This editorial considers how scholars interested in issues of global constitutionalism should approach the questions that have concerned those interested in enlightenment. Reflecting on the relocation of the journal’s editorial offices to Edinburgh, we foreground discussions from the historiography of the long eighteenth century that should be of interest to scholars of international relations, international law and political theory. Two main contributions are emphasized. First, a contextualist and political approach to enlightenment invites us to see global constitutionalism as a strategic response to crisis, aiming to combat fanaticism. Second, a global approach to enlightenment invites us to continue enlarging the world of global constitutionalism. Taken together, the contributions support the journal’s ongoing efforts to decolonize global constitutionalism by enjoining readers and contributors to attend to neglected sides and sites of global constitutional processes.

Comparative legal literature increasingly stresses the fundamental importance of informal norms that underpin democratic and constitutional governance. A particular species of these informal norms is the constitutional convention. Although there is wide recognition of the fact that populism constitutes a key issue of constitutional resilience in our time, the issue of constitutional resilience with regard to the relationship between populist political style and constitutional conventions has been largely overlooked. This article maps the extent to which populism threatens constitutional resilience in democratic systems which rely substantively on constitutional conventions. Bringing together political science and legal theory, we engage in a conceptual analysis of conventions and of populism as a political style. In doing so we seek to explain the perceived tension between the two phenomena. We argue that populism should be conceived as a transgressive political style, which is fundamentally hostile to the notion of unwritten constitutional law or practice. In view of the crucial connection between constitutional conventions and the resilience of the constitutional system, and the vulnerability of conventions as norms of self-restraint (lacking independent enforcement mechanisms), we conclude that the populist political style indeed constitutes a problem of constitutional resilience.

Transitional justice (TJ) emerged during the consolidation of the liberal international order (the LIO). It was deemed to flow from, and contribute to, the emergence of democracy, human rights and the rule of law in post-authoritarian and post-conflict states. The LIO generated material and discursive support for processes of accountability, truth, repair and guarantees of non-repetition. The LIO is now widely perceived to be under significant threat with the rise of authoritarian states (most notably China and a revanchist Russia) and the erosion of liberal democratic values in the US and Europe. Some worry that TJ may have peaked and is doomed to decline in this more challenging ecology. This article is an attempt to show how the material and discursive environments of TJ have altered with the decline of the LIO and the rise of a multipolar world. In material terms, there are fewer democratic transitions that might facilitate the type of state-level rule of law or rights-promoting impact associated with accountability, truth or reparation processes, while liberal peacebuilding is now far less premised on democratisation and human rights that post-conflict TJ processes built upon. In a world where authoritarian rejections of human rights and the rule of law meet widespread support and where a chastened liberal West resiles from effectively exporting or supporting norms like TJ, there is also a lowering of the argumentative burden for those who want to outright defy, water down or find workarounds for TJ.

This paper examines the relationship between feminist manifestos and constituent power, focusing on the Chilean feminist movement. Manifestos have long been an influential political tool in shaping political identities and claiming power. However, they are often overlooked in constitutional law. This paper addresses this gap by exploring feminist manifestos, which have been pivotal in denouncing historical exclusion, forming political groups and asserting constituent power. Drawing on the work of Ruth Houghton and Aoife O’Donoghue, the paper investigates how feminist manifestos challenge traditional notions of constituent power. However, it argues that their performative conception of power overlooks the vital role of political representation. The paper argues that political representation is crucial for a fully realised theory of feminist constituent power, as it enables collective action and democratic participation. By looking at the Chilean feminist movement’s involvement in the 2019–2022 constitution-making process, the paper demonstrates how feminist movements, through strategies such as manifestos and strikes, can influence constitutional change, while also highlighting the limitations of excluding political representation from the conversation. Ultimately, the paper asserts that feminist manifestos can reimagine constituent power, but their full potential is limited without a comprehensive understanding of political representation.

I champion a deliberative right to constitutional silence. It entitles individuals to reflect upon the arguments and reasons in favour or against changing or re-interpreting constitutional content under proper conditions. After reflecting on the place of silence in intellectual history and its features and virtues, I define the right to constitutional silence. It has four components: salience, time, reflection and publicness. Next, I discuss its grounds. I argue that it is an institutional legal right that citizens have in a deliberative constitutional democracy. This entails that, while there is a moral case for the right to silence, I here circumscribe my argument to the province of legality and constitutionalism. I finish discussing matters of institutionalisation. I offer three suggestions: two proposals about content and one about procedure. First, the right to silence applies primarily to deliberations about ‘thin’ constitutional matters found in preambles and introductory sections of constitutions. Second, it warrants public intervention in matters of public discourse of constitutional import, to avoid private power from interfering with the people’s sphere of constitutional reflection. Third, I adapt a proposal made elsewhere and suggest that a non-decisional interpretive mini-public could be a place to implement the right to silence.

During the COVID-19 pandemic, governments worldwide invoked the ‘precautionary principle’ to justify policies designed to protect public health. This principle holds that the state may act proactively to avert harm where there is factual uncertainty about that harm and the efficacy of policies proposed to mitigate it. Many of the policies introduced during the pandemic limited citizens’ constitutional rights. This article accordingly analyzes how the precautionary principle can be integrated into the proportionality doctrine courts use to assess the validity of rights limitations. As our case study, we take the jurisprudence of the Supreme Court of Canada and its globally influential Oakes proportionality test. When articulating the test in the past, the Court has grappled with the need to defer to laws that pursue important public objectives when the evidence underlying those policies is indeterminate. However, it has been criticized for not creating detailed guidelines for when judges should defer, which is said to breed arbitrary, results-oriented decision-making. We update this criticism by showing that it continues to apply to judgments of lower courts in Canada that have followed the Court’s proclamations to evaluate laws that limit constitutional rights to combat COVID-19. We then construct the requisite guidelines by drawing analogies with existing legal principles found in tort and criminal law. We argue that in contexts of factual uncertainty, the degree of judicial deference should vary according to the gravity and likelihood of the harm the government seeks to prevent. This risk-based framework restrains judicial subjectivity and illuminates how precaution should operate at each stage of the proportionality test. We further argue that it can assist courts across jurisdictions when incorporating precaution within proportionality because, unlike approaches to this problem offered by other comparative constitutional scholars, it is suitably modest and avoids excessive revision of accepted proportionality principles.

Salient normative status dimensions, or the socially significant and widespread ideational bases on which states seek to be viewed positively in international societies, pattern inter-state relations and signal fluctuating values underpinning an international order. Their dynamics, however, are not well understood. This article introduces an analytical framework to study relations between issue salience and status dimension salience in an international society over time. To what extent have democracy, human rights, economic development, social development and fighting poverty, gender equality, and environmental protection gained, lost or retained salience – both as issues and as sources of states’ domestic-level social identifications? Empirically, the article analyzes trends in the salience of issues and of normative status dimensions in the six above-mentioned issue areas, using manually-coded content analysis and automated text analysis of United Nations General Assembly (UNGA) General Debate (GD) speeches between 1978 and 2023. Findings include that there has been an expansion of the characteristics, efforts and aspirations with which state representatives in this venue express their states’ positive social identities, adding new layers to the normative foundations underpinning international order.

Designating India as a ‘Union of States’ under Article 1, the Constitution of India does not adhere to a federal vocabulary. The perusal of the Constituent Assembly Debates establishes this verbiage to be a deliberate choice. Scholars such as Prof. Wheare (1963) have classified the Indian Federalism as ‘quasi-federal’, which remains a part of constitutional vocabulary to date. This scholarship undertakes an assessment of federal semantics and taxonomical choices under the Constitutions of the USA, Australia, Switzerland, Brazil and Canada, juxtaposing them with the ‘quasi-federal’ model of the Indian Constitution. Challenging rigid categorizations, the paper argues that the constitutions identified as ‘federal’ have also depicted centralizing tendencies in their working. Examining the legal and political intent behind the omission of ‘federal’ and its anti-federal fallouts, the scholarship explores that the lack of a uniform federal vocabulary and mis-categorization has allowed the Union government and the judiciary to reinforce the centralization of power that shapes the federal discourse, while sporadically identifying the federal features in the Indian Constitution.

What explains when states derogate from international human rights law during the COVID-19 pandemic? Conventional understanding of treaty derogations suggests that domestic democratic structures, not the crisis at hand, explain derogation submissions. I argue that during COVID-19, global crisis measures mattered. WHO legitimacy and issue framing of the crisis made states more likely to perceive the pandemic as a severe one and derogate from the International Covenant on Civil and Political Rights. Using country-day level from January 2020 to February 2021 analysis of over 70,000 observations, I test the determinants of ICCPR derogations during the COVID-19 pandemic. I find that global crisis measures of WHO responses and global COVID-19 deaths were significant, positive indicators of ICCPR derogations while domestic crisis measures were not. This piece contributes to our understanding of how states use international law during crises, derogations, international organization legitimacy and of human rights law during the COVID-19 pandemic.

Digital constitutionalism has been in vogue in recent years. A series of journal articles, edited collections and monographs that front the catch term have mushroomed. This has, in turn, inspired a growing body of critical scholarship that questions the normative and theoretical coherence as well as epistemic value of digital constitutionalism. Critics deplore the use of the age-old notion of constitutionalism to describe what they consider to be mere regulatory and self-regulatory initiatives which do not meet its well-established core normative minimums. In casting digital constitutionalism in this light, critics present it as a project driven primarily or hijacked by private sector actors, namely big digital platforms. This article seeks to challenge and bring some nuance to such recent sharp criticisms of digital constitutionalism. By positioning its origins and evolution in the digital bill of rights movement, it makes the case for reimagining digital constitutionalism as a discourse. The article thus hopes to rehabilitate and clarify the role and epistemic value of digital constitutionalism as a discourse that is an inchoate, gradualist and fundamentally hortatory. In a novel approach, it argues that framing digital constitutionalism as a discourse depicts accurately its ontological and normative dimensions but also attends to the concerns of its detractors.

In fragile contexts, the state is sometimes unable to effectively perform some of its fundamental functions, such as the provision of public services, law-making, or territorial governance. Multinational corporations sometimes step in to perform these functions by leveraging their political power. On the one hand, this facilitates the enjoyment of fundamental rights for the affected citizens; on the other hand, it risks undermining the relationship between citizens and the state itself, further weakening its foundations. This paper aims to identify a normative criterion to navigate this phenomenon, drawing on theory of positive constitutionalism to do so.

Although the distinction between presidential, parliamentary and hybrid forms of government is fundamental to the study of democratic constitutions, it lacks a foundation in democratic theory. Empirical researchers do not define these forms in democratic terms, and normative theorists have largely neglected them. The article proposes a democratic conception of these forms and uses it to classify the constitutions of all 111 electoral democracies in 2024. The proposed theory and typology respond to various conceptual controversies and systematically link the classification of democracies to important issues in democratic and constitutional theory. Rather than relying on the ubiquitous principal-agent model, the article focuses on the democratic challenge of stabilizing the electoral authorization of the political executive in the face of unstable electoral and legislative majorities. Different constitutional responses to this challenge have important implications for democracy: different degrees of ‘depersonalization’ (Sean Ingham) of executive power and different constraints on legislative majority rule. The article highlights the unusual forms of democratic government in cases such as Australia, Bhutan, Guyana, Japan, Kiribati, Micronesia, Suriname and Switzerland, and has important implications for constitutional design and reform.

The increase in national courts’ reliance on foreign and international law sources, labeled ‘transnational communication’, has established domestic judges as influential, independent actors in the international legal arena that may promote domestic application and enforcement of international human rights. While studies on judicial globalization have emphasized the role judges play, we argue that to acquire a well-rounded understanding of judicial globalization, we should direct focus beyond judges as sole participants in this dialogue and examine other actors that affect the proliferation of transnational communication. We assess the role of litigant and amicus parties on U.S. courts’ engagement in global judicial dialogue in a twofold manner; through statistical analysis of an original dataset of international law citations in all U.S. Supreme Court litigation between 1946 and 2024, and by tracing the flow and language of citations of the Convention on the Rights of the Child through state and federal courts, as well as litigant and amicus briefs. We show that litigants and amici are significant actors in the process of judicial globalization by being more likely than judges to bring international law arguments and be the ones to initiate this dialogue, thus forcing courts to participate and interpret international legal principles.

State consent is the primary mechanism by which international legal rules are generated and amended and by which states undertake legal obligations. The focus on state consent is celebrated for its strong protection of state sovereignty and for expressing the will of states. The main purpose of this article is to raise some doubts about this understanding of the value of state consent. I argue that far from protecting state sovereignty, unrestricted state consent can undermine it. I show that it is false to think that the virtually unlimited freedom to act protected by state consent safeguards state sovereignty in an environment in which every other state possesses the same unlimited freedom to act. I suggest one possible way of reconceiving state consent in line with existing trends in international law to increase the scope of nonconsensual mechanisms for making international legal rules.

The COVID-19 pandemic exposed the fragility and adaptability of democratic orders. While confinement accelerated cross-border ‘tele-life’, rights and protections remained territorially locked. This essay argues that democracy need not be tied to the Westphalian state: it can be re-imagined as unterritorial democracy – voluntary, overlapping and portable communities of belonging. Building on panarchist thought, Austro-Marxist proposals for non-territorial autonomy and Jewish Bundist experiments with cultural self-rule, I advance a model of pan-citizenship and polycentric governance in which rights and representation follow persons rather than places. The contribution is threefold: (1) a genealogy that situates unterritorial democracy within longer traditions of political imagination; (2) analytical criteria – membership portability, competence clarity, equity and accountability – that render such institutions evaluable; and (3) contemporary proto-examples – from diaspora voting to indigenous electoral registers – showing that elements of unterritorial democracy already exist. By integrating historical, analytical and empirical strands – and by engaging debates on emergency powers and derogations of rights – the essay positions unterritorial democracy as a normative horizon for global constitutionalism, inviting person-linked indicators capable of capturing democratic belonging within a framework of multiterritorial pluralism. In this way, the essay contributes to both the normative debates and the methodological agenda of global constitutionalism.

The Citizen Initiative (CI) in the context of the legislative process is now a common mechanism in different parts of Europe and Latin America. However, it is rarely used as a participatory formula in constitution-making processes. This article documents the case of the CI (Iniciativas Populares de Norma) in Chile’s two failed constitution-making processes between 2021 and 2023, during which more than a million people actively participated in its formulation. The Chilean case matters for comparative constitutional studies due to its innovative use of technology to advance forms of digital democracy and the demonstrable impact of the CI standards on both constitutional proposals, which were ultimately rejected in the final national referendums. We argue that despite these rejections, the CI as a participatory mechanism is likely to endure over time and in future constitution-making processes. The article provides a detailed study of the Chilean experience and seeks to draw lessons for other countries’ attempts at participatory constitutional reform.

This article investigates the role of the emotional experiences of time in the constitutional debates of the seventeenth and nineteenth centuries. It posits temporality as a shared, collective and emotional experience, rather than an external and natural line where events develop unidirectionally. As such, temporality is proposed as a new analytical framework for exploring the shift from a past-oriented to a future-oriented constitutional theory from the seventeenth to nineteenth centuries. Adopting this perspective, this shift in constitutionalism is framed, in part, as a response to different emotional experiences of time. Focusing on the writings of Coke in the seventeenth century, and Bentham and Godwin in the nineteenth century, this article also identifies a point of continuity between the past-oriented claims for legitimacy of the English constitution in the seventeenth century and the future-oriented ones in the nineteenth century, and indicates new paths for future investigation. Questioning the role of historicity in the legitimation of the English constitution in the seventeenth century, and the role of progress in the nineteenth century as ‘past’ and ‘future’, this article proposes to analyse these temporal categories as a qualified ‘immemorial’ past as opposed to a qualified ‘timeless’ present ruled by the steady category of progress.

Both Canada and the European Union feature multiple overlapping legal systems, each with independent sovereignty claims and distinctive cultural traditions. Courts in both settings have therefore been forced to reckon with ‘constitutional pluralism’.

In Canada, the contested relationship between Indigenous and settler legal orders has been mediated largely through s35, which recognizes Aboriginal rights, and s25 which shields them from the Canadian Charter. The resulting jurisprudence has focused on protecting cultural difference by creating limited spaces of autonomy within the Canadian state but has largely neglected questions of sovereignty.

In Europe, the relationship between European Union and member-state law has been mediated through an emergent judicial dialog which allows each court to maintain its sovereignty claim by making its acceptance of the other’s authority conditional. The resulting jurisprudence focuses on sovereignty without dealing as closely with questions of difference.

The two contexts therefore represent divergent approaches to shared conceptual and practical problems. To my knowledge, however, no scholarship has seriously compared the two. The following article takes a modest step towards filling this lacuna, introducing European thinkers to Canadian constitutional pluralism and vice versa before reflecting on some of the ways further comparative research can add depth to existing comparative literature, deepen our understanding of constitutional pluralism as a theory and, in particular, raise important questions about constitutional pluralism’s relationship to liberalism.

The meaning of equality is highly contested. As a result, courts across different jurisdictions have developed distinct doctrinal approaches to operationalize the concept. This article argues that four primary equality frameworks can be identified, each reflecting not only different understandings of equality but also varying degrees of judicial deference to the legislature and executive. The first is the equality-as-non-discrimination model, which predominates in most common law jurisdictions and dominates the theoretical discourse on equality. The second, prevalent in many continental European jurisdictions, is the equality-as-reasonableness model, under which courts apply a relatively strict standard of review, even in cases that do not involve suspect classifications. The third, the positive-equality model, recognizes that courts can derive positive obligations from the principle of equality. Finally, the deferential model largely entrusts the definition and implementation of equality to the legislature and executive. This article highlights the normative strengths and weaknesses of each model, arguing that no single approach holds an absolute normative advantage over the others. Instead, the suitability of a particular model depends on the societal and institutional context in which a court operates.

Strikes against public policies have often been classified as illegal political strikes. Nevertheless, the concept of social movement unionism (SMU) describes how trade unions in some countries have become active players in social struggles, alongside social organizations and protest groups, by using political strikes. Although the International Labor Organization (ILO) prohibits purely political strikes, it recognizes the legitimacy of protest strikes concerning public issues. In this respect, the article combines the notion of global constitutionalism with the concept of SMU to explore the issue of political strikes in times of social or democratic struggles. Global constitutionalism regards certain international principles as paramount, offering them a status akin to constitutional law. Drawing on the intersection of the theory of SMU with the concept of global constitutionalism, the article suggests that strikes against governmental policy, framed as part of broader social protests, can effectively oppose controversial public policies. The article claims that protest strikes should be recognized as legitimate exercises of workers’ freedom of association, based on the application of relevant ILO principles through global constitutionalism.