Digital constitutionalism has been in vogue in recent years. A series of journal articles, edited collections and monographs that front the catch term have mushroomed. This has, in turn, inspired a growing body of critical scholarship that questions the normative and theoretical coherence as well as epistemic value of digital constitutionalism. Critics deplore the use of the age-old notion of constitutionalism to describe what they consider to be mere regulatory and self-regulatory initiatives which do not meet its well-established core normative minimums. In casting digital constitutionalism in this light, critics present it as a project driven primarily or hijacked by private sector actors, namely big digital platforms. This article seeks to challenge and bring some nuance to such recent sharp criticisms of digital constitutionalism. By positioning its origins and evolution in the digital bill of rights movement, it makes the case for reimagining digital constitutionalism as a discourse. The article thus hopes to rehabilitate and clarify the role and epistemic value of digital constitutionalism as a discourse that is an inchoate, gradualist and fundamentally hortatory. In a novel approach, it argues that framing digital constitutionalism as a discourse depicts accurately its ontological and normative dimensions but also attends to the concerns of its detractors.

Salient normative status dimensions, or the socially significant and widespread ideational bases on which states seek to be viewed positively in international societies, pattern inter-state relations and signal fluctuating values underpinning an international order. Their dynamics, however, are not well understood. This article introduces an analytical framework to study relations between issue salience and status dimension salience in an international society over time. To what extent have democracy, human rights, economic development, social development and fighting poverty, gender equality, and environmental protection gained, lost or retained salience – both as issues and as sources of states’ domestic-level social identifications? Empirically, the article analyzes trends in the salience of issues and of normative status dimensions in the six above-mentioned issue areas, using manually-coded content analysis and automated text analysis of United Nations General Assembly (UNGA) General Debate (GD) speeches between 1978 and 2023. Findings include that there has been an expansion of the characteristics, efforts and aspirations with which state representatives in this venue express their states’ positive social identities, adding new layers to the normative foundations underpinning international order.

This essay proposes a novel framework for conceptualising climate politics through the lens of maritime custom. Drawing on A. W. Brian Simpson’s study of Regina vs Dudley and Stephens (1884) and Cătălin Avramescu’s intellectual history of cannibalism, it critically examines ‘providential’ and ‘catastrophic’ lifeboat metaphors in political thought. Despite their apparent opposition, these metaphors share common assumptions rooted in natural law traditions. As an alternative, the essay introduces the concept of the ‘commonist lifeboat’, grounded in maritime custom, class consciousness and environmental encounters. Inspired by historical practices of survival and mutual aid at sea, this approach suggests principles for addressing climate adaptation through bottom-up customs rather than top-down theoretical solutions. Three brief illustrations address climate policy’s intersections with property law, criminal law and international human rights law. This approach ultimately offers a historically informed perspective on climate crisis challenges, reconciling consequentialist arguments with concerns for dignity and consent.

During the COVID-19 pandemic, governments worldwide invoked the ‘precautionary principle’ to justify policies designed to protect public health. This principle holds that the state may act proactively to avert harm where there is factual uncertainty about that harm and the efficacy of policies proposed to mitigate it. Many of the policies introduced during the pandemic limited citizens’ constitutional rights. This article accordingly analyzes how the precautionary principle can be integrated into the proportionality doctrine courts use to assess the validity of rights limitations. As our case study, we take the jurisprudence of the Supreme Court of Canada and its globally influential Oakes proportionality test. When articulating the test in the past, the Court has grappled with the need to defer to laws that pursue important public objectives when the evidence underlying those policies is indeterminate. However, it has been criticized for not creating detailed guidelines for when judges should defer, which is said to breed arbitrary, results-oriented decision-making. We update this criticism by showing that it continues to apply to judgments of lower courts in Canada that have followed the Court’s proclamations to evaluate laws that limit constitutional rights to combat COVID-19. We then construct the requisite guidelines by drawing analogies with existing legal principles found in tort and criminal law. We argue that in contexts of factual uncertainty, the degree of judicial deference should vary according to the gravity and likelihood of the harm the government seeks to prevent. This risk-based framework restrains judicial subjectivity and illuminates how precaution should operate at each stage of the proportionality test. We further argue that it can assist courts across jurisdictions when incorporating precaution within proportionality because, unlike approaches to this problem offered by other comparative constitutional scholars, it is suitably modest and avoids excessive revision of accepted proportionality principles.

Reflecting on the Islamic law–secular law balance in past Afghan constitutional regimes and contemporary Taliban rule, this paper contextualizes Afghan constitutionalism in a broad spectrum of constitutional traditions present in other Islamic law states (ILS). Though the Taliban are reticent about their plans for a constitutionally-anchored society, similar to processes elsewhere, the organization’s previous drafters relied upon the country’s previous constitutional regimes and on other countries’ constitutions. Though necessarily aspirational, we argue that taking lessons from the Taliban’s history, Afghanistan’s own rich constitutional tradition, and contemporary ILS’ approaches—combined with international cooperation—there may be a way forward for a Taliban-led Afghanistan: one grounded in a stable constitutional order that protects the dignity of Afghan people. But since the Taliban regained control of the country, its people have endured extreme social and economic hardship. The ongoing crisis cannot be ignored. This paper does not seek to disregard or minimize Taliban-induced atrocities; rather, by exploring the history of Afghan constitutionalism through a different lens, it looks to provide a building block for a future, more stable solution. While the existing scholarship focuses mainly on the current Taliban practices, we examine past Afghan constitutions and propose the potential for specific legal solutions in the context of the country’s robust constitutional tradition. We rely on qualitative and quantitative data in analyzing the nexus between secular law and Islam-based constitutional language, highlighting certain trends and patterns. In an important way, therefore, our research places the Taliban efforts at constructing a legal system as part of an evolving—however jolted by the Taliban—constitutional process.

In contradistinction to totalitarianism, Claude Lefort theorised a democratic form of society as one primarily characterised by indeterminacy, absence of ground, and by extension openness to the event. In maintaining this form of society, Lefort reserved a key role for human rights. The aims of this paper are twofold: first, I argue that, despite the fact that Lefort never developed a theory of constitutions, an important role can nonetheless be ascribed to them. I hypothesise constitutions to be key in democratic society’s symbolic representation of itself to itself. Second, I then examine what the repercussions are for this idea when Martin Loughlin’s account of constitutionalism is taken into account. Loughlin’s argument suggests that, while constitutions may have been important safeguards against totalitarianism, constitutions today threaten to become total themselves. I conclude by indicating the populist response as a point of convergence between Lefort’s and Loughlin’s analyses.

This article seeks to understand the evolving democratic legitimacy demands of the United Nations Framework Convention on Climate Change (UNFCCC) by reflecting on the challenges of catering to a globally affected public and enhanced participation opportunities given to some highly affected groups. It argues that the principle of democratic equality at a global scale fails to take account of inequities in affectedness and power within the demos and, instead, an approach that strives towards a principle of proportionality based on degrees of affectedness could enhance the UNFCCC’s democratic legitimacy. This builds on existing scholarship identifying a turn to an affectedness paradigm in international institutions more generally and the emerging influence of affected peoples organisations, characterised by the more direct forms of representation they facilitate and emphasis placed on the affectedness of their constituents to claim recognition and influence. The normative appeal of giving enhanced participatory opportunities to those most affected by climate governance is weighed against its challenges and risks. It is concluded that, despite conceptual and practical difficulties connected to the subjective nature of affectedness, a pragmatic approach that treats such a proportionality principle as a democratic ideal to be strived towards could have a legitimising effect on the UNFCCC.

How should democratic communities decide who should belong? Recent debates about issues such as voting rights for prisoners, denationalization policies or citizenship tests raise this fundamental democratic question. While many scholars argue that decisions about citizenship and voting rights should be more inclusive of subjected outsiders and more independent from electoral partisan politics, we still lack institutional proposals for inclusive and independent membership politics. This article contributes to the nascent institutional turn in the debate about democratic membership boundaries. My aim is to show that normative debates about membership politics can benefit from recent advances in democratic theory on sortition-based democratic innovations, constructive representation and systems thinking.

I argue that membership politics could be democratized by introducing a randomly selected political institution, which I call ‘boundary assembly’, that equally represents members and nonmembers and is charged with making binding decisions on a subset of a state’s membership questions. I argue that the strongest objections to empowered randomly selected assemblies (shortcut objection, alienation objection, capture objection, technocracy objection) lose most of their force in the ‘extraordinary’ political context of decisions on membership boundaries. Boundary assemblies cannot ‘solve’ the democratic boundary problem, but they could be a first step toward more democratic membership politics.

This article addresses power-sharing constitutions that include powers of veto wielded by discrete ethnonational groups. Such constitutional arrangements – seen, for example, in Northern Ireland and Bosnia – have often prompted severe deadlock, a problem that in turn threatens democratic functioning and raises the risk of renewed communal violence. We consider the use of ‘umpires’ of power-sharing constitutional systems to vet the use of vetoes and (potentially) to prevent their overuse or misuse. Power-sharing umpires are not uncommon in practice. However, as yet there is little scholarship evaluating how, in substance, power-sharing veto umpires should approach their task. Relying on deliberative democracy theory, the article outlines three forms of ‘deliberative agreement’ that, in principle, deeply divided groups may reach in the course of policymaking. It goes on to explain how existing proportionality doctrines drawn from federalism and rights cases can be imported into the power-sharing context to ‘scaffold’ these broad ideals. This approach, it is argued, may provide a more detailed, coherent and practically workable approach to umpiring power-sharing constitutions.

Lon Fuller’s fictional Purple Shirt regime, Victor Orbán’s illiberal democracy in today’s Hungary and the Kaczynski brothers’ recently ended unconstitutional republic of Poland are three examples of a ‘broken democratic polity’ in which many aspects of the rule of law and constitutional democracy have been compromised and cannot be fixed without a qualified majority, even if democratic forces come to power. In this article, I address the question of whether illegal state action of a democratic government is an appropriate means of restoring legitimacy to what I call a ‘broken’ polity. Put differently: Is it morally defensible for a new democratically elected government to override and replace the rules of illiberal constitutional reform in violation of formal legality? If so, under what conditions? I argue that a positive answer to this question is justified if we adopt a neo-republican approach to politics and legitimacy.

This article details the concept of constitutional embedding and demonstrates its utility in four country-rights cases. Constitutional embedding refers to the process by which some understanding of constitutional rights comes to take root in everyday life, moving from words on paper to something that shapes expectations and behavior. The degree of constitutional embedding varies along two dimensions: social and legal, or how individuals and groups operating in the social sphere understand and relate to constitutional rights, and how those working in the formal legal sphere do so. In a global political climate defined by democratic backsliding, powerful vested interests, and backlash against moves toward equality, the status of constitutional rights and how they become and remain embedded is doubly important. The constitutional embedding framework highlights how interactions between legal elites and ordinary citizens constitute the extent to which constitutional law influences daily life. The framework has broad applicability across contexts and rights domains.

Constitutions are the most important legal foundation of politics. At the same time, the existence of a viable parliamentary opposition has been regarded one of the most distinctive characteristics of democracy. Bringing the two perspectives together, the principle of opposition can be constitutionalized to gain the highest status. Importantly, we refer to norms recognizing the opposition as such. Such counter-majoritarian rules are distinct because they empower opposition forces irrespective of their seat share and explicitly acknowledge that power should not be monopolized. While our subject has attracted little interest from comparative constitutionalists, it is too important to be overlooked. This is particularly true for autocratizing regimes where incumbents seek to use legislative lawfare to repress their opponents. Empirically, the study focuses on Africa, which proves revealing for various reasons. Among others, it addresses the critique that constitutional law studies often concentrate on usual suspect cases used to reveal purportedly universal insights. Our exercise in comparative constitutional law leads to two main conclusions that go beyond the continent. First, while we find a high number of opposition-related rules, the variation in design details and scope suggests that referring to the principle of opposition in an abstract manner is somewhat obscuring. And second, the obvious virtues of constitutionalizing dissent face noteworthy pitfalls since pertinent rules can lack legal clarity and even suppress dissent. Hence, the dividends of nominally democratic rules might be smaller than expected even if constitutional designers sincerely intend to fully uphold them in practice.