ICON Volume 23, Issue 4: Table of Contents

What constitutional and/or human rights are corporations entitled to claim, if any? The predominant approach to this question models the rights of corporations on natural persons. In so doing, it ignores salient distinctions not only between these two types of agents, but also amongst incorporated entities as diverse as universities, churches, and businesses. As a result, an arts-and-crafts retailer can claim religious freedoms equivalent to a church, and a bank’s freedom of speech can be construed as widely as that of a newspaper. This paper addresses these twin failures by setting out a conception of the corporation that emphasizes its purposive nature. The corporate form is of value primarily insofar as it allows individuals to pursue their ends, values, and life plans in association. Since the corporation’s claim to moral consideration stems from its role in facilitating purposive action in concert, its rights cannot extend beyond what is necessary to fulfil these purposes and must align with each democratic polity’ evaluation of the relative importance of those purposes.

Terry Skolnik, Two cultures of justification in constitutional law

Scholars distinguish cultures of authority from cultures of justification in constitutional law. In cultures of authority, a public official’s jurisdiction—or authorization to act—legitimizes the restriction of constitutional rights. In cultures of justification, by contrast, it is the logic and reasonableness of governmental decision-making that legitimize such restrictions. Traditionally, scholars have conceptualized a culture of justification as a culture of persuasion—one grounded in rationality, reason-giving, and engagement with applicable law and the parties’ arguments. They argue that the global expansion of proportionality analysis reflects a shift away from cultures of authority and toward cultures of justification. Drawing on justificatory defenses in criminal law, this article introduces a second conception of justification in constitutional law: justification as moral permissibility. In criminal law, justifications form a category of defenses that recognize how presumptively wrongful conduct can be morally permissible under certain conditions. This article contends that we gain a deeper understanding of a culture of justification—and of proportionality analysis in constitutional adjudication—when we unite the two conceptions: justification as persuasion and justification as moral permissibility. The core argument is that proportionality analysis fosters both cultures of justification. The state commits a presumptive wrong when it restricts fundamental rights. Proportionality analysis ensures that the state not only provides a rational and persuasive justification for limiting rights, but also does so in a morally permissible manner. Justification as moral permissibility elucidates how each stage of proportionality analysis—proper purpose, rational connection, necessity, and balancing—safeguards individuals against distinct forms of governmental wrongdoing. The proper purpose requirement guards against direct discrimination, patronization, and indignity. The rational connection test prevents needless rights violations, protects against arbitrariness, and reveals insincere state motives. The necessity requirement counters excessive coercion and the deflation of rights. The balancing stage prevents instrumentalization and indirect discrimination. Ultimately, this article’s unified account shows how the twin conceptions of justification—as persuasion and as moral permissibility—underpin the structure, role, and argumentative force of proportionality analysis in constitutional adjudication.

Alejandra Cárdenas Cerón, Ona Flores Montero and Rosario Grimà Algora, The role of courts in abortion decriminalization: The unmet potential of proportionality

This article explores the role that courts can play in advancing the decriminalization of abortion, understood as the removal of all specific criminal provisions and related offenses. Over the last two decades, several constitutional courts have addressed fundamental questions concerning the constitutionality of criminal abortion laws, paving the way for an era of abortion liberalization or partial decriminalization. Yet none of these abortion rulings—including recent decisions by the highest courts in South Korea, Thailand, Colombia, Ecuador, Spain, and Mexico—have supported, or even been asked to consider, full decriminalization. Instead, courts have generally continued to accept criminal law as a legitimate form of abortion regulation, particularly for later gestations.This article examines how courts with the power of constitutional review could advance abortion decriminalization if such a petition were brought before them. We argue that, by deepening their constitutional analysis of criminal abortion laws through proportionality review, courts could meaningfully question the legality, rationality, necessity, and strict proportionality of criminalizing abortion at any stage of gestation. Our proposal does not suggest that abortion should go unregulated, nor that states are precluded from pursuing the protection of prenatal stages of life. Rather, it contends that criminal provisions governing abortion do not advance these goals. Abortion should instead be regulated as any other area of medical practice, subject to evidence-based healthcare laws and guidelines, and complemented by economic, social, and public health policies aimed at reducing unintended pregnancies and supporting motherhood for those who choose it.

Jacob Deem, Incapacitating, or something else? Unpacking Australian amendment culture in the First Nations Voice Referendum

On October 14, 2023, Australians participated in a once-in-a-generation constitutional referendum to consider establishing a First Nations advisory body in the Constitution. The proposal was rejected, meaning that only eight of the forty-five amendments put to the Australian people have been approved since 1901. This article tests the viability of amendment culture as an explanation for Australians’ reluctance to change the Constitution. Using original large-n survey data from the Australian Constitutional Values Surveys (2008–21), the article examines Australians’ openness to constitutional change over time, highlighting that despite a long history of rejecting constitutional amendments, Australians are not inherently opposed to constitutional change. Instead, a tendency to emphasize the Constitution’s practical role makes Australians susceptible to technical arguments designed to stifle support for change. In addition to providing insight into the Voice referendum result, the article makes three contributions to the amendment culture literature. First, it presents a model for case-study analysis of constitutional change, offering a detailed examination of amendment culture. Second, it provides a long-called-for large-n survey of attitudes toward constitutional change. Third, it demonstrates the importance of contextualizing amendment culture within broader studies of political culture.

Signe Rehling Larsen, The erosion of constitutional tolerance

Constitutional tolerance—the voluntary subordination of member states to EU law—was once the normative hallmark of the European Union’s constitutional order. This hallmark is now eroding: subordination of member states to EU law is in question, and so is its voluntary character. Against this backdrop, the article revisits a long-neglected question: what are the foundations of constitutional tolerance in Europe? Drawing on federal theory, it shows that constitutional tolerance depends on a precarious federal balance between contradictory commitments to unity and diversity. The article argues that the Court of Justice of the European Union is developing article 2 of the Treaty on European Union (TEU) into a judicially enforceable guarantee clause as a means of governing this tension through the defense of a constitutional project shared by the member states. However, this approach is associated with an often-overlooked challenge in the European Union: the member states are characterized by different varieties of constitutionalism, with radically different conceptions of the constitutional ideas set out in article 2 TEU, including democracy and the rule of law. While the judicial enforcement of shared values may serve as a mechanism of constitutional defense, it also risks displacing the federal balance on which constitutional tolerance ultimately depends.

Ngoc Son Bui, Party constitutionalization in socialist regimes

This article explores the codification of the communist party in thirty-two constitutions of former and current socialist regimes. It identifies waves of constitutionalizing party socialism paralleling waves of constitutionalizing party democracy. It explores the constitutionalization of leadership, class nature, ideology, program, and activity of the communist party. The article reveals that the socialist constitutions perceive the communist party as a public entity to realize socialist values and principles. It argues that constitutionalizing party socialism is shaped by political elite’s interests: legitimatizing one-party rule, protecting regime security, coordinating party-state-society relations, expressing socialist and nationalist principles and values, and controlling party agencies. However, the contemporary reconstruction of party constitutionalization, as illustrated by the case of Vietnam, suggests that constitutionalizing party socialism is a contentious process involving both top-down control of political elite and bottom-up discursive contestation of the citizens. This article has implications for the historical and continuing influence of the socialist constitutional tradition, the constitutional role of the communist party in current socialist regimes, and a dynamic conception of socialist constitutions.

Eleni Frantziou, Horizontal by design: A systematic analysis of the application of human rights to private actors in the text of world constitutions

Legal scholarship has so far assumed that the horizontal application of constitutionally protected human rights—that is, the application of these rights to private relations, rather than purely to the state/individual relationship—is an exceptional feature of only a handful of constitutions. Through a systematic textual analysis of 195 written constitutions, the present article disproves this assumption. It shows that 76% of contemporary world constitutions envisage not only rights but also corresponding obligations for their subjects, thus justifying an understanding of rights as “horizontal by design.” The article makes two principal contributions to the academic conversation on this topic. First, it develops a typology of horizontal effect clauses within world constitutions, opening up this field of academic inquiry to constitutional design and allowing for a better understanding of how constitutions themselves speak about the application of rights to private relations. Second, the article shows that the clearest horizontal effect clauses are found in young and post-dictatorial constitutions in the Global South, and that the states that employ them are more likely to be members of regional human rights protection systems. It thus suggests that horizontal effect clauses should be considered a central feature of contemporary constitutional design with transformative aspirations.

Gautam Bhatia, Islands of power: Horizontal rights application under the Jamaican Charter of Fundamental Rights and Freedoms

This article analyzes the application of horizontal rights under the 2011 Jamaican Charter of Fundamental Rights and Freedoms. It seeks to contribute both to the Jamaican debate on horizontal rights application and to the ongoing theoretical and comparative constitutional law debates on horizontality, and to bring both into conversation with each other. The 2011 Charter introduced constitutional horizontality for the first time into Jamaican constitutional law. Informed by the language of Section 8(2) of the South African Constitution, Section 13(5) of the Charter stipulated that the Bill of Rights would apply horizontally where, and to the extent that, it is “applicable,” and left the question of applicability to the courts to resolve. In the succeeding years, the Jamaican courts have interpreted Section 13(5) in four major cases. This article argues that while these judgments are detailed and closely reasoned, they have left certain important gaps in the doctrine. In particular, the cases have—so far—failed to adequately address the “transplant” of the rights framework from the vertical to the horizontal context, and a principled basis for limiting the exercise of horizontality. This article proposes an “institutional approach to horizontality,” which is not only consistent with the founding principles of the 2011 Charter, but also resolves the transplant problem and the limitation problem. This article suggests that the institutional approach is best suited to addressing the structural disparities of power that exist within the private sphere, and which horizontality is meant to tackle. It therefore commends the institutional approach to the Jamaican courts, as well as to the burgeoning judicial engagement with horizontal rights and the question of power across the globe.

Julia Dehm, Surfacing colonial relations and fossil capitalism in histories of social rights: Afterword to the Foreword by Nehal Bhuta

Nehal Bhuta’s Foreword “Social Rights and the Origins of the Social Constitution: From Collective Natural Rights to the Social State” is not just an important intellectual-historical account of the rise of social rights but also a political intervention in contemporary debates on social rights and economic inequality. This response draws attention to some blind spots in the analysis and suggests further avenues for exploration. First, it raises questions about whose histories of social rights are told, the scale of the analysis adopted, and the importance of situating European histories of social rights within a broader colonial political economy. Second, it calls for further attention to the materialist underpinnings of discourses of social rights, specifically the role that transformations in energy and technology, and the emergence of a fossil fuel economy, played in the period examined. It suggests that these questions concerning colonial relations and the fossil fuel substratum of social rights matter not only for their historical interest, but also because they are crucial to addressing contemporary challenges of social provisioning in a deeply unequal and violently stratified global order.

Francisco J. Quintana, The social, the state, and the south: Afterword to the Foreword by Nehal Bhuta

Nehal Bhuta’s Foreword retrieves a historical understanding of social rights that reopens debates about what the state ought to be and how it might be remade. This Afterword builds on Bhuta’s intervention by advancing two complementary propositions, drawing on the history of human rights in Latin America. First, it argues that the history and theory of social rights must attend to the international conditions of possibility of the social state. For many Latin American jurists and diplomats, social rights were once understood as requiring—and mobilized to demand—the international recognition of a state’s authority to reorganize society and the economy, often challenging rules on trade, investment, and state responsibility. Second, this Afterword argues that historians and jurists should ask how these more capacious understandings of international social rights faded, and what role law played in that process. Tracing this shift may help clarify what it would take to reconstruct a more ambitious program of social justice, one capable of operating not only within states but across regional and global orders.

Graziella Romeo, Social rights, solidarism, and the market society: Afterword to the Foreword by Nehal Bhuta

This Afterword builds on Nehal Bhuta’s Foreword by revisiting the intellectual and historical underpinnings of social rights, particularly their emergence in the nineteenth century through solidarist political philosophy. It argues that solidarism, unlike both liberal individualism and Marxist collectivism, envisioned the political community as grounded in spontaneous social bonds of mutual responsibility rather than in contracts or class struggle. The Afterword further explores how social rights were historically entangled with capitalism, noting that while originally conceived to counterbalance market forces, their efficacy is now weakened by the neoliberal transformation of civil and political rights. Contemporary market dynamics—exemplified by gig economy practices—threaten to erode the emancipatory potential of social rights. Unless social rights are reconnected to democratic principles and the material conditions of political participation, they risk losing relevance in the face of growing inequality.

Katharine G. Young, Costly ambiguities: Afterword to the Foreword by Nehal Bhuta

Even as social rights now appear in the majority of the world’s constitutions, most of the core human rights treaties, and many legislative bills of rights, their political and legal meaning remain ambiguous. Nehal Bhuta’s 2025 Foreword seeks clarity through a return to older history, and an examination of the demands made by the nineteenth century Jacobin and Chartist movements for a guaranteed access to “fair shares of the economic whole.” This Afterword compares and contrasts Bhuta’s genealogy with the influential paradigm of transformative constitutionalism and the centrality of social rights within it. In particular, it examines the more recent developments of social rights, in prominent twentieth-century expressions made after World War II and in Global South contexts, where the constitutionalist vision of social rights reflected an effort to tame both laissez-faire capitalism and state socialism, alongside a “never again” response to the devastations of fascism. That vision of social rights has been disrupted, and sometimes accommodated, by the neoliberal political economy of recent decades. This Afterword observes that the “fair shares” origins of social rights, and especially the collective and natural rights dimensions that the Foreword chooses to highlight, both broadens and limits the capacity of social rights to respond to our current economic and populist challenges and constitutional transformations.

Ulrike Davy and Albert H.Y. Chen, Social rights thinking and the welfare state: The cases of Germany and China—Afterword to the Foreword by Nehal Bhuta

Our Afterword to Nehal Bhuta’s Foreword “Social rights and the origins of the social constitution: From collective natural rights to the social state” first addresses Bhuta’s account of developments in nineteenth-century German states (unified in 1871), in particular, the writings of Lorenz von Stein and the activities of the Verein für Sozialpolitik (VfS). Secondly, it considers Bhuta’s Foreword from the perspective of social rights and social policies in the global South, using China as an example. Our Afterword suggests that in nineteenth-century Germany and twentieth-century China, the emergence of a state that accepts responsibility for individuals’ welfare was not necessarily preceded by, or a consequence of, social rights thinking. Instead, other rationales prevailed.

Andrius Bielskis, Reflections on the thesis that (natural) social rights preceded the creation of the social (welfare) state: Afterword to the Foreword by Nehal Bhuta

This Afterword offers a philosophical engagement with Nehal Bhuta’s Foreword “Social Rights and the Origins of the Social Constitution” from the standpoint of Aristotelian–MacIntyrean virtue ethics, supplemented by Marx’s critique of capitalism. While endorsing Bhuta’s historical thesis—that natural social rights and their discourse preceded and helped constitute the modern welfare state—this Afterword argues that the language of rights is ethically and ontologically secondary. Rights emerge not as first principles of justice but as derivative claims arising from the breakdown of consent within social relations. The Afterword develops an alternative framework grounded in “activity,” “practice,” and “excellence” (aretē) as the foundational modes of human existence and cooperation. It then articulates two ethical-political principles: “consent,” rooted in the equal dignity of persons and constitutive of social justice, and “grace,” understood as the gratuitous gift and telos of a communist life, realizable only through excellence and shared flourishing. On this view, rights function as juridical responses to ruptured consent within capitalist societies that commodify human activity and privatize the commons. While Bhuta’s genealogy persuasively demonstrates the emancipatory role of natural social rights in resisting capitalist exclusion, such rights remain dependent on positive law and political power for their validity. This Afterword concludes that socialist justice—founded on merit and solidarity—prefigures a communist order of grace, in which the language of rights itself may ultimately wither away, replaced by relations grounded in consent, excellence, and the free gift.

Tímea Drinóczi and Emilio Peluso Neder Meyer, Constitutional identity and illiberalism: Introduction

This Symposium explores whether constitutional identity is compatible with illiberal politics and policies. Engaging with cases from South Africa, India, Brazil, Türkiye, and the European Union and its Member States, the contributions examine how constitutional identity is mobilized to resist, enable, or institutionalize illiberalism. Building on these insights and engaging contemporary scholarship, this Introduction develops a theoretical framework structured around three key findings. First, the descriptive (including the descriptive-analytical) and normative conceptions of constitutional identity are inherently in tension, and various political and judicial actors frequently exploit this tension. Second, constitutional identity is a volatile tool: it can be activated by both liberal and illiberal forces, depending on the context. Third, the direction of the activation of constitutional identity depends on three interrelated factors: the nature and independence of the institutional actors involved; the degree to which constitutional identity is conflated with national or religious identity; and its entrenchment through doctrines of unamendability. When institutional actors are few or compromised, identity is more easily captured by illiberal forces. When constitutional and national identity are fused, identity may serve exclusionary or authoritarian ends. When locked into eternity clauses, identity can obstruct both democratic erosion and re-democratization. Taken together, the Symposium contributions support a reorientation of constitutional identity from a presumed essence to a site of political, legal, and cultural struggle – inviting further research at the intersection of law, identity, and constitutional transformation.

Svenja Behrendt and Joel Colón-Ríos, Constitutional identity, democracy, and illiberal change

This paper argues that the descriptive and normative dimensions of the concept of constitutional identity sit in tension with both democracy and (il)liberalism. On the one hand, due to its conservative nature (i.e., its connection to the protection of certain, usually liberal, core constitutional content), constitutional identity shares some similarities with the doctrine of the historical constitution, which bring to the surface several potential democratic risks. In particular, the possibility of eternalizing a series of principles that are considered to be the correct ones at a particular moment in time. On the other hand, constitutional identity plays different roles with regard to the protection of liberal values – even though the concept of constitutional identity itself may be neutral. To protect those values in a way consistent with the democratic ideal, the concept of constitutional identity needs to account for the possibility of democratic change. Changes in constitutional identity (including, perhaps, changes that are inconsistent with the liberal tradition) should be outside the scope of the constituted authorities but, we argue, not necessarily of mechanisms that can be reasonably understood as facilitating the popular exercise of constituent power. The issues mentioned above, we argue, manifest both domestically and in the multilevel, post-sovereign setting provided by the European Union. They are exemplified in the way in which constitutional identity, as reflected in German jurisprudence, can be used (and has been used) to defend a domestic illiberal turn in other European jurisdictions.

Jaclyn Neo, Populism and the politics of constitutional (mis-)identity

This article examines the increasing entanglement of anti-constitutionalist populism with constitutional identity. Populists have instrumentalized the concept of ‘constitutional identity’ to legitimize changes to the constitution. While this may lead some to consider abandoning the concept, this article suggests a better response, which involves disentangling the descriptive claim of constitutional identity from its normative claims of immutability. Employing a framework of mis-identity and dis-identity claims as two lines of argument against a presumed ‘existing constitutional identity’, the article clarifies the populist rhetoric as a mis-identity claim that relies on the politics of nostalgia to rewrite the founding myths about the nation and its people. Lastly, the article argues that we can better respond to the populist instrumentalization by limiting constitutional identity’s normative appeal and situating it squarely within constitutional politics.

Emilio Peluso Neder Meyer and Tímea Drinóczi, Is anyone doomed to live under illiberalism? Hungary and Brazil’s constitutional identities

Are there contextual conditions that determine a people to live under illiberal constitutional identities? This article compares two different constitutional systems, Hungary and Brazil, intending to identify the main reasons for the endurance of the Fidesz political project and the failures of Bolsonarism in Brazil. Under similar threats and challenges, we argue that constitutional identities can propel distinct environments for the survival and persistence of authoritarian and illiberal projects, with Hungary offering better conditions and Brazil presenting hurdles for their endurance. For the comparison, first, a difference between constitutional identity, a more vivid and open-to-interpretation concept, and the constitution’s identity, linked to a constitution’s textual design, is recognized and applied. Second, institutional factors are discussed along with cultural perceptions of the values of constitutional democracy. In doing it, we find that cultural perceptions of the values of constitutional democracy seem more important for most Brazilian citizens than Hungarians. Secondly, even in a constitutional history characterized by interruptions and the absence of proper constitutional culture, democratic values can be linked to particular institutional features that avoid the permanence of new authoritarian and illiberal political projects. We conclude that constitutional identity is open to interpretation, has a tense relationship with cultural and institutional aspects, and is shaped by the conditions of the jurisdiction under analysis. Constitutional identity can be thought of in a dynamic and tensioned way that demands contextual investigation of how its features can bar or foment illiberalism.

Heinz Klug, Mobilizing constitutional identity: Transformative constitutionalism and the threat of illiberalism in South Africa

South Africa’s post-apartheid Constitution is celebrated for its extensive embrace of rights, including justiciable social and economic rights. The focus by academics and other commentators, as well as by Justices of the Constitutional Court, on the transformative goals of this Constitution and the jurisprudence of the Constitutional Court has made transformative constitutionalism central to South Africa’s constitutional identity. This identity is increasingly at odds with South Africa’s competing national identities. This is in part the result of the tensions inherent in the mobilization of a transformative constitutional identity and the limits of courts to foster social change. While the jurisprudence of the courts may promote a transformative constitutional identity, the gap between constitutional promise and increasing social inequality has brought increasing criticism of the Constitution as the product of the democratic transition in South Africa. The resulting dissonance is producing tensions within South Africa’s constitutional identity and raises the question of whether the post-liberal Constitution adopted in 1996 will be able to sustain its transformative identity or whether democratic disappointment will facilitate illiberal political forces.

Valentina Rita Scotti, The constitutional identity of Türkiye from Atatürk to Erdoğan: From exclusionary to illiberal in one century

Establishing the Republic of Türkiye on the ashes of the religious-based legal system of the multicultural Ottoman Empire, the Kemalist elite rejected the Ottoman past and imposed an exclusionary constitutional identity grounded in the principles of nationalism and secularism, only partially compliant with liberal-democratic constitutionalism. Thereafter, ethnic-based movements, as well as religiously inspired ones, sought to challenge the Kemalist constitutional identity. The former achieved only minor results, while the latter proved largely unsuccessful until the Justice and Development Party’s (Adalet ve Kalkınma Partisi, AKP) accession to power in 2002. Despite its declared intention to better comply with liberal-democratic constitutionalism, the constitutional identity proposed by the AKP encompasses several illiberal features, fully consolidated in a competitive authoritarianism at least from 2010–13. At present, therefore, Türkiye is transitioning from an exclusionary constitutional identity to an illiberal one, both constructed through a dominant state led by charismatic figures and supported by acquiescent constitutional interpreters who have corroborated the misinterpretation of the tenets of the rule of law. This article investigates the content of Türkiye’s constitutional identity, describes the complex path of Türkiye’s identity-building, and questions whether the Kemalist exclusionary approach represented fertile soil for the competitive authoritarianism the country has been experiencing in the AKP era.

ICON Volume 23, Issue 4: Table of Contents

Recent Posts

Explore All Categories

Connect with Us

Previous PostICON Volume 23, Issue 4: Editorial

Next PostMy Patria is the Book: Ten Good Reads 2025

Leave a Reply Cancel Reply