A Cosmopolitan Jurisprudence

Inspired by comparative law scholar Patrick Glenn's work, an international group of legal scholars explores the state of the discipline.

Cosmopolitan Justice and its Discontents pursues a reflection upon the institutional orders designed to ensure respect for the rule of law, human rights, and social justice. The majority of literature on cosmopolitanism tends to be oriented in sociology, political science or philosophy, and is largely positive. This book aims to fill the lacuna with respect to critical and legal perspectives in this field. In particular, it highlights the importance of international economic law and its institutions when evaluating the evolution of cosmopolitan norms. In addition, it provides critical and multidisciplinary perspectives on Cosmopolitan Justice and Sovereignty; Institutions, Civil Society and Accountability; and Social Exclusion, Migration, and Global Markets. This book will be of considerable interest to academics and students concerned with international public and private law, international criminal law, international economic law, human rights, migration, criminology, political science, and philosophy.

For more than two centuries the idea of the nation-state has been widespread. The expression is now widely used and is even to be unavoidable. The 'nation-state' implies that the population of a state should be homogenous in terms of language, religion, and ethnicity; the nation and the state should coincide. However history demonstrates that there never has been, and there never will be, a nation-state. Human diversity is manifest in states of all sizes, locations, and origins. This wide-ranging book argues that there should be no regret in the recognition of this empirical reality, since the notion of a nation-state has been the justification for some of the worst atrocities in human history. Since the nation-state is impossible, all states are cosmopolitan in character. They are cosmopolitan regardless of the language of their constitutions or official teaching and regardless of the extent to which they officially recognize their own diversity. The most successful states are those which are most successful in their own forms of cosmopolitanism. Cosmopolitan ways are infinitely varied, however, and must be sought in the intricate workings of individual states. The cosmopolitan character of states is necessarily reflected in their law. The main instruments of legal cosmopolitanism have been those of common laws, constitutionalism, and what is best described as institutional cosmopolitanism. The relative importance of these legal instruments has changed over time but all three have been constantly operative, even in times of attempted national and territorial closure. All three remain present in the contemporary cosmopolitan state, understood in terms of cosmopolitan citizens, cosmopolitan sources and cosmopolitan thought. The cosmopolitan state is, moreover, the only appropriate conceptualization of the state in a time of globalization. This book outlines the subtlety of the law of cosmopolitan states, law which has survived through periods of nationalism and which provides the working methods for the reconciliation of diverse populations. Combining law, history, political science, political philosophy, international relations, and the new logics, it demonstrates that the idea of the nation-state has failed and should yield to an understanding of the state as necessarily cosmopolitan in character. This will be invaluable reading to all those interested in constitutional law, international law, and political theory.

This book examines the boundary between parochial and cosmopolitan justice. To what extent should international law recognize or support the political, historical, cultural, and economic differences among nations? Ten lawyers and philosophers from five continents consider whether certain states or persons deserve special treatment, exemptions, or heightened duties under international law. This volume draws the line between international law, national jurisdiction, and the private autonomy of persons.

Is it possible and desirable to translate the basic principles underlying cosmopolitanism as a moral standard into effective global institutions. Will the ideals of inclusiveness and equal moral concern for all survive the marriage between cosmopolitanism and institutional power? What are the effects of such bureaucratisation of cosmopolitan ideals? This volume examines the strained relationship between cosmopolitanism as a moral standard and the legal institutions in which cosmopolitan norms and principles are to be implemented. Five areas of global concern are analysed: environmental protection, economic regulation, peace and security, the fight against international crimes and migration.

In current debates, the term "cosmopolitanism" often remains quite vague and leads to sweeping generalizations. this book looks at the notion from a decidedly historical perspective, trying to give depth and texture to the concept.

The foundations of constitutional authority have changed since modern constitutions first emerged in the eighteenth century. Originally, the constitution is supposed to express and to channel popular sovereignty. It is a work of freedom. It springs from, and facilitates, collective self-determination. This perspective changes after the Second World War. From now on constitutional authority is supposed to commit itself credibly to human rights. The people recede into the background. Universal principles command respect. Moreover, the national constitution becomes embedded into one or the other system of peer review among nations. This marks the advent of the cosmopolitan constitution. But this new cosmopolitan paradise is ambivalent. Greater civility and mutual supervision in the relation among peoples exacts the price of their political disempowerment. The question is whether this new form of constitutional authority can be based on an alternative form of collective self-determination that is no longer political but cosmopolitan in kind. But would such a shift, even if possible, be also desirable?

In this book, Stone Sweet and Ryan provide an accessible introduction to Kantian constitutional theory and the law and politics of European rights protection. Part I sets out Kant's blueprint for achieving Perpetual Peace and constitutional justice within and beyond the nation state. Part II applies these ideas to explain the gradual constitutionalization of a Cosmopolitan Legal Order: a transnational legal system in which justiciable rights are held by individuals; where public officials bear the obligation to fulfil the fundamental rights of all who come within the scope of their jurisdiction; and where domestic and transnational judges supervise how officials act. Such an order was instantiated in Europe through the combined effects of Protocol no. 11 (1998) to the ECHR and the incorporation of the Convention into national law. The authors then describe and assess the strengthening of the European Court's capacities to meet the challenge of chronic failures of protection at the domestic level; its progressive approach to the "qualified" rights covering privacy and family life, and the freedoms of expression, conscience, and religion; the robust enforcement of the "absolute" rights, including the prohibition of torture and inhuman treatment; and its determined efforts to render justice to all people that come under its jurisdiction, including non-citizens whose rights are violated beyond Europe. Today, the Strasbourg Court is the most active and important rights-protecting court in the world, its jurisprudence a catalyst for the construction of a cosmopolitan constitution in Europe and beyond.