I•CON
Volume 24 Issue 2
Table of Contents
Editorial: In this issue
I•CON Keynotes
Raymond A. Atuguba, Neo-democracy: Legal empowerment and the reincarnation of democracy in Africa
Justice R. Syed Mansoor Ali Shah, When courts fall silent, societies descend into darkness: Judicial resilience, legal empowerment, and the struggle against autocracy
Articles
Raffaela Kunz, Between democratization and instrumentalization: A constitutional perspective on open science
Anthony Sangiuliano, Causation and exposition
Pranav Verma, Forty-five years of public interest litigations in India: Changing constituencies and the rise of the regulatory court
Maria Kotsoni, Informal constitutional change and the rise of fiscal discipline in Europe: Ripple effects on fundamental social rights
Endre Orbán, Losing academic legitimacy: The Fundamental Law of Hungary and its acceptance among Hungarian public law scholars
Tanzil Chowdhury, Toward a historical materialist account of British constitutional change
Katalin Kelemen, Maija Dahlberg, Åsa Elmerot, Mikael Kenno Fogde, Haukur Logi Karlsson, Helle Krunke, Morten Nadim, and Nicklas Pettersson, Constitutional reasoning in the Nordic supreme courts: A comparative empirical analysis
Alessandro Ferrara, Constitutional identity and constitutional authenticity
Ivo Gruev, Constitutionalizing gender: Deterrence instead of equality
I•CON: Debate!
Barak Medina, On constitutional identity, democratic legitimacy and judicial review in times of democratic backsliding: The case of Israel
Issi Rosen-Zvi and Meir H. Yarom, Constitutional methodology and the perils of positivity: A reply to Barak Medina
Book Reviews
Lena Holzer, Review of Flora Renz. Gender Recognition and the Law: Troubling Transgender Peoples’ Engagement with Legal Regulation
Ahmed Elbasyouny, Review of Francesco Biagi. Constitution-Building after the Arab Spring: A Comparative Perspective
Nicoletta Perlo, Review of Julien Jeanneney. Une fièvre américaine: Choisir les juges de la Cour suprême (XVIIIe–XXIe)
Lucas Lixinski, Review of Sofía Reca Milanta. La tutela ejecutiva en el sistema interamericano de Derechos Humanos: Siguiendo las huellas del cumplimiento
Emil Krude, Review of Stephen H. Legomsky. Reimagining the American Union: The Case for Abolishing State Government
ABSTRACTS
Raymond A. Atuguba, Neo-democracy: Legal empowerment and the reincarnation of democracy in Africa
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.
Justice R. Syed Mansoor Ali Shah, When courts fall silent, societies descend into darkness: Judicial resilience, legal empowerment, and the struggle against autocracy
This address, delivered at the NYU Research Symposium on Legal Empowerment & Autocracy in Accra, Ghana, in March 2026, examines why judicial independence collapses under autocracy and what legal, institutional, and cultural resources are required to resist that collapse. Drawing on the author’s resignation from the Supreme Court of Pakistan following the Twenty-Sixth and Twenty-Seventh Constitutional Amendments—which dismantled judicial independence through formally democratic procedures—the speech argues that twenty-first-century autocracy operates not by abolishing constitutional forms but by hollowing them from within, a phenomenon the literature identifies as autocratic legalism. The address distinguishes formal from substantive democracy, drawing on Aharon Barak’s jurisprudence and the African constitutional tradition articulated by Dean Atuguba, to argue that substantive democracy—grounded in dignity, equality, and the welfare of all citizens as a duty of the state—is structurally incompatible with autocratic governance. It then presents a comparative study of Ghana and Pakistan: two postcolonial states sharing a common legal inheritance that produced radically divergent outcomes in judicial resilience. Ghana’s judiciary, forged in the aftermath of the 1982 murder of three High Court judges, developed the institutional identity, professional solidarity, and constitutional culture necessary to hold. Pakistan’s judiciary, conditioned by a colonial culture of institutional apoliticism, repeatedly capitulated—validating successive military interventions through an expanding doctrine of necessity. Drawing on Lisa Hilbink’s study of Chilean judges under Pinochet and Lawrence Baum’s audience theory, the speech identifies four drivers of judicial capitulation: fear, comfort, isolation, and—most critically—a professional culture that frames constitutional guardianship as impermissible political action. It argues that judicial independence is not a character trait but an institutional condition, and proposes a six-dimensional framework for legal empowerment of the constitutional court: doctrinal empowerment, including the basic structure doctrine; structural empowerment; professional empowerment through mobilized bar associations; epistemic empowerment through reformed legal education; democratic empowerment through an activated citizenry; and a selection imperative that prioritizes demonstrated constitutional character over technical competence alone. The address further argues that the culture of resistance—poetry, literature, music, and art—is not supplementary to but constitutive of the moral imagination required to sustain legal resistance under autocracy. Drawing on figures from Faiz Ahmed Faiz to Steve Biko, and from Pablo Neruda to Ngũgĩ wa Thiong’o, it proposes that the formation of constitutional court judges should include immersion in the global tradition of resistance. The speech concludes with a defense of principled resignation as a form of constitutional resistance, grounded in the moral philosophy of Dworkin, Fuller, Arendt, and Radbruch, and offers a six-point roadmap for rebuilding judicial resilience: reforming legal education, redesigning judicial selection, protecting bar associations, maintaining strategic litigation under captured courts, building international solidarity networks, and sustaining the cultural foundations of democratic conviction.
Raffaela Kunz, Between democratization and instrumentalization: A constitutional perspective on open science
Open science is a hotly debated issue. Initially emerging as a grassroots effort to enhance the global accessibility of scientific knowledge, it has increasingly evolved into one of the dominant paradigms of contemporary research governance, driven by expectations of faster innovation, greater transparency, and societal impact. More recently, however, concerns over research security, dual-use technologies, strategic competition, and foreign interference have prompted calls for more selective forms of openness. At the same time, the use of openly available scholarly materials by private actors for proprietary large language model training has raised new questions about the meaning and fairness of openness itself. This article argues that open science both reflects and reinforces deeper structural transformations science is undergoing, including its politicization, economization, and medialization. These developments constrain the autonomous functioning of science, creating new dependencies on political priorities, commercial interests, and algorithmic visibility, and, as such, should be recognized as a constitutional concern. The article first traces the evolution of open science from a grassroots movement for knowledge democratization into a policy-driven and increasingly contested governance framework. It then examines how constitutional law should respond to the diminishing autonomy of science, arguing that traditional legal protections centered on individual academic freedom are inadequate to address systemic encroachments. Drawing on constitutional sociology, the article underscores the need to rethink fundamental rights frameworks to account for emerging threats to scientific autonomy in an era of digital governance, platform capitalism, and political instrumentalization. It concludes by outlining how a constitutional perspective could help shape open science policies that balance accessibility with the protection of scientific integrity, ensuring that open science remains a mechanism for democratization rather than a tool for political and economic instrumentalization.
Anthony Sangiuliano, Causation and exposition
Theoretical accounts of legal causation have traditionally emerged from tort or criminal law scholarship, only occasionally surfacing in commentary on constitutional law. Given their potential to migrate across jurisdictions and influence debates globally, the role of causation is apt to become a distinctive field of inquiry in comparative constitutional theory. Yet there have been few attempts to draw comparisons between jurisdictions or to formulate general theoretical principles capable of unifying the variegated global instances of causation in public law. The Supreme Court of Canada recently rendered two high-profile decisions involving disputes under the Canadian Charter of Rights and Freedoms in which questions of causation featured prominently, and just as there has been a dearth of comparative scholarly coverage of causation in constitutional law, there has been little written on the concept of causation in Canadian constitutional law. In this article, I address these lacunae in the hope of stimulating new conversations in a fledgling field of inquiry. To do so, I introduce a novel methodological device for interpreting statements about causation in judicial opinions in constitutional cases that I call “exposition.” This device instructs us to scrutinize a court’s seemingly factual causal conclusion in a constitutional judgment—for example,that an impugned law causes a breach of constitutional rights—and peel back the factual veneer to expose the more basic normative claim about justice or public policy that the court tacitly endorses while encoding it within the factual claim. I illustrate exposition by invoking it to draw out insights from recent Canadian decisions involving causation. But its availability for a diverse range of purposes when thinking about the role of causation in constitutional law is the broader lesson for comparative scholars that I seek to develop.
Pranav Verma, Forty-five years of public interest litigations in India: Changing constituencies and the rise of the regulatory court
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.
Maria Kotsoni, Informal constitutional change and the rise of fiscal discipline in Europe: Ripple effects on fundamental social rights
Following the Euro crisis, several EU member states enacted constitutional amendments to introduce or reinforce fiscal discipline within their national 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—introduced over the past decade—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.
Endre Orbán, Losing academic legitimacy: The Fundamental Law of Hungary and its acceptance among Hungarian public law scholars
This article argues that British constitutional reforms are historically specific expressions of the mediation of significant antagonisms between competing social forces and/or shifts in the modalities of capitalism, the aim of which is to ensure the conditions for continuing accumulation. While most conventional theories of constitutional reform recognize the heteronomous nature of law reform as responding to extra-legal or economic forces, this article, drawing on a resurgent Marxist turn in legal studies, examines how historical materialist accounts might inform understandings of constitutional development. Outlining, but ultimately rejecting, an economistic orthodox Marxist reading of law, this article instead conceptualizes constitutions as a “moment” in the contradictory totality of capitalist social relations. Arguing that reforms to the British constitution are often preceded by significant social antagonisms, the article attempts to explain constitutional change as the capitalist state’s mediation of such antagonisms to secure the future conditions for capital accumulation, offering a reappraisal of the lead-up to and creation of the Parliament Act 1911 as an example.
Tanzil Chowdhury, Toward a historical materialist account of British constitutional change
This article argues that British constitutional reforms are historically specific expressions of the mediation of significant antagonisms between competing social forces and/or shifts in the modalities of capitalism, the aim of which is to ensure the conditions for continuing accumulation. While most conventional theories of constitutional reform recognize the heteronomous nature of law reform as responding to extra-legal or economic forces, this article, drawing on a resurgent Marxist turn in legal studies, examines how historical materialist accounts might inform understandings of constitutional development. Outlining, but ultimately rejecting, an economistic orthodox Marxist reading of law, this article instead conceptualizes constitutions as a “moment” in the contradictory totality of capitalist social relations. Arguing that reforms to the British constitution are often preceded by significant social antagonisms, the article attempts to explain constitutional change as the capitalist state’s mediation of such antagonisms to secure the future conditions for capital accumulation, offering a reappraisal of the lead-up to and creation of the Parliament Act 1911 as an example.
Katalin Kelemen, Maija Dahlberg, Åsa Elmerot, Mikael Kenno Fogde, Haukur Logi Karlsson, Helle Krunke, Morten Nadim, and Nicklas Pettersson Constitutional reasoning in the Nordic supreme courts: A comparative empirical analysis
This article presents the first comparative empirical study of constitutional reasoning in the Nordic countries (Denmark, Finland, Iceland, Norway, and Sweden). Drawing on forty leading constitutional cases from each of the seven examined courts, the authors apply the CONREASON method to map how arguments and key constitutional concepts are used in judicial decision-making. The study situates Nordic courts within a global comparative framework, highlighting both shared regional features and notable divergences. It shows that, despite differences in constitutional texts and institutional arrangements, the Nordic courts exhibit a distinctive combination of deference to parliamentary intent and cautious judicial review. Preparatory works occupy an unusually prominent role in constitutional interpretation, particularly in Finland and Sweden, whereas Norway and Iceland rely more heavily on precedents. At the same time, all Nordic courts display high levels of engagement with international human rights law—especially the European Convention on Human Rights—while showing limited openness to foreign influence and intra-Nordic dialogue in this field. The article also examines the use of core constitutional concepts such as the rule of law and separation of powers, revealing how their application reflects deeper legal-cultural mentalities and historical contexts. By combining quantitative and qualitative analysis, the study provides new insights into the evolving Nordic constitutional culture and its position on the global spectrum of constitutional reasoning. It concludes by discussing the potential future challenges posed by Europeanization, internationalization, and political change for the traditionally restrained role of Nordic courts.
Alessandro Ferrara, Constitutional identity and constitutional authenticity
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” (Jürgen 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.
Ivo Gruev, Constitutionalizing gender: Deterrence instead of equality
This article uses Bulgaria as a case study to demonstrate how the constitutionalization of gender, shaped by local context, can impede progress toward women’s rights and gender equality. It argues that the Bulgarian Constitutional Court—rather than the legislature or activist movements—has paradoxically emerged as the central force driving this process, while entrenching a particularly regressive constitutional framework on gender. The analysis centers on two recent cases that have brought this issue from the margins to the forefront of constitutional debate. The first is a 2018 ruling that declared the Council of Europe’s Istanbul Convention unconstitutional, citing, among other reasons, its alleged promotion of a hidden “gender ideology.” The second is a 2021 judgment that reinforced a constitutional interpretation of “sex” as a biologically determined binary, effectively barring legal gender recognition. The article further explores how this jurisprudence has embedded gendered stereotypes at the constitutional level while legitimizing anti-gender and anti-rights narratives that were previously confined to political and civil society discourse. It contends that this process has weakened existing protections for women’s rights, gender equality, and broader fundamental rights, creating a chilling effect on future progressive judicial and legislative developments in these areas.
Barak Medina, On constitutional identity, democratic legitimacy and judicial review in times of democratic backsliding: The case of Israel
The Israeli Supreme Court’s recent decisions to invalidate constitutional amendments that were part of the government’s attempt at the so-called “Legal Reform” rely on the concepts of democratic legitimacy and constitutional identity. Explaining these decisions through these concepts contributes to a better understanding of the developing doctrine of unconstitutional constitutional amendment and helps justify the Israeli Supreme Court’s approach. Israel’s constitution is a hybrid of written and unwritten elements. The Basic Laws are constitutionally binding based on two cumulative conditions: (i) they were enacted by the legislature, which enjoys partial procedural legitimacy to enact constitutional norms; and (ii) their content entrenches Israel’s existing unwritten constitution, which is determined through the concept of constitutional identity, formed primarily by reference to positive law and only in part by reference to society’s culture and to universal ideals. Importantly—and this is the main novelty of the interpretation offered here—the weight of the legislature’s procedural legitimacy is not fixed, but operates on a sliding scale: an amendment that entrenches a norm already part of the unwritten constitution is constitutionally valid even if it enjoys only minimal procedural legitimacy, whereas an amendment adopted with overwhelming political and public support enjoys substantial procedural legitimacy, which may be sufficient even if it contradicts the unwritten constitution.
Issi Rosen-Zvi and Meir H. Yarom, Constitutional methodology and the perils of positivity: A reply to Barak Medina
This Reply critically examines Barak Medina’s recent proposal for constraining constitutional amendments in Israel, where the Knesset—lacking procedural checks—can amend Basic Laws by a simple majority. Medina argues that the Israeli Supreme Court has adopted a novel interpretive framework, subjecting the Knesset’s constituent power to what can be understood as an “equilibrium” requirement: the more a Basic Law aligns with Israel’s unwritten constitution, the less procedural legitimacy it requires, and vice versa. Grounding this model in Dworkin’s interpretive theory, Medina develops the concept of Israel’s constitutional identity to bring liberal safeguards to bear on the Knesset’s constituent power. We argue, however, that a misalignment in his reliance on Dworkin’s methodology undermines his analysis, leading him to define Israel’s constitutional identity ambiguously and to selectively incorporate legal materials—privileging liberal sources while sidelining nationalist ones. Moreover, the equilibrium model’s procedural criteria are empirically and normatively indeterminate, casting doubt on their utility. Ultimately, despite identifying an important difficulty with the Knesset’s power, Medina’s proposal risks legitimizing rights-infringing amendments under conditions of majoritarian consensus, thereby undermining the very minority groups it seeks to protect.