In the same vein as John Hart Ely, but with a modern, global focus, a new wave of comparative constitutional scholarship focuses on the role of courts in protecting and promoting democracy. This article introduces this new wave of ‘comparative political process’ theory (CPPT), and explains its origins and utility, but also suggests it is best conceptualized as a form of ‘comparative representation-reinforcing’ theory (CRRT). Labels are not everything, but they do matter. And CRRT better captures the varieties of different forms of judicial democracy protection and promotion, and avoids any false claim of neutrality for such an approach.

Taking Global Constitutionalism as an agora, a platform for international interdisciplinary discussions this article asks a question about the state we are in with regard to the international order as an order that is not just a ‘rule-based order’ but also more substantially, a ‘legal order’ based on the rule of law. The topic is illustrated with reference to examples of ‘contested compliance’ i.e. objections to implementing international law and/or international rulings by international actors on behalf of signatories of states parties of a treaty. Three questions guide this discussion. The first is a question of normative change: are we facing a change regarding United Nations member states’ respect for and handling of the rule of law, or is a larger change of international law itself imminent? The second is a question about the effects of the shift from ‘normal’ contestations of norms to ‘deep’ contestations of the international order itself. And the third is a question about pluralism and diversity: are the UN Charter Order’s institutions, conventions and organisations sufficiently equipped to respond to an ever more diverse range of internationally, transnationally, and sub-nationally raised justice-claims? The article elaborates on each of the three themes in light of the current situation of contested compliance with obligations under international law.

This Introduction provides an overview of the topics covered in this special issue on ‘Academic freedom: Global variations in norm conceptualization, diffusion and contestation’, which explores what academic freedom means, how this may vary on a global level, how the norm spread around the world and what current contestations look like. The Introduction defines some terms essential to this debate, such as the freedom of science, academic freedom, freedom of scientific research and the right to science, and offers an analytical framework for the various contributions of the special issue. This includes, in particular, a distinction between illiberal and liberal science scripts and their relationship with academic freedom, as well as between different forms of contestations and limitations of academic freedom. Authors from varying disciplinary and regional backgrounds address different aspects of this theme in their respective contributions, of which the introduction gives a brief summary.

This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.

He seemed to enjoy portraying himself as mostly without allies – a principled contrarian. This was central to his self-consciousness. And John was very conscious of himself.1

This article traces how the ‘freedom indispensable for scientific research’ was introduced into the International Covenant on Economic, Social and Cultural Rights (ICESCR). The review of the drafting history covers ICESCR Article 15.3 and that of its precursor, Article 27 in the Universal Declaration of Human Rights (UDHR). It pays particular attention to arguments presented during negotiations over the UDHR (adopted in 1948), as well as over the ICESCR (adopted in 1966), and it reflects on observable norm entrepreneurship. Following the end of the Cold War, details on the right to science and the status of higher education personnel were further elaborated in soft law, notably in the form of two General Comments and two UNESCO Recommendations. These specifications and the earlier traveaux préparatoires reveal a multifaceted and rich debate about science, development, dignity and freedom at the United Nations, including positions that span variations of a liberal science script as well as persistent illiberal contestations.

This paper seeks to understand modern comparative reflections on John Hart Ely’s work through Comparative Political Process Theory or Comparative Representation-Reinforcing Theory, and how such approaches can be augmented through the lens of therapeutic jurisprudence. It argues that the legitimacy of courts’ actions (or inactions) in such settings can be understood through their potential to strengthen democratic institutions rather than do them harm, acting as a re-set or recalibration of the democratic landscape. By buttressing representation-reinforcing approaches with therapeutic understandings, curial interventions designed to shift longstanding democratic impasses or blind spots are likely to carry much greater institutional legitimacy. By applying this lens to a series of case studies, the paper highlights the normative contribution that therapeutic jurisprudence can provide to representation-reinforcing action and to the design of such approaches.

This article explores the global spread of domestic codifications of academic freedom norms by mapping constitutional provisions over time and space. Drawing on the new Academic Freedom in Constitutions dataset, the study evaluates several hypotheses that may explain the norm’s geographically diverse, yet comparatively limited, adoption in 52 per cent of constitutions today. The descriptive analysis of constitutional adoption patterns suggests that the as yet large pockets of absence are a result of the fact that academic freedom was not included as a fundamental right from the early days of constitution-making, combined with its close link to higher education development, thus locking many countries into a path dependency of early constitutions exclusive of academic freedom norms. The availability of relevant models in nearby countries, together with higher education expansion, are key facilitators of academic freedom adoption at the critical time of a constitutional reform process. Diverse countries in different regions acted as norm entrepreneurs, often motivated to domestically protect academic freedom, thus leading to the emergence of regional and other clusters of academic freedom reference types. A sizeable proportion of insincere adopters further suggests that, in some regions, academic freedom serves as a legitimizing international norm.

Transformative constitutionalism and process theory are generally seen as worlds apart. But they may be more compatible than we think. A transformative understanding of process is very broad, but it represents a natural extension of the line already being taken by contemporary process accounts intent on expanding the theory to fit global practice. It can help us to understand why an expansion based on and including a wider set of justiciable process concerns has proved difficult to limit. Conversely, transformative constitutionalism badly needs a better account of judicial restraint to balance its preoccupation with judicial boldness. Since it shares with process theory a deep concern with democracy, it can naturally draw on process accounts to understand its own limits. Democracy-seeking review, in aiming to build as well as protect democratic capacity, needs to be as concerned with restraint as intervention, depending on the context. Working out a transformative process theory is therefore at least an exercise instructive to either side, and it can offer a way to overcome divides that hamper global engagement with these core constitutional issues.

Liberal democracies and illiberal regimes alike recognize academic freedom as a norm that enables scientific progress. This article investigates the extent to which the globalization of academic freedom has been the result of a global diffusion process in addition to national developments, such as modernization and democratization. Academic freedom spread as part of a wider liberal script after World War II. The empirical analysis shows, however, that the codification of academic freedom at the international and regional level has been slower compared with other parts of the liberal script. To the extent that academic freedom has emerged as a global norm, it has happened through decentralized diffusion processes driven by higher education institutions and civil society networks. Different views on meaning, scope and emphasis made international and regional institutions norm takers rather than norm shapers. They only started to systematically institutionalize academic freedom into the liberal script when networks of scholars and higher education institutions mobilized internationally amidst increasing contestations of their academic freedom since the turn of the millennium.

In Latin America, the notions of academic freedom or the freedom of science have not had the overarching influence in defining the prerogatives of scholars and the university that we see them exerting over the experiences of Western Europe and the Anglosphere. The governing notion, from whence all other freedoms emerge, is that of university autonomy. In Latin America, university autonomy evolved over the twentieth century as a protection of the university against the encroachment of governments – often authoritarian or outright dictatorial – so they could carry out their missions as they defined them. In Latin America, the locus of what in Europe is understood as scientific freedom is vested in the universities, not in the professoriate. It is assumed that free universities will foster an environment of academic freedom within. The contemporary contestations of university autonomy in Latin America fit squarely into the liberal script, as they seek to make universities more responsive to policy goals in the areas of higher education quality and accountability, efficiency and productivity, expansion of public or private provision, access and equity. Often, universities and their associations have raised autonomy as an objection to these policy agendas.

John Hart Ely’s theory of judicial review was centrally concerned with the role of courts in preserving democracy in the constitutional context of the United States. At first blush, then, the comparative turn toward Ely might strike a jarring note. This article contributes to the discourse on comparative political process theory, or comparative representation-reinforcing theory, by examining the judicial role in preserving democracy, as well as the role that courts can play in constructing and facilitating constitutional democracy, particularly in fragile democracies. It considers three illustrative examples: the United Kingdom Supreme Court decision overruling the prorogation of Parliament; the Malaysian Federal Court’s development of a constitutional basic structure doctrine; and the Malawi Supreme Court’s decision invalidating the outcome of a presidential election. It concludes with reflections on juristocracy and distrust, and the reach (and limits) of the endeavor to expand Ely’s theory globally.

Judicial remedies are the critical means by which courts worldwide enforce and implement constitutional rights. Yet constitutional remedies were largely overlooked by early political process theorists, such as John Hart Ely. Contemporary comparative political process theory (CPPT) or comparative representation-reinforcing theory (CRRT) pays much greater attention to remedial questions, including the use of a range of ‘weak’ judicial remedies. These CPPT/CRRT scholars have highlighted the risks as well as advantages associated with the use of such remedies, but they have not reached any consensus on how to strike this balance and optimise their use. The article therefore draws on one specific recent version of CPPT/CRRT, namely the theory of ‘responsive judicial review’, to propose one way to strike this balance, namely: In cases impacting the ‘democratic minimum core’, courts should generally prefer strong remedies, with delayed relief only applied for prudential reasons; for other cases, courts should deploy more dialogic remedies, but generally these delayed or suspended remedies should be accompanied by a judicial statement of pre-defined strong remedies that take effect automatically in the event of legislative inaction. In this way, this article suggests that courts can give weak remedies ‘bite’, and hence promote actual legislative debate and dialogue, rather than incentivise legislative inaction after their rulings.

Like other regions of the world, academic freedom is on the decline in Africa. While there are some generic factors accounting for this phenomenon worldwide, others are fundamentally unique to the African context. These are related principally to the subject matter of coloniality of higher education on the continent. This study addresses these matters by, among others, discussing the origins of the university in pre-modern Africa and the place of academic freedom in it. This development is followed by the emergence of university education in Europe through the application of the liberal script and which contributed to the sidelining and eventual general demise of higher education institutions with their roots in pre-modern Africa. The work contends that while one may trace the origins of the university/academic freedom to Africa, academic freedom as it stands today is shaped by the liberal script with hardly any reference to the root of higher education in Africa. Therefore, the meaning, understanding and application of academic freedom do not reflect the realities of higher education in Africa. This work proposes the adoption of a relative universalist approach, as opposed to the liberal approach, which is clothed with universality, but in reality, it is a reflection of a European idea of academic freedom. This approach is considered necessary to reflect the African reality of academic freedom which will help to identify effective advocacy tools to promote and protect academic freedom in Africa and thereby make academic freedom more meaningful for application in the region.

This study examines the landmark rulings in the “BBI Case”, adjudicated successively by the High Court, Court of Appeal, and Supreme Court of Kenya, from the perspective of comparative political process theory [“CPPT”]. The BBI case involved a constitutional challenge to a set of seventy-four proposed constitutional amendments to the Constitution of Kenya, 2010. It raised a host of issues, ranging from the applicability of the basic structure doctrine, the role of the President in initiating constitutional change, Presidential immunity, and Fourth Branch institutions, among others. This paper analyses two crucial issues in the case: the articulation – for the first time in its history – of a process-oriented basic structure doctrine, by the High Court and the Court of Appeal; and the concurrent holding of the High Court, the Court of Appeal, and the Supreme Court prohibiting the President of Kenya from initiating a constitutional amendment through the “popular initiative” route. It argues that on these issues, the Kenyan courts’ reasoning constitutes a creative, unique, and valuable contribution to CPPT, in the context of constitutional change. When faced with the possibility of abusive amendments within the framework of a two-tiered amendment process, the Kenyan courts responded by setting out rigorous procedural constraints upon the amendment power. As a corollary, the role of the judiciary under this approach is not to invalidate or veto abusive constitutional amendments, but to ensure that they pass through a substantive, rich, and deep process of public participation.

Europe has recently struggled with democratic backsliding and autocratization. This autocratization has accompanied a decline in academic freedom in many backsliding countries, as reported by the Academic Freedom Index. Can the standards set by the European supranational courts effectively safeguard academic freedom? This article provides answers to this question. It argues that despite differences in their approaches, the theoretical conceptions of scholarship held by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (ECJ) share an essential feature: both have moved towards embracing the ‘liberal science script’ by protecting academic freedom. The main difference between the two courts’ approaches is the subject of protection. The ECtHR focuses on the individual rights of academics: It protects free speech in the academic context by establishing a high standard for holding academics liable for publicly expressing their views inside and outside of academia. The ECJ has applied the concept of institutional autonomy, thereby setting a high standard for safeguarding the freedom of academic institutions. This standard can be applied with regard to the demands placed by policy-makers on academia regarding its role in democracy, including gender equality requirements for EU research funding.

This article highlights the challenges of external reactions to authoritarian higher education governance in certain Central and Eastern European countries, especially Hungary and Poland. It interprets the political change in these countries as an authoritarian cultural backlash, which is not just a legal or political problem, but a kind of post-fascist cultural revolution contesting the liberal script. First, the article explains the framework of authoritarian policing in academia based on the more general works of Bob Altemeyer and Zeev Sternhell. Second, it tries to answer the question: What tools could counter these tendencies from the perspective of the European Union? As the article interprets the rise of authoritarianism as a phenomenon rooted in the cultural deficit of the countries concerned, it argues that a programme for a democratic and pluralist cultural counter-revolution should be implemented. However, no nation can be democratized solely by external actors, and the basics of democratic thinking should be developed from the grassroots level. If the crisis in academia is rooted in a value-crisis within the societies concerned, then measures countering this phenomenon should also include promoting Enlightened pluralism at all levels of these societies.

Comparative Political Process Theory or Comparative Representative Reinforcement Theory (CPPT/CRRT) is an emerging scholarly field that theorizes about the courts’ role in the broader comparative universe. Considered an intellectual descendent of John Hart Ely’s work in the American context, CPPT/CRRT emphasizes the courts’ role in preventing democratic backsliding, promoting equality, enhancing the efficacy of democratic institutions, fostering deliberative processes, and addressing the failures of majoritarian politics. CPPT/CRRT scholars generally advocate broadening judicial powers and capabilities to fulfill these roles. This article examines the practicality of such judicial responsibilities through the lens of the review of constitutional amendments in India. It concludes that, despite the theoretical aspirations of CPPT/CRRT, courts are unlikely to meet these expectations in practice due to their institutional limitations. The positive outcomes of judicial interventions tend to be more modest than the protective and proactive actions envisioned by CPPT/CRRT proponents. Moreover, the modest benefits also come at the cost of the potential adverse impacts that an empowered judiciary may impose on the constitutional fabric. Consequently, this article suggests a need for recalibration of CPPT/CRRT scholarship wherein its goals are moderated and its aspirational objectives balanced against the potential adverse effects of an empowered judiciary on constitutional systems.

The European Court of Human Rights has long been cast as a defender of democracy in Europe. Yet, this idea has not always been at the core of the Court’s perception in the literature or indeed aligned with its jurisprudence which are often viewed in more Dworkinian terms. We suggest that there are good reasons, however, to take this idea more seriously in line with some of the early discussions on the function of the Convention. We argue that a good way to flesh out this idea is by drawing on the recent discussion on comparative representation reinforcement, sometimes labelled comparative political process theory, which builds on earlier work by US constitutional theorist John Hart Ely. Such an – expanded and updated – Elyian approach, we believe, has much to offer not just for domestic constitutional courts around the globe, but also for a supranational human rights court such as the ECtHR. We spell out what this might mean for the Court’s jurisprudence with reference to a few key areas of jurisprudence and the protection of minority rights in particular and sketch some implications for when to exercise restraint and when to intervene in a robust manner.

This article examines the status of academic freedom in Hong Kong in light of the increasing securitization of higher education since the implementation of the National Security Law (NSL) in 2020. It provides an analytical framework to comprehend the changing landscape of academic freedom in Hong Kong, highlighting the impact of the NSL and the conflict between the necessity of political control on securitized campuses and the demand for international, free, and high-quality universities to make Hong Kong a global hub for higher education. The article concludes by asserting that the NSL has reshaped and will continue to impact academic freedom and university autonomy concerning core security issues, but there is still a possibility to establish a defendable space for genuine academic freedom in classrooms.