This editorial considers how scholars interested in issues of global constitutionalism should approach the questions that have concerned those interested in enlightenment. Reflecting on the relocation of the journal’s editorial offices to Edinburgh, we foreground discussions from the historiography of the long eighteenth century that should be of interest to scholars of international relations, international law and political theory. Two main contributions are emphasized. First, a contextualist and political approach to enlightenment invites us to see global constitutionalism as a strategic response to crisis, aiming to combat fanaticism. Second, a global approach to enlightenment invites us to continue enlarging the world of global constitutionalism. Taken together, the contributions support the journal’s ongoing efforts to decolonize global constitutionalism by enjoining readers and contributors to attend to neglected sides and sites of global constitutional processes.

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.

During the COVID-19 pandemic, governments worldwide invoked the ‘precautionary principle’ to justify policies designed to protect public health. This principle holds that the state may act proactively to avert harm where there is factual uncertainty about that harm and the efficacy of policies proposed to mitigate it. Many of the policies introduced during the pandemic limited citizens’ constitutional rights. This article accordingly analyzes how the precautionary principle can be integrated into the proportionality doctrine courts use to assess the validity of rights limitations. As our case study, we take the jurisprudence of the Supreme Court of Canada and its globally influential Oakes proportionality test. When articulating the test in the past, the Court has grappled with the need to defer to laws that pursue important public objectives when the evidence underlying those policies is indeterminate. However, it has been criticized for not creating detailed guidelines for when judges should defer, which is said to breed arbitrary, results-oriented decision-making. We update this criticism by showing that it continues to apply to judgments of lower courts in Canada that have followed the Court’s proclamations to evaluate laws that limit constitutional rights to combat COVID-19. We then construct the requisite guidelines by drawing analogies with existing legal principles found in tort and criminal law. We argue that in contexts of factual uncertainty, the degree of judicial deference should vary according to the gravity and likelihood of the harm the government seeks to prevent. This risk-based framework restrains judicial subjectivity and illuminates how precaution should operate at each stage of the proportionality test. We further argue that it can assist courts across jurisdictions when incorporating precaution within proportionality because, unlike approaches to this problem offered by other comparative constitutional scholars, it is suitably modest and avoids excessive revision of accepted proportionality principles.

Salient normative status dimensions, or the socially significant and widespread ideational bases on which states seek to be viewed positively in international societies, pattern inter-state relations and signal fluctuating values underpinning an international order. Their dynamics, however, are not well understood. This article introduces an analytical framework to study relations between issue salience and status dimension salience in an international society over time. To what extent have democracy, human rights, economic development, social development and fighting poverty, gender equality, and environmental protection gained, lost or retained salience – both as issues and as sources of states’ domestic-level social identifications? Empirically, the article analyzes trends in the salience of issues and of normative status dimensions in the six above-mentioned issue areas, using manually-coded content analysis and automated text analysis of United Nations General Assembly (UNGA) General Debate (GD) speeches between 1978 and 2023. Findings include that there has been an expansion of the characteristics, efforts and aspirations with which state representatives in this venue express their states’ positive social identities, adding new layers to the normative foundations underpinning international order.

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.

Digital constitutionalism has been in vogue in recent years. A series of journal articles, edited collections and monographs that front the catch term have mushroomed. This has, in turn, inspired a growing body of critical scholarship that questions the normative and theoretical coherence as well as epistemic value of digital constitutionalism. Critics deplore the use of the age-old notion of constitutionalism to describe what they consider to be mere regulatory and self-regulatory initiatives which do not meet its well-established core normative minimums. In casting digital constitutionalism in this light, critics present it as a project driven primarily or hijacked by private sector actors, namely big digital platforms. This article seeks to challenge and bring some nuance to such recent sharp criticisms of digital constitutionalism. By positioning its origins and evolution in the digital bill of rights movement, it makes the case for reimagining digital constitutionalism as a discourse. The article thus hopes to rehabilitate and clarify the role and epistemic value of digital constitutionalism as a discourse that is an inchoate, gradualist and fundamentally hortatory. In a novel approach, it argues that framing digital constitutionalism as a discourse depicts accurately its ontological and normative dimensions but also attends to the concerns of its detractors.

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.

State consent is the primary mechanism by which international legal rules are generated and amended and by which states undertake legal obligations. The focus on state consent is celebrated for its strong protection of state sovereignty and for expressing the will of states. The main purpose of this article is to raise some doubts about this understanding of the value of state consent. I argue that far from protecting state sovereignty, unrestricted state consent can undermine it. I show that it is false to think that the virtually unlimited freedom to act protected by state consent safeguards state sovereignty in an environment in which every other state possesses the same unlimited freedom to act. I suggest one possible way of reconceiving state consent in line with existing trends in international law to increase the scope of nonconsensual mechanisms for making international legal rules.

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 Citizen Initiative (CI) in the context of the legislative process is now a common mechanism in different parts of Europe and Latin America. However, it is rarely used as a participatory formula in constitution-making processes. This article documents the case of the CI (Iniciativas Populares de Norma) in Chile’s two failed constitution-making processes between 2021 and 2023, during which more than a million people actively participated in its formulation. The Chilean case matters for comparative constitutional studies due to its innovative use of technology to advance forms of digital democracy and the demonstrable impact of the CI standards on both constitutional proposals, which were ultimately rejected in the final national referendums. We argue that despite these rejections, the CI as a participatory mechanism is likely to endure over time and in future constitution-making processes. The article provides a detailed study of the Chilean experience and seeks to draw lessons for other countries’ attempts at participatory constitutional reform.

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.

This introduction to the Agora outlines the issues raised by and arguments in Itamar Mann’s article, ‘From survival cannibalism to climate politics: Rethinking Regina vs Dudley and Stephens’, and the four commentaries thereon.

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 essay proposes a novel framework for conceptualising climate politics through the lens of maritime custom. Drawing on A. W. Brian Simpson’s study of Regina vs Dudley and Stephens (1884) and Cătălin Avramescu’s intellectual history of cannibalism, it critically examines ‘providential’ and ‘catastrophic’ lifeboat metaphors in political thought. Despite their apparent opposition, these metaphors share common assumptions rooted in natural law traditions. As an alternative, the essay introduces the concept of the ‘commonist lifeboat’, grounded in maritime custom, class consciousness and environmental encounters. Inspired by historical practices of survival and mutual aid at sea, this approach suggests principles for addressing climate adaptation through bottom-up customs rather than top-down theoretical solutions. Three brief illustrations address climate policy’s intersections with property law, criminal law and international human rights law. This approach ultimately offers a historically informed perspective on climate crisis challenges, reconciling consequentialist arguments with concerns for dignity and consent.

In From Survival Cannibalism to Climate Politics (2025) as well as in Law and Politics from the Sea (2024) Mann proposes the ‘commonist lifeboat’ as a political metaphor for the age of climate change. This response to Itamar Mann’s re-reading of Regina vs. Dudley and Stephens proposes a materialist reading of his political theory of the ‘commonist lifeboat’, arguing that the lifeboat may be a metaphorical and practical site from which alternatives to our current ways of doing and thinking about politics in times of climate crisis might emerge. The text brings Mann’s lifeboat into conversation with my own and other scholars’ work on radical vessels – historical and contemporary – in order to demonstrate and expand its analytical capacity as a more-than-metaphorical term. Building on Mann’s use of the lifeboat as a metaphor and a site of maritime custom, I propose to understand the ‘commonist lifeboat’ also as a material container that operates in a specific material environment: the sea. I argue that a focus on the materiality of the sea and of the lifeboat may point to political practice, community and customs yet to be invented, which may help us navigate the turbulent political environment of our time.

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.

Boat-based metaphors, which portray individual societies or even humanity as a whole as cast adrift on a sea of challenges, have resonated within political theory since the time of Plato, and they continue to frame how we understand and respond to key political choices. However, unless handled very carefully, they can facilitate mis-framings of our contemporary predicament. To date, these metaphors have often done a poor job of capturing the ecological challenges we face. They also risk downplaying the messy pluralism that enduringly characterises political life. If this is true, we should be suspicious of the conclusions their authors seek to draw about our collective future. Lifeboat metaphors, I will suggest, are prone to the same general problems but also add some distinctively their own. As a consequence they should be deployed with especial caution.