In this Article we analyze whether and how the legal reactions to COVID-19 brought permanent changes to three main areas that are at the very basis of the study of comparative constitutional law: the horizontal separation of powers in different forms of government; the vertical separation of powers and its effects on forms of state; and the reviewability of limitations to human rights and personal freedoms by bodies exercising constitutional review. Rather than just examining and categorizing the reactions, we search for the political, institutional, factual, and sometimes even cultural rationales at the basis of each trend. Our claim is that COVID-19 was a driving force for relevant changes in the three analyzed areas, but we also recognize that these changes did not come “out of the blue,” as they were already “latent” in considered legal systems. The analysis demonstrates that the traditional categories we use to classify the forms of government, forms of state, and the mechanisms of constitutional review, although being useful paradigms to study these topics, have in themselves the potential to be “stretched,” and even unhinged, when global and long-lasting emergencies, as COVID-19, are in place.

While proportionality analysis (PA) may have originated from Germany, it has not remained a European product. PA has been locally transplanted across Anglophone nations, found in mixed legal systems that are rooted in the common law and even adapted in parts of Latin America and Asia. This article explains why PA is flourishing in parts of Asia – for example, South Korea and Taiwan – and why it is faltering in other countries, such as Singapore and China, where the absence of PA can be attributed to the non-fulfilment of Kant’s first prerequisite for perpetual peace: a republican government (liberal democracy).

The binding legal force that the Charter acquired with the Treaty of Lisbon has led some national constitutional courts to adopt an entirely new approach to EU fundamental rights. Most notably, the Austrian Constitutional Court, the Italian Constitutional Court, and the German Federal Constitutional Court have explicitly made the Charter a yardstick of constitutional review. This article compares and contrasts the approaches of these three courts to the Charter. It shows that the strategies of the Austrian and German Constitutional Courts have many characteristics in common, including that national constitutional rights are treated as a primary source and the Charter as a mere secondary benchmark in the majority of cases. The most distinctive feature of the Italian Constitutional Court's strategy is that it mainly aims to prevent ordinary courts from circumventing constitutionality refences by directly applying the Charter. The article concludes by arguing that it has many advantages when national constitutional courts adopt the Charter as a yardstick of constitutional review. It is for the constitutional courts and the CJEU to ensure that these benefits are not outweighed by some serious drawbacks of constitutional review in light of the Charter.

Paradoxically, at roughly the same time in the Netherlands the amendment bill to introduce constitutional review by the judiciary of acts of parliament lapsed in 2018, the State Commission on the Parliamentary System recommended that such review be introduced. This Article analyzes Dutch exceptionalism on the topic of prohibiting constitutional review and comes to the conclusion that it cannot be justified. Focusing on the nature of constitutional change in the country, the recommendation is made that the quest for reform should start with the courts, and not with the constitutional legislature, as has been the case to date.

In a judgment issued on June 6, 2019 (Judgment), the Colombian Constitutional Court (Court) examined the constitutionality of the Agreement for the Reciprocal Promotion and Protection of Investments between Colombia and France (Agreement). The Court upheld the constitutionality of the Agreement on the condition that the government adopt a joint interpretative statement with France to clarify some of its provisions and prevent interpretations contrary to the Colombian constitutional order. In doing so, the Court articulated a standard of review that takes into account the benefits and costs of international investment agreements (IIAs), the application of which entailed an insightful examination of the Agreement in light of the decisions of investment tribunals. The judgment raises significant issues of public international law, including the practical implications of conditioning ratification of the Agreement on adoption of a joint interpretative statement and the role of such statements in the interpretation of IIAs. Furthermore, the judgment makes important contributions to the ongoing process of reform of the investment treaty regime and the strategies adopted by states to counter the adverse impacts of IIAs on regulatory autonomy.

The relationship between the Court of Justice and the Bundesverfassungsgericht is perhaps one of the most explored relationships in all of EU’s legal history. In attempting to understand and operationalize the uncertainty surrounding the positioning between EU and national constitutional orders, they have in some respects followed the footsteps of a typical life-long love story: in the early years of European integration, both courts appeared to be in denial of any romance, and entered into a conflict over the question of the final arbiter; they subsequently turned to flirting by moving away from an institutionally based conflict towards finding a common substantive ground; which resulted in finally abandoning the competition for domination, but rather embracing mutual respect and a heterarchical relationship. This brief piece follows these developments in fundamental rights review that for now end with the second German decision concerning the right to be forgotten.

This paper extends the empirical analysis on the determinants of judicial behaviour by measuring the ideal points for the Justices of the Philippine Supreme Court for 1986−2010. The Philippines is an interesting case given the US influence in designing the Supreme Court while the political and social context differs significantly. The estimated ideal points allow us to focus on political coalitions based on presidential appointments. We find strong evidence to support the existence of such coalitions along a government-opposition policy space. Implications for comparative judicial politics are discussed.

Constituent power of the courts, in dialogue, accommodation or even collaboration, has become undeniable. It raises at least two points for scholarship to contemplate. First, what is the foundation of this power in terms of classical constitutional theory? Second, instead of or apart from the courts and their interactions: what is the relationship, in this constituent activity, between the courts and the political institutions, including the people?

1958: a priori review of parliamentary legislation to keep Parliament within its limited legislative competences – 2008: a posteriori review to protect citizens' rights and freedoms – Varieties of concrete review – Originality of the new French procedure – An indirect constitutional complaint: raised by a litigating party, transmitted by an ordinary court and decided by the Constitutional Council – Obstacle to transmission: declaration of conformity in the motives of an earlier decision by Constitutional Council – Conceptual, logical and legal reasons for a strict distinction between normative content and justificatory discourse in judgments – Setting on par of motives and operative part transforms French legal system into a specific form of common law and weakens the Rule of Law