The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law.

This article provides a comparative analysis of how courts have performed judicial review on supermajority rules governing courts’ decision-making. Through an empirical approach, covering the cases of the United States, Peru and Poland, the article argues that the supermajority’s legal source and the chronology of its establishment may influence the court’s ability to review such rules and the case’s outcome. Finally, the article addresses the paradox of whether courts must apply the very provision they are tasked to review.

Hong Kong presents a test case of China’s willingness to adapt Western liberal values of individual freedom and the rule of law in a corner of China. The Western model of governance, along with its common law system and capitalist economic system, has been permitted to operate side by side with the Chinese socialist system within the framework of Chinese sovereignty and the People’s Republic of China’s (PRC) political and legal system. The formation and implementation of the policy of ‘one country, two systems’ (OCTS) entail Chinese law-makers’ selective integration of international and Western rules of governance into the Hong Kong and China context to serve the interests of the PRC party regime. This article explores the approaches taken by the PRC to the governance of Hong Kong in light of the regime’s political and economic goals and how the Western concept of rule of law and autonomy is perceived and substantiated in terms of the communist ideology. The author argues that the intrinsic value of OCTS lies in seeking complementarity and coexistence between the Western liberal norms of governance and Chinese communist ideology, and that this intrinsic value should be upheld and remain in full force to serve as a normative consensus between China and the West.

Through an account of white feminisms and white privilege, this article examines the tensions between local and international knowledge frames. The article considers the possibility of a feminist approach to global constitutionalism and argues for a twofold critique: first, a feminist interrogation of the dominance of a specifically male history of Western and Anglo-European knowledge frames; and second, a self-critique within feminist approaches to global legal regimes that acknowledges the complicity of mainstream feminist tools in the racist histories of knowledge production. To this end, the article examines the space of gender expertise to explore how this can be both an aperture for plural feminist encounters and a refinement of diverse feminist approaches into a form digestible by the contours of international institutions. To explore alternative, decolonized encounters, the article centres Lusophone African feminist silence and action in Luanda, the capital of Angola. The article explores how Angolan gender relations, informal labour and histories of protest unsettle the frame of a feminist manifesto, to argue for a place for active silence as a methodology for undoing the status quo of global constitutional expectations of how knowledge arrives at the global and transnational levels.

In this editorial, we consider the ways in which liberal constitutionalism is challenged by and presents challenges to the climate crisis facing the world. Over recent decades, efforts to mitigate the climate crisis have generated a new set of norms for states and non-state actors, including regulatory norms (emission standards, carbon regulations), organising principles (common but differentiated responsibility) and fundamental norms (climate justice, intergenerational rights, human rights). However, like all norms, these remain contested. Particularly in light of their global reach, their specific behavioural implications and interpretations and the related obligations to act remain debatable and the overwhelming institutionalization of the neoliberal market economy makes clear and effective responses to climate change virtually impossible within liberal societies.

The United Nations treaty bodies were established to monitor the implementation of human rights by states parties. Through ‘General Comments’ – legally non-binding clarifications of treaty obligations – they have also influenced the development of international human rights law – for example, on the right to life and climate impacts. We address this phenomenon by establishing a twofold argument. First, we argue that General Comments are used by the committees to informally shape international law. They deliberately act as human rights law-makers, knowing that international institutions, organizations and professionals in their network will subsequently refer to such instruments. Second, we argue that treaty bodies not only rely on their network once they have adopted their outcome, but the experts’ personal networks also shape the drafting process of General Comments. We develop and illustrate an analytical framework with two case studies of General Comments on the human right to water and the torture prohibition. The analysis demonstrates the need for external knowledge of both technical and legal aspects of the norms being interpreted. By addressing pressing human rights challenges, expert committees can shape the law in times of stagnation and resist contestation even from powerful states.

A growing body of literature on the role of courts in democratic backsliding claims that court-packing weakens liberal democracy. However, this is not necessarily the case. The goals of the actors who produce court-packing help to explain why the co-optation of the judiciary can have a substantial negative effect on liberal democracy in some (although not all) cases. In this respect, we distinguish two types of court-packing. First, policy-driven court-packing occurs when politicians manipulate the composition of courts in order to assure a quick implementation of policies. Although this tends to negatively affect judicial independence, it is not per se a first step towards regime change. Second, regime-driven court-packing happens when politicians alter the composition of the courts with the goal of eroding democracy. In this case, court-packing’s negative effect on judicial independence has a systemic negative effect on different dimensions of liberal democracy. Relying on a wide range of primary and secondary sources, we conceptualize these two types of court-packing by comparing two cases: Carlos Menem (1989–99) in Argentina, seeking judicial support to carry out pro-market economic reforms, and Hugo Chávez (1999–2013) and Nicolás Maduro (2013–present) in Venezuela, seeking to control the judiciary in the context of democratic backsliding.

This article interrogates the normative coherence of the label of ‘digital constitutionalism’. In particular, I argue that the use of the label ‘constitutionalism’ in digital contexts often conflates the practical realities of existing contractual governance models with the superficial appeal of constitutional structures. As a result, the label is misleading in both normative and qualitative terms as it obscures the true nature of the governance architectures to which it is applied, which are more appropriately understood as implementing a distinct genre of ‘private policy’.

Criticizing the insurance theory, this article asserts that to measure post-constitutional political uncertainty, one should consider not only the power distribution among the ‘political’ actors but the power distribution among all actors involved in the constitution-making process, including the public and civil society. Comparing the constitution-making processes of the constitutions of Egypt (2012) and Tunisia (2014), this study presents the duration of the constitution-making process as an alternative measure of power distribution among all actors. The theoretical framework asserts that the long constitution-making process increases the possibility of deliberation at the public level. That will help to develop trust among polarized political actors and improve political actors’ perception of the public as a credible control and constraint mechanism. This will ensure that the incoming government will respect the newly established institutions and lead to the establishment of an independent and powerful judiciary. In the second part of the article, to test this argument, I use a large dataset that covers information on the content and design processes of 140 countries’ most recent constitutions adopted between 1945 and 2018. The empirical results indicate that as the duration of the constitution-making increases, the number of constitutional guarantees for judicial independence also increases.

This article examines the development of the doctrine of the ‘permanent constituent power’ in Mexico. This doctrine reflects a long tradition in constitutional theory according to which the exercise of constituent power is a one-time event: once a constitution is adopted, there will be no legal mechanism in place for the exercise of the people’s original constitution-making authority. This view is nonetheless in tension with a notion that has also been historically embraced by liberal constitutionalism: that the people has an inalienable right to alter the form of government. The constitutional provisions that reflect that idea, we will see, can have important implications in terms of the nature and scope of the amending authority and, at the same time, point toward alternative mechanisms for the exercise of constituent authority. By closely examining the operation of those kinds of provisions in the Mexican constitution, we seek to illustrate a tension central to the liberal constitutional tradition and to suggest a way out of it. In so doing, we aim to draw some lessons from the Mexican case that can contribute to current discussions about constituent power and fundamental constitutional change in liberal constitutional orders.

The question of whether global norms are experiencing a crisis allows for two concurrent answers. From a facticity perspective, certain global norms are in crisis, given their worldwide lack of implementation and effectiveness. From a validity perspective, however, a crisis is not obvious, as these norms are not openly contested discursively and institutionally. In order to explain the double diagnosis (crisis/no crisis), this article draws on international relations research on norm contestation and norm robustness. It proposes the concept of hidden discursive contestation and distinguishes it from three other key types of norm contestation: open discursive, open non-discursive and hidden non-discursive contestation. We identify four manifestations of hidden discursive contestation in: (1) the deflection of responsibility; (2) forestalling norm strengthening; (3) displaying norms as functional means to an end; and (4) downgrading or upgrading single norm elements. Our empirical focus is on the decent work norm, which demonstrates the double diagnosis. While it lacks facticity, it enjoys far-reaching verbal acceptance and high validity. Our qualitative analysis of discursive hidden contestation draws on two case studies: the International Labour Organization’s compliance procedures, which monitor international labour standards, and the United Nations Treaty Process on a binding instrument for business and human rights. Although both fora have different context and policy cycles, they exhibit similar strategies of hidden discursive contestation.

Collective labour rights, including the right to organize and strike, were recognized in the principles of the International Labour Organization (ILO) as fundamental rights. Despite their importance, different countries enacted legislation that included a ban on police organization in trade unions or a ban just on police strikes. The right of police officers to organize and strike is of particular importance nowadays at a time of increased public scrutiny and large-scale protests over incidents of extra-judicial killing by police. There is a need to recognize collective rights for police officers in order to improve working conditions and organizational justice at work for them as a way of moderating officers’ perspectives of public hostility and improving their capability to carry out their duties. Another benefit of recognizing a right to organize is the union’s capacity to advance important values, including avoiding racism and violence and assuring the compliance of individual officers with the ethics and code of conduct expected from police officers. This article seeks to address the unique topic of the linkage between the collective labour rights of police officers and varieties of constitutionalism in these critical times. It introduces two potential approaches in this regard: (1) global labour constitutionalism; and (2) militaristic labour constitutionalism. The former implements international standards set by the ILO as a basis for constitutionalism while the latter emphasizes domestic issues and the need to maintain the public order and security of citizens. The article examines the possibility of applying global labour constitutionalism as a basis for recognizing collective rights for police officers.

This article aims to explore the new normal in lawmaking during the COVID-19 pandemic. It proves how the pandemic has affected the making of legal norms, in terms of both process and content. It argues that COVID-19 legislation is largely driven by scientific data for the sake of public health. In this context, it explains how national-decision making is influenced by expert advisory bodies that attempt to specify how public health may be preserved during a pandemic crisis. Moreover, it sheds light into the fact that law-making during the first phases of the pandemic was approved and endorsed by the populations of states, due to their fear of the unknown disease. However, as the pandemic steadily became an established truth, the public’s trust in lawmaking started to decrease. These shifts are well explained if one conceives lawmaking by expertise as a sliding scale, the ends of which are legality at one end and expertise coupled with popular acceptance at the other. This unique sliding scale depicts how COVID-19 lawmaking functioned, balancing between opposite trends.

Deliberative constitutionalism is one of the most important developments of recent decades in constitutional theory and practice. It is in this context that Cristina Lafont’s Democracy Without Shortcuts was published. Lafont’s theory provides an opportunity to advance the research agenda on deliberative constitutionalism since she offers a deliberative democratic reinterpretation of judicial review. According to this compelling and powerful idea, citizens can challenge any laws in constitutional courts and thus trigger democratic deliberation about rights. With this issue in mind, this article offers a general approach to deliberative constitutionalism, describes Lafont’s reinterpretation of judicial review, and makes explicit five tensions in this reinterpretation of judicial review vis-à-vis deliberative constitutionalism: (1) the default authority in the interim; (2) the procedural type of constitutional amendment; (3) the scope of judicial review; (4) the irrelevance of constitutional amendments; and (5) the scope of constituent power.

In recent years, conservative governments and their civil society allies have undermined international women’s rights treaties and SOGI rights initiatives and challenged domestic rights protections. The articles in this special issue grapple with these trends by analysing the ideologies, discourses, and strategies of contemporary anti-feminism in global and comparative contexts. Several prominent patterns emerge: the core significance of social hierarchy and biological essentialism to anti-feminist conservative thought; the polarizing demonization of feminists by religious conservatives and populist nationalists; the appropriation of rights discourses and advocacy tactics by anti-feminist campaigns; and the strategic importance of law and legal language as a terrain of rights contestation. Taken together, this research suggests that anti-feminism is not incidental to reactionary anti-democratic politics, but instead a constitutive element of political movements that seek to naturalize inequality and legally enforce conformity with conservative social norms.

This article argues that the tokenistic appropriation of categories such as gender and race have deprived them of their radical and transformative political and practical roots while facilitating their commodification as a luxury product that is consumed by the depoliticized and privileged. Such (ab)use of gender, as an analytical tool, similar to race and class, has been on the rise within progressive circles. However, with the rise of alt-right populism claiming to know and fight ‘feminism’, as well as the commodification of feminism by progressives, now more than ever a decolonial social reproductive theory is needed to help understand and delineate how women are oppressed in a plethora of intersectional ways based on race, class and ability among other traits, while engaging the specific material historical-constitutive structures, judicial-political and socio-economic dimensions of the world order, as well as the emergence of right-wing populism as white heteronormative backlash. This article argues for a feminist decolonial social reproductive theory that sees gender and racial hierarchy as part of capital’s dynamism (a product), which transforms the natural, social and material world, restructuring and evolving for the ordered extraction of surplus. Although this process may differ temporally and geographically, it nonetheless results in a constellation of class exploitation, governance and struggle that facilitates right-wing backlash and undermines the left’s response, thus obviating the need for decolonial social reproductive theory.

Feminists have utilized manifestos and utopias in order to make important, often revolutionary, contributions to international law. However, these engagements have not been reflected in the substance of international law. The sources of international law – specifically customary international law – rely on a narrow understanding of historical knowledge. This article centres the 1924 manifesto and the ‘New International Order’ created by the Women’s International League for Peace and Freedom, as tools to assess the exclusion of the under-utilized history of feminist peace work from the sources of international law. This allows for a reflection on customary international law’s weaknesses and reaffirms the importance of feminist approaches to international law.

Women use a multiplicity of forms and methods to articulate harms and claim political spaces. Among these are manifestos.1 Women’s manifestos are concomitant with both political convulsion and the enduring, mundane inequalities faced by women; they play a key role in feminist attempts to achieve political and legal ends.2 Manifestos are overtly political acts of legal/political performance; they are in dialogue with each other, with counter and anti-manifestos, and with the legal-political infrastructures they inhabit.3 Manifestos seek to fracture traditional understanding and practices of law, often in the guise of claiming constituent power and political space.

What legitimates constitutions? One standard answer is that constitutions are legitimate only if they represent the people they govern. This article identifies two different conceptions of representation. Representation can be grounded either in the consent or the will of the citizens or when the constitution reflects the ‘real’ identity of the members of the nation. Alternatively, it is sometimes stated that the constitution is legitimate because it promotes justice or, more generally, is grounded in reason. While constitutions are typically grounded both in claims to represent the people and in claims concerning the justness and wisdom of the constitutional provisions, we establish that there are two types of constitutions: constitutions that are primarily representational (e.g. the US Constitution) and constitutions that are primarily reason-based (e.g. the German Constitution). We also show that this distinction has important ramifications for how constitutions are drafted and ratified, and how they operate. One central implication is that the legitimacy of constitutions that make weak claims to representation – for example, constitutions that are imposed by foreign powers – can still be defended on reason-based grounds.

‘Practical’ approaches to human rights hold that analysis of legal human rights must attend to the practice(s) of international human rights law and that the nature and justification of international human rights is best determined by attending to their role(s) in international human rights law’s system of normative practices, not analogous moral rights outside it. These core tenets plausibly explain the apparent normativity of international human rights law despite controversies about the status of many ‘rights’ in the ‘International Bill of Rights’. Yet plausible practical approaches require clear and compelling accounts of which practices qualify as human rights practices. Most existing accounts view ‘responses’ to claims made in the name of the international legal community as key to the identification of human rights. Activities by domestic governments and non-governmental actors qualify as relevant practices. While understandable, these ‘responsive’ accounts of practice create more problems than they solve. This work accordingly promotes a largely unexplored account on which ‘human rights practices’ are strictly defined by international legal doctrine. This ‘doctrinal’ account of practice is most likely to maintain practical approaches to human rights’ potential benefits without generating an unduly expansive rights register or adopting strong theoretical commitments about the nature of law.