17

The Cosmopolitanisms of Citizenship

JEREMY WALDRON

It is appropriate to begin this essay by reflecting a little bit on the cosmopolitanism of the university and the various ways in which universities can represent, bear witness to, nourish, and advance the cosmopolitan strain in our civilization. Consider this quotation from Jacques Verger, the French medievalist and specialist in the study of universities in the Middle Ages. Reflecting on the role of university institutions in Paris, Oxford, Bologna, and other European cities in the thirteenth century, Verger said this in his contribution to the New Cambridge Medieval History:

Unlike both other urban professions and the schools of the preceding century, the universities were not institutions that were purely local. They may have been located in a given city, but they were simultaneously institutions belonging to the whole of Christendom. Their range of recruitment was not limited by administrative or ecclesiastical boundaries but extended as far as their power of attraction, which in itself was solely determined by the influence of their teaching. Their freedoms and privileges, whose main purpose was to remove them from the control of the local authorities, were confirmed by the papacy, the universal power par excellence. The knowledge conveyed by the universities was itself conceived as universal knowledge, exempt from any particular locality, unique and valid in all of Christendom (which was demonstrated by the exclusive use of Latin). Consequently the degree conferred by the university was valid everywhere.1

Now if we were describing the mission of the university today in universal terms, we would perhaps not use the word Christendom—“institutions belonging to the whole of Christendom,” “universal knowledge valid in all of Christendom.” (I will come back to this below). Still, the quotation reminds us that the cosmopolitan approach of our work and our institutions today is not a novelty. If anything, it is the recovery of a much older cosmopolitanism, a much older universalism in the university that used to inform the way our predecessors in these traditions completed their work and approached the body of knowledge and scholarship for which they were responsible.

This cosmopolitanism is evident to me in the way I think of my own discipline, law. It is easy to think of law as tied to a particular jurisdiction, a particular country: American law, English common Law, Islamic law, and so on. People sometimes ask me, “How come you teach law in New York when you earned your law degree in Dunedin, New Zealand, and your doctorate in jurisprudence at Oxford? How that can that qualify you to teach law in the United States?” The question is predicated on a parochial view of the study of law that perhaps makes some sense today but would have made little sense in the era of which Verger was writing. In that era, law was conceived as a universal discipline, not one tied to particular legal systems. Jurists at Oxford did not just study English law; medieval law professors in Paris did not just study French law; and legal scholars in Bologna did not study just the law of some particular Italian city. They simply studied the law, the body of thought and knowledge—legal science—that was associated with the enterprise of governing human activities and transactions and associated with the rule of law as such. Of course, each community had its customs and some idiosyncratic laws of its own. But not until the jurisprudence of the beginning of the nineteenth century do we see the representation of distinctive custom, local or parochial, being treated as the essence of law, as much a peculiar identity of each particular society as its language or its culture. We see that in the work of people like Savigny as a reaction against the universalist pretentions of the Napoleonic Codes.2

Before that, societies that insisted on the distinctiveness of their own parochial legal folkways were seen as aberrations—not as the norm—rather like a society insisting on its own physics or its own chemistry. As late as 1842, in a decision involving a bill of exchange written in Maine but negotiated in New York City, the U.S. Supreme Court invoked the idea of the law as a universal discipline, saying that the case was to be settled by the general principles and doctrines of commercial jurisprudence as such. (I emphasize that this was a tough decision in commercial law, not some fancy jurisprudential theory.) The Court said this:

The law respecting negotiable instruments may truly be declared in the language of Cicero to be in a great measure, not the law of a single country only but of the whole commercial world. Non erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit. (Not just in Rome or in Athens, but throughout the whole world and among all peoples and at all times, one and the same law obtains).3

Not until 1928, under the corrosive skepticism of Justice Oliver Wendell Holmes, did the Supreme Court turn decisively against that idea, holding that law could not float free in the world at large but had to be tied down to a particular jurisdiction, to the sovereignty of a particular country. This was the great case of Erie Railroad v. Tompkins,4 in which the Court rejected the idea of a federal version of general common law. “Law,” said Justice Holmes, “in the sense in which courts speak of it today does not exist without some definite authority behind it,” and the definite authority must be that of a particular state.5 I think it is fair to say that ever since that case was decided, a great many legal scholars, among whom I count myself, have been trying to confine it to its facts and claw back a sense of law as a cosmopolitan institution and a universal subject of study.6

In some ways the idea of cosmopolitan law is easy to understand. We understand the idea of international law. We understand the idea of human rights law. We understand the laws of armed conflict and the principles referred to in the prosecution of the Nazi war criminals, “principles which had been entrenched and rendered sacred and which had become the heritage of all civilized peoples.”7

We understand the idea of the law of nations, referred to in Article I, Clause 8, of the U.S. Constitution.8 Maybe, as some scholars suggest, we need to come to terms with the idea of global common law.9 Those are more or less obvious cases, and they do not occasion much concern. Less obvious is the routine development of law as a transnational enterprise, facilitating global commerce, protecting property and person in transactions and migrations all over the world. The law of international trade is something that you can perhaps understand as the outward projection of the commercial law of particular societies. But it can also be understood like the old mercantile law, lex mercatoria, as a body of customs that evolved along the trade routes and lived in the caravans of the traders as they moved between societies, something that was then only partially incorporated into the municipal law of particular countries.10 Even if we focus on law enforced within each particular country, the life of the law has always involved copying, imitating, and boilerplating from one society to another as societies look at each other and take advantage of the best—sometimes the worst—but mostly the best that they can find in each other’s legal culture and legal science.

Even to the extent that we associate law with national sovereignty, we still think of sovereignty itself in a cosmopolitan way as a feature of a network or community of nation-states,11 recognizing one another, maintaining regular channels of contact and consultation on issues of common concern, respecting one another’s passports, maintaining treaties of legal comity on everything from extradition to child custody, applying one another’s laws where appropriate to problems that lawyers call conflicts of laws, facilitating and sustaining international treaties that make possible travel around the world—for example, travel and telecommunications from New York to Abu Dhabi—all the effortless connections and connectedness between continents that we take for granted. This is cosmopolitan law woven into the fabric of ordinary experience.12

I am not saying that there are no differences. Of course there are. But even on the parts of the law that we are most particularly (and particularistically) attached to—our own constitution, for example—we see the cutting and pasting of language from one country to another. Our Eighth Amendment forbidding “cruel and unusual punishment” is cut and pasted from the English Bill of Rights of a hundred years before.13 Exactly the same language, cut and pasted by the drafters of the Canadian Charter of Rights and Freedoms, surfaces in that country in 1982,14 almost two hundred years after Americans adopted the language of “cruel and unusual” from the very country we had revolted against. By the same token, our constitution serves as a template for others around the world. Countries copy one another, not because they are plagiarists or unoriginal, or because they cannot do the work themselves; they copy because they value the common enterprise of legality and human rights. They value what they have in common with other countries, in the constitutionalist tradition, more than they value their national distinctiveness.

I have drawn on examples of law because that is what I know about. Everything I have explored could be applied to other academic disciplines, particularly this theme of recovering the sense of an older cosmopolitanism. No one believes there is a distinctive physics and chemistry that differs from one side of the world to another, so that U.S. physicists study the way particles move in this part of the world while physicists at the European Organization for Nuclear Research study the way that particles move in Switzerland. Scientific study is, by definition, universal. I have long been intrigued by what one might call the effortless cosmopolitan community of scientists. When scientists talk about what “we” know, what “we” do not yet know—“We think the Big Bang happened some 10 or 20 billion years ago, but there are one or two observational anomalies that we haven’t figured out” or “We have a pretty good account of what causes AIDS and how to mitigate its progress, but we don’t yet have anything in the way of a vaccine”—the term we does not just refer to me, the scientist, and my chums in my particular laboratory. It does not even just refer to me and my conationals or scholars in the same university. The we refers to the consensus of the community of scientists in the world—scientists who read the same literature, are aware of one another’s findings, check and recheck each other’s results, and grapple with the same problems in roughly the same terms.

It is a wonderful notion, because it is a cosmopolitan conception of community. An effortless community—well, perhaps not completely effortless as people do have to work at it—but a civilization-wide community taken for granted among humans working together in their ordinary lives in the pursuit of knowledge. When you think of it, this is true not just of the disciplines studied in universities. There is a similar pervasive cosmopolitanism in everyday life. It would be tedious to count the mundane ways, whether it is trade or consumer goods. I mean things like the jeans we wear, the electronic devices we listen to, the music we groove to, the food we eat—all these artifacts by which we are connected effortlessly to thousands of workers, manufacturers, and producers around the world, bound to one another in a vast and densely entangled web of trade, commerce, and consumption.15

I wrote earlier that the reference to Christendom in Verger’s statement about medieval universities made his conception of the universal mission of the university seem less cosmopolitan than perhaps we are comfortable with. Today, we might want to think well beyond the boundaries of what used to be called Christendom to embrace the Islamic world (and others) as well. But it is still worth reflecting on the fact that both great world religions work as cosmopolitan entities, as religions that inhabit the world. Think for a moment about Christendom. We may think of it as located in Rome or in the site of a particular cathedral or in a city like Jerusalem or the towns in Galilee where its founder grew up, or the cities in Asia Minor where the apostles preached the gospel before the religion became politicized under Constantine. But basically, Christianity exists in the world. Even Catholic Christianity’s location in Rome (Roman Catholicism) is not a matter of a religion or a sect having put down cultural roots in a particular community; it is a base of operations for a cosmopolitan enterprise in what was at the time the most cosmopolitan city in the world. And so it exists today, exercising pastoral leadership over a billion people, many of whom regard their involvement in that vast global enterprise as the most profoundly important feature of their lives. The same is true of Islam. It arose in a particular time and place, and it has its holy and sacred sites in Mecca and Jerusalem. But it exists now, if it exists anywhere, in the world. In this world-cosmopolitan character, it may again be the fact about their lives that people take most seriously in what are otherwise the most disparate communities.16

This brings me to an important point of about social perception. There is a kind of optical illusion or fallacy that it is important to avoid when we think about culture and cosmopolitanism. I call it “the grade school teacher’s fallacy.” When grade school teachers in the United States want to introduce the children in their classrooms to other cultures—to the culture of the Dominican Republic or Mexico, the Netherlands or India—they will show the children things that are different about these cultures (I mean different from ours). The teachers may give their pupils the impression that the most important thing about each particular society—each cultural or ethnic community—is its distinctiveness, the practices and customs, foods and costumes, that distinguish it from others. But this may be a serious misconception, both as a description of the consciousness of the communities in question and as a prescription about what it is to show respect for the members of a given community.

For example, a man in Djakarta and a woman in Damascus may believe (quite rightly) that they have much more in common in their shared commitment to Islam than anything the U.S. grade school teacher would say was useful for illustrating the distinctiveness of Indonesian or Syrian society. Similarly, a woman in the Philippines, a man in Brazil, and a teenager in Ireland may all think of the teachings and sacraments of the Roman Catholic Church as the most important aspects of their culture in regard to the way their lives are actually lived. And it is not just religion but science, trade, and everything. The most important things that people value may be woven into their culture as cosmopolitan strands, not particularistic strands. I am not arguing that people do not value the distinctiveness of their societies. I am trying to highlight the point that when we actually look at what matters most to people in their lives without any preconceptions about distinctiveness, we may well find that cosmopolitan or worldly or global strands matter more than anything else.

When we talk about the cosmopolitanism of the university, we are not necessarily talking about something that divides the elites who inhabit an academic institution from the lives of ordinary men and women of various societies around the world. When philosopher Martha Nussbaum spoke of cosmopolitan responsibility a few years ago in an article written for the Boston Review, she quoted the old Stoic adage that each of us dwells in two communities, the local community of our birth and the community of human aspiration in which we look neither to this corner nor to that but measure the boundaries of our nation by the sum. She also quoted the saying of Marcus Aurelius, “It makes no difference whether a person lives here or there, provided that wherever he lives, he lives as a citizen of the world.”17

When she quoted those propositions, Nussbaum’s critics responded that “you can not be a citizen of the world unless there is a world government. You can not be a citizen of the world unless there’s a world polity, political system to be a citizen of.”18 It was also said, “teaching a child to be a citizen of the world is teaching the child to be a citizen of an abstraction.”19 That argument, I think, is thoughtless. It rests on too tight a connection between citizenship and civic responsibility on the one hand, and state and government on the other hand. A citizen, a good citizen, is somebody who takes responsibility for a collective enterprise. When there is no government to rule that enterprise, the responsibilities of the citizens may matter even more. When we use the phrase “good citizen” in academic life, we use it in relation to institutional responsibility—again, without any sense that its use is inappropriate, unless there’s an overarching mechanism of control. A good citizen is one who shoulders his or her burdens of departmental life and departmental administration, is available to help in crises, and so on.20

To push the point a little further, one can imagine there was the distinction between good citizens and bad citizens even among the members of the underground universities and their departments in, say, Czechoslovakia in the early 1980s. Precisely because they did not have formal structures of governance, precisely because they did not have presidents and department chairs, they had to, as it were, run that cosmopolitan part of their lives themselves. The distinction makes sense despite the absence of formal ruling structures for the departments in question. Indeed, it became important precisely because of their absence. So the analogous phrase “citizen of the world” should not be regarded as meaningless in the absence of world government. If anything, the absence of such a coercive institution to secure, nourish, and sustain the structures of life and practice at a global level places a greater burden on individual men and women and on the initiatives that they undertake voluntarily. It makes it all the more important for us to use “citizen of the world” as an idea to regulate and discipline our actions. The absence of any organization that can do that work for us provides a greater reason for thinkers not to reject peremptorily Martha Nussbaum’s proposal that people must be educated to this cosmopolitan dimension of their civic responsibilities.

My argument has been about the pervasive presence of cosmopolitan strands woven into the fabric of everyday life, just as they are woven into the understanding—a proper understanding—of the university and the scholarly and scientific enterprises. That these cosmopolitan strands are pervasive does not mean that they can be taken for granted. It does not mean that they will continue to subsist resiliently, no matter what we do. They can be nourished, or they can be subverted, occluded, and undermined. I take it that when we talk of global citizenship, we are talking about a duty to take care of the cosmopolitan side of our institutions. Cosmopolitanism is an ethically weighted concept. We have a responsibility to respond to the ethical values that the term embodies and make sure that these are not overwhelmed or disparaged in the name of particularistic attachments. Most of all, we have a responsibility simply to bear witness to and participate in the cosmopolitan life of the world.

NOTES

  1  Jacques Verger, “The Universities and Scholasticism,” in The New Cambridge Medieval History: Vol. V: 1198–c.1300, ed. David Abulafia (Cambridge: Cambridge University Press, 1999), 256, 263.

  2  See, for example, Frederick Charles von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence (1828), trans. Abraham Hayward (Bethesda, Md.: Legal Classics Library, 1986).

  3  Swift v. Tyson, 41 U.S. 1 (1842), citing Lord Mansfield in Luke v. Lyde, 2 Burr. 883, 887, 97 Eng. Rep. 614 (K. B. 1759).

  4  Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). In this case, Justice Holmes relied on his own earlier dissent in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518 (1928).

  5  Ibid., at 533 (Holmes J., dissenting).

  6  See, for example, Craig Green, “Repressing Erie’s Myth,” California Law Review 96 (2008): 595; Jeremy Waldron, “Foreign Law and the Modern Ius Gentium,” Harvard Law Review, 119 (2005): 129; and Jack Goldsmith and Steven Walt, “Erie and the Irrelevance of Legal Positivism,” Virginia Law Review 84 (1998): 673.

  7  This is a quotation from Attorney General Gideon Hausner in the trial of Adolf Eichmann in Jerusalem in 1962. For the relevant part of the Eichmann transcript, see www.nizkor.org.

  8  U.S. Constitution, Article I.8: “The Congress shall have power to … define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.”

  9  See, for example, Wayne R. Barnes, “Contemplating a Civil Law Paradigm for a Future International Commercial Code,” Louisiana Law Review 65 (2005): 677.

10  See Wyndham Anstis Bewes, The Romance of the Law Merchant (London: Sweet & Maxwell, 1923).

11  The idea of a society of states as the basis of international order is best known from Hedley Bull, The Anarchical Society: A Study of Order in World Politics (New York: Columbia University Press, 1977).

12  I have pursued this further in Jeremy Waldron, “Cosmopolitan Norms,” in Another Cosmopolitanism (2005 Tanner Lectures by Seyla Benhabib), ed. Robert Post (Oxford: Oxford University Press, 2006), 83–101.

13  The English Bill of Rights of December 16, 1689, provided as follows: “The … lords spiritual and temporal, and commons … do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare … that excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.”

14  Canadian Charter of Rights and Freedoms (Part One of Canada’s Constitution Act, 1982), Article 12: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

15  I have pursued this theme at length in Jeremy Waldron, “Minority Cultures and the Cosmopolitan Alternative,” University of Michigan Journal of Law Reform 25 (1992): 751, reprinted in The Rights of Minority Cultures, ed. Will Kymlicka (Oxford: Oxford University Press, 1995).

16  See also the discussion of religion in Jeremy Waldron, “Teaching Cosmopolitan Right,” in Education and Citizenship in Liberal-Democratic Societies: Teaching for Cosmopolitan Values and Cultural Identities, ed. Kevin McDonough and Walter Feinberg (Oxford: Oxford University Press, 2003), 31–33.

17  See Martha Nussbaum, “Patriotism and Cosmopolitanism,” Boston Review 19 (October/November 1994); and Martha Nussbaum with others, For Love of Country? Debating the Limits of Patriotism, ed. Joshua Cohen (Boston: Beacon Press, 1996). Her quotations are from Seneca, De Otio, and Marcus Aurelius, Meditations.

18  Amy Gutmann, “Democratic Citizenship,” in For Love of Country? 68.

19  Michael McConnell, “Don’t Neglect the Little Platoons,” in For Love of Country? 81.

20  This paragraph and the next are adapted from Waldron, “Teaching Cosmopolitan Right,” 39–44.