Comparative lawyers have for more than a century sought to increase the understanding of ‘foreign’ legal orders and regulatory systems. Despite some never fully resolved methodological questions, great advances have been made in the comparative study of different regulatory areas both in ‘private’ (contract, tort, corporate, labour) and ‘public’ law (administrative law, environmental law). Comparative constitutional law [CCL] has emerged as a field with particular significance. Born in the context of a politically extremely divided world after the Second World War, CCL has undergone tremendous change in an economically fast-integrating world since the late 1980s. The distinction between ‘liberal’ and ‘socialist’ constitutional orders that characterized early monographical treatments of the subjects has since given way to a very incoherent landscape of varieties of constitutionalism, with enormous consequences for the task of comparative constitutional law. Rather than being able to set side-by-side distinct doctrinal instruments or legal principles that can be associated with a particular constitutional system, the emerging transnational legal-pluralist order demands a methodologically radically opened and methodologically interdisciplinary approach to capture the dynamics of constitutionalization, which characterize today’s processes of public-private norm creation and diffusion.

The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a transnational legal system in which all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction. The emergence of the system depended on certain deep, structural transformations of law and politics in Europe, including the consolidation of a zone of peace and economic interdependence, of constitutional pluralism at the national level, and of rights cosmopolitanism at the transnational level. Framed by Kantian ideas, the paper develops a theoretical account of a cosmopolitan legal system, provides an overview of how the ECHR system operates, and establishes criteria for its normative assessment.

This article contributes to the debate over the whether or not the mainstreaming of Corporate Social Responsibility/Codes of Conduct should be welcomed. It suggests that to grapple with this question requires an engagement with the multiple and necessarily situated performativities (or jursigenerativities) of these codes. The article illustrates the argument through an analysis of two jurisgenerative processes (linked to regulation and to politics) triggered by Codes of Conduct in commercial military markets. It shows that the codes are creating both a hybrid regulatory (or constitutional) network that makes it possible to hold firms accountable and a militarization of politics. It does so by showing that the codes create first-, second- and third-order rules but also processes of misrecognition through distraction, distinction and diffusion that empower military professionals. It draws on a study of three cases involving ArmorGroup, a forerunner and advocate of regulation in military markets. This argument makes sense of the disagreements surrounding the virtues of global constitutionalism by highlighting the tensions that become apparent once it is acknowledged that Codes of Conduct are not only performative but are so in multiple ways. It can provide no easy way to dissolve the specific dilemma this multiple jurisgenerativity poses in the context of military markets specifically. But logically flowing from the argument is a suggestion that encouraging and empowering a broader, non-military/security professional involvement in the debate over the regulation of commercial military markets would be the appropriate way of handling it.

Recently, historians of the international system have called into question the significance of the Treaties of Westphalia in 1648 as the moment when the international system formed. One of their primary arguments is that the non-intervention norm typically associated with Westphalian notions of sovereignty developed much later. This paper will examine the early 17th-century debates over the right of the Pope to depose monarchs in the defense of spiritual matters. I read Part III and Part IV of Hobbes’ Leviathan in its intellectual context to see how his theory of sovereignty was partially developed to support a theory of non-intervention. This reading leads to two important contributions to current political science debates. First, it refutes the growing consensus that non-intervention developed as an aspect of sovereignty only in the late 18th and early 19th century. Second, the paper addresses current attempts to assert a right of humanitarian intervention. By exploring similarities between these recent debates and those between Bellarmine and Hobbes in the 17th century, I offer a fresh perspective on what is at stake in current claims to international community.

Taking its cue from Benjamin Constant’s famous comparison of the liberty of the ancients with that of the moderns, this article examines the compatibility of democracy with free markets within the EU. Constant argued that commerce had replaced the political liberty of the ancients with the civil liberties of the moderns. Nevertheless, he contended a degree of political liberty remained necessary to guarantee these civil liberties. The difficulty was whether the political system could operate in the interest of all if modern citizens had ceased to identify with the public interest in the manner of the ancients and preferred to pursue their private interests. Constant believed representative democracy offered a form of political liberty that was compatible with modern liberty. It involved a less demanding view of civic virtue to ancient liberty and a different conception of the public interest as promoting rather than in conflict with private interests. However, for it to operate as Constant expected required certain social and cultural conditions that emerged in European nation states but are not themselves the products of commerce and may even be undermined by it: namely, a national identity; a social contract; and political parties. The EU involves a further deepening of modern commercial liberty beyond the nation state. This article explores three main issues raised by this development. First, have any of the three elements that facilitated the operation of representative democracy within the member states evolved at the EU level? Second, if not, is it possible to create an effective form of representative democracy on a post-national basis as the logical entailment of the liberties of the moderns? Third, if neither of these is possible, can we simply detach modern liberty from political liberty and see social rights as attributes of free movement, and efficient and equitable economic regulations as the products of technocratic governance? All three questions are answered in the negative.

The article presents the Round Table form, elsewhere post-sovereign multi-stage constitution making as an independent democratic type superior to the alternatives. It locates the form along with Convention and Constituent Assembly both in a comprehensive typology based on models of regime transformation, as well as historically. After making a set of normative arguments comparing the three forms, focusing on the issue legitimation, I make a case for the synthetic nature of the Round Table in relation to the two important democratic predecessors. Finally, I reluctantly admit the path-determined nature of the Round Table that strictly speaking seems relevant only 1) in the transitions from dictatorships, if 2) new forces do not have the power to accomplish revolutionary change. Nevertheless, I argue that the principles of the Round Table (inclusion, consensus, publicity, legality and veil of ignorance) are relevant to other paths, from the point of view of their legitimation. I further claim with reference to Iraq, Turkey and the European Union that elements of the Round Table can be adopted even under conditions of revolutionary change, as well as constitutional reform.