COSMOPOLITANISM AND INTERNATIONAL LAW: From the ‘law of peoples’ to the ‘constitutionalisation of international law’
This chapter focuses on the role of international law within the ‘cosmopolitan condition’. It addresses the juridical approach to cosmopolitan thinking taken by Rawls and Habermas and how this differs from those who advocate ‘cosmopolitan democracy’ or ‘global civil society’. I shall argue that whilst there are good reasons for not embracing the perspectives of cosmopolitan democracy and global civil society, something is lost in the process of juridification. The idea of the ‘Law of Peoples’ put forward by John Rawls sets the scene for cosmopolitan thinking about international law in a way that is correctly described as ‘liberal’ but it also has some noncosmopolitan and worrying implications. The case for the ‘constitutionalisation of international law’ embraced by Habermas creatively builds on his theory of constitutional patriotism at the national and transnational levels. He successfully, to my mind, addresses the defects of Rawls’s Law of Peoples but in a manner that raises difficult questions about the status of international law and its relation both to the violence of the state and to the power of the people.