This article uses the rise of referendum democracy to highlight the tenacity of modern nationalism in Western Europe. The proliferation of direct democracy around the world raises important questions about the health of representative democracy. The paper offers a theoretical re-evaluation of the role of the referendum, using the 2014 referendum on Scottish independence to challenge some of the traditional democratic criticisms of popular democracy. The final part of the paper addresses the specific application of referendums in the context of sub-state nationalism, addressing what might be called `the demos question'. This question was addressed by the Supreme Court in Canada in the Quebec Secession Reference but has also been brought to the fore by the Scottish reference and the unresolved issue of self-determination in Catalonia.

This paper provides a dialectical-historical description of the EU's constitutional discourse. It is argued that the early Community's member state blind principle of justice implied the notion of a European political community and led to the establishment of fair procedures for decision making. This coming of age of an encompassing European constitutional narrative of justice and fairness prompted the question of the demarcation between the political role of the European political community and that of member states' political communities. The answer proved to be subsidiarity. However, subsidiarity has introduced national conceptions of justice in the Union's constitutional discourse, at the risk of making European justice dependent on national conceptions of justice.

Duff sets out to present, not theoretical concepts, but ‘real’ principles that underlie positive law. This paper examines whether Duff’s analysis really reflects current law. To that end, this paper analyses the case law of the European Court on Human Rights. As far as his preposition that there are many presumptions of innocence is concerned, Duff seems to be right. In the case law of the European Court different presumptions can be discerned, with different rationales. However, these presumptions are a far cry from the trust principle Duff advocates. Indeed, a principle that prescribes trust cannot be found in the Court’s case law. There might be a unifying principle but if so this principle is about respect for human dignity rather than trust. This analysis serves as a basis for criticism. It is argued that the approach Duff proposes is in tension with the Court’s case law in several respects.