How did Portuguese domestic politics and institutions matter in shaping employment and social protection statuses – crucial bases for the solidarity towards the vulnerable – in the decade spanning the Great Recession and the COVID-19 pandemic? This chapter examines how the cooperation between government, opposition parties and social partners, and the Constitutional Court, worked to moderate external pressures to liberalize labor market regulation and social protection regimes during the Great Recession, to expand the protection of the most vulnerable after the crisis and to devise a concerted response during the COVID-19 pandemic. We show that ideological orientation also matters. After the crisis, the Geringonça Socialist government and left partisan and trade union allies enacted inclusive and solidaristic policies that de-segmented atypical and independent work, bettered work–family balance, the working poor, and unemployed youth and elderly. Lastly, we probe how changing patterns of societal solidarities and cleavages generated by crisis-era reforms influenced the 2015 election. The crisis losing ‘distributive coalition’ (unemployed, young atypical workers, standard workers, civil servants, and pensioners) punished the incumbent conservative coalition, voting for left-of-center parties. The Geringonça social policy agenda, enacted through a renewal of social concertation and collective bargaining, was responsive to these emerging bonds of solidarity, though not devoid of tensions and contradictions.

In the previous chapter, I showed how the Venezuelan opposition’s strategic choices helped Hugo Chávez erode democracy. In this chapter, I develop the other part of my argument by highlighting the role of the Colombian opposition in preventing democratic erosion. Between 2002 and 2010, Alvaro Uribe tried to erode democracy in Colombia. Like Hugo Chávez (1999–2013) in Venezuela, he introduced several reforms that sought to reduce the checks on the executive and extend his time in office beyond a second term. He was polarizing, and willing to push as far as he could to increase the powers of the presidency and stay in office beyond a second term. His government harassed opposition members, journalists, and members of the courts and worked in tandem with illegal armed actors to systemically undermine those who criticized the president. Contrary to Chávez, however, Uribe was not able to turn Colombia’s democracy into a competitive authoritarian regime. Despite his attempts to undermine the independence of the courts and the fairness of elections, Colombia’s constitutional order remained fairly strong, and Uribe had to step down after his second term.

This chapter investigates judicial corruption by illuminating the contrast between the high expectations generated by the construction of strong courts via ambitious reform efforts, and the reality of pervasive corruption within those same judicial institutions, especially where political power is concentrated. It examines the case of Ecuador, where a Constitutional Court with very broad formal powers granted by the 2008 Constitution was at one point in its history the site of corrupt exchanges between judges, lawyers and politicians. Crucially, such exchanges thrived when political power was concentrated: politicians demanded favourable decisions on specific issues and in exchange offered credible protection for judges seeking to engage in corrupt dealings with high-flying private litigants.

Populists in power behave as if courts were the most dangerous branch, and therefore usually make them the first target of populist assault. This dynamic is particularly pronounced in the case of constitutional courts, as the examples of Hungary and Poland show. In both those cases, constitutional courts were captured, and judicial review of constitutionality has been effectively rendered otiose. Beyond constitutional courts, common courts are also often subordinated to the executive, or see their powers marginalized. Judicial responses range from judicial resistance, to laying low, to "judicial populism" under which judges became active enablers of the executive will. All these strategies can be observed not only in Hungary and Poland, but also in India, Brazil and the Philippines.

This chapter is divided into three sections. Section 5.2 provides a brief overview of the legal framework on pharmaceutical patent law in South Africa, while Section 5.3 examines the jurisprudence on the right to health in South Africa. Section 5.4 deals with the incorporation of a model of human rights into the adjudication of disputes involving pharmaceutical patent rights by courts in South Africa. The chapter concludes with the view that the incorporation of a model of human rights does not necessarily translate to the abrogation of patent rights, it only means that the courts should not permit patent rights on pharmaceutical products to be exercised and enforced in a manner that impedes the enjoyment of the human right to health.

This chapter uses recent developments in Hungary to examine how the equivalent of political revolution can occur through changes that are, taken individually, in compliance in the constitution but collectively amount to wholesale transformation of the constitutional order. It confronts the question of what limits, if any, exist on constitutional revolutions of this type.

Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, while “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. By itself, however, the hard/soft distinction captures neither the degree of finality nor the ultimate impact of judicial review. On the one hand, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, a small but growing number of courts – the Taiwanese Constitutional Court among them – have claimed the power to invalidate constitutional amendments as unconstitutional. Using Taiwan as illustration, this chapter highlights three factors that must be considered in evaluating the extent to which courts have the last word on constitutional matters. First is the formal legal effect of the decision (for example, whether a decision has suspended effect or is valid inter partes rather than erga omnes). Second is the ease with which judicial decisions can be formally overridden or set aside (as in the form of legislative override or constitutional amendment). Third is the extent to which judicial decisions require cooperation and implementation by other institutions of government in order to have practical effect.

Once populist forces win elections, they follow a similar blueprint to transform the constitutional structure. The populist forces obtain control over the institutions that are central to constitutional power. The steps typically include filling the public administration and apex courts with loyalists, control over the media and autonomous organizations, and increased executive power in the hands of the populist leader. Populist forces promise authenticity and a government (state) that will cater to the people. These are political projects; the constitutional aspects are secondary, and where constitution-making is possible, it has been used to enable the new state, serving the interests of the new elite formed around the Caesaristic leader. The trajectories and exercise of power depend on the availability of a new constitution.

Illiberal democracy is a special constitutional arrangement: it is a plebiscitarian democracy unfolding the totalitarian potential within a democratic system. As a centralized power, it intends to perpetuate the rulers’ monopoly over the state, relying on the falsification of classical (liberal) constitutionalism. These features offer sufficient family resemblance to treat them together for the purposes of constitutional theory. Illiberal democracy takes an instrumental attitude to constitutional institutions. Amendments to the constitution take place according to the momentary interests of the political power, like in any democracy without extremely cumbersome amendment rules. The ultimate attachment to the spirit of the constitution, the idea of respecting an unamendable core, is missing. There is no commitment to underlying principles; appearances matter, not authenticity. Hence the inevitable duplicity and deceit in the constitutional and legal system of illiberal democracy. The constitution is not an entrenched, higher order law but a practical tool to solve emerging conflicts in an illiberal and nondemocratic way (imposing arbitrary will as supreme command).

This chapter investigates how South Korean citizens’ petitioning to redress grievances against the state and constitutional adjudication have developed since the end of the 1980s. While de jure there existed a constitutional review system since the founding of the Republic in 1948, it was only after transition to formal democracy that infringement on fundamental rights could be de facto appealed in the Constitutional Court, which was established in 1988. Through an analysis of caseload statistics from the Constitutional Court, the chapter explores how citizens have been making use of the constitutional appeal system for claiming their rights. The study also qualitatively examines shifts in the logic and outcomes of constitutional adjudication of fundamental rights claims concerning major social issues such as gender equality, sexual autonomy, and freedom of conscience.

This chapter starts with a historical background of the Kemalist hegemonic paradigm, starting with the late Ottoman period. It argues that Turkish secularist nationalists and Islamists emerged due to their different explanations for the internal and external causes of the Ottoman decline. The secularist nationalist narrative of the Young Turks who ruled the Empire between 1908 and 1918, was later incorporated into Kemalist ideology following the fall of the Ottoman Empire. This ideology shaped state thinking until the early 2000s despite transitioning to a multiparty political system in 1950. After discussing different variants of Kemalism, the chapter discusses how the Kemalist elite guaranteed the continuation of their hegemony by locking in their privileges into the 1960 Constitution and creating a dual tutelage system with anti-majoritarian institutions such as the Senate, the Constitutional Court and the National Security Council, whose decisions had to be implemented by the governments. These institutions were in control of high politics issues that were all securitised to the level of existential importance for the nation. Thus, the politicians were not allowed to modify the secularist Muslim nationalist identity of the state, the creation of the desired citizens project, state–Islam relations, Diyanet’s status, homogenisation policies and the discrimination of minorities.

This chapter examines Germany’s politics of economic immigration policy making over the course of five decades. The first case study examines the establishment of Germany’s guest worker system through a series of bilateral treaties in the 1950s and 1960s, followed by the 1973 recruitment stop. After the recruitment stop, political elites used the experience of unintended and large-scale immigrant settlement to construct a national narrative of Germany as a “country of non-immigration.” The second case study examines the reopening of guest worker recruitment channels – this time with Central and Eastern European sending states – in the 1990s. The chapter’s third case study examines the Green Card program of 2000 which marked Germany’s first foray into high-skilled immigration and, despite its limited recruitment success, marked the beginning of a debate that sought to reframe (high-skilled) immigration as being in Germany’s national interest. Our final case study examines the passage of the 2004 Immigration Act by Germany’s first Social Democratic-Green government. The Act signifies the failure of paradigmatic reform: rather than being a historic milestone, it left in place the recruitment stop and provided for the admission of high-skilled immigrants only the basis of regulatory exemptions.

The chapter presents an analysis of the application of the proportionality doctrine in the case law of the South African Constitutional Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The data reveals that although the failure rates at the worthy purpose, suitability, and necessity stages are surprisingly high, the court generally continues its analysis to also consider the balance between values. These findings lead to a nuanced understanding of the South African court’s global application of proportionality, in which the court utilizes all elements of the analysis in each case to evaluate whether allowing a particular limitation or striking it down advances constitutional values more faithfully. The chapter further analyses qualitatively the formulations and applications in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.

The 1990s were a time of great global optimism about the possibilities of liberal constitutionalism.The 1996 South African Constitution was in many ways at the center of this enterprise.

Colombia's Constitutional Court has justifiably attracted a good deal of attention around the world for its contributions to democracy in a challenging environment. This chapter considers why the Court was able to play such a successful role during the early years of the constitution. The chapter presents three kinds of arguments to answer the question: (i) historical, (ii) normative, and (iii) conceptual, and develops a synthetic account.