s constraining function, the article analyses the effects of legal justifications on three dimensions of legal norms: obligation, precision and delegation. Intertwining doctrinal legal analysis with International Relations scholarship on rhetorical and justificatory approaches to international law, it identifies four causal mechanisms through which strategic legal justifications decrease law’s constraining power on state behaviour and facilitate norm evasion. The article demonstrates how strategic uses of international law for legitimation purposes can gradually alter legal norms without formal changes to legal texts or institutions, ultimately decreasing international law’s constraining power. Shedding light on the limits and risks of legalisation as a regulatory strategy, these findings raise important questions about the effectiveness and adequacy of legal accountability strategies, particularly strategic litigation, in inducing behavioural change.

Strikes against public policies have often been classified as illegal political strikes. Nevertheless, the concept of social movement unionism (SMU) describes how trade unions in some countries have become active players in social struggles, alongside social organizations and protest groups, by using political strikes. Although the International Labor Organization (ILO) prohibits purely political strikes, it recognizes the legitimacy of protest strikes concerning public issues. In this respect, the article combines the notion of global constitutionalism with the concept of SMU to explore the issue of political strikes in times of social or democratic struggles. Global constitutionalism regards certain international principles as paramount, offering them a status akin to constitutional law. Drawing on the intersection of the theory of SMU with the concept of global constitutionalism, the article suggests that strikes against governmental policy, framed as part of broader social protests, can effectively oppose controversial public policies. The article claims that protest strikes should be recognized as legitimate exercises of workers’ freedom of association, based on the application of relevant ILO principles through global constitutionalism.

Both Canada and the European Union feature multiple overlapping legal systems, each with independent sovereignty claims and distinctive cultural traditions. Courts in both settings have therefore been forced to reckon with ‘constitutional pluralism’.

In Canada, the contested relationship between Indigenous and settler legal orders has been mediated largely through s35, which recognizes Aboriginal rights, and s25 which shields them from the Canadian Charter. The resulting jurisprudence has focused on protecting cultural difference by creating limited spaces of autonomy within the Canadian state but has largely neglected questions of sovereignty.

In Europe, the relationship between European Union and member-state law has been mediated through an emergent judicial dialog which allows each court to maintain its sovereignty claim by making its acceptance of the other’s authority conditional. The resulting jurisprudence focuses on sovereignty without dealing as closely with questions of difference.

The two contexts therefore represent divergent approaches to shared conceptual and practical problems. To my knowledge, however, no scholarship has seriously compared the two. The following article takes a modest step towards filling this lacuna, introducing European thinkers to Canadian constitutional pluralism and vice versa before reflecting on some of the ways further comparative research can add depth to existing comparative literature, deepen our understanding of constitutional pluralism as a theory and, in particular, raise important questions about constitutional pluralism’s relationship to liberalism.

The relationship between the European Court of Human Rights and the ideal of democracy is a complex one: Convention states tend to understand it in terms of the supremacy of national democratic arrangements, whereas the Court has conceived of the relationship in more substantive procedural terms involving Convention rights as interpreted and promoted by the Court. In recent political debates the ideal of democracy has been instrumentalized to attack the authority of the Court based on the former understanding, such that its contribution to democratic ideals has become muted. Against this background, this article seeks to rebalance political debates about the relationship between democracy and the ECtHR by clarifying ways in which we can understand the Court as playing a democratic role based on the republican democracy of Phillip Pettit. It highlights elements of Pettit’s republican democracy relevant to the Court and analyses features of the Court and its practice which can be understood as expressing those elements. In doing so it contributes to ongoing debates about the relationship between democracy and the Court with a view to protecting and promoting the ideal of democracy in an era in which it is increasingly under threat.

The COVID-19 pandemic exposed the fragility and adaptability of democratic orders. While confinement accelerated cross-border ‘tele-life’, rights and protections remained territorially locked. This essay argues that democracy need not be tied to the Westphalian state: it can be re-imagined as unterritorial democracy – voluntary, overlapping and portable communities of belonging. Building on panarchist thought, Austro-Marxist proposals for non-territorial autonomy and Jewish Bundist experiments with cultural self-rule, I advance a model of pan-citizenship and polycentric governance in which rights and representation follow persons rather than places. The contribution is threefold: (1) a genealogy that situates unterritorial democracy within longer traditions of political imagination; (2) analytical criteria – membership portability, competence clarity, equity and accountability – that render such institutions evaluable; and (3) contemporary proto-examples – from diaspora voting to indigenous electoral registers – showing that elements of unterritorial democracy already exist. By integrating historical, analytical and empirical strands – and by engaging debates on emergency powers and derogations of rights – the essay positions unterritorial democracy as a normative horizon for global constitutionalism, inviting person-linked indicators capable of capturing democratic belonging within a framework of multiterritorial pluralism. In this way, the essay contributes to both the normative debates and the methodological agenda of global constitutionalism.

In fragile contexts, the state is sometimes unable to effectively perform some of its fundamental functions, such as the provision of public services, law-making, or territorial governance. Multinational corporations sometimes step in to perform these functions by leveraging their political power. On the one hand, this facilitates the enjoyment of fundamental rights for the affected citizens; on the other hand, it risks undermining the relationship between citizens and the state itself, further weakening its foundations. This paper aims to identify a normative criterion to navigate this phenomenon, drawing on theory of positive constitutionalism to do so.

What explains when states derogate from international human rights law during the COVID-19 pandemic? Conventional understanding of treaty derogations suggests that domestic democratic structures, not the crisis at hand, explain derogation submissions. I argue that during COVID-19, global crisis measures mattered. WHO legitimacy and issue framing of the crisis made states more likely to perceive the pandemic as a severe one and derogate from the International Covenant on Civil and Political Rights. Using country-day level from January 2020 to February 2021 analysis of over 70,000 observations, I test the determinants of ICCPR derogations during the COVID-19 pandemic. I find that global crisis measures of WHO responses and global COVID-19 deaths were significant, positive indicators of ICCPR derogations while domestic crisis measures were not. This piece contributes to our understanding of how states use international law during crises, derogations, international organization legitimacy and of human rights law during the COVID-19 pandemic.

This paper examines the relationship between feminist manifestos and constituent power, focusing on the Chilean feminist movement. Manifestos have long been an influential political tool in shaping political identities and claiming power. However, they are often overlooked in constitutional law. This paper addresses this gap by exploring feminist manifestos, which have been pivotal in denouncing historical exclusion, forming political groups and asserting constituent power. Drawing on the work of Ruth Houghton and Aoife O’Donoghue, the paper investigates how feminist manifestos challenge traditional notions of constituent power. However, it argues that their performative conception of power overlooks the vital role of political representation. The paper argues that political representation is crucial for a fully realised theory of feminist constituent power, as it enables collective action and democratic participation. By looking at the Chilean feminist movement’s involvement in the 2019–2022 constitution-making process, the paper demonstrates how feminist movements, through strategies such as manifestos and strikes, can influence constitutional change, while also highlighting the limitations of excluding political representation from the conversation. Ultimately, the paper asserts that feminist manifestos can reimagine constituent power, but their full potential is limited without a comprehensive understanding of political representation.

Transitional justice (TJ) emerged during the consolidation of the liberal international order (the LIO). It was deemed to flow from, and contribute to, the emergence of democracy, human rights and the rule of law in post-authoritarian and post-conflict states. The LIO generated material and discursive support for processes of accountability, truth, repair and guarantees of non-repetition. The LIO is now widely perceived to be under significant threat with the rise of authoritarian states (most notably China and a revanchist Russia) and the erosion of liberal democratic values in the US and Europe. Some worry that TJ may have peaked and is doomed to decline in this more challenging ecology. This article is an attempt to show how the material and discursive environments of TJ have altered with the decline of the LIO and the rise of a multipolar world. In material terms, there are fewer democratic transitions that might facilitate the type of state-level rule of law or rights-promoting impact associated with accountability, truth or reparation processes, while liberal peacebuilding is now far less premised on democratisation and human rights that post-conflict TJ processes built upon. In a world where authoritarian rejections of human rights and the rule of law meet widespread support and where a chastened liberal West resiles from effectively exporting or supporting norms like TJ, there is also a lowering of the argumentative burden for those who want to outright defy, water down or find workarounds for TJ.

The meaning of equality is highly contested. As a result, courts across different jurisdictions have developed distinct doctrinal approaches to operationalize the concept. This article argues that four primary equality frameworks can be identified, each reflecting not only different understandings of equality but also varying degrees of judicial deference to the legislature and executive. The first is the equality-as-non-discrimination model, which predominates in most common law jurisdictions and dominates the theoretical discourse on equality. The second, prevalent in many continental European jurisdictions, is the equality-as-reasonableness model, under which courts apply a relatively strict standard of review, even in cases that do not involve suspect classifications. The third, the positive-equality model, recognizes that courts can derive positive obligations from the principle of equality. Finally, the deferential model largely entrusts the definition and implementation of equality to the legislature and executive. This article highlights the normative strengths and weaknesses of each model, arguing that no single approach holds an absolute normative advantage over the others. Instead, the suitability of a particular model depends on the societal and institutional context in which a court operates.

Many global norms are currently facing substantial contestation by various actors. While contestation is a regular practice in norm dynamics, it can potentially result in the destabilisation of norms. At the same time, international city networks (ICNs) are increasingly positioning themselves in global governance. While research in International Relations has not analysed how ICNs respond to norm contestation and whether they stabilise existing norms and normative orders, this article demonstrates that ICNs are relevant actors in norm dynamics by focusing on their activities. To examine how ICNs stabilise norms, we employ a theoretical framework based on existing approaches in norm research, which assumes that norms must be as robust, resilient and legitimate as possible to maintain their functions in facilitating individual orientation and collective order. Empirically, we analyse the stabilising activities of three ICNs – Mayors for Peace, Rainbow Cities Network and Fast-Track Cities Initiative – as contributions to preventing norm decay in security, human rights and health. We show that these ICNs stabilise norms by supporting them in discourse and practice, by connecting norms in clusters, and by including affected stakeholders. In sum, we present ICNs as relevant actors in global governance due to their stabilising activities and networked capacities.

This article investigates the role of the emotional experiences of time in the constitutional debates of the seventeenth and nineteenth centuries. It posits temporality as a shared, collective and emotional experience, rather than an external and natural line where events develop unidirectionally. As such, temporality is proposed as a new analytical framework for exploring the shift from a past-oriented to a future-oriented constitutional theory from the seventeenth to nineteenth centuries. Adopting this perspective, this shift in constitutionalism is framed, in part, as a response to different emotional experiences of time. Focusing on the writings of Coke in the seventeenth century, and Bentham and Godwin in the nineteenth century, this article also identifies a point of continuity between the past-oriented claims for legitimacy of the English constitution in the seventeenth century and the future-oriented ones in the nineteenth century, and indicates new paths for future investigation. Questioning the role of historicity in the legitimation of the English constitution in the seventeenth century, and the role of progress in the nineteenth century as ‘past’ and ‘future’, this article proposes to analyse these temporal categories as a qualified ‘immemorial’ past as opposed to a qualified ‘timeless’ present ruled by the steady category of progress.

The increase in national courts’ reliance on foreign and international law sources, labeled ‘transnational communication’, has established domestic judges as influential, independent actors in the international legal arena that may promote domestic application and enforcement of international human rights. While studies on judicial globalization have emphasized the role judges play, we argue that to acquire a well-rounded understanding of judicial globalization, we should direct focus beyond judges as sole participants in this dialogue and examine other actors that affect the proliferation of transnational communication. We assess the role of litigant and amicus parties on U.S. courts’ engagement in global judicial dialogue in a twofold manner; through statistical analysis of an original dataset of international law citations in all U.S. Supreme Court litigation between 1946 and 2024, and by tracing the flow and language of citations of the Convention on the Rights of the Child through state and federal courts, as well as litigant and amicus briefs. We show that litigants and amici are significant actors in the process of judicial globalization by being more likely than judges to bring international law arguments and be the ones to initiate this dialogue, thus forcing courts to participate and interpret international legal principles.

Although the distinction between presidential, parliamentary and hybrid forms of government is fundamental to the study of democratic constitutions, it lacks a foundation in democratic theory. Empirical researchers do not define these forms in democratic terms, and normative theorists have largely neglected them. The article proposes a democratic conception of these forms and uses it to classify the constitutions of all 111 electoral democracies in 2024. The proposed theory and typology respond to various conceptual controversies and systematically link the classification of democracies to important issues in democratic and constitutional theory. Rather than relying on the ubiquitous principal-agent model, the article focuses on the democratic challenge of stabilizing the electoral authorization of the political executive in the face of unstable electoral and legislative majorities. Different constitutional responses to this challenge have important implications for democracy: different degrees of ‘depersonalization’ (Sean Ingham) of executive power and different constraints on legislative majority rule. The article highlights the unusual forms of democratic government in cases such as Australia, Bhutan, Guyana, Japan, Kiribati, Micronesia, Suriname and Switzerland, and has important implications for constitutional design and reform.

Designating India as a ‘Union of States’ under Article 1, the Constitution of India does not adhere to a federal vocabulary. The perusal of the Constituent Assembly Debates establishes this verbiage to be a deliberate choice. Scholars such as Prof. Wheare (1963) have classified the Indian Federalism as ‘quasi-federal’, which remains a part of constitutional vocabulary to date. This scholarship undertakes an assessment of federal semantics and taxonomical choices under the Constitutions of the USA, Australia, Switzerland, Brazil and Canada, juxtaposing them with the ‘quasi-federal’ model of the Indian Constitution. Challenging rigid categorizations, the paper argues that the constitutions identified as ‘federal’ have also depicted centralizing tendencies in their working. Examining the legal and political intent behind the omission of ‘federal’ and its anti-federal fallouts, the scholarship explores that the lack of a uniform federal vocabulary and mis-categorization has allowed the Union government and the judiciary to reinforce the centralization of power that shapes the federal discourse, while sporadically identifying the federal features in the Indian Constitution.

I champion a deliberative right to constitutional silence. It entitles individuals to reflect upon the arguments and reasons in favour or against changing or re-interpreting constitutional content under proper conditions. After reflecting on the place of silence in intellectual history and its features and virtues, I define the right to constitutional silence. It has four components: salience, time, reflection and publicness. Next, I discuss its grounds. I argue that it is an institutional legal right that citizens have in a deliberative constitutional democracy. This entails that, while there is a moral case for the right to silence, I here circumscribe my argument to the province of legality and constitutionalism. I finish discussing matters of institutionalisation. I offer three suggestions: two proposals about content and one about procedure. First, the right to silence applies primarily to deliberations about ‘thin’ constitutional matters found in preambles and introductory sections of constitutions. Second, it warrants public intervention in matters of public discourse of constitutional import, to avoid private power from interfering with the people’s sphere of constitutional reflection. Third, I adapt a proposal made elsewhere and suggest that a non-decisional interpretive mini-public could be a place to implement the right to silence.

Comparative legal literature increasingly stresses the fundamental importance of informal norms that underpin democratic and constitutional governance. A particular species of these informal norms is the constitutional convention. Although there is wide recognition of the fact that populism constitutes a key issue of constitutional resilience in our time, the issue of constitutional resilience with regard to the relationship between populist political style and constitutional conventions has been largely overlooked. This article maps the extent to which populism threatens constitutional resilience in democratic systems which rely substantively on constitutional conventions. Bringing together political science and legal theory, we engage in a conceptual analysis of conventions and of populism as a political style. In doing so we seek to explain the perceived tension between the two phenomena. We argue that populism should be conceived as a transgressive political style, which is fundamentally hostile to the notion of unwritten constitutional law or practice. In view of the crucial connection between constitutional conventions and the resilience of the constitutional system, and the vulnerability of conventions as norms of self-restraint (lacking independent enforcement mechanisms), we conclude that the populist political style indeed constitutes a problem of constitutional resilience.

In this commentary on Itamar Mann’s rich re-reading of Regina v Dudley and Stephens (1884), I want to draw attention to two issues. First, the salience of the distinction between abstraction and idealization for his argument. Second, the question of political form in relation to each of the three models of the lifeboat that Mann explore – the providential, the catastrophic, and the commonist. I do so in order to explore the implications of Mann’s proposal for the politics of global governance.