Chapter 1 shows that the discussions which dominated intellectual and public life in the years immediately preceding the publication of Hegel’s Philosophy of Right revolved around the constitutional question as the central and definitive element of political discourse in Germany. It argues that Hegel consciously entered this constitutional debate and that his book constituted a timely intervention in the politics of the immediate post-Napoleonic period. By demonstrating the pan-German and European dimensions of contemporary constitutional concerns, Hegel’s political thought is at the same time lifted out of the exclusively Prussian context to which it has so often been confined.

The contribution provides a reconstruction of Wolfgang Abendroth’s approach to the constitution as ‘social compromise’. It clarifies the historical background and asks for its potential with regard to current challenges of constitutionalisation. In the initial part, it is demonstrated how the concept of ‘balance of social forces’ was used in the context of the labour movement in Austria and Germany in order to approach constitutional issues. Then, it is argued that this approach can make sense of the subsequent evolution of constitutionalism and international law after the second-world war. It is argued, however, that its main weakness consists in the focus on the central role of industrial labour within social conflicts: The constitutional compromises were often affected or even shifted by unforeseen agents of change which exceeded the sphere of blue-collar workers. Finally, the contribution addresses how Abendroth’s approach can be used in order to refine current attempts to re-establish a ‘balance of social forces’ through either hybrid constitutionalisation (sociological constitutionalism) or counter-institutions (plebian constitutionalism).

The emerging society of networks is no longer tied to territorial differentiation. The network form causes a rupture with established models of liability (individual or organisational liability), undermines the public/private liability divide, and also their regulation, now beyond the state. This third rupture in the knowledge base of society creates profound challenges for tort law. So far, the response in tort law has largely been deferential to definitions of acceptable risk that emerge from governance networks beyond territorial borders. This is explained by the uneven de-territorialisation of functional systems (economy vs law, and politics), and in particular by the failure of tort law to develop a convincing model of ascription for network failures. The chapter has two main tasks; first, it locates these problems within EU law because it is considered an avant-garde experiment in governing a society of networks. It is claimed that its product liability law offers novel solutions to problems of risk-responsibility under conditions of uncertainty. It also deepens our understanding of tort law as a venue for providing contestory, discursive spaces when systems discourses collide.

This chapter traces the spread and evolution of proportionality in French public law. I argue that the most important advances in French judicial review have occurred without recourse to proportionality terminology. And where this terminology finally spread in case law, it has not brought about radical changes to judicial methods. In reality, proportionality has been much more useful in the analysis and the reconstruction of judicial practice than in the justification of judicial decisions. Contrary to the dominant view, which traces the first applications of proportionality back to the 1930s, the chapter shows that proportionality language emerged in expropriation case law during the 1970s. Soon, the concept of proportionality in the legal literature was detached from the actual application of proportionality as a norm or principle. In the context of constitutionalisation of the legal order, proportionality was recognised as a constitutional principle and was transferred as a method for the adjudication of constitutional rights. However, a survey of the relevant practice reveals a peculiar French version of proportionality analysis.

Once a pale reflection of the English common law, judicial review in South African administrative law has been thoroughly indigenised as a result of both constitutionalisation and codification. The South African model has indeed come to be regarded as an archetype of constitutionalised judicial review. Judicial review was and remains the most dominant safeguard in South African public law. The chapter describes this and other significant features of the system both before and after 1994. It goes on to explain how the rights to just administrative action and the legislation giving effect to them, the Promotion of Administrative Justice Act 3 of 2000, have been a guiding light for a number of other jurisdictions over the last two decades. Finally, the chapter points to areas in which English cases and doctrines have been and continue to be relied on by the South African courts in administrative law. Remarkably, and notwithstanding the thorough indigenisation depicted here, the connection with English administrative law is still quite obvious and probably always will be.

The chapter starts with an evaluation of the role of the Constitution in the development of an autochthonous approach to judicial review of administrative action in India. Article 14 of the Constitution guarantees citizens a ‘Fundamental Right’ to equality before law and equal protection of the law in. This has been interpreted to include protection from arbitrary state action. Therefore, anyone wanting to challenge administrative action in India can do so by challenging the ‘arbitrariness’ of a decision under Article 14 by way of writ petition to the High Court or Supreme Court. The chapter criticises the dominance of the ‘arbitrariness doctrine’ and the eclipse of grounds of judicial review available at common law. It will demonstrate that in many cases, the Supreme Court has offered little guidance on how to test for arbitrariness. In addition, the use of the writ petition to invoke the constitutional jurisdiction of the courts has led to serious problems for access to justice. Taking for granted that rolling back the doctrine would require massive constitutional change – both unlikely, and disruptive – the chapter makes two arguments for legal reform. The Supreme Court should use traditional common law grounds as a guide to when administrative action is arbitrary. The Supreme Court should also, it argues, emphasise the independent status of common law grounds, in order to promote access to justice: lower courts should decide administrative law claims on common law grounds, easing the burden on the over-stretched writ petition jurisdiction. There is precedent that supports both these moves, and there is reason to hope they mitigate the problems raised by the arbitrariness doctrine, with the added advantage of broadening the public law toolkit of courts and counsel.

The modern corporation is a creature of law and this chapter emphasises the consequences of taking a ‘real entity’ view of its functioning in that context. It does this in respect to examining the notion of ‘corporate responsibility’ in a period where shareholder primacy is considered the single authoritative rationale compelling corporate governance. But can corporate governance be considered more widely than this, and what would such a widening of the ambit of corporate governance mean for the notion of responsibility in respect to the modern corporation? The argument is that the kind of ‘personhood’ the company is in law does not lend itself to being held responsible in the same manner as ordinary citizens: corporate citizenship is very different to personal citizenship. However, the chapter pursues the political consequences of taking this non-ethical account of responsibility in various contexts. In particular, it examines how the governance of the multinational corporation might be reformulated to better enable it to be held responsible for any misconduct in the operation of its business activities as these increasingly spread across international boundaries.

The chapter starts with an observation: contemporary élite jurists pursue, vis-à-vis one another, a “hermeneutic of suspicion”, meaning that they work to uncover hidden ideoogical motives behind the “wrong” legal arguments of their opponents, while affirming their own right answers allegedly innocent of ideology. The rise of the hermeneutic of suspicion is a striking manifestation of the contemporary transformation of the relationship between legal élites and political economic élites. This transformation accompanies and corresponds to the progressive juridification, judicialisation and finally constitutionalisation of the contemporary social order.

The chapter draws insights from the institutional theoretic model to investigate the role of courts and other formal adjudicative institutions in promoting sustainable development. Its tripartite institutions framework emphasises the knowledge and communicative elements of sustainable development flowing from key social actors such as adjudicative institutions to other segments of society. Using environmental protection as a case study and making references to national laws and judicial decisions, the chapter demonstrates that adjudicative institutions can manifest a commitment to sustainable development, affirm applicable global standards influence other actors in, and segments of, society. It is argued that the regulatory role of adjudicative institutions includes constitutionalisation of sustainable development, empowerment of individuals and stakeholder groups and addressing vulnerability of victims while the normative role ensures the internalisation and transmission of sustainable development values. The cognitive role includes reshaping local practices by promoting effective glocalisation and appropriate corporate governance and social responsibility for sustainable development. While it shows adjudicative institutions as a key champion for sustainable development in the public and private spheres, the chapter proposes solutions to overcoming impediments to such as lack of explicit provisions, narrowly focusing on compensatory remedies, locus standi, forum non conveniens and choice of law.