The last work of H Patrick Glenn, emblematically included in the Oxford Constitutional Theory Series, proposes a new understanding of the notion of state. It dismisses the nation-state as empirically impossible and sets forth the notion of a cosmopolitan state that corresponds to social reality. The coincidence of a population, homogeneous in terms of language, religion and ethnicity, with a closed legal and political state-like structure has never occurred. All states are, and since the Greek poleis in antiquity have been, cosmopolitan. The book purports to demonstrate this assertion and at the same time sketches a pioneering general theory of the cosmopolitan state.
A short introduction resets the theory of state into the frame of Glenn's own notion of tradition; hence it considers the state as a ‘body of normative and often inconsistent information that is inevitably instantiated or institutionalised in various and particular forms’ (p. 1). The following three parts, constituting about half of the volume, retell the history of the modern state institution by focusing on its openness to external influences and its adaptability to internal differences. The state is shown to have cosmopolitan origins and, the constant presence of elements of closure notwithstanding, to have maintained its distinctively cosmopolitan nature until today. The fourth part details the author's notion of the contemporary state in a globalized world populated by citizens with multiple and overlapping identities. Normative sources are diverse, adaptive, complex and discordant. Most importantly, the conception of state presented in this oeuvre necessitates new ways of thought. Cosmopolitan forms of reasoning rely not only on classical binary logic, but also on paraconsistent logics that accept various degrees of truth and take into account different modes in which assertions may be true or false.
Drawing on his own previous research on common laws and legal traditions, Glenn explores the contemporary legal world, and throughout the book he follows the evolution of three crucial indicators for the cosmopolitanism of states: the institutional cosmopolitanism, constitutionalism and common laws. Administrative structures never managed to be all-encompassing. In medieval times, neither empire, nor church, nor cities or realms were able to translate underlying ideals of unity into legal uniformity, and the laws of all of them had to coexist on the same territory. In modern times European states reached a higher level of autonomy but total autonomy was never achieved. Nowadays, also the Westphalian conception of public international laws is challenged by the appearance of new sources, new subjects, new regional and transnational institutions.
The second common thread investigated is constitutionalism, which has been a guarantee of cosmopolitanism since its origins as it implies the principle of limiting the exercise of authority. Written constitutions have arguably also been a means to achieve national closure; nevertheless, the existence of many different constitutional texts and their dependence on extratextual sources for their meaning have been structural impediments to the attainment of that goal. The cosmopolitanism of contemporary constitutionalism is manifested through the accommodation of population differences, and in the choice of deliberately ambivalent and vague language that allows for case-by-case interpretation. Finally, also judicial review is a mechanism rooted in general principles and concepts that are inevitably drawn from common law sources. The use and citation of non-national sources connects to the third element of cosmopolitanism, namely common laws.
Characterized by their suppletive and relational nature, common laws are a constant presence in the history of European law, and their influence spread all over the globe as a consequence of colonialism. They existed prior to the emergence of the state, and bequeathed it the legal means necessary for its functioning. Today, we witness a resurgence of the concept through the practice of transborder judicial dialogue, the growing role of a contemporary lex mercatoria in the resolution of commercial disputes beyond states, the reconciliation and mutual recognition of state tradition and chthonic law.
Normative phenomena from origins other than the sovereign state have existed and still do. They are not organized in any hierarchical and coherent way, hence a rediscovered vocabulary to conceptualize them is needed, which is what Glenn purports to do. The concept of cosmopolitanism adopted in this book is quite wide, and it is not surprising that it is found to be instantiated everywhere. This looseness and the abstractness of the approach somehow weaken the contentions of the author, yet he definitely proves the impossibility of total national autarchy.
The book takes a descriptive stance with a very strong normative theoretical framework. It develops a theory of the cosmopolitan state and describes the contemporary legal world with the lexicon of cosmopolitanism that it is advancing. To be precise, the normativity of the framework is twofold: not only does it guide the author in the choice of focus (expatiating on aspects that support his view), but also entails ‘normative consequences, notably as to whether populations should continue to be inculcated with ideas of social uniformity as the underlying norm, and whether measures of social “uniformization” […] have some institutional justification’ (p. viii). This openly stated political agenda does not detract anything from the scientific soundness of the project, as is proven by the impressive footnotes and extensive bibliography. The book adds to the body of existing literature by remoulding current knowledge in order to make it fit the shape of the developed theory.
The target audience is constituted of both scholars interested in innovative perspectives on a very well-known topic and in new narratives and of undergraduate students, who cannot anymore build their basic legal knowledge on the outdated theoretical construction of the hierarchically coherent state. In addition to this, Glenn's discernible fluent prose and untechnical narrative build-up make this book accessible even to a lay audience.
Detractors will find handholds in the sometimes cursory exposure of the subject matter and in the author's ambition to develop an all-encompassing, universal framework. Even so, enlivened with his incurable optimism, Glenn provides us once more with an unavoidable contribution to the development of an updated general theory of state.
