This article addresses power-sharing constitutions that include powers of veto wielded by discrete ethnonational groups. Such constitutional arrangements – seen, for example, in Northern Ireland and Bosnia – have often prompted severe deadlock, a problem that in turn threatens democratic functioning and raises the risk of renewed communal violence. We consider the use of ‘umpires’ of power-sharing constitutional systems to vet the use of vetoes and (potentially) to prevent their overuse or misuse. Power-sharing umpires are not uncommon in practice. However, as yet there is little scholarship evaluating how, in substance, power-sharing veto umpires should approach their task. Relying on deliberative democracy theory, the article outlines three forms of ‘deliberative agreement’ that, in principle, deeply divided groups may reach in the course of policymaking. It goes on to explain how existing proportionality doctrines drawn from federalism and rights cases can be imported into the power-sharing context to ‘scaffold’ these broad ideals. This approach, it is argued, may provide a more detailed, coherent and practically workable approach to umpiring power-sharing constitutions.

How should democratic communities decide who should belong? Recent debates about issues such as voting rights for prisoners, denationalization policies or citizenship tests raise this fundamental democratic question. While many scholars argue that decisions about citizenship and voting rights should be more inclusive of subjected outsiders and more independent from electoral partisan politics, we still lack institutional proposals for inclusive and independent membership politics. This article contributes to the nascent institutional turn in the debate about democratic membership boundaries. My aim is to show that normative debates about membership politics can benefit from recent advances in democratic theory on sortition-based democratic innovations, constructive representation and systems thinking.

I argue that membership politics could be democratized by introducing a randomly selected political institution, which I call ‘boundary assembly’, that equally represents members and nonmembers and is charged with making binding decisions on a subset of a state’s membership questions. I argue that the strongest objections to empowered randomly selected assemblies (shortcut objection, alienation objection, capture objection, technocracy objection) lose most of their force in the ‘extraordinary’ political context of decisions on membership boundaries. Boundary assemblies cannot ‘solve’ the democratic boundary problem, but they could be a first step toward more democratic membership politics.

Liberal democracies and illiberal regimes alike recognize academic freedom as a norm that enables scientific progress. This article investigates the extent to which the globalization of academic freedom has been the result of a global diffusion process in addition to national developments, such as modernization and democratization. Academic freedom spread as part of a wider liberal script after World War II. The empirical analysis shows, however, that the codification of academic freedom at the international and regional level has been slower compared with other parts of the liberal script. To the extent that academic freedom has emerged as a global norm, it has happened through decentralized diffusion processes driven by higher education institutions and civil society networks. Different views on meaning, scope and emphasis made international and regional institutions norm takers rather than norm shapers. They only started to systematically institutionalize academic freedom into the liberal script when networks of scholars and higher education institutions mobilized internationally amidst increasing contestations of their academic freedom since the turn of the millennium.

He seemed to enjoy portraying himself as mostly without allies – a principled contrarian. This was central to his self-consciousness. And John was very conscious of himself.1

Like other regions of the world, academic freedom is on the decline in Africa. While there are some generic factors accounting for this phenomenon worldwide, others are fundamentally unique to the African context. These are related principally to the subject matter of coloniality of higher education on the continent. This study addresses these matters by, among others, discussing the origins of the university in pre-modern Africa and the place of academic freedom in it. This development is followed by the emergence of university education in Europe through the application of the liberal script and which contributed to the sidelining and eventual general demise of higher education institutions with their roots in pre-modern Africa. The work contends that while one may trace the origins of the university/academic freedom to Africa, academic freedom as it stands today is shaped by the liberal script with hardly any reference to the root of higher education in Africa. Therefore, the meaning, understanding and application of academic freedom do not reflect the realities of higher education in Africa. This work proposes the adoption of a relative universalist approach, as opposed to the liberal approach, which is clothed with universality, but in reality, it is a reflection of a European idea of academic freedom. This approach is considered necessary to reflect the African reality of academic freedom which will help to identify effective advocacy tools to promote and protect academic freedom in Africa and thereby make academic freedom more meaningful for application in the region.

This article traces how the ‘freedom indispensable for scientific research’ was introduced into the International Covenant on Economic, Social and Cultural Rights (ICESCR). The review of the drafting history covers ICESCR Article 15.3 and that of its precursor, Article 27 in the Universal Declaration of Human Rights (UDHR). It pays particular attention to arguments presented during negotiations over the UDHR (adopted in 1948), as well as over the ICESCR (adopted in 1966), and it reflects on observable norm entrepreneurship. Following the end of the Cold War, details on the right to science and the status of higher education personnel were further elaborated in soft law, notably in the form of two General Comments and two UNESCO Recommendations. These specifications and the earlier traveaux préparatoires reveal a multifaceted and rich debate about science, development, dignity and freedom at the United Nations, including positions that span variations of a liberal science script as well as persistent illiberal contestations.

Lon Fuller’s fictional Purple Shirt regime, Victor Orbán’s illiberal democracy in today’s Hungary and the Kaczynski brothers’ recently ended unconstitutional republic of Poland are three examples of a ‘broken democratic polity’ in which many aspects of the rule of law and constitutional democracy have been compromised and cannot be fixed without a qualified majority, even if democratic forces come to power. In this article, I address the question of whether illegal state action of a democratic government is an appropriate means of restoring legitimacy to what I call a ‘broken’ polity. Put differently: Is it morally defensible for a new democratically elected government to override and replace the rules of illiberal constitutional reform in violation of formal legality? If so, under what conditions? I argue that a positive answer to this question is justified if we adopt a neo-republican approach to politics and legitimacy.

In Latin America, the notions of academic freedom or the freedom of science have not had the overarching influence in defining the prerogatives of scholars and the university that we see them exerting over the experiences of Western Europe and the Anglosphere. The governing notion, from whence all other freedoms emerge, is that of university autonomy. In Latin America, university autonomy evolved over the twentieth century as a protection of the university against the encroachment of governments – often authoritarian or outright dictatorial – so they could carry out their missions as they defined them. In Latin America, the locus of what in Europe is understood as scientific freedom is vested in the universities, not in the professoriate. It is assumed that free universities will foster an environment of academic freedom within. The contemporary contestations of university autonomy in Latin America fit squarely into the liberal script, as they seek to make universities more responsive to policy goals in the areas of higher education quality and accountability, efficiency and productivity, expansion of public or private provision, access and equity. Often, universities and their associations have raised autonomy as an objection to these policy agendas.

This article highlights the challenges of external reactions to authoritarian higher education governance in certain Central and Eastern European countries, especially Hungary and Poland. It interprets the political change in these countries as an authoritarian cultural backlash, which is not just a legal or political problem, but a kind of post-fascist cultural revolution contesting the liberal script. First, the article explains the framework of authoritarian policing in academia based on the more general works of Bob Altemeyer and Zeev Sternhell. Second, it tries to answer the question: What tools could counter these tendencies from the perspective of the European Union? As the article interprets the rise of authoritarianism as a phenomenon rooted in the cultural deficit of the countries concerned, it argues that a programme for a democratic and pluralist cultural counter-revolution should be implemented. However, no nation can be democratized solely by external actors, and the basics of democratic thinking should be developed from the grassroots level. If the crisis in academia is rooted in a value-crisis within the societies concerned, then measures countering this phenomenon should also include promoting Enlightened pluralism at all levels of these societies.

Europe has recently struggled with democratic backsliding and autocratization. This autocratization has accompanied a decline in academic freedom in many backsliding countries, as reported by the Academic Freedom Index. Can the standards set by the European supranational courts effectively safeguard academic freedom? This article provides answers to this question. It argues that despite differences in their approaches, the theoretical conceptions of scholarship held by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (ECJ) share an essential feature: both have moved towards embracing the ‘liberal science script’ by protecting academic freedom. The main difference between the two courts’ approaches is the subject of protection. The ECtHR focuses on the individual rights of academics: It protects free speech in the academic context by establishing a high standard for holding academics liable for publicly expressing their views inside and outside of academia. The ECJ has applied the concept of institutional autonomy, thereby setting a high standard for safeguarding the freedom of academic institutions. This standard can be applied with regard to the demands placed by policy-makers on academia regarding its role in democracy, including gender equality requirements for EU research funding.

This Introduction provides an overview of the topics covered in this special issue on ‘Academic freedom: Global variations in norm conceptualization, diffusion and contestation’, which explores what academic freedom means, how this may vary on a global level, how the norm spread around the world and what current contestations look like. The Introduction defines some terms essential to this debate, such as the freedom of science, academic freedom, freedom of scientific research and the right to science, and offers an analytical framework for the various contributions of the special issue. This includes, in particular, a distinction between illiberal and liberal science scripts and their relationship with academic freedom, as well as between different forms of contestations and limitations of academic freedom. Authors from varying disciplinary and regional backgrounds address different aspects of this theme in their respective contributions, of which the introduction gives a brief summary.

This article details the concept of constitutional embedding and demonstrates its utility in four country-rights cases. Constitutional embedding refers to the process by which some understanding of constitutional rights comes to take root in everyday life, moving from words on paper to something that shapes expectations and behavior. The degree of constitutional embedding varies along two dimensions: social and legal, or how individuals and groups operating in the social sphere understand and relate to constitutional rights, and how those working in the formal legal sphere do so. In a global political climate defined by democratic backsliding, powerful vested interests, and backlash against moves toward equality, the status of constitutional rights and how they become and remain embedded is doubly important. The constitutional embedding framework highlights how interactions between legal elites and ordinary citizens constitute the extent to which constitutional law influences daily life. The framework has broad applicability across contexts and rights domains.

This article explores the global spread of domestic codifications of academic freedom norms by mapping constitutional provisions over time and space. Drawing on the new Academic Freedom in Constitutions dataset, the study evaluates several hypotheses that may explain the norm’s geographically diverse, yet comparatively limited, adoption in 52 per cent of constitutions today. The descriptive analysis of constitutional adoption patterns suggests that the as yet large pockets of absence are a result of the fact that academic freedom was not included as a fundamental right from the early days of constitution-making, combined with its close link to higher education development, thus locking many countries into a path dependency of early constitutions exclusive of academic freedom norms. The availability of relevant models in nearby countries, together with higher education expansion, are key facilitators of academic freedom adoption at the critical time of a constitutional reform process. Diverse countries in different regions acted as norm entrepreneurs, often motivated to domestically protect academic freedom, thus leading to the emergence of regional and other clusters of academic freedom reference types. A sizeable proportion of insincere adopters further suggests that, in some regions, academic freedom serves as a legitimizing international norm.

Transformative constitutionalism and process theory are generally seen as worlds apart. But they may be more compatible than we think. A transformative understanding of process is very broad, but it represents a natural extension of the line already being taken by contemporary process accounts intent on expanding the theory to fit global practice. It can help us to understand why an expansion based on and including a wider set of justiciable process concerns has proved difficult to limit. Conversely, transformative constitutionalism badly needs a better account of judicial restraint to balance its preoccupation with judicial boldness. Since it shares with process theory a deep concern with democracy, it can naturally draw on process accounts to understand its own limits. Democracy-seeking review, in aiming to build as well as protect democratic capacity, needs to be as concerned with restraint as intervention, depending on the context. Working out a transformative process theory is therefore at least an exercise instructive to either side, and it can offer a way to overcome divides that hamper global engagement with these core constitutional issues.

This article studies the contestation of liberal-democratic norms from within the liberal international order (LIO), focusing on the case of abortion rights. The US Supreme Court’s decisions on abortion, central to both domestic and global debates, provide a compelling case study of how two opposing sides may invoke the same norms, rather than presenting a case of norm collision or co-optation. In contrast to the binary pro-choice versus anti-abortionist framing, this article shows that both sides invoke liberal-democratic norms, but differ in how they relate the norms to each other and how they interrupt established norm relations. Against this background, the article introduces the concept of norm decoupling, highlighting how norm entrepreneurs isolate certain norms from hitherto related norms. This process contributes to a more subtle backsliding of the LIO, particularly by decoupling majority votes from other democratic, substantial norms, and by decoupling liberal-democratic norms from their gendered dimensions. Norm decoupling thus explains diverging interpretations of shared norms within the same context. This advances our understanding of norm contestation and interpretation, shedding light on how liberal-democratic norms subtly erode from within the LIO.

Private actors and institutions, and by extension private law itself, are increasingly being forced to reckon with a multiplicity of challenges that extend beyond the domain of private law as it is traditionally conceived. They reflect threats to the global constitutional order and liberal constitutionalism, and threats to individual and collective fundamental rights and constitutional values. As a result, the role of private law in framing and facilitating the development of the global economy and globalization often does not fall within the direct purview of public international lawyers. This editorial aims to examine the role of private law in the litigation and enforcement of public interests against the background of the public/private divide. This is done in light of the increasing role adopted by private actors, including corporations, beyond the private realm.

This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.

Constitutions are the most important legal foundation of politics. At the same time, the existence of a viable parliamentary opposition has been regarded one of the most distinctive characteristics of democracy. Bringing the two perspectives together, the principle of opposition can be constitutionalized to gain the highest status. Importantly, we refer to norms recognizing the opposition as such. Such counter-majoritarian rules are distinct because they empower opposition forces irrespective of their seat share and explicitly acknowledge that power should not be monopolized. While our subject has attracted little interest from comparative constitutionalists, it is too important to be overlooked. This is particularly true for autocratizing regimes where incumbents seek to use legislative lawfare to repress their opponents. Empirically, the study focuses on Africa, which proves revealing for various reasons. Among others, it addresses the critique that constitutional law studies often concentrate on usual suspect cases used to reveal purportedly universal insights. Our exercise in comparative constitutional law leads to two main conclusions that go beyond the continent. First, while we find a high number of opposition-related rules, the variation in design details and scope suggests that referring to the principle of opposition in an abstract manner is somewhat obscuring. And second, the obvious virtues of constitutionalizing dissent face noteworthy pitfalls since pertinent rules can lack legal clarity and even suppress dissent. Hence, the dividends of nominally democratic rules might be smaller than expected even if constitutional designers sincerely intend to fully uphold them in practice.

Fostering global constitutional discourse has long been anathema to the conservative legal movement within the United States. In Dobbs v Jackson Women’s Health Services, which overturned Roe v Wade’s right to an abortion, the court’s conservative justices relied on a globalized analysis. In this article, I identify three potential hypotheses to explain this deviation from conservative orthodoxy. Dobbs’ conservative globalism could be explained by attitudinal preferences, legitimation concerns or the influence of illiberal legal networks. I compare the proceedings of Dobbs against Carson v Makin and Kennedy v Bremerton School District, the other significant Constitutional cases from the court’s 2021–22 term, to deal with religious issues. These two other cases did not feature global citations, despite such citations being able to advance the Justices’ policy preferences or blunt legitimation concerns. Lending credence to the illiberal network hypothesis, Alito’s Dobbs opinion was reliant on a unique amicus briefing by a global network of anti-abortion scholars advocating on behalf of the natural family. Such network campaigns were absent from the proceedings of Carson and Kennedy.

This article introduces the concept of hegemonic constituent power to argue for a greater role for the people in the process of Irish reunification through the establishment of a constituent assembly. Hegemonic constituent power contends that, ideally, constituent power should be possessed by the people; however, descriptively, this is invariably not the case. Constituent power instead is best understood as the manifestation of hegemony – the dominant power base in a given legal order that legitimates and reinforces this power through institutions, prevailing ideas and culture. Hegemony performs an important function in descriptively explaining legitimacy formation while not necessarily conferring normative legitimacy on existing power structures or those who exercise constituent power. Legitimacy and illegitimacy are both embedded in this notion of hegemonic constituent power. This allows for constituent power to perform a legitimating function and its creative potential to be unleashed while still leaving space for critical contestation over how this power was exercised. In this way, hegemonic constituent power also seeks to address critiques of constituent power as enabling populism. The article then deploys this concept of hegemonic constituent power to argue that fears of invoking the will of the people in debates on Irish reunification are misplaced.