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 in tandem, but sometimes maintained as separate projects. The

first approach is to critically assess current international law and to suggest

reformulation so as to bring existing practice into line with cosmopolitan moral

principles. This approach highlights an objective that is to ‘evaluate certain

fundamental aspects of the existing international legal order . . . [And to] propose

legal norms and practices which, if implemented with reasonable care, would make

the system more just’ (Buchanan 2004, p. 4). Thus, on methodological grounds, the

aim of legal cosmopolitans corresponds nicely with the evaluative objectives of global

constitutionalists   (e.g.   it   mirrors   many   global   constitutionalist’s   call   for  

‘responsiblizing’   the   discourse   on   international   law). The second approach is to

locate current cosmopolitan trends and tenets within processes of existing

international law and politics and to examine ways that these processes can be seen to

reflect an emerging cosmopolitanization of international law (Habermas 2006;

Waldron 2006). Again, as above, this ‘methodology’ of locating existing normative

trends and thinking of new ways to reinforce these norms is lockstep with global

constitutionalism and thus signifies a shared normative aim as well as adopted

technique. The third approach moves beyond the empirical, arguing that an additional

level of law is necessary to secure human dignity and legal obligation beyond the

traditional state-centric model of international law. This approach, which is indebted

largely to the legal theory of Kant, seeks not only to change existing law, but also to

create additional laws and political mechanisms at the cosmopolitan level, which

create legal obligations not only between states and non-citizens, but also between

individuals themselves (Brown 2009). Once again, this resonates with global

constitutionalist methods, since many global constitutionalists also move beyond

explanatory methodologies and advocate for more pronounced and obligatory legal

regimes and structures.

Although differences in cosmopolitanism writ large exist, what is common

among legal cosmopolitans is a basic rejection of international law that is predicated

solely on the Westphalian model and therefore one that grants absolute overriding

authority to the interests of state sovereignty. Although this rejection does not mean

that states are necessarily rendered incompatible with cosmopolitanism (Brown 2011),

it does nevertheless translate into an argument which demands that an additional level

of law, one presiding at the global level, should supplement and enhance current

international law, in order to bring states and people under the rule guiding principles

of cosmopolitan moral theory. In sum, legal cosmopolitans, and most cosmopolitans

in general, believe that peaceful cohabitation and justice are a question of both

morality and law, and that they are thoroughly coextensive, complimentary and

necessary at both the international and the global level.

Nevertheless, like global constitutionalism, there remain some perennial

questions about how the normative principles that motivate cosmopolitanism translate

into legal practice. These debates about cosmopolitan legal theory and international

legal practice have traditionally been framed as being linked to questions of positive

law, legal realism, legal naturalism or liberal internationalism. Classic legal theorists

of a positivist persuasion often argue that law and morality are not connected. These

legal positivists believe that our obligation to any form of international law is based

solely on enforcement and convention versus being based on strong moral sentiment.

Since there is no institutional mechanism to enforce international law effectively,

norms are therefore entirely maintained by voluntary conventions that lack the

Hobbesian ‘sword’ from which law commands strong obligation (Nagel, 2005). In a

similar vein, legal realists suggest that international law is predicated on the

protection of state sovereignty and that the structure of the anarchic international

system rules out any robust and unified system of cosmopolitan law. Legal realists

argue that international law is created by voluntary state treaties and covenants to

which state self-determination, security and a protection of sovereignty are its primary

concern. Since an overarching authority does not enforce international law, the idea of

universal law cannot move beyond the minimal security and economic treaties that are

enlivened by the self-interest of independent sovereign states (Rabkin, 2005). As a

result, in both these traditions, cosmopolitan law is often viewed as chimerical.

Conversely, legal naturalism argues that morality and law are not mutually

exclusive. Legal naturalism maintains that the internal aspects that underpin legal

norms, and the normative foundations from which law is often created, justify and

motivate the authority of law   (Buchanan,   2004). As many global constitutionalists

also argue, legal realism fails to capture the fact that states often obligate themselves

to customary international law, despite the fact that it might not be in their immediate

self-interest and despite the fact that it might limit some absolute conception of state

sovereignty   (Franck,   1990). This system of self-regulation represents something

more positivistic than what legal realists proclaim, because it highlights that the moral

force behind law might be more prevalent at the international level than has been

assumed by legal positivists. In a similar vein, liberal internationalists start from this

position of legal naturalism, but move further, suggesting that the legal concept of

sovereignty should also be understood as a conditional right. In other words, liberal

internationalists not only believe that law and morality are connected, but also that the

idea of sovereignty itself should be justified by various conditional moral principles of

human right, accountability to international norms, and from internal mechanisms for

democratic popular sovereignty.

Understanding where legal cosmopolitanism fits into these legal traditions is

often difficult to ascertain. This is because legal cosmopolitanism mirrors, but also

moves beyond, several of the aforementioned positions, sitting somewhere beyond

liberal internationalism, while also sharing liberal principles of conditional

sovereignty as well as more positivist conceptions of law. For example, as part of the

Kantian tradition, contemporary cosmopolitans often argue that domestic law and any

right to sovereignty under a cosmopolitan system of law should be justified through a

conception of conditional sovereignty and republican/democratic law   (Franceschet,  

2002). In this regard, legal cosmopolitanism often overlaps with liberal

internationalism, in that both share the belief that it is through the make-up of a

conditional sovereign that ‘the freedom of every member of society as a human being’

can be secured. Furthermore, many liberal internationalists stray considerably close to

cosmopolitan legalism in that many argue passionately for the universal protection of

human rights and for the additional requirement that these rights act as the foundation

of any legitimate international legal order  (Wheeler,  2002).

However, despite the similarities, there are subtle differences that exist

between liberal internationalism and most cosmopolitans. First, in-line with the

Natural Law tradition, liberal internationalists often restrict themselves to a state-

centric approach, operating within the language of international relations, while

remaining loyal to traditional approaches of international governance and

international law   (Franceschet,   2002). Although cosmopolitanism can reconcile

states with cosmopolitan law (Brown 2011), many contemporary cosmopolitans have

viewed the state system as increasing obsolete in the face of global collective action

problems and growing non-governmental organizations, thus constructing global

institutional arrangements that in various ways supersede or augment current

multilateralism. Secondly, although not true of all liberal internationalists, there is

certainly a predominate assumption within classic liberal internationalism that if all

states were to be democratic and economically neoliberal, then that would be enough

to end war, increase cooperative interdependence and secure universal human rights.

Although some cosmopolitans might agree in principle, cosmopolitanism on the

whole demands that a more robust normative commitment to global distributive

justice also be secured   (Archibugi,   2008). In this regard, cosmopolitan moral and

legal theory moves further than international liberalism, in that it calls for significant

changes to be made to the current system of international law, economics and

governance. These changes include combinations of democratic reform and broader

non-state inclusion at the global level (Held 1995), a solid commitment to global

distributive justice (Moellendorf 2009), the corresponding regulation of global

capitalism (Barry 1998), a more robust commitment to universal human rights (Pogge

2002), institutional mechanisms to promote cross-cultural dialogue and recognition

(Appiah 2006), and the establishment of a global legal system that directly mirrors

basic cosmopolitan principles of individual worth, equality and universality (Brown

2009).

Therefore, unlike liberal internationalism, cosmopolitans argue for a system of

global justice that is more robust than a simple state-centric commitment to

international law. As will be outlined in the next section, this system of cosmopolitan

constitutionality can range from extreme forms of world state institutionalism

(Cabrera 2004); to multilevel and stakeholder cosmopolitan democracy (Held 1995);

to more moderate forms of cosmopolitanism that rest on a minimal and more

pluralistic conception of cosmopolitan law as a means for peaceful coexistence

(Brown 2009). However, it is important to note that all contemporary designs for

institutional cosmopolitanism are grounded on an assumption of a practiced

cosmopolitan law and some meaningful notion of global constitutionalism. This is

because when surveying the literature, it is apparent that cosmopolitans assume and

ground their more elaborate forms of institutional cosmopolitanism on some already

existing level of ‘cosmopolitan democratic law’ (Held 2010), a respect for

‘cosmopolitan rights’ (Hayden 2005), ‘cosmopolitan law-enforcement’ (Kaldor2003),

or a formal commitment to ‘political cosmopolitanism’ (Fine 2007). Thus, in a move

from cosmopolitan moral theory to institutional cosmopolitanism, cosmopolitans rely

on a notion of cosmopolitan legal and political order and a presupposition that this

condition is maintained (or can be maintained) in some thoroughgoing way as global

constitutional practice. It is here where cosmopolitanism, constitutionalization and

global constitutionalism most obviously meet.

Global Constitutionalism and Cosmopolitan Foundations

There are numerous areas where global constitutionalism and

cosmopolitanism interconnect and mutually reinforce. The first place is in regards to

what the Introduction to this Handbook labels as global constitutionalism’s ‘historical

antecedents’. This is because global constitutionalists often reference the works of

Cicero, Marcus Aurelius, the Thomists and Immanuel Kant, citing their historical

influence as well as making appeals to their philosophical foundations   (See  

Introduction   to   this   volume). Yet, what is often understated is the fact that the

aforementioned scholars were not just constitutionalists, but were also explicitly

cosmopolitan, who expanded their constitutional theories to the global level precisely

because of their cosmopolitan moral, institutional and pragmatic beliefs. In this way,

when global constitutionalists reference the jurisprudential authority of Cicero, Las

Casas or Kant, they are also in large degree accepting the foundational moral and

legal cosmopolitanism that inherently underwrote and motivated their ideas about

global constitutionalism. And this makes sense, since the three main pillars of global

constitutionalism (rule of law, legitimation of power, and constituent power) are not

truths in themselves, but require philosophical justification from which scholars like

Kant or Cicero provide useful firepower. Furthermore, when boiled down, the three

pillars of global constitutionalism ultimately rely on metaphysical or transcendental

foundations, which philosophically ground the question as to why legitimacy, the rule

of law and constituents matter. When boiled down even further, it becomes clear that

these justifications undoubtedly have a cosmopolitan characteristic (even so called

‘critical’ approaches question domination and power, which is tied to universal human

subjectivity, which is a metaphysical presupposition common humanity and a

universal ‘good’ to be protected). Lastly, if appealing to these moral authorities for

‘firepower’ is not the intent of global constitutionalists, then global constitutionalists

are insufficiently articulating their own normative and moral foundations, and thus

additionally failing to explicitly make necessary distinctions when making appeals to

these philosophical powerhouses.

Second, by comparing cosmopolitans such as Kant with the constitutionalism

associated with the Natural Law tradition (such as Hugo Grotius, Samuel Pufendorf

and Emer de Vattel), it can help to reveal key conceptual distinctions between liberal

internationalism and cosmopolitanism. Moreover, examining these conceptual

distinctions also helps to separate many global constitutionalists from mainstream

liberal internationalism, thus also revealing many of global constitutionalism’s

cosmopolitan tendencies.

The significant difference between the Natural Law tradition and

cosmopolitanism is the range to which universal moral commitments are to be

extended at the global level. Traditionally most Natural Law theorists promoted the

contractual creation of a sovereign state as the ultimate source for ethical law and

human emancipation. Inherent in this type of contractarian argument is the idea that

self-interested individuals contract with one another to create political institutions of

mutual preservation and right. Nevertheless, contracts between individuals

immediately create boundaries between contracted citizens and other non-citizens,

who are not considered to be members of the legal community. Although some

Natural Law theorists sought limitations on state power in order to promote the

natural rights of individual cooperators (and thus were not called ‘sorry comforters’

by Kant), they nevertheless did not always argue for strong principles of cosmopolitan

law that created imperative moral obligations between bounded political communities

or between states and non-citizens  (Brown,  2009,  pp  89-­‐94).

It was from Kant’s development of cosmopolitan law that stronger

commitments to cosmopolitan principles were developed away from, and as a

supplement to, the Natural Law tradition. Unlike the Natural Law tradition of jus

gentium, Kant suggested that a higher level of cosmopolitan law was necessary in

order to place greater limits on the law of nations, the Treaty of Westphalia, and the

injustices legitimated by claims to state sovereignty made under these legal regimes.

For Kant, cosmopolitan law was meant to expand the scope of public right beyond a

strict state-centered focus to one that encompassed all members of the earth,

especially non-citizens. As Charles Covell suggests (1998, p. 141), cosmopolitan law

‘was the body of public law . . . constituting the juridical framework for the

intercourse of men and states, considered in their status as bearers of the attributes of

citizenship in an ideal state that extended to embrace all mankind’. To create this new

level of constitutionalism, a condition of cosmopolitan right would require ‘the sum

of laws that need to be publicized in order to produce [this] rightful condition, one in

which individuals, nations and states can enjoy their rights’ (Gregor 1998, p. 71).

Furthermore, Kant argued that international law should rest on the foundation of a

mutually contracted pacific federation of independent states, dedicated not only to

principles of conditional sovereignty, peace and mutual international right, but were

further committed to the establishment and protection of universal laws of hospitality

beyond borders (Kant, 1785 & 1795 [1970]; Brown 2009). In this regard, Kant moved

beyond a bordered conception of legal obligation and duty, to one that politically

reaches all members of the globe as if they were equal citizens, regardless of their

immediate political affiliation. The idea behind establishing a consistent commitment

to basic laws of hospitality was to create a political condition where ‘continents

distant from each other can enter into peaceful mutual relations which may eventually

be regulated by public laws, thus bringing the human race nearer and nearer to a

cosmopolitan constitution’ (Kant 1795 [1970], p. 106).

In this regard, similar to Walker’s (2002) intersubjective meta-

constitutionality,, Kant’s cosmopolitan goal is to create the foundations for an ethical

order of legal norms that would, with time and commitment by like-minded members,

establish the grounding for the practice of a more robust cosmopolitan legal and

political order. An order that transforms these minimal laws of hospitality into a more

constitutionalized form of cosmopolitan law and cosmopolitics, so as to provide ‘the

systematic union of different rational beings through common laws… in a universal

kingdom of ends’ (Kant (1785 [1981], p. 39).

There are several overlaps between this cosmopolitan vision and the normative

agenda of global constitutionalism. First, both cosmopolitans and global

constitutionalists see the constitutionalization of international law as an iterative

process that, if done in relation to a series of normative principles, can amalgamate a

plurality of legal and political sources into a rule guiding global constitutional order

of some kind. Second, both cosmopolitans and global constitutionalists seek to move

beyond the Natural Law tradition as outlined above, by advocating stronger legal and

political commitments that rest above and beyond current state-based multilateralism.

This can be advanced as both a critique of existing structures of globalization and

constitutionalization as well as in attempt to bolster existing / emerging

‘cosmopolitan’ principles already entrenched in international law and politics. Third,

both cosmopolitans and global constitutionalists base their institutional arguments

upon the idea that they must reflect moral, normative and philosophical commitments.

These commitments clearly overlap and include: The argument that the worth of

human beings trumps absolute sovereignty; that sovereignty is conditional based on

notions of social contract theory or popular sovereignty; that authority should be fairly

distributed based on principles of self-legislation, and; that there should be a

strengthened community of states with corresponding responsibilities and inclusion

mechanisms. As Anne Peters nicely summarizes, global constitutionalism is ‘a stand

of thought (outlook or perspective) and a political agenda which advocates the

application of constitutional principles, such as the rule of law, checks and balances,

human rights protection, and democracy, in the international legal sphere in order to

improve the effectivity and fairness of the international legal order’ (Peters 2006, p.

583).

A second intersection between global constitutionalism and cosmopolitanism

is a commitment to democratic legitimacy and what both cosmopolitans and global

constitutionalists call ‘constituent power’. As Anne Peters has suggested, global

constitutionalism reflects an emphasis for legitimating power through the

democratization of global constitutionalization processes as well as in promoting

tighter democratic relationships between states and their citizens (Peters 2009). This

normative commitment for increased democratization, both domestically and globally,

reflects what has been labeled cosmopolitan democracy and its moral and institutional

advocacy for embedding democratic principles into global structural reform (Held

1995; Held 2010; Archibugi 2008). In summary, cosmopolitan democracy is a sub-

discipline of cosmopolitanism that argues that global governance should

democratically represent those affected by its decision making processes and that

stakeholders should have reasonable opportunities to affect decisions that affect their

lives (Held 1995). In institutional terms, this has translated into models of democratic

multilevel governance, multisectoral international institutions, dispersed democratic

subsidiarity, UN democratic reform, deliberative global forums and the direct

democratization of national foreign policy decisions.

Again, this form of cosmopolitanism mirrors several global constitutionalist

agendas. Primarily, it is possible to see overlaps between Bardo Fassbender’s call for

procedural reform within the UN Charter and its ability to more effectively act as a

basis for global constitutionalism. As Fassbender suggests (2009), the UN Security

Council (UNSC) lacks representational legitimacy and if the UN Charter is to better

act as a global constitution, reforms are required to better democratize and make

representative the UNSC and beyond. This comes strikingly close to the explicit UN

reforms advocated by cosmopolitans like Daniele Archibugi (2008), who has

provided detailed analysis and recommendations for how to democratize the UN

within a larger system of cosmopolitics.

Reverse overlaps between cosmopolitans and global constitutionalism are also

manifest. One area where cosmopolitans are almost certainly global constitutionalists

is in relation to world state cosmopolitanism (Cabrera 2004) or what is also referred to

as world government (Marchetti 2008) or world federalist cosmopolitans (Yunker

2007). These cosmopolitans are distinct from more moderate cosmopolitans (a

distinction is often made between strong/extreme and weak/moderate cosmopolitans),

since their institutional models by necessity demand robust notions of positive law,

global authority, a global parliamentary system, a global judiciary, global law

enforcement and global economic distribution mechanisms. As a result, since this

institutional structure will require an extensive balancing between law and politics,

various constituencies, disparate cultures and manifold sources of law into an explicit

institutional framework – as well as the normative principles that will motivate

obligation and institutional legitimacy - a more exacting form of global

constitutionalism will therefore be necessitated (Scheuerman, 2014). Although most

cosmopolitans reject world state cosmopolitanism (rightly or wrongly) on moral

and/or practical grounds, the overlaps with global constitutionalism are obvious, since

a world state rests firmly on the presupposition that this political and legal order has

been somehow solidified, objectified and universalized.

Lastly, most cosmopolitans and global constitutionalists share two further

intersections. One, as mentioned above, cosmopolitans and global constitutionalists

both cast a critical and normative eye upon processes of globalization (Habermas,

2006; Koskenniemi, 2007; Peters, 2008; Held, 2010; Cohen, 2012). By doing so, they

highlight existing inequalities as well as suggest structural reforms so as to render

existing processes of globalization more just. Two, most cosmopolitans and global

constitutionalists are open and sympathetic to recognizing cultural pluralism and thus

share an understanding that a key role of constitutional thinking is the attempt to

arbitrate, amalgamate and settle issues of entrenched value pluralism (Waldron, 2000;

Walker, 2002; Brown, 2009; Cohen, 2012). In this regard, it is possible to understand

both legal cosmopolitanism and global constitutionalism as the attempt to locate legal

and political mechanisms of legal and political coexistence, versus demanding that

cultures must perfectly cohere (Brown 2009). And it is here, where constitutionalism

writ large acts as both a normative foundation as well as a practical mechanism,

which cosmopolitanism and global constitutionalism can be further established as

reinforcing and enthusing one another.

Constitutions, the Cosmopolitan State and Global Constitutionalism

Cosmopolitans have often argued that we have always lived in a cosmopolitan

world. Cosmopolitans such as Jeremy Waldron (2000), Kwame Appiah (2006), David

Held (2010) and myself (2009) have grounded our cosmopolitan arguments on an

empirical claim that cultures are already largely cosmopolitan constructions, which

are made up of multifarious influences that have been borrowed, stolen, inherited and

amalgamated from different cultural sources (Waldron 2000). In making these claims,

cosmopolitans draw attention to the fallacies of communitarian claims to

‘authenticity’ and particularism, which is often claimed by non-cosmopolitans who

see communities, cultures, civilizations, nations, states, and their existing

constitutional arrangements, as unified bounded entities that automatically restrict the

scope, depth, interconnections and aspirations of cosmopolitanism. For these more

Hegelian inspired legal scholars, a constitution represents a personification and

manifestation of communal identity, en communio, which is necessarily threatened by

the universalizing nature of both global constitutionalism and notions of cosmopolitan

law.

Nevertheless, there exist both theoretical and practical reasons to challenge

this limited understanding of constitutionalism and its supposed incompatibility with

the universalism of legal cosmopolitanism and global constitutionalism. Like the

arguments made by cultural cosmopolitans, it could also be argued that the modern

state and its legal and political evolution is in fact already in many ways a

cosmopolitan construction and ‘that all states are cosmopolitan, whether they identify

themselves as such or not’ (Glenn 2013, p. vii). As Patrick Glenn has suggested, a

thesis of this sort has deep empirical and normative implications, because it calls into

question the continued efforts by states and neo-sovereigntists to indoctrinate an

unreachable condition of social uniformity as an underwriting constitutional norm

(Glenn 2013, p. viii). These efforts, he adds, increasingly fly in the face of both

historical precedence and the emergence of a globalized and potentially more

constitutionalizing world.

To begin to defend the notion that the state is already cosmopolitan and that

this lends weight to arguments for a cosmopolitan global constitution, Glenn starts by

highlighting the empirical reality ‘that there never has been and, it may safely be

added, there never will be, a nation-state’ (Glenn 2013, p. viii). This is because all

states are in fact an amalgamation of different cultures, communities, religions and

sources of law. In addition, if we understand both institutional cosmopolitanism and

global constitutionalism as representing an open set of negotiated legal and political

mechanisms aimed at balancing, adjudicating and amalgamating pluralistic sources of

law and politics, then the state has, by necessity, had to employ various forms of

institutional cosmopolitanism and broadened constitutionalism (see Introduction to

this volume). If this empirical reality is true, then ‘all states are therefore

cosmopolitan’ in their basic political, legal and historical functions (Glenn 2013, p.

viii). Moreover, if constitutions are in fact a useful and tested cosmopolitan

mechanism to balance and amalgamate pluralistic sources of law and politics, then

there is theoretical and practical justification to think about global constitutionalism as

being a viable reformist platform.

To further support the potential ‘viability’ of cosmopolitan constitutions, there

are three universal conditions that ground cosmopolitan constitutionalism. First, each

society has its own set of common laws and these common laws have been interpreted

and transfused in relation to other common laws that came before or from beyond.

Hence these common laws continue to meet, mix and contest, which illustrates an on-

going cosmopolitanism that is foundational, enduring as well as amendable. Second,

the fact that most states, if not all, utilize aspects of constitutionalism, which itself is a

process of negotiation and the coordination of plural entities, shows again an aspect of

cosmopolitan legal logic that has not only been a primary mechanism of state

coordination, but that provides historical precedence in discussions about global

constitutionalism. Third, an ‘essential feature of institutional cosmopolitanism is the

coexistence of institutions, often on the same territory,’ but also with institutions

beyond borders (Glenn 2013, p. 286). This coexistence has been repeatedly successful

in reconciling state authority with religious doctrine, private authorities, other states,

international institutions, and diverse cultural traditions. All of which illustrates an

enduring cosmopolitanism in practice that sits at the core of the modern state,

international politics and within many processes of global constitutionalization.

As a result, Glenn’s argument suggests a series of conceptual linkages

between constitutionalism, cosmopolitanism, and global constitutionalism. It also

adds and captures the normative demands of both traditions, since it posits that a more

viable form of cosmopolitan law and global constitutionalism should ‘acknowledge

legal contradictions, to preserve existing legal diversity, and to provide cosmopolitan

and practical forms of dispute resolution’ (Glenn 2013, p. 274). Therefore, if

conceptualized properly, cosmopolitan law as well as renewed thinking about the

cosmopolitan state can help us to dispense with the idea of creating an impossible

condition of nation-state unity and bounded homogeneity within the international

system. Instead, the key is to accept the cosmopolitan character of the state and the

diversity of cosmopolitan legal traditions that will continue to underpin the state and

which will undoubtedly shape new forms of legal coexistence and

constitutionalization beyond it.

Conclusion

The aim of this chapter has been to start to expose the key interconnections

between global constitutionalism and cosmopolitan thought. In doing so, it was

possible to locate a number of normative, empirical, methodological and foundational

overlaps. Although these interconnections could only be explored here in a cursory

fashion, prima facie, the evidence strongly intimates that global constitutionalism is in

fact a form of legal cosmopolitanism and that cosmopolitans have traditionally relied

on some meaningful conceptualization of constitutionalization and global

constitutionalism. As a result, it would behoove both cosmopolitans and global

constitutionalists to make better and more explicit links between the traditions. In

doing so, global constitutionalism will gain considerable normative potency,

strengthening its ability to better articulate its philosophical foundations as well as

why these foundations are metaphysically, morally, transcendentally, empirically and

pragmatically more attractive than competing approaches (Brown 2012). Conversely,

cosmopolitan transitions from theory to practice, which are usually weak on providing

institutional substance, will significantly gain from the empirical dimensions that

constitutionalization and constitutionalism offer. Thus, global constitutionalism could

provide a useful and fruitful bridge from cosmopolitanism’s more robust moral theory

to its weaker institutional manifestations. Importantly, this sort of mutual

reinforcement is both timely and heuristically valuable. For as Glenn aptly points out,

the world and its entities are already cosmopolitan. What is required, Glenn would

argue, is a better presentation for why this is the case and why the idea of a

cosmopolitan constitution therefore has logical precedence.

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