Comparative Law

Having published in the first issue of the first volume of this journal twenty-five years ago, I am delighted to accept the invitation to comment on Professor Richard Albert’s thought-provoking new conceptualization of constitutionalism as it might relate to New Zealand. The issues are not free from controversy in New Zealand, so I tread carefully and from an orthodox constitutional perspective.  I also sound a note of warning about assumptions, grounded in realism.

Albert favors lawful and peaceful attempts by peoples to use the levers of politics and law to achieve constitutional recognition within a state. He sees this as preferable to the sort of revolutionary self‑determination pursued through violence, such as by the Dutch against the Habsburgs in the sixteenth and seventeenth centuries or the Americans against the British in the eighteenth century. Few would disagree. But I caution against assuming away the underlying influence of coercive power in modern nation states. A worldwide resurgence of power politics is currently underway. Legal and political mechanisms in even well-established democratic states can be susceptible to power.

Underlying patterns and distribution of historical coercive power influence the path-dependent nature of constitutional evolution in any state. Historical coercive roots have a habit of running through the grain of a nation’s constitutional culture. They can determine the success of constitutional initiatives. For example, Indigenous peoples are a numerical minority in most states now and their political power tends to reflect that. In many cases, peaceful and lawful initiatives are the only means of constitutional recognition available to indigenous peoples. But such initiatives do not always succeed.

In this Essay, I briefly outline how Albert’s framework can characterize aspects of the constitutional evolution of New Zealand.

This Essay examines the concept of “decolonial constitutionalism,” as articulated by Professor Richard Albert, focusing on its application to Chile’s recent constitution-making processes. Albert defines decolonial constitutionalism as “the use of legal, legitimate, and non-violent means to assert sovereignty, to secure rights, or to achieve recognition for a people, nation, or state.” The Essay explores how Chile’s attempts to draft a new constitution between 2019 and 2023 reflect both the potential and challenges of decolonial constitutionalism, particularly in relation to the rights and recognition of Indigenous Peoples. The first process (2019–2022) prominently featured Indigenous demands, including the proposal to reconfigure Chile as a plurinational state, but was ultimately rejected by the public. The second process (2023), in contrast, marginalized Indigenous claims and emphasized national unity, leading to another rejection. Despite these failures, the Essay argues that the constitutional recognition of Indigenous Peoples, even in a limited form, represents a significant—albeit incomplete—step toward decolonization. The Essay concludes by suggesting that future efforts to address Indigenous rights may need to shift from constitution-making to judicial enforcement and international legal mechanisms. Through this analysis, the Essay contributes to the broader discourse on how constitutional processes can serve as tools for decolonial emancipation.

This Essay sketches an informal theory of the impact of technological change on international economics, and hence international relations expressed as international law. The theory points to a policy trilemma, something that I call Cerberus in a perhaps futile attempt at an arresting metaphor. The Essay uses the trilemma to illuminate the general trends in technology policy we see playing out in China, Europe, and the United States. It argues that we have the privilege of witnessing an ongoing natural experiment in optimal technology regulation and legal policy, with no guarantee as to which approach will prevail.

Of course, like all natural experiments, the signal struggles to emerge against a background of geopolitical noise. Events and projects unrelated to policy competition might decide the game, and we might never find out what an optimal strategy may entail. Still, we can’t rule out the chance that we might learn something as the great game plays out.

The 2011 Arab Spring was an inflection point for the Middle East and North Africa region, representing an opportunity for democracies in countries that have only experienced authoritarianism as sovereign nations. Both Tunisia and Egypt drafted and ratified new constitutions in the wake of their revolutions. Among the chief worries that citizens and onlookers had in their drafting processes was the role that Islamists would have, particularly in human rights and minority protections. As more citizens wanted fundamental rights protected in their constitutions, the drafters had the task of incorporating them with the Islamic identity of the state. Compromises by the Tunisian Islamists and secular groups led to a more well-received constitution by minority groups, while the opposite happened in Egypt. This Comment argues, based on the comparative success of the 2014 Tunisian Constitution, that religious-based democratic states will need to include more protections for minority and historically marginalized groups to increase their acceptance and longevity.