Societal Constitutionalism: Background, Theory, Debates

The article provides a systematic outline and refinement of societal constitutionalism (SC), one of the frameworks emerged in contemporary legal theory to analyse constitutional phenomena. After an introduction in Section 1, Section 2 summarises SC’s theoretical background, namely the debates on the Economic Constitution (2.1), legal pluralism (2.2), systems theory (2.3), and the work of David Sciulli (2.4). Section 3 explains SC’s analytical limb, which on the one hand criticises some tenets of state-centred constitutionalism (3.1); and on the other hand identifies functions, arenas, processes, and structures of a constitutionalised social system (3.2). Section 4 turns to SC’s normative limb, pointing to some constitutional strategies that increase social systems’ capacities of self-limitation (4.1); and develop a law of inter-constitutional collisions (4.2). Section 5 addresses the main competing approaches and criticisms, which are based on state-centred constitutionalism (5.1); on international/global constitutionalism (5.2); and on contestatory/material constitutionalism (5.3).

The School Strike for Climate as people’s engagement in the transnational legal process and global constitutionalism

What is the significance of the School Strike for Climate from an international constitutional perspective? In this article, I compare the School Strike for Climate with the Hong Kong protests of 2019–20. Both these movements became necessary because of gaps in their countries’ respective domestic and international legal frameworks – what I term constitutionalism gaps. The immediate cause of each protest was how state and non-state actors exploited these constitutionalism gaps in the existing legal framework. Protests in Hong Kong were triggered by the attempt to enact an Extradition Law that threatened people’s autonomy, whereas the School Strike for Climate is a response to the failure of the state to deliver climate justice. Both these movements use similar strategies of advocacy and they have relied extensively on new technology. Based on this comparison, I argue that the School Strike for Climate promotes procedural and substantive values of constitutionalism at the international level, similar to the Hong Kong Protests at the domestic level. Through the School Strike for Climate, people seek to engage directly in the transnational legal process. In attempting to bridge the constitutionalism gap at the international level, the School Strike for Climate promotes values of global constitutionalism.

Global Constitutionalism and Legal Fragmentation: The Populist Backslide in Central and Eastern Europe

<p>Globalisation has provoked a deep transformation in international law, political affairs and governance with contradictory consequences. It has stimulated the cosmopolitan project of global constitutionalism, transnational integration and the unification of democratic standards. However, it also resulted in the fragmentation of international affairs, the deterioration of constitutional democracy and a feeling of a growing shortage in democracy on national and international levels of governance. Trying to balance the impact of these two opposing trends, the author analyses the positive and negative effects of globalisation on constitutional development regarding such issues as transnational constitutionalisation, democracy and national sovereignty, the changing place of multilayer constitutionalism, the international separation of powers, and the system of global governance in the establishment of transnational constitutional democratic legitimacy. From this point of view, the populist backslide in Central and Eastern Europe (CEE) looks dangerous and unforeseen, but it is a systemic and potentially predictable reaction of global regions on the uneven character of integration, the lack of democratic legitimacy and a new answer to the contortions and dysfunctions of global governance. An adequate response to these challenges could be found in a new concept of constitutional integration based on ongoing dialogue between the transnational and national actors of legal globalisation. This dialogue is possible by using a conflict-mediation strategy, elaborated by international experts, especially, for the deliberation of complex and protracted conflicts, which have no clear practical solutions in the short to medium term.</p>

A critical account of Ius Constitutionale Commune in Latin America: An intellectual map of contemporary Latin American constitutionalism

Ius Constitutionale Commune in Latin America (ICCAL) is an academic endeavour that attempts to provide an account of the original Latin American path of transformative constitutionalism, comprising elements from national, transnational and international legal orders, and where the law is placed at the service of the normative trinity of constitutionalism, namely the rule of law, democracy and human rights. In this regard, ICCAL speaks of an Inter-American law that represents a new legal phenomenon, in a region where constitutionalist ideas have allegedly claimed new traction. In this article, I develop two main critiques that can be deemed challenges for an academic project that is still ‘under construction’, and provide an intellectual map of Latin American constitutionalism that could address these critiques and serve as a roadmap for studying potential Latin American contributions to debates around global constitutionalism.

The Search for New Meanings Continues (Concerning the Amendments to the Constitution of the Russian Federation)

Amendments to the Constitution of the Russian Federation in 2020 introduced many new meanings and concepts into the constitutional matter. Most of them have great ideological potential. The paper analyzes the worldview aspect of the amendments to the Constitution of the Russian Federation, the political message of their adoption, methodological approaches to identifying their content.The paper highlights amendments with the greatest spiritual and moral content, such as succession, historical truth, patriotism. The author elucidates the prerequisites for their adoption, including the historical inevitability of changing the Constitution of the Russian Federation in 1993 and the defeat of imitative constitutionalism in the majority of post-socialist countries. It is shown that the ideological content of the amendments was used to adjust the liberal-democratic model from the standpoint of strengthening the state sovereignty. Particular attention is paid to the expansion of national identity in constitutional norms as a natural process of protection from global constitutionalism, universal democratic values, including the case study of Eastern European states. There is a worldwide crisis tendency for the market-type democracy, the search for more modern approaches to its renewal.As a conclusion, it is noted that the worldview turn towards a reassessment of the liberal democratic doctrine is contradictory and not completely clear. It can be assumed that the amendments to the Constitution of the Russian Federation are the first step not only towards the modification of constitutional institutions, but also towards a qualitative renewal of the philosophical and legal meanings of the Russian constitutional identity.As methodological tools of scientific research, it is proposed to use the potential of the integrative function of philosophy of law and the concept of system-wide contradictions of the society. This concept allows us to critically assess the universality of the traditional values of democracy, to form their own competitive models of the constitutional structure. It aims at finding a balance between the opposites in the society, the state, at the mechanism of dialogue and proportionality in decision-making.

Global constitutionalism in Taiwan

In contrast with the decline of liberal constitutionalism around the world, liberal constitutionalism seems to be resilient in Taiwan. Weaving together several threads of history, law and politics, this article first argues that foreign legal education and identity concerns explain why judicial review and constitutional development more broadly in Taiwan have not only flourished but mirrored both German and American constitutional jurisprudence. Second, it maintains that the case of Taiwan poses another challenge to the concept of global constitutionalism since the number of referenced jurisdictions is quite limited.

Transnational constitutional engagement: A contextualization of global constitutionalism by the Constitutional Court of South Korea

Through the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.

Global constitutionalism reconfigured through a regional lens

This article examines how global constitutional norms are received and reconfigured by South Asian judiciaries. It makes two central claims. First, it argues that India, as the largest state in the region, acts as a filter through which Bangladesh and Sri Lanka receive both structural and rights-based global norms. Second, it contends that Bangladeshi and Sri Lankan courts adopt distinct approaches to the Indian case law. While Bangladesh mostly converges with the Indian jurisprudence, Sri Lanka engages with it but does not wholly adopt its conclusions. The article puts forward a preliminary explanation for these distinct approaches based on differences in the constitutional structures and political histories of Bangladesh and Sri Lanka vis-à-vis India.

Foreign judges of the Pacific as agents of global constitutionalism

Studies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.

Global constitutionalism: Asia-Pacific perspectives

This special issue of Global Constitutionalism discusses how global constitutionalism influences Asia-Pacific jurisdictions and how they respond. This introductory article presents the theme and structure of this issue, explains the Asia-Pacific’s unique contribution to global constitutionalism and offers a synthetic argument. It conceptualizes global constitutionalism as the global diffusion of common constitutional ideas, institutions and doctrines rooted in comparative constitutional law and public international law. On that base, it argues that constitutional design, adjudication and discourse in many Asia-Pacific jurisdictions are influenced by global constitutionalism. The influence results in not only convergence but also resistance to global constitutionalism in the regions. The regional experience presents critical challenges for global constitutionalism, and hence its effective operation significantly depends on its situation within the region’s axiological, institutional and social contexts.