Cosmopolitan Law and the Courts
Postdoctoral fellow Claudio Corradetti has edited an issue of Transnatioal Legal Theory on "Cosmopolitan Law and the Courts". In addition to the introduction, Corradetti has contributed with the article "Judicial cosmopolitan authority". Andreas Føllesdal has contributed with the article "Building democracy at the Bar: the European Court of Human Rights as an agent of transitional cosmopolitanism" to the same issue.
Judicial cosmopolitan authority
In this article, I conceptualise the notion of cosmopolitan authority as a form of legitimate exercise of judicial power. I take as my starting point Raz’s paradox of autonomy versus authority and consider that its solution depends on the formulation of a ‘cosmopolitan justification condition’. Next, I consider how this standard is reflected in recent judicial practice and conclude that ‘judicial cosmopolitan authority’ is both a theoretically desirable and practically feasible ideal. Finally, I examine instances of judicial cosmopolitan authority against the backdrop of the construction of global constitutional trajectories and highlight the progressive consolidation of the notion of ‘cosmopolitan constitutionalism’. I submit that this is the result of ‘transitional’ progressions and approximations, something different from the idea of ‘constitutional moments’ or ‘constitutional revolutions’.
Building democracy at the Bar: the European Court of Human Rights as an agent of transitional cosmopolitanism
How, if at all, does the European Court of Human Rights (ECtHR) promote more just states which vary greatly in their democratic credentials? The article considers the ECtHR and its practices from the perspective of ‘non-ideal theory,’ namely how it helps states become more stable and just, and more compliant with the human rights norms of the European Convention on Human Rights. The article first sketches what is meant by ‘non-ideal theory,’ then considers aspects of the Council of Europe and the ECtHR which promote transitions toward more just member states. The ECtHR’s practices suffer from at least two weaknesses in this regard: it assumes with insufficient argument that standards appropriate for ‘ideal theory’ conditions of full compliance also should apply to states that suffer from wide ranging noncompliance, or from unjust institutions. Secondly, the Court relies on an ‘emerging European consensus’ with insufficient empirical and normative justification.