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A rationale for the legitimacy of the world legal order: Kant’s idea of a cosmopolitan will
Published online by Cambridge University Press: 07 December 2020
Abstract
In this contribution I provide an interpretation of Stone Sweet’s and Ryan’s cosmopolitan legal order in conjunction with a certain reconstruction of the Kantian cosmopolitan rationale. Accordingly, I draw attention to the connection between the notion of a general (cosmopolitan) will in Kant’s reinterpretation of Rousseau and the role of the European Court of Human Rights (ECtHR) as an ‘interpreter’ of such will. I conclude by suggesting that the opportunity of extending the CLO also accounts for a variety of other poliarchical regimes that, taken as a whole, illustrate the landscapes of contemporary global constitutionalism.
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References
1 For Kant, ‘the idea of a cosmopolitan right is no fantastic and exaggerated way of representing right; it is, instead, a supplement to the unwritten code of the right of a state and the right of nations’. Kant, I, ‘Towards Perpetual Peace’, in Practical Philosophy, edited by Gregor, M (Cambridge University Press, Cambridge, 1999 Google Scholar [1795]) 330 [8:360].
2 I Kant ‘Towards Perpetual Peace’, 329 [8:358].
3 Brown, G, ‘Moving from Cosmopolitan Legal Theory to Legal Practice: Models of Cosmopolitan Law’ (2008) 28(3) Legal Studies 430 CrossRefGoogle Scholar; Corradetti, C, ‘Kant’s Legacy and the Idea of a Transitional’ (2016) 29(1) Jus Cosmopoliticum, Ratio Juris 105 CrossRefGoogle Scholar.
4 ‘But the democratic form of state is the most composite of all, since it involves the following relations: first, it unites the will of all to form a people; then it unites the will of the citizens to form a commonwealth; then it sets this sovereign, which is itself the united will of the citizens, over the commonwealth.’ See (n 2) 479, [6:339].
5 Rousseau, J J, ‘The Social Contract’, in Discourse on Political Economy and the Social Contract (Oxford University Press, Oxford, 1994 Google Scholar [1762]) 55ff.
6 ‘If therefore we set aside everything that is not essential to the social pact, we shall find that it may be reduced to the following terms. Each of us puts his person and all his power in common under the supreme direction of the general will; and we as a body receive each member as an indivisible part of the whole.’ See (n 6) 55.
7 J J Rousseau (n 5) 64.
8 Ibid.
9 Ibid, 65.
10 J J Rousseau, ‘The Social Contract’.
11 Ibid, 7.
12 Ibid, 7.
13 I Kant ‘Towards Perpetual Peace’, 329 [8:358].
14 Ibid, 336 [8:367].
15 Ibid, 328 [8:357]. The translation of Völkerstaat has been modified for interpretive reasons.
16 Corradetti, C, ‘Constructivism in Cosmopolitan Law: Kant’s Right to Visit’ (2017) 6(3) Global Constitutionalism 412 CrossRefGoogle Scholar.
17 Habermas, J, The Lure of Technocracy (Polity Press, Cambridge, 2015) 59 Google Scholar.
18 I Kant ‘Towards Perpetual Peace’, 328 [8:357].
19 A Stone Sweet and C Ryan, A Cosmopolitan Legal Order, 2.
20 I Kant ‘Towards Perpetual Peace’, 340 [8:372].
21 Ibid, 329 [8:358].
22 As Kant defines this, ‘Any act is Right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law.’ Kant, I, ‘The Metaphysics of Morals’, in Gregor, M (ed), Practical Philosophy (Cambridge University Press, Cambridge, 1999 Google Scholar [1797]): 387 [6: 230].
23 I Kant, ‘The Metaphysics of Morals’, 387 [6: 230].
24 Ibid, 393 [6: 237].
25 Ibid, 392 [6: 236].
26 Ibid, 415 [6: 263].
27 Ibid, 415 [6: 263].
28 Ibid, 456–58 [6: 313–14].
29 A Stone Sweet and C Ryan, A Cosmopolitan Legal Order, 46.
30 ‘In ‘agency-control’ models, a unified Principal possesses the means to control the acts of her Agent on a continuous basis. A trustee, however, is a special type of agent. In this instance, the court is entrusted with promoting the value placed in reserve by the People: their freedom. The People, as the constituent legislative power, are also the beneficiaries of the trust going forward. The constituent power alone possesses the authority to alter the terms of the trust, which it may do by revising the constitution.’ See A Cosmopolitan Legal Order, 51.
31 A Cosmopolitan Legal Order, 132ff.
32 Corradetti, C, ‘Kant’s Legacy and the Idea of a Transitional Jus Cosmopoliticum ’ (2016) 29(1) Ratio Juris 105 CrossRefGoogle Scholar; As extension of the Kantian model to the contemporary world, see Corradetti, C, ‘Judicial Cosmopolitan Authority’ (2016) 7(1) Transnational Legal Theory 29 CrossRefGoogle Scholar. See also the Introduction in this issue.
33 See, in particular, A Cosmopolitan Legal Order, 234ff.
34 C Corradetti, ‘Judicial Cosmopolitan Authority’(n 41). See also the Introduction in this issue.
35 I refer to the following cases: Kadi and Al Barakaat International Foundation v Council and Commission, Joined Cases C-402/05 P and C-415/05, ECR I-06351, 2008; Nada v Switzerland, ECHR, App no. 10593/08, 12 September 2012; Solange I decision, BverfGE 37, 271, 1974; Solange II decision, BVerfGE 73, 339, 2 BvR 197/83; and for some, even if not explicitly mentioned in terms of a ‘so long’ [so lange] reasoning, Solange III decision, Brunner v European Union Treaty, 1 CMLR 57, Case 2134/92, 1994.
36 C Corradetti, ‘Judicial Cosmopolitan Authority’(n 41) 8.
37 Calvino, I, Perché leggere i classici, Oscar Mondadori, Milano, 2002, 12 Google Scholar. My translation.