This article explores parallels between the ‘shunning’ and ‘seeking’ of membership of the EU in the context of Brexit and stalled enlargement in south-east Europe, via a focus on the partial, fragmentary and contested governance of citizenship. The case studies place Union citizenship into a wider political and socio-economic context, demonstrating its central importance as an enabler of personal freedom. At the same time, they highlight how the denial or removal of Union citizenship can engender individual strategies to recover lost or denied benefits. From the analysis, parallels emerge between Union citizenship and national citizenship; both offer a promise of equality, but a reality of differentiation and inequality. At the same time, by delving deep into the case studies, it proves possible to illuminate the complex and often ‘messy’ constitutional edifice of the European Union, involving sometimes contradictory processes of Europeanisation and de-Europeanisation affecting citizenship regimes at all levels.

The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambiguity and disagreement and, as ideal, constantly frustrated by the institutional conditions of the decentralised international legal order. Rather than necessarily undermining the concept, however, I argue that these structural conditions cause a kind of conceptual rupture, resulting in seemingly opposed or contradictory idealisations. On the one hand, the international rule of law can be understood as what Terry Nardin has called the ‘basis of association’ in international relations. This understanding places importance on the legal form as an end in itself, whereby the structural or institutional autonomy of international law is critical to the peaceable conduct of international relations. On the other hand, however, the rule of law exists as an unfulfilled promise of an order to come: it is distinctly anti-formalist in nature, stressing the functional capacity of international law to actually constrain political actors (primarily states) and thus seeking to develop more effective international institutional mechanisms. Although these competing idealisations give rise to a certain contradiction and inherent tension, their conceptual opposition is, I believe, critical to an understanding of authority and accountability dynamics in an era of ‘global governance’.

This article articulates legal and practical discourse that seek to apply and extend the classic cosmopolitan ideals of Immanuel Kant to the evolving practice and reality of the twenty-first century. It identifies five major strands through which cosmopolitan law ideals express themselves in contemporary constitution-making, forming in turn the major composite cosmopolitan contents. In some sense, the proposed framework re-imagines Kant in the twenty-first century, mirroring a conjoined classic and contemporaneous concept of cosmopolitan constitution-making. Kantian cosmopolitanism is reinterpreted by way of conjoining the classic cosmopolitan moral and normative principles of universal freedom, human worth and global justice to emerging and actual contemporaneous constitution-making trends such as using international or comparative foreign models as a basis for constitutional design, using international law and foreign domestic law in national constitutional interpretation, or using regional or international bodies of adjudication and their jurisprudence as a constitutionally mandated source of law. The outlined framework seeks to transcend the occasional historical setbacks and sceptical objections to cosmopolitanism, while admitting their continuous, albeit gradually unobtrusive presence. This framework is naturally predisposed to be deferential to a bold imaginative project, such as the one embodied in the Kantian vision of cosmopolitanism, which is both rooted in and survived the historical forces that ran contrary to the cosmopolitan ideals, to reach a point of its ever closer materialisation.

This introduction sets the stage for the special issue on the ‘ideologies of global constitutionalism’. It describes the competing approaches for conceptualising and analysing global constitutionalism. It then turns to highlight the overlooked ideologies underlying global constitutionalism through a thematic exposition of the articles in the special issue. In particular, the introduction questions the conventional link between global constitutionalism and neo-liberalism, explores a materialist analysis of global constitutionalism, analyses the validity of the liberal global constitutionalist paradigm for non-liberal regimes, and discusses the potential for the abuse of that liberal paradigm through the migration of constitutional doctrine.

Anarchy is the conceptual cornerstone of international relations theory and international law scholarship. Anarchy is described as the ordering principle of the international system, it is used as a variable that explains state behaviour, and the international legal order is depicted as anarchic and decentralised. This article questions this privileged status of anarchy. It challenges the designation of anarchy as the ‘ordering principle’ of the international system, and proposes an alternative theoretical construct – the Constitutive Regime of the International System – that performs the functions of the ‘ordering principles’ of the international system. This Constitutive Regime consists of three components. The first is a principle of differentiation that identifies the constituent units of the international system. The second is a theory of world order that prescribes policies and principles that are necessary to maintain order within the system, and the third are the secondary rules of international law that generate the international law-making and law-enforcement processes. In short, the Constitutive Regime provides a novel theoretical vernacular to understand and conceptualise the normative foundations of the international system.

Contemporary scholarship mainly focuses on the crisis of political representation as the key facilitator behind the emergence of populism. If so, populism urges public law to revisit and rethink institutional designs. This article addresses two possible responses to populism. On one hand, an intuitive response could be to hamper popular participation by avoiding plebiscites, referendums or any other kind of public consultation. Alternatively, it is possible to respond to populism from a structural point of view. In my opinion, to resist populism public law should take into account the lack of responsiveness and accountability of representative systems. The article puts forward a proposal in that direction; it advances a response to populism consisting of new institutional systems that generate strong participatory mechanisms to incorporate ‘the popular’. In doing so, the article uses the new Latin American Constitutionalism as an example of both the potentialities and difficulties of designing institutional systems in public law. In the wake of rising populism, it contributes to the existing debate by criticising populism and its constitutional expression, as well as developing arguments in favour of popular constitutionalism.

The ‘global turn’ in International Relations (IR), like postcolonial and decolonising approaches, moves away from the Eurocentric dominance of the discipline, and towards the inclusion of plural perspectives on global politics. The article investigates what such a call means in epistemological and ontological terms by focusing on the concept of ‘global conversations’. In section I, we show that the concept of ‘global’ conversations necessarily shifts from an individual ontology to a relational ontology of intra-action within a global space. In section II we explore why ‘conversation’, as distinct from dialogue fits more comfortably with this relational shift and has practical implications for how the engagement takes place. The third section engages in an exploration of some of the obstacles to global conversation, and not least the emotional obstacles, in light of historically embedded and embodied relations of power that shape who can speak and who is silenced or heard. The final section then engages in a discussion of the types of practical engagement and research that might flow from this analysis. In moving beyond ‘dialogue’, the article reveals the intersection of power, language, emotion and embodiment in the constitution of ‘global conversations’, and how these in turn come to constitute the global, its normative structuring, contestations and transformation.

An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.

Fair value of equal political liberties is a key precondition for the legitimacy of a regime in liberal thought. This liberal guarantee is breached whenever a group is permanently or semi-permanently locked out of power. Given the convertibility, subtlety, and resilience of power, gross material inequality – produced by neoliberal economic policies – effectively locks the relative poor out of political power. Such lockout breaches the legitimacy constraint on a liberal constitutional democracy. Neoliberal democracies, sooner or later, become plutocracies. This possibility should concern not only liberal political theory but also liberal constitutionalism. The usual objections to a constitutional concern with gross inequality and plutocracy – based on concerns relating to transparency, counter-majoritarianism and flexibility – are useful design instructions, but do not rule out the constitutionalisation of egalitarian and anti-plutocratic norms. A whole panoply of legal and political constitutional measures – already familiar to or incrementally developed from liberal constitutional thought and practice worldwide – could be marshalled to effectively promote material equality and resist plutocracy. These measures – documented to map the possibilities rather than as a manifesto – seek either to prevent material inequality from becoming excessive or to prevent its conversion into political inequality. Good constitutional design, depending on the context, is likely to deploy several tools from both these toolboxes.

How have Asian nations conducted, or how are they conducting, constitution-making in the face of pressures associated with globalisation, and how do they balance those forces with domestic interests and realities? This article aims to develop an analytical framework that can capture this global–local interplay. It introduces the concept of ‘glocalised constitution-making’ to denote the co-existence and relationship between the two governance levels as manifested in the forces, actors and norms pertaining to the process of drafting a new constitution as well as its substance. Glocalisation permeates the entirety of a constitution-making episode, from the impetus to initiate the process, to its design and inclusiveness of interests featured, and the scope of topics considered. The effects of glocalised constitution-making for domestic drafters are arranged along a continuum with approbation and aversion as the polar opposites. The precise location on the continuum will depend on the value preferences of the domestic stakeholders and the matters under consideration. The application of this analytical framework is illustrated with reference to recent constitution-making exercises in Bhutan, Nepal, Thailand, East Timor and Sri Lanka.

The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.

This article explores the Chinese cognition of democracy in accordance with ancient Chinese political philosophy and modern constitutional jurisprudence. It argues that the classical Chinese cognition of democracy, i.e., demo-orientation, does not consist of any sense of equality and procedure, by which the Chinese people easily confuse democracy by the people with democracy for the people, thinking that China’s democracy subsists when the Chinese Government decides in favour of their interests. Moreover, the lack of sense of procedure produces inadequate means against tyranny, that the Chinese people can either admonish the ruler when he or she is still tolerable, or rebel when he or she is unbearable. Neither means serves institutionally.

The article addresses the question of how to study global constitutional law by suggesting a material methodology. Drawing from previous studies of the notion of the material constitution, both from materialist and institutionalist types (Marx, Mortati, Poulantzas), the article proposes to look at the development of global constitutional law, in its many instantiations, in terms of its relation with the state. Accounts of the autonomy of global constitutional law are requalified in terms of relative autonomy. More specifically, global constitutional law is conceived as a legal construction functional to the transformation of the contemporary state. From the perspective of the material study of constitutional law, the state is still deemed to be the main unit of analysis, but, at the same time, state-centred accounts based on an exceptionalist understanding of sovereignty are rejected as reductive and, at times, inaccurate.

Whether we look at constitutions of states or founding treaties of International Organisations (IO), it is striking that many rules on interaction between delegates create room for deliberation, whilst simultaneously limiting the time for discussion. While the latter speeds up decision making, it risks reducing its quality and legitimacy by hampering the exchange and contestation of information and ideas. How are these competing elements balanced in IOs? Do IOs differ in this respect, and if so, how and why? The article draws on a unique and novel dataset and assesses variation in the extent to which institutional design fosters or inhibits diplomatic deliberation in more than 110 diverse IOs. To this end, the article uses a combination of theories of functionalism, rational choice institutionalism and liberal approaches on variation, fit, and mismatch of deliberative institutional design within and across IOs. The hypotheses are analysed with quantitative methods. The article shows that diplomatic deliberative institutional design elements are the most pronounced when IOs are small in size, deal in high politics, and are regional in character.

The article examines the conceptual category of semi-liberal constitutionalism and offers some thoughts on the unique normative challenges that arise in the resolution of human rights conflicts in semi-liberal constitutional systems. Under the definition offered a semi-liberal constitutional system is a system that meets two conditions: first, it exhibits a simultaneous dual normative commitment to liberal rights and principles and to other values or interests that result in enduring and significant restrictions on some of these rights; second, this dual normative commitment is constitutive and is expressed in the basic elements of the system. Describing the problem of shaping and interpreting normative commitments in a semi-liberal constitutional regime, the article argues that an insufficient understanding of semi-liberal normativity may result in skewed reasoning by both courts and policymakers trying to resolve human rights conflicts in semi-liberal constitutional regimes, because the application of liberal rights reasoning in semi-liberal settings neglects the power differentials inherent in such systems and tends to overprotect the rights of some at the expense of the rights of others. Offering Israel as an example of a semi-liberal constitutional system and using one aspect of its semi-liberal nature – the structure of its religion–state relations and specifically of its religious personal laws – the article analyses three decisions of the Israeli Supreme Court, pointing to the special difficulties arising in such settings and offering critiques and corrections to the Court’s rulings where applicable.

In the aftermath of the 2008 financial crisis courts and rights took a backseat to demands of markets and international financial institutions for austerity. Deference and judicial restraint were prevalent in austerity litigation across various European jurisdictions. This article argues that the traditional view of deference to political branches on socio-economic rights should be revised in our political-economic context. Drawing on the work of German sociologist Wolfgang Streeck on representation failures of democratic institutions in our neoliberal era, the article argues that law’s abnegation in this sphere has the effect of securing and legitimising neoliberal hegemony and serves the interests of owners of financial capital. Deference in order to avoid judicial overreach does not entail deference to democracy as legislatures have come to view financial markets as their constituency alongside the general citizenry. As public finances have become marketised, deference to legislatures amounts to deference to markets. Judicial minimalism creates not more democracy but a specific set of winners and losers. In light of severe representation failures where legislatures become tools of market justice we might, subject to various caveats, view a more active judicial role as democracy-enhancing and as a potential counterweight in favour of social justice.

This article provides the first comparative reading of the minutes of the General Assemblies of three iconic Occupy camps: Wall Street, Oakland and London. It challenges detractors who have labelled the Occupy Wall Street movement a flash-in-the-pan protest, and participant-advocates who characterised the movement anti-constitutional. Developing new research into anarchist constitutional theory, we construct a typology of anarchist constitutionalising to argue that the camps prefigured a constitutional order for a post-sovereign anarchist politics. We show that the constitutional politics of three key Occupy Wall Street camps had four main aspects: (i) declarative principles, preambles and documents; (ii) complex institutionalisation; (iii) varied democratic decision-making procedures; and (iv) explicit and implicit rule-making processes, premised on unique foundational norms. Each of these four was designed primarily to challenge and constrain different forms of global and local power, but they also provide a template for anarchistic constitutional forms that can be mimicked and linked up, as opposed to scaled up.

As claimed by Sujit Choudhry, ‘historical examples have re-emerged as important elements not only of academic analysis, but also of constitutional practice’ worried by the threat of democratic backsliding. Left-wing constitutionalists inspired by the Frankfurt School have left us a theory of constitutional stability drawn on by the Weimar experience. Following Choudhry’s call for more historical research on the subject, I will first summarise the critiques of the Weimar constitution developed by these authors and their ensuing proposals for its reformation. Secondly, I will describe the efforts made after 1945 to translate these suggestions into keys for German democratic renaissance. Apart from their impact on the Basic Law, I will focus on the much lesser known attempt to design a ‘better Weimar’ in the Soviet Zone of Occupation from 1945 to 1947. I will show how Weimar left-wing constitutionalism influenced East Berlin constitutional debate and the reactions of the West German constitutionalists. My final goal is to enrich our understanding of the issue raised by Choudhry of placing the political parties at the very core of the constitution instead of running away from political power.

International law sometimes fails to regulate cross-border affairs due to a lack of consent or pace among the states. As a consequence, transnational governance arrangements, which are established by contract mainly among non-state actors, step in to fill the gap. The arrangement that allocates domains on the Internet offers the most sophisticated example to date. The present article argues that a new approach to the horizontal effect of constitutional rights may both account for the emergence of such arrangements and offer a solution to the problem of their legitimacy. According to this understanding, constitutional rights at the same time enable and restrict transnational regulation. In this way, they guarantee a comprehensive protection of freedom under conditions of globalisation. As long as transnational governance arrangements are not able to generate constitutional rights of their own, however, the national legal orders must complement them. Hence, the legitimacy of law in world society may only be ensured through a dialectical process of internal and external constitutionalisation, resulting from the interaction of its various constituents.