This article examines the changing status of constituent power in contemporary constitutionalism. It considers how, at face value, contemporary constitutional law reflects a post-constituent constitutional order, which is defined by a rupture with classical constitutional principles, such that the extra-legal source of constitutional order is diminished. However, it argues that the common perception of a decline in constituent power in constitutional norm construction is marked by an excessively literalistic understanding of the origins of constitutional norms and practices. As an alternative, drawing on systems-theoretical methodologies, the article proposes a functionalist, sociologically attuned reconstruction of the historical content of constitutional concepts, including the concept of constituent power. Through this perspective, it explains that constituent power, in conjunction with constitutional rights, always acted, not as an externally founding source of political agency, but as an inner projection of the political system, which served the internal organization of the political system as a distinct societal domain. The article concludes that the transnational constitutional models which are widespread in contemporary society, far from negating constituent power, re-articulate its primary functions, and they realize potentials for preserving the autonomy of the political system which constituent power always contained.

There are difficult global challenges that need to be addressed. In response, many have argued for the increased constitutionalization of international law. An argument is often also made that the international order is already constitutionalized in some meaningful sense and that there are founding conditions within the international order that represent something like a global constitution. Nevertheless, when surveying the literature on constitutionalization one is often struck by a general ambiguity about what the term means and with how constitutionalization is meant to operate between theory and institutional practice. In particular, there seems to be an overall ambiguity regarding what is being constituted by the processes of constitutionalization, about how these processes operate, and with whether this legal order is in fact creating the type of progressive cosmopolitanism that is often assumed. To address these ambiguities, this article will seek to better understand what appeals to constitutionalization generally mean and to expose key conceptual problems. The goal in doing so is to highlight areas that need greater conceptual attention and to recommend potential solutions, so that more cosmopolitan minded scholars can feel more confident in prescribing constitutionalization as part of their normative catalogue.

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.

I argue that legal and constitutional theory should avoid the idea of constituent power. It is unhelpful in seeking to understand the authority of law and the place of written constitutions in such an understanding. In particular, it results in a deep ambivalence about whether authority is located within or without the legal order. That ambivalence also manifests itself within positivist legal theory, which explains the affinity between theories of constituent power and legal positivist accounts of authority. Legal theory should then focus on the question of law’s authority as one entirely internal to legal order, thus making the question of constituent power superfluous.

In order to arrive at an adequate understanding of the changing Westphalian world, it is necessary to distinguish political self-determination from its cosmopolitan counterpart. While political self-determination has its place in a familiar and common space, cosmopolitan self-determination stands for unbounded collective self-determination among strangers. Two forms can be distinguished. In its mixed form, it is tied in with political self-determination, adopting the latter as a medium for realizing common autonomy among those who are foreign to one another. Virtual representation is essential to understanding how cosmopolitans are connected to bounded political spaces. In its pure form, by contrast, cosmopolitan self-determination detaches itself from political judgement and finds its major role in authorizing risk management and crisis intervention. It lends expression to the impoverishment suffered by collective freedom in an administered world. Any calibration of the relationship between political and cosmopolitan self-determination must examine the general social conditions enabling an autonomous life.

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.

Should state borders matter for claims of distributive justice? The article explores, only to reject, the best reasons for an ‘Anti-Cosmopolitan’ position which grants some minimum international obligations, including social and economic human rights. At the same time this Anti-Cosmopolitanism rejects distinctly distributive principles of justice, familiar from discussions of justice among compatriots: There are no further limits on permissible global inequalities. ‘Anti-Cosmopolitans’ do not deny that the tangled web of domestic and international institutions has a massive impact on individuals, their life plans and opportunities, albeit often indirectly and surreptitiously. What they deny is that claims to equality or limits to inequality should apply across state borders. The article explores what it is about states that can justify such a disjunct in the normative claims individuals have against each other. Several arguments about such alleged salient aspects of states and their constitutions are considered, but are found lacking. The main conclusion is to challenge the reasons Anti-Cosmopolitans offer against bringing distributive principles to the ‘Global Basic Structure’.

What role does enforcement play in protecting the constitutional authority of international law? Can enforcement be understood as a specifically constitutional practice? I argue here that international law has a greater capacity for constitutional enforcement than sceptical accounts have tended to acknowledge. This argument is anchored in the institutional account of the authority of law offered by Hart and developed by MacCormick. This focuses on the official or administrative perceptions as the determinant of constitutional legitimacy, which offers a way to offset the scepticisms caused by gaps in the constitutional order. This establishes constitutional enforcement as a practice centred on and legitimated by the attribution of role responsibilities, rather than on the direct application or policing of the rules. I illustrate these arguments using the law of the sea, a domain where the functional difficulties of enforcement have always presented a challenge to international law’s claim to authority.

After 9/11 state actors in different parts of the world and to various degrees decided to give security and counterterrorism measures priority over human rights and fundamental freedoms. In order to legitimize their policy choices, governmental actors used normative argumentation to redefine what is ‘appropriate’ to ensure security. We argue that, in the long run, this may lead to a setback dynamic hollowing out established human and civil rights norms. In this article, we develop a theoretical and analytical framework, oriented along the model of the life cycle of norms, in order to trace ‘bad’ norm dynamics in the field of counterterrorism. We conceptualize the norm erosion process, particularly focusing on arguments such as speech acts put forward by governmental norm challengers and their attempts to create new meaning and understanding. We also draw on convergence theory and argue that when a coalition of norm challengers develops, using the same or similar patterns of arguments, established international normative orders protecting human rights and civil liberties might be weakened over time and a more fundamental process of norm erosion may take place.

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.

Political and economic rights are envisaged as the outcome of an ongoing bargain between citizens and their rulers. Over the long run, this constitutive process shapes the development of both the economy and the state. Globalization, however, corresponds to a period where both the market and civil society extend far beyond the borders of the initial political compact. Hence, citizens may not only ask that cross-border transactions be made easier; they may also challenge the institutional cohesion and integrity of the classical, Westphalian state, i.e., its legal and judicial order, and its bureaucratic capabilities. We are proposing a schematic description of how this political process may gradually exit the national perimeter and deliver four possible models of international or global governance, depending upon the potential structuring of coalitions between the potential winners of the globalization both in the elite and in society, and the losers; national games being ultimately arbitrated by the international competition among elites, but also by the possible formation of global coalitions of citizens and merchants.

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.

This article argues that paternalism is an organizing principle of the international humanitarian order. The international community is increasingly organized to preserve, protect, and promote human life, reflecting an ethics of care and impulse to intervene for the greater good. This mixture of care and control is captured by the concept of paternalism, which Gerald Dworkin famously defined as ‘the interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced’. Paternalism is either present or dormant in many (if not nearly all) interventions that are designed for the betterment of people and the good of humanity. This article has four goals: 1) to reassess and examine the analytical power of this much maligned and misunderstood concept; 2) to consider the dimensions upon which paternalism varies in order to develop the concept’s value for empirical analysis; 3) to speculate how and why paternalism’s form has moved from ‘strong’ to ‘weak’ over the last hundred years; and, 4) to consider whether, why, and when paternalism might be legitimate.

The recent wave of popular uprisings in the Middle East and Northern Africa has sparked a renewed attention to democratization across the world. One of many intriguing questions in this context is whether this trend will be spread globally and will flash another wave of democratization among some regions and countries where democratic euphoria has faded away. Another intriguing question is whether this new wave, in the Middle East or elsewhere, will take a constitutional path or will evolve through undemocratic and unconstitutional channels. In this light, it looks perfectly timely to discuss the lessons from and the modern prospects of building constitutional democracies in post-Soviet countries.

This article offers perspectives on challenges facing post-Soviet higher courts in the effort to promote constitutional democracy in their countries. While it argues that there are many such challenges and that their roots are mostly deep in the political culture, selected and discussed are some specific instances which starkly expose the patterns of constitutional perversion and the most relevant limitations facing post-Soviet courts in our days. The solutions to these are seen in the incremental process of institutional learning hence the article suggests some designer strategies which may help moving along this process.

The first section outlines what appears to be a peculiar vision of constitutionalism as embedded in respective societies and assesses this entrenched concept against accepted accounts of Western constitutionalism. The second section discusses some specific challenges to development of constitutionalism in post-Soviet countries, concentrating on inherited mindset and legal culture, as well as corrupt political technologies and flaws in the design of constitutional courts. The third section discusses two illustrative cases before higher tribunals to demonstrate what courts face in the courtroom when confronting the described challenges.

This article presents a functional explanation of why proportionality has become one of the most successful legal transplants in contemporary constitutional law. It argues that proportionality helps judges mitigate what Robert Cover called the ‘inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process’. More than alternative methods, proportionality calibrates the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases. The first three sections show, through an analysis of different constitutional styles which I label Doric, Ionic and Corinthian, how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis. This method aims to synthesize fidelity to form and institutional structure (thesis) with ‘fact-sensitivity’ to contexts in which specific controversies arise (antithesis). Proportionality positions judges vis-à-vis the parties and the parties in relation to one another differently from other constitutional methods. The next sections distinguish between constitutional perception and reality. While the normative appeal of proportionality can be traced to the perception of its integrative aims, in reality, judicial technique does not entirely live up to those aims. Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. The final section draws on the works of Kant and Arendt and discusses the implications of an approach to constitutional method such as that reflected in the advent of proportionality for the project of constitutionalism more generally.

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.