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  • Cosmopolitanism and Global Constitutionalism

    Garrett Wallace Brown University of Sheffield

    Introduction

    There is a vast and growing literature on the increasing constitutionalization of

    international law and its representational significance as a proto-foundational or

    already existing global constitution. As a descriptive and reflective tool,

    constitutionalization generally denotes ‘the process of legal codification toward the

    establishment and incorporation of entities into a coherent and legally objectified

    body of law, where legal parties, legal rights, legal obligations and legitimate centers

    of adjudicating power are specified’ (Brown 2012, p. 210). In the Introduction to this

    volume, global constitutionalism is positioned as field of study that recognizes

    constitutionalization, to various degrees, as an emergence of a global rule of law,

    separation of powers and concerns for constituent power. As the Editors’ suggest,

    what makes these three emerging features meaningful is that they can illustrate

    constitutional like properties, which can both limit and enable more constitutionalized

    forms of global politics and law. In this regard, writ large, global constitutionalism

    represents an empirical, methodological and heuristic device in which to help explain

    and give meaning to the growth of international law, the enlargement and saliency of

    global legal regimes, and as a way to describe the exponential expansion and impact

    of international organizations and continuing normative contestations. As Jan

    Klabbers has suggested, processes of global constitutionalism ‘carries the promise

    that there is some system in all the madness, some way in which the whole system

    hangs together and is not merely the aggregate of isolated and often contradictory

    movements’ (Klabbers 2004, p. 31).

  • Nevertheless, discussions of constitutionalization are not limited to these more

    descriptive and empirical dimensions outlined above. This is because the concept of

    constitutionalization is often coupled with normative and evaluative aspects of global

    constitutionalism, which can be broadly defined as an approach aimed at both shaping

    and improving the processes of constitutionalization by critically examining its

    properties in order to make normative recommendations about what a real, proto-real

    or hypothetical ‘global constitution’ ought or ought not resemble. For example, Marrti

    Koskenniemi describes the ‘virtue of constitutionalism in the international world’ as a

    means to expose fundamental global injustices in order to generate a universalizing

    focus (2007) from which global legal reforms can be constructed. Anne Peters (2009)

    further suggests that normative appeals to global constitutionalism reflects an

    emphasis for legitimating power through the democratization of global

    constitutionalization processes as well as to tighten democratic relationships between

    states and their citizens. Others see global constitutionalism as capturing the

    continued entrenchment and increasing demand for human rights protection within

    and across global legal regimes (Habermas 2006). Lastly, some scholars of global

    constitutionalism suggest that the language of constitutionalism represents a

    ‘responsiblizing’ of the current discourse on international law. In this way, it has been

    argued that global constitutionalism represents a commitment to notions of mutual

    recognition and responsibility, enshrining this language into legal discourse and thus

    creating opportunities for more intersubjective and pluralistically accepted forms of

    meta-constitutionality (Walker 2002).

    What is striking about both constitutionalization as a descriptive device and

    global constitutionalism as a corresponding normative heuristic is that they share

    many universal traits with what is often labeled as moral and institutional

  • cosmopolitanism. Although the study of constitutionalization can to some degree

    distance itself from normative evaluations and prescriptions by simply ‘measuring’

    the growth and contested processes of international law as an empirical phenomenon,

    global constitutionalism is by contrast inherently normative and operates within a

    universalist and cosmopolitan lexicon. The problem, however, is that this

    interconnection and interrelation has remained under-explored and often taken for

    granted.

    In simplest terms, cosmopolitanism can be understood as ‘the idea that there are moral

    duties and obligations owed to all human beings based solely on our humanity alone,

    without reference to ethnicity, nationality, political association, race, culture, religion

    or other communal particularities’ (Brown & Held 2010; Van Hooft, 2009; Fine,

    2007). Common to this cosmopolitan ethic are three normative commitments, which

    demand that: 1) the primary focus of moral concern should be individual human

    beings; 2) that ‘the status of ultimate concern attaches to every human being equally’,

    and; 3) that this moral standing is attached to everyone everywhere, as if all human

    beings were in some meaningful sense held as universal ‘citizens of the world’ (Pogge

    1992, p. 49). These commitments act as foundational principles that not only inform

    and motivate moral cosmopolitanism (what we owe all humans morally), but that also

    guide institutional cosmopolitanism and practical considerations for global

    institutional and legal reform. As a result, prima facie, these moral and institutional

    tenets share striking similarities with the global constitutionalist agenda outlined

    earlier and as expressed throughout the pages of this Handbook of Global

    Constitutionalism. This is because both global constitutionalism and cosmopolitanism

    posit individual human beings at the very foundation of moral and legal obligation as

  • well as advocate for conditions of globally constituted public right and egalitarian

    legitimation in processes of state and global constitutionalization.

    However, despite the similarities there is little literature analyzing the

    interconnections between global constitutionalism and cosmopolitanism. Due to this

    lack of explicit analysis three common practices and oversimplifications often result.

    The first oversimplification is that global constitutionalists are regularly and

    unreflectively understood as being cosmopolitans and vice versa. The second

    oversimplification is that it is also often the case that those who do identity

    themselves as being explicitly both cosmopolitan and a global constitutionalist, have

    done so without fully exploring how these two traditions intersect, interrelate and

    inform one another. Lastly, many global constitutionalists are inherently cosmopolitan

    in their outlook, but fail to formally recognize or admit their cosmopolitan leanings

    due to ignorance, denial, or in effort to obscure these leanings so as to avoid the

    utopian and imperialist criticisms often directed at cosmopolitan thought.

    In response, this chapter will start to explore the interconnections between

    global constitutionalism and cosmopolitan thought, particularly as they relate to legal

    cosmopolitanism. By doing so, the chapter will suggest that global constitutionalism

    is in fact a form of legal cosmopolitanism (and vice versa) and that it would behoove

    both cosmopolitans and global constitutionalists to make better and more explicit

    links between the traditions. The chapter will begin with a general overview and

    summary of legal cosmopolitanism, which will connect it to mainstream international

    legal theory as well as suggest some ways that it connects to global constitutionalism.

    The second section will expand upon these connections in more detail by examining

    four particular intersections where cosmopolitanism strongly overlaps with global

    constitutionalism and where there is mutual reinforcement and heuristic potential: 1)

  • Kantian based legal cosmopolitanism and minimal / pluralist constitutionalism; 2)

    Cosmopolitan democracy, inclusive global governance and a united commitment a

    cosmopolitical order; 3) World state cosmopolitanism and constitutional authority,

    and; 4) Globalization, cultural cosmopolitanism and global constitutionalization.

    Having outlined these interconnections, the third section will discuss the idea that

    existing state based constitutionalism already renders the modern state a cosmopolitan

    entity and that this form of existing cosmopolitan constitutionalism buttresses the

    enthusiasm of legal cosmopolitans as well as the viability of a more meaningful

    global constitution.

    Legal Cosmopolitanism

    In the most general sense, contemporary cosmopolitan legal theory upholds

    the idea that international law should be constituted from, and constrained by, moral

    and normative principles of universal human worth, human respect and global justice

    (Brown and Held 2010, p. 1). In so arguing, legal cosmopolitans generally adopt three

    approaches, often used