Mattias Kumm

• New York University

This open access book asks whether there is space for particularism in a constitutional democracy which would limit the implementation of EU law. National identity claims are a key factor in shaping our times and the ongoing evolution of the European Union. To assess their impact this collection focuses on the jurisprudence of Czechia, Hungary, Pol...

Notwithstanding the political origins of constitutionalism in the west and the leading role played by the United States in the creation of the new global order after WWII, this origin of the global constitutional project does not undermine the claims to universality underlying it. After laying out a basic account of some core theoretical premises g...

Cambridge Core - Political Theory - Public Reason and Courts - edited by Silje Langvatn

Global Constitutionalism as agora: Interdisciplinary encounters, cultural recognition and global diversity – CORRIGENDUM - Volume 8 Issue 2 - ANTJE WIENER, JEFFREY L DUNOFF, JONATHAN HAVERCROFT, MATTIAS KUMM, KRISZTA KOVÁCS

Global Constitutionalism as agora: Interdisciplinary encounters, cultural recognition and global diversity - Volume 8 Issue 1 - ANTJE WIENER, JEFFREY L DUNOFF, JONATHAN HAVERCROFT, MATTIAS KUMM, KRISZTA KOVÁCS

Editorial: Donald Trump as global constitutional breaching experiment - Volume 7 Issue 1 - JONATHAN HAVERCROFT, ANTJE WIENER, MATTIAS KUMM, JEFFREY L DUNOFF

With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or d...

Editorial: The end of ‘the West’ and the future of global constitutionalism - Volume 6 Issue 1 - MATTIAS KUMM, JONATHAN HAVERCROFT, JEFFREY DUNOFF, ANTJE WIENER

In the modern constitutionalist tradition, the concept of constituent power imagined to be held by “We the People” is widely held to be foundational for the legitimate authority of constitutions. There is, however, a jurisprudentially questionable structural nationalist/statist as well as voluntarist/positivist character in the way that “We the Peo...

Introducing global integral constitutionalism - Volume 5 Issue 1 - JAMES TULLY, JEFFREY L. DUNOFF, ANTHONY F. LANG, MATTIAS KUMM, ANTJE WIENER

Hard times: Progress narratives, historical contingency and the fate of global constitutionalism - Volume 4 Issue 1 - JEFFREY L. DUNOFF, ANTJE WIENER, MATTIAS KUMM, ANTHONY F. LANG, JAMES TULLY

When the Federal Constitutional Court (hereinafter FCC) decided to refer the question of whether the European Central Bank's (ECB) decision on the purchase of Outright Monetary Transactions (OMTs) is compatible with EU primary law, it effectively forced the Court of Justice of the European Union (CJEU) into a game of “chicken.”

If the point of constitutionalism is to define the legal framework within which collective self-government can legitimately take place, constitutionalism has to take a cosmopolitan turn: it has to occupy itself with the global legitimacy conditions for the exercise of state sovereignty. Contrary to widely made implicit assumptions in constitutional...

The proportionality test is at the heart of much of contemporary human and constitutional rights adjudication. It is the central structural feature of a rights-based practice of justification. Notwithstanding its widespread acceptance, a number of challenges have been brought forward against it. Perhaps one of the most serious is the claim that an...

This chapter offers a new interpretation of the well-known "pluralist" constitutional theory of the European Union. It first discusses the structure, implications, and shortcomings of two widely endorsed theoretical frameworks used by different courts at different times that are incompatible with constitutional pluralism properly so-called: Democra...

This comment explores how experimentalist governance is connected to wider constitutional questions and makes two claims. First, there are good reasons to believe that experimentalist governance can only flourish in a world where the precepts of liberal democratic constitutionalism have been widely accepted and institutionalized. Experimentalist go...

In A Theory of Constitutional Rights Robert Alexy provides an account of the structure and domain of constitutional rights. The core claim relating to the structure of rights is that constitutional rights are principles and that proportionality analysis is necessarily at the heart of reasoning about what principles require in real contexts. The cor...

There is basic disagreement about how European Union Law fits into the World of Public Law. When EU Law conflicts with UN Law or the constitutional law of Member States, there remains a great deal of confusion about whether and how courts should subject the law of the larger community to review under constitutional standards. The article argues tha...

The idea of a 'postnational constellation' conjures up a world in which globalisation, privatisation, and individualisation have changed the basic configuration of the legal and political world. The state has become disaggregated as regulatory authority has shifted towards transnational governance structures and devolved to subnational public autho...

The institutionalization of a rights-based proportionality review shares a number of salient features and puzzles with the practice of contestation that the Socrates of the early Platonic dialogues became famous for. Understanding the point of Socratic contestation, and its role in a democratic polity, is also the key to understanding the point of...

Introduction: Constitutionalism beyond the State? The Skeptic's Challenge. The language of constitutionalism has become widespread among international lawyers. International law as a whole or specific international regimes are described using constitutional language. Yet from the perspective of many national constitutional lawyers - not only, but p...

This comment takes issue with three claims made by Armin von Bogdandy about the role of “doctrinal constructivism” as it relates to the European public law tradition. First, the rise of constitutional law as a subdiscipline of law is not plausibly explained by the adoption of a conceptually focused positivist method. Its successful institutionaliza...

The principle of proportionality has become a central structural feature of rights adjudication in liberal democracies worldwide. One of the most pressing issues such a practice raises is institutional: What reasons are there to believe that courts are better positioned institutionally then politically accountable actors, if all they are guided by...

Does international law suffer from a legitimacy crisis? International law today is no longer adequately described or assessed as the law of a narrowly circumscribed domain of foreign affairs. Its obligations are no longer firmly grounded in the specific consent of states and its interpretation and enforcement is no longer primarily left to states....

No abstract available.

Die Europäische Union ist eine Rechtsgemeinschaft, deren normatives Fundament die klassischen Prinzipien des aufgeklärten Republikanismus sind: Menschenrechte, Demokratie und Rechtsherrschaft. Politische und rechtliche Konflikte in einem solchen Gemeinwesen sind im wesentlichen Konflikte, die Fragen der Interpretation und Konkretisierung dieser Pri...

Europeans will not become constitutional patriots any time soon. The first part of the article argues that this is not because of anything inherently implausible about the idea, either generally, or when applied to the European Union. But the actual institutional features of European politics make it improbable that Europeans will develop allegianc...

What do you have in virtue of having a constitutional right? In which way, if at all, are rights ‘trumps’, ‘firewalls’, or enjoy some kind of ‘special priority’ over competing considerations of policy? Even though there are interesting and significant differences between conceptions of rights in the liberal tradition, they generally share the idea...

The article establishes three propositions. First, if a constitution establishes the principles of subsidiarity and proportionality as legal principles, questions of competencies are closely tied up with questions of regulatory policy. This means that the Treaty carves out a powerful role for the Court of Justice to assess the jurisdictional reason...

A. From the Total State to the Total Constitution? In 1931 Carl Schmitt published an article titled "the turn to the total state." 1 The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a...

There is a tension inherent to the idea of constitutional self-government, as it is understood by many constitutional lawyers, and the claims to authority made by international law. As International law has expanded its scope, loosened its link to state consent and strengthened compulsory adjudication and enforcement mechanisms, this tension has be...

One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Tre...

A sense of cohesion grounded in a common identity is widely believed to be a prerequisite for a functioning democratic European polity. If the European Union is to master successfully the tasks assigned to it in the Constitutional Treaty and, using a non-consensual procedure, decide on policies that concern the security of its citizens or have sign...

Altneuland: The European Constitutional Terrain It is in many respects a New Land - for the first time the Union is openly, officially using the word Constitution in its formal self-understanding. But this, in turn, places it, at least lexically, in the age old terrain of constitutionalism which has been around in its modern guise at least since th...

This paper examines the recent decentralization of governance in Indonesia and its impact on local infrastructure provision. The decentralization of decisionmaking power to local jurisdictions in Indonesia may have improved the matching of public infrastructures provision with local preferences. However, decentralization has made local public infra...

The debate about judicial review is not over. In the latest round of contributions on what is one of the classical issues of Post World War II constitutionalism, Jeremy Waldron 1 and Richard Bellamy 2 restate, sharpen and refine old arguments against the authority of courts to set aside or declare null and void legislation on the grounds that it vi...

This is a very rough incomplete first draft. Do not cite or circulate without permission. For internal use only.) I. The Legitimatory Trinity The focus of this paper are the central conceptual and normative ideas that are in play in the interpretation and contestation of the contemporary practice of what I call gobal public law. Global public law a...