This is an exciting and important book, which will be a must-read for all who are interested in international politics, international law, and social theory. While the intersections of international law and international relations, or of international law and sociology, have been rather busy of late, most of the traffic still has – contrary to all professions for the need of an interdisciplinary dialogue – followed the well-trodden paths of disciplinarity. Lawyers focused on obligation, on the emergence of super-norms and worried – perhaps with the exception of the of the new process schoolFootnote ¹ which foregrounded foreign-policy issues – about the proprium of law,Footnote ² or suggested that with the emergence of human rights and its fusion with humanitarian law, a new post-Westphalian phase of law-making and law enforcement was in the offing. Sociologists investigated the spread of cultural norms – and in particular the institutionalizing of the Western way of life – across the globe, or examined the displacement of the segmented order of territoriality by functionalist autonomous systems. Finally, international-relations scholars, having discovered ‘regimes’ some time ago, puzzled – in accordance with their scientistic bent – over how norms can ‘cause’ compliant behaviour, reducing law's normativity and contestability largely to the issue of how to ensure conformity.

There were, of course, some exceptions. Despite law's attempts to internalize the sources of its validity there remained the puzzle of how legitimacy and legality related to each other, which preoccupied Thomas FranckFootnote ³ and the international commission of jurists charged with assessing the Kosovo intervention. Antje WienerFootnote ⁴ disturbed the circles of the ‘diffusionists’ in international relations who wanted to discover norm-cascades by showing that norm diffusion need not lead to conformity but to an increase in contestability. The rosy picture of the ‘disaggregated state’ and the ‘community of courts’Footnote ⁵ was corrected by the fragmentation debateFootnote ⁶ in inter-national law which showed that the IR focus on judicializationFootnote ⁷ was much too narrow when investigating actual legal practice. Important constitutional issues were raised by the existence of various dispute resolution mechanisms standing in no clear order vis-à-vis each other, giving rise to fears of the fragmentation of the fragile international order.

Thus, by an ironic twist, it was now the existence of too much law, now created through informal processes outside the traditional sources, and of too many courts that could see issues only according to their mandate, and thus lacked the means of mediating different areas and concerns. The former competition among territorial states is now supplanted by the competition for interpretive hegemony, i.e. whether an issue should count as one of trade, security, labour standards, or the environment. Although these issues were well rehearsed in law, they remained largely out of sight in international-relations analysis. Similarly, the constitutionalization issue was largely limited to a form of cosmopolitanism that tried to fix the existing international institutions by making them more ‘state-like’. The poverty of the traditional conceptual apparatus with which the transformative changes of the international system – lumped together under the rubric of globalization – were usually analysed became quite obvious. Matters became even worse when the ‘post-Westphalian’ moment was interpreted as the emergence of a global community in which sovereignty had not only lost its constitutive role but was to be overcome by a global ‘rule of law’. However, it looked less like the Law's Empire Footnote ⁸ and much more like the ‘law of the empire’ supporting dubious political projects of Foucauldian dimensions.Footnote ⁹ Obviously both our practices and our understandings are in dire need of reform and reconceptualization.

It is in this broader context of the crisis in ‘acting and knowing’ that Jean Cohen's book must be read and her contribution to the ongoing debates be assessed. It is not a call for activism where certain ‘solutions’ are – as in the garbage can model of decision-making – in search of problems, as is the case in the demand for enforcing human rights, or for a ‘Wilsonianism in boots’ which aims at facilitating regime changes, or in the advocacy of extending the Security Council's legislative competence in the War on Terror. As a matter of fact, all of these pat ‘solutions’, which dominate our public discussions, come in for well-deserved scathing criticism by Cohen. But she is certainly not an apologist either for a ‘politics as usual’, to be left to the technicians of power or to some ‘experts’, which only needs further enhancement by litigation. Her work is rather an attempt at a conceptual ground-clearing operation that allows us to rethink the global problematique and its organizational implications, instead of being limited by conceptions projecting the state to the global level or by attempts at realizing the teleology of the human race that relies for its persuasiveness on a secularized version of Christian eschatology.

It is no accident that Cohen's analysis takes its cues from two unlikely candidates: Hans Kelsen and Carl Schmitt; the former attempting to develop further Kant's idea of ‘nature's design’ (although in the highly problematic fashion of the ‘pure theory’ of law), the latter seeking to unearth the ‘theological’ roots of our political vocabulary and subjecting them to scrutiny. In addition, both scholars offer different solutions to the sovereignty problematique, since with the death of the personal sovereign, the notion of his ‘will’ as the supreme source of law (omnibus legibus absolutus), together with the growing interdependencies among states, the conceptualization of sovereignty as the imputed ‘competence of competences’ (Kompetenzkompetenz) has become problematic.

Of course, Cohen does not share either one's political projects, be it Kelsen's, whose monist conception of law makes the state an ‘organ’ of the international legal order, or Schmitt's ‘politics of exception’. Instead, she chooses these two theorists in order to rethink the global situation. Today this issue is usually treated in terms of a managerial governance model that disempowers the individual and hollows out the state and with it any meaningful notion of political participation and autonomy. Thus, an ever-increasing catalogue of subjective rights is drawn up, which – because of its conceptual incoherence – has then promptly to be reduced again to a impoverished ‘thin’ version, which allegedly protects what makes us human.

However, such ahistorical and abstract notions are hardly useful for orientation. For one reason, precisely because the common denominator has to be abstract, it needs interpretation and that introduces again most of the complexities from which we tried to escape by conceiving of fundamental rights. After all, a short reflection drives home the point that these rights might not be ‘compossible’ as they protect competing values. Thus, priorities have to be set and legitimized. While rights might be conceptual ‘trumps’ when compared to simple statutes, no such clear prioritization is available when rights themselves conflict or when they are competing with higher-order principles. Thus hierarchization has its limits as the rather unfruitful discussions about the status of jus cogens show. Second, conceiving of rights in terms of natural, pre-societal properties is not only committing a naturalistic fallacy of the first order, it also distracts our attention from what rights ‘do’ (rather what they ‘are’) within the legal and political processes reproducing social order. To that extent the notion of rights Cohen espouses is a political rather than a natural one, more akin to that of ArendtFootnote ¹⁰ or BeitzFootnote ¹¹ (or Waldron,Footnote ¹² or to that of the later Rawlsian conceptionFootnote ¹³) than to one derived from immutable and eternal values or the ‘nature of man’. It emphasizes with the former writers the importance of the ‘right to have rights’, i.e. not to be excluded or made invisible by revoking citizenship or even membership in a society. These rights thus function above all within the political discourse in which their content is specified through the debates of policies and particular political projects. This presupposes not only a discursive space but an institutional framework. Only in this way can binding choices be made and defended against holdouts or former opponents that have now to accept the choice as ‘theirs’, even if it does not satisfy their preferences.

It is at this juncture that the importance of sovereignty, pluralism, and constitutionalization becomes obvious. Sovereignty is for Cohen no longer the ‘supreme will’ of the original personal sovereign or even the people. Sovereignty under modern conditions has become just a modifier of ‘equality’, but an important modifier at that, since it entitles the members of the international game to have equal capacity for duties and rights (p. 41). Gone are the long debates about why or why not the sovereign can or cannot ‘bind itself’, whether international law is proper ‘law’ or just ‘morality’, and whether we need a monist or dualist understanding of law. Each pair creates its own conceptual conundrums resulting from their very vocabularies (as when for Kelsen the state is ‘authorized’ by, and thus akin to an ‘organ’ of, the international legal order).

There are several corollaries that follow from this move. The first is that because she accepts a political conception of rights, the declaration of these is important, but not for purposes of enforcement as many of the ‘cosmopolitan’ writers suggest (Kant's warnings about the dangers of benevolent despots and of a universal state or empire notwithstanding). Rather, their importance consists in structuring the political processes in which groups address political issues and struggle for political decisions that can be ‘owned’ by them rather than imposed upon them. As she put it: ‘This means that there is no fixed concrete set of rights that can be determined by or derived from a moral theory, independently or in advance of social struggles, and with the relevant context’ (p. 220).

This, of course, necessitates an ascription of membership (which does not presuppose the homogeneity of the people as Schmitt postulated), or even essentialist policies preserving particular identities (as in some forms of multiculturalism), but also the protection of minorities, and effective measures against discrimination and exclusion. However, it is also clear that except in extremis these questions have to be solved politically in situ rather than just being administered or enforced from abroad or ‘above’ (whatever that might mean). And it is for this reason that Cohen pleads for holding on to sovereignty – even though in a rather different form – because it allows for political ‘autonomy’. As Michael Walzer once put it: ‘the recognition of sovereignty is the only way we have of establishing an arena within which freedom can be fought for and sometimes won’ (as quoted by Cohen on p. 204).

For the same reason Cohen is rather critical of the ‘sharing of sovereignty’ or of ‘interim occupations’ which engage in extensive legislative and institutional changes. Hopefully this is done in order to set a war-torn society on the right path, but closer scrutiny suggests that such arrangements actually pre-empt autono-mous decision-making by the occupied. As Cohen's incisive criticism in Chapters 4 and 5 shows, this is true whether the transition authority is ‘contracted out’ and constituted by some national actor(s) or by an international organization, such as the UN directly, acting under the paradigm of human security and its Right to Protect (R2P) and implementing measures in the War on Terror. The problem is not only that such ‘multilateral measures’ have lost their exceptional status and have instead – especially in the last case – become broad legislative mandates imposing legal obligations on states in advance of specific threats. The problem is then that since they do not contain explicit timetables or limits which are subject to outside review, they become a kind of ‘commissarial dictatorship’ (p. 277). This gives the Security Council the undisputable ‘competency of deciding on its competence’, a determination which cannot even be overridden through a legislative amendment, as the P5 can veto any such move. It is therefore not surprising that some countermoves have been forthcoming, as the emphasis on sovereign equality in the Outcome Document of 2005 or the ruling of the ECJ in the Kadi case demonstrate.

The last remarks leads to a second corollary, i.e. to the recognition that a constitutionalization move is necessary, but that it will not be able to resolve the issues through hierarchization. Rather the arrangement will have been one of ‘heterarchy’ in which different legal orders coexist and interpenetrate each other. The old sovereignty, i.e. supremacy, issue is deferred and left to a process of mutual adjustment and communication. Here both the legal pluralist understanding of law and the example of the European Union are helpful, in which national constitutional courts, the European Court, and the European Court of Human Rights claim supremacy in their respective legal orders.

Of course, taking Europe as an example might only transpose the problem rather than dispose of it, given the failure of the constitutionalization move and the debates about the ‘nature of the beast’. Is the EU a Staatenbund only, or a federal state? Is it an international organization, or the newer version of the monstrum sui generis, which Pufendorf invoked when he analysed the Holy Roman Empire? But neither the sui generis nor the teleological narrative of a ‘state in the making’ are helpful. As Cohen points out, the underlying centralization–decentralization continuum (whereby ‘centralization’ provides the hidden telos), which Kelsen used to classify unitary and federal states (and which also distinguishes them from a federal union of states), is simply eliding too many problems of the establishment and maintenance of political orders. Here a more sophisticated taxonomy of political forms is required. Cohen considers the new federalism literature helpful, which construes federations as a genus of political forms ‘with a distinctive set of political structures and constitutional features to which no statist categories pertain’ (p. 101). This allows us to distinguish them from alliances, international organizations, or empires.

Such a conceptual move sits well, then, with both legal pluralism and the new constitutionalism beyond the state and leaves the impoverished framework of most ‘cosmopolitan’ speculations behind. It also liberates the analysis of the complex global order from the straitjacket of ‘polarities’ and the concentration-of-power continuum that still informs much of international-relations analysis. Above all, it provides now a heuristics for systematically analysing the specific legitimization issues of different political forms, issues that remained unaddressed in the juridical perspective in which legitimacy is reduced to system-intern legality. Focusing instead on the political form of a ‘federation’ (for which Cohen uses Montesquieu and some of the discussions of the ante bellum US, including the problematic Calhounian solution)Footnote ¹⁴ makes it clear that the three constitutive principles of this political form, i.e. non-hierarachy (better understood as the normative imperative to preserve non-centralization rather than decentralization), associative polycentricity (instantiating the structural dimension), and ‘shared rule’ (having both normative and structural implications), are equally important. Unfortunately, they lie in different dimensions which cannot be collapsed into one continuum. Instead, federations are based on a special form of agreement (a constitutional contract which exists along with the members internalizing their relations, without subordinating them to a new centre) and which involve contractual constitutional and institutional relationships that ‘permeate the whole structure’ (p. 112) and can also comprise relations with private actors, or international organizations, common in contemporary international relations.

One does not need to share all the conclusions Cohen draws from these premises, nor her optimism about the practical viability of such a construct. After all, she herself is well aware that her book is not describing ‘the world out there’ but offering rather an orientation for finding our way in the confusing world of multi-level governance (again here hierarchy seems to provide the problematic generative heuristics) and a ‘project’– Cohen's verité à faire. Precisely because Cohen dares to cross disciplinary boundaries but also engages the ‘disciplines’ – instead of just flying off to an ‘ideal theory’ or resorting to reckless and largely mistaken analogical thinking, such as projecting the state on the global level – she is able to articulate a new vision. It is equally distanced from the notion that the clarification of principles and values can ‘finally’ bring about the state in which politics is ‘sublated’ and that law, which has been transformed (or deformalized) into morality, can speak truth to power, as it is from the managerial Foucauldian dystopia of biopolitics. For that reason this book not only is an intellectual tour de force, but also provides a challenging new heuristics for thinking and acting in order to bring about a saner world.