Abstract Constitutional law faces unprecedented challenges from populist movements that threaten the longstanding relationship between legitimacy of law and democracy. This paper examines populism through a contextual perspective, focusing specifically on Latin America’s distinctive features and its over two hundred years of constitutional experiences. Rather than coining a universal concept, we argue that populism is manifold and context-dependent, requiring careful attention to historical and geographical particularities. Latin America, with its 155 regime changes between 1900 and 2000, represents an indispensable source for understanding populism globally. Drawing on the theoretical frameworks of Müller, Laclau, Landau, Scheppele, and Mouffe, we explore how Latin American populisms diverge from patterns elsewhere, particularly through their emphasis on centralization of power rather than nationalism, and their fluid movement across the political spectrum. We examine institutional mechanisms commonly proposed to counterbalance authoritarianism, demonstrating that blind faith in institutions proves insufficient in contexts of weak institutionalization. The paper concludes that constitutional theory must adopt a comprehensive approach, one that values both institutional and non-institutional dimensions, while remaining highly open to inputs from the socio-cultural world, ultimately questioning which constitutionalism and which institutions should be defended.

Abstract This article offers a new perspective on the subject of constitutional judicial review in Japan. This perspective uses a heuristic of the judiciary as a bureaucracy that is engaged in policy-making more broadly than just through dispute resolution and thus needs to maintain a good working relationship with other national government bureaucracies, particularly the Ministry of Justice (‘MOJ’). This heuristic will be developed through a description of the judiciary’s historical and present relationships with the MOJ. It is then applied to the Supreme Court of Japan’s constitutional jurisprudence, with a particular focus on the small number of instances where the court has found a statutory provision unconstitutional. The article closes with some observations about what the heuristic might predict about the direction of judicial review in the future, particularly on subjects such as same sex marriage and spousal surnames.

Abstract The rule of law is often cast as the primary governance ideology of Hong Kong. Hong Kong is a capitalist, common law legal jurisdiction that had, at least until a recent political crackdown, strained to differentiate itself from authoritarian, socialist, mainland China over its northern border. This article explores government conceptions of the rule of law in Hong Kong, benchmarked against rule of law standards adopted by member states at the United Nations (UN). We argue that Hong Kong’s ‘official’ rule of law definition is at odds with an evolving international consensus on the rule of law within domestic legal and political systems. This has especially been the case after 2005, with the strengthening of rule of law discourse at the UN General Assembly and the rule of law’s increasing political contestation and weaponisation in Hong Kong. Compared with the contemporary consensus expressed at the UN, Hong Kong’s rule of law definition, as favoured by the territory’s executive, legislative and judicial branches, possesses a narrower ambit, but is also more finely articulated.

Abstract With democratic decay advancing around the globe, scholars deeply disagree about courts’ ability to protect democracy. I argue that this divergence is influenced by conceptual and theoretical deficiencies of the debate. The existing approaches to judicial responses to democratic decay often do not pay sufficient attention to the differences among courts and the environments in which they operate. To tackle these issues, this article introduces the judicial countering capacity frame as an analytical tool to guide further empirical analysis. The framework recognizes courts’ agency but emphasizes the constraints and resources stemming from the environment in which a court operates. Moving away from single-factor explanations, I make a case for a multicausal understanding of judicial countering of democratic decay. I argue that the extent of a court’s countering capacity rests on three pillars: institutional design, the level of political pluralism, and political culture towards courts. The judicial countering capacity frame invites an empirically oriented agenda focusing on micro-mechanisms of judicial countering, their effectiveness, structural preconditions, and the plausibility of available judicial strategies. The article demonstrates the new frame on case studies of Colombia, South Africa and Poland.

Abstract The Russian invasion of Ukraine has had many ramifications beyond the immediate fallout of this egregious act of aggression. The blatancy of such unlawfulness at the EU’s periphery has drawn attention to a somewhat understudied provision, which, however, holds significant relevance given Ukraine’s recently awarded status as an EU candidate: The mutual assistance clause under Art 42(7) TEU. This clause will be examined by exploring its meaning and place in the European security architecture, on its own and in complementarity with Art 5 of the North Atlantic Treaty. It will be argued that both provisions of legally prescribed solidarity bear a curious and uncomfortable semblance to Schrödinger’s cat, capable of appearing as strongly worded, hard-law obligations and as undetermined intentions simultaneously. In particular, both clauses entail intentional normative ambiguity in regard to the forms of assistance to be rendered. Reflecting on how Art 42(7) TEU fits into the EU constitutional framework, it is shown that the mutual assistance clause can be read as capable of holding space for flexible and creative approaches to the legal obligations of the Member States, while as yet falling short of representing an autonomous, EU-based architecture of defence and security.

Abstract Courts having the ability to invalidate procedurally correct constitutional amendments for violating core democratic or constitutional values is a growing practice in global constitutionalism. However, this power is generally exercised by courts on a whim and very often without any textual basis. Such actions raise serious legitimacy concerns and can undermine efforts towards regular constitutional change. In extreme cases, this power has been wielded by courts in ways that contribute to democratic backsliding rather than its prevention. Few solutions to police this power of courts and prevent net negatives exist. These solutions either fall short of addressing the challenges of courts invalidating procedurally correct constitutional amendments or rely heavily on judges’ restraint and good faith, qualities which we struggle to see in many jurisdictions where courts exercise this power. In turn, this article outlines a template for courts to use when evaluating the validity of procedurally correct constitutional amendments. This article’s suggested template hopes to prevent courts from misusing their powers while still leaving sufficient room for them to act to prevent threats to a polity’s democratic and/or constitutional project. It aims to do so by reducing the subjective discretion available to judges relative to other available templates.

Abstract In this article, we explore seven ways in which Ghana absorbs principles of International Law into her bosom. The safest mechanism Ghana has utilised over the years for this purpose has been the domestic ratification of international conventions through the mechanism of a law passed by her Parliament. Another mechanism is the ratification of such conventions by the passage of a Resolution by her Parliament. Furthermore, existing principles of Ghanaian law may coincide with principles of International Law. Again, principles of Customary International Law are considered a part of the Common Law of Ghana. There are also instances where Domestic Law incorporates International Law by reference. A sixth mechanism is where there is a lacuna in Ghanaian law regarding a particular issue and government officials and judges resort to principles of International Law to fill that void. Finally, International Law may find expression in domestic Ghanaian law where judges, in the process of elaborating on domestic legal principles, call in the principles of International Law.