Cosmopolitan law?

• Author: Feldman, Noah

Cosmopolitanism: Ethics in a World of Strangers BY KWAME ANTHONY APPIAH NEW YORK: W.W. NORTON & CO., 2006. PP. 256. $23.95

The Ethics of Identity BY KWAME ANTHONY APPIAH PRINCETON: PRINCETON UNIVERSITY PRESS, 2005. PP. 384. $32.95

Frontiers of Justice: Disability, Nationality, Species Membership BY MARTHA C. NUSSBAUM

CAMBRIDGE: HARVARD UNIVERSITY PRESS, 2006. PP. 512. $35.00

REVIEW CONTENTS INTRODUCTION I. WHAT IS COSMOPOLITANISM? A. Political Theory and the Citizen of the World B. Prelude to Complex Cosmopolitanism II. MORALS BEYOND BORDERS A. What's Wrong with the Social Contract? B. The Social Contract and the State C. Law and the Consequences of Capabilities III. ETHICS AND OTHERS A. The Cosmopolitan Self B. Neutrality, Cosmopolitanism, and Coercion IV. COSMOPOLITAN LAW A. The Political Conception of Law 1. Political Association as a Condition of Law 2. The Political Conception and U.S. Law B. Cosmopolitan Law 1. Nature's Option 2. The Moral Argument for Universal Jurisdiction 3. Minimalist Legal Cosmopolitanism CONCLUSION INTRODUCTION

We have ethical and moral responsibilities to citizens of other countries who live far away and whose lives barely interact with ours. But do we have legal duties to those people? Do we have legal duties, that is, to people who do not personally belong to any political association to which we belong and whose governments and ours do not both belong to relevant legal or political associations? If so, are the duties reciprocal? Can we also make legal demands and impose legal liabilities on people with whom we are not joined in any meaningful form of political association?

These questions are of the utmost practical importance. In one form or another, they have haunted several of the most important decisions to face our courts and our government in recent years. What legal duties have we toward persons captured outside the United States--in Afghanistan and elsewhere--and then held outside the United States--in Guantanamo and beyond? (1) Are there some people in some places whose treatment falls entirely outside any legal order or regime? What kinds of legal claims--if any--are cognizable in U.S. courts regarding events that took place outside the United States and may not even have involved any U.S. citizens? (2)

In the realm of partisan politics, these questions have generated a range of cross-cutting answers, not all of which are internally consistent. Many on the left of the political spectrum believe that war criminals such as former Chilean dictator Augusto Pinochet should be tried by courts wherever they may be found under a theory of universal jurisdiction; yet many of these same people oppose the idea that Osama bin Laden's driver, one Salim Ahmed Hamdan, can be put on trial by the United States in Guantanamo. Meanwhile, on the right, many who embrace the Guantanamo military tribunals reject out of hand the notion of universal jurisdiction for heads of state and strongly oppose entrance by the United States into the treaty creating the International Criminal Court.

Within the U.S. government, answers to these pressing questions have been proffered by courts striving to determine and specify the law of the United States; by officials seeking to guide the executive branch with predictions of what courts might do in future cases; (3) and by legislators considering the best way to design U.S. law to accord with American values and interests. These government actors have tackled the issues from different perspectives corresponding to their different institutional roles. Although they have not always acknowledged it, each of their inquiries implicates a fundamental problem in legal theory: is political association a necessary condition for law?

Traditional liberal conceptions of law tend to hold that law, properly so called, can only exist and justifiably coerce people when it emanates from some political association such as a state, a treaty regime, or the international community (conceived as a meaningful political association). In what follows, I set out to explore the possibility that law may arise, and coercion to comply with it may be justified, even when the law does not issue from a political association. Doubtless political associations have the capacity to make law and to justify legal coercion. And any institution that applies law will probably have to be some sort of political association. But perhaps there are other ways for binding law to come into existence.

To see what these might be, I draw on the difficult, contested, but nonetheless important concept of cosmopolitanism. In particular, I consider two recent, powerful attempts--by Martha Nussbaum (4) and Kwame Anthony Appiah (5)--to make cosmopolitanism useful for political theory, and I reflect on the legal implications of these undertakings. The reason for this turn to cosmopolitanism is that, while much liberal theory treats political association as a necessary condition for law, cosmopolitanism generally directs our attention away from political associations like states as relevant makers of moral categories. By treating the individual as primary, and his or her political associations as secondary, cosmopolitanism can clear the way to imagining not only moral and ethical but also legal duties justifiably arising outside the bounds of state or other political power.

It is no coincidence, I suggest, that modern legal and political theory treats the state (or some comparable association) as the necessary source of legal obligation: these theories developed to justify the coercion characteristic of the modern state and its claim to monopolize violence. But there was law before there were modern states--law that claimed to derive its binding authority not from political association but from other sources and that was applied by institutions of very limited and certainly nonexclusive power. That law may have been capable of having the moral authority to bind through coercion--and it still may, whether it is found in failed states, where no one has a monopoly on violence, or in the international sphere, where there are many laws whose authority cannot so easily be said to derive from political association.

My argument proceeds in three steps. First, I consider briefly what is meant by cosmopolitanism itself. I then consider Nussbaum's and Appiah's arguments and investigate their implications for the question of law on which I focus. Finally, I offer three possible approaches to the problem of cosmopolitanism and law.

1. WHAT IS COSMOPOLITANISM?

   1. Political Theory and the Citizen of the World

      In today's English, a "cosmopolitan" is the kind of person who knows where to find the good tapas bars in Barcelona, the graphic artists in Osaka, the most interesting khat-fueled salon conversation in Aden. (6) A cosmopolitan judge (the standard is lower) wears English suits, speaks French or Swedish, and is not averse to citing international legal materials he or she picked up while summering in Salzburg with judges from other countries. "Cosmopolitan" is, of course, also the name of a mid-market magazine and, more tellingly, of a pinkish vodka drink (now thankfully passe) that somehow was thought to capture the glamour of the pre-9/11 cultural moment in New York.

      The evident triviality of these contemporary uses of the term bears some consideration in the light of its historical origins. Its inventor seems to have been Diogenes the Cynic (d. 323 B.C.E.), who, when asked where he came from, replied, "I am a citizen of the world [kosmopolites]." (7) Diogenes was himself an exile from his native Sinope. (8) Like his contemporary Aristotle, though unlike Socrates and Plato, he was a stranger in Athens, not a citizen. His answer, then, captured both his own sense of unrootedness and a more profound suggestion about the pointlessness of citizenship. To be a citizen of the world, Diogenes implied, is to feel at once common affective bonds with the whole world and--in the absence of any imaginable world state--to acknowledge political bonds with no one at all.

      As with most comments attributed to Diogenes, we have this cryptic statement only by secondhand report and without much context. But it is fair to say that, as in many of his recorded remarks, Diogenes intended some complicated combination of superficial parody and foundational depth. His suggestion would have been deeply subversive of contemporary Greek ideals of the virtue of participatory citizenship. (9) Indeed, Diogenes's whole career may be read as a sort of critical send-up of the familiar Athenian virtues of action and contemplation. Asked what sort of a man he considered himself to be, he replied, "A Socrates gone mad." (10)

      Diogenes, then, was not a theorist of the polis, but a gadfly. His coinage was meant to call into question the centrality of political allegiance as a category of self-construction. So it is intriguing that today, political theorists in particular use the term "cosmopolitan" in a serious, distinctive, and developed way.

      It was not always thus. As its name implies, political theory is primarily directed toward the relations formed within and around the polls. The polis has been, in its day, a city, a kingdom, and even, for some theorists, a religious community like St. Augustine's City of God (11) or the umma of the Muslims. (12) In the modern era, however, the polls par excellence has been the state. Consequently, political theory since Thomas Hobbes's Leviathan (13) has focused largely on the functioning of states. With its three epochal wars among states, (14) the twentieth century seemed to confirm the value of this state-centered focus. The most influential work of political theory written during the third--or "cold"--war of the century was John Rawls's A Theory of Justice, (15) which focused mainly on evaluating the distributive arrangements adopted internally by states. (16)

      The end of the twentieth century, however, led...