In a crisis, ordinary rules must often give way to a more expedient approach. Such emergency competences tend to favour executive decision-making over legislative procedures. In a European Union (EU) shaken by successive crises, this situation risks leading to permanent competence creep. While considerable attention has been devoted to the impact of crisis on legal and political decision-making within the Union, the position of the Court of Justice (CJEU) – and its impact on the distribution of powers within the EU – has been less researched. This Article fills the gap by exploring how the Court reviews the exercise of power in times of crisis by executive actors at the Union and Member State levels. Using migration law as a case study, it qualitatively and quantitatively examines how the CJEU has responded to crisis both in its scrutiny of measures of containment, and through its adjudication of migration cases in general before and after the acute phase of the 2015 refugee crisis. The Article shows that the crisis has led the CJEU to take a more lenient approach towards the executive powers at both the Union and the Member State level. It argues that this effectively amounts to a withdrawal from the judicial control function and enables an expansion of executive power that is likely to have effects lasting beyond any given emergency.

This introductory Article sets out the background and summarises the content of the Symposium on ‘The Court of Justice of the European Union (CJEU) as a Relational Actor’. Observing that the CJEU has been a key player in shaping European legal integration, the Symposium takes as its starting point that courts – and the CJEU is no exception in this regard – are unable to drive developments in isolation. For the Court to carry out its role as guarantor of the Treaties and guardian of the rule of law in the Union, it needs not to isolate itself but to interact with other European Union (EU) and national institutions. Relations, the Symposium argues, are not only unavoidable but also legitimate and even vital for the adequate execution of the judicial function. This introduction briefly explores six of the Court’s most important relationships: those with the other EU institutions; the courts of the Member States; the Member States themselves; the parties appearing before it; other international courts; and the general public. It then summarises the contributions and highlights how they complement each other in examining the CJEU as a relational actor.

In this article, we argue that the 2022 Chilean draft Constitution helps to articulate the distinction between a transformative constitutional project and a utopian one. Whereas a transformative project lays down markers for social change that will take time to achieve, a utopian project sets out goals that are unlikely to be achieved within any reasonable timeframe. Utopianism is a product of two relationships. The first is the internal relationship between the transformative goals laid out in a constitution and the institutional pathways through which changes will occur. The second is the external relationship between the goals in the text and the views and support of key groups. In Chile, both relationships were problematic. First, the Convention adopted a draft that was heavy on ambitious programmatic content but lacked a clear vision of how to implement it. Second, the Convention produced a draft that was supported by the ephemeral civil society groups galvanized by the 2019 protests but divorced from the vision of Chile’s parties and public opinion. Some of this was a product of the peculiar electoral context in which the Convention acted, which has already been corrected. But some of it reflects deeper tensions within transformative constitutionalism.

A brief commotion arose during the hearings for one of twenty-first-century India’s most widely discussed legal disputes, when a dynamic young attorney suggested that deities, too, had constitutional rights. The suggestion was not absurd. Like a human being or a corporation, Hindu temple deities can participate in litigation, incur financial obligations, and own property. There was nothing to suggest, said the attorney, that the same deity who enjoyed many of the rights and obligations accorded to human persons could not also lay claim to some of their constitutional freedoms. The lone justice to consider this claim blandly and briefly observed that having specific legal rights did not perforce endow one with constitutional rights. Nevertheless, a handful of recent and high-profile disputes concerning Hindu temple deities and the growing influence of Hindu nationalist politics together suggest that the issue of deities’ rights is far from a settled matter. This article argues that declining to recognize deities’ constitutional rights accurately reflects dueling commitments in the Indian Constitution.

The challenge that delegated legislation poses to parliamentary sovereignty and associated supremacy in the UK is purportedly addressed through what we term the ‘constitutional bargain of delegated law-making’. This has three elements: the proper limitation of delegation by Parliament through well-designed parent legislation; the exercise of self-restraint by the Executive in the use of delegated authority; and the enablement of meaningful scrutiny by Parliament. As a paradigm situation in which delegated law-making might be said to be necessary, the first year of the Covid-19 pandemic is an apposite context in which to assess the robustness of that bargain. Our analysis uses a sample of Westminster-generated pandemic-related secondary instruments as a peephole into the broader dynamics of this constitutional bargain and further reveals its significant frailties; frailties that are exposed, but not created, by the pandemic.

In Chile, many commentators, academics and political leaders have spent years arguing that the limited nature of the social rights in the national constitution is partially responsible for the country’s economic and social inequality. It is thus unsurprising that changing the scope of the country’s social rights was a major focus of the recently failed constitutional reform effort. However, we argue that the long-running claim that Chile’s social problems were due to the limited nature of social rights can be thought of as social rights scapegoating, by which we mean that commentators blamed outcomes on constitutional rights, even though there is little evidence that countries’ socio-economic outcomes are a product of their social rights.

With the patriation of the Constitution in 1982, the Supreme Court of Canada (SCC) inherited extraordinary political powers. In response to the Court's expanded power of judicial review, there was a sizeable increase in the number of political actors “intervening” in SCC cases. Scholars of Canadian law and politics are deeply divided on whether civil society participation in the courts—particularly as intervenors—is democratically legitimate. This important debate cannot be settled without an empirical evaluation of who intervenes. This research note provides an analysis of all the Charter cases heard by the SCC between 2013 and 2021. In contrast to the field's dominant theory on interest-group legal mobilization—the Court Party thesis—the findings reveal that equity-deserving interest groups, such as those representing women, have an irregular presence in Court. Instead, powerful actors such as governments and legal associations make up a majority of the “repeat player” intervenors. While further research is warranted, the research note concludes that without the maintenance of sufficient support structures, intervention may be unable to perform a democratizing function.

This paper analyses five constitutional developments in Central and Eastern Europe that can impact the domestic implementation of the UN Guiding Principles on Business and Human Rights (UNGPs). Using Czechia, Poland and Slovenia as examples, the paper highlights four potential drivers, namely: (1) the process of constitutionalizing human rights; (2) the proliferation of the doctrine of horizontal effect of constitutional rights; (3) the constitutional legitimacy of state intervention in the free market economy; and (4) the mechanism of judicial review. Furthermore, the author underlines the most significant challenge, which is increasing resistance to international norms in some countries, e.g., Poland. The paper concludes that the jurisprudence of the constitutional courts can facilitate the domestic implementation of the UNGPs, particularly Pillars I (State duty to protect human rights) and III (access to remedy).

Sri Lanka’s Constitution authorises the state to limit certain fundamental freedoms on the grounds of specific public interests. This article examines how this constitutional limitation regime has become vulnerable to majoritarian influence. It uses a case study approach, supplemented by key informant interviews, to delve into Sri Lanka’s constitutional practice with respect to limitations on fundamental freedoms such as the freedom of religion or belief, and the freedom of expression. The article illustrates how organs of the Sri Lankan state have equated notions of ‘public interest’ with the majority community’s conceptions of ‘security’, ‘order’, ‘health’ and ‘morals’. It argues that this practice reflects a cleavage between the moral legitimacy and the legal claimability of fundamental freedoms of minorities and satirists in Sri Lanka. It concludes that legal regimes designed to guarantee fundamental freedoms offer very little protection to minorities when the underlying politics driving the application of law is majoritarian.

Stefan Eich’s The Currency of Politics reconstructs and contextualises the monetary understanding of some of the most renowned political thinkers in history. By contextualising each author’s conceptualisation (subjective perception) against their respective contemporary monetary frameworks (objective institutional dimension), Eich elaborates a narrative composed of cumulative layers leading to a double conclusion: that money is political at its core, and that current policies are actively de-politicizing money. These relevant findings are the point of departure of a reflection on the role that law, and constitutional theory in particular, must play in the configuration of Europe’s common currency to overcome some of the most acute difficulties the process of integration is currently experiencing. If the triad law, money and public discourse is supposed to articulate social life in the polity, European monetary integration has neutralised them by neglecting the relevance of one of their key features: civic reciprocity. Reactivating the three mechanisms of social integration requires an exercise of constitutional imagination able to integrate interdisciplinary knowledge about money within an institutional framework able to prevent the concentration of unlimited power in unaccountable institutions and to promote and fully exploit the democratic potential of money.

The Tŝilhqot’in Nation has had ample experience exercising its laws and jurisdiction to manage emergencies during record-breaking wildfires and the COVID-19 pandemic. Despite the Nation’s unique opportunity to formally describe and advance its jurisdiction through its landmark Aboriginal title declaration and beyond, in these crises, Crown actors have defaulted to well-worn patterns of colonialism. Through a detailed analysis of recent Tŝilhqot’in experiences of emergency, we argue that provincial and federal responses to these extreme events reveal constitutional habits: patterns of decision-making that emerge in the immediate response to an emergency, so as to appear automatic. Crown emergency responses assume exhaustive Crown jurisdiction and its corollary erasure and dispossession of Tŝilhqot’in jurisdiction. Fortunately, however, habits can change. We show how Tŝilhqot’in responses to emergency reveal alternate constitutional possibilities: habits of coordination, which, through their attention to responsible relationships, build capacity to respond to emergencies and, more broadly, a changing world.

Obergefell v. Hodges, the 2015 Supreme Court decision establishing a constitutional right for same-sex couples to marry, marked the first time in the Court’s history that justices explicitly disagreed over the meaning and requirements of human dignity. In his dissenting opinion Clarence Thomas sought to reclaim rather than simply reject the language of dignity, advancing a conception of dignity that differed sharply from the conception embraced by the majority. Using this disagreement as a point of departure, this article demonstrates how dignity has served as an extra-textual value that underpins divergent visions of American constitutionalism that, in turn, inform interpretations of the Constitution’s text and history.

This article presents a cross-disciplinary approach to the study of constitutions: ‘constitutional institutionalism’. Conventional approaches in law, philosophy or political science tend to reduce constitutions either to their formal, factual or ideal aspects. The constitutional-institutionalist approach, by contrast, seeks to integrate these aspects into a more general perspective by focusing on the dynamic interplay between constitutional actors and constitutional norms. It understands constitutional norms as binding institutions that shape and constrain political action, but never fully determine it. Constitutional institutionalism furthermore asserts that constitutional norms, whatever form they take, only have meaning in relation to other constitutional norms as well as to constitutional actors, who impose meaning on these norms. Therefore, constitutional phenomena ultimately require interpretive explanations. This article concludes with a brief constitutional-institutionalist research agenda.