I. The misleading polemics

To be sure, the reviewer does praise my ‘sophisticated book’ as a ‘marvellous guide’ to the complex scholarly exchange about global and legal change. But what he gives with one hand he immediately takes back with the other. In a footnote he alleges a key ‘oversight’, to wit: ‘Cohen seems unfamiliar with some important research in international relations theory, even when it speaks directly to her central concerns.’(n 3) Apparently I am unaware of the overlap between my diagnosis of our dualistic world order with the basic insights from the ‘English School’ of international relations (IR) pioneered by Martin Wight and others. Luckily, he says, this is not my fault. The lacuna is rather the product of the large gap in US political science separating ‘political theory’ from ‘IR’. (n 3)

It may well be that some political theorists are unfamiliar with this school, but it is astounding that Scheuerman tars me with this particular brush. For I explicitly develop one of my book’s most basic concepts, ‘international society’ by drawing precisely from one of the most eminent figures in that school, namely Hedley Bull, whose crucial work, The Anarchical Society, I both use and cite.^{Footnote 1} Moreover, I also draw on and cite the excellent work of IR theorist Daniel Philpott who was influenced by the English School, for the key concept of ‘changing sovereignty regimes’.^{Footnote 2} In addition I refer to work by Anthony Anghie, who makes fascinating critical and creative use of Bull’s concept of ‘international society’ as a discursive frame which, together with the discourse of ‘the standard of civilization’ analysed by Gerritt Gong, played a crucial ideological role in the denial of sovereign equality to states outside the West which would otherwise surely have qualified under the criteria subtending international law principles (efficacy) in the nineteenth and twentieth centuries.^{Footnote 3} Thus not only the concepts developed by the English School, but also their genealogy, use and abuse are all discussed in my book. Indeed a central paradox that my book thematizes comes from this analysis, namely that just when the international society of sovereign states has been globalized, apparently denuded of its Western exclusiveness and made open to all comers that qualify, the international organizations (IOs) created in part to secure sovereign equality and non-aggression have been morphing into global governance institutions (GGIs) whose expanding role in the global political system seem to render the idea of the sovereign state and the importance of membership in international society quixotic. Moreover I note that the meaning and locus of sovereignty has shifted, to involve inclusion and voice in the premier global governance institutions, while sovereign equality within one of the most important of these, the UN Charter system is structurally blocked.^{Footnote 4} This is the key conundrum the book addresses. The references and discussions in my text are there for anyone to see. So I am afraid it is not I but rather Scheuerman who is unfamiliar with some of the main theorists and concepts of that School and ignorant of their critical reception, by authors such as Anghie! Apparently my own critical appropriation of these concepts was too subtle.

But this is not my only ‘error of omission’. I also allegedly ignore the ‘preliminary evidence’ that ‘global state formation’ is well under way. What does this ‘evidence’ consist in? Scheuerman cites an article by William L Robinson in Theory and Society and a book by Martin Shaw on the theory of the global state.^{Footnote 5} Here I do plead guilty; I was unaware of both. Having now checked out the ‘evidence’, however, I am hardly inspired by the historical materialist reductionist and determinist theory of the coming global state found in the former. Dogmatism is not evidence and only if one plays fast and loose with the concept of a state can one see a global state in the making in the current international constellation and as the inevitable counterpart of the global economy. Martin Shaw’s book is more interesting and nuanced but I still remain unconvinced by the global state idea for reasons I shall discuss in the third section of this reply. I thank the reviewer for bringing Shaw’s book to my attention, as I did, indeed, ‘miss’ it.

But so what? Everyone misses something. Why does Scheuerman think it is so important to reveal my errors of omission given the enormity of literature that I do engage with? And what is the purpose of the repetitive tropes throughout the review that imply that my analysis is unoriginal, that I come up with nothing new, that I repeat stock criticisms of the idea of a global state and of monist globalist aspirations and so on and so forth? Old ideas, whether of Rousseau, Kant or Hannah Arendt may still be right.

More importantly, why resort to downright misleading presentations of my arguments? For example, Scheuerman states that I, ‘like many sensible commentators’ (my emphasis) seem sceptical that globalization has largely dismembered the nation-state’s capacity to negotiate global-level political and economic forces. This, despite the fact that my book is all about the problematic of size and the renewed issue of political form triggered precisely by these forces which, I argue, render the standard nation-state, but not necessarily large or powerful national states, (hardly the same) unable to manage on their own despite being legally sovereign.^{Footnote 6} My discussion of federation (see below) is meant precisely as a way of thinking anew about political formations that enable smaller states to come together as a way to expand their efficacy, without entirely relinquishing their sovereign equality and political autonomy to which many remain deeply attached. The idea is that by federating, democratic republics could maintain their commitment (or develop one) to social justice through cooperation as together they could better cope with neo-liberal globalization and provide an alternative to the depressing consensus that ‘the state’ and the political are at the mercy of twenty-first century capitalism. That was a key motivation behind my interest in federation as a way to grow larger in light of economic and geopolitical transformations exerting pressure on nation-states, for it offers an attractive alternative to empires, ‘Grossräume’, or great power neo-imperialism.

What’s behind these and other polemical misrepresentations of my book? There’s of course the possibility they might deter potential readers and steer them instead to the reviewer’s own frequently cited work. A clue can be found in the reviewer’s claim that I consider overtly globalist aspirations irresponsible and naïve and that I fail to provide a satisfactory principled (my emphasis) response to them. Is my work by implication unprincipled? Or is it rather that I am simply not radical enough for Professor Scheuerman? According to him I somehow haven’t yet grasped why ‘many’ scholars and activists are now far more willing to countenance a radical transformational global agenda (i.e. a global state): namely because ours is ‘congenitally unjust and pathological global order’ that generates daily avoidable fatalities and unremitting misery for countless others. This despite the fact that three chapters of the book are concerned with human rights violations, illegitimate expansion of executive power of global elites in and outside global governance institutions (GGIs), self-serving ‘humanitarian’ interventions and occupations all of which I attribute precisely to the unjust current shape of our dualistic world order that gives cover to predators on the national and the global level and unless transformed (I do say, reformed) will lose legitimacy and credibility. Scheuerman invokes Thomas Pogge and Richard Falk, drawing especially on the former’s work on global poverty and injustice, his hostility to methodological nationalism and his embrace of a globalist perspective in this regard. By implication I am unaware of or choose to ignore issues of global distributive injustice despite the fact that I refer to the debates around global justice among the neo-, post- and anti- Rawlsians (from Charles Beitz and Joshua Cohen to Thomas Pogge) albeit without entering into that particular fray.^{Footnote 7} The reviewer complains that I ‘bracket’ explosive forms of social strife and haven’t acknowledged the uglier political realities of our socially divided and not simply dualistic, global order – a fault allegedly leading me to downplay potential complications for my normative and political ideas. But, and this is astonishing, he seems not to have realized that the theorist of global poverty whose work he marshals in support of his own counter-project, Thomas Pogge, does not call for a global state, advocating in its stead, what he calls legal cosmopolitanism. While the methodological nationalism Pogge targets in his effort to put the inter- or trans-national causes of global poverty on the agenda certainly cannot be ascribed to me, and while my book analyses and seeks solutions for a great deal of global injustice, ascribable to the current form of our dualist international system, I am nonetheless excluded from the select group committed to a just global order, because I don’t pursue a ‘radical cosmopolitan’ agenda, i.e. global state or a monist version of global constitutionalism and, of course, global democracy.

II. My three arguments

I could not repress a smile upon reading this critique of my deficient radicalism, because, frankly, I was worried my book would be castigated for being far too radical, utopian and unrealistic. Why?

As I say in the Introduction, my book, defends three theses: The first is that changes in the international system since 1945 make it anachronistic to apply the old ‘Westphalian’ frame to a now generalized international society of sovereign states as if they continued to make all international law at will and created international organizations to which they delegate some power yet over which they exert full control. But I deny that it is convincing to interpret ours as a full-fledged cosmopolitan (and constitutional) global world order, which has constitutionalized human rights and dispensed with sovereignty of the national state altogether. I contend that it is descriptively more accurate to construe the international system since 1945 as a dualistic world order. Its core remains the pluralistic, segmentally differentiated international society of sovereign states creating consent-based international law (via custom and treaties). Superimposed on this are the legal and political regimes of the now functionally differentiated global subsystems of world society, whose institutional structures, decision-making bodies and binding rules have acquired an impressive autonomy with respect to their member states and one another. Accordingly international organizations are morphing into GGIs which, like the sorcerer’s apprentice take on powers not envisioned by their creators, are no longer quite under the latter’s control, and can and do create injustice (distributive and institutional) and act unjustly with little accountability, democratic input or control on the part of those affected. My focus is the relation of the international society of sovereign states to the global political subsystem with its referent, the ‘international community’ of which states are along with the UN, the ICJ and the ICC are the key organs. The dualism I have in mind here is thus very different from that defended by statist/sovereigntist realists for whom not much has really changed from a geopolitical perspective insofar as state power, economic and military is still the only real ball game in town, international law and international organizations notwithstanding. These sort of traditional statists, in IR or in the ‘real world’, are sovereigntists who in the name of realism, deny the efficacy and autonomy of international law and view international organizations either as irrelevant, as vehicles for gaining ideological cover for their own purposes, or as illegitimate tools of competitor states. That is why I expected much sneering from that quarter regarding my version of dualism.

My second thesis is that within this dualistic structure, a new sovereignty regime is emerging, redefining the legal prerogatives of sovereign states. It is true as legal cosmopolitans argue that, states no longer have the monopoly of the production of international/global law, and consensus operates on key levels of this system. But states do continue to play the key role in the production of international law. Moreover, the jury is still out on the nature and legal source of sovereign prerogatives and on the appropriate way to re-conceive sovereignty, not to mention the prerogatives GGIs ascribe to themselves. The post-WWII commitment of the international legal order to sovereign equality, territorial integrity, self-determination, the non-use of force, is still very powerful. Yet the increased commitment to international human rights, the new expansive phenomena of global governance, humanitarian intervention when basic rights and humanitarian law are violated, the emergence of the ICC and what some call ‘humanity law’ is also striking. I argue that the concept of changing sovereignty regimes is still preferable to the discourse of a cosmopolitan world order on the empirical level of analysis, for the former allows one to see the complexity, the rapidly changing power relations and contested character of the shifting yet still dualistic contemporary system. Nonetheless, here too I expected much derision from realists especially with regard to human rights law. They could easily point to the woeful inefficacy of human rights committees, lack of adequate enforcement, the apparently weak deterrence effects of transnational courts, and the limits of the limits law now puts on the right to war and other sovereign prerogatives at least for very powerful states. When after all was the last time that a state has actually declared war prior to, during or in the aftermath of military intervention and occupation?

My third thesis is that the discursive frame of the ‘further constitutionalization’ of international law and global governance is the right approach but much depends on how this project is construed. This idea gained a foothold in theoretical discussions thanks to the new willingness of the Security Council to sanction grave domestic human rights and humanitarian law breaches and the development of supranational courts to enforce the ‘values of the international community’ regarding international criminal law – thus apparently indicating that the basic rights of all individuals would be protected even if their own states fail to do so. But the somewhat arbitrary and selective framing of certain domestic rights violations as threats to international peace and security meriting outside intervention, the imposition of political regimes by outsiders on occupied polities, and the self-ascription by the UNSC of deeply intrusive legislative and quasi-judicial ‘global’ governance functions unforeseen by the Charter and apparently not subject to judicial oversight or legal restrictions, (some of which can themselves be rights-violating such as the Security Council’s terrorist blacklists), have created a new legitimation problematic.^{Footnote 8} Given the structure of power in the Council, serious questions arise as to whether what we are experiencing is the replacement of sovereignty talk in international relations by the constitutionalization of cosmopolitan principles or the emergence of a new form of global hegemonic law. Indeed loose talk about ‘constitutional moments’ to capture what some see as a shift the international ‘Grund-norm’ from sovereign equality to a civilian right to protection, is irresponsible in such a context. Moreover the very meaning of constitutionalism beyond the state requires much theoretical reflection.^{Footnote 9} I insist that the constitutionalist character of the global legal system in general and of the UN Charter system (the premier GGI in the global political system) in particular is rudimentary, a vérité à faire rather than a fait accompli. Nevertheless I do embrace a project of constitutionalism with respect to the UN Charter system, along constitutional pluralist lines, as a way to introduce important changes that could help in the fight for justice and democracy on the global, institutional level while reinforcing, or at least not undermining, as I fear the current system does, democratic constitutionalism where it does already exist, on the domestic level.

With respect to this third thesis I anticipated ‘realist’ criticisms from the left. For as I say in the Introduction, there is indeed another way of interpreting changes in the international system especially since 1989 distinct both from the happy consciousness of some cosmopolitan theorists and my own dualistic approach. From a more disenchanted (perhaps post-colonial?) perspective, the organizing principle of sovereign equality with its correlatives of non-intervention, self-determination, domestic jurisdiction, consent-based international law (an ideology mostly honoured in the breach) is being replaced not by justice-oriented cosmopolitan law but by a different bid based on power politics to restructure the international system. Attacks on the principle of sovereign equality coupled with the talk about rogue and failed states, preventive war, the war on terror, unlawful enemy combatants, etc., are, accordingly useful for neo-imperial projects of great- or hegemonic powers interested in weakening the principles that constrain the use of force and deny them legal cover when they violate existing international law. From this optic, the discourses and practices of humanitarian or democratic intervention, transformative occupations, targeted sanctions, terrorist blacklists and so forth (much of which was driven by the US since 1989) are mechanisms to foster the de-formalization of existing international law, so as to enable the very powerful (the US or ‘the West’) and/or those states aspiring to become twenty-first century great powers (Russia, China) to create self-serving global rules and principles of legitimacy instead of being ways to limit power by law. Accordingly the morphing of IOs into GGIs involves the instrumental use of the legal medium and of the authority of existing IOs for new power political purposes. Global governance and global law serve to authorize new hierarchies and gradations of sovereignty, to legitimate depredations of political autonomy and self-determination in new ways which are disturbingly reminiscent of the heyday of nineteenth-century imperialism.

This is indeed a large part of the story. That is why, in the preface, I noted two contradictory trends that motivated me to write a book on globalization and sovereignty. The first is the growing importance of the discourses of human rights, cosmopolitanism, global constitutionalism and democracy, along with the proliferation of international covenants, UN resolutions and international courts focused on promoting and enforcing them. The second is the use of these discourses and institutions to legitimate (or spur) the development of novel forms of hegemonic international law, new imperial formations, global hierarchies and transgressions of existing international law by the powerful. Since the early 1990s the Janus-faced nature of humanitarian and ‘democratic’ interventions, transformative occupations, and increasingly activist, intrusive, legislative and at times rights-violating resolutions of the UNSC in the ‘war on terror’, has become evident. I noted that the intervention in Kosovo and the American war in Iraq were the two most obvious early examples that triggered my interest in international political and legal theory along with my determination to decode the ideological discourses on both sides of the conundrum just described.

It is striking that irrespective of whether one’s focus is on the first or the second trend, many analysts of legal and political globalization assume that the rules of international law based on the principles of sovereign equality, non-intervention, self-determination and domestic jurisdiction are anachronistic today, as is the frame of an international society of sovereign states. Indeed it is claimed that both the concept of sovereignty and the ideal of the sovereign state should be abandoned. The task today, apparently, is to constitutionalize or fight institutional expressions of global right depending on one’s diagnosis and point of view, not to defend rules and concepts that allegedly no longer fit the contemporary constellation.

Such claims, I noted, are useful to those seeking to do an end-run around restrictions on the international use of force. But they are also invoked by people deeply concerned with human rights, the rule of law, constitutionalism, and with what is now called the state’s and the international community’s ‘responsibility to protect’. Indeed, juridification and ‘constitutionalization’ in the international/global domain are also Janus-faced processes and discourses: both enabling (by helping constitute) and limiting new and older global powers and new freedoms and counter-powers. Given the role that discourses of sovereignty and sovereign equality play not only in shielding rights violators, state and nongovernmental, but also in warding off and de-legitimizing predations by the great powers, or, for that matter, the predations of transnational capital, and given that thus far the only constitutional democracies however inadequate, that exist in our age have been on the level of the sovereign national state, I am not ready to relegate the concepts of sovereignty, sovereign equality or the national state to the dustbin of history. Instead in the first rather theoretical chapter in my book I try to rethink and clarify the concept of sovereignty and to come up with a conception adequate to twenty-first century conditions. Although I reject his monism, I follow Hans Kelsen’s lead in viewing sovereignty in part as an international legal entitlement, and thus in abandoning the ideology that places the ‘sovereign’ state in an international state of nature. I also follow HLA Hart’s strategy of liberating the internal concept of sovereignty from the absolutist baggage of ‘organ’ or apex sovereignty that locates the plenitude of power in a single public institutional instance (be it an emperor, a king, a president, a legislature, or a court) deemed to be legibus solutus, the sole source of law and locus of legitimate power under no legal restraint. Accordingly one can rethink sovereignty and the sovereign state in ways that no longer tie it either to exclusive jurisdiction in a territory or to the idea of a power outside and above the law. I cannot reproduce the full argument here.

That is the theoretical basis of my conception of a dualistic global political system in which there are multiple sources of law, national, international and global and in which the relations between the various levels needs to be rethought and I argue, pace Scheuerman, radically reformed. Indeed this approach led to my interest in the theory of constitutional pluralism (devised first with respect to the EU) and of federation. For both theoretical frameworks allow one to think sovereignty, constitutionalism and law, domestic, global and/or regional together in a non-zero-sum way. Hence my debate with cosmopolitan monists seeking to constitutionalize international law and legal pluralists who embrace instead the disorderly multiplicity of legal orders in the name of diversity and freedom, respectively.^{Footnote 10}

III. Constitutional pluralism and the federal frame

In light of the heterogeneous character of national state regimes in a still pluralist and deeply divided international society of states, I argue that a monist conception of the constitutionalization of global law whether or not one locates it in the UN Charter system, is a bad idea. Yet I remain convinced that public power should be under public law, and given the transformation of IOs into GGIs with a scope and reach of regulatory power that in some cases goes well beyond what was originally anticipated in their design and yet seems beyond the control of those subject to them, reform and redesign from a constitutionalist perspective is an important project. I take up the case of the UN Charter system, focusing on the Security Council as one example of an organ of an international organization that has ascribed to itself new functions including law-making power, a competence not given it by the Charter, the exercise of which can undermine basic rights and constitutionalism on domestic levels, particularly in the contexts of humanitarian intervention and the war on terror.^{Footnote 11} Reflection on the constitutional design of the UN Charter system reveals its shortcomings from a constitutionalist perspective, shortcomings that matter now more than ever, thanks to its new role and rising expectations with respect to it in the international community. In sum I argue that further constitutionalization would have to entail constitutionalism: the application of principles of accountability, separation of powers, protection of rights, and legally enforceable constitutional limits to the exercise of law-making and regulatory powers in ways that secure the core charter principles of sovereign equality and human rights (e.g. the abolition of the veto of the P5 in the amendment rule). This would entail democratization regarding voice and membership on the Council and in the UNO generally, albeit among different lines than in democratic states. The point is that if one thinks of this in monist terms, it would be a non-starter for it would fly in the face of the political autonomy of the member states of the UN who understand themselves as sovereign, not to mention the continued importance of the international society of sovereign states, and their key international law-making powers. I was thus inspired by the theoretical frame of constitutional pluralism developed by analysts trying to cope with not dissimilar conceptual and political issues on the level of a regional supranational order, the EU.

What is attractive about the theoretical frame of constitutional pluralism is that it allows us to think outside the box – to get around the stark dichotomies and unattractive choices between state sovereignty or supranational constitutionalism and cosmopolitanism; between global constitutionalism or disorderly global legal pluralism, or between sovereign monism versus legal dualism/pluralism. These dichotomies have long structured debates among legal and international political theorists. Drawing on the work of key thinkers in the EU context I argue that this is a false dichotomy: one can have constitutionalism on both the domestic and supranational level without having to deny the sovereign equality of member states or the autonomy and constitutional quality of, in the most striking example, the European supranational legal order. The necessity to think creatively about the relation between the legal orders of member states and that of the EU became pressing once the latter acquired direct effect and once it made supremacy claims. On the theory of constitutional pluralism, multiple autonomous constitutional orders, sites of norm creation and political power can coexist within an overarching supranational order of orders. These legal orders can mutually recognize one another as constitutional although they are organized in a heterarchical rather than in a hierarchical and vertical manner. The autonomy of member states’ constitutional orders and the autonomous constitutional quality of the EU legal order are both acknowledged and the latter’s supremacy conditionally accepted, although it is also clear that the legal orders at each level are profoundly influenced by one another. Yet no one describes the EU as a state. The theory of constitutional pluralism was devised to account for this situation. Accordingly, the coordination among the distinct autonomous at times competitive yet integrated legal orders proceeds through dialogue, conflict and mutual accommodation. On certain versions of the theory, constitutional pluralism ideal-typically involves a type of orderly legal inter relationships that acknowledges the constitutive power of sovereignty claims on the part of member states and the autonomy and constitutional quality of the legal order of the supranational polity of which they are members (in this case the EU).

Yet, I argue one must go beyond the juridical perspective to show that such developments and competing claims to constitutional quality and supremacy perforce raise the issue of political form. Just what sort of ‘polity’ is it to which the theory and practice of constitutional pluralism could apply and how does it differ from an international law association or a federal state? It is with respect to this issue that I take up innovative attempts to rethink the concept of federation outside of the statist paradigm – i.e. as a union of states that is not itself a state yet is a polity with its own constitutional order that exists alongside those of its member states. I draw on the immensely suggestive work of Murray Forsythe and the masterful analysis of Olivier Beaud, among others, both of whom differed importantly, yet learned from Carl Schmitt’s innovative discussion in his Constitutional Theory, which I also critically assess.^{Footnote 12} As already indicated I approach the idea of federation as a way of responding to the economic and geopolitical imperatives of size facing contemporary states. I see ‘coming together federation’ on the part of national states as a way to pool resources and grow larger so as to be better able to respond to transnational risks and powers requiring regional or global governance (from terrorism to ecological, geopolitical and economic pressures) and to regulate these powers by public institutions under public constitutional law, in ways that foster the public good, expand the efficacy of member states of the federation, without sacrificing constitutionalism, democracy, republicanism or turning them into dependencies of an external foreign power. The alternatives, which I discuss, are neo-imperial formations, empire, or Grossräume, none of which are in my view normatively attractive. Of course, much depends on the nature of the constitutional order and political regime instituted by a federation.

In my conception federation is an ideal-typic genus that opens up a new spectrum of sub-types.^{Footnote 13} The range goes from federations which are minimally integrated, to highly integrated federal polities. At either end of the spectrum are two forms – federal states and inter-state alliances or IOs that fall off the map of a federal union. What is fascinating about the idea of a federation of states that is not itself a state is that it involves a way of making the external (international relations among member states) internal, allowing one to conceive a political structure that enables both self-rule and shared rule, autonomy and participation of discrete (even sovereign) political entities coexisting within an overall union under its public constitutional law that members states have consensually contracted into, without viewing that law or public policy as ‘foreign’ or imposed. Within a federation, the issue of the ultimate locus of sovereignty is bracketed. That is why I see the federal political form, a political community composed of political communities as, ideal-typically, the analogue of the concept of constitutional pluralism. Thinking in federal terms can help us see flaws of existing institutional designs and of possible constitutionalist correctives.

One can certainly question whether it makes sense to apply such a frame to any global arrangement, even if it might be apt for a regional structure like the EU. One can also query whether it is the best frame or the best one can get even in that context. Thus with respect to constitutional pluralism, Scheuerman notes the obvious, namely that it requires a commitment of the relevant social actors to the overarching common legal order and respect for the constitutional autonomy of each of its component units. And he correctly cites me as stating that constitutional pluralism involves the idea of an overarching political community and a plurality of constitutional orders operating in a heterarchical relationship, that can be characterized as legal, and constitutional without preemptive closure, imposition of hierarchy, levelling unity or final resolution of ultimate supremacy claims. On the same page, however, he states: ‘Even though Hans Kelsen and almost every other major legal theorist would have expressed scepticism about such a prospect, Cohen thinks that they were wrong to do so’ (my emphasis). Yet he then goes on to say that in one of my book’s more interesting jurisprudential contributions, I call on HLA Hart to defend my position. He proceeds to make this astonishing contradiction worse by acknowledging the ‘massive, burgeoning’ legal literature on constitutional pluralism. I suppose he thinks JHH Weiler, Harold Berman, Paul Berman, Neil MacCormick, Miguel Maduro, Nico Krisch, Matthias Kumm, Bonaventura de Susa Santos, Gunther Teubner and Neil Walker, all of whose work I discuss, are not quite ‘major legal theorists’, not to mention of Kelsen’s predecessors like Eugen Ehrlich and Otto von Gierke both important legal pluralists who are properly still read today.

I am not an advocate of denouncing those I disagree with as ‘minor’ or ‘unimportant’. Indeed I spend quite a bit of space engaging critically with legal theorists on both sides of the monism/pluralism spectrum in the text. I describe and critically assess the legal pluralist positions, in the context of a review of their debates with monist constitutionalists whose various positions I also critically analyse.^{Footnote 14} I thus present Klaus Gunther’s carefully reasoned discussion of what in my view is the most serious jurisprudential problem raised by any version of legal pluralism, even though I don’t fully embrace his position. At issue is whether the integrity of the legal medium (what he calls the universal code of legality) is undermined by a legal pluralist theoretical frame and whether in a context of constitutional pluralism, jurisdictional conflicts among constitutional instances can be resolved legally, i.e. with reference to what the law requires, in the absence of a higher third or a hierarchical ordering generally. Or does one have to resort to political solutions and compromise, which might mean that there is no legal way to resolve such issues and thus that an orderly legal or constitutional pluralism as I describe it is conceptually incoherent?

I take this issue very seriously. It is correct that among competing equally valid constitutional and legal obligations, the relevant agents may have to rely on non-legal, political virtues. And it is also correct that the fact of constitutional pluralism may provide rival actors with equally legitimate legal arguments regarding what the law requires and who has the jurisdictional authority to decide exacerbating rather than mitigating conflict. Can one find a legal answer in a context of competing legal authorities, what is necessary for this to work, and why would one try? But this question is precisely what my text raises and tries to answer! One thing surely required is a revised conception of sovereignty that does not tie claims to internal supremacy to exclusivity of jurisdiction.^{Footnote 15} The first chapter of the book presents such a conception. Following Weiler and others, in the second and in the final chapters I discuss another requisite: a stance of constitutional tolerance, but I also argue for reflexivity whereby the relevant legal actors are able to arrive at a legal answer precisely because they are aware of the stakes, legally and politically, namely the maintenance of the rule of law and integrity of a political and legal community of communities to which they are, presumably, committed (if not then they will escalate). All the legal actors in a constitutionally plural political community are perforce aware of the different and possibly competing constitutional claims to authority and jurisdiction that autonomous courts can make because there is no final third party hierarchical adjudicator. With reflexive awareness of the complex dynamics of legality and legitimacy, it seems that the relevant juridical and political actors can avoid escalating claims to the point at which the project (the community) breaks down. If so, it would then indeed be possible to find a legal resolution to conflicting claims of authority in each context. Anticipating, trying to avoid, and managing legal conflict among competing jurisdictional and supremacy claims is indeed demanding work and a cooperative enterprise. It may fail. But given shared, justifiable extra-legal normative assumptions it can also succeed.^{Footnote 16}

Indeed, my interest is very much also to reflect on the political preconditions for a successful practice of constitutional pluralism in such political formations, insofar as it is normatively desirable. Besides a reconceived conception of sovereignty, constitutional tolerance, and reflexivity, a political commitment to the common project of union is crucial.

But what could be the basis of such a commitment and to what sort of polity? Here, as I said, I turn to the federal frame and the idea of a federal union of states that is not itself a state, as the ideal-typical analogue for legal theory (and practice) of constitutional pluralism, a political form within which no single instance is clearly entitled to ‘play the sovereign’. I face another key question: what is minimally required for political commitment of sovereign states and their citizens to such a political union? Pace Scheuerman, I do not dismiss anxieties about viability either of federation or of constitutional pluralism by ‘unfairly’ ascribing them to ‘Carl Schmitt and his so-called ‘‘realist friends’’’. The reviewer has the temerity to claim that I interpret international realism as little more than a footnote to Schmitt’s existential concept of the political a view Habermas allegedly helped popularize! (n 11) This, despite the fact that throughout the book, I criticize precisely Schmitt’s existential concept of sovereignty and the political, along with his approach to international law and even to federal theory as political theological!^{Footnote 17}

However, I do take Schmitt’s concerns about stability and his insightful discussion of the antinomies intrinsic to federal unions very seriously indeed. And I consider my own analysis far more realistic than Scheuerman’s dream of a global state. (What would Morgenthau or any other realist think of that dream?) In trying to account for the possible durability of federal unions, Schmitt comes up with the desideratum of substantive homogeneity of the population along some salient line – linguistic, ethnic, national, racial, or religious. This allegedly makes the needed commitment, integrative solidarity, cooperation and thus the long-term duration of a federation, possible. Yet I maintain that Schmitt gets the homogeneity requirement wrong: it is not substantive but political homogeneity that is indispensable to an enduring federation, especially a republican or democratic one. That is why the constitutions of federal unions typically have a clause requiring the same political regime among their member states – federal republics (such as the US at the founding) have a ‘republican clause’ such that potential members have a republican form of government, and even though the European Union which is not a federation, it requires its member states to be constitutional democracies. There have been federations (like Pufendorf’s monster, the Holy Roman Empire of the German nation) with mixed forms among their constituent states but this is rare and hardly desirable.

Finally far from glorifying the federal form, I show that federal unions of states can themselves be unjust, imperialist, and bellicose; they can culminate in destructive conflict, including the republican versions. So can states, including the imagined world state. And I am open to the question of whether a basic socio-economic homogeneity with respect to the socio-economic system is also a desideratum. Moreover, I do not argue that federation is superior normatively to a state, nor do I gloss over the internal ‘contradictions’ of the federal political form: the dualisms intrinsic to federal polities, of course, are indeed recipes for conflict and contestation. But I do argue against Schmitt that they can endure and that conflicts can be contained and made productive, depending on their nature.

Yet Scheuerman seems to think he ‘got me’ by pointing to the EU’s ongoing crises, as something that ‘might temper’ my alleged enthusiasm for constitutional pluralism and federation, suggesting that its non-statist and constitutionally pluralist attributes might play some role in the ongoing crisis. He insists that I have not demonstrated the ‘real-life viability’ of non-state federations and constitutional pluralism. He informs me/the reader that the Swiss Confederation had an unstable, conflict-ridden history and that the US in either of its relevant phases, (1781–7 or 1789–1865) was hardly an inspiring example. In the style of a high school civics lesson, we are told that the US under the Articles of Confederation was plagued by internal disunity and external incompetence, hence the move to greater centralization. And we are informed that antebellum America collapsed in a ‘horrific civil war’. Indeed.

In order to respond to all this, one first has to disentangle the levels of analysis that Scheuerman unfortunately confuses. First, as I go to great lengths to explain, my analysis of federation and constitutional pluralism is theoretical, ideal-typical. The point is to clarify what these two theoretical concepts entail, to think outside of the statist paradigm, and to indicate the range of conceptions and the spectrum of sub-types the theory of a federal union of states that is not itself a state, opens up. This must be kept distinct from the empirical and normative levels of analysis. On the empirical level one only encounters hybrids. One cannot find any empirical example that fully approximates the ideal type; there are only greater or lesser approximations. The point is not to find a pure exemplar but to see whether the concept is helpful and could serve as a guide in design or redesign or amendment projects.

Thus, with respect to polities that some have seen as historical ‘examples’ of federal unions, such as the Swiss and the US at certain points in their history, they are and must be hybrids empirically. The only real issue is whether the federal frame illuminates that history, for us. Now as far as the US is concerned, the case I know better, the federal frame is helpful for as we all should know, the actors at the time themselves struggled with the relevant concepts (confederation, federal union, national/federal, sovereignty of the state and of member states, internal and external, etc.). They knew they were trying to construct something new that did not fall into the hegemonic conceptions of the state or of sovereignty in their day. I discuss these conceptual conundrums they faced and those today who still operate within the statist paradigm also face under the heading of the Calhounian dilemma.^{Footnote 18} It was Schmitt who applied the federation frame to the US for the period between 1787 and 1865 and who deemed the United States under the Articles to be a mere Alliance. His is an illuminating analysis insofar as the conceptual issues regarding the locus of sovereignty, supremacy, ultimate competence, constituent power and popular sovereignty (‘we the people’ on which level – state or federal?) were not settled internally in the minds of the relevant actors. These issues were continually debated although conflicts did not come to a full head until 80 years after the constitutional founding.

It is certainly true that all relevant actors deemed the post-1789 US to be a state, from the external, international perspective and no one treated its member states that way. Moreover, one could argue that internally the federal union had some of the empirical features of a state. Yet if one examines the constitutional design including the amendment rule, which I do in the text (!) one can see why others might refer to the US as a perhaps highly integrated, federal union rather than a federal state. As I indicate, even though today the US is indubitably a federal state internally as well as externally, (since the end of the civil war) it still has the amendment rule of a federation. The point of the theoretical analysis is to articulate the relevant variables and concepts for an assessment and to help answer the question of whether a particular hybrid form is/remains functional, desirable, productive or not.

And yes, we all know the US federal republic culminated in a ‘horrific’ civil war in 1865. But large centralized states and empires have (and continue to) produced equal and greater disasters. More importantly, in the American case, was it the federal form and the constitutional pluralist arrangements that were at fault? Or: was the heterogeneity of socio-economic systems and political values (despite apparent uniformity of political form) the main issue? One thing is clear, a strong centralized state was out of the question at that time of the founding for obvious reasons. Any attempt to impose it would have led to violent conflict, or secession; it just would have happened earlier than 1865.

The same holds for the European Union today. Yes, it is undergoing crises yet it persists so what does ‘viability’ mean? But it too is a hybrid in design and structure as I indicate. It has some empirical features (prerogatives of the centre) of a federal state, and others of a mere international alliance or loose confederacy (the amendment rule) and still others approximating a federal union (constitutional pluralism and heterarchy). Moreover, I myself argue that the empirical hybrid that is the EU as it has developed since the 1990s renders the designed and undesigned yet legal constitutional features of this political community dysfunctional today. Far from glorifying the EU as a perfected exemplar either of constitutional pluralism or federation, my own view is that its member states and citizens unfortunately failed to take the consensual step to a federal union in 2004, and never made a clear commitment to a federation. They thus rendered the constitutional pluralism that it does practice unstable and ad hoc, internal solidarity thin, commitment to cooperation increasingly strained, and its actual institutional and structural framework increasingly open to legitimacy questions and counter-productive decisions. Had the Europeans taken such a step (or were they now to do so) they would have had to confront the issue of economic justice as well as that of sovereignty head on and thus might have developed the appropriate political frameworks (for discussion and compromise) regarding alternative political economic and political institutional paradigms. They would perhaps be better able to put their economic house in order and even to create policies fostering social justice more akin to social democratic rather than neo-liberal orientations. To be sure a European State could do so as well. But here too such a state, is even less on the agenda than a federal union. So no, the flaws of any one empirically existing hybrid do not prove Scheuerman’s case or disprove mine.

Now the abstract question of the normative desirability of a federation and of constitutional pluralism is indeed still a valid one. I try to move between ideological and infeasible utopian positions on both sides of the statist/ cosmopolitan divide. Scheuerman, as we have seen is convinced of the normative superiority of a state, regional and global. He takes my hesitancy regarding even a federation for the UN Charter system as waffling although my reasons for this have to do with acknowledgement of the heterogeneity of political regimes that exist among member states and the deeply divided nature of international society today. The dualistic structure of the global political system is not equivalent to constitutional pluralism and federation, far from it. And the normative desirability of either legal pluralism or federation remains an open question that can be answered only contextually and with respect to the particular form that is instituted.^{Footnote 19} I do enter into a long discussion of the normative arguments typically made in favour of federal union, but I also discuss the normative trade-offs that this political form and constitutional pluralism would entail. Scheuerman mistakes theoretical analysis for normative commitment, thus depicting my caution and hesitation to call for federation or internal constitutional pluralism vis-à-vis the global political system as ‘conflicted’. Indeed he thinks I am also ‘conflicted’ as to whether the dualistic global order as it now exists is a permanent and desirable state of affairs or perhaps a transitional stage that is only as good as it gets under present conditions. This is all maddeningly off the mark. The reviewer fails to note how critical I am of the present dualistic global order. Of course, to one who delights in ideal theory and analogic thinking, projecting the state to the global level, and declaring a global state practically inevitable and monism normatively the best thing to aim at, blurring of analytical, empirical and normative levels is par for the course. Let me close with a brief discussion of that project.

IV. A global state?

I do grant that in stylizing the debates between statists and cosmopolitans, constitutionalists and pluralists, I did not give much play to the arguments for a world state, partly because I think it so improbable. Nor did I anticipate a critique from a position that combines sovereignty and statism with cosmopolitanism – i.e. the version of the global state idea advocated by Scheuerman. Mea culpa.

Public autonomy, constitutionalism and statehood go together according to the reviewer. In this he is in good company and he does not hesitate to cite Dieter Grimm and Martin Loughlin, forgetting to note that neither has nor is likely to embrace the idea of a global state. Citing me, Scheuerman insists that, ‘it is only by virtue of a concrete public legal order that has direct effect on individuals, endowing them with actionable rights that their external liberty in the Kantian sense as well as their security, the stability of their expectations, and the preservation of their rights can be in principle guaranteed.’(?9) Indeed. He remains however convinced this requires a state, despite the fact that direct effect, a public legal order, actionable rights, already exist in the European Union

But Scheuerman gives other reasons in his review as to why a global state is preferable to federation, constitutional pluralism and the current dualistic system: it would avoid disruptive battles between competing national and post-national legal orders that might easily undermine rights Why? A global state presumably would have the tools to impose public policy and law coercively if need be, from the centre, which a federal union that is not a state, may lack. Most important to him, a global state would be able to create the necessary (centralized, coercive) mechanisms to achieve global distributive justice and thus deal directly with the causes of poverty and injustice that can be ascribed to our congenitally unjust and pathological global order.

Given the pressing issues of global injustice, why, Scheuerman perplexedly and repeatedly asks don’t I go for this option? Why do I ‘neglect’ the injustices and ‘bracket’ social strife generated by contemporary forms of capitalist globalization and the challenges posed by increasingly reactionary religious movements if I ‘admit’ that legal and political sovereignty are at stake in both types of social and political conflict. I am right he says, to mention these concerns and he agrees that no book can do everything but why, do I reject the ‘more radical’, presumably more progressive option of a global state and a monistic constitutional order?

There are several reasons why I do not find the idea of a global state enticing and I mention some of them in the book. These pertain to the issue of genesis, i.e. how to get there, to the issue of structure and the normative trade-offs that a global state would entail, and to the more abstract issue of purism or perfectionism when it comes to matters (and politics) of justice, generally. As to the first: there are only two ways to get to a global state and a global monist constitutional legal order: consensus or force. The former seems to me utterly unlikely in the present and foreseeable future. It is hard enough to get European Union members to consensually take the far less drastic step to a federal union despite the centralizing empirical realities on the ground. It is even harder to imagine a consensual move toward a world state on the horizon. Perhaps my imagination is limited but I do not see the preliminary evidence that global state-formation is already underway and besides, quantity is not quality. As everyone who knows the literature, from Hintze to Tilly, state formation requires not merely impersonal logics, but actors. There are no such actors in the world today. Moreover, it would take a qualitative systemic change to create a global state and as things stand I do indeed side with Rousseau, Kant, Arendt and others who reject it due to the likely ‘horrific’ political violence the imposition of such a state would entail. I don’t know when Scheuerman thinks an attempt to set up a world state would not be ‘premature’ and thus would not involve such violence as he admits a premature attempt would. It is unnecessary to belabour this point further.

Scheuerman is on slightly firmer ground when it comes to distributive (or redistributive) socio-economic justice and the role of the state. To be sure, it is obvious that a global state could in theory be either more just or less just in distributive terms then the existing dualistic set up. Yet I shall repeat a point that I make in the text, albeit in an endnote, that seems to work to Scheuerman’s advantage: federal unions (and for that matter, federal states) do tend to be less egalitarian in economic distributive terms than centralized states which are able and willing to impose a uniform set of policies on everyone. Thus it is true, logically, that a centralized global state with a monistic constitutional order could redistribute, and redress the problems of global poverty and injustice more easily than even a global federation. Even though I do not argue for a global federation of states, but rather suggest key reforms to the UN Charter system, derived to be sure, from thinking within the federal frame, I see the logical point here.

But what would be the trade-offs, normatively speaking? This is a question that my reviewer, astonishingly, does not raise. What about potential conflicts between the global state’s coercive apparatus and societal plurality? Is he making a Rousseauian assumption concerning the general will, already untenable for nation-states? In his fear of foxes and polecats, is Scheuerman recommending the lion? Concerns about meaningful participation, democracy, self-government with respect to size of the polity, are dismissed as old-fashioned republicanism.^{Footnote 20} Concerns about built-in imperial and martial tendencies, given the huge coercive apparatus that would be needed, are dismissed as dogmatic and unproven (to be sure!). Nothing is said regarding the risk of tyranny or the threat to diversity, and freedom that a monistic world state would entail other than that these qualms are ‘familiar’ or somehow anachronistic criticisms. They could also be so familiar because they are right. Kant was I believe right for example to reject world government and not only as an ‘occasional hesitation’.

I admit it is a bit murky which concept of the state Scheuerman presupposes. He uses the qualifier ‘multi-level’ for the cosmopolitan world order he seeks but that is not much help since every government is multi-levelled as even the most centralized has to delegate tasks to other instances. If he presupposes Weber’s concept, the global state’s monopoly on the legitimate means of violence would be a daunting prospect. His insistence on the monistic, sovereign and clearly coercive legal and political order his version of a global redistributive state would perforce entail, leads one to suspect that that is the model he indeed intends. Yet the fact that the coercion that only a global state could muster to correct the misery of global poverty and injustice would perforce carry a high price i.e. trade-offs vis-à- vis other values such as freedom and diversity, goes, as already indicated, unmentioned. Perhaps that is because Scheuerman thinks we can have it all – a global democratic rights-respecting state ensuring distributive justice and freedom for everyone, along with an entirely passive coercive apparatus without its own interests.

Does ‘truly radical’ thinking entail that we learn nothing from history? Never has a large territorial state avoided these trade-offs yet the reviewer seems to imagine a world state would. So far, any group that occupied the commanding heights of a large state and sought to coercively institute a radical, uncompromising programme of social-economic justice, has drastically curtailed freedoms, violated the most basic rights, engaged in ‘horrific’ violence and substituted new for older forms of injustice and misery. But I must heed my own methodological point: empirical examples from the past do not prove the theoretical or logical impossibility of reconciling global distributive justice with freedom and diversity. There were certainly complex sets of reasons for particular trade-offs in the past that the radical revolutionary rulers of territorial states engaged in.

I do not claim to have proven that a global state attempting redistributive justice would inevitably lead in a tyrannical direction. But holier-than-thou advocates of radical, indeed revolutionary political and social change aiming to deliver a total utopia (the best, not merely the good) with no trade-offs or compromises typically endorse purist conceptions of politics and justice, that tend to end up either there or, politically, nowhere.

Indeed the claim that radical aspirations sometimes remain worthy even if they raise ‘complicated’ political and moral questions (almost unimaginable political violence?) smacks of a purist stance regarding justice.^{Footnote 21} Perfectionism when it comes to distributive or any other legally enforceable justice, is always dangerous, intolerant, and in deep tension with other important values. Scheuerman seems to believe that a global state could manage everything democratically, constitutionally, harmoniously and that we can get there peacefully. Anyone can conjure up a utopia of this sort but I, for one, remain interested in feasible, not far-fetched perfectionist projects.

There are other ways to deal with the injustices of the current dualistic world order that are less risky even if unlikely to establish pure distributive justice. I thought perhaps, embracing federation for regional orders and federal-like reforms for the UN Charter system could be a step in that direction insofar as this would involve consensual creation of a constitutionalist order adequately pluralistic so that violence need not be the only possible way of getting there, (or more likely not getting there and yet paying the same high price). I do envision the possibility of negotiating a reformed international order through agreed upon, and institutionalized public fora that could permit open debates and inevitable compromise as to how to arrive at more just global socio-economic and political arrangements. Cosmopolitan moral and legal ideals regarding rights and social justice should certainly inform such a project. But yes, for now and in the foreseeable future, that would indeed be as good as we could hope for.