Volume 23, Issue 1

This is a talk about the decline and fall of constitutional law, an overarching characteristic of the new millennium. I focus on the period from the end of the Cold War—once described as the end of history—to what I call the “Second Cold War” beginning in the second decade of this century and having escalated in the proxy war in Ukraine. The Second Cold War is also characterized by an aborted cooptation of China through the World Trade Organization (to tame China’s seemingly unstoppable ascension to global supremacy) as well as a state of permanent emergency.

Through examination of conflict of laws as to U.S. federal courts and tribal law, this study highlights the impact of culture upon legal meaning. Disparities stem from long-standing norms which underpin legal concepts. These terms which give rise to legal philosophy and the judicial process defy clear English interpretation. Examples include the Latin term mens rea which serves as the foundation for Anglo-American punishment theory, and the Navajo term hózhó from which all conceptualizations of social order emanate. An exploration of these examples in the context of a recent case underscores the close link between law and culture.

In contemporary politics of migration governance, the criterion of legal validity is hindered by legal efficiency. Or parliamentary government before executive governance. This tension between legal efficiency and legal validity can emerge in bilateral soft agreements. The article analyses the EU-Turkey Statement (2016) and the Memorandum of Understanding between Libya and Italy (2017). From these bilateral soft agreements, a turn from legal validity to legal efficiency can be observed. The efficiency criterion, by replacing the one of validity, limits significantly the role of the Parliaments and thus affects the overall institutional balance and the rule of law. The article recognises the geopolitical contingences that determine the adoption of soft law bilateral agreements. However, it suggests reflecting on how legal forms are manipulated to externalise and securitise the borders of Europe by retuning border management from legal efficiency towards legal validity, or in other words from soft to hard law.

The passage of over seven decades, coupled by consistent practice of States, has triggered the emergence of a distinct international legal regime for Palestinian refugees. Unlike the majority of contemporary refugees, Palestinians ‘refugeehood’ would not end pursuant to the acquisition of other citizenship(s) or by gaining protection akin to citizens in host States. Given their distinctive situation, individuals in this group, whose refugee status is intertwined to that of a prolonged denial of the right to self-determination, continue to be entitled to the right of return in their homeland in pre-1948 Palestine, namely either the State of Israel or the new State of Palestine within the 1967-occupied territory, depending on the original place of habitual residence of each individual or his/her ascendants before flight. In short, international law has generated a lex specialis regime for Palestinian refugees, which provides either equal, or heightened, protection and is in no means inferior, to other refugees.

The paper briefly sketches different “adaptations” possible to address the Covid crisis and then advances three possible avenues for future policy analysis of Covid-related measures, each of these avenues being based on a “conjecture”, respectively an evolutionary, a critical, and a cosmopolitan, and conjecture. The evolutionary conjecture implies regulatory transplants, the critical conjecture elicits competition of Covid-related measures, and the cosmopolitan conjecture assumes coordination of policies. The paper discusses how these conjectures based on pre-Covid literature could explain the regulatory dynamics and then asserts that growing evidence shows that regulatory measures appear to naturally lead to a “polity convergence” based on a common core of “Covid-biopower” and “Covid-biopolitics”. This convergence defies the initial expectations that the fragmented reactions to the Covid crisis could be explained by using the traditional research tools and also poses unprecedented critical issues that demand an expansion of the horizon of policy research.