Cosmopolitan Constitutionalism Research Articles

Civil Sphere and Transitions to Peace: Cultural Trauma and Civil Repair

Civil Sphere and Transitions to Peace: Cultural Trauma and Civil Repair

Transforming Trade, Investment and Environmental Law for Sustainable Development?

The 2030 UN Sustainable Development Agenda aims at ‘transforming our world’ to protect universally agreed sustainable development goals (SDGs) that – due to globalization – can no longer be secured by any state without international law and multilevel governance of global public goods (PGs). Democratic and republican constitutionalism historically emerged as the most effective methods for protecting local and national PGs demanded by citizens; they need to be complemented by functionally limited, multilevel constitutionalism securing transnational ‘aggregate PGs’ like mutually beneficial trade, investment and environmental protection systems. This contribution explains why commitments to human rights, democratic governance and rule of law have become incomplete safeguards of the SDGs without complementary, constitutional reforms of international trade law (II), investment law (III) and environmental law (IV). Human rights require embedding national ‘constitutionalism 1.0’ and functionally limited ‘treaty constitutions 2.0’ into ‘cosmopolitan constitutionalism 3.0’ empowering and protecting citizens and representative, multilevel governance institutions (V). Constitutional, participatory and deliberative democracy, private-public partnerships (e.g. for inventing and producing vaccines) and citizen-driven network governance (e.g. for decarbonizing economies) remain crucial for providing PGs and for protecting humanity against authoritarian power politics (VI). Are the necessary constitutional reforms politically feasible at a time of Russian wars of aggression aimed at suppressing human rights and democratic governance?

Civil Sphere and Transitions to Peace: Cultural Trauma and Civil Repair

What are the conditions for establishing solidarity after a period of intensive and divisive social conflict—what Kant called a cosmopolitan constitution? In this essay, I argue that such a widened solidarity depends on establishing a relatively independent civil sphere, the effective functioning of whose institutions depend, in turn, on a shared sacred discourse of civility. To speak such a shared language, however, requires much more than engaging in speech acts. It depends upon a deeply emotional and highly symbolic process, one in which public performances of reconciliation create new structures of feeling and identification. This theoretical argument is elaborated empirically with reference to post-Holocaust Germany, post-Franco Spain, and post-Apartheid South Africa.

Cosmopolitan constitutionalism: The case of the European Convention

AbstractOwing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System. This is regrettable, not least because the Convention has reconfigured national constitutional authority in a cosmopolitan context. The emerging cosmopolitan constitutionalism is based upon three ideas: first, the exercise of state authority must also be legitimate from the perspective of those who are not citizens; second, a constitution must embrace fundamental rights and the representation of insiders in order to facilitate the representation of all, including outsiders; third, the authority of the constitution doesn’t just depend on endorsement by an independent people but also on recognition by other peoples who pursue the same type of political project. At the same time, any cosmopolitan constitutional system needs to leave space for particularity. It is therefore not accidental that the idea of a ‘margin of appreciation’ is of pivotal significance.

Legal Philosophy and Cosmopolitan Constitutionalism. Debates on Morality, Unity, and Power

Cosmopolitan Constitutionalism is a specific proposal in the international legal debate, the goal of which is the application of constitutional principles at the global level to achieve the universal guarantee of human rights. The author proposes that if we want to respond to the question of whether this project is possible and desirable, we need to analyse whether this is a plausible proposal, considering the distinctive features of law in the transnational sphere. In this light, the principal aim of this work is to show the principal challenges that Cosmopolitan Constitutionalism presents for the classic debates of legal philosophy, considering the current conditions of the international sphere. In this paper, the three topics that are considered are the debates between morality and law, law and power, and law and unity. The topics are problematized from the perspective of two contemporary scholars of Cosmopolitan Constitutionalism: Luigi Ferrajoli and Jürgen Habermas.

Addressing Diversity in Post-unitary Theories of Order

Abstract The article analyses the presuppositions that lie behind the transition from the unitary conception of order to the view that a multiplicity of orders should not be denounced as a pathology any longer, but accepted on the one hand as a fact and on the other as a desirable phenomenon. The first step of the analysis consists in introducing the fundamental elements of the unitary conception of order in both its variants: the particularistic and the holistic. Three approaches are then outlined which abandon the unitary notion of order: systems theory, post-modernism and discourse theory. Each of these approaches lays the ground for a specific notion of post-unitary legal order: the idea of the existence of a multiplicity of self-reliant, albeit not mutually indifferent, legal systems in the first case; radical legal pluralism in the second; and cosmopolitan constitutionalism in the third.

Postcolonial Proportionality: Johar, Transformative Constitutionalism and Same Sex Rights in India

At its inception, the Indian Constitution was envisioned as a transformative document, in two senses: anti-colonial and cosmopolitan. It gave birth to a radically new constitutional order, that conferred citizenship and political power on the previously disenfranchised living under the yoke of British imperial rule, created democratically elected legislatures and accountable executives, and conferred fundamental rights on citizens that reconfigured their relationship with public power, under which they had been hitherto treated as colonial subjects. But the Indian Constitution was also a cosmopolitan constitution in its fidelity to the universal principles of liberty, equality and fraternity. These universal values mandated and framed a vast project of social, economic and political transformation. The Supreme Court of India has yet to articulate an overarching theory of transformative constitutionalism, in either its anti-colonial or cosmopolitan senses. In this essay, I take up this task, by wrestling with the landmark decision in Johar, where the Supreme Court unanimously struck down Section 377 of the Indian Penal Code, which criminalized same sex relations. The idea of transformative constitutionalism figured centrally in the various opinions, and the closely related concept of constitutional morality, given real legal teeth for the first time by the Supreme Court. So did another piece of the global template of rights-protection – proportionality, which is relatively new to Indian constitutional jurisprudence. The unifying thread between transformative constitutionalism and proportionality in Johar is that the purposes underlying Section 377 were constitutionally impermissible. The dual mission of the transformative constitutional project defined the scope of admissible reasons for proportionality analysis. Section 377 was unconstitutional on the cosmopolitan ground that mere social morality was an insufficient reason to limit the right to engage in harmless, constitutionally protected activity, the basis on which courts around the world have struck down parallel provisions. The colonial-era origins of Section 377 also figured prominently in the submissions and various opinions, as an additional reason why it was unconstitutional. I argue that Section 377 was also unconstitutional for the anti-colonial reason that it was an element of the Imperial constitutional order in British India in the period after the Indian Mutiny in 1857 of indirect colonial rule.

Re-Imagining the Cosmopolitan Constitution: A Comment on Alexander Somek'sThe Cosmopolitan Constitution

AbstractThis comment engages with Somek's account for the cosmopolitan constitution for two distinct purposes. It first builds on its inherent ambivalence to argue that hitherto Europe has experienced at least two different versions of the cosmopolitan constitution. Whereas in the formative period of the process of European integration, the cosmopolitan constitution manifested itself prevailingly in its more benign and democracy-enhancing political face, since the end of the 1970s it has developed a more controversial and democracy-inhibiting administrative profile. Secondly, the comment rejects as potentially regressive the proposal of redressing the biases inherent in the contemporary legal and political order by reviving the idea of a Machiavellian mixed constitution. To fulfill the promise of emancipation inspiring constitutionalism, the cosmopolitan constitution cannot segregate in separate institutions ordinary citizens and a market elite. Rather, the cosmopolitan constitution should be re-imagined with a view to reassert its original democracy-enhancing spirit and adapt it to the evolving circumstances of economic and political interdependence.

Alexander Somek'sThe Cosmopolitan Constitution

The Cosmopolitan Constitutionis an intriguing and puzzling book. In particular, the book has the uncanny ability to render fresh what is for the constitutional theorist familiar territory such as the debate on judicial supremacy and the counter-majoritarian difficulty, the expansion of the proportionality principle, etc. In fact, one of the most interesting aspects of its overarching argument is that given our present conditions—such as those of the cosmopolitan constitution or constitutionalism 3.0—we should be increasingly plagued by self-doubt, at least to the extent that we are to remain committed to the tenets that once animated our constitutional traditions. This implies that the partial sense of disorientation with which one is left after reading the book is deliberately provoked precisely because of the main insights it has to offer.

International Economic Law without Human and Constitutional Rights? Legal Methodology Questions for my Chinese Critics

Democracy and constitutionalism are communitarian methodologies. My arguments for limiting market failures, governance failures, and related injustices in the global division of labour by using the universal recognition of human rights for reinterpreting the ‘international law of states’ as ‘multilevel governance of public goods’ protecting citizens—and by learning from republican, democratic, and cosmopolitan constitutionalism—have never pleaded for ‘radical individualism’ and ‘rights-absolutism’. This response to my Chinese critics uses 10 methodology and research questions for challenging their claim that Chinese traditions of Confucian ethics offer a sufficient substitute for the lack of democratic constitutionalism and of effective human rights law inside the People’s Republic of China. In view of the dangers of totalitarianism, Asian lawyers should participate in ‘JIEL debates’ on how Confucian ethics and communitarian legal traditions in many Asian countries can be reconciled with stronger protection of human rights in international economic law.

Thinking with Kant “beyond” Kant

In the following essay, I attempt to reactualize some of Kant’s most fundamental conceptions of a state’s sovereignty and the legitimacy of the cosmopolitan order. To this end, I provide what appears as a viable solution to Kant’s “sovereignty dilemma”; that is, the reconciliation between state sovereignty and the international enforceability of laws. I consider that a key component of the overall Kantian cosmopolitan project is the role played by the transcendental notion of an “originally united will” in its validation of constituencies. I emphasize the view that for Kant state-citizens are also, as he says, “citizens of the world” (Weltbürger) or “citizens of the earth” (Erdbürger). I argue, furthermore, that a state’s sovereignty must comply with a number of different constitutional wholes. I then proceed by confronting the Kantian notion of a general united will with the Habermasian conception of “double sovereignty.” I conclude by suggesting a fusion/synthesis between the two views, one which would require endorsing the idea of cosmopolitan constitutionalism as a meta-framework for interpreting the legitimacy of member states’ compliance with policy indications of transnational constituencies.

Constructivism in cosmopolitan law: Kant’s right to visit

Abstract: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’.

Jürgen Habermas’s postconventional constractarianism as cosmopolitan constitutionalism

Abstract In the course of this paper article I shall depict in what way Jürgen Habermas’s application of the discourse theory to the democratic polity transforms the contractarian theoretical framework, presuming, however, that the reader is familiar with the general theoretical framework and the basic concepts characteristic for this political tradition. Moreover, I will also show that the relevance of this transformation consists in delivering a justification of a kind of cosmopolitan constitutionalism.

The Second Part of the Ideal Theory of John Rawls in The Law of Peoples Transplanted and Revisited

John Rawls in the second part of his Ideal Theory as it is developed in the Law of the Peoples, argues that both liberal and non-liberal but decent people can still be considered to be people in good standing in a reasonable society of people and proposes the toleration of non-liberal but decent societies by the liberal ones. Within this framework, the current proposal will focus on the relationship between the ‘West’ and the Russian Federation as it has evolved after the collapse of the Soviet regime through recent developments on human rights protection and the regulation of the use of force or the “law of peace” as Rawls claims. The aim of this endeavor is twofold. First, to provide a critical assessment of liberal theories such as cosmopolitan constitutionalism, which promote a particular liberal understanding of global governance based on common values and universal goals. Second, to examine the potential but also limits of the Rawlsian theory of toleration towards the development of a more pluralistic normative analysis of the global order which will be neither utopian nor apologetic but one that will contribute into the realization of a “realistic utopia” between pure liberal and non-pure liberal states.

Constituent power, cosmopolitan constitutionalism, and post-positivist law

In the modern constitutionalist tradition, the concept of constituent power imagined to be held by “We the People” is widely held to be foundational for the legitimate authority of constitutions. There is, however, a jurisprudentially questionable structural nationalist/statist as well as voluntarist/positivist character in the way that “We the People” as constituent power is predominantly conceptualized in the modern tradition. I will contrast this modern understanding with a different, revised understanding of constituent power as an integral part of a revised understanding of constitutionalism. That revised understanding is both cosmopolitan and post-positivist, even if sovereign states and positive law remain central to it. In this revised account constituent power is vested co-equally in “We the People” and in “the international community.” Furthermore, constituent power is not foundational and uncircumscribed, but grounded in, constrained, and guided by the idea of a community of free and equal persons governing itself through the medium of the law as part of an international community. The idea of a community of free and equal persons governing itself within the framework of the state as part of an international community is prior to and gives meaning to the idea of constituent power.

Why Treaty Interpretation and Adjudication Require ‘Constitutional Mind-Sets’

In numerous publications, John Jackson emphasized ‘the strong link between international law and national constitutional systems, which must be understood in order to understand the international economic system’.1 This short contribution in memory of John endorses—and elaborates on—Jackson's proposition that ‘international lawyers must morph into constitutional lawyers’ and adopt a ‘constitutional approach to international law’.2 John's regular visits to the World Trade Organization (WTO) at Geneva and the European Union (EU) institutions at Brussels, like his participation in trade law conferences all over the world, illustrated his ‘cosmopolitan commitment’ (as a ‘citizen of the world’) to building a stronger international legal and mutually beneficial trading community. Yet, his ‘constitutional mind-set’ remained rooted in the unique US constitutional law system rather than in rights-based ‘cosmopolitan constitutionalism’ or market-based ‘economic cosmopolitanism’.

Kant's Legacy and the Idea of a Transitional Jus Cosmopoliticum

Abstract. In this article I propose an interpretation of Kant’s legal cosmopolitanism as characterized by transitional features. I also argue that the transitional aspect proves particularly challenging in view of the solution of Kant’s dilemma between states’ sovereign autonomy and their duty to comply with the requirements of public international law. In this respect, I consider that Kant’s views accommodate the idea of a cosmopolitan constitution with a regulative role assigned to a world republic. This ideal becomes also significant in view of the particular form of legal reasoning it is able to justify and which I illustrate, hypothetically, with reference to the dispute in the Kadi case between the UN Security Council Resolution 1267 and the European Court of Justice.

Cosmopolitan Authority

In the following article, I reconstruct the conditions of validity for claims of cosmopolitan authority and their corresponding judicial practices. I maintain that the authority of the law articulates the structure of a cosmopolitan constitution, overlapping at both the domestic and the international legal domain. It is worth noting that, whereas in the domestic sphere claims to both cosmopolitan and not cosmopolitan legitimate authority, are embedded within a preformed constituted unity of the law (constitution), in the transnational they perform a constituting function for legal integration (constitutionalism). Within the latter, pluralism remains unbound and the unity of international law turns into an interpretive task — one measured on the best account for the unity of international law. I consider, accordingly, that international law cannot be upheld by either surrendering to an idea of legal fragmentation characterized by irreconcilable conflicts among regimes, nor by a mere acceptance of an unmediated constitutional hierarchy. Here there seems to hold, instead, a partial overlapping between the two spheres, one which defines a basic structure between the domestic and the transnational. This common concern between the two jurisdictions is what gets articulated by the exercise of cosmopolitan authority.

Defending Kant after Darwin: a Reassessment of Idea for a Universal History with a Cosmopolitan Purpose

The paper argues that Kant’s teleology in Idea for a Universal History with a Cosmopolitan Purpose can be salvaged only if the mechanism of social unsociability, considered as the true center of the essay, is a) detached from the ? by contemporary standards ? hardly defensible notion of ‘natural dispositions’ and b) understood in conjunction with general premises that Kant does not make explicit, but rather takes as self-evidently true. In this perspective, Kant’s teleology is reduced to the affirmationthat, given certain constant features of human beings (mainly, limited benevolence and ability to see their best interest through experience) as well as relatively constant objective circumstances of the world we live in (mainly, availability of finite yet sufficient resources and sustainable growth in a competitive yet peaceful system), an approximation of human affairs towards the ‘cosmopolitan constitution’ is the most likely outcome. The paper moves the first steps towards a defense of this thesis by reformulating Kant’s argument in a way to make it compatible with contemporary science.

The Dark Future of Constitutionalism

This essay is a review of Alexander Somek’s book "The Cosmopolitan Constitution" (OUP, 2014). After summarizing the main argument of the book, the essay pursues two lines of criticism. First, it contends that Somek’s treatment of legal pluralism relies on an insufficiently articulated distinction between law and politics. Second, it maintains that Somek overstates the negative effects of global capitalism on nation-state democracy. The essay concludes that the future of constitutionalism is less dark than Somek would have it, but also – these criticisms notwithstanding – that this is a remarkable book that no one can ignore.