The core promise of the modern concept of constituent power is to make the people-as-the-governed active participants in the shaping and ruling of political regimes. Its development was related to the consolidation of the modern state. Current circumstances, though, raise the issue of the possibility of a non-state based concept of constituent power, and of appropriate constituencies. The article argues that dominant views have made the people-as-the-governed capacity to act dependent upon state sovereignty, whereas the latter actually was informed by theses antithetical to popular sovereignty. In order to show how a non-state based concept of constituent power may be articulated, the article builds on a critique of Martin Loughlin’s attempt to capture the structure of beliefs that frames the idea of the state and the function of constituent power within that structure. The first part of the article focuses on the main elements of such a theory in order to situate its basic assumptions about constituent power. The second discusses the issues raised by such a conception, amongst other things as to the status granted to the structure of beliefs that frames the idea of the modern polity in Loughlin’s perspective; this discussion opens the way to an alternative conception of constituent power, one that stresses that the core fact of the political is that people are always already embedded in relations of power that are not restricted to the state, relations in the course of which they strive to achieve their civic freedom. Political power is not necessarily made public until the people-as-the-governed, in challenging the boundaries of the polity, claim it.

This article seeks to confront the contemporary condition in which cosmopolitan law – meant to resonate as something citizens across borders author and live together – instead is increasingly a source of detachment, confusion, and alienation. Taking the European Union’s twin crises of democratic legitimacy and social solidarity as its starting point, the article offers a critique of existing approaches to supranational constitutionalism that are insufficiently responsive to this disenchantment. The article’s purpose, in turn, is to present perspectives from philosophy and legal theory that might promisingly recast, in this new cosmopolitan frame, our thinking about law as a mode of social integration. Specifically, the article’s central claim is that time – as a seldom-examined, yet essential dimension of law – is closely linked to law’s cosmopolitan potential and, concurrently, to the motivational resources for cosmopolitan solidarity. It is through a sensitivity to time – our awareness of the past passing into the present in anticipation of a future – that citizens can meaningfully hold together cosmopolitan law’s dual, ostensibly divergent hopes: shared commitment and self-decentring plurality. Drawing on Seyla Benhabib’s ‘democratic iterations’ and its roots in the work of Jacques Derrida and Robert Cover, the article elaborates the following two concepts: ‘cosmopolitan promise-making’, a diachronic form of cosmopolitan political agency; and ‘cosmopolitan legal narrative’, a set of plural, evolving constitutional interpretations open to mutual engagement over time. These concepts, in temporalizing our understanding of political identity and constitutional law, together serve to underwrite a cosmopolitan legal order without also thinning solidarity’s social and democratic foundations. The article concludes with a critique of the contemporary role of European courts and a concrete vision for the cosmopolitan development of EU jurisprudence. Reinterpreting Article 4(2) TEU as the right to constitutional narrative, the article advances new modalities and normative aspirations for constitutional interpretation beyond the nation-state.

Conflicts of competences are ubiquitous in law. They represent a serious challenge, in particular, to global constitutionalism and institutional cosmopolitanism. This article argues from a participant’s perspective, following a normative-analytical approach. It develops new taxonomy of competence conflicts. In essence it defends a flexible legal solution to competence conflicts that is inspired by the idea of practical institutional concordance and provides a middle way between strict legal solutions and political appeals for dialogue. Legal authority beyond the state and competence admit of degrees and variability, depending on the legal and factual circumstances of the case at issue. This understanding is enabled by interpreting competences as formal principles. Drawing on research by Alexy and Kumm the details of balancing competences as a distinct legal method are elaborated, using a triadic scale and various factors for determining the concrete weight of a competence. The theory of balancing competences is then applied to the example of competence conflicts in the multilevel system of fundamental rights protection in the EU. In result, a universal but case-sensitive theory is presented that optimally combines flexibility and stability and allows for a pluralist understanding of sovereignty. Institutional cosmopolitanism is thus defended against sceptical pluralism.

International criminal law (ICL) developed in large part from international humanitarian law during the mid-to-late twentieth century. The International Criminal Court (ICC), a permanent institution to investigate and prosecute ICL cases finally was established in 2002. Although widely supported, certain states feared that the ICC would diminish national sovereignty. Yet, in formal legal terms, ICL and the ICC’s Rome Statute are just like other branches of public international law in terms of their relationship with national constitutional arrangements. ICL does not challenge states’ primary executive and judicial powers; it does not introduce any general rights for citizens or particularly onerous obligations for states that are already subject to the rule of law; and its intrusion on national sovereignty is only in evidence when a state’s leaders either are responsible for atrocities or are incapable of protecting their citizens from such atrocities. ICL thus is very different from international human rights law (IHRL), which directly impacts national constitutional arrangements. When ICL does come into play, however, arguably it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power.

This paper offers a revised political conception of human rights informed by legal pluralism and epistemic considerations. In the first part, I present the political conception of human rights. I then argue for four desiderata that such a conception should meet to be functionally applicable. In the rest of the first section and in the second section, I explain how abstract human rights norms and the practice of specification prevent the political conception from meeting these four desiderata. In the last part of the paper, I argue that full-fledged tolerance in the international order – that is tolerance-as-non-intervention and tolerance-as-respect – should be attached to (1) compliance with jus cogens norms and to; (2a) a political community recognizably organized as a community of inquiry that is; (2b) committed to the specification and incorporation or expression of the idea of human rights within its local legal system.