I•CON
Volume 24 Issue 3
Table of Contents
Editorial: In this issue; In this issue—Reviews; In memoriam Ran Hirschl
Articles
Manal Totry-Jubran and David Kretzmer, Parliaments as constituent assemblies in the age of populism: The case of Israel
Kai Möller, Liberty and personal responsibility in Dworkin’s theory of rights
Andreas Buser, Planetary constitutionalism: Can (German) constitutional law save the planet?
M. Victoria Kristan, Global democracy and unrepresentative states
Legesse Tigabu Mengie, Non-judicial constitutional review and the rule of law: The case of Ethiopia
Pranoto Iskandar, Mistranslating constitutional law? Hukum tata negara as vernacular constitutional law
Lorraine Wu, The endurance of interim constitutions
Stephen Gardbaum, The case for plural executives in the age of strongmen
I•CON Debate!
Armin Steinbach, European public goods
Marco Goldoni, The constitutional law and political economy of European public goods. A reply to Armin Steinbach
Book Reviews
Rafał Mańko, Review of Adam Sulikowski. Postliberal Constitutionalism: The Challenge of Right Wing Populism in Central and Eastern Europe
Uladzislau Belavusau, Review of Cheng-Yi Huang (ed.).Constitutionalizing Transitional Justice: How Constitutions and Constitutional Courts Deal with Past Atrocity
Stefano Osella, Review of Rehan Abeyratne. Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment
Tiojanco Bryan Dennis G., Review of Andrew Harding. Territorial Governance in Southeast Asia
Rosalind Dixon, Review of Ran Hirschl. Constitutionalism 2050: Planetary Challenges, Statist Thinking
ABSTRACTS
Manal Totry-Jubran and David Kretzmer, Parliaments as constituent assemblies in the age of populism: The case of Israel
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.
Kai Möller, Liberty and personal responsibility in Dworkin’s theory of rights
This article explores the conceptions of liberty and personal responsibility in Dworkin’s late theory of rights. It demonstrates that, from a moral and philosophical perspective, Dworkin’s doctrine of liberty is somewhat deficient. However, from a legal or constitutional perspective, it achieves something that its main rival – proportionality-based rights adjudication under the culture of justification – cannot and does not seek to deliver, namely a “good enough” protection of a distinct sphere of liberty. This, the article suggests, makes Dworkin’s final statement on rights and liberty the first in his long career to become a plausible candidate for judicial endorsement and application.
Andreas Buser, Planetary constitutionalism: Can (German) constitutional law save the planet?
Constitutional and rights-based climate litigation has led to significant doctrinal developments in several jurisdictions over the last decade. These developments have drawn considerable attention to climate change and climate law, but they risk overshadowing other urgent planetary crises. Earth-system science indicates that humanity has already transgressed seven of the nine planetary boundaries, of which climate change is only one. In response to these insights, this article introduces the concept of planetary constitutionalism. Building on earlier notions of environmental constitutionalism while also moving beyond them, the article draws on de constitutione ferenda proposals in Switzerland and Germany to theorize how national constitutions could explicitly establish legal limits on the planetary footprint of their economies, including externalized environmental harm. Given the limited prospects for explicit constitutional reform, the article then examines the interpretive potential of constitutional rights and constitutional environmental provisions in Germany to establish planetary legal limits. Drawing on debates already unfolding in German scholarship, as well as arguments advanced in Germany’s first constitutional biodiversity case, the article analyzes whether legal doctrines developed in climate litigation—most notably the much-debated concept of intertemporal guarantees of freedom—can also be applied to the second core planetary boundary, biosphere integrity, and whether they can extend to the full planetary footprint of a state. The article reaches a nuanced conclusion, highlighting both the significant contributions and the substantial limitations of German constitutional doctrine in defining “fair” planetary legal limits and governing the extraterritorial planetary footprint, while emphasizing the need for further research on planetary constitutionalism in Germany and beyond.
M. Victoria Kristan, Global democracy and unrepresentative states
Can the current international system provide sufficient protection for individual freedom in a globalized world? The aim of this article is to show that only a legitimate international system could plausibly provide such protection. At present, however, the international system lacks legitimacy, as it is composed of a large number of unrepresentative states that dominate their citizens. Consequently, this paper analyzes the possibility of international interventions as a means of transforming nondemocratic states into democratic ones, based on the distinction between dominating and non-dominating interventions, according to whether freedom as a status is compromised, and in turn between interventions that strengthen and weaken global democracy.
Legesse Tigabu Mengie, Non-judicial constitutional review and the rule of law: The case of Ethiopia
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.
Pranoto Iskandar, Mistranslating constitutional law? Hukum tata negara as vernacular constitutional law
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.
Lorraine Wu, The endurance of interim constitutions
Interim constitutions have become increasingly prevalent in modern constitution-making, yet they have received comparatively limited scholarly attention. While they are defined by their “interim” nature, the meaning of this designation remains conceptually and empirically unclear, with existing scholarship often treating it as self-evident. This article addresses that gap through an original empirical study of forty-one interim constitutions adopted between 1990 and January 2025, examining how long these instruments remain in force, the factors that shape their duration, and the implications of their endurance for the constitution-making processes they are meant to facilitate. Conceptually, the article identifies four key roles interim constitutions play within constitution-making processes: (i) procedural frameworks; (ii) training wheels; (iii) first drafts; and (iv) last resorts. Empirically, the article challenges the assumption that interim constitutions are inherently short-lived, finding that two-thirds of the interim constitutions surveyed exceeded their deadlines for replacement, while almost one-fifth remained in place for over a decade. The study finds that the inclusion of explicit deadlines does not correlate with shorter interim periods, while conflict intensity during the interim period emerges as a statistically significant predictor of longevity. Given that written constitutions intended to be permanent have an average lifespan of only nineteen years, can a constitution labeled “interim” still be considered as such if it remains in force for just as long, or even longer? The article proposes a typology of constitutions based on their temporality, distinguishing between interim, permanent, failed, and accidental constitutions, and explores the implications of accidental constitutional endurance for the design of interim constitutional processes as procedural frameworks, training wheels, first drafts, or last resorts.
Stephen Gardbaum, The case for plural executives in the age of strongmen
This article reconsiders the traditional republican institution of the plural executive in the context of the global problem of democratic backsliding. It argues that, institutionally, the problem is significantly rooted in the combination of two general modern developments in executive power within democracies that necessitate fresh thinking about its basic structure. These are the rise of executive governance and the distinct phenomenon of “chief executive aggrandizement,” the growth in power within the executive of its head or chief. The most extreme version of this latter development has been the emergence of the “strongman” chief executive—both presidents and prime ministers—whose signature move has been to further concentrate power in themselves. The article explains that plural and single executives are not a binary but a spectrum before exploring the wide range of possible plural executives resulting from different permutations of three variables: (i) types of plurality; (ii) the bases of executive representation; and (iii) the “forms” of plural government. The article then revisits conventional arguments in favor of single executives to make a contemporary case for plural ones before assessing the preferred type. The discussion focuses on the extent to which plural executives may better achieve and balance the four key values of democratic governance—stability, effectiveness, accountability, and representativeness—which are skewed and threatened by the current combination of executive dominance and chief executive aggrandizement
Armin Steinbach, European public goods
With the European Union notoriously struggling to articulate a persuasive legitimating narrative, the concept of European public goods has recently emerged as a reference point for justifying centralized EU action. Reports by Mario Draghi and Enrico Letta invoke this concept, but its the contours remain poorly defined. While legal scholarship has not generally adopted public goods as a core normative category, this article examines the legal dimension of European public goods. Drawing on fiscal federalism theory, it analyzes three principal criteria used to identify public goods that should be provided at the EU level—externalities, economies of scale, and preference homogeneity— and demonstrates that tradeoffs frequently arise among these benchmarks depending on the good in question. The article argues that te European Union’s existing institutional and legal framework contains a range of instruments and principles capable of addressing these tradeoffs. It identifies five such mechanisms: the allocation of competences within the Treaty; decisionmaking rules in the Council; the provision of public goods through clubs of member states operating within or outside the Treaties; varying combinations of centralized and decentralized rulemaking, financing, and delivery; and compensation or redistributive mechanisms designed to achieve greater alignment of preferences. The article concludes that the question of whether public goods should be provided at the national or European level is often misconceived. The more important question is how institutional arrangements can be designed to provide particular public goods in ways that maximize their benefits for EU member states.
Marco Goldoni, The constitutional law and political economy of European public goods. A reply to Armin Steinbach
This reply examines Armin Steinbach’s account of European public goods and his proposal for identifying the appropriate level of governance for their provision within the European Union. Steinbach’s framework combines a broad economic definition of public goods with a constitutional economics methodology, focusing on criteria such as externalities, economies of scale, and preference heterogeneity to guide the allocation of competences among local, national, and EU levels. The reply reconstructs this approach and situates it within current debates on European integration and subsidiarity before exploring its implications for European constitutional law. Particular attention is devoted to the treatment of the single currency as a form of club good, which serves as a case study for assessing the limits of an economic framing of public goods. The reply then reflects on the role assigned to constitutional law within this framework and contrasts it with insights from law and political economy scholarship, highlighting alternative ways of understanding public goods as legally and politically constituted.