I. Introduction: A conceptual framework for the legitimacy of law
It is a fortunate coincidence that an increasing number of scholars from law, philosophy and political science are refreshing the standard interpretations of Kant’s cosmopolitan theory.Footnote 1 In this vein, I consider A Cosmopolitan Legal Order to make an important contribution to these recent developments in Kantian scholarship, and particularly to Kant’s idea of a ‘cosmopolitan constitution’ (Weltbürgerliche Verfassung).Footnote 2 Here, I intend to focus on a somewhat implicit notion underwriting the logic of the cosmopolitan legal order (CLO) proposed by Stone Sweet and Ryan. I take my task to be that of unpacking the legitimating rationale of Kant’s cosmopolitan will as the basis of the world legal order. The expected result is to emphasize, arguably in some novel respects, a ‘transitional’ reading of Kantian cosmopolitanism, an interpretive line that Garrett Wallace Brown and I have already advanced.Footnote 3
When considering the state of nature, Kant speaks of the formation of a ‘united will’,Footnote 4 something that allows for the generation of a rule of law. The expression Kant uses clearly echoes that of the ‘general will’Footnote 5 made famous by Rousseau, but actually introduced before him by Diderot along cosmopolitan lines. Rousseau’s idea of a general will is connected to the social contract: a way to justify political obligation and sovereign-power for the political community.Footnote 6 It is quite uncontested that for Rousseau the abandoning of the state of nature and the instantiation of a legal condition coincides with the constitution of the state. The general will allows for a transition to a fully legal condition which Rousseau recognizes as the one vindicating community-interests and a collective well-being.
In Rousseau’s ‘Social Contract’, a separation is made between ‘sovereignty’ [souveraineté] as a principle of the general will and ‘sovereignty’ (or ‘sovereign-authority’ [l’autorité souveraine]) as its ‘emanations’ [émanations].Footnote 7 Rousseau also notices that scholars, by not having distinguished the indivisibility of the principle of sovereignty from its applications ‘[…] have [gained] no correct idea of the sovereign […taking] manifestations of its authority to be parts of it.’Footnote 8 Therefore, according to Rousseau, these scholars have wrongly equated an act of sovereignty with the law, for example, when declarations of war have been mistaken for legal precepts.Footnote 9
Rousseau here wants to define a notion of sovereignty as an ultimate source of political obligation and legal validity distinguished from specific empirical emanations. From his side, Kant aims to further Rousseau’s distinctions in order to develop a notion of the general will along a priori and cosmopolitan lines.Footnote 10 The limits of Rousseau’s conception of a general will are evident from what he states in the Discourse on Political Economy. Here he affirms that ‘the will of the state, although general in relation to its members, ceases to be so towards other states and their members, becoming instead for them a particular and individual will’.Footnote 11 For Rousseau, the particular wills of the states do not merge into an all-encompassing general will, but rather become singular interpreters of a natural law that applies ‘to the great city of the world’.Footnote 12 This point, I think, is what Kant innovates with the introduction of the idea of a cosmopolitan general will and with the overall transformation of natural law into a ‘cosmopolitan constitution’ (Weltbürgerliche Verfassung)Footnote 13 in the absence of a centralized global government.
It is uncontested among interpreters (with the exception of some flawed readings) that Kant refuses the possibility of having an institutionalized and centralized coercive authority for the world government. He rules out – with no possible appeal – the hypothesis of a world monarchy leading to a ‘soulless despotism’ (Weltmonarchie).Footnote 14 However, he also rules out the practical establishment of a world (state) republic (Weltrepublik), or what is called a multistate confederation (Völkerstaaat), even if these remain desirable theoretical options.Footnote 15
In order to solve this puzzle, Kant defends a sophisticated view for the legitimacy of the international rule of law and world governance, something in line with his general categories of practical reason where the world state republic becomes a cognitive category that helps framing conceptually our understanding of international relations. Furthermore, as I have argued elsewhere, Kant is a ‘legal constructivist’: he holds a complex understanding of the cosmopolitan right to visit.Footnote 16
The Kantian perspective I seek to explore, which I believe is also at the core of Stone Sweet and Ryan’s book, is the following: how can we construct a condition of legitimate legal authority capable of accounting for both state-powers and cosmopolitan authority without also resorting to the positive instantiation of a world state (as Kant clearly warned us against instituting)? In order to capture this point, a parallel could be drawn between the Kantian idea of an a priori general will as an ultimate reason motivating the entering into a civil condition and the idea of a transcendental, regulative Grundnorm out of which particular general wills of states receive (cosmopolitan) legitimation.
The point is particularly relevant with regard to the current debate wherein sovereignty is considered as something ‘divided at the root’.Footnote 17 All in all, by exploring this exegetical option, it becomes possible not only to clarify a certain aspect of the overall Kantian project but also to give credence to Stone Sweet and Ryan’s CLO.
II. Ubi consistam Kant’s ‘congruent-reading’?
Given the general interpretive hypothesis sketched above, the question turns on how to define more precisely the terms in which the European Court of Human Rights (ECtHR), as defined in A Cosmopolitan Legal Order, is compatible with Kant’s cosmopolitan legal project. First, as argued before, a Kantian ‘congruent reading’ is possible because the idea of a world state republic plays a regulative role in shaping the external relations of states among themselves.Footnote 18 Second, since the world state republic depends on the presumption of an a priori omnilateral (cosmopolitan) will, this implies that any institutionalization of such will stands in an interpretive relation to the concept. Accordingly, historically, the ECtHR represents an institutionalization of practical reasoning considering state-relations as if they were to be organized in accordance to the principles of cosmopolitan right. Footnote 19 It is politics, then, that brings about such conditions by support of the ‘moral politician’.Footnote 20 Finally, third, lacking the possibility of resorting to a global political entity (a state of states), Kant finds in the ‘cosmopolitan constitution’ (Weltbürgerliche Verfassung)Footnote 21 the solution to international legitimacy. Stone Sweet and Ryan’s interpretation of CLO by the ECtHR vindicates such a condition at the regional level.
III. The ECtHR as the ‘Interpreter’ of the (Cosmopolitan) Will
A Cosmopolitan Legal Order has the rare virtue of tying together philosophical insights with detailed legal discussion (see Introduction to this symposium). In particular, in the second part of the book, it defines the ECtHR as an interpreter of the Kantian notion of a general will and omnilateral law-making. The question turns on how a connection between an omnilateral law-making and the general will is to be conceived. How does this connection lay the foundation for the construction of a cosmopolitan constitution, which according to Kant is the only legitimate condition under which peaceful interstate relations can be conceived?
Stone Sweet and Ryan outline their Kantian interpretation by considering that, first, the omnilateral will instantiates an intersubjective system of freedoms under the vestige of positive constitutional law. The Universal Principle of Right (UPR),Footnote 22 the Kantian template for conceiving the legitimacy of coercion on individual freedom, works in tandem with the Principle of Innate Freedom (PIF) and the Internal Duty of Rightful Honor (IDRH). Whereas the UPR establishes that actions are to be respectful of the freedom of all others in accordance to a universal law,Footnote 23 the PIF establishes that, ‘Freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity.’Footnote 24 Finally, the IDRH commands not to ‘make yourself a mere means for others’.Footnote 25 This is the basis for the Kantian definition of a global constitutionalist mindset that he defines in terms of a cosmopolitan constitutional order. The interesting part here is that the omnilateral lawmaker is ‘a priori’Footnote 26 and ‘is the only will that is lawgiving’.Footnote 27 Furthermore, Kant stresses that there cannot be any justice without publicity and, without publicity, no right.Footnote 28
In an attempt to update the Kantian project, Stone Sweet and Ryan argue that the Strasburg Court should be understood as an ‘omnilateral trustee’ court, one where people’s authority is delegated to public officials who supervise state compliance to the laws generated through the UPR.Footnote 29 Following the approval of Protocol 11, according to Stone Sweet and Ryan, the Court has established a truly European constitutional jurisdiction whereby individuals can find human rights justiciable. State citizens therefore establish a relation of trusteeship of their freedom with the Court. Footnote 30 Accordingly, the latter operates to safeguard their basic interests, without emptying the authoritative power of states when they put into practice the interpretive legal directions of the Court.
Here, domestic sovereignty and international authority rely on the principle of subsidiarity, and a margin of appreciation granted to states. In some important respects, one can find the interpretation of the Court’s mandate through the consideration of the ethical views initiated by state-parties.Footnote 31 When a general consensus is lacking on a certain issue among state parties to the Convention, the Court grants the state with the possibility of providing a derogation – that is, a restriction of the scope of applicability of the right under qualified circumstances (see Sadurski’s contribution to this symposium for a more critical reading).
Nevertheless, the system contributes to an overall expansive mechanism of rights, thus supplementing the initial objective of a minimum threshold of protections. I am convinced that this is a legitimate update of the Kantian project. I have defended elsewhere the idea that a poliarchy of transnational arrangements (not only of courts!) is what best instantiates the Kantian project of global constitutional trajectories.Footnote 32 Setting the European regime aside, we can imagine other types of constitutional architectures, including one that does not have a court as a focal point.
However, I want to merely reflect on the plurality of the procedures that I see as linked to the view of a regulative a priori omnilateral will.Footnote 33 This point, I argue, solicits possible extensions in the application of the here reconstructed CLO. I believe this is an important step to reinforce the idea of radical pluralism, or poliarchy, as the one defended by Stone Sweet and Ryan and myself. The view I have in mind (which I can, unfortunately, develop only briefly), is that a notion of pluralist constitutionalism should also include bottom-up inter-jurisdictional, as with the case of the European Union (EU), as well as horizontal regime-integrations (not only top-down processes), as with the case of an internal assessment of the ECtHR. There are three standard cases that specifically illustrate different forms of constitutional processes: (1) the Solange cases, (2) the Kadi cases, and (3) the Nada case. Here it is useful to restate some central elements.Footnote 34
This is the idea in nutshell: whereas the Solange cases testify of a bottom-up migration of human rights guarantees from state to the EU level by the suspension of the check of judicial reviews by the German Constitutional Court on EU laws, the Kadi and Nada cases testify, respectively, to the bottom-up migration of constitutional protections from a regional (European) context, to the international UN level and back again.Footnote 35 These trajectories are a clear indication that, at least for the case of an ascending process of constitutionalization, the use of the subsidiarity principle is reversed insofar as priority is given to rebuttable supranational authorities acting as a focal points. The idea of a reverse use of the subsidiarity principle assumes a legitimate expectation of a focal point authority ‘as if’ in accordance to degrees of progressive constitutional levels. Furthermore, delegation of authority to higher levels must comply with lower standards of protection in delegating bodies and grant improved levels of protection.Footnote 36 However, delegation of authority can be (legitimately) reclaimed back by states if and when upper level bodies do not deliver agreed standards of protection. This means that both state sovereignty as well as a reversible concept of conditional delegation of sovereignty is granted at the same time.
This final point closes in full circle the cosmopolitan interpretation of the Rousseauian idea of ‘sovereignty’ [souveraineté] as a principle of the general will with the notion of ‘sovereignty’ (or ‘sovereign-authority’ [l’autorité souveraine]) as its empirical and historically given ‘emanations’ [émanations].
IV. Conclusion
A Cosmopolitan Legal Order is certainly a very welcome attempt to revitalize the philosophical-legal discussions on cosmopolitanism. Yet it would be insufficient to suggest that the authors have conducted this enterprise by relying solely on the intellectual legacy of Kant. I would rather affirm, more boldly, that Stone Sweet and Ryan have provided us with a study conceived ‘in a classical manner’, insofar as facts -such as judicial practices- have been discussed in light of deep philosophical thoughts, which also include Kant’s. As the Italian writer Italo Calvino once affirmed, ‘a classic is what tends to relegate current events to the status of background noise, but without being able at the same time to do without it’.Footnote 37 I believe this is what the two authors have accomplished to achieve and also what any serious legal and philosophical engagement with modernity should aim to do.
