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

Leipzig 1989: dissolution of the East German state people or Staatsvolk – Karlsruhe 2020: dissolution of the German people – Courts and the people as a neglected constitutional relationship – Bundesverfassungsgericht's versions of the people – Analysis of the concept of people – Forms of action – Political people breaks down into two: original and electoral people – Marbury v. Madison – Duality as a matter of doctrine and principle – Duality in Lissabon Urteil – Conflation and reduction of authority to vote – Subordination of electoral to original people – The Court's logic pushed into motion – Exposing the constitution

Nation-state formation – Holy Roman Empire – Dissolution and realignment – Spain, fragmented – Reconquista – Charles V – Wars of succession – Centralisation under house of Bourbon – Napoleon – Spanish war of independence – History of the Cortes – Constitution of Cádiz – Weakness of Spanish Constitutionalism – German Confederation – Monarchical principle in Vienna Final Act – Old and new ideas of sovereignty – Metternich and fear of revolution – March revolution – Bismarckian empire as constitutional monarchy – Degeneration of the Reich – Exit the Kings – Enter Juan Carlos

On 22 December 2009, the Grand Chamber of the European Court of Human Rights (hereafter: the Court) issued a judgment on the applications filed by two citizens of Bosnia and Herzegovina, Mr Dervo Sejdić and Mr Jakob Finci. It found a violation of their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms and under the Protocols to the Convention. Bosnia and Herzegovina had violated the applicants' rights under Article 14 of the Convention in conjunction with Article 3 of Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms and under Article 1 of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’

On 22 November 2005 the European Court of Justice (hereafter, the Court) rendered its Mangold-ruling on Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (hereafter, Directive 2000/78). The most striking part of this judgment, rendered in a private dispute, was the following conclusion:

Community law and, more particularly, Article 6(1) of (…) Directive 2000/78/EC (…) must be interpreted as precluding a provision of domestic law such as that at issue in the main proceedings (…) It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.

The judgment evoked a great amount of criticism from the media, academia, several advocates general and the member states.

Post 9/11 debate – John Locke important reference – Modern notion, transformation of sovereignty – From legal to political nature of the exception – From temporary to permanent – From preservation of realm to defense of life – Change of the experience of time – Locke ambivalent, transition to modern understanding – Necessity, trust and resistance – Logic of exceptionality – Locke's remaining relevancew