The Cosmopolitan and the Federal Margins of Appreciation

Abstract

“This paper attempts to explain how the difference between a cosmopolitan and a federal vision of integration is relevant to understanding judicial deference and the margin of appreciation that results from it. It will point out, first, why participation in the convention system invests constitutional law with a cosmopolitan dimension. It then sketches how the cosmopolitan dimension of the convention system gives rise to a particular—possibly even the only defensible—understanding of the margin of appreciation. After contrasting this understanding with the role that such a margin plays within federal contexts, the papers explain why systems of fundamental rights protection remain steeped, necessarily, in indeterminacy. Ultimately, they are based not on law but on mutual trust. This is key to understanding their inherent “pluralism”.“