There is a difference between the normative reasons for endorsing global constitutionalism and the conditions determining its emergence. This article addresses the latter issue. Specifically, the article claims that global constitutionalism rests on an underexplored shift in constitutional imagination. To account for this claim, the article is structured in several parts. It begins by clarifying the meaning of ‘constitutional imagination’. In so doing it builds on Kant’s concept of imagination (‘Einbildungskraft’) and in its reception by Hannah Arendt. The article then illustrates the significance of constitutional imagination by focusing on two major developments in constitutional thinking. The first development involves the shift away from a narrative reconstruction of constitutional authority; the second points to a cosmopolitanisation of constitutional imagination.

The article develops a Kantian account of constitutional justice: the explication of those structural features of a legal system whose purpose is to optimise a polity’s capacity to achieve a Rightful condition. The People, in enacting a rights-based constitution, have placed their freedom in trust. Rights ground a system of reciprocal freedom among individuals, while conferring on officials the authority to make and enforce law, subject to constraints laid down by the Universal Principle of Right [UPR]. A constitutional court, the trustee of the regime, supervises the rights-regarding acts of all other officials, assesses the reasons officials give when they take decisions that burden rights, and invalidates those acts when reasons given to justify such burdens fail to meet the demands of the UPR. Although some rights will be expressed in absolute terms, most will be qualified by a limitation clause. In adjudicating qualified rights, the court can do no better than to adopt the proportionality principle. The UPR, operationalised through proportionality analysis, lays down a basic criterion for the legitimacy of all law. Because Public, International, and Cosmopolitan Right share certain micro-foundations in common, we can extend the analysis to transnational systems of rights protection.

This article looks at the continued calls for popular participation in UK constitution-making following the 2014 Scottish independence and 2016 Brexit referendums. In particular, it discusses the prospect of a UK constitutional convention being set up to deliberate upon and make recommendations concerning constitutional reform. The article proceeds by first mapping the arguments in favour of setting up such a body in a country with little but growing experience with direct democracy. It then analyses three difficulties surrounding a UK constitutional convention: deciding on a manageable mandate, identifying the political community or communities it is to represent and the method for selecting its membership, and defining the place of such a convention within the UK’s broader constitution-making mechanisms. The article highlights fundamental unknowns in need of clarification before such an instrument could be used while at the same time admitting the limitations of a constitutional convention as a panacea for all of the UK’s constitutional woes. In exploring these questions, the article shows how constitutional reform debates in the UK are no less complex than were those surrounding Scottish independence and have been further compounded by Brexit.

This article considers the relationship between constitutions and political settlements and locates the special issue articles within this wider discussion. The article points to the apparently paradoxical connection between disillusionment with internationalised state-building techniques on one hand, and increased international faith in constitution-making as a state-building tool on the other. Using understandings of the relationship of the constitution to political settlement which draws on conventional constitutional theory, it argues that the current context of negotiated transitions requires constitution-making to be approached with an eye to the distinctive dilemmas of statecraft that pertain in contemporary transitions. The most central dilemma concerns how power-balances between political/military elites can be broadened to ensure the constitution’s capacity to fulfil its normative role in restraining power and delivering broader social inclusion. The pieces which make up this special issue draw together development and legal discourses. This article suggests how constitutional theory provides a resource for those seeking to promote constitutionalism as a tool for reaching political settlements capable of resolving conflict. It also argues that those who seek to rely on constitutions for conflict resolution need to understand this enterprise as just as political and fraught as all other institution-building efforts.

Kant is regarded as one of the most influential cosmopolitan thinkers. Indeed his legacy still influences the contemporary legal and philosophical debate on this issue. But what is the Kantian conception of cosmopolitan law? In which terms does it arise out of his notion of a ‘right to visit’? How does it contribute to the construction of a ‘cosmopolitan constitution’? In this article the view is advanced that Kant was a legal constructivist. The argument assumes also that within Kant’s view of an ‘original community of interaction’, the justification of a cosmopolitan notion of authority allows exercises of freedom under a general scheme of right. Kant’s ‘cosmopolitan constitution’ depends therefore upon such rationale, as well as on the jurisdictional link that the right to visit determines in allowing individuals with the possibility to have a ‘place on earth’.

The European Union has transcended many of the old prerogatives of national independence bringing about the very function of interdependence among Member States. Within the latter there are sub-state communities claiming simultaneously both self-government and ‘more Europe’. The future intent of this political process in the Old Continent is to make territorial subsidiarity consistent with home rule within European framework legislation and continental institutions. The first part of this article focuses on the idea of a closer European Union based upon the implementation of territorial subsidiarity, as well as on the challenges posed by democratic accountability, multi-level governance and the preservation of the European Social Model (ESM). The second section illustrates some of these challenges in practice through an analysis of how the meaning of independence has developed in a ‘stateless nation’ such as Catalonia. In Spain, the lack of territorial accommodation, together with a long-standing centre–periphery controversy, has fuelled claims for secession by some Catalan nationalists. The conclusions ponder on how ‘cosmopolitan localism’ can optimise both independence and interdependence of stateless nations like Catalonia in the global context.

Recent years have seen considerably more attention being given to constitution-making as a field of deliberate study and practice, particularly with regard to the challenges and opportunities posed by constitution-making in conflict-affected states. A consequence of this work has been a more explicit recognition of the interconnectedness of peace processes and constitutional processes as mechanisms of political settlement. Within this context, this article argues for the more deliberate use of interim constitutions as a peacebuilding mechanism with potential to be effective in highly divided contexts in grounding a more inclusive and sustainable political settlement. This article argues that while interim constitutions are indeed commonly found in conflict-affected contexts, their use appears ad hoc and their design poorly conceived. The article reflects upon the potential strengths and weaknesses offered by interim constitutions in fragile and conflict-affected states. Reflecting on both the existing scholarship and the author’s own practical field experience, the article concludes that if a more modest and realistic approach to what constitution-making can achieve in fragile and conflict-affected states is coupled with more attention to design, interim constitutions can provide space and time to undertake more comprehensive discussions regarding the longer-term settlements.

This article examines the ongoing conflict in the global monetary system as a struggle over norms of recognition between the US Federal Reserve and the emerging market economies. The analysis demonstrates that the Fed, though dominant actor in the global monetary system, adopts a US-centric perspective and relies upon inadequate economic constructs that misrecognise periphery members and justify a dismissal of criticisms of its monetary policy actions. The article shows how the adoption of recognition principles in reconstituting the monetary rules of the game would provide the Fed with an understanding of the political economic essentials of member countries, a greater awareness of potential harms of its monetary policy actions and the importance of cooperation in reducing conflict and mitigating episodes of monetary instability.

The unilateral declaration of independence by Kosovar authorities in Pristina in 2008 has been the source of various controversies in international affairs. From a legal perspective, Kosovo’s secessionist drive is contrary to the well-established position of international law regarding the territorial integrity of states. From a political perspective, Kosovo’s case exemplifies the political drive to alter the law – a drive that applies to other entities in Kosovo’s position. Both these phenomena are accompanied by the divergent interests held by Kosovars as the ‘local agency’ and by the interests of Serbia and third states (including great powers) that support or oppose Kosovo’s independence. The interdisciplinary nature of this matter is enhanced by the intersection of applicable legal frameworks with competing political interests. The motivating factors – and implications of – great power conduct in this context should be examined through the prism of political realism, which provides an enhanced perspective on the relationship between legal and political factors in all their complexity.

The literature on entrenchment as a means to achieve constitutional endurance has grown in recent years, as has the scholarship on unamendable provisions as a mechanism intended to safeguard the constitutional project. However, little attention has been paid to the promise and limits of eternity clauses in transitional settings. Their appeal in this context is great. In an effort to safeguard hard-fought agreements, drafters often declare unamendable what they consider the fundamentals to the political deal: the number of presidential term limits, the commitment to human rights and to democracy, the form of the state (whether republican or monarchical), the territorial integrity of the state, the territorial division of power, secularism or the official religion. This article explores the distinctive role and problems posed by eternity clauses in transitional constitution-building, as guarantees of the pre-constitutional political settlement in such fragile periods. The article also compares unamendability to other techniques of constitution-making in uncertain times, such as sunset clauses, deferring hard choices and other forms of constitutional incrementalism.

This article shows a novel facet in the complex relation between multiculturalism, the state and the market. Contrary to conventional theories in political science, sociology and anthropology, it shows that it is not just the success, but also the failure of the state and the market to commoditise nature and turn it into property that can actually help to foster ethnic identity. While state-driven market incentives to expand the agricultural frontier in Colombia during the 1960s and 1970s failed, they did help to foster differentiated indigenous identities and organisations, which converged around the revival of long-forgotten nineteenth century indigenous laws and other political opportunities to reclaim lands that had been taken away from them. Moreover, this article also shows that during a period of institutional openness in the late 1980s and early 1990s, the political emergence of indigenous identities became an important component of Colombia’s state-building processes by helping this country to maintain its territorial integrity through a model of delegated indigenous governance.

Civil disobedience has been theorised as an informal guardian of the constitution in democratic societies, but such accounts struggle to accommodate protest that has an international or global dimension. This article addresses this issue through offering a theory of civil disobedience as transnational disruption. Civil disobedience is ‘transnational’ insofar as it is an appeal to a national, international or global public that highlights failures to observe moral, political or legal values that are an appropriate source of normative authority in global contexts. Civil disobedience is ‘disruptive’ insofar as it obstructs the routine activities of relevant parties in order to draw attention to the demands of protesters. The core argument is that civil disobedience can uphold normative standards that have been incorporated into a dense network of treaties, conventions and global regulatory frameworks. It can thus make a modest but valuable contribution to the processes through which publics deliberate about the meaning and interpretation of these contested norms.

Individual relationships between Mainland China and Tibet, Xinjiang, Hong Kong and Taiwan are considered confusing for some because China’s rising international power is not resulting in stronger calls for a shared identity based on ‘Chinese pride’ or historical links. Instead, China’s economic growth appears to be provoking increasingly stronger calls for autonomy or independence. In this article I discuss why Beijing’s self-described peace and development policy is failing to procure positive responses in those four regions, with a primary focus on the failed use of narrowly-defined Westphalian thinking to understand relevant issues. I argue that the reason for this failure is the tension between the individualist ontology underlying modern international politics (as expressed in terms of Westphalian sovereignty) and the relational ontology underpinning a traditional Chinese politics built upon a tianxia (‘all-under-heaven’) world view. This tension has become conspicuous in the context of China’s recent rise and Beijing’s growing confidence in contesting Western power. The Chinese leadership’s reliance on arguments involving historical connections with Tibet, Xinjiang, Hong Kong and Taiwan, and calls for autonomy or independence from citizens living in those four areas, are examples of this contestation.

Can courts really ‘build’ democracy in a state emerging from undemocratic rule? In contemporary thought, courts are perceived as central components in any political settlement aimed at achieving a functioning democratic order in a previously authoritarian state (this piece, unlike others in the special collection, does not specifically address post-conflict contexts). The past four decades have witnessed an increasing tendency in post-authoritarian states to place significant faith in courts as guardians of the new democratic dispensation – a trend replicated in contemporary democracy-building projects (e.g. Tunisia). Constitutional courts (including supreme courts) are expected not only to breathe life into the paper promises of the democratic constitutional text, but also, increasingly, to guard and build democracy itself by policing political adherence to emerging transnational norms of democratic governance. Outside the state, regional human rights courts have also been cast as democracy-builders, acting as a support, backup mechanism, and even surrogate for domestic courts. Yet, despite this ‘court obsession’, our understanding of courts as democracy-builders remains critically underdeveloped. This article argues that while it has been assumed that courts have a central role to play in democracy-building, this assumption is based on rather slim evidence and undermined by yawning gaps in existing research.

The current debate measuring the trade-offs between democracy and judicial review is unable to analyse the influence of courts in post-conflict states. However, a court with authority over constitutional review is commonplace in new constitutions, including those that have been drafted (or revised) as part of a political settlement. This article suggests that judicial institutions are as important as political institutions in sustaining a political settlement. As this article sets out, the parties to a peace process are required to make numerous compromises to negotiate new (or revised) institutional arrangements. Several cases are considered which illustrate how domestic constitutional courts were asked to mediate between tensions inside the political settlement. In all of the examples, the courts interpreted peace to be the most important constitutional value, or the primary purpose of the constitution. The judiciary played a role in maintaining the constitutional link to the elite pacts of the peace agreement, while acknowledging that the link should not preserve elite pacts permanently or without limit. The article argues, first, that these cases constitute evidence of an emergent global ‘peace jurisprudence’ based on purposive interpretation and a principle of proportionality that protects the foundations of the political settlement, and, second, questions the extent to which international courts are willing or able to adopt this jurisprudence.