This article is a critical examination of the claim that the emergence of private self-regulatory regimes in the transnational sphere signals a new trend of self-constitutionalization outside the limits of nation-state based or intergovernmental control. It deals with the question to what extent the diffusion of public authority in the sphere beyond the state affects the responsibility of the state(s) to procure the legitimacy of such private self-regulation. First, a conceptual argument is developed which identifies private self-regulatory regimes as rule systems nested in a specific constitutional order of the international society, here described as ‘neo-Westphalian’ (Section I). Second, implications for the responsibility to procure the legitimacy of collectively binding regulatory functions performed by private actors in the sphere beyond the state are considered (Section II). Often cited as a model example of autonomous societal self-regulation, the lex sportiva renders particularly strong plausibility for the claimed non-existence of purely private self-regulation. The regulation of performance-enhancing substances can serve to demonstrate the complex interactions between multiple public and private sites of constitutional authority (Section III). In conclusion (Section IV), I argue that, although the ultimate responsibility for providing legitimacy continues to lie with the state/world of states, the political order of the international society as construed in neo-Westphalian terms provides a dispersed and fragmented constitutional-style legal framework with few reliable guarantees that states are capable or willing to enact their background role. Therefore, a substantial part of the burden of – initial – legitimation must be carried by those directly involved in private self-regulation by constituting and exercising public authority.

The distinction between strong and weak judicial review occupies a privileged place in comparative constitutional law. This article argues that it is necessary to generate a new typology that includes two other increasingly influential models. The two ‘new’ models can be identified as ‘strong basic structure review’ and ‘weak basic structure review’. The former, present in some common law countries such as India and Belize, not only provides judges with the ability to strike down legislation that is inconsistent with a particular constitutional provision, but also constitutional amendments incompatible with the principles on which the constitution rests. The latter model, weak basic structure review, currently present in some Latin American countries, also provides judges with the power to strike down ordinary and constitution-amending legislation, but gives ‘the people’, acting through a constituent assembly, the final word on the validity of any form of positive law. Finally, the article considers the possibility of the development of a fifth model in which even the constituent people would be bound by certain principles to be identified and enforced by judges.

This article examines the origins of the concept of constitutional pluralism that has emerged in the last decade and it critically assesses the claims of its advocates. It argues that the claims made on behalf of the concept cannot be sustained and seeks to show that constitutional pluralism is an oxymoronic concept.

Transnational civil society activism has become increasingly prominent in world politics. However, there are significant questions about how these emerging processes of transnational activism can and should interface with existing forms of global and national governance. This essay contends that republicanism can explain how transnational activism can productively relate to global and national governance. Republicanism is able to develop an approach which draws upon both constitutional and discursive aspects of democracy by developing a greater focus on the roles that citizens can play with respect to both formal state institutions and the deliberative practices with respect to transnational activism. This essay develops a position termed critical republicanism which demonstrates that these transnational forms of activism can be best understood as early stages of an incipient process of transnational democratization and that the virtues of citizens need to be rethought so that citizens are concerned about the changing nature of domination at home and abroad, and be willing to engage with transnational sources of information and activism.

This article analyses how, and under what conditions, a systemically-pluralist structure of international law provides a springboard for global democratization. I argue that contestation and deliberation – core values of democracy – can and do arise within systemic pluralism. Specifically, I contend that institutional heterarchy between legal orders and forum shopping by different actors provide a means to engender these democratic values. I maintain that democratization can be sought on both horizontal and vertical planes: the former being the sphere of multilateral negotiations; the latter being governance which links individuals directly to sites of public power. In making this argument, I analyse recent developments within global intellectual property law, establishing and treating the multiple jurisdictions in this issue-space as an instantiation of systemic pluralism. This article thus provides a normative strategy for ongoing democratization of international law. Systemic pluralism must still prove its merits in terms of stability, the rule of law, and other values. However, I provide a method to advance transnational democracy that takes seriously empirical realities and competing normative visions.

Against recent contributions to the debate about the constituent power of the people, the article proposes to reorient the debate by analytically distinguishing three dominant arenas of political struggle – democratic, social and national – in which the vocabulary of ‘the people’ and its constituent power is invoked. The invocation of the ‘will of the people’ and its constituent power in these arenas is associated with different assumptions, risks and implicit ideational trade-offs that must be laid bare. A contextual approach to constituent power counsels caution in dignifying pro-democratic constitutional transformations with the name of ‘the people’. It invites those who theorize constituent power with social struggles in mind to rebalance their attention to constituent power – and devote more attention to imaginaries and strategies that minimize moral hazards implicit in the vocabulary of peoplehood and to maximize the likelihood of the new order’s survival. Finally, a contextual approach rejects the role for constituent power in national struggles, arguing that constitutional theory is incapable of arbitrating between competing assertions of popular sovereignty. In the final part of the paper, I defend the contextual approach against the theoretical interventions currently on offer, and gesture towards its potential in crafting a provincialized constitutional theory.

This article seeks to address China’s entrenched censorship regime in the constitutionalist dimension of international law. First, the article probes into China’s censorship regime and the way it is linked to the country’s foreign policies. Second, the article explores the tension between China’s national censorship regime and international law. Such tension is rendered sharper than ever in the context of fragmented international law, as exemplified by two UPRs of China and two WTO rulings. Finally, the article advances a constitutionalist premise that eventually China’s self-motivated step into the fragmented domain of international law could boomerang against China’s censorship regime. As the international standards of freedom of expression are evolving into a fundamental right with constitutional status, the functional interrelatedness between different subsystems of international law gives rise to the accountability of state actors, which in turn compels them to comply with universal rules.

The article attempts to illuminate how the concept of accountability is diversely shaped and signified in the theoretical legal discourse. It engages in a threefold mapping review: (i) it portrays, according to the basic divide between the angles ‘within the state’ and ‘beyond the state’, the geographical and functional contexts in which real-world political accountability mechanisms exist and interact; (ii) it interprets an influential legitimating discourse that is being used as a benchmark to appraise institutions and political processes beyond the state – the Global Administrative Law project (GAL); (iii) it highlights how this sort of accountability discourse is tied with demands for legitimacy in global governance that cannot be detached from the old political ideals. Largely oriented towards due process, I argue that the GAL project, in order to maintain a normative appeal, should not ignore larger political ideals, however controversial they might be. Otherwise, it remains a manipulable and hence unreliable cause to be endorsed.

This article raises the question of how the evolution of constitutional structures in international history can be conceptualized and narrated. This question is nurtured by the divergent historical accounts found in the literature on global constitutionalism and the historical-comparative literature on international societies. Although both literatures have so far largely ignored each other, they share a number of common conceptual problems and should therefore engage in a dialogue. The article sketches out the contours of such a dialogue to reveal the insufficient sensitivity of both literatures to the historicity of constitutional structures as well as their inherent political dimension. This article proposes to conceptualize constitutional structures as a set of fundamental and prioritized principles and rules that serves as a framework for the self-ordering of relations between polities. It thereby differentiates between a meta-constitutional and a legal-constitutional dimension and proposes seven analytical tools for more nuanced and empirically sensitive constitutional histories of interpolity relations. Such a historical perspective helps to account for the conditions of emergence as well as to delineate the novelty of contemporary global constitutionalism.

The paper presents a theory of the moral structure of international human rights. It proceeds by drawing on recent scholarship on the philosophy of national constitutional rights, which has shown that there is now an emerging global consensus on certain structural features of constitutional rights; in previous work I have summarized this under the label ‘the global model of constitutional rights’. Starting from the theory of rights underlying the global model, the paper asks what modifications, if any, are required to turn that theory into a suitable theory of international human rights. In particular, it examines the widely held view that international human rights are more minimalist than national constitutional rights. Discussing recent work by Ronald Dworkin (on political/constitutional versus human rights) and Joseph Raz (on legitimate authority versus national sovereignty), the paper concludes that it is not possible to make rights more minimalist than they already are under the global model. It follows that the moral structures of national constitutional rights and international human rights are identical. The final section of the paper examines some implications of this result, addressing the issues of the workability of the proposed conception of international human rights in practice, its point and purpose, and discussing the obligations of states to participate in international mechanisms for the protection of human rights.

We can observe some developments that indicate a further strengthening of human rights and the rule of law even after 2001. These developments are puzzling as they occurred despite largely unfavourable scope conditions. This article offers an account of these developments that focuses on dynamics endogenous to the law. These internal dynamics provide a causal mechanism that sets in once a certain threshold of legalization has been reached. We employ the Hartian notion of secondary rules which we think is an especially helpful conceptual tool to analyse the endogenous dynamics of legal systems. To the extent that law is programmed towards consistency, secondary rules become necessary in an environment of rapidly increasing legal density to govern the complexity resulting from this proliferation of norms. Upholding consistency is necessary to maintain the autonomy of law in a Luhmannian sense and the ‘morality’ of the legal system in a Fullerian sense. Our goal is to show this and at the same move beyond an argument of system or normative functionality by identifying causal mechanisms that can explain the law’s built-in drive towards secondary rules, and that are in accordance with broader social science theory. We use some insights from cognitive psychology to develop these causal mechanisms further. While testing these causal mechanisms would be beyond the scope of this paper, we hope to provide the conceptual tools for future empirical research on the dynamics of secondary rule-making and offer some empirical illustrations to demonstrate how dissonance reduction operates in practice.

Jean L Cohen’s impressive new volume argues that the existing global order’s own internal attributes point the way to the possibility of attractive as well as realistic institutional reforms. Global dualism, she argues, suggests the advantages of constructing non-statist global federations, in which sovereign states would cooperate in far-reaching ways to tackle common problems, in conjunction with a ‘low-intensity’ – yet potentially path-breaking – constitutionalization of global governance. If properly achieved, such reforms could produce a global order better able to preserve legality, protect rights, and allow for far-reaching political autonomy. This review chiefly focuses on the author’s attempt to link her normative and political ideas, and especially her ideas about constitutional pluralism and global federations, to her analysis of the existing global order. Despite the many virtues of her reform ideas, they sometimes embody unfairly hostile views of cosmopolitan political and legal aims. Unfortunately, Cohen has not sufficiently responded to political and institutional cosmopolitans who seek potentially more far-reaching alterations to our global order than she deems desirable.