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.

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.

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.

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.

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.