The  Responsible  Cosmopolitan  State       Richard Shapcott School of Political Science and International Studies University of Queensland Australia The adoption of republican constitution restraining the state in relationship to its own population was a revolutionary step in human freedom and the evolution of modern political communities. Contemporary conditions of enhanced interdependence suggest that this development needs to be extended to those beyond the state who may be subject to its domination. These conditions suggest the need for states to extend their republican accountability beyond their borders. This can be done by rewriting some of the clauses of their social contract via the means of a constitutional transformation which includes subjecting foreign policy to the rule of law and judicial oversight.

Keywords: Cosmopolitanism, Republicanism, Social Contract, Constitutionalism, Harm

 

The  Responsible  Cosmopolitan  State       Introduction   The adoption of republican constitutions limiting the freedom of the state in relationship to its own population was a revolutionary step in human freedom and the evolution of modern political communities. Contemporary conditions of enhanced interdependence suggest that this development needs to be extended to those beyond the state who may be subject to its domination. These conditions suggest the need for states to extend their republican accountability to outsiders by rewriting some of the clauses of their social contract via the means of a constitutional transformation which includes outsiders. To be sure the decades since the signing of the UN Charter have seen the widespread acceptance of some minimal cosmopolitan duties. Most recently states have recognized some limitations on the state’s capacity to commit harms to its own population. Not only have states signed up to numerous human rights agreements they have also taken steps to recognise their ‘responsibility to protect’ their own citizens and those of others states. In addition in multilateral forums states have agreed to limit harms they or their members may commit to outsiders, for instance, restrictions on trade in endangered species, punishment for ‘sex tourism’ and participation in war crimes. However meaningful transformations of the international realm along cosmopolitan lines will require more robust commitments to restrain the freedom of action of individual states. What follows is a preliminary and somewhat speculative investigation into the means whereby states can become more cosmopolitan. While cosmopolitan norms may be derived from an existing transnational legal framework, such as human rights treaties, there is nothing in

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principle to prevent an individual state from acknowledging responsibilities to outsiders unilaterally, that is in the absence of, or supplementary to transnational agreements, and thus providing a better resolution of the tension between citizenship and humanity. In order to make the argument the first step is to examine the cosmopolitan understanding of the state, the social contract and cosmopolitan law. The first section argues that for states to be minimally cosmopolitan they have only to recognise their negative duties to avoid harming outsiders and embody them in national constitutional law. Domestic legal requirements then perform the task of constraining state action in the international realm in accordance with cosmopolitan right. This can occur before any transnational legal framework or legislative body exists or supplementary to it. The next step demonstrates how cosmopolitanism can be compatible with and extend republican political theory. This section argues that the cosmopolitan reading of the republican principle be read as the requirement to establish non-dominating relations with outsiders. The paper concludes with a discussion of how the republican concern with the rule of law might be extended to include outsiders. The argument that follows seeks to establish the basis and set an agenda for further research in this area. It should be understood as the first part of a more comprehensive development of the idea of the cosmopolitan state. The main agenda is to make the case for cosmopolitan political theory to attend to the level of the national constitution. Subsequent enquiries will develop this further through examination of specific legal avenues and proposed clauses that may extend from a cosmopolitan perspective. This paper therefore is not an exhaustive account of the cosmopolitan constitution but rather a preliminary defence.

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Cosmopolitan  theory,  praxis  and  the  state.   Andrew Linklater has argued that western international thought and practice have been characterized by an enduring tension between our status as human beings and as citizens1. The modern state institutionalised this tension by granting and recognising the members of republican political communities’ legal and moral standing in relation to each other, while curtailing their obligations to outsiders. This tension endures to this day, it is reflected in current debates regarding our human and our civil rights, and in attempts to formulate new institutional designs that recognise cosmopolitan obligations to humanity and to institutionalise them in transnational or global legal and political structures. One of the challenges for cosmopolitan thinking is to find ways to reconfigure the balance between our obligations to our fellow compatriots and to humanity in such a way that they are not mutually exclusive. In later work Linklater argued that the cosmopolitan project required three types of enquiry, the first was the normative defence of the principles of universalism and inclusion, the second was a sociological enquiry into the forces favouring or limiting universalism in different eras and contexts of human history and the third was a praxeological study into how new forms of solidarity, institutionalism and community could be developed which facilitated greater inclusion.2 Cosmopolitan thought in recent decades has, arguably, been characterized by two features, the first has been a relative lack of interest if not outright rejection of the state as a cosmopolitan agent and a source of cosmopolitan praxis. Because our standing as humans trumps our standings as citizens the state has only a secondary or derivative moral significance. Therefore it is commonly argued that membership in national states must be transcended by the development of post-sovereign, post-Westphalian, global

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democratic and cosmopolitan legal orders in which the state’s sovereignty is submitted to or overridden by cosmopolitan legal and political structures.3 The second feature has been a focus on the normative stage of thinking at the expense of the praxeological. When praxeaological concerns have been addressed, i.e. designing or advocating new forms of institutional arrangement that reflect cosmopolitan values, many accounts remain too abstract or impossibly impractical and removed from the world we inhabit. For instance the cosmo- political theories of Charles Beitz, Darrel Moellendorf, have developed elaborate normative defences of global distributive justice while David Held has advocated visionary global political reforms to establish cosmopolitan democracy4. In both cases the path to achieving or realising these goals remains either absent or undeveloped. Neither global justice theorists nor cosmopolitan democrats have seriously addressed how their visions may come to be realized. Thus cosmopolitan political theory has struggled to articulate the means whereby cosmopolitan normative insights can be adequately applied in the contemporary world. This is a serious absence and points to potentially fatal flaws within the cosmopolitan idea. As a general approach cosmopolitanism faces several criticisms, that include that it is utopian or impractical, that it is opposed to or inconsistent with national sovereignty and self-determination, that it suffers from problems of motivation and legitimacy when dealing with transnational or cosmopolitan institutional proposals. Therefore to advance cosmopolitan praxis and, as Slaughter argues, ‘in order for cosmopolitan proposals to be a guide to political action in practice, there needs to be a fully developed account of the means by which cosmopolitan principles can be realized’5. That is to say, what preconditions would need to be met and how would we achieve them for states, peoples, international organizations to be transformed in 5

order to conform with cosmopolitan values. Garrett Brown’s argument that ‘any reasonable move to a cosmopolitan order would have to come from current circumstances.’ (Brown, 2011: 54) suggests cosmopolitan theory therefore needs to pay more attention to the praxeological dimension. In particular investigating what cosmopolitan principles might mean for how contemporary practices and institutions might be feasibly modified or reformed. A number of cosmopolitan scholars have recently argued that beginning from current circumstances entails a serious engagement with the state and its possibilities 6 . Without denying that new forms of global governance are emerging and the state is undoubtedly being transformed in the context of globalization these authors argue the state remains the locus of democratic legitimacy and a source of unrivalled concentration of power. As Corduourier-Real argues a cosmopolitan must recognize it is ‘necessary to count on the political means of the state to address both local and global injustice. It is, therefore, important to keep the focus on states in order to be clear about who is failing to accomplish obligations of justice’7. The general tenor of these arguments is that for better or worse we live in a world of states, many of them republican in some form or another, where most of the people of the world accept that they should be governed by rules that they have made, i.e. that are made for and by their own communities. So any cosmopolitanism needs take account of the source of legitimacy and the importance of the state as a political community. The argument below is underwritten by an assumption that the adoption of cosmopolitan norms by a state ultimately require domestic consent and democratic forms of legitimation and will likely be more acceptable when they are seen as the product of domestic political deliberation rather than as coming from outside.

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In this vein Brown argues that the task for the cosmopolitan is to investigate ‘what normative requirements a cosmopolitical state would need to satisfy internally and externally in order to satiate the moral, legal and institutional demands of cosmopolitanism.’8 The principle task of this paper is to take up Brown’s challenge to begin to examine ‘what cosmopolitan values a state may still provide, what a normatively responsible cosmopolitan state might actually look like and how responsible cosmopolitan states could help ground a cosmopolitan condition.’9 In particular what legal institutional responses might they have to cosmopolitan conditions of interdependence? The argument is that cosmopolitan thought ought now to address how states might ‘unilaterally’ become more cosmopolitan. Before, or at the same time, as we move to global institutional responses, we can ask: ‘can the state unilaterally, or in concert with other states, enact a modification to its constitution where by it places limits on its capacities to override the freedom of outsiders, and whereby it can expand the realm of accountability to outsiders?’ Praxeology is theoretically oriented practice, therefore cosmopolitan state praxis requires a degree of theoretical elaboration and clarification regarding both cosmopolitanism and the state. This argument therefore is an attempt to set the groundwork for further praxeological work.

The argument in this paper is on

defending the theoretical grounds for a turn to the state and in particular to the constitution. The final section of the paper speaks more directly to practice and sets out the direction for future investigations. It investigates the theoretical possibilities for institutionalising cosmopolitan values into existing institutional structures, specifically the constitution of the republican state. Cosmopolitan responsibility requires states to extend their legal instruments to include the interest of nonmembers of the social contract, the domestic constitution is the means for doing this.

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The argument is that there are unexplored possibilities for including cosmopolitan elements latent in the republican constitution. Specifically republican states can extend constitutional protection against non-domination to non-residents, non-citizens and people beyond their borders as a means of recognising cosmopolitan obligations of non-domination. The argument is underwritten by the republican political theory of the state which identifies the constitution as a means of correcting the tendency towards domination inherent in states10. In addition this approach also addresses a failing of much contemporary republican theory and cosmopolitan legal thinking by bringing attention to the state’s accountability for actions beyond its borders. This approach continues, while modifying, the cosmopolitanism begun by Kant, which envisages a pacific federation of republican states as arising from transformations of the domestic social contract.11 As such it presents both a plausible step towards realizing cosmopolitan values in the world as it is, and that may, in the spirit of Kant, pave the way for revolutionary transformations. Thinking about cosmopolitanism from the bottom up, so to speak, overcomes the disadvantages often associated with its emphasis on universality and transnationalism. In particular by beginning with the national constitution this approach begins to address the problems of practicality and idealism that plague discussion about cosmopolitan justice and global democracy. The argument addresses these criticisms by demonstrating how sovereign states can become more cosmopolitan by reforming their own domestic institutions to be more in accord with the moral law. If we are interested in examining how states can be transformed into responsible cosmopolitans we need to address not only the external factors working upon them but also the terms of the domestic social contract and to identify resources that are amenable to such change. There are many advantages of turning to this approach. Primarily it addresses the issue of the state

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directly by asking how can state practices be rethought without requiring any necessary prior major transformation of the international order as a whole. It asks only what can individual states do in order to be more cosmopolitan?

Cosmopolitanism,  the  state  and  the  social  contract.   Beginning with the state does not appear to be a natural starting place for cosmopolitan thought. At best cosmopolitanism has an ambivalent relationship to the state and to the idea of particularistic political communities.

This is because

cosmopolitans at least since Kant have contested the internal conception of obligation, associated with Hobbes, Pufendorff and others, which accompanies the idea of the state as an expression of the social contract. The social contract tradition is roughly divided between the Hobbesian approach giving priority to internal conceptions of obligation, and unconcerned with duties to outsiders and the Kantian (and natural law) approaches which seeks to nestle our domestic contracts within an account of universal duties12. This section concludes by arguing, in line with but also modifying Kant’s thinking in Perpetual Peace, that properly constituted, republican, states are amenable to modifying their social contract to recognize obligations to outsiders. The cosmopolitan position on the social contract is that the obligations that contractors may have to each other do not exhaust or remove their moral duties or any obligations they may have to outsiders. The Hobbesian, internal, view argues the domestic social contract provides the grounds of mutual obligation between the contractors only. As Michael Walzer suggests, the social contract turns the state into a club: members define themselves for their own purposes without reference to the interests of others13. Cosmopolitans criticise this aspect of the social contract and by extension the nature of national constitution. They argue, following Kant that while

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the duties we owe compatriots are indeed ‘special’ they are not exhaustive of our general cosmopolitan duties to humanity: ‘special associations can increase what we owe our associates but they cannot decrease what we owe everyone else’14. The Kantian draws this conclusion as Linklater noted, because ‘(U)nlike Pufendorff and Vattel, who had grounded political obligation in the previous consent of contractors, … (Kant) derived obligation immediately from moral duty. The duty to belong to the state emanated from the fact that the pursuit of any one man's happiness and security should not be incompatible with the equal liberty of others. And because this was so, the state could not be considered a sufficient juridical community; the primary importance of justice required that outsiders too be brought within a common moral framework’15. Such considerations lead to conclusions such as Henry Shue’s that ‘... it is impossible to settle the magnitude of one's duties in justice (if any) toward the fellow members of one's nation-state…prior to and independent of settling the magnitude of one's duties in justice (if any) toward non-members' 16 . The domestic social contract that establishes the exclusive nation state is unjust or incomplete unless it also established a just relationship with non-members. The problem for cosmopolitans is not that separate social contracts perse are unjustifiable, only that they are when constituted with reference to only those who are already included. Cosmopolitanism suggests the decision to establish a social contract is not an entitlement to disregard the legitimate interests of outsiders and must be consistent with a global common good or at the very least not make its members the enemy of humankind. Cosmopolitan morality therefore does not necessarily have to result in a transnational institutional or legal

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structure that overrides or replaces the social contract. Instead it requires at the very least that the social contract does not exhaust the moral obligations of its members. In order to address the deficiencies of the Hobbesian and Grotian accounts of the social contract account Kant, and more recently Rawls articulate a 2nd stage to the contract17. In this 2nd stage the domestic social contract is replicated via the state acting as a proxy or representative and entering into a contract with other states. In Kant’s and also Rawls’ accounts the 2nd stage contract has only a very limited constitution and contains only minimal rules regulating state conduct. Most famously Kant’s extends only as far as a Pacific Federation guaranteeing peace and hospitality. This federation realizes a cosmopolitan duty whereby we enact a form of the categorical imperative to exit the state of nature. Rawls suggests a slightly more ambitious and extensive list of obligations extending from a liberal duty to recognize a reasonable pluralism of political organisation. In both cases in the international contract a far more limited sets of rules, or minimal international constitution, is arrived at than in the domestic sphere. This is largely because both Kant and Rawls value the self-determining capacities of properly constituted states. In both accounts the international contract is between properly constituted states, in Kant republican states and in Rawls, well ordered or decent societies who have a minimally just domestic social contract. In both cases the states share many of the constitutional characteristics ascribed to republican states, including the rule of law. What is most significant is that Kant sees the republican state as an agent of cosmopolitanism, (good societies stem from good constitutions) thus the republican constitution creates good states that can aspire to right behavior. Change in the global order, crucially extends from change in the domestic order, as Kleingeld argues

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‘… the internal improvement of political structures and processes within states will have positive effects for global justice. Because they view the ideal state as the embodiment of the political autonomy of citizens, they can claim that their political theory… actually represents a way of making individual political autonomy compatible with world citizenship. It does this by conceiving of states as ideally internally organized in accordance with principles of justice and as simultaneously part of a just cosmopolitan world order.’18 States, especially democratic republican states bound by the rule of law, are a unique forum wherein a political community exercises self determination and distinguishes itself from others but in which individuals also exercise autonomy and help to bring a cosmopolitan world order into being. Kant’s account suggests that instead of seeking to reconstitute a global order in a way in which republican self-determination is disregarded, that reconstitution can extend from transformation at the domestic constitutional level. However it is not surprising that in recent decades the most pervasive cosmopolitan response to the state and to the balance of obligations between humanity and citizenship has been to either transcend the state entirely, a world state, to replace or embed it in global democratic institutions or to embed the domestic social contract in some form of transnational legal or political order.19 In these scenarios the state is restricted in its sovereignty by cosmopolitan laws and institutions situated ‘above’ it or outside it. States can become more cosmopolitan by having their legal sovereignty supplemented or superseded by a transnational legal order. The emphasis is often on how a transnational, cosmopolitan form of legal/institutional order can be embedded or used to complement or supersede national law what Stone-Sweet sees as a cosmopolitan legal order (CLO) understood as ‘a transnational legal system in which 12

all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction, without respect to nationality or citizenship’20. Likewise Benhabib advocates what she calls cosmopolitan federalism whereby states incorporate cosmopolitan hospitality norms, recognising the human, and not just civil, rights of non-citizens and ‘resident aliens’ thus anchoring domestic law in international or cosmopolitan law21. The cosmopolitanism of these cases is largely domestic or concerned with rights of ‘outsiders’ once they have arrived, legal requirements perform the task of constraining state action in the domestic realm in accordance with cosmopolitan right. The more ambitious of these visions claims that the cosmopolitan legal order in the form of a global constitution is emerging which takes precedence over, and from which national law must be derived. Global constitutionalists in Cohen’s terms, see a global legal order as having precedence over domestic law, and in which domestic law’s legitimacy is derived from or secondary to the global cosmopolitan constitution22. This idea of a cosmopolitan constitution sees republican states entering into a situation where they accept transnational cosmopolitan law as part of their domestic legal framework, and surrender part of their autonomy to that law. As such cosmopolitan theorising has sought to begin from the outside, so to speak, that is by identifying the means by which states can be transformed by the cosmopolitan order beyond their borders. This tendency has contributed to the idealism and utopianism of much cosmopolitan political theory noted above. In some ways the CLO and the Global constitution seem like natural extensions of the Kantian tradition of the cosmopolitan constitution and the Pacific Federation. However such an interpretation would be misleading. In the Kantian account the Pacific Federation is a result of, or extends from, the domestic republican 13

constitutions of the member states. It is not positioned over and above the domestic level nor is seen as the proper source of domestic law. Instead Kant’s cosmopolitan constitution is a federation which gains its legitimacy from its members agreeing to exit the state of nature. The Global constitution departs from the Kantian idea because it disregards the importance of political self-determination adhering to republican states and entirely reverses the source of legitimacy from the self-determining political community to the global cosmopolitan legal order. The argument began with the cosmopolitan concern to overcome the dichotomizing practices of the sovereign state system, with the tension between the duties of citizenship and humanity. If we accept that states are plausible and desirable locations for developing cosmopolitan practices the question remains as to how can selflegislating political communities be responsible cosmopolitans? One task is to identify the ways in which self-legislating communities can recognise their positive and negative obligations to outsiders. Many cosmopolitans have answered that they can do so by surrendering to transnational authority and institutions. An alternative way to conceptualise the state’s relationship to cosmopolitan law, at least until such time as democratic cosmopolitan legislative bodies emerge, and one more in line with the logic of Kant’s account, is to identify cosmopolitan responsibilities that might be immanent within the constitutions of republican states. The way to proceed is to begin by identifying principles which states can adopt unilaterally to govern their relationships with outsiders and make them responsible for their actions abroad. The next section argues that cosmopolitan thought and republican political theory can be reconciled to the extent they minimise state inflicted harm. Moreover cosmopolitanism shares with republican and democratic theory the value that ‘what touches all should be approved by all’ (all involved principle). The following section 14

examines the possibility that republican states can employ these values to become cosmopolitan from the inside out, rather than vice versa.

The  cosmopolitan  harm  principle  and  republican  non-­‐domination.   Cosmopolitan Rawlsianism implies that states should pursue global egalitarian policies in their foreign relations. However many problems are attendant on this, not least the distance between prevailing discourses of justice in the Rawlsian account, and the problem of value pluralism. Alternative accounts of cosmopolitanism have argued that the harm principle, that we cannot harm each other unnecessarily or unjustifiably, provides the basis for cosmopolitan state practice23. Thus Linklater argues that an ‘ethical foreign policy based on the ‘no harm’ principle is one way in which communities can reconcile their duties to fellow citizens and their obligations to distant strangers’24. According to Linklater cosmopolitan political communities, what we have called responsible cosmopolitan states, are communities who recognize the limits on their capacity to harm outsiders. This view suggests that the cosmopolitan state can recognize its duties to outsiders by developing measures to limit and or redress harms done to them. The social contract should include the recognition of a duty to not harm those not included in it directly.25 Cosmopolitans argue that states commit harms to outsiders in a number of ways, first because they do not seek the consent of the excluded for their initial act of exclusion. States restrict the free movement of people across the globe. States arbitrarily limit the access of outsiders to natural resources to which all humans have entitlements. In addition states allow harm to outsiders, because they may have no limitations on, the exporting of practices, standards, and material substances that are known to harm and that may be domestically prohibited. A cosmopolitan account of the social contract

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suggests that states retain their obligation to avoid harming, and to preventing their members from harming outsiders even when those actions occur beyond the state’s territorial jurisdiction. According to recent republican political theory the most important harm inherent in states is that of domination. Pettit in particular argues that the republican idea of freedom is that of non-domination, and the republican state is concerned to limit its own capacities to arbitrarily dominate 26 . The constitutional republican state is understood as having imposed restrictions upon its own capacity to dominate and is therefore a non-dominating state. According to Pettit this notion of freedom emphasizes not mere non-interference but also shared liberty (as non-domination). In republican political theory freedom is understood as both freedom from domination, especially violence, and freedom as a shared practice. The cosmopolitan moral concern with harm minimization is congruent with and to some degree extends from the republican political concern with minimizing domination. Both are concerned with limiting the state’s capacity to harm through domination. It will be recalled that according to Kant the pacific federation rested upon the adoption of republican constitutions. In Kant’s work the republican principle of non-domination is externalized, turned outwards, to cover its relations with outsiders and thus reconciles republicanism with cosmopolitan principles. We can then argue that a cosmopolitan reading of the republican principle involves the requirement to establish non-dominating relations with outsiders. Such an outwards turn

reconciles

the

republican

concern

with

self-government

with

the

cosmopolitanism concerned with harm minimization. The cosmopolitan harm principle extends from the recognition that unjustifiable harms are inconsistent with human autonomy and individual freedom.

As Shue has argued in the case of 16

exporting the hazard of asbestos manufacture a harm committed without consent is a harm to individual autonomy and freedom27. According to Kant states arbitrarily limit human autonomy by refusing to submit themselves to a cosmopolitan federal constitution and by remaining in a state of nature. Kant’s concern was primarily with the eradication of warfare and the state of nature.

However he didn’t examine

whether it was possible for the republican constitution to govern and restrain the republican state unilaterally, i.e. in the absence of a pacific federation and the continuance of the state of nature. The remainder of this paper addresses this latter harm of domination and argues for an extension of the republican ‘non-dominating’ constitution to outsiders. Directing attention towards the harm principle overcomes some of the deficiencies of much contemporary writing on both cosmopolitanism and republicanism; to address the issue of state accountability for its foreign affairs and its domination of outsiders beyond it borders.

Re-­‐constituting  the  social  contract     This section argues that in republican states cosmopolitan constitutional clauses can provide the basic rules limiting state action beyond its borders as well as spell out institutional arrangements for incorporating the interests of outsiders. Retracing the argument so far, it has been claimed that doubts about the legitimacy of a CLO or global constitution and the need to address the question of a state’s responsibility beyond its borders directs us towards the state’s possible cosmopolitan duties. In partial answer to Brown’s question regarding the idea of a responsible cosmopolitan state the previous section argued that the responsible cosmopolitan state is one that acknowledges its responsibility to avoid harming outsiders unjustifiably. 17

A cosmopolitan state is one that can limit the harms it commits by finding ways to grant legal status to outsiders, while preserving the benefits of citizenship for insiders even in a state of nature. It will be argued below that states can reform their domestic constitutions to include means for recognizing the rights of outsiders and developing means for addressing the inclusion of non-members interests. The national constitution is the legal institutional expression of the basic terms of social contract. It sets out the duties and rights of members and of their representative and governing bodies. They are generally seen as the prerogative of domestic populations and an expression of national and republican values. In the liberal republican tradition constitutions perform two major functions. The first is to restrain and set limits on a state’s right to harm its citizens, the ‘garantiste’28 function of restricting the arbitrary power of the state and, second; is to set out the rules by which a state is constituted and governed including the purposes of and relationships between the different organs of government and the legal system. Recent republican thought emphasizes garantiste provisions which restrict the state’s capacity to practice domination. Thus democratic and republican constitutions usually embody some means for checking state powers in relation to its citizens, this includes amongst other things, the rule of law, bills of rights, and avenues of appeal for citizens to seek to hold their states accountable to their constitution.29 Republican states have self-limiting constitutions that guarantee the rights and legal standing of their citizens and which constrain the states capacity for domination by subjecting it to the rule of law. A ‘central aim of the rule of law is to avoid arbitrary rule. Law imposes fundamental constraints on the exercise of power, including generality, publicity, and nonretroactivity’30. This also involves accountability of the state to its populace via consultative measures, which might include means for legal redress for 18

harms committed by the state as well as mechanism for guaranteeing the state uphold its positive duties to its population. In sum the creation of the res publica involves a constitution that creates the realm of freedom from arbitrary domination, a community of self-legislators who nonetheless abide by the rule of law. Such provisions work to ensure that states cannot arbitrarily, without judicial accountability, override the rights of their citizens, i.e. their status as persons. For Bohman ‘republicans see the rule of law constitutively, as establishing a ‘civil condition’ in which everyone has at least one fundamental status, the status of being a citizen.’31. However most republican theory, has little to say about obligations and limits in relation to outsiders i.e. to non-citizens beyond their borders. 32 Traditional republican and social contract theory converge with traditional international theorists such as Grotius in accepting that the right of self-determination is qualified only by a duty to recognise other rights of self-determination. Little or no provision is made to extend the garantiste functions to outsiders who may have their rights and freedoms injured by the state or its members. Thus it appears that republican theory implicitly at least supports the internal conception of obligation and accepts the distinction between humans and citizens that was rejected by Kant. From a cosmopolitan perspective republican states arbitrarily limit the legal standing and rights of non-members. Nonmembers outside the state’s territory have only limited if no legal standing as persons. These harms are ‘constitutional’ in that they extend from the constitutions of states as bounded communities and from their sovereign territoriality. Bohman argues this is not a necessary corollary of republicanism and that many republican states already contain ‘cosmopolitan’ constitutions. Central to Bohman’s account is that the constitution provides for the rule of law over all persons. The category of persons in

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republican thought he argues is not restricted to membership of a political community, but maintain that domination of persons qua persons is wrong, therefore the state has duty of non-domination in relation to all persons. Bohman distinguishes his account from the more well known one of Petitt by appealing to a Kantian account of ‘originary freedom’. Accordingly ‘The turn to such a universal status is an answer to the question of whose freedom is important in assessing a just legal order. The only possible answer consistent with non-domination is ‘all persons.’33 Bohman’s aim is to establish that republican guarantees of freedom and rule of law apply to temporary residents, migrants, undocumented residents and migrants, asylum seekers refugees etc. who may inhabit the territory but not be members of the republic. Bohman’s account aims to ensure against any discrimination against ‘non-citizen residents’ and ensures that all people within a state are covered by the rule of law and not subject to domination: ‘Without this scope, the right to freedom would be distributed according to the contingencies of membership or on the entirely counterfactual assumption that all residents of any polity also have the status of citizens. But this empirical assumption clearly no longer holds, if it ever has’.34 Therefore he argues ‘The only way to realize non-domination … is to incorporate a shared and universal status for all legal subjects into the rule of law. Only when all subjects of the law are also legal persons before the law does the right to freedom apply universally to all persons. Call those provisions that express this universal legal status of persons the ‘cosmopolitan constitution’35. If state law and policies do not grant legal agency to everybody effected by their actions, including the rights to due process, to legal redress, to legal standing in the courts, (not necessarily the full panoply of citizenship rights) then they are in a relationship of domination. Foreigners can be subjects of domestic law of a foreign state without being counted as legal agents and therefore they are unfree and

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the state is acting in a dominating fashion towards them. Gaining legal status as an agent, means, ironically, gaining the right to be counted as having been harmed (In the absence of legal recognition then no harm is understood as having been committed as harms can only be done to legal persons). However Bohman’s objection while pertinent only addresses one dimension of the split between our status as human and as citizens. Bohman, like cosmopolitans such as Benhabib is concerned with how the republican state treats outsiders once they have entered the state’s territory. What is missing is an account of what, if any, duties the republic may have to those beyond its territory, who it may also be capable of dominating. We might call these extraterritorial duties. Thus if Bohman is right and we accept an external account of obligation and adopt a Kantian attitude to the republican social contract, the claim of freedom is a universal one, i.e. if applicable to all persons then it should also follow that the state has a duty of extraterritorial nondomination to outsiders. Bohman himself acknowledges that this republican argument has seemed to rest on the assumption, misplaced, that a state’s only capacities for domination are those that effect individuals domestically, however ‘in a world of extensive social, economic, and political interaction across borders, citizens may come to be dominated by distant others with whom they are not in an extant political community.’36 What are the forms of domination that republican constitutions should address in seeking to be non-dominating towards foreigners? According to the line of argument developed here the republican state has a duty to act in accordance with the rule of law in relation to non-residents and foreigners beyond its borders, at a distance. States that do not extend the garantiste provisions of their constitutions to outsiders cannot be considered to be non-dominating. Insofar as a state conducts a foreign policy that 21

affects the members of other countries there is potential for domination. More importantly insofar as that foreign policy is held to be non-judiciable, that is not subject to the rule of law, scrutiny by the courts or accountability to domestic law, or equivalent international law, then that potential for domination exists. Therefore recalling the two tasks of constitutions, the garantiste and the legal institutional it follows that a cosmopolitan constitution should extend the garantiste provision to outsiders, i.e accept restrictions on its right to inflict arbitrary harm, and that it should include legal recognition of the rights of outsiders including the extension of rule of law to foreign policy. If we accept either the Kantian argument for an external account of obligation, or simply recognize the pragmatic existence of the political community’s interdependence with others then it should follow that the garantiste provision of the national constitution can be applied to outsiders. Cosmopolitan constitutional clauses provide the basic rules limiting state action as well as spell out institutional arrangements for incorporating the interests of outsiders. In this way they extend the rule of law to actions beyond their borders and reduce their capacity to arbitrarily dominate. As noted above there are many ways in which states and their citizens can harm or dominate those beyond their borders, many of these are mundane and some profound, others are hard to allocate responsibility for, such as climate change. How states can be made constitutionality accountable for their acts abroad is similarly daunting. However as indicated there are already elements of cosmopolitanism within republican constitutions that could be developed further or extended. First, amongst these is the rule of law, that is; making states and individuals accountable for their actions abroad to individuals, via the judiciary37.

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A cosmopolitan clause in the constitution might argue that the executive is not excused from judicial review in matters of, for instance, national security, and the conduct (but not the direction) of foreign policy must be undertaken within the limits of the law. This is distinct from arguing that the judiciary should have oversight on foreign policy, and is not a challenge to the separation of powers doctrine, it merely seeks to maintain and develop existing restrictions on the state’s capacity to commit arbitrary harm by extending them to non-citizens and to its acts abroad. Thus it affects only the acts pursuant to foreign policy but not that policy itself which remains part of the political process. The idea of the cosmopolitan constitution therefore is to extend the republican limits on a state’s actions to include accountability to outsiders and non citizens via an extension of the rule of law. Subjecting foreign policy and its agents to the rule of law is the first part of transforming the social contract. This transformation recognizes that by virtue of their social contract members have negative duties towards non-members, to not harm. However it is also necessary to recognise that they have positive duties to consider the interest of non-members, and positive duties to allow non-members a form of legal standing to allow redress and recourse to the legal system in cases of harm. Such a right might entail only one positive duty, to allow outsiders the opportunity for legal redress which in turn requires granting them legal status as persons. Granting outsiders a legal status as persons requires that the state’s actions towards them be subject to the rule of law. It provides the basis upon which they may be able to access legal means of appeal and redress. In turn this works to limit the arbitrariness of a state’s actions in relations to outsiders and increases its legitimacy at home and abroad. Both of these suggest that the responsible cosmopolitan state

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respects the rights of persons at home and abroad and modifies its conduct so as not to harm, or dominate, outsiders. Proper analysis of exact legal forms required to realize cosmopolitan state responsibility requires more space than is available here, the aim instead has been to set the scene for such investigations. However a few suggestions can be made. In addition to the above-mentioned rule of law provisions there is the possibility that states could adopt forms of cosmopolitan extraterritoriality whereby they can extend criminal liability of their own citizens and corporations, to their actions abroad. Such provisions already exist in several states in relation to sex tourism, and acts covered by war crimes and IHL. Such forms of legal recognition are only the most basic and preliminary step towards a properly cosmopolitan national constitution that addresses the state’s responsibility beyond its borders. In keeping with the all-effected principle such a constitution would also need to incorporate means for including the interest of outsiders in its deliberation of matters that may affect their interests. That is it needs to envisage some sort of consultative or deliberative means whereby it can achieve ‘forms of transnational representation, through which people importantly affected at a distance can have their interests and needs taken seriously into account in these decisions.’38 However such mechanisms can only proceed after the state has recognized the legal status of all humans, and not just their own citizens, as persons.

Conclusion   Every state has the capacity to constrain its own actions abroad with or without external demands. Thus while the argument above is addressed to republican states it 24

could in principle apply to any constitutionally governed state. The aim of this paper is to identify resources within the republican state’s own discourses and modes of legitimation than can be used to further develop cosmopolitan goals. Thus the conclusion is not that republican political theory necessarily leads to the duty of external non-domination but that it can be made consistent with such duties. The argument thus is a moral argument for institutional reform that is not inconsistent with existing principles of republican government especially in the context of the possibility for ‘domination at a distance’. The arguments presented here clearly require further elaboration beyond the scope of this paper. It is possible that more questions have been raised than answered. Therefore a few things need be said by way of qualification and clarification. Nothing in the preceding argument is meant to refute or reject transnational formulations of cosmopolitanism. It is likely that developments suggested above may have something of a dialectic relationship with cosmopolitan international law and institutions. However the intention has been to shine a light onto a neglected possibility for cosmopolitan transformation. Thus the types of changes suggested here can have their origins either in transnational law, International Human Rights law, transnational advocacy networks, or alternatively, may stem from or be immanent within a state’s domestic political discourse. States which have adopted the UNDHR or which have their own bills of rights, such as the USA, already have the necessary resources to be able to further extend the protections to outsiders. The point being that a law may have a cosmopolitan scope without having a cosmopolitan ‘source’, as for instance in the case of universal jurisdiction. The same applies to the question of motivation, what would motivate states to adopt such measures? To be sure it is unlikely to occur without external feedback or 25

pressure, be it from citizens of others states, IGOS, INGOS, or other individual states. What will ultimately be required is an awareness on the part of the domestic constituency that their state can no longer be seen to be acting in isolation and their social contract affects others, and at the very least it may be in their own self interest to acknowledge this. As with any argument for institutional change much of what has been suggested here could be seen as impractical as the proposals for cosmopolitan democracy. However while they may remain politically difficult at this time simply asking a state to incorporate the rights of outsiders in the ways suggested above is less demanding and therefore prima facie more practical than asking that state to surrender its sovereignty or reconstitute itself in a transnational institutional structure. (Of course the latter is not impossible, witness the European Union, but even the EU suffers from a democratic deficit that limits its legitimacy in the eyes of those subject to it). Therefore there is at least as much merit in attending to possible domestic transformations as to international. As noted above the issues raised here are preliminary investigations only. Having established a case for looking to the state constitution as a source of transformation a more explicitly praxeological investigation becomes possible. The next stage of enquiry is to attend to the specific transformations of domestic law that may follow from the argument above. However such transformations are beyond the scope of this paper the main focus of which is to direct attention to possible domestic institutional changes at the constitutional level.

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1

Andrew Linklater,. (1990a) Men and Citizens in the Theory of International Relations. 2nd edn.: Macmillan, London

2 Andrew Linklater, (1990b) ‘The Problem of Community in International Relations’ Alternatives, 15, 135-153. 3 See for instance Held, D., ‘Cosmopolitan Democracy and the Global Order’, in James Bohman, & Mathias Lutz-Bachman (eds) (1997) Perpetual Peace, MIT press, Cambridge, Massachusetts and Held, D, (2010) Cosmopolitanism: Ideals and realities, Polity, Cambridge 4 see Charles Beitz, (1979) Political theory and International Relations, Princeton university Press, Princeton, Darrel Moellendorf, (2002) Cosmopolitan Justice, Westview, Boulder, 5 S. Slaughter, (2011) ‘Reconsidering the State: Cosmopolitanism, Republicanism and Global Governance’ in S. van Hooft, W. Vandekerckhove (eds.), Questioning Cosmopolitanism, Studies in Global Justice 6, 183, , XXV, 221, Springer. p189 6 see for instance Lea Ypi. (2008) ‘Statist Cosmopolitanism’, The Journal of Political Philosophy: Volume 16, Number 1, pp. 48–71 7 Carlos Cordourier-Real, (2010) Transnational Social Justice,. Palgrave Macmillan: London, p 112 8 Garrett W Brown. (2011) ‘Bringing the State Back into Cosmopolitanism: The Idea of Responsible Cosmopolitan States’ Political Studies Review Vol. 9 (1): p 54 9

(Brown, 2011: 54)

10 Phillip Pettit, (1997) Republicanism: A Theory of Freedom and Government, Clarendon, Oxford and James Bohman, (2007) Democracy Across Borders: From Demos to Demoi :MIT Press, Boston. 11

Kant, I, (1983) Perpetual Peace and other essays (trans. Ted Humphrey) Hackett Indianapolis

12 Martha. Nussbaum, (2008) ‘Toward a Globally Sensitive Patriotism’ Daedalus, Summer. 13 Michael Walzer,. (1983) Spheres of Justice, Blackwell, Oxford. 14 Pogge, T. (2002) 'Cosmopolitanism: a defence', Critical Review of International Social and Political Philosophy, 5:3, 86 – 91: 91 15 (Linklater, 1990a: 10) in 1 16 Henry Shue,. 'Exporting Hazards' in Peter Brown and Henry Shue (eds) (1981) Boundaries: National Autonomy and its Limits, N.J: Rowman and LittlefieldShue, 1981: 603 n 11 17 Rawls, J. (1999). The Law of Peoples. Cambridge MA: Harvard. Also Phillip Pettit. (2010) ‘A Republican Law of Peoples’ European Journal of Political Theory 9: 70 18 Pauline Kleingeld,. (2012) Kant and cosmopolitanism: the philosophical ideal of world citizenship , CUP Cambridge, p197 19 Underlying the cosmopolitan turn to transnationalism are two further assumptions, the first is the practical problems of coordination, large issues require global coordination to solve them, thus global institutions and therefore global legitimacy is required. The other is that states are unable or unwilling, are not predisposed, to undertake unilateral measures for making themselves accountable to outsiders. It is only when free rider and mutual gain issues have been resolved will states be willing to sacrifice their unilateral freedoms to act. 20 Alec Stone-Sweet, (2012). ‘A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe’, Global Constitutionalism Vol. 1 (1) pp53-90 21 Seyla Benhabib, S. (2004) The Rights of Others: Aliens, Residents and Citizens. Cambridge: Cambridge University Press. 22 At its most extreme according to Cohen, global constitutionalism claims that national ‘legal orders are not supreme or autonomous, their constitutions do not derive their validity from their own grundnorm, nor can their constitutional legal orders be imputed to their own autonomous demos (the idea of popular sovereignty) as the highest source. Rather states in the relevant aspects, are now construed as organs of the constitutional globalizing international legal system. … their legal systems have their condition of validity not in themselves but in the higher supreme autonomous international legal order .…: the latter is supreme over the domestic constitutional orders of state and trumps any agreement they make….’ states and their citizens must understand themselves as the constituent part of a politically constituted world society with the ( UN) charter as the constitutional document ...’ Jean Cohen, (2012) Globalisation and Sovereignty: rethinking legality, legitimacy and constitutionalism, Cambridge, CUP: 48-49. Cohen is correct to point that this ignores rather a lot of inconvenient truths about the nature of the relationship between politics and law historically and politically. Most importantly she points out that ‘sovereign states certainly do not deem their sovereignty as delegated by international law or as derivative from an internal or global ‘grundnorm’’ (Cohen,67).

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23Andrew Linklater, (2005) 'The Harm Principle and Global Ethics'. Global Society, Vol. 20, No. 3, July. See also Shapcott, R (2008) ‘Anti-Cosmopolitanism, Pluralism and the Cosmopolitan Harm Principle’, Review of International Studies, Vol 34 April, 24 Andrew Linklater, A. (2002): ‘Cosmopolitan Political Communities in International Relations’. International Relations, 16 (1), 13550. 135 25 For instance a community cannot form a social contract for mutual benefit if for instance that requires the forced importation of slaves from another community. Nor can a community form a social contract the purpose of which is to dominate nonmembers. Nor can members of social contract routinely export hazardous products or by products, negative externalities, to outsiders without their freely obtained consent. 26 see Petitt, 1997, 2009 in n 11 27 For further discussion of this point see Shapcott (2008)in n 19 28 Sartori, G. (1962) ‘Constitutionalism: a preliminary discussion’ The American Political Science Review, 853-864. 29 Bohman ‘ the rule of law is not merely instrumental to bringing about some antecedently present form of freedom, but is in part constitutive of it as political freedom’ a status that can be had in no other way than through the laws shared by a community. Indeed for Pettit, non-domination is achieved not through threats or coercion, but ‘by introducing constitutional authority’ that is so organized that it cannot itself become a dominator. These institutional conditions ‘will not just inhibit domination, but bring it to an end.’ This authority of a ‘non-dominating interferer’ is thus constitutive of freedom. Bohman, J. (2009), ‘Living without Freedom: Cosmopolitanism at Home and the Rule of Law’. Political Theory, Vol. 37, No. 4 August (pp. 539-561) p 542 30 (Bohman, 2009: 542) n 25 31 (Bohman, 2009: 540) n 25 32 For instance Pettit’s book does not deal with it at all and it was addressed in a much later short piece. (Petitt: 2010) See also the discussion in LaBorde (LaBorde, C. 2010 ‘Republicanism and Global Justice: A Sketch’, European Journal of Political Theory, 9: 48 ) Republican thought generally follows Kant in arguing that the republican state can avoid domination of outsiders by entering into stable law governed relations with other political communities, i.e. abiding by international law and recognizing their legitimate rights of existence. That is they recognize that the duty of non-domination consists of a duty to recognize other non-dominating states. Insofar as foreigners are citizens of non dominating states their freedom is assured by that state. At the very least the problem with this view is that many citizens, and their states, can easily be dominated by more powerful states, especially in the case of ‘weak’ or ‘failing’ states. One problem for republican thought is thus with outsiders whose freedom is not guaranteed by their state and thus where a potential for domination exists. 33 (Bohman, 2009: 543) n 25 34 (Bohman, 2009: 545) n 25 35 (Bohman. 2009: 547) n 25 36 (Bohman, 2009: 550) n 25 37 Other measures may include extending extraterritoriality to cover harms committed by citizens or other agents abroad as France, Great Britain and Australia have done in relation to sex tourism. See De Baere De Baere, Geert . (2012) ‘European Integration and the Rule of Law in Foreign Policy’ in Dickson Julie & Eleftheriadis Pavlos, Philosophical Foundations of European Union Law, Oxford University press. (2012). A third, more difficult, measure involves the design of consultative and deliberative practices or institutions to ensure the interests of outsiders are routinely considered in policy deliberations. 38 Gould, Carol C. (2006) ‘Self-Determination beyond Sovereignty: Relating Transnational Democracy to Local Autonomy’, Journal of Social Philosophy, Vol. 37 No. 1, Spring, 44–60 54-55)

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