Federation is Not Only About Function: Where a Neo-Federalist Plan for Global Constitutionalism Falls Short
19 Pages Posted: 23 Oct 2013 Last revised: 5 Sep 2014
Date Written: October 22, 2013
This essay engages with Jean Cohen’s magnum opus 'Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism (CUP 2012)' by focusing on her global neo-federalist plan. It is suggested that Cohen stands out in the debate surrounding global constitutionalism with her post-statist, function-oriented notion of federation as the political form for the globalizing world order. Yet, when it comes to legality, Cohen returns to the theme of liberal legalism. I make a twofold critique of Cohen’s constitutional prognosis. First, I argue that echoing past reform movements in international law, Cohen focuses on a rule-oriented, judge-centred conception of legality. As a result, she gives short shrift to the political nature of the existing UN-centred international legal order, in which a state of exception (or emergency) still sits alongside a seemingly permanent state of legal normalcy. Second, Cohen fails to reckon that a federal union of security and peace is not only about function. While her neo-federalist plan may well apply to other governance issues, it fails to do justice to the role of the UN Security Council (UNSC) in global peace and security, thereby undermining her plan to rein in the UNSC as the stepping stone to a constitutionalized world order.
Keywords: global constitutionalism, global governance, non-statist federal union, federation vs. federal state, global neo-federalism, global state of emergency, liberal legalism, constitutional pluralism, constitutional duality of the United Nations Charter, Jean L. Cohen
Suggested Citation: Suggested Citation