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Focuses on how and why parliamentary systems of governance have accommodated constitutional review. The American and European models of constitutional review are contrasted, and the history, structure, and function of European constitutional courts are surveyed. The necessity of review in defending human rights and its conceptualization as a means of completing the constitution over time are found to be particularly important across these cases, but factors explaining the variance in the judicialization of European law‐making are also identified. The chapter ends with a discussion of the main determinants of European constitutional politics.

The theme of the need to reconceptualize traditional models of legitimation such as separation of powers doctrines is brought into focus. The question of the democratic legitimacy of review is most commonly addressed by grafting Kelsenian constitutional theory onto the classical distinctions between the judicial and the legislative functions. However, this model is found to be theoretically incoherent and empirically inaccurate. An alternative perspective is advanced, arguing that the legitimacy of constitutional review is a product of the participatory nature of constitutional adjudication, driven by strategic interaction that is necessarily pursued through normative argument.

Chapter 5 confronted the imagination of the right to self-determination in international law. It focused on the ways in which interpretations of that right hinge on jurists’ implicit cartographies, their scopic regimes, affective predilections, disciplinary self-images, concealed calculi of suffering, visions of alternative universes, false binaries, and their idiosyncratic levels of (im)patience and anxiety, which—together with their quasi-nationalistic professional commitments and dreams of disciplinary sovereignty—remain some of the main factors that determine how international lawyers interpret the national sovereignty, territorial integrity, and political autonomy of everyone else. After having proposed a number of new ways of looking at the claims of the right to self-determination, Chapter 6 ends on a sobering note: as long as jurists remain preoccupied with their own disciplinary self-determination and ‘linguistic’ purity, they will continue reproducing the flat, monochromatic, and vacuous imaginary of popular sovereignty.

This chapter delineates a critical-realist perspective of the state in international relations. That perspective allows for more political change and global reform than hard-nosed Realpolitiker would acknowledge. It shows how a particular concept of the state — in this case, a Kelsenian liberal state politics — can give rise to such an intellectual persuasion. It argues that for those riven between a Kantian duty to unceasingly work towards perpetual peace and a Freudian realism to recognise the complexities of human nature, the Kelsenian state provides a well-specified philosophical basis for theorising the limits and possibilities of open societies and cosmopolitan global reform in an international system still plagued by a Westphalian ethics and the forces of nationalism.

This chapter focuses on the 1920s, before the Second World War, when only Lichtenstein and Spain had decided to establish constitutional courts. During that period, a particularly powerful voice, that of Hans Kelsen, could be heard in support of the new system. This important legal philosopher was very influential in the construction of the Austrian Constitutional Court—where he served as a judge from 1921 to 1930. There is no doubt that Kelsen deserves enormous credit for the introduction and theoretical defense of constitutional courts. It is very useful to examine Kelsen's ideas in order to understand the intellectual sources of the European model—which is often referred to as “Kelsenian.” Kelsen wrote extensively in favor of subjecting legislation to some type of judicial review and in favor of the centralized model, as opposed to the American alternative.

This chapter focuses on an important organization: the Council of Europe. Its principal mission is to protect human rights. The European Convention on Human Rights, which the Council of Europe adopted in 1950, must be observed by national legislation. This international treaty was an important step for the collective enforcement in Europe of some of the rights set out in the 1948 Universal Declaration of Human Rights. In addition to the convention, the states can choose to ratify several protocols that expand the list of protected liberties. The chapter argues here, however, that there is no reason to depart from the centralizing logic of the Kelsenian model in this context. The chapter's claims are justified by an emphasis on some of the differences between E.C. law and the European Convention on Human Rights.