Jurisprudential Reflections on Cosmopolitan Law
Evan Fox-Decent, Jurisprudential Reflections on Cosmopolitan Law, in The Double-Facing Constitution, Jacco Bomhoff, David Dyzenhaus, Tom Poole, eds., 2019, Forthcoming
43 Pages Posted: 12 Mar 2018 Last revised: 25 May 2019
Date Written: May 8, 2019
I argue that the public law of a state that governs its interactions with outsiders -- the state’s cosmopolitan law -- must have a certain outward orientation and representative character if it is to be law, properly so-called. Drawing on interpretative and normative work with Evan Criddle on international law, I deploy a criterion of legitimacy we develop in that work to make a conceptual claim about the nature of law. This criterion lays down that for a state’s action to be legitimate with respect to a given individual, it must be intelligible as action made on behalf of or in the name of the individual subject to it, even if the state’s action sets back the interests of the individual. The criterion is both normative and conceptual, and here I argue that it can help explain and inform the conceptual moral claim that, according to Raz, all legal systems necessarily make; i.e., the claim to possess legitimate authority.
To bring the representational fiduciary criterion of legitimacy from my work with Criddle into contact with Raz’s conceptual claim, I look first to the legal effects of peremptory or jus cogens norms of international law, and in particular, the prohibition against slavery. I argue that no regime that maintains slave laws can possibly claim to assert legitimate authority over slaves, because no such regime could be understood to assert slave laws on behalf of them. Such laws manifestly violate both the fiduciary criterion of legitimacy and Raz’s conceptual condition.
The next step is to show that if the state’s cosmopolitan law does not satisfy the criterion of legitimacy in relation to outsiders, then the state treats them as possessing a status akin to slaves. I draw on the 2018 USSC decision Jennings v. Rodriguez in which Justice Breyer, dissenting, denounced the government's argument that undocumented migrants are not persons within the U.S. This policy and nativist practices, I argue, call for the state to interact with outsiders using mere coercive force rather than law. If this argument is sound, it will show that slavery is not a special case of a failure of law, and it will strengthen the argument in favour of turning to the representational criterion of legitimacy as the content of the law’s conceptual claim to possess authority. When the law speaks it makes a moral claim because, to be law rather than mere coercive force, it necessarily claims to speak in a representative capacity for everyone subject to its authority, including peaceful outsiders who arrive at the border and wish to come in.
Keywords: Raz, legitimacy, positivism, cosmopolitanism, double-facing constitution, Jennings v. Rodriguez
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