WHEN in 1795 Kant wrote his essay on “perpetual peace,” international law was languishing in neglect. Grotius, Pufendorf, and Vattel, the great pioneers of the ius publicum Europaeum, were in his estimation merely “sorry comforters,” providing a cloak of justification for the aggressive behavior of leading European powers. Their elaborate codes of rules lacked all legal force because states were not subject to any common external constraint.1 In its place, Kant advanced an idealistic project through which, “after many revolutions … a universal cosmopolitan existence will at last be realised as the matrix within which all the original capacities of the human race may develop.”2 Since then the codes of international law have expanded, but by the end of the twentieth century his ambition seemed no closer to being realized. Concluding his study of the modern history of international law in 2002, Martti Koskenniemi acknowledged that “power and law have been entangled in much more complex relationships than the conventional imagery would allow.”3
After the end of the Cold War, however, the project of establishing a cosmopolitan right acquired a new impetus. In the mid-1970s, “seemingly from nowhere,” the idea of human rights emerged and came to “define people’s hopes for the future as the foundation of an international movement and a utopia of international law.”4 In the area of commerce, the workload of transnational commercial arbitration and international investment arbitration expanded dramatically and in 1995 the World Trade Organization was established to provide a set of global trade rules and a process for dispute resolution. In the field of humanitarian law, developments were marked by the establishment in 2002 of the International Criminal Court to prosecute those accused of genocide and war crimes. These, together with related initiatives, kindled extensive discussion about the prospects for “the constitutionalization of international law.”5 Once infused with constitutional principles, these developments in international law seemed to mark a major step toward realizing a regime of global constitutionalism.
This thesis has been systematically advanced by Jürgen Habermas. His earlier work had sketched the modern development of state forms, with each stage resulting in increasing formalization of social relations by means of law. Since the most recent form, the democratic welfare state, had been experiencing crisis tendencies since the 1970s, this caused him to reexamine the foundations of contemporary constitutional democracy. By the 1980s he was presenting constitutionalism not as an institutional arrangement but as a set of principles, and this provided the basis of his argument about “constitutional patriotism.” If constitutionalism is founded on the general principle of equal liberty, it must be of universal significance, an insight that led him to reconsider the constitutional dimensions of European integration and subsequently to the question of global constitutionalism.
The drafting of a European constitution dominated debate in the early 2000s. Adherence to the principles of constitutionalism, Habermas argued, would enable diverse national traditions to be shaped into a cohesive European identity.6 The challenge, he explained, “is not to invent anything but to conserve the great democratic achievements of the European nation-state, beyond its own limits.” This was not just about bolstering global markets but of protecting the achievements of social democracy and the “European way of life.” And he recognized the risks: a constitution might have the “catalytic effect” of enhancing the European Union’s (EU) capacity to act, but it could not provide a remedy for the legitimation deficit unless there could be a European-wide public sphere that can give citizens of member states “an equal opportunity to take part in an encompassing process of focused political communication.”7
The project did not develop in that way. After failing to approve a constitution, the EU experienced the Euro crisis of 2008, to which it responded by reinforcing a regime of “executive federalism” and strengthening “a post-democratic exercise of political authority.” Criticizing politicians who have “long since become a functional elite,” Habermas recognized that the crisis exposed the need for transformative politics. But he also emphasized that not only the financial markets but also “the functional systems of world society whose influence permeates national borders” were challenges that neither states nor coalitions of states could solve. The postnational constitutional challenge could no longer be addressed at the level of the EU alone. “The international community of states,” he concluded, “must develop into a cosmopolitan community of states and world citizens.”8
To meet the challenge of moving toward a global society, Habermas returned to Kant. Recognizing that Kant’s concept of a cosmopolitan order must be reformulated in the light of a global system that has dramatically changed, he asserted that we are at “a transitional stage between international and cosmopolitan law.”9 But how is cosmopolitan law different from international law or, rather, what precisely is cosmopolitan law?
Cosmopolitan law “bypasses the collective subjects of international law and directly establishes the legal status of the individual subjects by granting them unmediated membership in the association of free and equal world citizens.” It rests on an idea of human rights that has its origins not in morality but in legal and political liberties. Cosmopolitan law is novel in that it establishes “a symmetry between the juridification of social and political relations both within and beyond the state’s borders” and is, he maintains, “a logical consequence of the idea of the constitutive rule of law.”10
Having identified its character, Habermas assesses its constitutional significance. Recent trends—the demise of embedded capitalism, the associated rise of globalized markets, the expanded reach of international law, and the growth of international organizations—are leading to the displacement of the nation-state’s pivotal role in constitutional thought.11 A gap has opened up between the need to legitimate governing power beyond the nation-state and the revealed limitations of the modern arrangements of democratic legitimation within the nation-state. International law must therefore be constitutionalized. But unless democracy is to be abandoned as a legitimating principle, new models must be devised. His solution is to present a new type of “political constitution for world society.”12
This blueprint rejects establishing a world state in favor of a politically constituted world society comprising states and citizens. Legitimation is generated not only by the involvement of citizens in will-formation within states but also through the influence of cosmopolitan citizens on the international community. Through these diverse processes, a “transnational negotiation system” is established with responsibility “within the framework of the international community, for issues of global domestic politics” and ultimately a “General Assembly of the world organization” would assume responsibility for constitutional development of this world society.13 Habermas’s response to the objection that a regime without centralized world government would lead to fragmentation and underenforcement of norms is a differentiated arrangement in which governance varies according to policy field. In areas like the maintenance of international peace and human rights protection, a hierarchical world organization would be established with the power to impose sanctions, although governance arrangements in transnational arrangements are more likely to emerge gradually as functional necessities.
Critical to the success of this scheme is the need for learning by both states and citizens, leading to new meanings of modern concepts like sovereignty and constituent power.14 The distinction between sovereignty and government would need to be further attenuated,15 and constituent power would have to be reformulated as a dual concept, including not just the power of citizens to establish a national constitution but also the capacity of world citizens to contribute to will-formation internationally.16
The juristic aspects of cosmopolitan constitutionalism are taken up by Mattias Kumm. Present puzzles exist, he suggests, because of the way constitutional lawyers continue to imagine constitutional law. Agreeing with Habermas that a “paradigm shift” in constitutional thinking is required, Kumm argues that the entire state-based way of thinking about constitutionalism must be replaced by “the cosmopolitan paradigm.” This is not simply a thought experiment: cosmopolitan constitutionalism is a jurisprudential account that explains “the deep structure of public law” as practiced today. Core issues, such as human rights practice and the complexity of governance at the interface between national and international law, can only be addressed by taking this move toward cosmopolitanism.17
Today, the concept of the state, Kumm suggests, is meaningful only to the extent that it operates according to principles of constitutionalism that now establish an autonomous and authoritative conceptual framework that legitimates governmental action both nationally and internationally. The constitution’s authority no longer rests on collective will or authorization by “we the people” but on its adherence to principles of cosmopolitan constitutionalism determined by a standard of public reason tested by legality, rationality, due process, proportionality, and subsidiarity. These principles frame a system of “constitutional pluralism,” an overarching regime that “allows for the possibility of conflict not ultimately resolved by the law,” but which nonetheless provides common constitutional principles that create “a framework that allows for the constructive engagement of different sites of authority with one another.”18
Since cosmopolitan constitutionalism is founded on the rights of free and equal citizens, the national constitution is legitimate only to the extent it protects those rights. Any claim to authority that rests on the will of the legislator, including a will expressed as constituent power, must be reinterpreted within a rights-based framework.19 Kumm accepts that many rights claims are contested, and their resolution vests a great deal of power in the judiciary. But he justifies this on the grounds that rights discourse is a “highly cooperative endeavour in which courts and other politically accountable institutions are partners in a joint enterprise” in which governing institutions assume different roles.20
This analysis indicates just how much the cosmopolitan project is indebted to Kant’s worldview, not least in requiring political power to bend the knee before right. But what, if anything, gives this thought experiment authority? If cosmopolitan constitutionalism is not dependent on a conventionally understood exercise of constituent power, whence comes its authority? Kumm’s answer is that its power derives simply from the cogency of its account of legitimate authority. And this comes from a “holistic construction of legitimate public authority” that achieves a “foundational significance” by retaining as its normative point of reference “the idea of free and equal persons … governing themselves through and by law.”21 If this argument seems circular, that’s because it is. Cosmopolitan constitutionalism takes its authority from its faith in the power of reason.
In the last chapter of The Road to Serfdom, Hayek claims that there is little hope of achieving a stable international order or bringing about a lasting peace where every state is free to pursue whatever is in its own immediate interest. But the solution is not world government because no international planning project can avoid being “a naked rule of force.” International authority is necessary to keep order and enable people to flourish, but the powers it requires—to check powerful economic interests and act as an impartial umpire—are “essentially the powers of the ultra-liberal ‘laissez-faire’ state,” which must be “strictly circumscribed by the Rule of Law.” A federal principle of organization on a global scale must bind the supernational authority strictly to its own constitution.22
There was, however, very little international dimension to Hayek’s thought during the postwar period. It is largely absent from his studies The Constitution of Liberty (1960) and Law, Legislation and Liberty (1973–1979), presumably because his emphasis on evolutionary orders could not be reconciled with such a constructivist project as the creation of international authority. Yet many of his disciples, especially those associated with the Mont Pèlerin Society, founded in 1947, took up his argument.23 Since the war they have adopted and expanded the Ordo-liberal argument about the need for an economic constitution at the national level. Extending the principle of “thinking in orders” to world society, they developed “a set of proposals designed to defend the world economy from a democracy that became global only in the twentieth century.”24
Their project is called neoliberal because unlike classical liberals, the objective is not just to minimize all governmental interference with market activity. Neoliberals recognize that markets rarely work spontaneously and need the support of state-enforced rules. Governmental action must ensure that markets operate efficiently and insulate them from the popular pressures of democratic politics. In an era of globalized economic activity, similar action is needed internationally. These developments at the interface between national and international governance are of pivotal importance to the neoliberal project and require the establishment of a regime of Ordo-constitutionalism at the global level.
This project needs some historical perspective. The first phase, classical constitutionalism, ended with the First World War. The war was the watershed leading to the second phase of democracy and big government, the era Sartori calls the “intensification of politics” and Schmitt that of “the total state.” In neoliberal terms, the first phase ended the era of classical liberalism, and the second phase was framed by the collapse of the gold standard and the fracturing of the economic unity of the world. It is during this second phase that Ordo-liberals, concerned about governmental interference in the economy, propose the need for a “strong state” to protect “free markets.” The third phase emerges from the revolt of the Global South and the end of empires during the 1970s and is consolidated by developments resulting from the end of the Cold War. If the world of empires marks the first wave of globalization, the era since the 1970s is indicative of the second wave. Marked domestically by the idea of the total constitution, this second wave of globalization provides the platform for promoting Ordo-constitutionalism worldwide.
Economic developments in this era of globalization contribute to the decline in the authority of national governments and enhance the authority of supranational institutions. Hayek’s proposal to establish an international authority within a federated regime of government now comes into its own. No single authority is created, but an interlocking network of institutions rapidly evolves over the postwar period. The International Monetary Fund and the World Bank were both established in 1944 to secure global financial stability, promote international trade, and aid economic development. Regional institutions such as the EU, the Association of Southeast Asian Nations, and the North American Free Trade Agreement came into being. The World Trade Organization was established in 1995 to promote free trade. Independent central banks are formed, and systems of international commercial arbitration and international investment treaty arbitration expand greatly.
Hayek believed that the method of creating a range of institutions designed to regulate specific activities approached the task “from the wrong end,” complicating the objective of creating “a true international law which would limit the powers of national governments to harm each other.” The challenge for neoliberals was to meld this incrementally evolving network into a coherent regime to protect the world economy from political interference by democratizing movements. The objective, in Hayek’s words, was “the dethronement of politics.”25
Cosmopolitan scholars recognized that the incremental development of transnational systems had created a legitimation gap: collective power was being exercised without democratic authorization or accountability. Habermas’s solution was to democratize those institutions. But this overlooks the salient fact that such institutions had been created specifically to advance the neoliberal project of a world economic order freed from political interference. The neoliberal project contemplates the formation of a global economic constitution to restrict the legitimate range of actions of constitutional democracies. The paradigm shift envisaged by cosmopolitan scholars, comprising liberal principles of legality, rationality, proportionality, and subsidiarity, locks nation-states into a world federation founded on neoliberal premises. Habermas and Kumm advance their claims of right without fully appreciating just how far the power dynamics that drive their movement fulfill the objectives of the neoliberal project.26
From a global perspective, Ordo-constitutionalism is designed to ensure that constitutional democracy safeguards economic freedoms. This is achieved at the national level with a regime of constrained democracy, a model that constitutional courts have the critical role of safeguarding. At the international level, the aim is to establish a regime that protects the rights of international capital and also, through the scheme of multilevel governance advocated in cosmopolitan constitutionalism, provides additional protection to rights within national systems. Constitutionalization defends economic freedoms against attempts by democratic legislatures to enact protectionist or redistributive policies.
Ordo-constitutionalists are therefore more than willing to embrace the rights revolution. Recognizing that the constitutionalization of social and economic rights is a response to the diminished capacity of legislatures to implement programs of redistribution, they fully support the idea of individualized litigation monitored by constitutional courts. It is a small price to pay for a revolution with the potential to break the authority of the sovereign nation-state and establish a cosmopolitan regime with enhanced protection not just for individual freedom in general and economic freedom in particular. Cosmopolitan constitutionalism, Ernst-Ulrich Petersmann argues, marks an advance by strengthening protection for all types of rights, including those of property.27
Ordo-constitutionalism operates at the intersection between international law and domestic law. It works most effectively when international tribunals make rulings that can be directly enforced in domestic courts. One powerful illustration is the system of international investment treaty arbitration that protects the economic rights of foreign investors through an international arbitration system and enforces the award of damages in domestic courts.28 But its most powerful articulation comes in the shape of the EU.
As a regime in which member states pool many of their sovereign rights, the EU moves beyond traditional international relations conducted by sovereign states. It establishes a common market that protects four economic freedoms—freedom of movement of goods, services, labor, and capital—and promotes undistorted competition. But the project also envisages moving beyond the internal market to establish a federation, a governmental order in which the federal tier is insulated from democratic accountability.29 As we have noted, there has been a failed initiative to legitimate the EU through the adoption of a constitution, but the fact that from the outset the EU has pursued a policy of constitutionalization by juridification should not be overlooked.30 The EU has always conceived of itself as a new type of order that pursues its ends by integrating the legal orders of member states. This movement is promoted and policed by the European Court of Justice which, by means of an “invisible constitution,” enforces EU law not just by the European Court itself but by domestic courts of member states which, if faced with conflicting national law, must give effect to EU law. The judiciaries of member states are thereby co-opted to become the enforcement agencies of Ordo-constitutional principles.
The age of empires drew to a close in the decades following the Second World War and with it a system that had provided relative stability in world trade. How, neoliberals asked, could the free flow of capital and goods be maintained in a world of independent, sovereign, and democratizing nation-states? Their solution was an international order that would oversee the removal of national barriers to trade and investment and establish an integrated global economic regime policed by law. To achieve this, a paradigm shift in legal and constitutional thought was necessary. A system of sovereign states interacting as formal equals through public international law had to be displaced by a federated cosmopolitan order.31 This would erode distinctions between public and private and national and international in favor of a tiered order of individual civil, social, and—crucially—economic rights. Through these processes of constitutionalization, a global regime of Ordo-constitutionalism was instituted. Cosmopolitans conceptualize it normatively as a regime of right. Neoliberals explain how right-ordering is necessarily tied to changing economic relations of power.
Constitutionalism was devised as a philosophy of government to reconcile order and freedom. Forged in the crucible of the modern state, it has gone through various iterations. But cosmopolitan jurists now contend that, because of globalization, the state’s authority has been displaced by a constitutionalism that has evolved into an autonomous discourse of legitimation. The international implications of this have been introduced, but we have yet to consider their impact on the constitution of the nation-state.
Globalization, it is argued, is leading to a new type of national constitution. In calling it “the cosmopolitan constitution,” Alexander Somek is careful to explain that this label does not designate some constitutional formation beyond the nation-state; rather, it captures the constitution of a nation-state “under conditions of international engagement.”32 The most basic change it advocates is to institute the principle of open statehood. There are many implications of this, but the most important concern is the status of basic rights. That the constitution was devised to protect basic rights is hardly novel; what is new is the enhanced status they are accorded. This enhancement is the consequence of two developments: first, the adoption of an abstract idea of human rights as the universal standard of legitimacy and, second, international agencies’ beginning to actively police that standard.
Germany led the way with its Basic Law, stating that the German people “acknowledges inviolable and inalienable human rights as the basis of every human community, of peace and of justice in the world.”33 The significance of this formulation has recently been transformed by the sheer range of human rights in question and by the way they are increasingly determined by international judiciaries. The result has been the rapid globalization of standards enforced by comparative evaluation and extensive borrowing. By making the Basic Law relative, the authority of national constitutional law is diminished.
This development is now a feature of many regimes. Consider the example of India. Indian courts now “roam freely over American, English, South African, Israeli, or even Pakistani jurisprudence” and regularly “read international law principles into the Constitution.” To engage with Indian constitutional law “is not to enter into a world of parochial concerns, derived from the peculiarities of a political tradition; it is to enter a global conversation on law, norms, values, and institutional choices.”34 This trade is strengthened and ratified through international judicial networks that regularly exchange “best practice,” making international human rights the benchmark against which all states are measured.35 The inclusion of such rights within the constitution is no longer a matter of local political choice. Increasingly, it is no longer even possible to subject them to purely domestic judicial interpretation.
Open statehood and enhanced rights protection are also eroding the distinction between citizens and resident aliens. National constitutional authority is again relativized. In the context of high levels of international migration, enhanced protection against discrimination on the grounds of nationality gives rise to the expectation that the civil rights and social benefits of citizenship will be equally accorded to nonnationals. This weakens the political bond on which the authority of the social contract is founded and with it the assumptions that have underpinned the modern discourse of state sovereignty.
In the cosmopolitan-orientated constitution, the idea of the state as an authoritative political association loses its purchase. At home in the world rather than just in one’s own state, the cosmopolitan is a depoliticized being. Like citizens of the state, they have basic rights, and they depend on the provision of collective goods. But apart from that, all that is required is the effective protection of their rights and efficient mechanisms to deliver services. Cosmopolitans may have need for administrators, regulators, service providers, and auditors, but the practices of democratic deliberation become redundant.
In this age of constitutionalism, the meaning of constitution is transformed almost beyond recognition. It is no longer the written text, and constitutional adjudication is no longer concerned with the text’s intended meaning. The constitution has become a set of the constitutional court’s changing standards of reasonableness and rationality. In his classic nineteenth-century study The English Constitution, Walter Bagehot claimed that the duty of parliamentarians was “to know the highest truth which the people will bear, and to inculcate and preach that.”36 This pedagogic task is now assumed by the judiciary as they strive to uphold the highest standards of rationality they think the polity can bear. Constitutions, Somek notes, “were made in order to prevent change,” but with the emergence of the cosmopolitan constitution, they are now “to be tacitly amended on the basis of cross-cultural exchanges about the optimal protection of rights.”37
The cosmopolitan constitution, then, is a national constitution that has become receptive to cosmopolitan influences. The trajectory is clear: it requires the judiciary, as guardian of the constitution, to live up to universal standards in the protection of rights and to yield, “for the purpose of self-correction, to the judgment of one’s peers.”38 The radical character of the innovation is highlighted by comparison with the founding assumptions of modern constitutional thought.
First, the collective entity of “the people” is disaggregated if not entirely dissolved. As Somek explains, the notion “is now experienced as even slightly embarrassing, as if there were something intrinsically xenophobic or otherwise obnoxious about an entity called a ‘people.’ ” Second, when the distinction between citizens and foreigners is permeated by the influence of antidiscrimination rights, even the idea of nationality becomes suspect. And a cosmopolitan interpretation of liberty and equality makes the third element—the modern clarion call of solidarity—merely superfluous. In the eyes of cosmopolitans, migrants have become “successors of the proletariat.” They are “agents of change,” and their movement renders societies “more diverse and multicultural.” As a consequence, the task of redistribution is replaced with that of “inclusion.” Postnational citizenship discourse, Somek concludes, “is neoliberalism with a leftist face” in that it envisages migrants “exercising a transformative force similar to the proletariat.” It is a transformation far removed from that of moving toward greater equality.39
Cosmopolitan constitutionalism ushers in a world of markets, voluntary associations, and service agencies in networks that transcend national boundaries. It is a constitutional discourse for a world of interacting orders and permeable boundaries. To the extent that it conjures a world without boundaries, constitutionalism with a cosmopolitan purpose envisages a world if not quite yet without states, then perhaps without politics, and certainly without the pivotal significance of democratic practices.