Notwithstanding the efforts that have been made to pluralize the concept, constitutionalism continues to be identified closely with, and for many remains synonymous with, classical liberal thought.1 The eighteenth-century notion that constitutionalism is mainly about restraining the Leviathan refuses to die. The continuing strength of the association between constitutionalism and this particular strain of liberalism does not preclude movement to a post-liberal (or post-neoliberal) understanding of constitutionalism. It does suggest, however, that post-liberal constitutionalism is more likely to stick if it assumes at least some of the trappings of old-school liberal constitutionalism. The best way to transform the language of liberal constitutionalism, in other words, is to speak some version of the language of liberal constitutionalism. This is why the idea of a “right to effective government” (hereinafter, REG) suggests itself as an ideal vehicle for this kind of evolutionary development: it appropriates elements of liberal constitutionalism and puts a decidedly post-liberal twist on them. The result looks reassuringly familiar yet is fundamentally different – a wolf in sheep’s clothing.

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.

National judicial systems within the European Union (EU) face pressures toward alignment under the policy agendas for judicial cooperation connected with the Lisbon Treaty and the widespread practice of ‘transnational borrowing’ among courts. Using the CJEU and ECtHR as case studies in the phenomena of judicial culture and transnational judicial communication, this chapter explores how constitutional norms and formal policies interact with contextual influences (including informal judicial interaction and evolving national ideas and practices regarding judging and judicial organisation) to produce increasing legal alignment among the member states. In doing so, the chapter explicitly highlights the need to combine comparative legal analysis with socio-legal research methods in order to understand the evolution of constitutional law.