Abstract Scholarship and even political and policy discourse regarding migration and borders tend to focus on the migration of natural persons, and (inter)national borders as the domain of the nation-state, conceived of as an expression of the latter’s sovereignty. In liberal theory, nation-state borders are critical legal and political infrastructure of collective self-determination, bulwarks for democratic self-rule. This Article is a provocation to consider migration, borders, and sovereignty from a different vantage—one that centers the migration of transnational commercial corporations, and their capacity to constitute, govern and wield borders and migration to advance the will of their constituencies . I focus in particular on corporations as migrants that are uniquely threatening to democratic self-rule generally, and especially to the self-determination of (post)colonial nation-states.

Abstract The liberal democratic ideal that public law can keep the exercise of public power within reviewable bounds and that administrative powers are necessarily subordinated to the law has been, in the EU and elsewhere, an important condition supporting the legal and political legitimacy of public power—an antidote to the authoritarian tendencies of administrations. In the EU, it has turned the Court of Justice, qua ultimate arbiter of EU law, into a pillar of integration. This perspective, however, ignores that some of the regulated activities can hardly operate under such subordination. The difficulties of judicial review in the face of technically complex and future-oriented regulatory activities, carried out under conditions of uncertainty, and having political implications, turn these challenges to the law into a matter of articulating a role for judicial review that could still provide an effective check on public power. But this discussion misses an important underlying difficulty: often, legal norms simply do not provide grounds for review that are external to the administrative activity that they are meant to constrain. In such circumstances, administrations acquire constitutive powers, determining the meaning of the law that binds them and defining the public interests that they are bound to pursue. Courts can hardly constrain such powers. In this article, I analyse such instances in the areas of EU bank resolution and pesticide authorization. Although this is not an EU law-specific problem, it has specific implications in a polity where public authority asserts itself as being fundamentally dependent on the law.

Abstract A new wave of legal scholarship has challenged the dominant neoclassical account of price formation, demonstrating that prices are not formed according to its prescripts and do not perform the task of economic coordination in line with its axioms. As opposed to emerging from voluntary exchanges between private actors, prices on this alternative reading are the products of processes of political and legal ordering that constrain the choices and opportunities of some social groups as they enable and empower others. Prices, legal scholars insist, are ‘legally engineered’. But what possibilities emerge from such a reframing? Could legal analysis be used to model and predict the behaviour of prices in the political economy? And would doing so give us any inroads into making the prices that seem to ‘inhere’ in the objects around us any more just? In this article, I build the case for the development of a new research programme that investigates the role of law in processes of price formation. I also problematize the engineering metaphor that stands at the centre of contemporary legal scholarship on prices. Drawing on the traditions of Old Institutionalist Economics (OIE), Legal Realism, and Marxist Economics, I argue that prices are not produced by the state mechanistically commanding the political economy through its interventions and legal frameworks, but emerge from the deeper, historically conditioned structure of legal rights in society. Highlighting that capitalism must be understood as both a juridical order and as a totality, I argue that in order to develop a legal theory of price with explanatory power, we first need to understand how the ‘system of mutual coercion’ that OIE and Realist scholars show to be central to the formation of market prices operates on the global scale.

Abstract This article analyses impartiality in Investor-State Dispute Settlement (ISDS) by identifying the way that the parties’ trust in arbitrators is constructed. Drawing on the findings of a large-scale empirical project, it questions the applicability of an orthodox judicial doctrine of impartiality to ISDS on the grounds that trust in arbitrators is constructed on a fundamentally different basis from that of trust in judges. The primary feature of a judicial doctrine of impartiality is that trust is founded on an absolutist approach to impartiality which is intended to ensure that judges have no predispositions to parties. In contrast, trust in ISDS is founded on the method of party appointment which is based on a very different assumption—that arbitrators’ predispositions can be valuable and appropriate in the decision-making process. Drawing on empirical findings, moral philosophy, and psychology, this article proposes the idea of contextual impartiality. Under this approach, the question is not whether an arbitrator can meet universal standards of impartiality irrespective of the context within which the arbitrator operates. Rather, the critical distinction is between permissible and impermissible partiality which depends on whether the individual is reasonably expected to act partially because of their circumstances. In this respect, the article identifies open-mindedness as a fundamental feature of a contextual approach to impartiality and a bright line between permissible and impermissible partiality.

Abstract Courts tasked with ruling on religious freedom claims in the private sector workplace have been faced with the following challenge: too weak a protection of religious freedom and it will become meaningless; too strong, and individual freedom will be stifled. Recently, courts on each side of the Atlantic have, respectively, leant towards each of these two extremes. In Europe, courts have afforded minimalist and, as I will argue, too restrictive a protection to religious interests. Whether out of deference to state constitutional traditions or economic interests, they have often undermined the protection of religious freedom. Conversely, in the United States, the Supreme Court has granted a maximalist and, as I will argue, excessive protection to religious interests. The article will demonstrate the flaws of each approach. It will unravel the main three types of bias that underlie these extreme positions, namely the state, the economic and the religious bias.

Abstract The paper compares and evaluates newer laws on sexual assault in Germany (2016), Sweden (2018) and Spain (2022). It focuses on the main challenge for law reform in this field: the complexity of consent-based rules. Before drafting new offence descriptions, the variety of models of consent should be analysed and their advantages and disadvantages considered. Lawmakers should also pay attention to situations that either make consent impossible or endanger the validity of factual consent.

Abstract Why have the European Court of Human Rights and Court of Justice of the European Union adopted such a hands-off approach in relation to the steady stream of national measures that have intensified limits on religious expression in, and influence over, the public realm? This article argues that the intensifying of these limits can be seen, in part, as reflective of a justified loss of confidence in previously dominant, deterministic narratives that saw secularization of society as inevitable. In response, many states are attempting to harness the power of the law to push a secularization process that they previously regarded as inevitable. The article suggests that, while these laws are sometimes troubling, given the scale, pace and unprecedented nature of the religious change Europe is undergoing, how coexistence and freedom of and from religion can best be preserved cannot but be an open question. It concludes that in these circumstances, judges in pan-European courts have been correct to avoid attempting to identify ideal solutions and to impose them across the board.

In this paper, I first provide an idealized functional account of political parties and party systems. I argue that parties are difficult to regulate constitutionally because of their Janus-faced public-private character. The key function they perform, when functioning as they ought to function, is to facilitate a mutually responsive relationship between public policy and popular opinion by acting as an intermediary between a state and its people. They perform this intermediary function in a unique manner, because of their bi-directionality and their plenary character. When they perform this function effectively, political parties significantly reduce four key information and transaction costs which would otherwise make democratic governance impossible: political participation costs, voters’ information costs, policy packaging costs, and ally prediction costs. This idealised account helps us identify pathological parties and party-systems and ground four principles that constitutions should seek to optimise in relation to political parties. The second part of this paper outlines and defends these four principles. Here I argue that state constitutions: i. should guarantee maximum autonomy for the formation, organisation, and operation of political parties, moderated by the restrictions necessitated by their purpose of winning (a share in) state power (for fixed terms) in competitive elections by acting as intermediaries between the state and its people (the ‘purposive autonomy principle’); ii. should try to optimise the party system such that the total number of serious political parties is large enough to broadly represent every major ‘voter type’, but not so large that the information costs on judicious voters are too high (the ‘party system optimality principle’); iii. should ensure a separation of parties and the state (the ‘party-state separation principle’); and iv. should discourage the factionalization of political parties (the ‘anti-faction principle’). These political principles are drawn from the value of democracy itself. They are likely to bring real world political parties and party systems closer to their idealised form, thereby improving and deepening democratic governance. As such, they should—alongside other relevant political and constitutional norms—inform fundamental constitutional design choices.

Abstract Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state.

Who makes international humanitarian law? That is the subject of this article. Is it states and only states? Or are other actors also involved? What is the role of international courts and tribunals? And where does the work of the International Committee of the Red Cross fit? Drawing on ideas of communities of practice and interactional international law, this article argues that it is the community of international humanitarian lawyers that makes international humanitarian law through a process of dialogic interaction. This community includes states, international courts and tribunals, the International Committee of the Red Cross, academics, and others. Through interaction in the selection of issues, during the drafting of outputs, and following the publication of the finished product, the community makes and shapes international humanitarian law. States thus play an important role in law-making, particularly insofar as the conclusion of treaties and the formation of customary international law are concerned. However, states have tended not to react to the interpretation, application and identification of the law by other members of the community of international humanitarian lawyers. This relative silence on the part of states has had a number of consequences. Silence has been taken as acquiescence. The response of other members of the community to the publication of an output has taken on a greater significance. And states have been side-lined. The Article concludes by discussing ways in which states can be more active in the making and shaping of international humanitarian law.