This article examines a unique and under-researched model of constitutional review-non-judicial constitutional review-through the lens of the rule of law. It evaluates the theoretical coherence and practical effectiveness of Ethiopia's unusual system of non-judicial, non-legislative constitutional review. The article argues that this model constitutes an inherently political process ill-suited to vindicating the rule of law and democratic governance. In doing so, it distinguishes between the constitutional (legal) and political dimensions of democracy and associates the former with the rule of law and constitutionalism. Using Ethiopia's constitutional review system as a case study, the article situates the Ethiopian model between the better-known strong forms of constitutional review associated with the United States and continental Europe and the weak-form review associated with Commonwealth systems. It then evaluates the Ethiopian model as an alternative mechanism for enforcing constitutional supremacy and protecting constitutional rights and principles. Drawing on leading theories of constitutional review and on Ethiopia's three decades of experience with non-judicial, non-legislative constitutional adjudication, the article concludes that this form of review is neither theoretically coherent nor practically viable as an alternative to judicial constitutional review.
This article illustrates the impact of a particular interpretation of political rights upon the structural provisions of Latin American constitutions. It describes, compares, and critically examines the rights jurisprudence developed by some courts of the region since 2003 to ease or entirely remove constitutional limits on presidential reelection. This jurisprudence inverted the logic of modern constitutionalism by placing political rights at the service of presidents and distributing power away from the citizens and the other branches of government. These courts made two arguments: in all cases, the protection and expansion of the citizens' right to political participation provided the basis for the modification of constitutional limits on presidential reelection, but some courts additionally claimed that term limits were incompatible with the presidents' rights to political participation and equality. A problematic and distorted application of the pro personae and equality principles of judicial interpretation was at the center of this jurisprudence. Both arguments, however, led to the same result: the political empowerment of the president. This jurisprudence is now dominant in the region and seems to be an integral part of the governments' toolbox for the authoritarian capture of constitutional regimes. The article also describes and examines an alternative jurisprudential approach to presidential reelection that upholds the liberal-democratic commitment of modern constitutionalism to a conception of political rights compatible with the principles of pluralism, political alternation, and the separation of powers. Finally, the article suggests new avenues of inquiry resulting from the logic of presidential empowerment through rights.
The adoption of Hungary's new constitution led to significant polarization among Hungarian constitutional scholars. While the intense scholarly debate of the early 2010s later subsided, recent political developments-such as numerous constitutional amendments and the shift toward illiberal democracy-have reignited academic discourse. This study investigates whether academic opinion remains divided regarding Hungary's Fundamental Law or whether a convergence of views has taken place. Our results indicate a significant decline in support: only two of those who originally supported it have become more supportive, and six have maintained their positions; the middle ground has almost disappeared, with just two remaining; while the vast majority (sixty-five respondents, 86.6%) now hold a critical view of Hungary's constitutional framework.
In this article, I undertake a conceptual analysis of hukum tata negara, Indonesia's equivalent of constitutional law. In acknowledging the agency of the target context, I posit that the "deeper and felt meaning" of constitutional law changes, or vernacularizes, as it travels from one context to another. To foreground this vernacularization, this article draws on the concept of positionality so that the process of explication is more perceptible to the Indonesian sensibilities as a target context. This approach rejects the possibility of a neutral, context-independent perspective and is premised on the assumption that linguistic sensibility is critical to conceptual or philosophical interpretation. This article argues that hukum tata negara is grounded in Indonesia's folk religious sensibility; in other words, human flourishing is influenced by the will and actions of the sacred. This "nonseparation thesis" is Indonesia's truth-ground, the proposition that gives constitutional validity to other propositions. By contrast, constitutional law is embedded in a modern social imaginary that treats the sacred and the secular as separate and distinct spheres. Given these differing ideological assumptions, hukum tata negara is best viewed as a vernacular constitutional law rather than as a faithful rendition of an "original" constitutional law. On a more ambitious note, this article offers a modest contribution to a preliminary exploration of comparative legal theory, grounded in the premise that vernacular conceptual discourse does not rely on Western or home-context resources of meaning.
This keynote address challenges dominant narratives of democratic decline by arguing that, while Western liberal democratic forms may be under strain, democracy itself is evolving in Africa. It contends that formal constitutional architecture-elections, courts, and legislatures-often persists even as substantive democratic content is hollowed out. Against this backdrop, the address advances a conception of democracy rooted in legal empowerment: the capacity of ordinary citizens to understand, use, and shape the law. Drawing on contemporary African political developments and grassroots legal practices, it argues that democratic resilience depends less on institutional form than on the extent to which citizens experience law as accessible and responsive. The address further suggests that African constitutional traditions-particularly the recognition of social welfare as a fundamental duty of the state-offer a deeper vision of democracy than procedural models alone. It concludes by proposing that Africa's democratic future lies not in replicating external models but in developing locally grounded systems of justice that prioritize dignity, participation, and everyday encounters with the law.
Constitutional devolution is often assumed to constrain executive power, particularly in post-authoritarian and hybrid regimes. This article challenges that assumption by showing how decentralization can instead be adapted to entrench executive dominance. Drawing on Zimbabwe as the core case and South Africa as a carefully selected comparator, it develops the concept of authoritarian intragovernmental relations (AIGR) to explain why similar constitutional commitments to devolution produce divergent distributions of power in practice. The analysis demonstrates that the effectiveness of devolution depends not on constitutional text alone but also on how intragovernmental relations are structured, institutionalized, and enforced. It identifies four mechanisms through which devolution may be neutralized under authoritarian or hybrid conditions: constitutional fa & ccedil;ade building, where decentralization is proclaimed but not realized; fiscal chokeholds that maintain centralized control over resources; executive unilateralism enabled by weak or absent cooperation structures; and limited judicial oversight that diminishes the enforceability of constitutional obligations. Zimbabwe illustrates how these mechanisms can hollow out devolution without formal constitutional violation. South Africa, by contrast, shows how entrenched cooperation duties, fiscal frameworks, and judicial enforcement can transform decentralization into a site of contestation even under dominant-party rule. The AIGR framework offers a diagnostic tool for assessing when devolution constrains executive authority and when it instead legitimates its concentration.
This article examines how parliamentary systems that unite legislative and constituent authority within a single body face distinctive risks of constitutional erosion in an age of populism. When the same institution both enacts and amends the constitution, the absence of entrenched procedures or cross-partisan restraints enables majorities to reshape constitutional norms for short-term political advantage. Using Israel as its focal case, the article traces the evolution from the 1950 Harari Resolution through the Mizrahi Bank doctrine to the 2024 Unreasonableness Amendment decision, showing how these developments transformed a provisional compromise into an unbounded exercise of constituent power. Placing Israel in comparative perspective, the article identifies the institutional and cultural factors that determine whether parliamentary constituent power becomes self-restraining or self-entrenching. Building on this analysis, it proposes a framework of procedurally constrained constituent power based on three principles: temporal distance (preventing self-serving reform), consensus and inclusion (ensuring cross-partisan legitimacy), and a substantive requirement that constitutional amendments preserve the democratic character of the state—reinforced by judicial oversight as a procedural guardian. Together, these safeguards, the article contends, provide the foundation for constitutional legitimacy, which depends on process rather than textual rigidity.
This paper focuses on a relatively under-addressed aspect of constitutional review mechanisms: their epistemic dimension. The issue under examination arises from the convergence of two contingent features. On the one hand, some of the arguments used in constitutional review are “fact-dependent”: their correctness depends on the occurrence of certain facts. On the other hand, when evaluating the constitutionality of norms, some high courts adopt a decision-making model with a self-taught profile; a model which overlooks evidential activity. The combination of these features results in a tension that this article seeks to highlight: adopting a self-taught model to resolve “cases of fact-dependence” is incompatible with the rationalist commitment to reducing the number of judicial decisions based on factual errors. The article aims to characterise this tension and elucidate the assumptions that render it problematic wherever it occurs.
Abstract This paper focuses on the study of constitutional derogatory clauses as transitional provisions. In constitutional transition processes, constitutional derogatory clauses order the exclusion and reception of previous infra-constitutional norms that are incompatible or consistent with the new constitutional norms. The general objective of this paper is to determine whether constitutional derogatory clauses facilitate which sub-constitutional norms remain in force following the promulgation of a new Constitution. To achieve this objective, the function, structure, characteristics, and types of transitional constitutional provisions are analyzed. The particularities of repealing norms are summarized as constitutional transitional norms and their variants. The main difficulties highlighted by the authors with the entry into force of a new Constitution and coexistence with pre-existing legislation are acknowledged, as well as the clarity provided by repeal provisions in addressing these issues. It is concluded that the interpretative value of the unnamed derogatory constitutional norms decreases concerning the nominated ones; however, they are equally valuable because they explain the will of the constituent to receive the pre-existing law and ratify the validity of the pre-constitutional legislation until its elimination. El presente trabajo se centra en el estudio de las normas derogatorias constitucionales como un tipo de normas transitorias. En los procesos de transición constitucional, las normas derogatorias constitucionales mandan la exclusión y la recepción de las normas infraconstitucionales previas incompatibles o concordantes, respectivamente, con las nuevas normas constitucionales. El objetivo general del artículo es identificar si las normas derogatorias constitucionales contribuyen a determinar cuál es la normativa infraconstitucional que se mantiene vigente tras la promulgación de una nueva Constitución. Para el logro de este objetivo se analiza la función, la estructura, las características y los tipos de normas transitorias constitucionales. Se sintetizan las particularidades de las normas derogatorias como un tipo de normas transitorias constitucionales y sus variantes. Se reconocen las principales dificultades evidenciadas por los autores con la entrada en vigencia de una nueva Constitución y la legislación preexistente, así como la determinación que aportan las normas derogatorias en la solución de aquellas problemáticas. Se concluye que la determinación que aportan las normas constitucionales derogatorias innominadas decrece respecto a las nominadas, sin embargo, son igualmente valiosas porque explicitan la voluntad del constituyente de recepcionar el Derecho preexistente y ratifican la vigencia de la legislación preconstitucional hasta su eliminación.
Following the Euro crisis, several EU member states enacted constitutional amendments to introduce or reinforce fiscal discipline within their constitutions. Comparative scholarship examining this trend has largely focused on formal constitutional change, adopting a narrow understanding of constitutionalization. At the same time, a comprehensive and up-to-date analysis of how these constitutional fiscal rules have affected fundamental social rights remains lacking. This article addresses that gap by examining the case of Greece, both independently and in comparison with Italy. I make three central arguments. First, the constitutionalization of fiscal rules continues to exert a long-term influence beyond the immediate context of the Euro crisis. Second, informal constitutional change provides a valuable lens for understanding the advancement of constitutional rules of fiscal discipline and their impact on other constitutional provisions. Third, fiscal discipline rules-whether formally or informally constitutionalized-have a persistent constraining effect on the protection and realization of fundamental social rights.
This article introduces a symposium devoted to exploring some of the multiple configurations, or assemblages, between the international and the local in Latin American public law. It proceeds from the premise that interactions between global and domestic legal orders are ubiquitous, yet have often been insufficiently captured in the region's legal scholarship. It identifies three recurring biases in that scholarship: the persistence of the monism-dualism binary, the centrality of the Inter-American Human Rights System, and the predominant emphasis on the incorporation of its jurisprudence by domestic courts. The contributions brought together in this symposium seek to broaden that conversation through situated studies examining how international law -and, more broadly, global phenomena- are appropriated, transformed, resignified, and at times resisted within Latin American public law, which actors drive those processes, and what effects they produce.
The idea that constitutions possess core identities to be preserved across constitutional change and capable of performing an integrative function is the basic premise of this article. It begins by outlining three ways of conceptualizing constitutional identity-"procedural" (J & uuml;rgen Habermas), "existential" (Carl Schmitt), and "political-liberal" (John Rawls)-and of understanding the related notion of constitutional authenticity. The article defends the political-liberal conception of constitutional identity and examines the constraints imposed on the electorate's amending power by the integrity of constitutional identity. These constraints are argued to be best justified by a sequential, rather than serial, conception of democratic sovereignty. The considerations supporting sequential sovereignty are developed ex negativo from the problematic consequences associated with serial sovereignty and initially reflect the perspective of an observer asking what is likely to occur if a serial conception of democratic sovereignty prevails in a democratic society. The article then turns to arguments, framed from the internal perspective of a participant, for why it would be illegitimate for living citizens to alter constitutional essentials, even in compliance with constitutional provisions governing amendment. Rawls's teleological justification for such limits is critically examined, and the core of his position is defended on the basis of the idea of vertical reciprocity among all the free and equal generations of a people. Finally, the article elucidates the distinctive patterns through which constitutional identity and constitutional authenticity undergo transformation in light of the sequential, political-liberal conception of democratic sovereignty.
The article presents an empirically informed account of public interest litigation (PIL) before the Supreme Court of India over the forty-five years since its inception. It surveys nearly 750 reported PIL judgments and orders to provide an overview of the Court's PIL docket and its changing constituencies. Through hand-coding of the dataset, the article identifies the categories of petitioners who access the Court through PILs and analyzes how these constituencies shape the nature and function of PILs. The article finds that the Indian PIL experience is characterized by the diminishing presence of poor and disadvantaged petitioners, who have been relegated to the margins of the docket. They have been displaced by a growing number of regulatory matters that have transformed the Court into a super-regulator, as well as by petitioners litigating private disputes through PILs. The rise of PILs has enabled the Supreme Court of India to emerge as a powerful regulatory actor, whose jurisdiction is increasingly invoked to serve private interests. This development stands in contrast to the originating logic of the PIL movement, which was to enable poor and disadvantaged groups to access courts and vindicate constitutional rights.
