Tilburg University TILT Law & Technology Working Paper No. 018/2010
46 Pages Posted: 26 Nov 2010
Date Written: November 1, 2010
The purpose of this TILT Working Paper is to elaborate the idea of regulatory cosmopolitanism and to defend its coherence against three particular sceptical challenges.
In the context of global governance, regulatory cosmopolitanism expresses two requirements: first, that regulators should always act in accordance with fundamental or universal values; and, secondly, that the regulatory scheme (and, concomitantly, regulatory action) should leave an appropriate margin for legitimate local difference or the necessary room for legitimate local exception.
Against the cosmopolitan project while some sceptics might argue that the organising idea of fundamental values is a nonsense, others might object that, even if we assume such values, there is no coherent line to be drawn between those interpretations or applications that are legitimate and those that are illegitimate; and, irrespective of such philosophical objections, other sceptics will contend that the implicit mapping of regulatory relations that underlies the cosmopolitan ideal simply does not cohere with either the actuality of global governance or an increasingly virtual regulatory space.
Having distinguished full-scale cosmopolitan projects from more modest “club” versions (the former being the target for the sceptics), the paper sets out to defend the coherence of the regulatory cosmopolitan project. At the core of the defence against the first two sceptical challenges is the idea (originating with Alan Gewirth) that agents cannot rationally deny their rights and responsibilities in relation to the generic conditions of agency - and, in my elaboration of the argument, their rights and responsibilities with regard to the protection of the agency commons. Although there are many ways in which communities of rights may articulate these founding principles of generic rights and responsibilities (and, to this extent, there is room for legitimate difference between such communities), this is not an open form of pluralism; it allows for some pluralism but relative always to the governing fundamental values. As for the third sceptical objection, it is conceded both that global governance no longer maps in a tidy way and that much interactive and transactional activity now takes place in cyberspace. Nevertheless, what this signifies is not that regulatory cosmopolitanism is an incoherent aspiration, rather that its practical realisation is challenging - but then that is nothing new.
If the sceptics are right, it has to be conceded that regulatory cosmopolitanism is not the way to get to grips with global governance. However, this paper argues that the sceptics are wrong; that there is nothing incoherent in the idea of regulatory cosmopolitanism; and that, although rising to the challenge will be difficult, this is the right focus for global governance.
Keywords: Regulatory Cosmopolitanism, Fundamental Values, Gewirthian Morality, Legitimate Difference, Margin of Appreciation, Marper, Pluralism
JEL Classification: K10, O38
Suggested Citation: Suggested Citation
Brownsword, Roger, Regulatory Cosmopolitanism: Clubs, Commons, and Questions of Coherence (November 1, 2010). Tilburg University TILT Law & Technology Working Paper No. 018/2010. Available at SSRN: https://ssrn.com/abstract=1715445