Somek on “The Cosmopolitan Constitution”

Somek on “The Cosmopolitan Constitution”

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This is the copy of my most recent book, called “The Cosmopolitan Constitution,” and contrary to what the title might suggest, this is not about the constitution of the world. On the contrary, it is about national constitutions, or, more specifically, about a certain type of national constitution. A national constitution that has emerged, in particular, in the later half of the twentieth century on the European continent, and this type of national constitution has certain special features that make it “cosmopolitan.” It is based, first of all, on certain universal
principles like freedom, equality, and solidarity. These are the old principles that we inherit from the French Revolution. The constitution is also embedded in an international system of peer-review among nations. So it’s a basic understanding…a basic premise of a modern cosmopolitan national constitution that you’re not alone in this world, that what other countries think of constitutional law is relevant to your own constitutional experience. Then, finally, and that’s maybe the most important point, a cosmopolitan constitution is firmly committed to protect people against discrimination on
the ground of nationality; and, thereby, you get an element of transcendence. You transcend your own national bounds within your own constitution. I’ve mentioned that this is a constitution that emerges from the better part of the experience of the twentieth century in Europe. The worst part of the twentieth century experience was First World War and Second World War, as we all know, but fortunately the second half of the Western European constitutional experience, at any rate, was much better in Europe in the twentieth century. It is still, I believe, a cosmopolitan constitution, but you have to arrive at a certain… understanding of what cosmopolitanism really means. The basic idea is as follows: cosmopolitans claim that they are citizens of the world. But, interestingly, if you look around in this
world, you will soon realize that even though everything is very interconnected and that in the large scale of things we all belong together, there is no common polity that we share. There is no world republic. So if you claim that you are a citizen of the world, you actually claim that you are at home everywhere in this world, inside your own country but also, and in particular, outside of your own country. So if you claim that you are a cosmopolitan, and if you don’t make any utopian claims, merely high-minded claims, what you claim is that you are at home in a world, also if you happen to be a foreigner, to live as a foreigner, as I do, in a different country, the cosmopolitan constitution signifies the constitutional experience, or, what the legitimate constitution is, for people who live in other countries as foreigners. And, therefore, you understand, now, why it is an important idea of cosmopolitan constitutions that people can feel comfortable as foreigners if they live in a different society as long as their fundamental rights are protected, as long as this fundamental rights protection system is sufficiently monitored on an international scale, and as long as, in particular, they don’t have to be afraid about being discriminated against on the ground of nationality. So, the cosmopolitan constitution, and that’s one, I think, more remarkable conclusion that I draw in my book, is, actually, the constitution experienced from the perspective of a foreigner: constitutions that are legitimate also for foreigners who live in different countries. Now, this is the good side of the Cosmopolitan Constitution: a constitution that doesn’t discriminate on the ground of nationality, a constitution that is firmly committed to fundamental rights protection and endorses this commitment on an international level. Beautiful. But at the same time, there is a dark side to it, and I’m interested in the dark side, as well, not only in the bright side. My European friends often tell me that I’m overly interested in the dark side at the expense of getting the bright side right. This is the critique, I imagine, that this book will attract, but here is the dark side. If you look at the constitution from the perspective of a foreigner, there is one thing that doesn’t matter: your own participation in the political process. You can be satisfied with a constitutional regime so long as it, I mentioned it, doesn’t discriminate against you on the ground of nationality, protects your fundamental rights, and incorporates various reasonable processes of good governance. These reasonable processes of good governance can very well be administrative processes, processes that put administrators in charge at the expense of, or, at the cost of, political representation. So, the cosmopolitan constitution, in its darker moments, confronts us with a political experience where traditional bodies of political representation, like parliaments, begin to matter far less, and what begins to matter far more in our every day political experience is that we are basically subjected to the authority of administrative bodies that happen to cooperate, simply because it’s more effective, on an international scale. So, the Cosmopolitan Constitution, the darker side of the Cosmopolitan Constitution, actually confronts us with the fact that a great deal of our political experience may have become already a matter of the past. You may have heard one of the concepts… you’ve heard about one of the concepts that’s frequently used in this context before, “post-democracy.” The cosmopolitan constitution may well be an instance of a post-democratic development. Now, it gets even darker because the book is basically based on a dialectical argument. What is a dialectical argument? A dialectical argument begins with a certain idea. It explores how the idea is then realized in the political world, in order to see that the idea becomes different, actually, begins to turn itself against itself. It begins to turn against itself in the political world. So, a dialectical study is a study that begins with an idea and studies how the idea turns against itself in the long term. My book, “The Cosmopolitan Constitution,” has a little bit of this dialectical spirit because I begin with the original ideas that underpin constitutionalism in order to see modern constitutionalism as a project that we will be already in demise. And what’s the explanation for why I see the constitutional experience already in demise in a more cosmopolitan context? Well, the basic observation is that we have lost much faith in the power of law to constrain the conduct of major political or economic actors. We believe in efficiency. We believe in expediency. We believe in crisis management, and we believe in addressing various global risks, and we believe that there have to be institutions. We believe that the institutions have to have powers that happen to be in charge, and we willing concede them these powers because we want to be safe. Because what we are basically interested in is leading our private lives. You can read more about this in my book, but there is a certain gloomy perspective that is reflected actually on the cover illustration which gives you a painting by nineteenth century Austrian-Hungarian painter by the name of Adolph Hiremy‑Hirschl. It shows Hermes, the god of commerce, whom I take to be, for the purpose of my cover illustration, global international capitalism, leading the deceased souls, in this case, the deceased political souls, into the underworld. So maybe the cosmopolitan constitution is the constitution that signifies the demise of political self-government. I like to conclude my books with question
marks. I’m too un-American to conclude my book with a thesis and with a normative claim, but that’s the basic question mark. Has our constitutional experiment, or our constitutional experience that we’ve seen since the American Revolution, come to its conclusion? Well, maybe you will be able to tell after you’ve read the book. Thank you.

One thought on “Somek on “The Cosmopolitan Constitution”

  • University of Iowa Law Library Post author

    The Law Library is pleased to announce the next video in the “Iowa Thinking” series. This is a series of short videos highlighting faculty scholarship and research at Iowa Law. In this video, Professor Alexander Somek speaks briefly about his newest book, “The Cosmopolitan Constitution” (Oxford University Press 2014).

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