The co-evolution of cosmopolitan and national statehood – Preliminary theoretical considerations on the historical evolution of constitutionalism

Abstract

The article claims that we should not just look towards a utopian future in fulfilling a claim about realization of a cosmopolitan, non-national world order. Already during antiquity the idea of a transcendent universal order took on a differentiated form at the same time as there happened to be institutionalization. Since the legal revolution of the long 12th century, this duality has been constitutional and has had a hierarchical structure. However, not only was the invention legal, it was also organizational; hence, the modern political, legal and organizational powers emerged long before the more celebrated state-building processes of the 16th and 17th centuries. The point is that the order was both political and cosmopolitan, institutional and universal. The nation-state was an exception compared with this long and widespread legacy of cosmopolitan power. But the universality of subjective rights was re-institutionalized according to principles that excluded inequalities. This was set in motion even before the UN Charter, not just with the ideas of 1789 but also institutionalized in Roosevelt’s New Deal together with the social and political rights that were institutionalized specifically as a consequence of the World Wars and the political claims that followed.

Reply to Critics

“…Albert has used my way of combining evolutionary and differentiation theory to display the theoretical deficit of contemporary theories of world politics. Moreover, he and Thornhill strongly support my co-evolution thesis and -thankfully -deliver in their comments and other writings much more empirical evidence for my thesis that 'national states emerged as parts of a cosmopolitan political system, and they were both structurally and normatively inseparable from inter-and transnational institutions' (Thornhill, 2014, forthcoming: 19; see also Thornhill, 2011Thornhill, , 2012Brunkhorst, 2012;. The still prevailing 'common suggestion that there exists an antinomy between national and transnational statehood' (p. 16) that renders any coexistence of national and cosmopolitan (or European) statehood a priori impossible is determined by the ideological hegemony of the (Hobbesian) concept of indivisible state sovereignty that allows no (mortal) God besides himself.…”

Global constitutionalism in historical perspective: Towards refined tools for international constitutional histories

“…On the other hand, such works focus on the co-constitution of the two constitutional realms and trace their entangled evolution without privileging the international constitutional realm to the same extent as the second strategy (e.g. Tully 2007; Brunkhorst 2012).…”

“…Schwöbel 2011: chapter 2; Kleinlein 2012: chapters 3–4; Havercroft 2012). The insufficiency of such a limited historical perspective has been highlighted by James Tully (2007) and Hauke Brunkhorst (2012). Both authors criticize the conventional wisdom of two separately evolving constitutional realms as ‘misleading’ (Tully 2007: 319) and emphasize instead the role of social practices in the co-evolution of the two constitutional realms.…”

World State

“…This is mostly, but not exclusively, discussed in conjunction with the question of how it might be possible to ensure solidarity and democratic legitimacy under the condition of political, economic, and legal globalization, which characterize a functionally differentiated world society. To my knowledge, the most focused and succinct treatments of subject matter come in the form of a book chapter (Brunkhorst, 2007) and an article (Brunkhorst, 2012a), and the evolution of cosmopolitan statehood features systematically in Brunkhorst's Critical Theory of Legal Revolutions (Brunkhorst, 2012b), where the description of each revolution continues one section on the evolution of cosmopolitan versus particular forms of statehood during the time. 7 However, it does seem to be the case that Brunkhorst himself was initially reluctant in employing notions of statehood in the global realm.…”

“…7. Much of what is written in Brunkhorst (2012a) can in fact be found in more elaborate form in the Critical Theory of Legal Revolutions (Brunkhorst, 2012b). Notably some of Brunkhorst's thoughts on the world state can also be found in highly condensed form in an encyclopedia entry on the subject (Brunkhorst, 2010).…”