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.

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.

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.

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.

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.

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 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.

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.