Abstract European migration governance has become structured around crisis-driven managerialism. Focusing on the EU–Tunisia Memorandum of Understanding, this article argues that migration crises legitimise executive-led, efficiency-oriented governance and the increasing use of soft law instruments. It demonstrates how this managerial turn restructures the legal conditions of EU external action by displacing parliamentary oversight, judicial review, and ex ante human rights assessment. Through analysis of the role of Team Europe, the European Parliament’s marginalisation, and the European Ombudsman’s inquiry, the article shows that softification produces a de facto suspension of constitutional guarantees, with structural implications for the EU rule of law.
Abstract This Commentary choreographs corporate fiduciary duty law in the United States against the backdrop of political-economic theory, and posits that such law is the heart of capitalism. Theorists invoked chronologically are Adam Smith, Karl Marx, Friedrich Engels, Max Weber, Antonio Gramsci, Milton Friedman, and David Harvey. Roadmap cases revisited are Dodge v. Ford Motor Co. (1919) , Unocal Corp. v. Mesa Petroleum Co. (1985) , Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. (1986) , eBay Domestic Holdings, Inc. v. Newmark (2010), and McRitchie v. Zuckerberg (2024). The golden thread throughout is shareholder primacy: in other words, the law’s serving capital. The law, however, is not only a reflection of society but also an expression of societal aspirations that sometimes go beyond the existing social system and signal change. Someday, the law might evidence negation of the negation, and the powers-that-be will be obligated to act as fiduciaries for workers, communities, and (even, perhaps) the environment, rather than for capital.
Abstract The study proposes to restore visibility to a frequently overlooked dimension of Latin American constitutionalism: the Afro-descendant component. It aims to highlight the impact of this dimension in constitutional texts and warn against the risks of normative assimilation, especially in relation to legal models designed for indigenous peoples. The study begins with a short review of the so-called “new” Latin American constitutionalism and its “Andean” component—the one most higlighted by scholars (and critics). Then, it focuses on the Afro-descendant perspective, identifying it as a relevant element of constitutional developments in the region. From a comparative perspective, two trends are identified: one deriving the protection of Afro-descendant communities from that of indigenous peoples, and another entailing an autonomous and differential recognition. The implications of the latter model in terms of territorial rights are examined, taking the Colombian case, in particular, as a reference. The study concludes with some comparative remarks on the place of the Afro-descendant of constitutionalism in the Latin American landscape and its relationship with the Andean and European perspectives.
Abstract Cultural rights received increasing attention in the 1990s, but still, there is a pending task to implement them fully. This article examines the historical, ideological, and practical factors that have contributed to their underdevelopment. Five reasons are explored: the separation of civil and political rights and economic, social, and cultural rights in two covenants; the new developments in economic and social rights; the risk and fears of cultural relativism in the universality debates; the question and concerns over demands of self-determination; and the lack of awareness of culture’s role in human development.
Abstract This dialogic review examines Tiziano Bonini and Emiliano Treré’s book Algorithms of Resistance: The Everyday Fight against Platform Power alongside Antimacchine. Mancare di rispetto alla tecnologia [Anti-Machines: Disrespecting Technology] by Valentina Tanni. Bonini and Treré theorize algorithmic agency through the concepts of moral economy and everyday tactics, while Tanni addresses technological disobedience through the creative misappropriation and deconstruction of technological objects. Read together, the two works challenge representations of users just as passive subjects of platform power and show how workers, creators, activists, artists, but also ordinary users can appropriate technological systems in various ways. However, these forms of agency remain precarious: they are not equally accessible, are vulnerable to co-optation, and, above all, are often limited in scope and not sufficient to significantly transform the infrastructures they oppose. Examining examples of agency reveals the failure of a purely formal conception of private autonomy, and the subsequent need to move toward transparency, interoperability, and collective forms of governance as necessary conditions for more effective digital self-determination.
The Constitutional Tribunal takeover by the Law and Justice party is a spectacular example of constitutional crisis. In a short period, without formally amending the Constitution, the Tribunal was transformed from a respected yet benevolent institution into a rubber-stamp body subordinated to the ruling majority. This article examines the exogenous and endogenous factors contributing to CT paralysis and its ultimate decline. It analyses the interplay between the CT resilience stemming from the said factors and the resistance of individual constitutional judges and other agents that attempted to counter the CT takeover. The exogenous factors include the unconstitutional actions of the PiS party, the consolidation of power, the lack of inter-institutional trust, the dominant constitutional culture, and the post-communist legacy that contributed to the weak societal entrenchment of the CT. Endogenous factors include the poor design of the judicial appointment process, the CT President’s abuse of competencies, and the weak societal responsiveness of former constitutional judges. The resistance actions tried to remedy weak resilience. We examine the internal agency of judges, both on-bench and off-bench and external support from the legal community and civil society. The article concludes with a reflection on the current political impasse, the future of the CT, and the consequences of its collapse for the Polish legal system in general and the ordinary courts in particular.
This contribution examines the evolution of the Constitutional Court of Benin (CCB) as a critical guardian of constitutionalism, political stability, and human rights in the context of Benin’s democratic transition following the 1990 Constitution. Next to actively defending the constitutional order and being resilient against executive overreach, the CCB also expanded its authority by amending the constitution to address anticipated threats to democratic principles. However, vulnerabilities in its institutional design, particularly concerning the appointment procedure and terms of office, rendered it susceptible to political manipulation. These design flaws were compounded by public mistrust of constitutional reforms, thwarting efforts to rectify these shortcomings. 25 years after its inauguration, the CCB was co-opted by political elites, culminating in its diminished efficacy. Despite this decline, the CCB’s early legacy and its partial safeguards offer valuable lessons for constitutional resistance and resilience.
This article conceptualizes constitutional court (dis)empowerment as a process impacting constitutional court resilience. It introduces a two-dimensional typology of mechanisms of exogenous and endogenous empowerment and disempowerment that points to the centrality of judicial and broader political community agency to an extent independent from formal competences of the constitutional court. Subsequently, the article explores the applicability of the four mechanisms in the case of the Slovak Constitutional Court. In Slovakia, the success of an illiberal majority in the 2023 general elections amplified concerns over the Constitutional Court’s capacity to resist de-democratization. These concerns spread despite Slovakia having overcome a period of semi-authoritarian regime in 1994–1998, whereby the formally powerful Constitutional Court was seen as a pivotal institution contributing to such an outcome. The Slovak political development yields lessons for constitutional court resilience amidst de-democratization. Proposing a combination of research methods (contextual analysis and insights from semi-structured interviews) for collecting and analyzing empirical data to study the four mechanisms, the article emphasizes endogenous disempowerment as the least studied mechanism so far. The findings highlight several gradually self-imposed limits by the Slovak Constitutional Court, that may be amplified due to its continuing – albeit decreasing – degree of closedness to international and non-doctrinal scrutiny. Ultimately, the pivotal cases reaching the Court after the 2023 elections due to the attempts of power concentration by the illiberal majority show indications of a critical juncture testing the SCC’s resilience.
Sri Lanka’s supreme court has approved five constitutional amendments over the last two decades. This constitutional back and forth, marked by contradictory projects espoused in the amendments yielded charges of the court’s failure to resist executive power. The eighteenth and twentieth amendments were projects of abusive constitutionalism and de-democratisation, and the court’s review of these amendments was characterized by capitulation in the former, and qualified resistance in the latter. This paper locates the Sri Lankan experience within comparative scholarship on strategic judicial empowerment. It then canvasses the outcomes in these cases, and advances three considerations that may explain the court’s response in these amendments – public legitimacy of the amendment, the court’s interest, and political cost. These considerations are demonstrated through the court’s reasoning and conclusions on key provisions in these determinations. A combination of these considerations lends greater coherence to what is otherwise a confusing body of jurisprudence.
This article studies the conflict between public and private enforcers in Chilean consumer class actions. The paper reviews the history of the class action procedure, the unexpected changes to it introduced by a constitutional challenge, the subsequent increase in private lawsuits, and the ensuing conflict between public and private enforcers. Coordinating class actions’ enforcement is inherently challenging due to their differing funding and varying willingness to settle. As the Chilean case shows, there is no comprehensive catch-all solution to this problem. However, these difficult statutory choices should not hinder consumers’ redress. Hence, the article suggests that Chilean judges should proactively use existing legal provisions regarding the ‘common counsel’ to facilitate settlements, thus avoiding protracted court cases that can last more than a decade.
The emergence of the notion of the global South has revitalized the discipline of comparative law. However, most academic studies continue to discuss theories and values established by European law. It reinforces the idea of sites of production of legal thought (in the global North) and sites of reception of legal thought (in the global South). In this article, the contributions of the Arhuaco Indigenous people’s curative justice system to the broader legal system are highlighted through fieldwork conducted in Colombia. This interdisciplinary work sheds new light on ways to rethink criminal law, seeking a truly therapeutic, holistic, and community-based justice system.
The Romanian Constitutional Court is a specialised institution, independent from all three powers in the state. While this framework offers positive premises as regards its potential resistance to autocratization, the Court failed to live up with such expectations during the illiberal backsliding of 2017–2019. On the contrary, the militant decisions it issued on the sensitive occasion of the 2024 national elections have been so unexpected that they divided the national legal epistemic community, being perceived as illegitimate by part of the Romanian society. The paper investigates the possibility to assess such shortcomings through the concepts of ‘resistance’ and ‘resilience’.
The article examines the impact of autocratization on the resilience of the Hungarian Constitutional Court following the Fidesz government’s substantial alterations to the institutional design of constitutional review. The analysis of the captured Court’s jurisprudence explores various judicial strategies that serve the interests of the autocratic regime. It reveals how abusive constitutional review has evolved in both scale and degree, resulting in the Court’s active role in dismantling the remaining channels of constitutional resilience, while simultaneously contributing to the façade of legalistic legitimacy. The article argues that the institution, once internationally renowned, became a reliable partner of the autocratic government.
The paper analyses both EU and Italian legislation concerning remote participation in shareholders’ meetings of public limited companies . The principal European measure in this field is the Shareholders’ Rights Directive (2007/36/EC), which, under Article 8, provides for electronic voting and remote participation in the shareholders’ meeting. However, the Directive applies exclusively to listed companies . The relevant provision under Italian law is Article 2370, paragraph 4, of the Civil Code, which has been amended also in light of the transposition of the aforementioned Directive. Italian law requires that such electronic means may be used only if expressly permitted by the articles of association , whereas the Directive leaves Member States free to avoid imposing such a condition. It should be noted that Italian legislation still includes provisions adopted during the Covid-19 pandemic, aimed at facilitating the use of technological tools in shareholders’ meetings. This paper therefore compares such emergency legislation with the corresponding provisions of the Civil Code, with a view to identifying potential efficiency gains in corporation’s life.
The article critically examines how a comparatist’s positionality and purpose shape the design and outcomes of comparative legal research. Amid ongoing debates in comparative law – pitting functionalist against cultural approaches, or sameness-seeking projects against difference-embracing ones – this article shifts the focus toward a more foundational concern: the motivations behind comparison and the discursive contexts in which it occurs. While questions of “how to compare” dominate methodological discourse, this article insists that we must first confront “why we compare” and “to whom we are speaking.” These inquiries are not peripheral but central to the integrity and potential of comparative legal scholarship. The article argues that every comparatist operates from a particular legal and cultural position, and with a specific communicative aim: their positioned purpose. This purpose not only motivates the comparative endeavor but also determines how domestic and foreign legal systems are selected, interpreted, and related to each other. By ignoring their own motivations and situated perspectives, comparatists risk designing methods that are ill-suited to their actual goals and miss out on the critical potential that comparison uniquely offers. In reclaiming a central insight of critical comparative scholarship, the article rejects the illusion of methodological neutrality or objectivity. However, it also challenges some prevailing assumptions within the critical camp, particularly the tendency to conflate the positionality problem solely with ethnocentrism, and to treat a turn to cultural difference as an automatic corrective. Positionality manifests in more nuanced and varied ways, depending on whether one is speaking from or to the Global North or Global South, for example. The same methodological risks (ethnocentrism and status quo bias) play out differently across contexts, making positionality a dynamic rather than monolithic concern. The article is structured in three parts. Part 1 introduces the problem of positionality and explores how its neglect leads to recurring fallacies in comparative research. Part 2 presents the idea of comparative projects as purposeful constructions, shaped by the comparatist’s discursive and institutional location. Part 3 examines how the specific contours of ethnocentrism and status quo bias vary with the comparatist’s positioned purpose, demonstrating why there can be no universal fix or one-size-fits-all critique for methodological flaws in comparative law. Ultimately, the article argues that positionality should be neither denied nor lamented, but embraced as a source of methodological strength. Comparative law, because of its relational nature and critical distance from doctrinal orthodoxy, is especially well suited to turn positionality into a productive resource. Rather than impeding meaningful comparison, a reflexive understanding of one’s position and purpose enables more contextually attuned, critically engaged, and methodologically sound comparative work.
This article explores constitutional court (CC) resilience in a comparative perspective, across nine national jurisdictions and some transnational judiciaries, to help identify sources and approaches enhancing CC capacity to resist autocratization. It attempts to interpret the individual contributions to the special issue, pointing to a set of factors impacting CC resilience. Some articles highlight the essential role of structural conditions, while others rather emphasize the importance of institutional development and agency. The article then outlines avenues for further research of CC resilience, which should engage with new challenges, including renewing democracy through deliberation and trust-building.
This article deals with the future of money regulation in the EU. Its originality lies in applying media theory to frame a governance model that recognises and fosters an evolving social ontology of plural monetary practices. For this purpose, the study starts from the description of money as ‘market language’ and the acknowledgement of the co-existence of different (digital and non-digital; public and private) monetary practices as a de facto reality in the EU. Embracing an ontology-sensitive approach, the article argues that the principle of subsidiarity can help shaping the future of EU money regulation by promoting a sound ‘conversation’ between the specific identities of these different ‘market languages.’
This article explores on-bench judicial resistance within an electoral autocracy by analyzing the Turkish Constitutional Court’s struggle to protect opposition parliamentarians. It aims to present a nuanced analysis of the Turkish Constitutional Court case law under pressure, examining its role in confronting the regime. The cases discussed involve Kadri Enis Berberoğlu, Ömer Faruk Gergerlioğlu, and Can Atalay, who were prominent public figures before their political mandates due to their roles in civil society resistance as a journalist, a medical doctor, and a lawyer. The article investigates how, to what extent, and under what conditions the Court has legally mobilized to defend the political opposition in notable cases involving Berberoğlu, Gergerlioğlu, and Atalay. It also highlights the conflict between the Court and the criminal judiciary, as well as the interplay between autocratic and democratic partnerships in a non-democratic context.
India and South Africa have experienced comparable levels of democratic decline over the last 15 years. The South African Constitutional Court, however, has shown greater resilience in the face of this process than the Indian Supreme Court. This article seeks to explain this outcome by reference to three sets of factors: structural, institutional and agentic. It finds that the main factors conditioning the South African Constitutional Court’s stronger performance are legal-cultural factors associated with the nature of the anti-apartheid struggle, the judicial appointments model, and the Court’s tendency to shore up democratic institutions rather than seeking to displace them.
