Constitutional Research Articles

Competition law through the lenses of national constitutions: connecting competitive markets with socio-economic and environmental values

Abstract This article analyses competition legislation through the lenses of national constitutions, given that these constitutions establish the foundational structures of national legal systems to which competition laws inherently belong. Building on existing constitutional literature, it posits that competition laws should be construed in accordance with the values promoted in national constitutions. The analysis is situated within the contemporary discourse surrounding the ongoing ‘just transition’ towards a carbon-neutral economy, i.e., a process in which socio-economic values (pertaining to the right to work, right to healthcare, and right to food) and environmental values (pertaining to a clean environment, biodiversity, and reducing emissions) constitute guiding tenets. Such a context invites the question of whether competition laws should be built and interpreted in a manner that facilitates the enhanced integration of socio-economic and environmental values enshrined in national constitutions. These contemplations are pivotal, since law plays a constitutive role in designing socio-economic structures, with the structuring of competitive markets being no exception. In light of this, the paper conducts a review of how national constitutions across the world safeguard competitive markets, socio-economic values, and environmental values. Specifically, the article categorizes the regulatory frameworks identified within all 52 national constitutions that explicitly protect competitive markets alongside socio-economic and environmental values. Subsequently, the paper transitions to an examination of two countries—Poland and South Africa—to elucidate how national competition laws reflect constitutional choices. It demonstrates that their constitutions and competition laws were shaped in a manner that offers a different space for incorporation of socio-economic and environmental values in the interpretation of competition laws. The article relies on an analysis of the texts of national constitutions and competition statutes, as well as selected case law of constitutional courts and ordinary courts. Overall, the article seeks to incite an academic discourse regarding the significance of national constitutions in the realm of antitrust. At the same time, it expands upon the literature concerning economic constitutions, especially regarding the European Union and its Member States.

Entrepreneurial Psychological Contracts: Shaping the Future of Work in Times of Uncertainty

In the backdrop of a global work environment characterized by uncertainty, fragmentation, and precarization, this paper introduces the ‘entrepreneurial psychological contract’, a concept that reshapes our understanding of employment relations in new venture creation. The paper responds to the need for reimagining employment in an era where standard, stable employment is increasingly an exception. By extending psychological contract theory with insights from incomplete contracting literature, a nuanced perspective is provided on how entrepreneurs navigate the inherent uncertainties of new ventures to establish employment agreements. The paper is conceptual, and it reveals that entrepreneurial psychological contracts are markedly different from traditional bureaucratic contracts, characterized by their procedural, associational, constitutional, and polyarchic nature. This distinction is pivotal in comprehending the adaptive employment strategies in entrepreneurial environments, which mirror the global trends of work fissuring and employee precarization. This paper contributes to the broader discourse on how work and employment should be reorganized in contemporary capitalism. It offers theoretical advancements in entrepreneuring, human resource management, and contracting under uncertainty, and presents practical insights for entrepreneurs in crafting flexible and resilient employment relations. The paper aligns with the call for broadening perspectives on work, promoting sustainable organizational practices, and envisioning new ways of mobilizing workers in the face of global challenges.

Neoliberalism and legal culture: The path of least resistance is what makes rivers run crooked

This article examines the relationship between neoliberalism and legal culture in South Africa, focusing on how the neoliberal paradigm influences legal interpretation and the adjudication of socio-economic rights. It explores how neoliberalism, defined as the dominance of capitalist forces over weaker oppositional interests, permeates judicial decision-making, shaping how courts address issues of inequality and social justice. The article argues that neoliberalism, in prioritizing market interests, has contributed to a conservative legal inertia that prevents transformative legal outcomes. This dynamic has entrenched existing socio-economic disparities, especially as state power continues to serve the interests of capital, reinforcing apartheid-era economic structures. Despite the transformative potential embedded in South Africa's constitutional framework, the legal system remains constrained by what Karl Klare terms as professional sensibilities, codes, and values, many of which are influenced by neoliberalism. Drawing on theoretical insights of Karl Klare, the article calls for a rethinking of legal culture and a shift towards more relational, metaphorical approaches that challenge hegemonic narratives. Only by resisting these metanarratives can meaningful transformation be achieved in the pursuit of equality and justice.

Judicial Activism and Governance: A Comprehensive Analysis of Constitutional Principles

The research examines the evolving role of the judiciary in shaping and influencing public policy, emphasizing the delicate balance required to maintain the separation of powers while ensuring effective governance. The study encompasses a broad spectrum of constitutional doctrines and judicial decisions to provide a comprehensive understanding of the dynamics between the judiciary and the other branches of government and it also acknowledges the potential benefits of judicial activism in addressing societal issues. It not only helps in protecting fundamental rights but it also scrutinizes the concerns surrounding overreach and the erosion of democratic principles. A central focus of the paper is the intricate relationship between judicial review and the separation of powers. The analysis evaluates how judicial activism can serve as a check on the legislative and executive branches, ensuring that constitutional rights are safeguarded. However, it also underscores the need for judicial restraint to prevent the judiciary from encroaching on the policymaking domain reserved for elected representatives. The paper discusses the evolving nature of constitutional interpretation and the potential impact on governance, with a specific emphasis on how judicial decisions can influence the legal landscape and societal norms. Furthermore, the analysis considers the role of judicial activism in addressing contemporary challenges such as social justice, environmental protection, and technological advancements. In conclusion, this comprehensive analysis provides a nuanced understanding of the relationship between judicial activism and governance, emphasizing the importance of striking a balance that upholds constitutional principles while respecting the roles of the other branches of government. The paper contributes to the ongoing discourse on the evolving nature of judicial power and its implications for effective and accountable governance within a constitutional framework.

Imaginary of Post-National European Constitutionalism: Lessons from Central European Philosophy, Sociology and Jurisprudence

Abstract The article focuses on the paradoxes of constitutional identity and the impact of constitutional sovereignty on post-sovereign European society and politics. It uses post-1989 constitutional and social transformations in Central European countries, the rise of constitutional populism and identitarian politics to argue that the nation state continues to operate through the principle of constitutional sovereignty even in the EU’s post-sovereign constitutional constellation. It thus proves that democratic politics is identity politics even in post-sovereign and post-national politics and the EU’s supranational organisation has to respond to the constitutional and political identity question through its own structures and semantics. The central argument, therefore, revisits classic notions of social and constitutional theory such as the distinctions between community and society, ethnos and demos or authenticity and alienation to outline the persistence of nationalism and its varieties in contemporary constitutional populism in Central Europe. While recognising that the nation state continues to be the only organisation to successfully combine rational efficiency and communal bonds constituted by the national identity, the EU’s response to the challenges of constitutional populism and nationalism needs to enhance its democratic legitimation and constitutionally integrate the imaginaries of European public spheres and demoicracy to promote an anti-explosive alternative to the explosive nationalist imaginaries.

Numerical modeling of hydro-mechanical processes during hydraulic testing of pre-existing fractures at the Grimsel Test Site, Switzerland

This study presents a fully coupled hydro-mechanical framework for modeling hydraulic shearing in a mesoscale reservoir located at the Grimsel Test Site, Switzerland. The experiment was conducted on a ductile–brittle fault embedded in low-permeable granite. We observe that normal fracture opening increases flow channel recoverably, while fracture sliding locks asperities leading to a non-recoverable increase in flow. To couple these processes, we use a poro-elasto-plastic constitutive framework and employ a permeability function that depends on several parameters, such as dilation angle, in-situ stresses, residual aperture and maximum aperture. Our results capture the recorded pressure responses well, and indicate that the permeability changes by one order of magnitude during the experiment.

“The Age of Malice”: Estupro, Consent, and the Foundations of Victim Blaming in the Criminal Courts of Buenos Aires, 1853–1878

This article examines the judicial treatment of pubescent, female victims of sexual assault in Buenos Aires, Argentina, between 1853 and 1878, dates that span the decades between the national constitution and the adoption by Buenos Aires Province of new penal legislation. Centering the case of 13-year-old Irene Mestosini, it analyzes the prosecution of estupro cases through the paradigm of rape culture and victim blaming. It exposes how, by casting pubescent girls as malicious because of their physical and mental development, authorities blamed them for their assault while dismissing men's aggressive sexuality. By illustrating the ways in which physiological development worked alongside legal cultures, class expectations, and heteronormative gender norms to create a culture of impunity around sexual assault, this article suggests that modern notions of acceptable and unacceptable sexuality emerged in Buenos Aires earlier than in other parts of Latin America, where honor remained a central concern well into the twentieth century.

Thrasymachus’ government: an analogy with Machiavelli’s <i>Prince</i>

In Book I of Plato's Republic, Thrasymachus' proposal opens an important field of analysis within political philosophy, as it is through his discourse that justice becomes associated with the existing government policy in cities, given that, regardless of the political constitution, force always belongs to the governments and it is these who make the laws that it is fair for the governed to obey. This work aims, first, to analyze Thrasymachus' proposal for the whole of political philosophy and, second, to relate this proposal with Machiavelli's The Prince.

Folk Constitutionalism, or Why it Matters How Ordinary People Think about the Constitution

ABSTRACT A truly inclusive democratic politics must be understandable, or cognitively tractable, for ordinary people busy with the rest of their lives. This extends not only to everyday politics and policy, but to constitutional politics as well—non-specialist democratic citizens should be able to grasp the fundamental law that governs them and imagine their own role in shaping it as political agents. Yet these requirements raise a difficulty: in many countries, including the United States, constitutions are treated as the exclusive domain of lawyers and judges. As a result, constitutional matters are typically discussed using legalistic jargon that is inscrutable even to non-specialist lawyers, let alone ordinary citizens. How then can constitutional politics be made legible to ordinary citizens? In this essay, I argue this challenge is partly one of political ideas—specifically, the ideas ordinary citizens use to think about their constitutions, or their folk constitutionalism. This may sound strange because insofar as constitutions are treated as lawyers’ exclusive turf, the problem may seem to be one of practice, not merely ideas. But popular practices of what scholars like John Finn and Elizabeth Beaumont call popular or civic constitutionalism involve citizens and social movements in transforming constitutions. These transformations often occur behind the backs of everyone involved, as new frames and understandings come to gradually transmute constitutional meaning, which in turn pervades the public political culture and reshapes the public’s constitutional imagination. I suggest we need ideas that more closely reflect what democratic citizens already do in democratic constitutional politics, so that they can do it more self-consciously and dispel the impression of an anti-democratic lack of control that recent constitutional innovations reveal to be illusory. I explore the utility of ideas of unwrittenness and functional multi-textuality to the end of a folk constitutionalism appropriate for democracy.

Reconceptualizing Constitutionalism in the AI Run Algorithmic Society

Abstract This Article is dedicated to what is arguably one of the most significant tests to which constitutionalism has been subject to in recent times. It examines the theoretical and practical challenges to constitutionalism arising from the profound technological changes under the influence of artificial intelligence (AI) in our emerging algorithmic society. The unprecedented rapid development of AI technology has not only rendered conventional theories of modern constitutionalism obsolete, but it has also created an epistemic gap in constitutional theory. As a result, there is a clear need for a new, compelling constitutional theory that adequately accounts for the scale of technological change by accurately capturing it, engaging with it, and ultimately, responding to it in a conceptually and normatively convincing way.

The Impact of Political Interference on the Judiciary: India Vs. Pakistan

This paper investigates the significant effects of political interference on the judiciary in India and Pakistan, two countries with a common colonial history but differing paths since gaining independence. The judiciary serves as a fundamental pillar of democratic governance, designed to function independently while protecting the rule of law and upholding constitutional rights. Nevertheless, in both nations, political influences have notably affected judicial operations, compromised judicial independence and eroding public confidence. Through a comparative examination, this study highlights important historical moments, landmark rulings, and constitutional frameworks that demonstrate the degree and nature of political interference within both judicial systems. In India, such interference has emerged through executive control over judicial appointments and crises, notably during the Emergency period from 1975 to 1977. In contrast, Pakistan's judiciary has experienced direct meddling from military governments and political authorities, frequently rationalized by the contentious Doctrine of Necessity. Additionally, the paper investigates how the judiciary has responded to these interferences, including instances of judicial activism and civil society initiatives that promote judicial independence, such as the Lawyers' Movement in Pakistan. Ultimately, this research emphasizes the urgent need for strong protections to ensure judicial independence, bolster public trust in the judiciary, and maintain democratic principles in both countries. By highlighting the comparative experiences of India and Pakistan, this study aims to enrich the broader discussion on judicial independence in South Asia.

Azərbaycan Respublikasının Prokurorluğunun hüquqi statusu, vəziyyəti və inkişaf perspektivləri (prosessual aspektdə)

The prosecutor's office in the Republic of Azerbaijan is the basis for ensuring the rule of law and protecting the rights and interests of citizens within the framework of the country's legislation. This article aims to examine the legal situation, current conditions and future prospects of the Azerbaijani prosecutor's office, paying special attention to its procedural functions. The legal authority of the prosecutor's office is determined by the national Constitution and relevant legislation. Currently, the current state of the prosecutor's office is characterized by a number of challenges and opportunities. It should be noted that the prosecutor's office in Azerbaijan plays an important role in the legal system of the country. The prosecutor's office contributes to the rule of law and the protection of the rights and interests of citizens by solving the problems encountered and using the opportunities that have arisen. Keywords: Republic of Azerbaijan, prosecution, procedural aspect, ınvestigation, court procedures, legal status, rule of law, ınternational standards.

India As a Democratic Nation- Concepts and Perceptive

India, as the world's largest democracy, presents a unique and diverse political landscape. Since gaining independence in 1947, it has upheld democratic ideals amidst challenges of diversity, inequality, and external threats. This paper explores the foundational concepts of Indian democracy, its key features, and its role as a beacon of democratic governance in the global arena. By examining India’s electoral system, constitutional framework, and challenges, we gain insights into how democracy functions in one of the most populous and complex nations in the world.

Gender Equality Through Abortion Rights: Exploring the Constitutional Framework and Social Justice

This paper examines the legal protection of the right to abortion under the U.S. constitutional framework and its impact on women's equality. The study traces the historical and jurisprudential development of the right to abortion and examines the impact of restricting this right on women's education, employment, and overall social justice. This is achieved through the analysis of relevant legal documents. The findings indicate that the protection of the right to abortion is crucial for the assurance of women's autonomy in matters of reproduction, and has a substantial influence on their educational and economic prospects. The paper concludes that the constitutional protection of abortion is a crucial step in achieving gender equality and social justice. It is incumbent upon governments and courts to promote gender equality and social justice by introducing legislation to protect the right to abortion and by creating social security systems. The following section will examine the aforementioned topic in greater detail.

A Promising Piece of the Puzzle: Human Dignity and the Role of Section 1 of the Charter

In this brief piece, I want to take up Major’s invitation to think about the “puzzle” and the “promise” of human dignity, but from a different perspective. In particular, I want to consider whether any negative implications of adopting a conception of human dignity that encompasses the elderly offender who is sentenced to die in prison can be rationalized within the broader constitutional framework. My suggestion is that the tension relating to the “young” and “elderly” offenders may be better addressed by focusing on the role of section 1 of the Charter. While that provision received negligible mention in Bissonnette, it may be used to justify sentencing elderly offenders to effectively die in prison for heinous crimes like murder because any other approach would fail to adequately deter others, who are similarly situated, from committing such crimes. As I explain, this framework falls back on early recognition by the Supreme Court that utilitarian arguments for increasing punishment are properly considered as justifications, under section 1, for imposing what are otherwise “cruel and unusual treatments or punishments.”

The right to food: A fundamental human right and its imperatives

In an age of unprecedented global wealth and technological advancement, the persistence of hunger and food insecurity remains one of the most glaring contradictions of our time. The right to food is a fundamental human right enshrined in various international treaties and national constitutions. Yet, despite this recognition, millions of people across the globe continue to suffer from malnutrition and starvation, highlighting a critical need for holistic action to uphold this fundamental right. Available statistics reveal that Africa bears a disproportionate burden of malnutrition and food insecurity accounting for 20 percent and 61 percent2 of the population respectively. There is a link between access to food in the right quantity and quality and the cognitive development of children which has a spillover effect on the productivity of nations [2, 3]. It is time to reaffirm our commitment to ensuring that this basic right is upheld for all. This right is essential not only for ensuring that individuals lead healthy and productive lives but also for promoting broader social and economic stability. This editorial explores the dimensions of the right to food, its implications, and the urgent need for a coordinated effort to address food insecurity.

EU–UK relations after the war in Ukraine: options to re-engage post Brexit

The article examines the relationship between the UK and the EU after Russia’s aggression of Ukraine, discussing options to deepen cooperation post-Brexit. The article outlines the current framework of EU–UK relations, emphasising the limited partnership in place today under the Trade & Cooperation Agreement (TCA). It then highlights the possibilities offered by the TCA review, mandated in 2026, to expand bilateral relations. Moreover, this study maps broader developments occurring in the European institutional landscape following the war in Ukraine, including the establishment of the European Political Community and the renewal of the North Atlantic Treaty Organisation and the Council of Europe, and discusses how they create new opportunities for the UK to reconnect with the EU. Finally, the article considers how transformations in the EU constitutional framework, and the process of enlargement to Ukraine, impact on European integration, with possible consequences for the position of the UK.

Constitutional design preferences: An experimental approach

Abstract A rich literature links the survival of national constitutions to their legitimacy among citizens. However, most studies examine constitutions as a bundle of rights and institutions, and few test the micro-foundations of constitutional preferences explicitly. This article examines how individuals evaluate both the content and flexibility of discrete constitutional elements using a conjoint experiment in Japan. Respondents were asked to rate twenty-six hypothetical constitutions that varied randomly in their enumeration of twelve rights and institutions. We find that citizens generally prefer constitutions that enumerate more provisions, with greater weight placed on human rights than political institutions. This result largely confirms theoretical expectations from earlier work on comparative constitutional design. In addition, political factors, such as partisanship, moderate preferences on issues that have long divided progressives and conservatives in Japan, such as constraints on the military and establishing national emergency provisions. By contrast, socioeconomic characteristics such as income, age, and education do not, suggesting broad demographic consensus on the merits of distinct provisions. Importantly, we further demonstrate that citizens do not trade off constitutional detail and flexibility, as suggested by existing research. Respondents who prefer the enumeration of more provisions do not necessarily want a lower amendment hurdle to facilitate adaptation to new circumstances. Preferences about constitutional flexibility appear to be based on strategic imperatives, notably the desire to cement preferred provisions and prevent changes by future majorities.

From the economic to the pandemic crisis: The impact upon the EU constitutional architecture—Introduction to the Symposium

Abstract The European Union has evolved significantly, shaped by crises as foreseen by Jean Monnet, who predicted that Europe would be “forged in crises.” Over recent decades, it has faced challenges such as the euro crisis, the COVID-19 pandemic, Brexit, rule-of-law backsliding, and ongoing geopolitical conflicts. These crises have tested and transformed the European Union’s constitutional framework, prompting institutional reforms and innovations in governance without necessarily revising the Treaties. This Symposium explores the European Union’s constitutional evolution through the lens of crises. Key reforms include the reinforcement of budgetary discipline during the euro crisis and the shift toward a stimulus-based approach in response to the pandemic, culminating in the NextGenerationEU framework. Contributors analyze the model of economic governance that has evolved from the convergence of both the economic and pandemic crises, the changing role of regions, the judiciary’s evolving oversight functions and its limits, and rule of law conditionality as a distinctive form of governance. The Symposium will delve into the post-crisis governance landscape of the European Union from a constitutional perspective, focusing on the structural adjustments implemented and their enduring impact. Despite these changes, the European Union has demonstrated resilience and adaptability, forging new governance structures that reflect its deepening constitutional identity. In the end, the Symposium provides a comprehensive examination of these shifts, highlighting how the European Union continues to integrate and innovate in response to ongoing challenges.

Unshackling from Shadows of the Anisminic Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong Kong

Abstract Ouster clauses have perennially borne the mantle of a ‘litigation minefield’, where clashes between legislative and judicial powers unfold in open fora. Recent jurisprudential advancements in the United Kingdom and Singapore demonstrate how judicial approaches to ouster clauses can evolve in the face of constitutional developments. Hong Kong has, however, remained muted while these jurisprudential advancements bear fruit in other parts of the common law world, notwithstanding the fact that its constitutional framework, umpired by the Basic Law, has been in existence for over twenty-five years. This article argues for the need to reconceptualise approaches to ouster clauses in Hong Kong, grounded firmly in its post-1997 constitutional framework. Drawing on comparative jurisprudence, it presents a spectrum of approaches, animated by the dynamic interplay between various ‘macrocontextual’ and ‘microcontextual’ factors, ranging from a localised version of Anisminic, remedial interpretation, and invalidation of ouster clauses on the grounds that they impermissibly affront the constitutional right of access to courts, allocation of judicial power, and constitutional supremacy.