This paper analyses the mutual influence and self-perpetuating cycle of legitimacy of EU legal scholars and the Court of Justice of the European Union (CJEU) in expanding and broadening the free movement rights of Union citizens and their family members. It is argued that legal scholars have played a dual role in promoting the constitutional paradigm of an ever-expanding scope of directly enforceable residence and movement rights in the EU. First, by presenting the expansion of free movement rights as an inevitable outcome of the EU constitutional order based on directly enforceable individual rights, scholars have played a significant role in legitimizing the jurisprudence of the Court in the face of initial resistance from the member states. Second, legal scholars have been an important source for the Court of Justice in developing its case law in this area. The Advocates General in their opinions have drawn on an expanding field of scholarship presenting the expansion of free movement rights as an inherent feature of the EU as a constitutional legal order. Spurred by the objective of turning the EU into more than an internal market, the opinions of the Advocates General have mostly been followed by the Court. Legal scholars have thus served not only as a legitimizing force, but also as a source of inspiration for the perceived constitutionalization of free movement rights in the EU.

This article argues that this special section reveals a practical global constitutionalism, or one that integrates a liberal constitutional set of ideas with the histories and practices of Asian states.

Practice Theory and International Relations will challenge all you’ve come to know about the practice turn in international relations. It will ask you to question how you define practices and call for more precision. It will challenge your starting point of ground-up actions in everyday life and look at practices from above. It will push you to rethink your empirical methodology and call out sociological approaches as misconceived. And yes, it will ask you to reread Hegel and bring philosophy back in to your practice theorising. In short, it will make a lonely, and for many, unwanted call for a U-turn in the field. In this review, I’ll take up this call for a U-turn back to philosophical foundations, and ask what is gained and what is lost in rethinking practice theory from a philosophical perspective.

This article introduces the concept of hegemonic constituent power to argue for a greater role for the people in the process of Irish reunification through the establishment of a constituent assembly. Hegemonic constituent power contends that, ideally, constituent power should be possessed by the people; however, descriptively, this is invariably not the case. Constituent power instead is best understood as the manifestation of hegemony – the dominant power base in a given legal order that legitimates and reinforces this power through institutions, prevailing ideas and culture. Hegemony performs an important function in descriptively explaining legitimacy formation while not necessarily conferring normative legitimacy on existing power structures or those who exercise constituent power. Legitimacy and illegitimacy are both embedded in this notion of hegemonic constituent power. This allows for constituent power to perform a legitimating function and its creative potential to be unleashed while still leaving space for critical contestation over how this power was exercised. In this way, hegemonic constituent power also seeks to address critiques of constituent power as enabling populism. The article then deploys this concept of hegemonic constituent power to argue that fears of invoking the will of the people in debates on Irish reunification are misplaced.

This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.

In this contribution, the key elements of the book’s progress narrative will be discussed. The focus will be set on the ‘backbone’ of the book, which consists of three ideas or elements: the periodisation decision (II), the claim of a specific conception of social change (III), and a specific understanding of international law (IV). In regard to each of those elements it will be asked how they are justified, what insights they provide and whether there are blind spots.

The Internationalists is a fascinating book. The authors present a clear proposition about the significance of the 1928 Pact for the Renunciation of War for a more peaceful world. My focus is on the role of what the authors call outcasting, as an alternative to war. I argue that outcasting is hardly new. It has been known as reprisals or self-help, and currently as countermeasures. It is essential that such measures are brought under international control. What is more, the current US administration is a threat to the current world order. Other states and civil society need to continue to develop internationally controlled sanctions against violations of international law – also in the absence of the USA.

International criminal law (ICL) developed in large part from international humanitarian law during the mid-to-late twentieth century. The International Criminal Court (ICC), a permanent institution to investigate and prosecute ICL cases finally was established in 2002. Although widely supported, certain states feared that the ICC would diminish national sovereignty. Yet, in formal legal terms, ICL and the ICC’s Rome Statute are just like other branches of public international law in terms of their relationship with national constitutional arrangements. ICL does not challenge states’ primary executive and judicial powers; it does not introduce any general rights for citizens or particularly onerous obligations for states that are already subject to the rule of law; and its intrusion on national sovereignty is only in evidence when a state’s leaders either are responsible for atrocities or are incapable of protecting their citizens from such atrocities. ICL thus is very different from international human rights law (IHRL), which directly impacts national constitutional arrangements. When ICL does come into play, however, arguably it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power.

The contributions in the volume do a fine job of recounting the sites and modes of unravelling meaty issue-area ‘interface conflicts’ and studying their diverse implications. I have sought to consciously read these contestations here from the broader perspective of the global South. My overall plea is for more politics and not less when it comes to studying ‘interface conflicts’ and norm contestations. What this translates into is to embed the technicalities of norm conflicts in the backdrop of more fully fleshed out political currents and contexts. Methodologically speaking, while sympathetic to the process-driven agential micro-constructivist approach to studying these ‘interface conflicts’, I argue that ‘internalist’ accounts of perceptions must ideally tap on insiders to arrive at a richer appreciation of the anxieties and hopes surrounding particular norm contestations in specific issue-areas.

Constitutions are social and historical artefacts that take part in the government of humans. Based on a comparison of how contemporary ‘global’ and historical ‘local’ constitutional documents establish power relations between ‘humans’ and their ‘government’, this article suggests that both types of documents involve different constitutive logics. Global constitutional documents create a ‘new normativity’ – a reversed constitution – that turns the historical relationship between pouvoir constituant and pouvoir constitué on its head. Such documents shift the primary responsibility for human rights from governments to humans. Research in the academic field of global constitutionalism omits this constitutional reconfiguration. By offering a more historically sensitive and reflexive account of constitutionalization, the field of global constitutionalism can realize an as yet unexplored critical potential.

Owing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System. This is regrettable, not least because the Convention has reconfigured national constitutional authority in a cosmopolitan context. The emerging cosmopolitan constitutionalism is based upon three ideas: first, the exercise of state authority must also be legitimate from the perspective of those who are not citizens; second, a constitution must embrace fundamental rights and the representation of insiders in order to facilitate the representation of all, including outsiders; third, the authority of the constitution doesn’t just depend on endorsement by an independent people but also on recognition by other peoples who pursue the same type of political project. At the same time, any cosmopolitan constitutional system needs to leave space for particularity. It is therefore not accidental that the idea of a ‘margin of appreciation’ is of pivotal significance.

Constitutions are the most important legal foundation of politics. At the same time, the existence of a viable parliamentary opposition has been regarded one of the most distinctive characteristics of democracy. Bringing the two perspectives together, the principle of opposition can be constitutionalized to gain the highest status. Importantly, we refer to norms recognizing the opposition as such. Such counter-majoritarian rules are distinct because they empower opposition forces irrespective of their seat share and explicitly acknowledge that power should not be monopolized. While our subject has attracted little interest from comparative constitutionalists, it is too important to be overlooked. This is particularly true for autocratizing regimes where incumbents seek to use legislative lawfare to repress their opponents. Empirically, the study focuses on Africa, which proves revealing for various reasons. Among others, it addresses the critique that constitutional law studies often concentrate on usual suspect cases used to reveal purportedly universal insights. Our exercise in comparative constitutional law leads to two main conclusions that go beyond the continent. First, while we find a high number of opposition-related rules, the variation in design details and scope suggests that referring to the principle of opposition in an abstract manner is somewhat obscuring. And second, the obvious virtues of constitutionalizing dissent face noteworthy pitfalls since pertinent rules can lack legal clarity and even suppress dissent. Hence, the dividends of nominally democratic rules might be smaller than expected even if constitutional designers sincerely intend to fully uphold them in practice.

This article interrogates the normative coherence of the label of ‘digital constitutionalism’. In particular, I argue that the use of the label ‘constitutionalism’ in digital contexts often conflates the practical realities of existing contractual governance models with the superficial appeal of constitutional structures. As a result, the label is misleading in both normative and qualitative terms as it obscures the true nature of the governance architectures to which it is applied, which are more appropriately understood as implementing a distinct genre of ‘private policy’.

Through the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.

The constitutional design of Bangladesh is characterized by an ambivalent choice: it aspires to establish a republican yet a Bengalee state by putting itself in the conflicting terrain within the demos–ethnos binary. This article aims to examine the implication of this problematic choice along all three axes of the constitution’s elemental parts: its identity, rights and structure. While the identity element of the Bangladesh Constitution embodies the ethno-nationalist vision of the Bengalee state that transforms demos into ethnos, its rights and structural aspects reflect its republican promise to transform ethnos into demos. Contemporary scholarship seeks to confront the exclusionary dimension of the ethno-nationalistic choice in Bangladesh but ends up accepting ethnos as a politically superior value. Such an approach brings us to the politics of difference and, with that, undermines the integrationist potential of the republican constitution. In response, this article defends the republican promise of the Bangladesh Constitution while arguing that what we need in Bangladesh is the ‘de-ethnicization’ of the republic, one that can be achieved by transforming ethnos into demos and not the other way around.

Focusing on the expanding realm of international adjudication, this article approaches justice from the domain of the empirical and shows – through a careful, interview-based case study analysis in the WTO context – that justice in the international context is not only a contested concept, but also a multifaceted one, deeply embedded in notions such as the rule of law, fairness, equality, transformation, and cooperation. Whereas in the past, the primary, if not the sole role of international courts was that of settling disputes, in their modern legalised reincarnation these empowered international institutions have come to be seen primarily as enforcement mechanisms. Mechanisms that have been put in place by states in order to give effect to their originally negotiated commitments, and to hold states (or other entities) accountable for the international rules agreed-upon. Within this common enforcement-centred discourse of international courts, in turn, the natural tendency has so far been to think of ‘justice’ mainly through its ‘legal’ or ‘rule of law’ dimension. This article challenges this enforcement-centred discourse. Focusing on the vibrant WTO dispute settlement system (DSS) and its operation throughout the perennial EC–Bananas dispute, the article argues that the current enforcement-oriented debate of international courts, and the WTO DSS in particular, is lacking in several aspects. First, it brushes aside other important roles served by the DSS, and consequently overshadows the manifold social outcomes – beyond rule-compliance – produced by this system. Second, the prevalent rule-enforcement discourse further works in turn as to mask the multiple challenges of justice encapsulated in international disputes reaching the DSS docket, and obstructs the need to explore other conceptions of justice – beyond its legal-procedural meaning – such as global distributive, corrective, or transformative justice, through which the diverse roles and outcomes of the DSS may (and should) be evaluated. Against this backdrop, the article puts forwards a broad multifunctional account of the WTO DSS, which goes beyond the prevalent view of the system as primarily an enforcement mechanism, portraying it instead as a system of multiple, competing, and shifting roles. Among them, providing an orderly mechanism of renegotiation, redistribution, and settlement. Roles that essentially allow WTO Members to readjust their original WTO commitments and reallocate their burdens and benefits of international cooperation, and thereby to arrive at new – at times not fully legally-compliant – but not necessarily ‘unjust’ cooperative and sustainable social outcomes.

This article addresses the problématique of giving voice to homegrown traditions of constitutionalism in individual African countries. The scholarly discussion is combined with an applied concern about whether this could instil a wider grassroots embrace of the country’s constitution, thereby consolidating constitutionalism and ensuring longevity. The investigation is carried through the lens of two sub-categories of the concept of constitutional identity: a representative one that reflects a country’s particular political, social and cultural makeup, and an aspirational one that sets goals and ideals. The challenge, in both scholarly and applied terms, is how to ensure that a constitution instils a sense of public ownership by becoming more representative of a country’s underlying makeup while also giving voice to modern aspirations to protect and promote individual human rights, and in doing so, also becoming self-sustaining as the foundational basic law guiding future generations. Attention is paid not only to the forms of constitutions but also to their function in both reaching ideals (in the positive sense of success) and staving off pitfalls (in the negative sense of success). The article also discusses whether these are best achieved through gradual terms over time or through the sudden big bang of mega reforms.

This article traces how the ‘freedom indispensable for scientific research’ was introduced into the International Covenant on Economic, Social and Cultural Rights (ICESCR). The review of the drafting history covers ICESCR Article 15.3 and that of its precursor, Article 27 in the Universal Declaration of Human Rights (UDHR). It pays particular attention to arguments presented during negotiations over the UDHR (adopted in 1948), as well as over the ICESCR (adopted in 1966), and it reflects on observable norm entrepreneurship. Following the end of the Cold War, details on the right to science and the status of higher education personnel were further elaborated in soft law, notably in the form of two General Comments and two UNESCO Recommendations. These specifications and the earlier traveaux préparatoires reveal a multifaceted and rich debate about science, development, dignity and freedom at the United Nations, including positions that span variations of a liberal science script as well as persistent illiberal contestations.