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Unfortunately, the concept of the founding power remains neglected in discussions on the constitutional law of Iran. It has become a prevailing view that after determining the type and form of the regime and the formation and ratification of the constitution, this creative power comes to an end and dissolves in order to ensure the stability of the established system. This is dangerous because it may lead to the overlooking of the vital role of the people, who are the true creators of a political system. However, it must be noted that the creator cannot dissolve and disappear within its creation. Such a viewpoint leads to dictatorship and the erosion of the people's sovereignty. Therefore in this research, which is conducted using a descriptive-analytical method and library sources, important concepts that are often conflated will first be clarified. Then, the status of the founding power and its role in the 1979 Islamic Revolution will be examined based on Chapter VIII of Carl Schmitt's book, Theory of the Foundation. [ABSTRACT FROM AUTHOR]

The aim of this article is to open a new way of understanding corruption by examining its place within the law and culture of the European semi-periphery, with a focus on inter-war Romania. My intention is to operate a twofold displacement of the analysis of the anti-corruption and the status of constitutional practice in this context. First, I aim to reposition the question of political corruption within a jurisprudential and legal historical context. In this way I inquire what is the legal theoretical importance of political corruption in a post-dependency context? In other words, what can the representation of corruption entail for law, and for a particular legal historical trajectory within the European periphery. Second, I move towards exploring the context of the inter-war period as well as the discursive construction of political corruption within the law and through the fascist criticism levelled against it. [ABSTRACT FROM AUTHOR]

For many political constitutionalists, the ordinary democratic process should be the constitution; constitutional entrenchment and strong-form judicial review should be avoided. But how is ordinary democratic politics understood by political constitutionalists? To answer this question, this article engages in an interpretative inquiry to delineate four distinct ideological readings of political constitutionalism—democratic socialist, liberal, republican and conservative—that are alive within the existing literature. It does so to explain how these readings articulate subtly different understandings of ordinary democratic politics. In doing so, it reflects on how to identify political constitutionalist thought; how political constitutionalism can appeal to different ideologies; how ideologies have influenced the theory's intellectual development; and the ideological conditions required to sustain a political constitution. [ABSTRACT FROM AUTHOR]

Copyright of Ankara Barosu Dergileri is the property of Ankara Bar Association and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Hermann Heller’s critique of liberalism was both theoretical and conjunctural. He derided liberalism’s erosion of the concept of sovereignty and lamented liberalism’s complicity with the substantive inequality of his time. It its place, he argued for a restoration of the concept of popular sovereignty, as a dialectical formation of political unity and material equality through the democratic process. As a matter of political practice and strategy, however, Heller equivocated in his stance on the constitutional politics of the Weimar Republic. He initially tolerated the abrogation of parliamentary democracy due to his faith in the neutrality of the state, before diagnosing the regime as a form of authoritarian liberalism determined by the capitalist economy. This article examines Heller’s theoretical and political critique of liberalism. It outlines Heller’s conception of popular sovereignty against both Kelsen’s legal rationalism and Schmitt’s political decisionism. It also examines the significance of the interwar conjuncture, highlighting that the turn of the bourgeoisie to authoritarianism and ultimately to fascism represented a continuity of the liberal elision of the principle of popular sovereignty. [ABSTRACT FROM AUTHOR]

Can a constitution be treated as a recommendation rather than as binding and entrenched law? I argue that the answer to that question is Yes. With respect to the constitution in gross, that is, the total set of general provisions setting out both the structures of governance and the basic rights the constitution protects, the constitution as recommendation can serve as a focal point for ordinary political contestation which, because it unfolds in real time and is conducted by actors with limited time and energy for such contestation, occurs within (largely) settled institutional forms. With respect to the constitution in detail, that is, brought to ground in judicial judgments in contested cases, the answer is more complicated. Ordinarily treating judicial judgments as recommendations is a prescription for instability (and for that reason inconsistent with the idea of institutional settlement). If the target of such a judgment makes a considered judgment that instability is worth it, the target is raising questions about the continuing value of remaining in the particular polity within which the principle of institutional settlement holds sway. [ABSTRACT FROM AUTHOR]

This response to commentaries composing a symposium on my book 'Constitutional Essentials: On the Constitutional Theory of Political Liberalism' (2022) includes restatements of some major themes from the book, as prompted by thoughts from the commentators. [ABSTRACT FROM AUTHOR]

Copyright of Direito e Práxis is the property of Editora da Universidade do Estado do Rio de Janeiro (EdUERJ) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

A Pluralist Theory of Constitutional Justice. Assessing Liberal Democracy in Times of Rising Populism and Illiberalism advances a theoretically rich and extremely engaging case for the suitability of liberal constitutionalism to achieve justice in contemporary globalised and pluralistic societies. While acknowledging that actual liberal constitutional models have oftentimes failed to effectively address some of the most significant challenges of our time, the book offers a valuable contribution to the debate by shedding light on the potential of liberal constitutionalism, when taken in its ‘ideal’ form, as well as its conceptual superiority over competitors such as illiberalism, populism, and authoritarianism. In doing so, the author Michel Rosenfeld relies on the notion of comprehensive pluralism as a conception of the good in its own right that ought to be incorporated within liberal constitutionalism in order to secure and improve the ability of the latter to meet the demands of justice. While the author's case for comprehensive pluralism is extremely compelling, the connection that the book seeks to establish between the requirements of justice under comprehensive pluralism and the liberal constitutional model requires further discussion.

The general theory of fundamental rights, primarily emerging from the experience of the constitutional jurisdictions in Europe, found the reasons for its effectiveness and practical success within the sociopolitical context of the constitutional state of the «post-war» period, understood in a broad sense. However, its enviable success and stability may obscure the profound transformation of the current legal-political context in which it must unfold its explanatory capacity. Among these new contexts, the general perception that we are facing a phase of «

Habermas' theory of popular sovereignty has received comparatively little sustained critical attention in the Anglo-American literature since initial responses to Between Facts and Norms. In light of subsequent work on group agency, this paper argues that Habermas' reconstruction of popular sovereignty—in its denial of the normative force of collective citizen action—is best understood as a renunciation of the doctrine. The paper is structured in three sections. Section 1 examines Habermas' treatment of popular sovereignty prior to Between Facts and Norms as both (i) a principle of constitutional legitimacy or normative justification for the modern Rechtsstaat and (ii) a concept of legitimation for the rule of the ascendant liberal bourgeoisie. Section 2 then argues that Habermas' reconstruction of popular sovereignty in Between Facts and Norms, by discounting the role of collective citizen agency in the justification of the modern constitutional state, empties the doctrine of its core normative content. The final section briefly elaborates on this claim by reference to Habermas' theory of the public sphere. [ABSTRACT FROM AUTHOR]

Copyright of Pravnik is the property of Czech Academy of Sciences, Institute of State & Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article asks whether we can identify a vitalistic undertow in Friedrich Nietzsche's philosophy that would make sense for contemporary political and constitutional theory as well. The arguments are presented by contrasting Nietzsche's philosophy with the social theory of Herbert Spencer. After an introduction, the first main part discusses Spencer and his so-called 'organic analogy' in which he draws parallels between natural organisms and the body politic. Spencer's social theory is a paradigmatic example of vitalism and organic state theory and, as a counterpoint, can help tease out Nietzsche's vitalism as well. The article then examines Nietzsche's admittedly fragmentary encounters with Spencer and his flirtations with vitalism and organic state theory. In the conclusions, the reconstructed narrative about Nietzsche's vitalism is linked with Nietzsche's main philosophical works in the hope of provisionally extracting a Nietzschean 'constitutional theory' from his notion of will to power. [ABSTRACT FROM AUTHOR]

A common feature of Neal Stephenson's speculative fiction is the richly imagined political communities inhabited by his characters. Geographically defined constitutional states are reimagined, often with a focus on associations based on shared social identity or beliefs, as opposed to nation-state citizenship. Stephenson's works offer an imaginative space for exploring possibilities of alternative political communities, and questions of constitution and jurisdiction. Modern territorially sovereign nation-states have presented constitutional scholars with a fixed framework. People sharing physical space constitute a political association stemming from a moment of legal constitution. Thus constituted, the nation-state authorises governmental entities to oversee the populace within the shared geographical space. Stephenson's rich imagination offers constitutional scholarship an imaginary for exploring alternative conceptualisations of constitution and jurisdiction. This article proposes that recovery of medieval conceptualisations of overlapping networked jurisdictions might aid in sensemaking of models of political communities beyond the territorially sovereign nation-state. [ABSTRACT FROM AUTHOR]

Jack Balkin’s scholarship exhibits an indecisive faith, symptomatic of legal liberalism, committed to belief in the future moralization of politics and disavowal of that belief. This yields indecisive theories of constitutionalism, politics, jurisprudence, and history; repeatedly, focus on progress, open-endedness, and discussion neglects how previous decisions and entrenched institutions foreclose alternatives. Above all, Balkin disregards how capitalism precludes democratic redemption of liberal ideals. The Constitution entrenched capitalist social property relations and insulated them from the democratic process. Capitalism’s social compulsions foreclose democratic redemption of the liberal ideal of equally respecting the freedom of all. Constitutional legitimacy in capitalist democracy is entangled in contradictory imperatives to sustain both civic solidarity and accumulation. By undermining regimes of constitutional legitimation, accumulation has yielded cyclical patterns of constitutional development. Responsible struggle to achieve liberal ideals must acknowledge that capitalism forecloses their redemption but that no liberal overcoming of capitalism is currently possible.

A common feature of Neal Stephenson’s speculative fiction is the richly imagined political communities inhabited by his characters. Geographically defined constitutional states are reimagined, often with a focus on associations based on shared social identity or beliefs, as opposed to nation-state citizenship. Stephenson’s works offer an imaginative space for exploring possibilities of alternative political communities, and questions of constitution and jurisdiction. Modern territorially sovereign nation-states have presented constitutional scholars with a fixed framework. People sharing physical space constitute a political association stemming from a moment of legal constitution. Thus constituted, the nation-state authorises governmental entities to oversee the populace within the shared geographical space. Stephenson’s rich imagination offers constitutional scholarship an imaginary for exploring alternative conceptualisations of constitution and jurisdiction. This article proposes that recovery of medieval conceptualisations of overlapping networked jurisdictions might aid in sensemaking of models of political communities beyond the territorially sovereign nation-state.

This paper aims to examine the existentialist elements in Carl Schmitt’s political philosophy. Such an analytical perspective is necessary so that we can fully understand the ideas of the German thinker. This article concentrates on three of Schmitt’s most serious areas of research: decisionism as a fundamental part of the political, constitutional theory and the concept of the political as a fundamental distinction between friends and enemies. Each of these three moments is deeply existential. Thus, it is that which enables Schmitt to develop an authentic counterargument to 20th century’s main political ideas. This existential perspective illuminates the essence of Carl Schmitt’s philosophy and provides it with intellectual clarity. [ABSTRACT FROM AUTHOR]

In the immediate post-war period, a set of thinkers, most notably Jacques Maritain, developed influential natural law theories of constitutional democracy. The central tenet of the natural law approach to the post-war settlement was that, without the type of foundational understanding of the constitutional system it was proposing, the new democratic political institutions would relapse into totalitarianism. In response to this natural law challenge, Hans Kelsen sought to explicate and defend a self-consciously secular and relativistic understanding of the basis of constitutional democracy. This article will examine the debate between the Kelsenian and the natural law view of constitutional democracy. The debate raises questions of foundational importance, and a number of issues are of particular concern in the present global context. These issues concern the role of moral pluralism and its relevance to the structure of constitutional democracy, and the relationship between universal values and the common good of particular communities. [ABSTRACT FROM AUTHOR]

This paper builds on the work of several exceptional scholars from the disciplines of philosophy, law, and history. My central aim is to introduce and explicate an idea closely related to (and derivative of) the concept of rights talk, a concept I call 'constitutional emotivism'. By drawing upon scholars including Mary Ann Glendon, Jamal Greene, A.J. Ayer, and Alasdair MacIntyre, I aim to gather the conceptual threads that I trace through their work which together form the idea of constitutional emotivism. In a sentence, constitutional emotivism is the conflation of moral disagreements with constitutional rights grievances. When this conflation occurs, rights conflicts that never needed to occur in the first place reinforce rights talk and its uncompromising nature. [ABSTRACT FROM AUTHOR]

Copyright of Journal of Constitutional History / Giornale di Storia Costituzionale is the property of Giornale di Storia Costituzionale (Journal of Constitutional History) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Law / Teise is the property of Vilnius University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

A Pluralist Theory of Constitutional Justice. Assessing Liberal Democracy in Times of Rising Populism and Illiberalism advances a theoretically rich and extremely engaging case for the suitability of liberal constitutionalism to achieve justice in contemporary globalized and pluralistic societies. While acknowledging that actual liberal constitutional models have oftentimes failed to effectively address some of the most significant challenges of our time, the book offers a valuable contribution to the debate by shedding light on the potential of liberal constitutionalism, when taken in its 'ideal' form, as well as its conceptual superiority over competitors such as illiberalism, populism, and authoritarianism. In doing so, the author Michel Rosenfeld relies on the notion of comprehensive pluralism as a conception of the good in its own right that ought to be incorporated within liberal constitutionalism in order to secure and improve the ability of the latter to meet the demands of justice. While the author's case for comprehensive pluralism is extremely compelling, the connection that the book seeks to establish between the requirements of justice under comprehensive pluralism and the liberal constitutional model requires further discussion. [ABSTRACT FROM AUTHOR]

Copyright of Canadian Journal of Law & Society/Revue Canadienne Droit et Societe (Cambridge University Press) is the property of Cambridge University Press and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Judges occupy important roles in Rousseau's constitutional theory. Placing the Social Contract alongside Rousseau's lesser-known Letters Written from the Mountain and The Government of Poland , this article examines how Rousseau constructs judicial institutions and explores a problem he confronts. Although necessary for the republic to enjoy the rule of law, Rousseau worries that adjudicative bodies threaten the citizens' freedom. This article describes Rousseau's constitutional solution, which combines a conservative-yet-progressive legislative ethos, with pluralist institutionalism and judicial non-professionalism. [ABSTRACT FROM AUTHOR]

Much early public choice theory focused on alleged pathologies of democratic legislatures, portraying them as irrational, manipulable, or subject to capture. Recent years have seen the emergence of a new strand of argument, reaffirming the old skepticism of legislatures but suggesting that transferring power from legislatures to chief executives offers a solution. Just as the earlier prescriptions ignored the pathologies of the agencies empowered to check and constrain legislatures, so the new scholarship overlooks the pathologies of executive power. The primary sources of congressional dysfunction call for reforms that would strengthen Congress instead of hobbling it in new ways that exacerbate the drift toward authoritarian presidentialism in the American system. Executive aggrandizement is a consequence of decades of institutional malfunction, worsened by right-wing attacks on legislative capacity. This has been the enduring impact of the public choice movement since the 1950s, but its twenty-first century offshoot is especially malign. [ABSTRACT FROM AUTHOR]

This Article discusses Emilios Christodoulidis’s The Redress of Law as a major contribution to contemporary critical constitutional theory, with a focus on its relationship with other lines of critical thought; with systems theory and societal constitutionalism; and with legal pluralism and the global constitutionalism discourses. It argues that the most valuable contribution of The Redress of Law lies in its capacity to innovate current theoretical discourses, too often closed in on their conceptual assumptions, in turn modelled on liberal political theory.

Stefan Eich’s The Currency of Politics reconstructs and contextualises the monetary understanding of some of the most renowned political thinkers in history. By contextualising each author’s conceptualisation (subjective perception) against their respective contemporary monetary frameworks (objective institutional dimension), Eich elaborates a narrative composed of cumulative layers leading to a double conclusion: that money is political at its core, and that current policies are actively de-politicizing money. These relevant findings are the point of departure of a reflection on the role that law, and constitutional theory in particular, must play in the configuration of Europe’s common currency to overcome some of the most acute difficulties the process of integration is currently experiencing. If the triad law, money and public discourse is supposed to articulate social life in the polity, European monetary integration has neutralised them by neglecting the relevance of one of their key features: civic reciprocity. Reactivating the three mechanisms of social integration requires an exercise of constitutional imagination able to integrate interdisciplinary knowledge about money within an institutional framework able to prevent the concentration of unlimited power in unaccountable institutions and to promote and fully exploit the democratic potential of money.

Although much has been written on the German jurist Carl Schmitt’s commentary on liberal democracy and parliamentarism, his analysis of monarchy and monarchism has remained overlooked. This article excavates Schmitt’s analysis of monarchy and the monarchical principle articulated during the Weimar Republic. Although Schmitt never devoted a text to exploring monarchy as he did for other state forms, this article argues that the monarchical principle is nevertheless central to his account of political representation presented in his Constitutional Theory and can only be properly understood when contextualized in his shorter, contemporaneous writings. The article then explores the relationship between the monarchical principle and Schmitt’s understanding of constituent power in the figure of the republicanized monarch. [ABSTRACT FROM AUTHOR]

Much has been written about the loss of trust and issues concerning 'social license to operate' (SLO) in relation to the Canadian oil sands, raising questions about whether there is a crisis of legitimacy. This article considers the implications of constituent power and the democratic constitutional theory advanced by Colón-Ríos for the legitimacy of modern oil sands institutions. Building upon Colón-Ríos's theory, this article proposes the examination of constituent power as an analytical approach to understanding institutional legitimacy in resource conflicts where legitimacy is contested. In other words, where the exercise of constituted power raises questions of legitimacy, this ought to trigger an examination of the democratic legitimacy of the overarching constitutional regime by reference to constituent power. If there is a democratic deficit in the formation of the constitutional regime that empowers them, it may be difficult to defend the regulatory bodies responsible for administering the oil sands as normatively legitimate. This article does not aim to draw broad conclusions about the legitimacy of oil sands governance institutions or the Canadian constitutional regime per se. Rather, it sees the contested nature of legitimacy as a potential indicator that difficulties in resolving oil sands conflicts may stem from the existence of deeper systemic issues relating to the constitutional regime in which the institutional framework is embedded. Focusing on constituent power theory to examine the democratic legitimacy of the overarching constitutional regime may serve an explanatory role, perhaps shedding light on why democratic approaches are not reflected in oil sands decision-making. It might also further clarify why popular acceptance of the system of governance remains in question, particularly by some Aboriginal communities, and why public stakeholders have struggled with having their concerns addressed appropriately. Such an examination may reveal the true extent of the democratic deficit and, therefore, provide a deeper understanding of the legitimacy issues that oil sands institutions might face when determining ways to improve governance, particularly where there are demands for more deliberative, democratic decision-making. This analytical approach may also potentially be valuable in institutional contexts other than oil sands and resource governance. [ABSTRACT FROM AUTHOR]

This Article discusses Emilios Christodoulidis's The Redress of Law as a major contribution to contemporary critical constitutional theory, with a focus on its relationship with other lines of critical thought; with systems theory and societal constitutionalism; and with legal pluralism and the global constitutionalism discourses. It argues that the most valuable contribution of The Redress of Law lies in its capacity to innovate current theoretical discourses, too often closed in on their conceptual assumptions, in turn modelled on liberal political theory. [ABSTRACT FROM AUTHOR]

Copyright of Revista de Derecho Politico is the property of Editorial UNED and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Extensive urbanization is one of the most significant demographic and geopolitical phenomena of our time. Yet, with few exceptions, constitutional theory has failed to turn its attention to this crucial trend. In particular, the burgeoning constitutional literature aimed at addressing phenomena such as democratic backsliding, constitutional retrogression, and populist threats to judicial independence and the rule of law has failed to respond to the significance of place as an emerging cleavage in contemporary politics. An alarming disconnect has emerged between constitutionalism's overwhelmingly statist (or Westphalian) outlook and the reality of geographically localized concentration of worldviews, policy preferences, and political identities. In this essay, I identify urban agglomeration and the accompanying resurgence of the urban-rural divide as posing a critical challenge to liberal constitutional democracy, and argue that the time is ripe to pay closer attention to the spatial dimension of constitutional governance and its impact on the rise of anti-establishment political resentment. To that end, in the essay's final part I identify several areas of constitutional law and theory that appear to hold some intellectual promise in thinking creatively about mitigating the urban-rural divide, and about the mounting urban challenge more generally. [ABSTRACT FROM AUTHOR]

The idea of balance in constitutional thought helps to illuminate what it is to be governed well. The article considers the idea of balance, beginning with John Finnis's engagement with Gibbon's Decline and Fall , and argues that the well-balanced constitution is stable rather than static, tempering public authority, which is to say disciplining and strengthening it. Anglo-American history confirms that the balance of a constitution is likely to change over time, not only because of unconstitutional action but also because of lawful exercise of power or changes in social and political conditions. In some cases, the balance may be lost, and may need now to be restored; in other cases, a new balance may have been struck. The article reflects on the institutional arrangements that characterize a well-balanced constitution, making clear the contribution that independent courts make (and the risks that misuse of judicial power may pose) and the importance of intelligently coordinating executive and legislative power. The people have a share in constitutional government, which requires a spirit of moderation and is put in doubt if the constitution is insulated from deliberate change. [ABSTRACT FROM AUTHOR]

Stefan Eich's The Currency of Politics reconstructs and contextualises the monetary understanding of some of the most renowned political thinkers in history. By contextualising each author's conceptualisation (subjective perception) against their respective contemporary monetary frameworks (objective institutional dimension), Eich elaborates a narrative composed of cumulative layers leading to a double conclusion: that money is political at its core, and that current policies are actively de-politicizing money. These relevant findings are the point of departure of a reflection on the role that law, and constitutional theory in particular, must play in the configuration of Europe's common currency to overcome some of the most acute difficulties the process of integration is currently experiencing. If the triad law, money and public discourse is supposed to articulate social life in the polity, European monetary integration has neutralised them by neglecting the relevance of one of their key features: civic reciprocity. Reactivating the three mechanisms of social integration requires an exercise of constitutional imagination able to integrate interdisciplinary knowledge about money within an institutional framework able to prevent the concentration of unlimited power in unaccountable institutions and to promote and fully exploit the democratic potential of money. [ABSTRACT FROM AUTHOR]

Copyright of Direito e Práxis is the property of Editora da Universidade do Estado do Rio de Janeiro (EdUERJ) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This essay argues that Kant’s constitutional thought provides a justification for written constitutions and written law generally. The question of written law in turn offers clarity on signature aspects of Kant’s political philosophy, from universalism to the program of perpetual peace. Critiques of Kant from various points on the political spectrum must ultimately engage his theory of writing and its relation to Enlightenment and political right. In addition, contemporary rightwing movements can be characterized in contradistinction to Kant’s constitutional principles. This includes these movements’ rejection of internationalism, pacifism, and the media conventions of Enlightenment print culture. Kant’s combination of written law and rational constitutionalism thus provides both a contrastive diagnosis and systematic alternative to the ideology of the new right. [ABSTRACT FROM AUTHOR]

This article develops the comparative law framework on legal transplantation to theorise the impact of the United Kingdom Internal Market Act 2020 (UKIMA) on the UK constitution across three registers of analysis—the territorial, the material and the conceptual. It arrives at three conclusions. First, in relation to the territorial constitution, this article argues that the UKIMA introduces something transformative: the concept of an internal market as a shared regulatory space that cuts across the respective competences of the UK and devolved legislatures. Secondly, the legal transplant framework points to the introduction of a powerful commitment to the principles of a liberal market economy as the basis of the UK's material constitution. Finally, regarding the conceptual constitution, this article concludes that the UKIMA effects a qualitative change to established patterns of judicial review through its co-opting of courts as agents to secure the foundations of the newly recast material constitution. [ABSTRACT FROM AUTHOR]

Seen as a precondition for a referendum, clarity requires a clear referendum question and a clear majority for or against an outcome. In this article I argue clarity is not only an enabler of individual referendums but one way to politicize their context. In separating what is clear from what is obscure, clarity imposes the twin requirements of homogeneity and predictability. These, in turn, presuppose an interpretation of acceptable political (dis)continuities beyond the referendum as well as of perception of change. This reading of clarity shows how the referendum does not only manage change to which it is explicitly addressed, but that the purported voice of "the people" may at the same time be an instrument of clarity that imagines and normatively orders the referendum's surroundings.

In this paper, we explore the underlying theory of the Croatian constitution in the response to the COVID outbreak. We argue that the operative issue imposed by the pandemic, at least in Croatian constitutionalist circles, was how facts should be related to constitutional values, structures, and norms. Although at first blush a replica of our general inability to get some bearing on a terrain of uncertainty in an unforeseen outbreak, we will explore the matter as a specific problem of constitutional theory, aiming to explore its implications for constitutional dimensions of vulnerability. To do so, we draw from the literature to describe the different ways constitutions may be imagined in relation to facts and then apply this insight to the measures enacted by the Croatian state during the COVID pandemic. The result is a treacherous terrain, where the exercise of state power and its restriction stand on thin constitutional grounds, excluding a spectrum of more substantive interpretations of the Constitution. In conclusion, we argue that this map reveals a narrowed basis for identifying and vindicating vulnerability.

This article reviews the so-called lawfare that the courts, political parties and non-state actors have increasingly adopted since the presidency of Jacob Zuma as an approach to seeking legal remedies or corrective action for governance failures and in cases of perceived unfairness of judicial processes. The concept of lawfare is placed in the context of South Africa's constitutional democracy, which establishes the Constitution of the Republic of South Africa, 1996, as the supreme law and allows in principle for judicial review of legislation and executive action that contravene the basic principles and values of the Constitution. A positive constitutional understanding of lawfare is identified as the judicialisation of politics as a corrective to failures of appropriate oversight of governance as envisioned in the constitutional scheme. In such cases, judicial understanding is that judges should justify their decisions in terms of the transformative ideas, values and socioeconomic goals of the Constitution to correct such failures. This is argued to be a positive and understandable consequence of South Africa's constitutional order and the place of judicial review within it. The positive understanding of lawfare is distinguished from the negative conception of lawfare popular in South African discourse, where it means an unnecessary use of the courts to resolve issues that are constitutionally intended to be resolved by non-judicial (i.e. political) measures. In the popular understanding, the latter is most often understood to mean the so-called Stalingrad tactic, whereby public officials abuse their access to the courts and/or to public funding to engage in extensive litigation when charged with various forms of malfeasance or incompetence, which is perceived to be an effort to evade legal accountability. Negative lawfare can be destructive in a constitutional democracy, and three remedies to abuses of the courts through the Stalingrad tactic are identified: rethinking South Africa's adversarial system to accommodate some of the advantages of the inquisitorial system; more effective measures within the legal profession to hold legal professionals accountable for abuses of the courts; and imposing more consequential costs orders on public officials and legal professionals who abuse court processes. [ABSTRACT FROM AUTHOR]

Judicial review of the executive faces a constant threat of constitutional illegitimacy. Historically, this manifested in a conflict between the common law and the royal prerogative, with the judiciary needing to justify its authority to set legal limits on the powers of a divinely authorised monarch. This conflict has now transformed into a clash of political and legal conceptions of democratic governance: executive discretion to decide upon and efficiently pursue the common good conflicting with judicial enforcement of foundational constitutional norms designed to ensure that this pursuit is lawful. This article will look to the founding of the law of judicial review and the writings of Sir Edward Coke to illuminate some of the dark corners of the modern law of reasonableness review. Coke's theory of the common law as a body of artificial reason will serve to place reasonableness review within its appropriate constitutional context, solidifying the connection between the rule of law and non-arbitrariness by elucidating the foundational role that constitutional principle plays in identifying unreasonable executive conduct. Once this is done, it will become clear that the value of legal equality, manifesting in a principle of non-discrimination, is vital to reasonableness review. [ABSTRACT FROM AUTHOR]