Moving from cosmopolitan legal theory to legal practice: models of cosmopolitan law

Abstract

There has been considerable debate about how it would be possible to move from cosmopolitan normative theory to cosmopolitan legal practice. These debates range from an uncertainty about what specific moral and normative principles should underwrite cosmopolitan law, to how those requirements should be institutionalised at the global level. In addition, many cosmopolitan theorists rest their more elaborate institutional models on the assumption of an already existing and thoroughgoing practice of cosmopolitan law, without detailed considerations regarding applied theory. The purpose of this paper is to examine the concept of cosmopolitan law and to argue how legal cosmopolitanism provides a necessary linchpin and transitional conduit between cosmopolitan theory and more institutionally based forms of cosmopolitanism. The paper examines the historical development of legal cosmopolitanism, the uniqueness of contemporary cosmopolitan legal theory within international legal debates, and maps the various approaches for moving cosmopolitan legal theory to legal practice. Through mapping the discipline, it is argued that Kantian legal cosmopolitanism represents the most coherent attempt to move from cosmopolitan legal theory to global institutional practice. This is due to the fact that it represents a minimal and moderate form of legal cosmopolitanism that accepts that any move to a cosmopolitan order would need to evolve from our current legal order. In this regard, it is argued that Kantian legal cosmopolitanism can occupy a transitional position, that not only satisfies the cosmopolitan concern for human worth, but that is also not guilty of being grossly utopian in its quest toward global justice.