Transformative constitutionalism and process theory are generally seen as worlds apart. But they may be more compatible than we think. A transformative understanding of process is very broad, but it represents a natural extension of the line already being taken by contemporary process accounts intent on expanding the theory to fit global practice. It can help us to understand why an expansion based on and including a wider set of justiciable process concerns has proved difficult to limit. Conversely, transformative constitutionalism badly needs a better account of judicial restraint to balance its preoccupation with judicial boldness. Since it shares with process theory a deep concern with democracy, it can naturally draw on process accounts to understand its own limits. Democracy-seeking review, in aiming to build as well as protect democratic capacity, needs to be as concerned with restraint as intervention, depending on the context. Working out a transformative process theory is therefore at least an exercise instructive to either side, and it can offer a way to overcome divides that hamper global engagement with these core constitutional issues.

This article studies the contestation of liberal-democratic norms from within the liberal international order (LIO), focusing on the case of abortion rights. The US Supreme Court’s decisions on abortion, central to both domestic and global debates, provide a compelling case study of how two opposing sides may invoke the same norms, rather than presenting a case of norm collision or co-optation. In contrast to the binary pro-choice versus anti-abortionist framing, this article shows that both sides invoke liberal-democratic norms, but differ in how they relate the norms to each other and how they interrupt established norm relations. Against this background, the article introduces the concept of norm decoupling, highlighting how norm entrepreneurs isolate certain norms from hitherto related norms. This process contributes to a more subtle backsliding of the LIO, particularly by decoupling majority votes from other democratic, substantial norms, and by decoupling liberal-democratic norms from their gendered dimensions. Norm decoupling thus explains diverging interpretations of shared norms within the same context. This advances our understanding of norm contestation and interpretation, shedding light on how liberal-democratic norms subtly erode from within the LIO.

This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.

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.

Fostering global constitutional discourse has long been anathema to the conservative legal movement within the United States. In Dobbs v Jackson Women’s Health Services, which overturned Roe v Wade’s right to an abortion, the court’s conservative justices relied on a globalized analysis. In this article, I identify three potential hypotheses to explain this deviation from conservative orthodoxy. Dobbs’ conservative globalism could be explained by attitudinal preferences, legitimation concerns or the influence of illiberal legal networks. I compare the proceedings of Dobbs against Carson v Makin and Kennedy v Bremerton School District, the other significant Constitutional cases from the court’s 2021–22 term, to deal with religious issues. These two other cases did not feature global citations, despite such citations being able to advance the Justices’ policy preferences or blunt legitimation concerns. Lending credence to the illiberal network hypothesis, Alito’s Dobbs opinion was reliant on a unique amicus briefing by a global network of anti-abortion scholars advocating on behalf of the natural family. Such network campaigns were absent from the proceedings of Carson and Kennedy.

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.

Federations present difficulties for prevailing theories of constituent power, which usually attribute ultimate constitution-making authority to a singular people. This article examines how a ‘pluralized’ constituent power functions in federal systems. It argues that the operation of plural constituent power in federations reflects a distinctive model of constitutional formation according to which a ‘polity of polities’ is established and sustained through the maintenance of a tension between plurality and unity.

This article explores the use of constitutional narratives in social media platform governance, addressing the concept of digital constitutionalism. It aims to elucidate how digital constitutionalism manifests in platforms and the implications for democratizing these governance environments. It argues that digital constitutionalism exposes three goals toward platform governance: (1) an analogous application of constitutional values in private landscapes; (2) an ideological framework permeating multiple normativity levels; and (3) a policy consideration framing the symmetry of regulatory efforts with fundamental values. These three objectives hinge on a liberal and normative approach to constitutionalism, detaching from the political and social considerations at the centre of constitutional democracy. The article argues that this leads to extensive legitimacy issues when considering the transnational character of social media platforms and the localized issues of its users, as explored through an analysis of Meta’s Oversight Board. It is argued that a societal perspective of (digital) constitutionalism must guide the institution’s goals and procedures to promote legitimacy and accountability. This societal approach exposes the reliability issues of the established self-referencing system. It also allows an analysis of the hybridization of traditional constitutional principles in the emerging societal constitution developed by the corporation.

The essential role of parties in democracies makes it important to keep them democratic. This article argues for sortition-based citizens’ assemblies (CAs) organized in and by civil society to formulate democratic standards for political parties to follow, to evaluate them individually and to criticize them publicly if they do not. This is a third and potentially complementary way to keeping parties democratic, placed between militant democracy on the one hand and citizen vigilantism on the other. Militant democracy is challenged by the fact that few democratically problematic parties are ostensibly anti-democratic and therefore likely to fall under the legal criteria for issuing party bans and other legal sanctions. Militant democratic measures are also likely to be ineffective and are vulnerable to abuse. Citizen vigilantism, whereby active democratic citizens take on the responsibility for protecting democracy, deals better with the ambiguous nature of democratically problematic parties but suffers from a lack of democratic authorization and clear standards of critique. While not perfect, the proposed model remedies many of the shortcomings of both approaches. Contributing to an emerging literature on CAs as instruments in the protection of democracy, the article evaluates the model’s normative justifiability, feasibility and likely effectiveness.

Russia’s continued aggression against Ukraine has sent shock waves around the world. Russia has violated the most fundamental rule of international law and most people intuitively feel that the war in Ukraine has changed the entire landscape of international society. Given what is clearly a turning point, it is difficult to assume that global constitutionalism founded on ‘human rights, the rule of law and democracy’, called ‘the constitutional trinity’, will not undergo any changes. Can global constitutionalism survive such a difficult moment? This is a fundamental question that global constitutionalists must address. This article answers this question in the affirmative. First, despite its gross violations of international law, Russia is not necessarily attempting to withdraw from the current framework of international law. The existing individual-centred elements in international law, which are the central pillar of global constitutionalism, will not be replaced by any alternatives. Second, even if the existing framework of international law remains viable, there is an undeniable risk that the polarization of international law accelerated by the ongoing war will negatively affect global constitutionalism. Such polarization may hollow out the constitutional trinity in international law. However, global constitutionalism will continue to function as the principal cognitive framework for international society because the exercise of individuals’ rights embedded in international law will incessantly provide energy for global constitutionalism. This article concludes that insofar as international law keeps its individual elements, global constitutionalism will be able to retain its normative power under the present predicament in the world.

The Russian war against Ukraine has challenged fundamental norms such as sovereignty, non-interference and the prohibition of the use of force. It has led to diverse reactions from the international community. Only very few states sided with Russia, some states remained neutral, while the vast majority condemned the attack and supported Ukraine in its right to self-defence. Thus, although there is no legal obligation, many states display behaviour that goes beyond diplomatic support. They support Ukraine financially and even deliver weapons to support Ukraine in its right to self-defence. In this article, we conceptualize different types of actors’ behaviour in world politics. We distinguish between responsible, irresponsible, appropriate, and inappropriate behaviour. We apply this typology to states’ reaction to the Russian war against Ukraine. The typology enables us to analyse the variation of the responses with reference to norms and responsibility, two core concepts of International Relations (IR) Theory and global politics. Counterintuitively as it might seem, we argue that the support of Ukraine with weapons can be categorized as responsible behaviour as it displays an over-fulfilment of the right to self-defence norm, which leads to the emergence of a new norm: the responsibility to support norm.

In this article, I ask about the extent to which the Conference on the Future of Europe (CoFoE) has advanced democracy in the European Union. I critically engage with the claim that the CoFoE’s success should not be measured by whether it enabled constituent power, or ultimately results in treaty reforms, but by the fact that, by introducing citizens’ assemblies to EU politics, it has laid the foundation for participatory democracy in the European Union. Drawing on established theories of participatory democracy, I argue that this interpretation misses the point. To put forward an alternative view, I revisit James Bohman’s concept of a democratic minimum. The best democratic defence of permanent EU citizens’ assemblies is that they could provide citizens with the capacity to initiate deliberation about common concerns – and thus function as a nucleus for constituent power in the European Union. Nevertheless, the idea should be viewed with caution, as permanent citizens’ assemblies could just as well become a democratic fig-leaf allowing EU institutions to reject calls for fundamental reforms. Much therefore depends on their institutional design.

The various and diverse academic responses to the Conference on the Future of Europe’s efforts at democratic renewal, including those by Ben Crum, Markus Patberg and Sandra Seubert, speak not only to the lack of a clear institutional locus or pathway associated with the Conference, but also to differing understandings of the basic conditions of existence – or political ontology – of the European Union. These differing understandings are reflected in different attitudes to the European Union’s constitutional standing and prospects. This article explores how the special place of constitutional retrofitting in the European Union – of reconstructing and reimagining an originally pre-constitutional system in constitutional terms – helps to illuminate the different understanding of political ontology in play, and helps clarify what is at stake in the continuing debate over fundamental reform.

The relationship between balancing and proportionality has not always been clear. Because part of the literature falls short of adequately differentiating between the two tools, many people have become conditioned to see an instance of proportionality whenever the word ‘balancing’ is dropped. As a consequence, the ubiquity of balancing brought about the feeling that proportionality is equally ubiquitous. In this article, I show that the proportionality test is necessarily linked to judicial review and how this link is key to understanding why not every instance of balancing is part of the proportionality test and that proportionality cannot be as ubiquitous as many have claimed. This has not only analytical relevance, but also institutional consequences.

This essay proposes the epistemic ethos of passionate humility for knowledge production about global constitutionalism in the aftermath of Russia’s full-scale invasion of Ukraine. By employing the conceptual strategy of elucidation, passionate humility can reveal a counter-intuitively counter-hegemonic use of the global constitutionalist triad of human rights, democracy and the rule of law in the Ukrainian resistance against Russia’s war. As an approach to knowledge production, passionate humility addresses epistemic ignorance by retrieving situated non-imperial knowledges while also confronting the ambivalent politics of such knowledges. It therefore hints at how we can both decentre and make use of resources associated with global constitutionalism, without valorizing western elitist discourses, reinscribing the inter-imperial mode of knowledge production or sanitizing vernacular knowledges. Passionate humility does so in three moves: it problematizes hegemonic epistemic frames (either west-centred or Russia-centred); it foregrounds complex social agency, which resists a fixed theoretical or ideological language; and it reveals the contextual deployment of the Occidentalist language of global constitutionalism in the Ukrainian public discourse as a practice of negotiated subjecthood. Such practice can be counter-hegemonic without being inherently progressive.

Digital constitutionalism is a strand of scholarship that focuses on the relationship between constitutional law and the socio-legal challenges posed by the digital revolution. However, such scholarship often builds uncritically on the tenets of liberal, state-centred constitutional theory, giving rise to contradictions between analytical starting points and normative aspirations. Against this background, with an approach inspired by societal constitutionalism, this article engages with digital constitutionalism as both an object and a means of critique. As an object, digital constitutionalism is assessed in the light of its contradictions. As a means, digital constitutionalism is used to assess the limits of traditional, liberal, state-centred constitutional theory. In other words, societal constitutionalism is the theoretical lens used to both deconstruct and reconstruct digital constitutionalism according to its normative aspirations. The article has three main goals: first, linking different discourses within digital constitutionalism, highlighting its critical potential; second, advancing some proposals based on such reflections; and third, bringing digital constitutionalism closer to the broader global constitutionalism discourse. After an overview of societal constitutionalism, the article focuses on digital constitutionalism’s definition and three functionally differentiated systems: politics, economy and law. For each of them, it highlights analytical and normative gains deriving from the societal constitutionalism-based approach as well as policy proposals to be developed further.

The Conference on the Future of Europe (CoFoE) was the first initiative to include citizens in deliberations about the future of European democracy since the failed Constitutional Convention of 2002/03. Although embedded within broader trends to involve ordinary citizens in the political process, it is of specific relevance in the European context because it raises expectations of democratic catching up and relates to ongoing discussions and struggles about the constitutional character of the European Union. This article argues for a citizen-centred perspective on constitutional renewal in the European Union that places European citizens as constituent subjects at centre stage. It outlines how making the European Union accessible as a political arena allows citizens to regain control over developments that have evolved behind people’s backs. It concludes that deliberative tools of citizen participation should be used to pave the way for a wider reorganization of public authority and a renewal of the European Union’s constitutional basis.

The Russian invasion of Ukraine has widely been seen as a failure of the international legal order, which could neither stop Russia from launching a war of aggression, nor prevent the perpetration of international crimes. In such a reading, great power politics have (once again) trumped international law. We argue instead that international law plays a crucial part in the conflict by providing a semantic infrastructure, which the opposing parties use to justify their actions, try to re-draw limits of permissible action and negotiate changing ‘red lines’ with the enemy. Drawing on the notion of lawfare, we show how the pragmatic (mis-)use of international law flexibly delineates boundaries and stabilizes expectations between adversaries even as they are contested in the current war. We focus on claims about self-determination and self-defence to justify the use of force; categorizations of combatants; and weapons transfers and the status of third states. That international law can be violated or reinterpreted to breaking point does not make it irrelevant. To the contrary, it recalls its important role as a language of conflict and compromise, beyond strictly legalist as well as dismissive realist views.

As part of their continuous effort to enhance the effectiveness and democratic legitimacy of human rights treaties, human rights treaty organs have increasingly fostered a direct relationship with various state organs, thereby penetrating the ‘states’ that traditionally have been treated as monolithic legal entities. Treaty organs review the decision-making process of each type of state organ – courts, parliaments and administrative organs – and make remedial orders that are substantially addressed to specific state organs. Such phenomena go hand in hand with the relativization of the distinction between the legal spheres in which human rights treaty organs and state organs operate. This is the first study to address such phenomena as a totality. It constructs the ‘separation of powers in a globalized democratic society’ theory, thereby proposing how each type of state organ and the treaty organs should interact under human rights treaties. Its findings contribute, first, to the harmonious achievement of the effectiveness and democratic legitimacy of human rights treaties; second, to the reform of the classical paradigm of international law, in which monolithic states are the only relevant legal entities; and third, to the long-standing debates on the relationship between international and national laws from a new angle.

Constitutional reform in the European Union suffers from a post-functionalist dilemma: the options that are politically viable are not democratically legitimate and the options that are democratically legitimate are not politically viable. Against the background of the recent Conference on the Future of Europe and the involvement of transnational European Citizens’ Panels, this article asks whether there is any prospect of overcoming this dilemma and organizing fundamental reform of EU institutions that is both normatively legitimate and politically viable. For this, it examines four models of EU treaty reform and the way these have figured in actual EU reform processes: Intergovernmental Conference, European Convention, informal intergovernmentalism and a Citizens Convention. The article concludes that, as long as the European Union is best characterized as a ‘demoi-cracy’ in which political deliberation takes place primarily in national public spheres, the Intergovernmental Conference remains its main and inevitable forum for constitutional reform. Hence, alternative models of EU constitutional reform should be evaluated not so much on the basis of their potential to substitute the IGC but rather on their ability to catalyse the process and to pre-commit the member state governments.