This Article argues that, as far as Hungary and Poland are concerned, the use of term “illiberal constitutionalism” is justified. It also claims that, without denying that other states could also be considered illiberal democracies, Hungary and Poland display unique and distinctive features. These features include populist politics, which lead to the relativization of the rule of law and democracy principles, and human rights protection, which captured the constitution and constitutionalism by constitutionalizing populist nationalism, constitutional identity, and created new patrionalism and clientelism. All these features are supported by the ideological indoctrination of political constitutionalism. In the course of this process, formal and informal constitutional amendments are used, and a formal sense of constitutional democracy is maintained. Overturning these illiberal democracies by constitutional and legal means, at this time, seems doubtful, if not impossible.

Religious harmony is an idea more commonly invoked in Asian countries, many of which are closely associated with non-individualistic or non-liberal approaches to law, ethics, and politics, than in Europe. As a constitutional norm, religious harmony not only directs state action involving the management of religious diversity but also has the potential to legitimate state action. As a result, harmony, including its subspecies of religious harmony, could be and has been criticized for imposing and legitimating an ideology of control over society, particularly over marginalized groups. While this is the case, I argue in this Article that religious harmony can mean many things and can be used in a myriad of ways that go beyond simply as a tool for state control. Religious harmony is not only a legal/constitutional principle, but has also become internalized as a social norm. Its regulating function extends to inter group relations and further grounds group demands on the state, thus imposing state obligations. To draw out the multiple and complex dimensions of religious harmony as a constitutional principle and social norm, I use Singapore, a self-avowed non-liberal communitarian state, as the primary case study in this Article.

States of emergency pose the most significant challenges to the safeguarding of fundamental rights and civil liberties. Crises are generally characterized by a strengthening of the executive to the detriment of judicial authority and parliamentary oversight. One of the immediate consequences of emergencies is the absence of effective domestic mechanisms of supervision of the executive. The gradual replacement of the judicial role with police operations represents a symptom of how prolonged emergencies prompt the eclipse of legal certainty and lead to the rapid and irreversible degradation of public institutions.

This Article addresses the difficult compromise between defending national interests and protecting individual rights during public emergencies. It analyzes the common features across the recent derogations and exceptional measures of Ukraine, France, and Turkey. The derogations submitted by the three countries in question, together with the exceptional measures adopted for counter-terrorism purposes, substantially restrict several fundamental rights enshrined in the European Convention on Human Rights (Convention). In particular, preventive detention measures, with the suspension of the habeas corpus otherwise approved by the three States, not only enable police forces to use arbitrary and unlimited use of force, but also seriously affect the protection of absolute and non-derogable rights. The Article concludes that, as the recent emergency laws and their widespread and apparently indiscriminate implementation present the risk of destabilizing the whole European system of protection, it becomes ever more necessary that the European Court of Human Rights depart from its previous jurisprudence and adopt a more rigorous and principled scrutiny of the derogation conditions under Article 15 of the Convention.

Latin American history is full of populist experiments. The result of this history is a political culture across the continent characterized by conflict and polarization. The most recent wave of Latin American populism is represented by neo-populism. Neo-populism identifies itself as the “socialism of the 21st century.” Its most representative expression is the Chavista regime, which was led first by Hugo Chávez, and then by Nicolás Maduro. This Article, after examining what populism is, considers how regional human rights institutions of the Americas have dealt with the Chavista regime. In doing so, this Article describes the efforts deployed by both the Inter-American Commission and the Inter-American Court of Human Rights to keep Chávez under control. This Article concludes that regional human rights supervision, being relevant in the context of the Venezuelan experience, was finally incapable of either preventing or stopping the authoritarian path adopted by Chávez. This was because: (a) early supervision over the Chavista regime did not avert its leaders from abusing human rights afterwards; and (b) intensifying regional supervision over the regime became paradoxically self-defeating after it took full control of the State apparatus.

Both Canada and Singapore express support for—and have the reality of being—multi-cultural, multi-ethnic, and multi-religious; and both jurisdictions have an avowed commitment to the freedom of religion. Yet, this commitment expresses itself in different ways in these two contexts. Although both the Canadian Charter of Rights and Freedoms and the Singaporean Constitution guarantee the freedom of religion, juridical definitions of what this freedom means may differ quite profoundly.

This Article explores and analyzes these two different environments that nonetheless share important features. We argue that the approaches of Singapore and Canada do not fall simply into the categories of being “liberal” or “illiberal,” but instead invite reflection and reconsideration on the concepts of pluralism, secularism, and liberalism in interesting ways. This Article thus highlights the significance of contextual factors in understanding the ways in which religious diversity is dealt with, particularly in Canada and Singapore, but also more generally.

More than any other EU institution, the Court of Justice of the European Union has upheld the presumption of mutual trust in EU criminal law cooperation. Surprisingly though, despite mutual trust’s centrality in the Court’s jurisprudence, it has long not qualified nor properly elaborated the notion of trust, but rather held on to its presumed existence based on a high level of fundamental rights protection throughout the Union. This article will assess the important role of the Court in establishing, upholding and ultimately qualifying the trust presumption in the EU criminal justice context. Along the lines of a number of key cases, the narrative of a strong defence of (the presumption of) mutual trust appears, but also of an evolution toward more room for rebuttal in recent cases. This signals the increased weight given to fundamental rights protection in the EU’s Area of Freedom, Security and Justice.

The principle of equal treatment is essential to the process of European integration. It is one of the main principles – if not the main principle – driving this process forward. Equal treatment between States and the prohibition to discriminate on grounds of nationality are indeed cornerstones of the European project. Furthermore, the principle of equal treatment is a fundamental right according to which comparable situations must not be treated differently, and that different situations must not be treated in the same way unless such treatment is objectively justified. This fundamental right has also been given more specific expression in a set of Treaty provisions and Directives prohibiting discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation. Precisely because the principle of equal treatment performs several important functions in the EU legal order, it is shaped by several sets of actors: constituent powers, legislature and judiciary. The article first maps out the various functions that the principle of equal treatment fulfills in EU law, placing emphasis on the complexity of the relevant constitutional framework. This sets the floor for a critical discussion on how different institutional visions of the principle may compete, and a reflection of the role of the concept of ‘essence’ to articulate these competing visions.

In Western capitalist societies, the three postwar decades witnessed a strong interconnection between income taxation and democracy. On the one hand, the democratically representative political process constituted a precondition for the legitimacy of taxation. On the other hand, redistributive income taxation enhanced conditions for equal democratic participation by allocating resources and equalizing political power among citizens. The asymmetric European integration that has advanced transnationalization of cross-border market order but preserved income taxation under national political authority has established fiscal interdependence between Member States of the EU and exposed them to transnational regulatory effects. As a result, Member States’ performance to uphold the symbiosis between democracy and taxation has eroded. While this has led some to call for further integration of taxes beyond the nation state, others have remained skeptical about the democratic legitimacy of Europeanized taxation. This Article argues that the Europeanization of income taxation would help to reconstruct the conditions under which the symbiosis between income taxation and democracy is restored, although this requires the notion of democratic community to be reinterpreted according to the standards that cannot be equated with nation-based boundaries of a political community.

People of Turkish ethnicity constitute Germany’s largest immigrant group but only a small percentage have naturalized as German citizens This article explores the historical foundation of Turkish migration to Germany and the legislative attempts made by both Germany and Turkey to accommodate these people with one foot in each country. It argues that only by abandoning its long-held prejudice against dual citizenship can Germany increase the naturalization rate of all foreigners in its country, not just those from Turkey.

Populist constitutionalism is an increasingly discussed topic, but so far the analysis of the interrelation between populism and constitutionalism lacks a more systematic and comparative approach, able to bring out significant variety. Most of the recent literature on the phenomenon focuses on (right-wing) populism as a threat to constitutional democracy. This Article sets out to contribute to a more comparative and comprehensive discussion of the relation between varieties of populism—situated on a continuum from left- to right-wing, but also from national to transnational—with varieties of constitutional projects. The objective of this Article is threefold. First, I argue that it is problematic to consider legal constitutionalism as exhausting the possibilities of constitutionalism. Second, if populism is reduced to right-wing projects and as an unequivocal threat to liberal democracy, it becomes difficult to distinguish between dissimilar manifestations of populist projects, in particular regarding constituent politics. Third, while hardly any attention has been paid to constitutionalism and populist claims on the transnational level, in the European context, transnational forms of populism and constituent politics manifest themselves frequently, articulating an incisive critique on the European constitutional and political status quo, and contributing to a re-imagination and democratization of the European constitutional reality.

The cases challenging the European Stability Mechanism in Eurozone creditor states show the concern courts have with protecting and promoting democratic contestation. This Article shows how John Hart Ely’s theory of process-based review provides the theoretical basis for understanding how attention to democratic contestation contributes to the legitimacy of courts reviewing legislation against constitutional norms. By focusing on promoting democratic procedures, Ely argues that courts can avoid substantive decisions that are best left to the legislature. Yet, as my discussion of the constitutional theory of constituent and constituted powers shows, no form of constituted power can avoid some exercise of constituent power. In other words, even a process-based approach cannot avoid substantive judgments. The legitimacy of these decisions depends on the availability of avenues for contestation in the judicial decision-making process itself.

Constituent power is a helpful component of constitutional theory because it provides a conceptual and potentially normative explanation of how a new constitution can be made without any existing legal authority to do so. Contemporary theories of constituent power, however, unhelpfully treat constituent power as a fictive entity, typically the people, that subsists through time. This predominant account of constituent power fails adequately to explain examples of constitution-making and also lends support to the populist claim that a unitary and unchanging people has an immanent but continuing role as a constitutional actor superior to the constitution itself. This enables populist leaders to rely on prevalent understandings of constitutionalism to support the sidestepping and/or removal of constraints on their power. In this Article, I trace the connections between mainstream theories of constituent power and the academically peripheral claims of populist constitutionalism. I argue for a different understanding of constituent power as a capacity that, in principle, may momentarily be exercised by any entity. This explains how a new constitution can unlawfully replace a pre-existing constitution yet come to have lawful authority itself, without implying the diachronic existence of the constituent power as an entity. I illustrate this understanding of constituent power with reference to the constitutional development of Taiwan and Ireland. These examples show—contrary to the predominant account of constituent power—that constitutional systems may be created without the exercise of constituent power and that constitutional law can play an important role in constructing an entity capable of exercising constituent power. Seen in this way, popular references in preambles are important not for their account of how a constitution was made but rather for their account of whom a constitution is for. This account of constituent power undermines core claims of populist constitutionalism. But it also provides a salutary lesson for liberal constitutionalists: a constitution adopted for a people must broadly serve the interests of that people.

This Article aims at highlighting theoretical and practical issues around the application of the general principle of proportionality in EU immigration. It focuses on the application procedure foreseen by the Single Permit Directive by proposing an argument that combines proportionality and procedural guarantees. This Article has two main objectives: First, it explains why and how the general principle of proportionality is applicable to first admission applications. In this context, the Single Permit Directive—adopted as an important piece of the emerging EU legal regime on immigration—will represent a common theme for our reflections and a timely example on the practical implications of the argument presented in this Article. Second, it explores an important dimension of the legal-philosophical relevance of proportionality as applied to immigration. This specific Article might be apprehended from the point of view of a larger debate on the meaning of discretion in immigration law. It connects to the field of immigration ethics, a field in which legal scholars should become more active. As will be shown, ethical and legal considerations on immigration should work closely together, thereby improving current regulations and their implementation.

One of the novelties brought about by the new General Data Protection Regulation (GDPR) is a strengthening of the concept of consent. For instance, although the freely given stipulation existed in the old framework—the Data Protection Directive 95/46/EC—the changes introduced by the GDPR arguably imply that access to services may no longer depend on data subject consent. In reality however, data subjects often find themselves confronted with standard privacy policies and take-it-or-leave-it offers. Against this background, this Article aims to examine the alignment of the respective data protection and privacy, consumer protection, and competition law policy agendas through the lens of pre-formulated declarations of consent. The Article aims to delineate the role of each area with specific reference to the GDPR and ePrivacy Directive, the Unfair Terms Directive, the Consumer Rights Directive, and the Digital Content Directive (Compromise), in addition to market dominance. Competition law analysis is explored vis-à-vis whether it could offer indicators of when a clear imbalance in controller-data subject relations may occur in the context of the requirement for consent to be freely given, as per its definition in the GDPR. This complements the data protection and consumer protection analysis which focuses on the specific reference to the Unfair Terms Directive in Recital 42 GDPR, stating that pre-formulated declarations of consent should not contain unfair terms.

Smoking kills. It is also very costly, which is why many governments try to change the habits of their citizens, including by changing the packaging of the products they buy. Of course, tobacco firms are pushing against such laws. They see their rights, in particular, rights to intellectual property, violated. They argue that such legislative changes take away the essence of their hard-earned IP rights and should not be permissible. They point out that the CJEU is allegedly redefining the “essence” of fundamental rights and its function in the system of limitations and developing a set of core inviolable rights.

How justified are these arguments? The absolute theory of essence says that the essence of rights cannot be interfered with or taken away, including by the legislator. The relative theory of essence, on the other hand, claims that interference with essence is just a more serious interference which is still subject to the typical proportionality analysis. Therefore, the adoption of either of these two theories has profound consequences. What might constitute the essence of intellectual property rights? When are legislators touching upon it? Is the CJEU really advancing a notion of essence that can prevent legislative changes, or at least make them very difficult? The answer to all these questions depends on our understanding of what constitutes the “essence” of intellectual property rights, and what consequences this notion has under Article 17(2) of the EU Charter of Fundamental Rights.

This Article seeks to explore the nature, function, source, and content of a constitutional civil religion (CCR) within Singapore’s constitutional experiment in managing the diversity of race and religion and promoting solidarity. CCR is constructed as a strategy to secure social harmony within the world’s most religiously diverse polity, through recognizing an irreducible plurality in ethnic and religious terms, while maintaining an indivisible unity through nurturing bonds of citizen solidarity. This dovetails with the function of the constitution as an instrument of social integration, involving the articulation and regular affirmation of shared community values and aspirations, as well as process and practices—or public rituals—which regulate dispute resolution or conflict management during instances or crises where racial and religious harmony is threatened. A functional approach is taken towards the idea of a civil religion, and the tasks of integration, legitimation, and inspiration it may play within a constitutional order. The nature of civil religion in general, and the sources of CCR in Singapore, as well as its expression as a public ritual in managing religious disharmony disputes is discussed.

Incitement by police officers is a well-known and often utilized police measure in the German investigation process. Yet, when it comes to prosecuting the perpetrators, a moral conflict arises. Should a State, bound by its own constitution and committed to protect its citizens, be allowed to incite or support a possible offender and afterwards judge on his or her wrongful actions? After Germany’s higher courts had to deal with multiple cases of entrapped perpetrators, there has been a strong debate about the admissibility, requirements, and consequences of entrapment within the German legal system. International and national courts as well as scholars represent different legal standpoints in this regard. In particular, the approaches of the European Court of Human Rights and the German Federal Court of Justice differ significantly in their results. As Germany ratified the European Convention on Human Rights and therefore has to adhere to the European Court of Human Rights’ ruling, an additional legal conflict arises. This article depicts and discusses the most relevant approaches to resolve this moral and legal conflict and satisfy both the need for effective prosecution and the procedural rights of the individual person subject to the act of entrapment. Additionally, recent legislative ambitions are presented.

What role do public law and liberal constitutionalism play in an era of political populism? This article approaches this question by exploring the concept of constituent power in the light of recent constitutional developments in countries with populist governments. It attempts to outline and contrast conceptions of constituent power as inherent in liberal constitutionalist and populist thinking, respectively. While constitutionalists draw heavily upon Kelsenian normativism in framing the way political power is generated, populists juxtapose this with a concept of constituent power that is inspired by Carl Schmitt’s ‘decisionist’ view. The complacency of legality inherent in liberal constitutionalist thinking is susceptible to a populist challenge that draws attention to the necessity for the social embeddedness of any legal order. Populism, it is argued, exposes a core tension inherent in constitutionalism: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm? Populists can attack constitutionalism also because of the deficient conception of constituent power that underlies the latter. The article concludes that, where challenged by populists, public law can at some point no longer rely on its own force to defend itself. Its authority needs to be re-established from an extra-legal, pre-positive perspective. In an era of political populism, constitutionalist public law becomes a discourse that can challenge populism by means of the powerful reasons that inhere in the former.

The EU faces one of the deepest crises since its formation. A dangerous rule of law backsliding in several Member States undermines the Union’s common values and puts Europe to the test. This raises the question of how to substantially address violations of EU values in judicial proceedings before the Court of Justice. Unfortunately, relying on fundamental freedoms, EU secondary legislation and even the Charter will not help much to resolve this value crisis. This Article takes a different path and calls for engaging with Article 2 TEU itself. Yet this proposal rests on a crucial premise: The judicial applicability of the values enshrined in Article 2 TEU. Based on recent jurisprudential developments, this Article will elaborate a framework for the operationalization of Article 2 TEU values and demonstrate how their judicial applicability can be construed. The judgments of Associação Sindical dos Juízes Portugueses, Minister for Justice and Equality (“L.M.”) and Commission v. Poland will be at the heart of this proposal.

This Article analyzes the state of democracy in the EU through the study of the European Citizens’ Initiative. The European Citizens’ Initiative (ECI) represents one of the main ways the European institutions chose during the making of the European Convention, and then reproduced in the Lisbon Treaty, to beat populism by bringing decision-making closer to the citizens and promoting a new legitimization of Europe’s political unity. This Article starts by arguing that if one wants to understand European versions of populism it is necessary to pay attention to the reason why “democratic deficit” and “Euroscepticism” are predominant problems that the European Union is facing. It then analyzes the implementation of the ECI and the main issues of this instrument of democratization pointing at three flaws: a) the problem of e-democracy; b) the difficulty of stimulating large participation of civil society and people for the purposes of the ECIs; c) the cumbersome role of the EU Commission and the difficulties to ensure a real participatory instrument for the European citizens. From the analysis of the ECI this Article first advocates for a more robust public sphere in Europe as indispensable ground for a supranational democracy; second, it supports the revision of the ECI procedural aspects to transform it into a viable channel for amending EU policies in a more democratic way; third, this Article participates in the debate over the brand of democracy most suited to EU governance and polity.