This article examines the 1987 Constitution of the Philippines’ provisions on social and economic rights and welfare. It considers how the 1987 Constitution fits within the post-liberal paradigm of ‘transformative’ constitutional texts that emerged during democratic transitions in the 1980s and 1990s. It then analyses how the Supreme Court of the Philippines responded to the constitutional call for egalitarian socio-economic reform in the first fifteen years after the People Power revolution. The article highlights how the 1987 Constitution envisions far-reaching, progressive socio-economic change, and incorporates both social and economic rights as well as open-ended policy goals in this regard. The article argues that this hybrid approach to distributive justice creates a distinctive set of interpretive challenges for the judiciary. It then argues that the Philippine Supreme Court’s approach to these provisions in the years following the transition to democracy was perfunctory and somewhat inchoate. The court affirmed its jurisdiction over these provisions, but did not develop meaningful standards or principles in relation to them. The article points out that transformative constitutional texts place difficult demands on the judiciary in relation to social and economic rights. They prompt the judiciary into unfamiliar domains. At the same time, institutional legitimacy – including legitimacy on questions of distributive justice – requires judges to sustain the sense of a cogent boundary between constitutional law and politics. The article argues that these challenges were heightened in the Philippines by the textual ambiguity of the 1987 Constitution as well as the relative dearth of jurisprudential resources at the time. It concludes by considering the implications of the Philippines experience for the design of transformative constitutions.

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.

The contestation of global governance institutions can strengthen or weaken, as well as transform, them. This article analyses the productive potential of contestation and justification of global governance institutions by examining the multiple authorities that are invoked as auxiliaries in the process. It studies the (re-)construction of these authorities by dissecting authority into three components: power, legitimacy and connection to public interests. Empirically, the article focuses on the issue area of business and human rights, examining the highly contested process of drafting a binding instrument in the United Nations Treaty Process. The analysis shows that the success of the Treaty Process not only hinges on its direct reaction to contestation, but also on its ability to (re-)construct the multiple related authorities. Ultimately, the article argues that the contestation of global governance institutions involves (re-)constructing multiple authorities. This demonstrates how contestation can also affect global governance institutions, actors and norms beyond the specific field of deliberation.

Critics challenge international courts for their interference with domestic democratic processes and alleged violations of rule of law standards: they claim that these guardians of the rule of law are not well guarded themselves. These concerns should not be dismissed too quickly as mere disgruntled venting by populist politicians. This article focuses on regional human rights courts and argues that the same interests and values that justify rule of law standards of impartiality, independence and accountability domestically also justify similar standards for international courts. Focusing on the European Court of Human Rights and its doctrine of the margin of appreciation, the article demonstrates how this doctrine may contribute to fulfilling the rule of law but at the same time may also endanger it. This requires changes to the doctrine to ensure that the core rule of law standards of predictability and protection against arbitrary discretion are respected.

The comment expands the logic of the critique of the ‘judicialisation’ in the global era and suggests that arguments in support of this development often engage in confirmatory research which weighs the ‘evidence’ in light of our wishes and political projects. The talk about ‘learning’ and ‘dialogue’ cannot sustain this form of judicial paternalism (at best) as an instantiation of emancipation or celebrate it as a victory for law by dispensing with politics. It is just a politics by other means. But in this politics some traditional remedies for insuring the accountability of the ‘rulers’ (or rule-handlers) have been weakened. The comment adds several critical observations about the practices of discourse, law, politics and judging which cannot camouflage the problem of power and its legitimisation. Thus we had better consider also a political alternative which relies on a variety of different institutional solutions where courts have to compete with other institutions without fixed hierarchies and where different sources of legitimacy stand in tension with each other.

Beyond setting the stage, the Introduction makes three claims about the conceptual triangle of the rule of law, judicial authority and legitimacy. The first is that all three are essentially contested and interpretive concepts in the sense of Walter B. Gallie and Ronald Dworkin. In their expositions, the contested and interpretative nature of such concepts is nothing to be ‘solved’, rather the formulation of different conceptions and contestation about them are central functions of such concepts. The interpretive and essentially contested nature points us to the relevant ‘actors’ and to conflicts and trade-offs between contested competencies. Thus the second point is that arguments about the rule of law and judicial legitimacy are often a means of questioning or securing the authority of a particular actor or institution in relation to other actors and institutions. The final point is that transposing concepts from the domestic to the supranational is a constructive endeavour because it entails creating new conceptions and substituting old ones as well as legitimising new authorities and delegitimising old ones. Thus, this special issue also cautions against discourses that ultimately are more about legitimation than about legitimacy and more about new ways of ruling than the rule of law.

This article sheds a critical light on judicial dialogue when its purpose and meaning are taken beyond cross-fertilization and comparative reasoning. It cautions against a conceptualization of judicial dialogue as a means to foster commonalities between courts and to legitimize judicial governance. The argument develops from an idealized notion of a ‘transnational judicial public sphere’. In this sphere, domestic, regional and international courts ideally form common opinions through dialogue and pursue common purposes. The danger of this understanding is to construct a new paradigm that not only overlooks important differences in the interest, influence and opinion of courts, but also overstates the socio-normative significance of exchanges between courts and of judicial governance in general. The critical potential of judicial dialogues lies less in the formation of commonalities or in the legitimization of judicial authority than in bringing alternatives and a plurality of opinions to the fore.

In A Cosmopolitan Legal Order: Kant, Constitutional Justice and the European Convention on Human Rights, Alec Stone Sweet and Clare Ryan argue that there has been the emergence of, and increasing prospects for, a cosmopolitan legal order based on the Convention. This symposium aims to engage with, and to better explore, the theoretical implications and practical legal ramifications of their argument. In doing so, this first article acts as a general introduction to the symposium, laying out the major arguments of the book as well as arguments presented by the symposium contributors. Moving beyond the summative, this introduction also situates A Cosmopolitan Legal Oder within broader debates in global constitutionalism, while defending its use of Kant’s cosmopolitan theory. Lastly, it explores some of the key implications and challenges that arise from the symposium itself, rooting these insights within the current context of anti-globalism, nationalism, populism and neo-sovereigntism, and the corresponding necessity for a more transitional and pluralistic response as offered in A Cosmopolitan Legal Order.

This article examines the path of global constitutionalism and its encounter with cultural diversity in Africa. It situates the phenomenon of global constitutionalism in the late nineteenth century and traces some of its tectonic transformations since the inauguration of the liberal international order. Besides referring to the processes of and calls for the constitutionalization of the international legal regime and the emergence of global constitutional law, global constitutionalism played a constitutive role for constitutionalism in Africa. As constitutionalism in Africa is configured within a biosphere of global constitutionalism and cultural diversity, their dynamic interplay leads to the emergence of jurisgenerative constitutionalism, which is procedurally and normatively open to accommodate a plural conception of rights, justice and values. As a result, what is constitutionally permissible and what is not cannot simply be determined by an attachment to either global constitutionalism or cultural diversity. Rather, it is the interaction of global constitutionalism and cultural diversity in time and place that dictates what the constitutional practice or outcome should look like. By taking the women’s rights jurisprudence related to customary and Islamic laws and the phenomenon of Shariacracy as themes of analysis, and Nigeria as a case study, this article explores how the emergence of jurisgenerative constitutionalism mediates global constitutionalism and cultural diversity in Africa. By bringing in the African experience, the article sheds some light on the range of theoretical and practical possibilities available to the emerging field of global constitutionalism.

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.

‘Accountability’ is the international legal term du jour. The concept is omnipresent in contemporary discussions about the UN Security Council in particular. From the lack of due process guarantees for individuals implicated in its counter-terrorism sanctions regime, to the (in)compatibility of Council authorized uses of force with international human rights and humanitarian law, no aspect of the Council’s recent practice has been immune from an accountability critique. Driven by the context in which it has emerged, the turn to accountability is seemingly prompted by a felt desire among international lawyers to constrain the arbitrary use of the Council’s considerable powers. However, beyond this felt desire, the concept lacks a robust theoretical foregrounding, both on its own terms and in relation to existential developments in international law. In an attempt to remedy this, this article situates the turn to accountability as a product of the broader turn to ‘constitutionalist’ thinking in international law. Specifically, it suggests that mainstream approaches resonate with a particular ‘liberal-legalist style’ of global constitutionalism. From both an etymological and epistemological perspective, however, I argue that this prevailing style offers an incomplete sense of accountability. The article introduces the dichotomy of ‘liberal-legal’ and more overtly ‘political’ styles of global constitutionalism as a heuristic device in order to offer a broader conception of accountability in the Security Council context. Political constitutionalism, I believe, offers important insights that will allow us to perceive and critique the Security Council in new ways.

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.

When actors express conflicting views about the validity or scope of norms or rules in relation to other norms or rules in the international sphere, they often do so in the language of international law. This contribution argues that international law’s hermeneutic acts as a common language that cuts across spheres of authority and can thus serve as a conflict management tool for interface conflicts. Often, this entails resorting to an international court. While acknowledging that courts cannot provide permanent solutions to the underlying political conflict, I submit that court proceedings are interesting objects of study that promote our understanding of how international legal argument operates as a conflict management device. I distinguish three dimensions of common legal form, using the well-known EC–Hormones case as illustration: a procedural, argumentative, and substantive dimension. While previous scholarship has often focused exclusively on the substantive dimension, I argue that the other two dimensions are equally important. In concluding, I reflect on a possible explanation as to why actors are disposed to resort to international legal argument even if this is unlikely to result in a final solution: there is a specific authority claim attached to international law qua law.

We analyse conflicts over norms and institutions in internet governance. In this emerging field, dispute settlement is less institutionalised and conflicts take place at a foundational level. Internet governance features two competing spheres of authority characterised by fundamentally diverging social purposes: A more consolidated liberal sphere emphasises a limited role of the state, private and multistakeholder governance and freedom of speech. A sovereigntist challenger sphere emphasises state control, intergovernmentalism and push against the preponderance of Western institutions and private actors. We trace the activation and evolution of conflict between these spheres with regard to norms and institutions in four instances: the World Summit on the Information Society (WSIS), the World Conference on International Telecommunications (WCIT-12), the fifth session of the United Nations Group of Governmental Experts (UNGGE) and the Budapest Convention of the Council of Europe. We observe intense norm collisions, and strategic attempts at competitive regime creation and regime shifting towards intergovernmental structures by the sovereigntist sphere. Despite these aggressive attempts at creating new institutions and norms, the existing internet governance order is still in place. Hence, authority conflicts in global internet governance do not necessarily lead to fragmentation.

Fragmentation, institutional overlaps, and norm collisions are often seen as fundamental problems for the global (legal) order. Supposedly, they incite conflict and disorder. However, some scholars have also emphasised functional and normative advantages of the resulting institutional pluralism. We argue that the consequences of the increasing international institutional density are conditional on whether and how different norms, institutions, and authorities are coordinated. In distinction from the fragmentation framework in international law and the regime complexity framework in international relations, this introduction outlines an interface conflict framework that enables important insights into this question and guides the contributions assembled in this issue. It zooms in on the micro-level of conflict between actors that justify incompatible positional differences with reference to different international norms. In particular, the concept of interface conflicts allows studying the conditions under which overlaps and norm collisions become activated in conflicts as well as the ways in which such conflicts are handled. Foreshadowing the main findings of the contributions to this Special Issue, we hold that interface conflicts are neither inevitable nor unmanageable. Most importantly, it seems that, more often than not, conflicts stimulate cooperative forms of management and contribute to the building of inter-institutional order.

This article puts forward a constructivist-interpretivist approach to interface conflicts that emphasises how international actors articulate and problematise norm collisions in discursive and social interactions. Our approach is decidedly agency-oriented and follows the Special Issue’s interest in how interface conflicts play out at the micro-level. The article advances several theoretical and methodological propositions on how to identify norm collisions and the conditions under which they become the subject of international debate. Our argument on norm collisions, understood as situations in which actors perceive two norms as incompatible with each other, is threefold. First, we claim that agency matters to the analysis of the emergence, dynamics, management, and effects of norm collisions in international politics. Second, we propose to differentiate between dormant (subjectively perceived) and open norm collisions (intersubjectively shared). Third, we contend that the transition from dormant to open – which we term activation – depends on the existence of certain scope conditions concerning norm quality as well as changes in power structures and actor constellations. Empirically, we study norm collisions in the area of international drug control, presenting the field as one that contains several cases of dormant and open norm collisions, including those that constitute interface conflicts. For our in-depth analysis we have chosen the international discourse on coca leaf chewing. With this case, we not only seek to demonstrate the usefulness of our constructivist-interpretivist approach but also aim to explain under which conditions dormant norm collisions evolve into open collisions and even into interface conflicts.

This article traces recent changes of the practices and justifications of the use of force in intervention, in the context of African security governance, highlighting how these changes interact with norm transformations at the scale of the global order. In doing so, it conveys how a long-standing pattern of norm contestation between international and African actors over external intervention vs sovereignty, has started to give way to a mutually accepted division of labour. After 9/11, the paradigm of liberal interventionism has been incrementally replaced by the framework of stabilisation, with a re-prioritisation of sovereigntist agendas. This has increased collaboration between international and African actors, specifically prompting the United Nations and the African Union to divide tasks of mandating and enforcement, thereby increasing inter-institutional ‘order’. This consensus, however, far from signifying wider compliance with ‘liberal ordering’ principles, rather indicates the need to revisit central assumptions of the International Relations norm diffusion literature. While the latter emphasises the diffusion of ‘good’ international norms, especially pertaining to human rights and democratisation, the growing consensus on ‘intervention as stabilisation’ instead exposes how post-9/11 justifications of practices that carry the potential to downsize the scope of such norms, are starting to resonate across international, regional and national sites of policy and practice.

Institutional overlap emerges not only as an unintended by-product of purposive state action but also as its deliberate result. In two ways, this article expands existing research on the causes and consequences of institutional overlap. First, we establish that three different types of dissatisfaction may lead states to deliberately create institutional overlap: dissatisfaction with substantive norms and rules, dissatisfaction with decision-making rules and dissatisfaction with the institutional fit of an existing governance arrangement for a given cooperation problem. Each type of dissatisfaction triggers a distinct motivation for the creation of institutional overlap: to induce policy change, to increase influence on collective decision-making or to enhance governance effectiveness. Second, we demonstrate that whereas the motivation to induce policy change leads to interface conflicts, the motivations to increase influence on collective decision-making and to enhance governance effectiveness give rise to inter-institutional coordination. Three empirical case studies on global energy governance, the governance of global development banking and global environmental governance probe these analytical claims.

This article analyses the rise of populism and its discursive challenge to global constitutionalism (GC). It shows that populist contestation is more ambivalent than often suggested: its challenge depends on the populist variety and can both undermine or support liberal principles of GC. Building on the ideational approach to populism and a framework of transnational politicisation, a proposed typology identifies both communitarian types of populism and cosmopolitan types of populism. Illustrative case studies of the Alternative for Germany, the Polish Law and Justice Party, the Democracy in Europe Movement and Peru’s Alberto Fujimori substantiate these empirically. While all cases contest a perceived lack of popular sovereignty in a largely non-majoritarian global constitutional order, varieties of populism present contrasting responses: communitarian types push for global de-constitutionalisation in line with illiberal nationalist majoritarianism, while cosmopolitan types support global constitutionalisation according to liberal and democratic principles. Further, neo-socialist populists campaign against neoliberal principles in GC, but remain divided about supporting political principles beyond the state. These findings suggest an emerging politicisation of the process of global constitutionalisation at the societal level according to principles of democratic legitimacy; and global constitutional differentiation depending on outcomes of these normatively ambivalent and empirically contingent political contests.

In their ground-breaking philosophical investigation of the ‘practice turn’ Lechner and Frost prompt a standpoint debate in international relations theory, which touches upon the relationship between practice theory and its subject matter. Lechner and Frost decidedly opt for an internal standpoint, which promises to understand a social practice in terms of the meaning-in-use of its participants. This article argues that the internalist promise will ultimately remain unfulfilled, however, for the aim of collapsing the distinction between the ‘language of action’ and ‘language of observation’ is epistemologically impossible. Taking such an ‘internal’ perspective not only underestimates the problem of the double hermeneutic. It also disregards the gap between theory and practice. Any social enquiry that fails to acknowledge this gap inevitably becomes externalist, for it misses to reflect on its own normative presuppositions. The way ahead is to address this gap reflexively by way of a triple hermeneutics that is bolstered by abductive reasoning.