(Key Ideas) Robert Fine-Cosmopolitanism (Key Ideas) - Routledge (2008) PDF

Cosmopolitanism
The idea of cosmopolitanism is increasingly in circulation both in

the social sciences and in the language of everyday life. There is,
however, much uncertainty about what it means, what it refers to
and what role it plays in social scientific thinking.
In this book Robert Fine explores the concept of cosmopolitanism,

its contribution to critical thought, and its application to a number
of pressing political issues: taming global marketisation, resisting
the resurgence of nationalism and fundamentalism, constructing
transnational forms of political community, enhancing the role
of international law and human rights, prosecuting crimes against
humanity and assessing the legitimacy of humanitarian military
intervention. He explores the idea of cosmopolitanism both as a
description of social reality and as a key element in the life of the
modern mind.
Cosmopolitanism offers an innovative discussion of the social, legal

and political dimensions of the cosmopolitan turn in the social sci-
ences. It should be of interest to students and researchers in the
fields of social theory, sociology, political theory, cultural studies,
international relations and law.
Robert Fine is Professor of Sociology at the University of Warwick,

UK. He has been engaged in theoretical research in the areas of
natural law and social theory, cosmopolitan social theory and
more empirical research in the areas of racism, anti-Semitism and
nationalism.
KEY IDEAS
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Designed to compliment the successful Key Sociologists, this series covers

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and original treatments of their subject matter. The books will be useful to
students and teachers of sociology, political science, economics, psychology,
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Citizenship Risk
Keith Faulks Deborah Lupton
Class Sexuality – second edition

Stephen Edgell Jeffrey Weeks
Communi Social Capital

Gerard Delanty John Field
Consumption Transgression
Robert Bocock Chris Jenks
Globalization - second edition The Virtual

Malcolm Waters Rob Shields
Lifestyle Social Identity – second edition

David Chaney Richard Jenkins
Mass Media Culture – second edition

Pierre Sorlin Chris Jenks
Moral Panics Human Rights

Kenneth Thompson Anthony Woodiwiss
Old Age Childhood – second edition

John Vincent Chris Jenks
Postmodernity Cosmopolitanism
Barry Smart Robert Fine
Racism – second edition

Robert Miles and
Malcolm Brown
Cosmopolitanism
Robert Fine
First published 2007 by Routledge
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© 2007 Robert Fine
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reproduced or utilised in any form or by any electronic, mechanical,
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British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data

Fine, Robert, 1945–
Cosmopolitanism/Robert Fine.
p. cm.
Includes bibliographical references.
1. Cosmopolitanism. I. Title.
JZ1308.F56 2007
306–dc22
2007016118
ISBN 0-203-08728-3 Master e-book ISBN
ISBN10: 0–415–39224–1 (hbk)

ISBN10: 0–415–39225–X (pbk)
ISBN13: 978–0–415–39224–2 (hbk)

ISBN13: 978–0–415–39225–9 (pbk)
To Shoshi, with love
Contents
Preface ix
Acknowledgements xviii
1 Taking the ‘ism’ out of cosmopolitanism: laying out the field 1

The new cosmopolitanism within the social sciences 2
Ulrich Beck and the critique of methodological nationalism 6
The critique of the critique of methodological nationalism 9
Post-universalism and the modern state 14
The cosmopolitan vision 17
Cosmopolitanism and its critics 19
2 Cosmopolitanism and natural law: Kant and Hegel 22

Kant’s theory of cosmopolitanism 22
Hegel’s critique of Kant’s cosmopolitanism 29
Violence and the modern state 36
3 Cosmopolitanism and political community: the

equivocations of constitutional patriotism 39
Constitutional patriotism and cosmopolitanism 41
Constitutional patriotism and German nationalism 44
Constitutional patriotism and the turn to Europe 48
Constitutional patriotism and democracy 52
Cosmopolitanism and natural law theory 56
4 Cosmopolitanism and international law: from the ‘law of

peoples’ to the ‘constitutionalisation of international law’ 59
Cosmopolitan democracy and global civil society 60
John Rawls and the Law of Peoples 63
The constitutionalisation of international law 69
The limits of constitutionalisation 73
viii contents
5 Cosmopolitanism and humanitarian military intervention:

war, peace and human rights 78
Dealing with ambivalence 82
Debasing the coinage 90
Law and judgement 93
6 Cosmopolitanism and punishment: prosecuting crimes

against humanity 96
Arendt and Jaspers: Nuremberg 97
Arendt and Jaspers: the Eichmann trial 101
Strategies of denial 104
Cosmopolitanism and Holocaust uniqueness 111
7 Cosmopolitanism and the life of the mind: the critique of

nihilism 115
The equivocations of thinking 118
The equivocations of willing 122
Judgement and understanding 125
Nihilism and cosmopolitanism 130
Conclusion: the elements of a cosmopolitan social theory 133
Bibliography 155
Index 171
Preface: twenty-one theses on
cosmopolitan social theory
1 The idea of cosmopolitanism existed long before that of

nationalism. It started with the ancient Greeks and has since
played a pivotal part within social and political thought. In
the closing years of the eighteenth century Kant wrote of the
‘cosmopolitan condition’ as a rational necessity linking nations
together on the grounds that in the modern age ‘a violation
of rights in one part of the world is felt everywhere’ (Kant
1991: 107–8). In the early nineteenth century Hegel declared
it a matter of ‘infinite importance’ that ‘a human being counts
as such because he is a human being, not because he is a Jew,
Catholic, Protestant, German, Italian, etc.’ (Hegel 1991: §209R).
In the mid-nineteenth century Karl Marx wrote of capitalism as
a world system deeply disintegrative of nation-states and saw
worldwide capitalism as the base on which the project of human
emancipation and a science of human association could be built
up. At the turn of the nineteenth and twentieth centuries the
sociologist Emile Durkheim looked to the coming of a ‘world
patriotism’ or cosmopolitanism in which ‘societies can have
their pride, not in being the greatest or the wealthiest, but in
being the most just, the best organised and in possessing the
best moral constitution’ (Durkheim 1992: 74–5). In the 1970s
the sociologist Raymond Aron wrote that the technological
unification of the world under the register of ‘industrialism’ had
become the infrastructure upon which a deeper recognition of
human unity could be achieved, that ‘the dialectic of universality
is the mainspring of the march of history’ (Aron 1972: 306) and
that the ‘move from a national to a human frame of reference’ is
the challenge facing sociology (Aron 1972: 200). Today Ulrich
Beck writes of ‘the cosmopolitanisation of reality’ that results
from the fact that humanity now faces common global risks
and argues that the move from ‘methodological nationalism’ to
‘methodological cosmopolitanism’ is the key challenge facing
sociology.
x preface
2 Cosmopolitan social theory is a collective endeavour to build a

science of society founded on a claim to universalism. Its basic
presupposition is that the human species can be understood
only if it is treated as a single subject, within which all forms
of difference are recognised and respected but conceptualised
as internal to the substantive unity of all human beings.
Universalism, based on the global reach of modernity and
the ultimate unity of humankind, is both its methodological
approach to understanding the world and its normative approach
to changing the world.
3 Cosmopolitan social theory reconstructs the history and
traditions of social theory in terms of its universalistic concept
of society, the recognition of differences within a universalistic
frame, and the critique of methodological and political
nationalism. It stands firm against approaches to understanding
and changing society grounded in nationalist, racist, sexist or
anti-Semitic presuppositions. Cosmopolitan social theory is in
this sense no more than social theory made mindful of its own
cosmopolitan spirit.
4 Part of this book takes the form of a critical engagement
with what I call the ‘new cosmopolitanism’ within the social
sciences. I criticise the new cosmopolitanism not for being
cosmopolitan but for not being cosmopolitan enough. It
attaches cosmopolitanism to an already strong and confident
sense of belonging (whether it is Ghanaian village society, or
post-war German constitutional democracy, or the European
way of life, or indeed American democracy). It leaves intact a
conventional notion of belonging, in which individuals know
intimately the contours of their world, and it only supplements
this sense of belonging with a universal element. For me, the
appeal of cosmopolitanism has to do with the idea that human
beings can belong anywhere, humanity has shared predicaments
and we find our community with others in exploring how these
predicaments can be faced in common. Cosmopolitan social
theory is at its most powerful in addressing the needs of those
who are outside or on the margins of the nation.
5 I criticise the new cosmopolitanism for its claim to be new. It
has to misrepresent the tradition of social theory as resolutely
‘nationalist’ in order to re-present itself as newly cosmopolitan.
preface xi
There is a sense in which the new cosmopolitanism is not new

enough. The roots of cosmopolitanism lie in the tradition of
natural law theory. Kant is its best-known representative. That
the new cosmopolitanism ‘returns’ to Kant because it has not
cut its roots in natural law theory. It modernises natural law.
It extends natural law. It carries the logic of natural law to
its universalistic conclusion. But it remains firmly within the
premises of natural law.
6 I use the term ‘cosmopolitan social theory’ not to indicate a
wholesale rejection of the natural law tradition nor to indicate
that I or anyone else has found the master key to overcoming
natural law theory, but rather to call for a critical engagement
with this tradition. Cosmopolitan social theory emphasises the
bridge between cosmopolitanism and social theory, between
the natural law origins of cosmopolitanism and its application
to the empirical realities of modern political community. The
distinction I am making between the ‘new cosmopolitanism’
and ‘cosmopolitan social theory’ is analytical rather than
substantive. Most of us who work in this area doubtless fall
somewhere in between.
7 In its external manifestation, cosmopolitanism is a social form
of right. It is realised in particular institutions, laws, norms and
practices. If we conceive of modernity as a system of rights,
then cosmopolitanism refers to the emergence of new forms
of right in the sphere of inter-societal relations. These include
international laws, international organisations such as the UN,
international courts, global forms of governance, the idea of
human rights, declarations and conventions on human rights,
and mechanisms for securing peace between nations.
8 Cosmopolitan right presupposes a complex network of already
existing social forms of right: first, the idea of right itself and its
division into property rights, civil rights and rights of political
participation; second, the ‘moral point of view’ that declares
that individuals have the right to judge for themselves and
should look inward to determine what is right and wrong; third,
family and private life in which rights of love and friendship
are meant to take pride of place; fourth, the rights of civil
society and its constituent elements – the market, the system
of justice and civil and political associations; and, finally, the
xii preface
rights of the nation-state and its constituent elements – the

constitution, the sovereign, the executive, the legislature and
the judiciary. Cosmopolitanism is predicated, logically but not
always historically, on the prior emergence of these social forms
of right. In some circumstances the order of historical sequence
might be reversed and cosmopolitan rights might precede other
forms of right.
9 The emergence of cosmopolitan right is necessary because of
the conflicts which tear apart all preceding forms of right and
it is possible because of developments in the sphere of inter-
societal relations. The contradictory nature of all forms of right
indicates that the emergence of cosmopolitan right should not
be seen as the apex of modernity, the culmination of the idea
of right as such, or as the synthetic moment within which all
previous divisions and conflicts are resolved. Cosmopolitanism
is one element among many and contains within itself all that is
worrying about every other social form of right. The validity of
cosmopolitan forms of right is relative to other forms of right,
including those of the nation-state, and it is never absolute.
10 Once cosmopolitanism emerges as a determinate social form,
it transforms that which precedes it. It impacts upon the
deployment of civil and political rights, on the exercise of
moral judgements, on the practices of love and friendship, on
the organisation of civil society and on the formation of the
nation-state. Social life can never be the same again.
11 In its broad sense the ‘cosmopolitan condition’ (Kant’s phrase)
refers to the reconfiguration of the whole system of right once
cosmopolitan forms of right are consolidated and impact on the
whole. Modern political community is a complex and conflicted
architectonic. It comprises a web of interrelated social forms.
Cosmopolitan forms of right belong to this larger totality.
Cosmopolitan social theory acknowledges the accomplishments
of political modernity in developing a universal conception of
humanity and it looks to the growth of new social forms to
sustain this conception of humanity.
12 Cosmopolitan social theory maintains that to protect the old
rights under current conditions, it is vital to construct new
guarantees of human rights, new forms of law, new fields of
public life, new political entities, new international institutions,
preface xiii
new avenues of mobility and not least new ways of thinking

and acting in the world. It makes no assumption either that
cosmopolitan social forms supersede the nation-state or that
they are reconcilable with existing forms of the nation-state.
Cosmopolitan social theory is a transformative as well as
analytical project.
13 Subjectively, cosmopolitanism is a form of consciousness that
involves an understanding of the concept of cosmopolitanism
and a capacity to deploy this concept in imaginative and
reflective ways. The ‘objective’ and ‘subjective’ aspects of
cosmopolitanism belong closely together. The concept is
nothing without its uses. It is the social form in which human
beings struggle for mutual recognition as equals in the context of
our multiple differences. Cosmopolitan social theory reconciles
itself to the equivocations of cosmopolitanism and its effort to
construct a normative perspective compatible with modernity’s
global reach, enlightened heritage and emancipatory promise.
1 4 Since Kant first thought about the cosmopolitan condition
and what it is to view modernity from a cosmopolitan point
of view, the downside of cosmopolitanism has always been on
the agenda. Not every critique of methodological or political
nationalism is cosmopolitan. Kant referred to the dangers of a
world state, that it might conceal the interests of a world power
or present its particular interests as if they were the universal
interests of humanity or that it might itself secure a monopoly
over global power. Today, with the experience of totalitarianism
behind us, we know that global movements can be distrustful
of national parochialism, transgressive of national borders and
destructive of national unities and still pose a far greater threat
to the idea of right than that posed by nations. Indeed, they can
treat broad swathes of the global population as superfluous to
requirement. The shadow of totalitarianism hangs over every
effort to develop cosmopolitan social theory.
15 The sociological tradition includes many attempts to apply
cosmopolitan ideas to modern political conditions. In his
study of The Germans Norbert Elias follows the lead offered
by Max Weber in emphasising the social pacification over
time of intra-societal conflicts through the exercise of self-
discipline on the part of individuals and the monopolisation of
xiv preface
the means of violence on the part of the state. He argues that

at the inter-societal level, however, sociology has little to say
about the absence of self-discipline among nation-states and
the absence of legitimate authority able to restrain states from
acts of violence. Elias articulated this absence as a problem for
sociology: ‘There is no monopoly of force on the international
level. On this level we are basically still living exactly as our
forefathers did in the period of their so-called ‘barbarism’ (Elias
1997: 176–7). The normative vista advocated by Elias was to
establish social institutions at the inter-societal level equivalent
to those found at the intra-societal level – institutions that
could instil the habit of self-discipline on the part of states and
determine, if not monopolise, the legitimate use of violence at
the international level. Elias recognised that the monopoly of
physical force by the state can be a dangerous weapon in the
hands of the wrong people. Following Weber, the solution he
looked to at the intra-societal level was not to dissolve the state
monopoly of physical force but establish a form of state and a
coterie of political actors who would not abuse this power. Elias
conceived the task at the inter-societal level analogously: to
establish a form of international federation that would have the
authority to determine the legitimate use of violence and instil
self-discipline on the part of nation-states without abusing the
powers granted to it.
16 In the preface to The Origins of Totalitarianism Hannah Arendt
writes that
Anti-Semitism, imperialism and totalitarianism have

demonstrated that human dignity needs a new guarantee
which can be found only in a new political principle, a new
law on earth, whose validity this time must comprehend
the whole of humanity, while its power must remain strictly
limited, rooted in and controlled by newly defined territorial
entities.
(Arendt 1979: ix)
She argued that world government provides no solution for it

had its own capacity for barbarism:
preface xv
It is quite conceivable . . . that one fine day a highly

organized and mechanized humanity will conclude quite
democratically . . . that for humanity as a whole it would be
better to liquidate certain parts thereof.
(Arendt 1979: 299)
Arendt seeks to demonstrate that ‘Universality’ in the modern

age can mean only the universality of rights, that is, the right of
all human beings to have rights and the establishment of political
conditions capable of supporting the universality of rights: ‘the
right to have rights, or the right of every individual to belong
to humanity, should be guaranteed by humanity itself ’ (Arendt
1979: 298).
17 The downfall of the right to have rights was not in the past
external to our civilisation and it remains an immanent
possibility for the future. The narrative of downfall is closely
tied to the history of the nation-state. The break-up of empires
after the First World War was accompanied by the rise of
nationalist movements proclaiming the right of nations to self-
determination. The principle of national self-determination,
advanced by nationalist movements and representatives of the
Great Powers was a principle of freedom, but it inverted the
relation between state and nation. It proclaimed that the nation
defines the state, the state does not define the nation. Since
there was practically no territory that did not contain a mix of
different peoples, this principle created its own exclusions:
If in a mixed area one group makes good a territorial claim and

establishes a nation-state, other groups will feel threatened
and resentful. For them to be ruled by one group claiming to
rule in its own national territory is worse than to be governed
by an empire which does not base its title to rule on national
grounds.
(Kedourie 1993)
Many of those who lived together, albeit unequally, in the old

empires now found themselves belonging to conflicting nation-
states. Many were treated as minorities or second-class citizens
within these newly defined states. Many were expelled because
xvi preface
they did not belong to the nation-state. Many were displaced

and deprived of the political community that might grant them
the right to have rights. It was but a short step to ascribe their
lack of rights to their own natural deficiencies. Totalitarian
movements exploited the plight of ‘pariah’ peoples (today’s
undocumented migrants and asylum seekers) to characterise
those deprived of rights as unworthy or incapable of possessing
rights: ‘If the world is not yet convinced that the Jews are
the scum of the earth’, Hitler wrote, ‘it soon will be when
unidentifiable beggars, without nationality, without money and
without passports cross their frontiers’ (Arendt 1979: 269).
Once the right to have rights was repudiated for pariah people,
it was but another short step to repudiate the idea of right itself.
In this context the idea of the rights of man became the marker
of what Giorgio Agamben calls ‘naked man’: one who has lost
everything – country, home and place in the world (Agamben
1998).
18 The point of cosmopolitan social theory is to resist not to
endorse the results of this process. Cosmopolitan social theory
is an attempt to face up to and resist the transforming violence
of the modern age. It does so not so much in the name of
‘human right’, which is today a particular sub-category of rights
in general, but in the name of the right of every human being to
have rights.
1 9 Cosmopolitan social theory is not a fashion due to be
abandoned as new fashions enter the academic, intellectual or
political marketplace. If the new cosmopolitanism makes the
inflated claim that humanity is entering a period of universal
human rights, perpetual peace and global governance, this
is quickly matched by a reactive disillusionment which holds
that nothing has changed, the world is an ever more dangerous
place, we are subject to a new imperialism, and self-interest,
bigotry, contingency and violence continue to be the true
motor of human history. Cosmopolitan social theory is the
enemy of the politics of disillusionment. Cosmopolitan social
theory recognises that human history often looks more like
a ‘slaughter-bench’ (Hegel’s term) than a universal history
reaching towards a cosmopolitan end. However, this indicates
only that cosmopolitanism is no simple topic but a complex and
preface xvii
difficult phenomenon that taxes the resources of social theory.

It creates as many clouds as it clears.
20 Cosmopolitan social theory understands social relations
through a universalistic conception of humanity and by means
of universalistic analytical tools and methodological procedures.
Its simple but by no means trivial claim is that, despite all
our differences, humankind is effectively one and must be
understood as such.
2 1 This book is as much an exercise in cosmopolitan social
theorising as it is a discussion of cosmopolitanism itself.
Acknowledgements
This book is the latest issue of some ten years’ writing in the area of
cosmopolitanism and social theory. In the course of this time I have
had many people to thank for exchanging ideas, putting me right
when I was wrong, having faith in my work and keeping me going
in this area when other attractions were on offer. I want to acknowl-
edge in particular two of my former doctoral students who have
rapidly become independent and internationally renowned scholars
in their own right: Dr Daniel Chernilo, Associate Professor in the
Department of Sociology, Universidad Alberto Hurtado, Chile, and
Dr William Smith, Lecturer in the Department of Politics, University
of Dundee. I owe a particular debt to Dr Chernilo for his work on
cosmopolitanism and the history of social theory and to Dr Smith
for his work on the normative implications of cosmopolitan social
theory. You will see from the bibliography that this book has a debt
to the joint work I have done with both these colleagues. I have
received extraordinarily helpful comments, warnings and encourage-
ment from Vivienne Boon, Philosophy, Liverpool; Professor Robin
Cohen, Sociology, Warwick; Dr Glynis Cousin, Higher Education
Academy; Professor Gerard Delanty, Sociology, Sussex; Alison
Diduck, Law, UCL; Professor Alessandro Ferrara, Philosophy,
Rome; Dr David Hirsh, Sociology, Goldsmiths; Professor Maria Pia
Lara, Philosophy, University Autonóma Metropolitana, Mexico;
Professor Lydia Morris Sociology, Essex; Professor Alan Norrie,
Law, King’s London; Professor Istvan Pogany, Law, Warwick; Dr
David Seymour, Law, Lancaster; Dr Charles Turner, Sociology,
Warwick; Dr Rolando Vazquez, Sociology, Gothenburg; and
Lawrence Welch, NHS, Bradford. My thanks too to the ESRC New
Securities Programme for funding my project on ‘Cosmopolitanism
and military intervention: the elaboration of a paradigm’ and to
the organisers of the Annual Symposium on Philosophy and Social
Science, Prague, for providing a particularly genial as well as produc-
tive forum for presenting ideas.
1
Taking the ‘ism’ out of
cosmopolitanism
Laying out the field
The physical dismantling of the Berlin Wall in 1989 offers a com-

pelling image of the breaking down of boundaries maintained by
force and of the re-opening of suppressed forms of human contact.
This event appropriately marked the emergence of a new intellectual
and political movement that is itself international and places human
rights, international law, global governance and peaceful relations
between states at the centre of its vision of the world. When we
speak today of the ‘new cosmopolitanism’ it is this movement that
we have in mind.
Within the social sciences cosmopolitanism has evolved since
1989 into a vibrant, interdisciplinary movement with its own dis-
tinctive research agenda (for edited collections see, for example,
Archibugi 2004a; Archibugi et al. 1998; Beck and Sznaider 2006;
Boon and Fine 2007; Breckenridge and Pollock 2002; Cheah and
Robbins 1998; Held and McGrew 2002; Vertovec and Cohen 2003).
The contours of this movement are not always well defined and it
is traversed internally by all kinds of fault lines; and yet the new
cosmopolitanism is an identifiable current gravitating around a
2 taking the ‘ism’ out of cosmopolitanism
number of shared commitments. These include: (a) the overcom-

ing of national presuppositions and prejudices within the social
scientific disciplines themselves and the reconstruction in this light
of the core concepts we employ; (b) the recognition that human-
ity has entered an era of mutual interdependence on a world scale
and the conviction that this worldly existence is not adequately
understood within the terms of conventional social science; and (c)
the development of normative and frankly prescriptive theories of
world citizenship, global justice and cosmopolitan democracy. The
dividing lines between these differentiated conceptual, societal and
normative concerns are by no means always clear and it is possible
to accept one without the other. All the social scientific disciplines
have their own particular story to tell, though one of the strengths
of the new cosmopolitanism from the start has been that it is an
interdisciplinary project and that all its intradisciplinary stories are
the products of considerable exchange across the disciplines.
The new cosmopolitanism within the

social sciences
In the field of international law cosmopolitanism displays a logic
that extends the scope of the discipline and to some extent tran-
scends its origins. International law is conventionally conceived
as a form of law which recognises the individual nation-state as
its unit of analysis and advances national self-determination and
non-interference in the internal affairs of other states as its guiding
principles. It imagines a world of sovereign freedom constrained by
few international rules to constrain the behaviour of governments
towards other states and towards their own citizens and subjects.
Cosmopolitanism seeks to extend the reach of international law
beyond issues of state sovereignty. It concerns itself with the rights
and responsibilities of world citizens. One of the key problems it
addresses is that some of the worst violators of human rights can
be states or state-like formations. Whilst international law has tra-
ditionally developed according to the principle that every state is
sovereign within its own territory, cosmopolitanism endorses legal
limitations on how rulers may behave towards the ruled; and whilst
international law leaves it to states to protect the rights of individu-
als, cosmopolitanism looks also to the formation of international
taking the ‘ism’ out of cosmopolitanism 3
legal bodies above the level of nation-states to perform this function.

To be sure, there is a substantial grey area between state-centred and
cosmopolitan conceptions of international law, but the core analyti-
cal distinction is between the conventional form of international law
that recognises only states as legal subjects and limits the role of
international bodies to that of protecting the sovereign rights of
states and the cosmopolitan form of international law that extends
its reach to the rights of individuals and freedoms of civil society
associations on the one hand and to the widening legal authority of
international bodies on the other (Archibugi 1995; Douglas 2001;
Eleftheriadis 2003; Falk 1998, 1999; Hirsh 2003; Robertson 2006;
Sands 2003, 2006).
In the field of international relations cosmopolitanism also con-
tains a logic that extends the scope and transcends the origins of the
discipline. The ‘realist’ mainstream of international relations holds
that the state is the ultimate source of authority and by implica-
tion that there is no legal or moral authority beyond the plurality of
sovereign states. In mainstream international relations the idea of an
international system composed of independent and sovereign states,
called ‘Westphalian’ after its origins in the Treaty of Westphalia of
1648, provides its normal point of departure. In realist international
relations this ‘anarchic’ system of sovereign states is regarded as
a natural and immutable order, a given for all analytical purposes,
or in more historically informed accounts as a rational outcome of
modernisation processes finally achieved at the end of history. The
new cosmopolitanism criticises realism for its readiness to ration-
alise a system of sovereign states that is in fact historically specific
and normatively conditional. It emphasises that the sovereignty of
the state is itself a product of history rather than a permanent fea-
ture of the human condition and that its origins are to be explained
rather than its ontological status assumed. It entertains the thought,
excluded by realism, that the Westphalian system of sovereign states
is in fact being surpassed. It breaks down the categorical distinction
it sees in realism between the domestic field, in which individuals
freely submit to the state as to their own rational will, and the inter-
national field, taken to be devoid of all ethical values. It rejects the
temporal matrix which declares that inside the state progress can be
accomplished over time but that outside there can be only an eternal
repetition of power and interest. And it repudiates the intellectual
rationalisation of a political order based on a lack of moral and legal

inhibition as to how states relate to one another and especially as to
how they relate to their own citizens and subjects. Its basic intuition
is that many of the assumptions of the Westphalian model are still
operative in international relations today but that the conditions for
the reconstruction of international relations along cosmopolitan
lines are now ripe (Bartelson 2001; Brown 2006; Doyle 1993; Held
1995a; Linklater 1998).
In the field of political philosophy the new cosmopolitanism is
usually based on the revival of ideas of universal history, perpetual
peace and cosmopolitan justice developed in the eighteenth century
and formalised by Kant around the time of the French Revolution.
The core contention is that the cosmopolitan ideals of Enlightenment
thought are once again pertinent to our own times. The new cos-
mopolitanism sets itself the task of ironing out inconsistencies in
Kant’s way of thinking, radicalising it where its break from the old
order of sovereign states was incomplete, freeing it from the old
metaphysical baggage, elaborating linkages between peace and social
justice which Kant neglected, and applying it to a radically trans-
formed social context. The basic agenda of cosmopolitan political
philosophy is to ‘think with Kant against Kant’ in reconstructing
the cosmopolitan ideal for our own times. A crucial aspect of this
programme is to reassess the normative value of nationalism. While
advocates of the new cosmopolitanism are prepared to acknowledge
that nationalism may have had value in the past, not least in the pur-
suit of anti-colonial struggles or in the building of modern welfare
states, they renounce the idea that solidarity ties must be conceptu-
ally linked to the nation-state and pronounce the death of national-
ism as a normative principle of social integration. The credo of the
new cosmopolitanism is that the universalistic character of the idea
of right, once swamped by the self-assertion of one nation against
another, is best suited to the identity of world citizens and not to
that of citizens of one state against another (Apel 1997; Archibugi
1995; Cavallar 1999; Fine 2001a, 2003a; Habermas 1998, 2001; Hoffe
2006; Kant 1991; Kuper 2000; Lara and Fine 2007; Nussbaum 2002;
O’Neill 2000; Pogge 2001; Rawls 1999; Smith and Fine 2004).
My final example is in the field of sociology and social theory. Here
the rise of cosmopolitan thinking is closely aligned with attempts
to dissociate the core concepts of social theory, especially that of
‘society’ itself, from the presuppositions of the nation-state. It is

argued that a strong notion of national society has prevailed within
the sociological tradition as a result both of the discipline’s own
nationalistic consciousness and of the actual solidity and expansion
of national societies during the time of sociology’s development.
The new cosmopolitanism maintains that the concept of ‘society’
was shaped at birth by a coincidence between the rise of sociology
as a discipline and the formation of nation-states as the modern
form of political community. It emphasises the historicity of this
conceptual framework and its inappropriateness for understanding
social life in an age of globalisation. Its conviction is that the old
national framework of sociological analysis is no longer capable of
dealing with the major social transformations currently taking place
under the register of globalisation: the proliferation of connections
between societies, the growth of power structures outside national
frameworks of accountability; the proliferation of global risks (of
an ecological, political, economic, epidemic, criminal and terrorist
character) that have no respect for national boundaries; the increas-
ing movement of people across national frontiers and the resulting
heterogeneity of populations in most modern societies; growing
numbers of undocumented migrants and asylum seekers; and the
increasing importance of international political and regulatory bod-
ies. The new cosmopolitanism holds that such changes in social life
indicate the need for a corresponding change in social theory – one
which takes the world and not the nation-state as its primary unit
of analysis. Its project is to free social theory from a world that
no longer exists and overcome those categories of understanding
and standards of judgement which depend on a moribund national
framework (Albrow 1996; Beck 2006a; Castells 2000; Delanty 2000;
Urry 2000).
This brief outline of the parameters of the new cosmopolitan-
ism is anything but exhaustive; it is intended only to illustrate the
parameters of the new cosmopolitanism within the social sciences
and how the new cosmopolitanism presents itself in this context. At
the core of the cosmopolitan project is the notion that social science
has in the past made its peace with the nation-state and the convic-
tion that this reconciliation with reality must now be overcome. The
new cosmopolitanism is an endeavour to denature and decentre the
nation-state – to loosen the ties that bind the nation-state to theories
of democracy in political theory, theories of society in sociology,

theories of internationalism in international relations, theories of
sovereignty in international law and theories of justice in political
philosophy. We should add theories of culture in cultural studies
and theories of space in human geography. Its critical function is to
emancipate social science from its bounded national presuppositions
and construct new analytical concepts appropriate to globalising
times. My question, however, is whether the new cosmopolitanism
is as new or as cosmopolitan as it suggests. To explore this issue
further, I am now going to narrow my focus and concentrate for
a moment on the work of one sociologist who has arguably done
more than any other to construct the new cosmopolitanism over the
last decade: Ulrich Beck.
Ulrich Beck and the critique of

methodological nationalism
In a path-breaking series of essays and books spanning the last dec-
ade (1998a, 2000a, 2000b, 2002a, 2002b, 2003, 2006a, 2006b, 2007)
Beck has campaigned persistently and urgently for the overcoming
of the tradition of ‘methodological nationalism’ within sociology
and for the development of a ‘methodological cosmopolitanism’ in
its place. I want to address here one aspect of his multifaceted work:
the time-consciousness, that is, the conception of past, present and
future, which informs his cosmopolitan vision. The rigidities of
how he conceives the relation between past and future may serve
as an exemplar of a wider problem within the new cosmopolitanism
– and one that rightly worries the most astute observers (Chernilo
2007a,b, 2008a).
Beck argues that traditional sociology has equated the idea of
‘society’ with the nation-state and that it has simply assumed that
humanity is naturally divided into a limited number of nations: ‘It is
a nation-state outlook’, Beck writes, ‘that governs the sociological
imagination’ (Beck 2002b: 51). He maintains that the solidity and
self-sufficiency of the nation-state are now being shattered and that
this social transformation places upon sociology the responsibil-
ity to re-invent itself as ‘a transnational science . . . released from
the fetters of methodological nationalism’ (Beck 2002b: 53–4). He
writes of the ‘obsolescence’ of traditional social theories and their
‘zombie categories’ and looks to the emancipation of social theory

from the old ‘container theory of society’. Beck sees the canon and
tradition of social theory dominated by the conceptualisations of
methodological nationalism: ‘The possibility that the unity of state
and nation might dissolve, disintegrate or undergo a complete trans-
formation remains beyond the purview of the social sciences’ (Beck
2006a: 29). He stands for the replacement of the old ‘methodological
nationalism’, which used to dominate the social sciences, with a new
‘methodological cosmopolitanism’ that is capable of tackling ‘what
had previously been analytically excluded’ (Beck 2002b: 52). Beck
concedes we can find partial arguments in the history of sociology
that point beyond methodological nationalism, but is insistent that
there has been no serious questioning within sociology of the unity
of state and nation until the emergence of the new cosmopolitanism
itself.
The critique of ‘methodological nationalism’ actually goes back
to the 1970s when a number of sociologists, including Anthony
Giddens (1973) and Herminio Martins (1974), argued that a major
defect of existing social science was the treatment of nation-states
as if they were closed, autonomous and self-contained units. Their
contention was that the limited vision of methodological national-
ism led to predominantly endogenous explanations of social change
and that this explanatory bias had to be rectified (Smelser 1997;
Wagner 1994). Beck radicalised this critique of prevailing sociologi-
cal theories of social change and turned it into a far more general dis-
satisfaction with the sociological tradition (Chernilo 2006a, 2006b,
2007a). He presents the critique of methodological nationalism not
so much as a contribution within the tradition of social theory but
as a major rupture in the history of social theory – one made neces-
sary by the era of radical epochal change in which we now live.
Now, a sense of rupture, of epochal change is widely shared
within social theory. It is evident, for instance, in the classification
of modernity into ‘periods’: modernity and postmodernity, high
modernity and late modernity, first modernity and second moder-
nity, solid modernity and liquid modernity, national modernity and
postnational modernity. It is a vital part of social theory to identify
what is new in social and political life and to think about what this
entails for social and political thought. We cannot assume that old
concepts suffice to convey new phenomena. For example, it can be
positively misleading to assume that concepts of power drawn from

a pre-totalitarian age will be sufficient to understand the unprec-
edented forms of terror and annihilation brought into existence
by totalitarian movements. We must always question whether the
words we use have caught up with our experiences.
However, the sense of epochal change that plays so large a role
in social theory can itself be misleading if it simply makes a cult out
of novelty. We live in an age in which ‘the new’ is proclaimed from
every advertising banner and contemporary social theory is itself a
creature of our age. It too is inclined to speak freely of new forms
of democracy, new forms of war, new types of personal relationship
and so forth. Too often however, it does so on the basis of homog-
enised views of the past and without consideration of the multiple
ways in which the past weighs upon the present. We cannot simply
set aside concepts, like old hats we remove from our heads, without
considering whence they came and what work they do (Young-
Bruehl 2006). New concepts have to be squared with new realities
or they too can become a constraint on our thinking. Today there
is nothing new in declaring the new, and the claim that this or that
event is ‘unprecedented’ and that there are no words to describe it
has itself become almost a commonplace of philosophical discourse
(Habermas and Derrida 2003a).
The cult of the new, if we may call it thus, can be illustrated through
Beck’s analysis of the destruction of the World Trade Center. 9/11,
he writes, stands for the ‘complete collapse of language’. It signals
the bankruptcy of all national frames of reference. It indicates the
‘global community of fate’ to which we are all now bound. It dem-
onstrates that in a world risk society we need a ‘new big idea’, that
of cosmopolitanism itself (Beck 2002a: 48). Beck likens the advent
of cosmopolitan norms in our own times to the sea-change achieved
by the Peace of Westphalia in the seventeenth century. He declares
that it marks the advent of a ‘second Enlightenment’ – one that
will ‘open our eyes and our institutions to the immaturity of the
first industrial civilization and the dangers it posed to itself ’ (Beck
2002b: 50). He argues that 9/11 confronts the world with an exis-
tential choice: not only between nationalism and multilateralism
but also between regressive multilateralism based on surveillance
states and progressive multilateralism based on cosmopolitan states.
A multilateralism based on surveillance states sacrifices rights, law,
democracy and hospitality to the security of the Western citadel. A

multilateralism based on cosmopolitan principles also seeks secu-
rity but by means of human rights, international law, democracy and
hospitality at the transnational level. 9/11, he writes, brings to the
surface the defining characteristic of our age – that risks are now
spatially de-territorialised and uncontrollable at the level of the
nation-state and that it is necessary to construct a new principle of
cosmopolitan order transcending both the classical framework of
nation-states and the imposition of police powers at the interna-
tional level.
Over against the cult of the new, I do not wish to suggest that
there is nothing new in the kind of terrorism practised on 9/11. On
the contrary, it seems to me that recent attempts to analogise this
event to the old totalitarianism of Stalin and Hitler or to the old uses
of terror in national liberation movements are equally inadequate
ways of dealing with what is new in this case. But to speak of a
‘complete collapse of language’ diminishes our ability to understand
the event. No understanding is possible without analytical concepts
against which to measure what is new. While all social theory tries to
make sense of a rapidly transforming world, the idea of crisis only
makes sense against a backdrop which allows us to see what has
changed (Habermas 1988).
The critique of the critique of

methodological nationalism
The other side of the coin of being stuck in old ways of thinking is
what Frank Webster has termed the ‘fallacy of presentism’ (Webster
2002: 267). The fallacy of presentism refers to the tendency to turn
the present into an ‘ism’ and prematurely declare the redundancy of
old concepts and theories. The paradox of ‘presentism’ may be illus-
trated by the observation that while Beck argues in relation to 9/11
for the need for new categories of understanding and new standards
of judgement to deal with this event, he declares his own debt to the
seventeenth-century political philosophy of Thomas Hobbes and
poses his analysis of global risk society in Hobbesian terms (Beck
2002a: 46) concerning the risks that arise in global society and the
conditions of achieving security in these circumstances.
Beck’s representation of the history of the nation-state strangely
mirrors the ‘methodological nationalism’ he criticises. He argues

that ‘national organization as a structuring principle of societal and
political action can no longer serve as a premise for the social science
observer perspective’ (Beck 2002b: 52, my italic), implying that in
the past this national principle may well have been an appropriate
premise. According to this account, methodological nationalism
was right for its own times, though obsolete for ours, and Beck
criticises it only from a historical point of view (Joas 2003). The
fairly obvious point to make is that a methodologically nationalist
social science has never been able to provide a satisfactory account
of nation-states even during the ‘first age of modernity’ (Chernilo
2006a). If this is so, then Beck is to be faulted not for criticising
methodological nationalism but rather for accepting too readily
its historical validity. ‘Methodological nationalism’ is an approach
that naturalises or rationalises the existence of the nation-state. It
locates the development of the nation-state in a teleological frame-
work as the apex of modern political community. It imposes the
concept of the nation-state upon all political formations which have
emerged or survived in the modern period, including multinational
empires, totalitarian regimes, east and west power blocs, city states
and transnational bodies such as the European Union. It treats the
nation-state as the characteristic form of political community of
the modern age, or at least of the first modernity, and presumes its
solidity, centrality and increasing pervasiveness. The problem with
the critique of methodological nationalism, as Beck formulates it,
is that it accepts the premises of methodological nationalism and
differs only in declaring the advent of a new epoch, a second moder-
nity, in which the national principle of political organisation finally
gives way to the cosmopolitan.
Analogous issues arise in relation to international relations,
where Beck writes of the changing grammar of the term ‘interna-
tional’ and the hollowing of the ‘fetish concepts’ of state and nation
(Beck 2006a: 37). He represents the ‘Westphalian’ order of inde-
pendent nation-states as the framework of international relations
in the ‘first modernity’ and characterises it as a Hobbesian state of
nature writ large, a perpetual war of all states against all, in which
no state could be secure. However, he also represents this anarchic
model as remarkably stable – enduring for over 300 years from the
Peace of Westphalia of 1648 right up to our own times. He acknowl-
edges that the Westphalian order has assumed different shapes and
forms in the course of its progressive evolution but his basic con-
tention is that no fundamental change to the system of nation-states
occurred before the transition to the new cosmopolitan epoch.
Events as momentous as eighteenth-century political revolutions,
the growth of imperialism in the nineteenth century, the collapse
of mainland empires after the First World War, the formation of a
raft of newly independent nation-states out of their fragments, the
rise of totalitarian regimes with anti-national and global ambitions
in the inter-war period, the collapse of overseas empires after the
Second World War, a further raft of newly independent ex-colonial
states, and the formation of two ‘camps’ during the Cold War – all
such events are presented as punctuation marks in a continuous and
expanding Westphalian narrative. Even the forms of international
co-operation established among nation-states, such as the forma-
tion of the United Nations, and the emergence of a world system of
independent nation-states appear merely to consolidate the funda-
mental principle of national sovereignty (Giddens 1985).
In this representation of history all events prior to the rise of the
new cosmopolitan order seem only to consolidate and generalise the
‘old’ order of independent nation-states, as if the hoary chestnut, le
plus ça change, le plus c’est la même chose, held absolute sway in the
sphere of life. The ‘new’ cosmopolitan order appears as a product
of our own age and not least of the work of the new cosmopoli-
tans themselves. This teleological reconstruction of the history of
the nation-state in the past allows for a spectacular image of the
radical disjuncture occurring in the present. And yet the depend-
ence of methodological cosmopolitanism on the methodological
nationalism it seeks to overcome becomes all the more pronounced.
Both conceive of a rupture between tradition and modernity in the
mid-seventeenth century marked by the Treaty of Westphalia. Both
conceive of the nation-state as the governing principle of modern
political community. Methodological cosmopolitanism differs from
methodological nationalism only in that it refuses to see the nation-
state as an end of history and proposes a second rupture, one which
brings into being the cosmopolitan condition (Wagner 2001: 83).1
I am arguing that Beck concedes too much to methodological
nationalism when he intimates that it did once have a historical
validity. I would also suggest that the critique of methodological
nationalism has in fact been a fairly constant feature of social theory,

even if it is executed in uneven and inconsistent ways (Chernilo
2007a,b; Turner 2006). For example, Emile Durkheim’s appeal to
the cosmopolitan moral foundations of the modern state was more
explicit than most. He looked to the reconciliation of cosmopoli-
tanism and patriotism by shifting the priorities of national rivalry
from war to peaceable competition. He wrote:
If each State had as its chief aim not to expand or to lengthen its
borders, but to set its own house in order and to make the wid-
est appeal to its members for a moral life on an ever higher level,
then all discrepancy between national and human morals would
be excluded . . . The more societies concentrate their energies
inwards, on the interior life, the more they will be diverted from
the disputes that bring a clash between cosmopolitanism – or
world patriotism, and patriotism . . . Societies can have their
pride, not in being the greatest or the wealthiest, but in being
the most just, the best organised and in possessing the best
moral constitution.
(Durkheim 1992: 74–5)2
In the case of Marx, we find not only a normative commitment

to ‘internationalism’ rather than nationalism but more significantly
an analysis of the erosion of national boundaries by global capital-
ism and a critique of the dynamics of capital accumulation in which
national characteristics play a strictly subordinate part. Weber for his
part objected to any treatment of nations as ‘individuals’ or ‘biologi-
cal entities’, indeed to any hypostatisation of the nation as a ‘social-
psychological unity which experiences development in itself ’, and
he rejected attempts to understand social life through notions of
‘common blood’, ‘shared culture’ or ‘Volkgeist’ (Chernilo 2007b:
29–30). It is interesting to note that contemporary German critics
of his Science as a Vocation (1919) objected to the non-nationalistic
worldview and ‘un-German’ universalism that ran through the text
(Schluchter 1996: 39–45). Similarly, Simmel advanced a universal
conception of society as a sphere of ‘reciprocal influencing’ and
warned against any treatment of society as a ‘collective name’. The
universalism of sociological conceptions of society is a question that
deserves a book on its own (Chernilo 2007a).
I do not suggest that these critiques of methodological national-

ism were necessarliy successful. For instance, Durkheim’s fusion of
la patrie and cosmopolitanism proved no obstacle to the expression
of vehemently anti-German sentiments during the First World War,
based on a critique of the militaristic and anti-Semitic nationalism
of one German, Heinrich von Treitschke. I suggest only that the
approach of sociology to the science of the social contains within
it an opposition to methodological nationalism. Classical sociology
saw itself not as a repudiation of enlightenment universalism but as
its empirical manifestation (Wagner 2006).The key point is certainly
not to defend the sociological tradition tout court against the charge
of methodological nationalism but to consider why this charge has
been so stressed and over-extended within the new cosmopolitan-
ism.3 For in both ‘old’ social theory and the ‘new’ cosmopolitanism
we are confronted with the difficult question of the positioning of the
nation-state in the context of the global reshaping of modernity.
The temporal frame of Beck’s critique of methodological nation-
alism lends itself to a particularly negative view of the sociological
tradition. He presents ‘humanistic universalism’ as the key charac-
teristic of Enlightenment thought and describes it as a universal-
ism that tends towards greater sameness and the elimination of
plurality.
Universalism obliges us to respect others as equals in principle,

yet for that very reason does not involve any requirement that
would inspire curiosity or respect for what makes other differ-
ent . . . the particularity of others is sacrificed to an assumed
universal equality which denies its own origins and interests.
Universalism becomes thereby two-faced: respect and hegem-
ony, rationality and terror.
(Beck 2006a:49)
Beck argues that the humanistic universalism of Enlightenment

thought gave way to the methodological nationalism of social
theory, which elevated its national conception of society over and
above any universal conception of humanity. He finally presents
cosmopolitanism as the reconciliation of the universalism of the
Enlightenment and the methodological nationalism of the social
sciences: on the one hand, it presupposes a ‘universalistic minimum’
to be upheld at all costs and ‘universal procedural norms’ to regulate

the cross-cultural treatment of difference; on the other, it ‘does not
negate nationalism but presupposes it and transforms it into cos-
mopolitan nationalism’ (Beck 2006a: 49). The cosmopolitan vision,
according to Beck, permits people to ‘view themselves simultane-
ously as part of a threatened world and as part of their local situ-
ation and histories’. It indicates ‘recognition of difference beyond
the misunderstandings of territoriality and homogenisation’ (Beck
2006a: 30). It replaces the ‘either–or’ mentality of the past, be it the
humanistic universalism of the Enlightenment or the methodologi-
cal nationalism of social theory, with the ‘both–and’ consciousness
of the evolving cosmopolitan future. (An alternative way of putting
this might be that the new cosmopolitanism presents itself as the
synthesis of an old-fashioned modernist humanism on the one side
and postmodern identity politics on the other.4)
Beck wishes to construct cosmopolitanism in a way that is incom-
patible with all homogenising claims. His aim is not to advance cos-
mopolitanism as an abstraction ruling over the plurality of particular
national needs and interests nor as a power to which nations must
bow as if to their own rational will, but as the rational form in which
the universal and the particular are finally reconciled. This kind of
synthesis sometimes goes under the name of ‘post-universalism’. I
would argue, however, that this cosmopolitanism vision is not as
radical or new as it seems and that its equivocations go to the heart
of political modernity (Löwith 1967).
Post-universalism and the modern state

The term ‘cosmopolitanism’ goes back to antiquity and its ancient
connotations still have resonance among modern writers (Fine and
Cohen 2003; Nussbaum 1991). Martha Nussbaum defines the cos-
mopolitan as one whose politics is ‘based upon reason rather than
patriotism or group sentiment’ and is ‘truly universal rather than
communitarian’ (Nussbaum 1997). Nussbaum looks to antiquity
not only as the origin but as the inspiration of cosmopolitanism.
She looks back to Zeno’s ‘cosmopolis’ – a world-city based on a
common law for all humanity in which even barbarians and slaves
could be citizens; to Diogenes’s dissenting claim to be a ‘citizen of
the world’, a claim denounced by Plutarch as absurd as well as dan-
gerous; to Cicero’s faith in a ‘society of humanity’ and the ‘common

right of humanity’; and to Seneca’s maxim that ‘we look neither to
this corner nor to that, but measure the boundaries of our nation by
the sun’. While the ancient cosmopolitan tradition was not ‘inno-
cent’, based either on the elevation of the Greek polis as a model
for the world or on the ambition of the Roman Empire to turn the
world into a common people under its own rule (Pagden 2000),
it still embodied an emphatic idea of universality and an equally
emphatic repudiation of patriotism and other group loyalties.
What makes modern cosmopolitanism modern, however, is not
so much that it stands for a universal human community over and
above local loyalties, but rather that it seeks to reconcile the idea
of universal species-wide human solidarity with particular soli-
darities that are smaller and more specific than the human species
(Hollinger 2001: 238). This reconciliation takes many forms. For
example, John Stuart Mill insisted that the principle of patriotisme
éclairé he proposed, which he distinguished from ‘nationality in
the vulgar sense of the term; a senseless antipathy to foreigners’,
was compatible with ‘the general welfare of the human race’ and he
wrote of the capacity of human beings, properly educated, to attain
an ‘ideal devotion’ not only to their own country but to ‘a greater
country, the world’:
When we consider how ardent a sentiment, in favourable cir-

cumstances, of education, the love of country has become, we
cannot judge it impossible that the love of that larger country, the
world, may be nursed into similar strength.
(Mill, System of Logic, cited in Varouxakis 2006: 101–2)
We have already noted that Emile Durkheim looked to the rec-

onciliation of cosmopolitanism and patriotism through shifting the
priorities of national rivalry from war to peaceable competition.
The ‘new cosmopolitanism’ follows closely in these ‘modernist’
footsteps. Kwame Anthony Appiah (1996) appeals to the concept of
‘cosmopolitan patriotism’ to convey the idea that a sense of belong-
ing to a particular community is a necessary aspect of turning cos-
mopolitanism into a desirable and realisable political project. Jürgen
Habermas looks to the reconciliation of cosmopolitan values, laws
and institutions with the re-affirmation of national and transnational
identity in the form of ‘constitutional patriotism’ (2001: 74–6). Will

Kymlicka (1995) warns of the danger of constitutional patriotism
being used by existing nation-states to crush minority rights and
seeks to construct a cosmopolitanism that will also protect national
minorities. Ulrich Beck, as we have seen, argues that cosmopolitan-
ism, far from negating nationalism, ‘presupposes it and transforms
it into cosmopolitan nationalism’ (Beck 2006a: 49). The concept
of ‘cosmopolitan nationalism’ may sound rather like kosher bacon,
but Beck is not alone in insisting that the stabilising and integrative
factors enlightened patriotism provides are required by cosmopoli-
tanism. In short, the new cosmopolitanism draws its appeal from
the contrast between ancient and modern conceptions of political
community: the former aspiring for a universal in which the rights
of particular solidarities remain downplayed or invalidated; the lat-
ter aspiring for a universalistic world compatible with the rights of
particular solidarities (Hollinger 2001).5
The strength of the ancient conception of cosmopolitanism lies
in its critical purchase: it offers a clear-cut critique of nationalism,
patriotism and other ‘local’ manifestations of political modernity.
The strength of the modern conception of cosmopolitanism lies in
its embrace of the core principle of political modernity, the integra-
tion of particular rights of subjective freedom with the common
good. The question arises, however, as to the critical purchase of
the modern conception: how far does it offer a critique of politi-
cal modernity or an adaptation to it. The new cosmopolitanism
can sometimes appear as immensely radical and transformative and
at other times as little more than a gloss on the existing political
order.
When the new cosmopolitanism appeals to ‘post-universalism’, to
what Beck terms a ‘both–and’ rather than an ‘either–or’ conscious-
ness, this appeal forgets that the awesome power of the modern
state derives from its already being ‘both–and’ from the start. Let
me cite Hegel in support of this claim. In his own peculiar style he
writes in The Philosophy of Right:
The principle of modern states has enormous strength and

depth because it allows the principle of subjectivity to attain
fulfilment in the self-sufficient extreme of personal particularity,
while at the same time bringing it back to substantial unity and
so preserving this unity in the principle of subjectivity itself.

The essence of the modern state is that the universal should be
linked with the complete freedom of particularity and the well-
being of individuals . . . the universality of the end cannot make
further progress without the personal knowledge and volition of
particular individuals who must retain their rights . . . the univer-
sal must be activated, but subjectivity on the other hand must
be developed as a living whole. Only when both moments are
present in full measure can the state be regarded as articulated
and truly organised.
(Hegel 1991, §124)
The principle of the modern state is that it represents both the

public interest and the particular interests of individuals within it.
What makes the modern state modern is that it allows the principle
of individuality to attain complete fulfilment whilst at the same time
bringing it back to the unity of the whole. What is this principle
but that of ‘both–and’? Hegel argues that the conjunction of the
universal and the particular not only gives to the modern state a self-
consciously liberal aspect, as the locus of reconciliation between the
public interest and private rights, but also feeds the megalomania
of the modern state since what the state is and does appears as the
rational will of every individual within it. It evaporates the real
antagonisms between the individual and the state. It mystifies their
relation.6 The ‘both–and’ quality of the modern state is an integral
part of its power. By treating its own will as the will of every indi-
vidual, it feeds its most dangerous totalitarian fantasies.
In identifying cosmopolitanism with the both–and conscious-
ness of post-universalism, the new cosmopolitanism engages not
so much with the critique of the modern state, the fetishism of its
power, as with transferring the logic of reconciliation to a higher
level.
The cosmopolitan vision

The cosmopolitan vision, as Beck advances it, is more about the
future than the past. It is predominantly not about what the world
of nation-states was like but what the world is becoming and how
our consciousness is changing with it. For Beck, orientation to the
future sometimes appears as a cosmopolitan principle. He writes

that in world risk society ‘the past loses its power to determine the
present. Instead, the future – something non-existent, constructed
or fictitious – takes its place as the cause of present experience and
action’ (Beck 2000c: 100). He contrasts the ‘future-oriented legiti-
macy’ and ‘visionary non-fiction’ of cosmopolitan sociology with
both the ‘more-of-the-same dogma’ of traditional sociology and
teleological conceptions of historical progress, and hopes in this
manner to comprehend a situation that is ‘still to manifest its full
development’ (Beck 2000b: 8–9).
Beck insists there is a sense in which ‘reality itself has become
cosmopolitan’ and refers to the emergence of what he calls, entic-
ingly, a ‘banal, everyday and forced cosmopolitanism’ (Beck 2006a).
The question is this: even if we are prepared to concede that cosmo-
politanism is not only ‘forced’ but also contains its own propensi-
ties to the use of force, in what sense can we say that ‘reality itself
has become cosmopolitan’? On closer inspection the justification
of this claim rests more on the development of a certain kind of
consciousness than on any social transformation. For example, Beck
refers to mass migration and the resulting growth of heterogeneous
and hybrid populations in most modern societies in support of the
proposition that reality has become cosmopolitan. He immediately
concedes, however, that there is nothing new in this phenomenon
and that what has changed is the emergence of a new kind of politi-
cal and cultural awareness which affirms the mixing of peoples.
He writes: ‘From the very beginning the emerging global market
required the mixing of peoples . . . What is new is not forced mixing
but awareness of it, its self-conscious political affirmation’ (Beck
2006a: 21). However, the self-conscious political affirmation of the
mixing of peoples is unfortunately highly contested in the present
day and co-exists with all manner of rival and reactive nationalisms.
Similarly, when Beck refers to the explosion of global risks, he argues
that these risks cannot be addressed by nation-states acting alone and
create ‘inescapable’ pressures for states to co-operate across national
boundaries. However, there is nothing new in the need for states to
co-operate with other states and today, in the face of ecological and
terrorist crises, the pressures on states to co-operate are proving
anything but inescapable. As Beck well knows, there are many who
argue that the West is divided over the question of whether to affirm
co-operation through international law or to take the road of hege-

monic unilateralism and that ecological crises are as likely to lead to
new conflicts as to new forms of co-operation.
Is there a sense nonetheless in which we can say with Beck that
‘reality has become cosmopolitan’? I think a reference to Kantian
natural law theory might help illuminate Beck’s proposition. When
Kant referred to his own times as an ‘age of enlightenment’, he did
not mean to say that his age was enlightened but that enlightenment
was ethically the most defensible philosophical project of his age. In
What is Enlightenment? he formulated the issue thus:
If it is now asked whether we at present live in an enlightened age,

the answer is no, but we do live in an age of enlightenment. As
things are at present, we still have a long way to go . . . But we
do have distinct indications that the way is now being cleared
for them to work freely in this direction . . . Men will of their own
accord gradually work their way out of barbarism so long as arti-
ficial measures are not deliberately adopted to keep them in it.
(Kant 1991: 58)
If it is now asked What is Cosmopolitanism? the equivalent

answer might run along these lines. We do not live in a cosmopolitan
age but we do live in an age of cosmopolitanism. As things are, we
have a long way to go but we do have distinct indications that the
way is being cleared for a cosmopolitan future so long as artificial
measures are not deliberately adopted to prevent it. The age of cos-
mopolitanism may be understood more as a normative perspective
for viewing the potentialities and necessities of our age than as an
objective characterisation of the age itself. The cosmopolitan vision
may be understood in this context as spelling out the rational direc-
tion humankind would take so long as artificial measures are not
adopted to prevent this outcome. If the devil lies in the detail of this
qualification, it also reveals the natural law framework in which the
new cosmopolitanism continues to be posed.
Cosmopolitanism and its critics

The new cosmopolitanism meets with criticism from many sides
and my interest here is not to add to the list. On a factual level,
critics allude to the short-term or downright illusory character of

cosmopolitan reforms: just as previous cosmopolitan initiatives
were extinguished under the pressure of power politics, so too the
cosmopolitan precedents established since 1989 may prove equally
provisional (Zolo 1997, 1999). Alternatively, critics accept that the
order of sovereign nation-states is being surpassed but provide a far
more pessimistic reading of the post-national constellation that is
replacing it. What is presented in the guise of cosmopolitanism may
be revealed as the dominance of global capital over the life-world or
of America over the globe. In this case cosmopolitanism is not criti-
cised for the claim that the democratic structures and political life
of the nation-state are becoming obsolete, but for its failure to see
that this social transformation only intensifies the abstract character
of domination. Hardt and Negri, for example, discern in the present
the transformation of rival nations into a singular, overwhelming
Empire, though they construct a kind of ‘cosmopolitanism from
below’ in which an unbounded and nationally indistinct multitude
is metamorphosed into the permanently resistant subject of global
revolt (Hardt and Negri 2000).
Criticism is made of the cultural assumptions, national prejudices
and power positions that remain intact behind the apparently uni-
versalistic discourse of the new cosmopolitanism, which leads critics
to construe it as a mask for the imposition of ‘Western’ values on the
‘East’ and ‘South’, or as an instrument serving the political and finan-
cial interests of the sole remaining super-power. Critics argue that
the cosmopolitan propensity to devalue state sovereignty coincides
with the interests of American expansionism and is invoked only
when American interests are at stake. Cosmopolitanism is charged
with perpetuating the myth that the current global order is ruled by
universal ideals and a supranational body authorised to enforce these
ideals, whereas it is actually ruled by a hierarchy of co-operating
and competing nation-states – different from the Westphalian order
only in the fact that never before has one nation dominated others
as the USA has done since 1989 (Chomsky 1999; Douzinas 2000).
Some ‘Schmittian’ critics object to cosmopolitanism on the grounds
not only that it expresses the hypocrisy of great powers but that it
is used by great powers to moralise war and demonise their enemies
(Agamben 2005).
Such criticisms are deeply destructive of the cosmopolitan enter-
prise and it is not difficult to discern the flaws in actually existing

cosmopolitanism, which its critics are quick to exploit. It can be
usurped by power. It can display the vanity of thinking that it has
discovered a new ‘Truth’ on which the future of the globe depends
and the innocence of thinking that the past no longer bears down
on the present. It can perpetuate the myth of novelty and show
contempt for ways of thinking it declares obsolete. It can assume
the world has to be invented anew and it can be over-confident in
its own prescriptions. If a distinguishing mark of nationalism is to
get its own history wrong (Hobsbawm 1994), the same may be said
of the new cosmopolitanism: it can paint the past grey on grey the
better to declare its own futuristic brilliance. Such defects do exist,
but this is no reason to abandon cosmopolitanism, only to reflect on
its own shortcomings and to remedy them.
Criticism can fall short of what it criticises. Hegel once wrote
that ‘hatred of right is the shibboleth whereby fanaticism, imbecility
and hypocritical good intentions manifestly . . . reveal themselves’
(Hegel 1991 §258fn). I think this is true of hatred of the idea of
cosmopolitan right. Even if cosmopolitanism becomes stuck at
the level of conceptual thinking, it remains superior to a criticism
that has no understanding of the concept and sees in world history
nothing but power, self-interest and contingency. The ignomini-
ous history of twentieth-century hatred towards cosmopolitanism
may be illustrated through the stigmatisation of the ‘rootless cos-
mopolitan Jew’. Eleonore Koffman tells the story of how cultural
conservatives (such as Carlyle, Spengler and Sombart) complained
of the impure culture of ‘cosmopolitan cities’, notably Vienna, into
which Jewish emancipation in the nineteenth century had brought
an influx of Jewish immigrants. Jews were represented as a corrupt-
ing element, foreign to the nation, rootless and without homeland,
the personification of the cosmopolitan (Koffman 2007; Traverso
1997). This way of thinking was inherited by a Stalinist political
culture which abhorred uprootedness and treated cosmopolitan-
ism as synonymous with betrayal of the motherland (Buck-Morss
2002). Mass arrests of Jewish intellectuals and repression of Jewish
culture after the Second World War were perpetrated under the ban-
ner of campaigns against ‘rootless cosmopolitans’ as well as against
‘Zionists’. Such stigmatisation of cosmopolitanism indicates to me
only that there is something very valuable to preserve.
2
Cosmopolitanism
and natural law
Kant and Hegel
I have suggested in the last chapter that the new cosmopolitan-

ism has an affinity with natural law theory. This is indicated in its
return to Kant and in particular its rediscovery and reconstruction
of Kant’s political essays on ‘perpetual peace’ and the ‘cosmopolitan
point of view’ written over a 12-year period around the time of the
French revolution (Kant 1991).1 They are now widely regarded as
the key philosophical origins of the new cosmopolitanism (Bohman
and Lutz-Bachmann 1997). In this chapter I shall outline Kant’s
approach to cosmopolitanism and the natural law framework within
which it is posed. My interest is in pursuing the question of the
transition from natural law theory to cosmopolitan social theory
and I shall argue that a crucial link-person in this transition, despite
his reputation as philosopher of the state, is Hegel.
Kant’s theory of cosmopolitanism

Kant elaborated in his Metaphysics of Justice (Kant 1965) a detailed
and systematic analysis of republicanism within the framework of
the modern nation-state. He began with the analysis of private law,
cosmopolitanism and natural law 23
placing property rights within the realm of natural laws to which

‘an obligation can be recognised a priori by reason without external
legislation’ (Kant 1965: 26). From this starting point he engaged in
a series of ‘deductions’ from the postulates of practical reason: the
idea of the ‘person’ as a possessor of rights whose ‘moral personality
is nothing but the freedom of a rational being under moral laws’
(Kant 1965: 24); the idea of a ‘thing’ (res) as ‘an object of free will
that itself lacks freedom’; the separation of property from posses-
sion; the idea that there is nothing in the world which cannot be
made into property, and so forth.
Kant then moved on to the sphere of public law. From the ‘Idea
of the state as it ought to be’ Kant deduced the institutional forms
of a republican constitution: a representative legislature to establish
universal norms, an executive to subsume particular cases under
these universal norms, a judiciary to determine what is right in cases
of conflict, and the constitutional principle of the separation of
powers to maintain these distinct spheres of activity in accordance
with the ‘moments of its concept’ (Kant 1965: §45). Kant drew on
social contract theory and moral philosophy to produce an image of
a just state grounded in reason, the perfect societat civilis that would
allow republican government to unfold even in a ‘race of devils’
(Ellis 2005: 36).
Having analysed private and public law within the framework of
the nation-state, Kant turned his focus to the sphere of interstate
or international law. He attacked what he called the ‘depravity’ of
the existing ‘Westphalian’ order in which ‘each state sees its own
majesty . . . precisely in not having to submit to any external legal
constraint’ and in which ‘the glory of its ruler consists in his power
to order thousands of people to immolate themselves for a cause
which does not truly concern them, while he need not himself incur
any danger whatsoever’ (Kant 1991: 103). He criticised this model
as one in which either there was no notion of international law or
international law was interpreted merely as a right to go to war,
which was in effect no law at all. He was critical of the legal architects
of this model: traditional natural law theorists (Francisco Suarez
1548–1617, Hugo Grotius 1583–1645, Samuel Pufendorf 1632–94
and Emmerich von Vattel 1714–67), whom he lumped together as
‘sorry comforters . . . dutifully quoted in justification of military
aggression’. He argued that they painted a thin legal gloss over a
24 cosmopolitanism and natural law
system in which sovereigns granted themselves the licence to use

any means of warfare deemed necessary, exploit newly discovered
colonies as if they were ‘lands without owners’, and treat foreigners
as enemies without rights (Kant 1991: 105–6). Kant maintained that
this was not a genuine legal order but a Hobbesian state of nature
torn apart by perpetual wars.
In order to confront the violence and lawlessness that charac-
terised existing relations between states, Kant reconstructed the
cosmopolitan ideal already established as a moral norm within
the frame of Enlightenment thought (Schlereth 1997). He turned
it into a new form of social contract at the inter-state level that
placed a political demand on sovereigns to renounce their ‘savage
and lawless freedom’ and submit themselves to public coercive laws.
He construed cosmopolitanism as an international political order
designed to establish ‘lawful external relations among states’ and a
‘universal civic society’. These terms referred to the establishment
or consolidation of international laws to guarantee the sovereignty
of nation-states, prohibit interference in the internal affairs of other
states and create peaceful relations among states. It also referred
to what Kant called cosmopolitan right in the proper sense of the
term, which he identified with the ‘right of hospitality’ belonging
to strangers in a foreign land (Kant 1991: 47, 172).2 He called for
the establishment of an ‘external legal authority’ capable of forc-
ing states to abide by the law and respect the rights of other states,
since without this authority every state could simply interpret and
enforce international laws according to their own moral or political
judgement.
For Kant the three legs of the cosmopolitan condition were inter-
national law, cosmopolitan rights and an authoritative international
authority. Kant was opposed to the formation of a ‘world state’,
akin to the Leviathan at the intra-societal level, which in his view
would either be a ‘counterfeit’ concealing the rule of a single great
power or turn into a ‘universal despotism’ and ‘graveyard of free-
dom’. The institutional vision he embraced was that of a Federation
of Nations, based on mutual co-operation and voluntary consent
among a plurality of independent states (Kant 1991: 105, 114). It
was a vision far closer to that of our United Nations.
The primary aim of the cosmopolitan condition, as Kant saw it,
is to put an end to war between states and establish perpetual peace.
Seeing war as the most serious threat to republican liberty, he envis-

aged a pacific future in which standing armies would be abolished,
no national debt would be incurred in connection with military
costs and no state would forcibly interfere in the internal affairs
of another. Prior to the attainment of perpetual peace, the cosmo-
politan order would establish provisional laws of war. They would
abolish the traditional right of sovereigns to declare war without
consulting their subjects, since citizens who are ‘co-legislative mem-
bers of the state’ must give their consent to any declaration of war,
and they would stipulate that wars must be conducted in accordance
with principles which leave states with the possibility of still enter-
ing a ‘state of right’ after the war. They would criminalise acts of war
which ‘make mutual confidence impossible during a future time of
peace’ and they would preclude wars of extermination and enslave-
ment, the ransom of prisoners, and any use of violence that renders
the perpetrators of violence unfit to be citizens (Kant 1991: 166).
If colonisation was justified by its beneficiaries in terms of ‘bring-
ing culture to uncivilised peoples’ and purging the home country of
‘depraved characters’, an improbable combination, Kant argued this
could provide no justification for the plunder, slavery and extermi-
nation that typically accompany the acquisition of colonies (Kant
1991: 173). Instead of treating the ‘condition of universal hospi-
tality’ as a justification for the subjugation of indigenous peoples
by their European conquerors, as Francisco de Vitoria had done in
the sixteenth century on the grounds that Indians had mistreated
European ‘travellers’, Kant turned the right of hospitality into an
indictment of ‘the inhospitable conduct of the civilised states of our
continent . . . in visiting foreign countries and peoples (which in
their case is the same as conquering them)’.
Looking back over 200 years later at Kant’s cosmopolitanism, it
is difficult not to be impressed by the prescience of his normative
vision. In his pre-revolutionary essay Idea for a Universal History
from a Cosmopolitan Point of View (1785), he acknowledged that
cosmopolitanism was a ‘fantastical idea’ without precedent in world
history. In his post-revolutionary essay Perpetual Peace (1795) he
acknowledged that European states were relating to one another
more like atomised individuals in a Hobbesian state of nature than
in accordance with the cosmopolitan ideas which had momentar-
ily lit up the dawn of the French Revolution.3 In the aftermath of
the Revolution it seemed that nationalism and xenophobia were the

rising stars of the new order but Kant’s obstinacy lay in trying to
harmonise the principle on which the world revolution was turn-
ing, the sovereignty of the nation-state, with that of an enlightened
rights-based universalism.
Kant maintained that the duty to act in accordance with the idea
of perpetual peace was incumbent upon rulers however great the
sacrifice they had to make, and upon the people whether or not
public opinion recognised it. All politics, Kant declared, must ‘bend
the knee before right’ even if there were not the slightest possibility
of its realisation (Kant 1991: 125). Reason, he declared, ‘absolutely
condemns war’ and makes the achievement of peace an ‘immedi-
ate duty’. That there should be no war is the ‘irresistible veto’ of
the reason within us (Kant 1991: 164, 174). Such moral certainty
was, for Kant, unshakeable by experience. Experience could not be
a guide to action since it would mean only that those states which
most prospered under current arrangements would elevate existing
norms as the general standard.
Whilst Kant acknowledged that immediate circumstances were
hostile to cosmopolitan ideas, he looked to long-term historical ten-
dencies to defend the realism of his vision. He advanced three main
lines of argument. They pertained first to the economic rationality of
cosmopolitanism in a commercial age in which peaceful exchange is
more profitable than plunder; second to the political utility of cosmo-
politanism for states forced to arm themselves against other states
and confronted by escalating risks and costs of modern warfare; and
third to the affinity of cosmopolitanism to republicanism given that
republican rulers could no longer declare war without consulting
their citizens and that republican citizens could be expected to have
a higher level of political education and maturity than the subjects of
old monarchical states. Kant discerned an affinity between moder-
nity itself and cosmopolitanism, since the modern world is one in
which ‘the peoples of the earth have entered in varying degrees into
a universal community’ and ‘a violation of rights in one part of the
world is felt everywhere’ (Kant 1991: 107–8). In this sense it seemed
that cosmopolitanism had history on its side.
Kant recognised that there were countervailing tendencies. He
acknowledged, for instance, that republican citizens are often civi-
lised ‘only in respect of outward courtesies and proprieties’ and that
militarism can quickly corrupt the mind. Yet the regulative idea
that informed his cosmopolitan point of view was that the ‘germ
of enlightenment’ works towards a universal end, ‘the perfect civil
union of humankind’, and that ‘genuine principles of right’ point
towards a ‘universal law of humanity’ (Kant 1991: 114). Behind the
backs of warring humanity he perceived Providence and the Laws
of Nature accomplishing their universal purpose. ‘Perpetual peace’,
as Kant put it, ‘is guaranteed by no less an authority than the great
artist Nature herself ’ (Kant 1991: 108).
The cosmopolitan point of view Kant reconstructed was not so
much a blueprint for a future interstate order as an elaboration of
what human freedom makes possible even at the level of interstate
relations. Humanity, he wrote, is ‘by its very nature capable of con-
stant progress and improvement without forfeiting its strength . . .
no one can or ought to decide what the highest degree may be at
which mankind may have to stop progressing, and hence how wide a
gap may still of necessity remain between the idea and its execution.
For this will depend on freedom, which can transcend any limit we
care to impose’ (Kant 1991: 189–91). The boldness of Kant’s vision
was matched by his recognition that the way things are is not the
way they have to be and the way things appear is not what they
essentially are. However, Kant addressed the limits of natural law
from within the frame of natural law and on the margins of his own
texts we can detect his apprehension that the cosmopolitan point
of view might not provide the necessary solution. Nowhere is this
more evident than in his analysis of the rights of man.
The idea of ‘the rights of man’ was the distinctive accomplish-
ment of eighteenth-century republicanism. It signified that every
man should be conceived as a bearer of rights simply by virtue
of the fact that he is a man. It contrasted with traditional socie-
ties in which the idea of personality, that is, the ability to possess
rights, was a privileged status distinct from that of the majority
of the population. Roman law distinguished between the status of
persons, those who had the right to have rights, and that of slaves
and other dependants. The ‘rights of man’ universalised the status
of the person, so that every man was deemed a bearer of rights by
virtue of their manhood. Eighteenth-century republicanism then
provided the framework in which struggles for the rights of slaves,
women, workers and colonial subjects (as well as children, the mad
and the bad) could be attached to the original republican conception

of ‘man’.
No sooner was the idea of the rights of man articulated than it
came into conflict with the national organisation of modern politi-
cal community. While the republican constitution posited the rights
of man, it also designated that the nation grants these rights and in
its more radical form it declared that no rights are valid which the
nation has not granted. The mediation of the nation between ‘man’
and his rights generated a tension between the universality of the
concept and its particular national existence.4 The slippage from a
republican to national conception of popular sovereignty may be
illustrated through the experience of the French Revolution. In the
early stages of the Revolution the ‘sovereignty of the nation’ was an
index of the struggle for popular sovereignty and there was a notable
lack of nationalist sentiment. Decrees were passed offering French
citizenship to all foreigners who had resided in France for five years
as long as they had means of subsistence; foreign societies and news-
papers were encouraged; the use of force against other nations was
disavowed; support was given to revolutionaries in other countries
to rid themselves of their own rulers; and certain ‘benefactors of
mankind’ (Tom Paine, Mary Wollstonecraft, William Wilberforce,
Jeremy Bentham) were awarded honorary French citizenship. This
cosmopolitan moment soon evaporated as revolutionary wars were
launched, foreigners were held responsible for military defeats, eco-
nomic problems and political crises, and terror was directed against
foreigners. Foreign clubs and newspapers were disbanded and even
Tom Paine, ‘citizen of the world’, was imprisoned and then expelled
(Kristeva 1991).
Kantian cosmopolitanism was a profound attempt to address the
contradiction between the universalism of the ‘rights of man’ and
the national basis on which rights were accorded. It looked to the
generalisation of republican forms of government across all political
communities, so that the universality of the rights of man could
become a reality; to the development of international law and estab-
lishment of a Federation of Nations to ensure that wars between
states, perceived as the major threat to the rights of man, could be
regulated and eventually overcome; and to cosmopolitan rights in
the strict sense of the term to provide a universalistic minimum for
‘strangers’ and fill the gap in the system of rights left open by inter-
national law. However, none of these moves is unproblematic. First,

republicanism itself can be an unreliable ally. The inversion of the
rights of man into a duty of unconditional obedience to the state
which grants these rights creates an internal dynamic towards legal
authoritarianism on the part of the state and unthinking patriotism
on the part of the citizenry. Second, the generalisation of repub-
licanism across all nations can take the form of war – and war, as
Goya’s images of ‘the disasters of war’ illustrate, runs roughshod
over the rights of man. Third, the establishment of a Federation
of Nations may not provide the alchemy Kant hoped for – that of
transforming perpetual war into perpetual peace and lawlessness into
the rule of international law – for an alliance of states can construct
its own enemies, as can an individual state. Finally, while the idea of
cosmopolitan right upholds the right of strangers to ‘hospitality’,
either there is merely a moral injunction on states to respect this
right or an international authority would have to possess the means
of coercing states to respect them. History can play tricks on all
conceptions of human progress and Kant’s cosmopolitanism was
no exception.
Hegel’s critique of Kant’s cosmopolitanism

Theodor Adorno’s remark that Hegel’s ‘doctrine of the popular
spirit’ was nationalistic and reactionary in relation to Kant’s cosmo-
politanism expresses a very widely held view (Adorno 1990: 309).
Following Adorno, Jürgen Habermas identifies the name of Hegel
with the prevailing belief in the nineteenth century that ‘the political
substance and world historical vocation of sovereign nation-states
could not be tamed by law’ and he quotes Hegel’s Philosophy of Right
to this effect: ‘The nation-state is the spirit in its substantial ration-
ality and immediate actuality, and is therefore the absolute power
on earth’ (Habermas 2006: 151). Habermas argues that Hegel takes
aim at the idea of perpetual peace through a confederation of states
on the grounds that conflicts between sovereign states can be set-
tled only by war and that the state is not to be understood as exist-
ing for the sake of its citizens but as an organic entity and end in
itself. There is no shortage of attempts to paint Hegel’s philosophy
of right in these étatist colours – whether from the point of view of
liberal rights theory or critical theory. This conventional reading is,
however, misplaced and loses sight, in particular, of the centrality of

Hegel’s critique of natural law (Rose 1981; Fine 2001a).
Hegel recognised the strength of Kant’s cosmopolitan vision. It
indicated in his view that Kant had ‘some inkling of the nature of
spirit . . . to assume a higher shape than that in which its being origi-
nally consisted’ and he dismissed those critics of cosmopolitanism
for whom spirit remained an ‘empty word’ (Hegel 1991: §343R).
Hegel echoed Kant in declaring it a matter of ‘infinite importance’
that ‘a human being counts as such because he is a human being, not
because he is a Jew, Catholic, Protestant, German, Italian, etc.’ He
deemed this idea inadequate ‘only if it adopts a fixed position – for
example, as cosmopolitanism – in opposition to the concrete life of
the state’ (Hegel 1991: §209R). It is this inadequacy we need to
unpack.
Hegel rejected the dualism Kant sets up between the perpetual
violence of the ‘Westphalian’ past and the perpetual peace of the
cosmopolitan future. Looking back he observed that those same
natural law jurists whom Kant lumped together as apologists for
military aggression (Grotius, Pufendorf and the rest) were the first
to give the world anything like a regular system of natural jurispru-
dence, the first to conceive of the unity of the human race in spite
of its division into nations, the first to argue that human unity was
a natural law even if it went unacknowledged by those who held
that the duties of humanity ought to be conferred on compatriots
alone. They did not simply abandon traditional ideas of ‘just war’
but recast them in terms of the idea of ‘right’: war could be waged
only by a legitimate sovereign state, it had to have good cause, it had
to set peace as its end; every state had the right of self-defence, third
parties were entitled to help abused states, and barbarous methods
of fighting were unlawful.5 Ius gentium stood for a law of nations
that was binding despite the absence of higher external authority. As
Hegel commented, the principle of international law was that con-
tracts and treaties had to be respected, states had to recognise one
another reciprocally as sovereign states, and the conduct of war had
to be such as to preserve the possibility of a future peace between
sovereign states (Hegel 1991: §333). For Hegel, the crucial point
was this: states are no more private persons outside of the society of
states than are individuals private persons outside of society:
Each state is . . . a sovereign and independent entity in relation

to others . . . and [has] absolute entitlement to be a sovereign
and independent power in the eyes of others, i.e. to be recognised
by them . . . Without relations with other states, the state can no
more be an actual individual than an individual can be an actual
person without a relationship with other persons.
(Hegel 1991: §331)
When Napoleon declared that ‘the French Republic is no more in

need of recognition than the sun is’, this illusion of self-sufficiency
proved to be his undoing.6 Ius gentium looked to the construction
of a universal concept of humanity as the regulative idea guiding
relations between states. Pufendorf treated every society as a ‘single
person with intelligence and will’ but also as moral personalities
with civil obligations to one another. Christian Wolff declared the
absurdity of seeing the establishment of particular societies as eradi-
cating the universality of human society:
Just as in the human body individual organs do not cease to

be organs of the whole human body . . . so likewise individual
men do not cease to be members of that great society which is
made up of the whole human race, because several have formed
together a certain particular society.
(cited in Pagden 2000: 14)
Wolff looked to Europe as ‘a kind of republic whose independent

members are all linked by common interests’ and as the forerunner
of a time when ‘the voice of nature will reach the civilised peoples of
the world and they will realise that all men are brothers’. Emeric de
Vattel subordinated any particular society to ‘the ties of the univer-
sal society which nature has established among men’ and looked to
commerce and communication as the media through which civitas
maxima could be established: ‘The nations of the world would com-
municate their goods and their understanding. A profound peace
would reign over the earth . . . There would be no more violent
means for resolving such differences which might arise. They would
all be solved by moderation, justice and equity. The world would
seem like one great republic’ (cited in Pagden 2000: 11–16).7
Perhaps Kant shared the dream of many modern intellectuals, a

dream transformed into a political method by the French Revolution,
that the rational way of dealing with problems is to ‘sweep away the
inherited clutter from traditions, clean the slate and start again from
scratch’ (Toulmin 1992: 175). In the Preface to his Philosophy of
Right Hegel wrote of those philosophers who imagined that:
no state or constitution had ever existed or were in existence

today, but that we had now (and this ‘now’ is of indefinite dura-
tion) to start right from the beginning, and that the ethical world
had been waiting only for such intellectual constructions.
(Hegel 1991: 12)
Whether or not Hegel had Kant in mind, his own account of natural
law introduces a historical consciousness of reason that is missing in
Kant’s moral conception of the past.
Hegel located ‘Westphalia’ within the wider process of
Reformation and the liberation of political life from the control of
the Catholic Church. The Reformation introduced the principle
that law and government must accord with the idea of free will and
that humanity is in its nature destined to be free. Blind obedience
to divine law was replaced by the principle of obedience to the laws
of the state as the rational element in human will. In practice this
meant that the executive powers that were previously the property
of dynastic families were gradually transferred into state property.
The privileges of the feudal nobility were curtailed and their author-
ity transformed into official positions connected with the state. The
dependence of the people on their noble masters was broken and
replaced by dependence on the state. Feudal retinues were replaced
by standing armies established to supply monarchs with the forces
needed for the defence of their states against attacks by foreign
enemies and rebellions by their subjects. From wars between states
there arose a common interest among all states to preserve their
independence but the balance of power between them was continu-
ally threatened and the resulting imbalances led to a condition of
absolute mistrust. This culminated in the Thirty Years War and
scenes of utter desolation in which all the contending forces were
wrecked. The Peace of Westphalia brought to a close this condition
of perpetual war by establishing a legal framework which recognised
the independence of the Protestant Church, ratified the coexistence

of religious parties and established a system of rights between states
based on human will and empirical observation rather than divine
command or revelation. It put an end to religious wars by excluding
the religious point of view from international politics and recog-
nising the principle of pluralism among states – or at least among
European states (Hegel 1956: 412–57).
Looking forward Hegel questioned the affinity Kant saw
between republicanism and perpetual peace – an affinity which led
him to understand war as the result of either the backwardness of
non-republican states or the lack of a legal framework in interstate
relations or both. Hegel was less confident about the pacific quality
of republicanism and had some hard-nosed observations to make.
First, in republican states responsibility for making war and peace
and for the command of armed forces generally lies not with the
people but with a ‘supreme commander’. The consent of repre-
sentative institutions may be required for the state to go to war or
to secure financing for war, but in any event the people may be more
prone to martial enthusiasm than their rulers.8 Second, there is an
affinity between republicanism and patriotic fervour based on the
rationality of republican institutions and popular identification with
them:
Patriotism . . . is merely a consequence of the institutions within

the state, a consequence in which rationality is actually present,
just as rationality receives its practical application through action
in conformity with the state’s institutions . . . This disposition is
in general one of trust . . . or the consciousness that my sub-
stantial and particular interest is preserved and contained in the
interest and end of another (in this case, the state) and in the
latter’s relation to me as an individual. As a result, this other
(the state) immediately ceases to be an other for me, and in my
consciousness of this I am free.
(Hegel 1991: §268)
People may convince themselves that their patriotism means ‘a will-

ingness to perform extraordinary sacrifices and actions’ but patriot-
ism is essentially a disposition to trust the state and identify with
it (Hegel 1991: §268R). Third, in times of war, when ‘the state as
such and its independence are at risk’, popular identification with

the state is intensified and citizens are readier to sacrifice their own
individuality to the individuality of the state. Self-sacrifice may
appear as an act of individual courage but it remains ‘sacrifice in
the service of the state’ (Hegel 1991: §327A). In war the individual
counts merely as ‘one among many’ and he must bow before the
demands of military discipline.9 He experiences ‘the harshness of
extreme opposites’:
supreme self-sufficiency . . . and total obedience and renuncia-

tion of personal opinion and reasoning . . . personal absence of
mind, alongside the most intense and comprehensive presence
of mind . . . the most hostile and hence most personal action
against individuals along with a completely indifferent or even
benevolent attitude towards them as individuals.
(Hegel 1991: §328)
‘Alienation as the existence of freedom’: this is how Hegel charac-

terises the condition of modern warfare. The valour one is required
to show is more ‘mechanical’ than any other way of risking one’s
life: it is ‘not so much the deed of a particular person as that of a
member of a whole’ and even the hostility the fighter feels is directed
‘not against individual persons but against a hostile whole in gen-
eral’ (Hegel 1991: §328R). Fourth, war can be useful for republican
rulers as a means of averting internal unrest and consolidating the
internal power of the state: ‘Not only do peoples emerge from wars
with added strength, but nations troubled by civil dissension gain
internal peace as a result of wars with their external enemies’ (Hegel
1991: §324 R and A). War can inject vitality into the body politic and
elevate the interest of the community as a whole over the private
interest of the individual. Unrelieved peace can foster social stagna-
tion: people become ‘stuck in their ways’ and devoted exclusively to
private enrichment. And in international relations there is plenty of
scope for a state to feel that it has suffered an injury, that this injury
comes from another state and that its own welfare and security are
at stake. Finally, a voluntary federation of republican states designed
to put an end to wars between them cannot provide the alchemy
required of it in Kant’s cosmopolitan theory. It remains depend-
ent on the particular wills of the member states and it would be
capable of constructing its own enemies: ‘even if a number of states

join together as a family, this league in its individuality must gener-
ate opposition and create an enemy’. If agreement is not reached
among its member states conflict can again arise and be settled by
war (Hegel 1991: §324A).
While Kant turned republicanism and perpetual peace into the
pillars of an ideal political order, Hegel maintained that this congru-
ence depended on an idealised view of the modern state. He sought
to capture the fetishism this idealised view of the modern state in
a severe style. He wrote of the modern state that it is ‘the actuality
of the ethical idea . . . an absolute and unmoved end in itself . . . the
power of reason actualising itself ’ (Hegel 1991: §257–8); he added
that one should ‘expect nothing from the state except what is an
expression of rationality . . . [and] venerate the state as an earthly
divinity’ (§272A); he concluded that as individuals we are mere
‘moments’ in relation to the self-sufficient power of the state and
our existence is a matter of ‘indifference’ compared with that of
the state (§145A). As Hegel clearly and explicitly indicated in the
Preface to his Philosophy of Right, these words (which have shocked
generations of scholars) were intended not as statements of his own
opinion but to capture the concept of the modern state itself: its
megalomania, its pathological belief in itself as an earthly divinity
(Fine 2001a: 22–8).
Modern natural law theory was the framework within which the
rationalisation of state power was expressed. The formation of the
republican state, Kant writes, is a rational necessity everyone must
recognise. The unilateral will of the property owners must give way
to a ‘collective, universal and powerful Will that can provide the
guarantees required’ (Kant 1965: §8). People must be forced into
the state if they fail to do so of their own accord. Once they have
entered into this ‘civil condition’ their absolute obligation is to obey
the law of the state. The duty of the citizen is to ‘endure even the
most intolerable abuse of supreme authority’ since the ‘well-being
of the state’ refers only to that condition in which ‘the constitution
conforms most closely to the principles of justice’ and must not be
confused with ‘the welfare or happiness of the citizens of the state’
(Kant 1965: 86). The state legislature can do ‘absolutely no injustice
to anyone’ and while citizens can lodge complaints about unjust
laws they must not disobey them. It is ‘the people’s duty to endure
even the most intolerable abuse of supreme authority’ (Kant 1965:

86). While citizens have the right and duty to think for themselves,
this right and duty is restricted to ‘the use which anyone may make
of it as a man of learning addressing the entire reading public’ (Kant
1991: 55). Otherwise, as in the case of an officer receiving a com-
mand from his superiors or a clergyman receiving an order from the
church, we must obey. The freedom of citizens does not lie in their
capacity to choose for or against the law but only in their ‘internal
legislation of reason’ (Kant 1965: 28).
There was more to Kant’s political philosophy than this: he
advanced the idea of moral laws as laws of autonomy which indi-
viduals impose on themselves; he recognised that ‘the good attains
the “highest good” only when it is realised in external reality’; he
guaranteed to individuals a maximum of rights compatible with the
rights of others; he celebrated the courage to think for oneself and
called upon citizens to express their reason in public fora. And yet
– and this I take to be the nub of Hegel’s critique – Kant’s critical
philosophy turns out not to be critical enough. State-consciousness
haunts the antechambers of his discussion of republicanism, since
his concern is to rediscover the idea of right in every sphere of
private, public and interstate law he depicts. He gives a roughly
accurate empirical account of power in modern republican states,
only to convert these empirical facts into postulates of practical
reason.10 The suspicion Hegel expresses is that once we explore the
substance of the republican state – the power of its executive, its
propensities to legal authoritarianism, the patriotism it fosters, the
disciplinary powers it wields, the interests of its rulers in war, its
view of itself as an Earthly God – the affinity between republican-
ism and cosmopolitanism becomes more problematic. The lesson
we can draw from Hegel’s critique of Kant’s cosmopolitanism is
that war between states is the product not only of the backwardness
of non-republican states or the lawlessness of interstate relations
but of the form of the modern state itself.
violence and the modern state

In his relation to Kant Hegel did not attempt to wipe the slate clean
as Kant did vis-à-vis the preceding tradition of natural law. He cer-
tainly did not stand for the reinstatement of the rule of power and
contingency in our conceptual framework: ‘it is not just the power

of spirit which passes judgement in world history . . . it is not the
abstract and irrational necessity of a blind fate’ (Hegel 1991: §342).
While he recognised the ethical nature of Kant’s project, to harmo-
nise liberal republicanism with the idea of a cosmopolitan order, he
sought to draw it out of a natural law framework and into the real
world of conflicting social forms.
Freedom, Kant wrote, ‘can transcend any limit we care to impose’.
He placed cosmopolitanism within a progressive philosophy of his-
tory. However, Hegel observed, the freedom to transcend every
limit also has a negative, destructive aspect. To paraphrase Marx,
it can turn all that is solid into air, profane all that is holy, sweep
away ancient and venerable prejudices and newly formed opinions
before they can ossify. It can devalue all established values. Freedom
beyond all limits, Hegel wrote, is ‘the freedom of the void’. Triggered
by the conjunction of absolute freedom and terror in the French
Revolution, Hegel saw in this event the signs of an organised vio-
lence to come, distinct from conventional wars between states. He
often tried to formulate what was original about this violence and
here is an extract from one well-known example in the Philosophy
of Right:
This was a time of trembling and quaking and of intolerance

towards everything particular. For fanaticism wills only what is
abstract, not what is articulated, so that whenever differences
emerge, it finds them incompatible with its own indeterminacy
and cancels them. This is why the people, during the French
revolution, destroyed once more the institutions they had them-
selves created, because all institutions are incompatible with the
abstract self-consciousness of equality.
(Hegel 1991: §5R and A)
Hegel argued that where the essential element of freedom

appears as the possibility of abstracting from every determination
in which I find myself, what is left is only the ‘freedom of the void’.
Raised to the status of an actual shape and passion in the realm
of politics and religion, such freedom expresses itself in a fury of
destruction, for it is only in destroying something that this negative
will has a feeling of its own existence. It may believe it wills some
positive condition, such as universal equality or a new world order,

but its negative consciousness demands the annihilation of every
objective determination. Self-determination becomes ‘sheer restless
activity which cannot yet arrive at something that is’ (Hegel 1991:
§108A). This violence, with its resonances of a totalitarianism to
come, reveals the one-sidedness of linking liberal republicanism too
closely to ideas of peace and freedom. The form of the modern state
also has an internal relationship to a politics that is at once destruc-
tive and nihilistic. Perhaps this is the nub of Hegel’s criticism of
Kant: we cannot simply ratchet cosmopolitan laws and institutions
onto existing forms of the modern state and think we have solved
the problem of political violence. Cosmopolitanism has to be more
transformative than this.
3
Cosmopolitanism and
political community1
The equivocations of
constitutional patriotism
The daunting problem any cosmopolitan faces is how to understand

the relation between cosmopolitanism as a transformative project
and actually existing forms of political community. The new cos-
mopolitanism characteristically pursues a middle path between
two extremes: one is ‘the end of the nation-state’ thesis and its dis-
placement by global forms of political community; the other is the
reconciliation of cosmopolitanism with the existing nation-state.
In place of both extremes the new cosmopolitanism usually con-
ceives the ‘cosmopolitan condition’ as a multilayered global order
consisting of a reformed basis of solidarity within the nation-state,
the development of transnational forms of political community
such as the European Union with new forms of solidarity to match,
and the consolidation of international institutions, movements and
laws regulating relations between states and guaranteeing the rights
and freedoms of global citizens. It treats this multilayered order not
only as something to be desired but as a visible development albeit
one contested from both ends of the political spectrum and in need
of nurturing in its own right. The cosmopolitan condition from this
40 cosmopolitanism and political community
perspective is a differentiated architectonic of legal and political

forms and cosmopolitanism is a way of seeing and acting in rela-
tion to this complexity. This understanding of the relation between
cosmopolitanism as a transformative project and existing forms of
political community is the subject matter of this chapter.
I am not going to start from scratch. In contemporary social
theory it is in the work of Jürgen Habermas that we find a sustained
and intellectually rich attempt to address these issues, and it is
through an engagement with Habermas that I propose to proceed.
I treat Habermas as a sophisticated and thoughtful exemplar of the
new cosmopolitanism who gives to the general approach his own
distinctive slant. Habermas is deeply indebted to Kant. He main-
tains that the challenges posed by the catastrophes of the twentieth
century and the forces of globalisation have given new impetus to
Kant’s idea of a cosmopolitan condition. He recognises that today
we cannot simply echo Kant’s eighteenth-century vision. We have
to ‘iron out its inconsistencies’, radicalise its break from the old
order of nation-states, draw out the connections between peace
and social justice, overcome its metaphysical assumptions and gen-
erally take account of the differences in both global situation and
conceptual framework that now separate us from him (Habermas
1997). Habermas’s intuition, however, is that Kant’s conception of
the ‘cosmopolitan condition’ remains a vital resource for our own
times, and in this spirit he offers a prime example of what Karl-Otto
Apel has called ‘thinking with Kant against Kant’ (Apel 1997: 87).
Whilst I have much sympathy with Habermas’s proposals, they
also give expression to the difficulties cosmopolitan authors face in
trying to break free of the natural law framework and the tempta-
tions which lead them to import a series of questionable idealisa-
tions into their theories. Challenging the ‘idealisations’ attendant in
cosmopolitan conceptions of political community, I would wish to
re-emphasise the role of political judgement on the part of ordinary
citizens.
Constitutional patriotism and

cosmopolitanism
The solution Habermas offers to the problem of reconciling cosmo-
politanism as a transformative project with existing forms of politi-
cosmopolitanism and political community 41
cal community is more ambiguous than it might at first appear. A

distinctively cosmopolitan accent is to be found in his appeal to the
historical contingency of the nation-state as the exclusive organising
basis for political communities, the death of nationalism as a norma-
tive basis for social integration, and the necessity of cosmopolitan
justice occasioned by new global risks and pressures. However,
Habermas maintains that the tension between the nation-state and
cosmopolitanism can be overstated and that respect for constitu-
tionally regulated processes of national politics can be reconciled
with the authority of cosmopolitan institutions. This outcome is
possible if cosmopolitan institutions enforce the same principles of
justice as those that regulate politics at a national level. Only if poli-
tics at a national level express radically different principles of justice
from those that regulate cosmopolitan institutions – if, for example,
a nation-state is based on ethnic principles and authorises major
human rights violations against its own population – only then will
the conditions for conflict be acute. Habermas’s strategy is to look
for reconciliation between national and cosmopolitan institutions,
supplemented by the imposition of cosmopolitan law (by force if
necessary) where the possibility of reconciliation is absent.
Habermas reserves the word ‘nationalism’ (as opposed to patri-
otism) for a regressive credo that unreflectively celebrates the
history, destiny, culture or blood of a nation. At the same time he
emphatically affirms the legitimacy of ‘constitutional patriotism’
and its fit with cosmopolitan thinking. Habermas is well aware that
the historical strength of nationalist sentiment is due to its capacity
to act as a binding power enabling individuals to coalesce around
commonly shared symbols and ideologies, and that the formation
of the modern nation-state has been dependent on the development
of a national consciousness to provide it with ‘the cultural substrate
for a civil solidarity’. Today he presents constitutional patriotism
as the particular type of national consciousness most appropriate
to nation-states seeking to inspire rational loyalty on the part of
their citizens (Habermas 2001a: 64). If some kind of national con-
sciousness is required from the point of view of inculcating a will-
ingness on the part of citizens to do what is required of them for the
common good, such as the maintenance of public services through
taxation or the acceptance of democratic decisions as legitimate, it is
according to Habermas constitutional patriotism that can perform
these integrative functions in ways compatible with cosmopolitan

forms of life.
The constitution serves here as a bridge between the universal
and the particular. On the one hand, constitutional patriotism refers
to a shared attachment towards universalistic principles implicit in
the idea of constitutional democracy. On the other hand, popular
attachment to the idea of a constitution entails the sense of attach-
ment citizens feel towards the particular ways in which abstract
principles are interpreted and applied through national institutions.
Frank Michelman places particular stress on this national aspect:
constitutional patriotism is ‘a disposition of attachment to one’s
country, specifically in view of a certain spirit sustained by the coun-
try’s people and their leaders in debating and deciding disagree-
ments of essential constitutional import’ (Michelman 2001: 265).
Habermas is equally at pains to emphasise the national content of
constitutional patriotism:
The political culture of a country crystallizes around its constitu-

tion. Each national culture develops a distinctive interpretation
of those constitutional principles that are equally embodied in
other republican constitutions – such as popular sovereignty
and human rights – in light of its own national history. A ‘consti-
tutional patriotism’ based on these interpretations can take the
place originally occupied by nationalism.
(Habermas 1998: 118)
The universalism of legal principles manifests itself in a proce-

dural consensus, which must be embedded through a kind of
constitutional patriotism in the context of a historically specific
political culture.
Constitutional patriotism refers both to a shared attachment towards

universalistic principles and to the actualisation of these principles
in the form of particular national institutions. It is this ‘both–and’
quality that allows constitutional patriotism to nurture a disposition
of attachment to one’s country and be compatible with the trans-
formed self-consciousness of world citizens.
Because both constitutional patriotism and cosmopolitanism are
based on universal principles of right, the possibility of conflict does

not disturb the sleep of their advocates. Georg Cavallar, for instance,
champions their unity when he writes: ‘Only constitutional patriot-
ism is by definition all-inclusive and comprehensive, because it is
based on the universal principle of right . . . Only constitutional
patriotism does not contradict cosmopolitanism’ (Cavallar 1999:
143). Habermas balances the constitutional and national aspects of
constitutional patriotism thus:
The political integration of citizens ensures loyalty to the com-

mon political culture. The latter is rooted in an interpretation
of constitutional principles from the perspective of the nation’s
historical experience . . . These [constitutional principles] form
the fixed point of reference for any constitutional patriotism that
situates the system of rights within the historical context of a
legal community.
Precisely what is meant by reconciling constitutional principles

with the historical experience of a nation is not yet spelt out and
the question remains whether this theoretical reconciliation con-
fronts the real dilemmas citizens may face over whether to support
their ‘own’ national interpretation of constitutional principles or
accede to a more distant cosmopolitan view. Such a conflict is not
hard to envisage, and Habermas illustrates its potential when he
draws a strong contrast between Anglo-American and continental-
European interpretations of the principles of international law: ‘the
former resorting to maxims of traditional power politics, the lat-
ter appealing to more principled reasons for transforming classical
international law into some sort of cosmopolitan order’ (Habermas
2001b). Habermas himself refers to what he sees as the distinct
traditions of J. S. Mill-style liberal nationalism and Kantian liberal
internationalism. The distinction between these traditions indicates
exactly the kinds of intellectual and historical resources that might
stimulate potentially disturbing conflicts between constitutional
patriotism and cosmopolitanism.
The potential for conflict between constitutional patriotism and
cosmopolitanism may be concealed for reasons Habermas would
not find attractive, namely that we are dealing here with elastic and
unstable concepts which make it difficult to render firm concep-

tual distinctions. If constitutional patriotism is only a shared com-
mitment to the constitutional regulation of power, then it is little
wonder that it extends easily across national boundaries. But if it is
meant to locate these principles firmly within the corporate identity
of a national community, then its extension across national bounda-
ries becomes more challenging and must overcome the national dif-
ferences that constitute part of its content. Thomas Mertens, for
example, argues that without shared understandings and a particular
forum within which constitutional powers can be fashioned, there
is, properly speaking, no such thing as a political community or
culture at all (Mertens 1996: 340). The thrust of this approach is
to shore up constitutional principles through the shared sense of
attachment that only national communities provide. The problem is
that constitutional patriotism may be either too strong or too weak
to serve Habermas’s purpose. In its strong form it binds the people
of a particular nation around their own distinctive interpretations of
constitutional principles at the cost of closing them off from effec-
tive identification with cosmopolitan considerations. In its weak
form it constitutes a simple adherence to formal procedures for
the realisation of constitutional principles and fails to establish the
ethic of solidarity necessary to facilitate the formation of political
community.

German nationalism
Habermas developed the theory of constitutional patriotism in the
German context as a device to integrate pluralistic and multicultural
national communities on a rational and lawful basis and provide an
antidote to all forms of (ethnic) nationalism.2 He acknowledged
that nationalism might once have provided valuable moral resources
for anti-imperialist struggles or the building of welfare states, but
he maintained that nationalism can no longer meet the normative
requirements of our age. He depicted constitutional patriotism as a
self-reflective form of loyalty to the constitutional principles of the
state that relativises our own way of life, grants strangers the same
rights as ourselves and enlarges tolerance and respect for others.
It recognises the necessity of nation-states but also the heteroge-
neity of their populations. It is inclusive of all citizens regardless

of race, colour, creed, gender, language, religion or ethnicity, and
the political community it visualises is one of equal rights-bearing
individuals united by a shared attachment to constitutional practices
and values.
Habermas emphasises the distinction between constitutional
patriotism and the more traditional forms of patriotism. While patri-
otism in general may be read as a disposition to trust in and identify
with the state, constitutional patriotism demands loyalty only to the
constitutional principles of the state and not the state itself. While
patriotism in general requires obedience to the law of the land, con-
stitutional patriotism distinguishes between what is law and what is
right and mandates that all positive law be evaluated in the light of
universal precepts embodied in the constitution. The principles of
the constitution stand in for natural law. The critical content of con-
stitutional patriotism is the principle that the state can expect obe-
dience to its law only if it rests on principles worthy of recognition.
Habermas portrays the idea of the constitution as the ‘terminus ad
quem of the process of juridification of political power’ (Habermas
2006: 131). He presents it as the form of law that ‘a community of
free and equal citizens gives itself ’ and distinguishes it sharply from
the state: whilst the state is a ‘complex of hierarchically organised
capacities available for the exercise of political power’, the constitu-
tion is a ‘horizontal association of citizens’ constructed by ‘laying
down the fundamental rights that free and equal founders mutually
grant each other’. In short, Habermas presents the constitution as
the apex of the ‘republican transformation of state power by law’:
the apex because it finally reverses the initial situation in which ‘law
serves as an instrument of power’ (Habermas 2006: 131–2).
The idealisation of the constitution draws its persuasiveness
from the role of the constitution in regulating the power of the
state, specifying its division of powers, guaranteeing the rights of
individuals and articulating the underlying values the state purports
to uphold. However, behind the appearance of a free constitution
we still encounter a definite constitution – one which is not a matter
of free choice but, as Hegel once put it, ‘accords with the national
spirit at a given stage of its development’ (Hegel 1975: 123). The
constitution is not only the organising principle of the modern state
but is also one element in the complex organism of the political
state as a whole. As such, it exists alongside the other elements of

the state – notably, the sovereign, the representative assembly, the
executive and the judiciary. The modern state is a complex and dif-
ferentiated organism and its various powers acquire their individual
significance through the functions they perform in relation to one
another. The constitution not only guarantees rights and inhibits
power but it also (to paraphrase Hegel and Marx) allows for change
only in so far as it is tranquil, prevents people from crystallising
into a powerful opposition to the organised state and constitutes
the sacred element of the state apparently exalted above the sphere
of contingency and human agency (Hegel 1991: §273–302). The
question I would address, therefore, is whether constitutional
patriotism affords to the constitution an aura of freedom that is dif-
ficult to square with the actual constitution imposed on post-1945
Germany by the victorious powers, which contained the right of
return for ethnic Germans and provided a focal point around which
a broad political coalition afraid of radical change coalesced. To be
sure, these attributes are not at all attractive to Habermas, whose
decoupling of state and nation explicitly called into question the
West German Basic Law and its volkish conception of citizenship,
but they highlight the difficulty of setting the constitution over and
above the formation of the state as a whole.3
There is a curiously German inflection to the theory of constitu-
tional patriotism. If it is true, as Habermas was not alone in think-
ing, that Germany emerged on the basis of a volkish conception of
the nation and became the standard bearer of romantic nationalism,
Habermas reverses all that and in his thought post-war Germany
takes over the torch of enlightenment (Meinecke 1977). Germany
appears as an exemplary nation in the sense that it has ‘learnt’ from
history of the dangers of a non-rational sense of political belonging
and has adopted ‘a postnational self-understanding of the politi-
cal community’ (Habermas 1998: 119). In a paradoxical moment
Habermas presents Germany as the European nation that, because
of its own nationalist excesses and the painful memories that ensued,
most fully acknowledges nationalism as the ‘terrible, horrific regres-
sion’ that it is. In Germany national identity can be rebuilt only
through a sense of joint responsibility among Germans to keep alive
the memory of those murdered by German hands, a responsibility
which carries over into next generations. Constitutional patriot-
ism finds a special home in Germany for the German condition

highlights the essential lesson of twentieth-century history – that
nationalism is no longer defensible as an ethical ideal. From the
point of view of one brought up in post-war England, where the
British war effort was highly praised in nationalistic terms, it may
appear that Habermas had a point.
The paradoxical sense of German pride Habermas gives to the
theory of constitutional patriotism, a pride in having learnt from
history, carries with it an equivalent sense of guilt for those who still
think in nationalist terms. Habermas not only distinguished con-
stitutional patriotism analytically from nationalism, he also treated
nationalism as one of the pathologies of modern society. The theory
of constitutional patriotism declares that a key political struggle of
our age is between those who believe that their nation should be
based on universal constitutional principles and those who still base
their nation on ethnic or at least culturally specific membership.
If all nationalism is Janus-faced, containing within itself both the
values and the barbarities of the idea of national self-determination,
Habermas puts all that is positive on the side of constitutional patri-
otism and all that is negative on the side of nationalism. This con-
ceptual dichotomy, however, splits the good from the bad without
confronting the equivocations of nationalism as such. The risk of
such an approach is that it constructs a moral division of the world
between us and them, friend and enemy, constitutional patriot and
nationalist, that stigmatises the other as much as it idealises itself.
This dualistic way of thinking has echoes of an old Marxism that
made equally categorical distinctions between the ‘nationalism of the
oppressed’ and the ‘nationalism of the oppressor’. This opposition
was originally rooted in the division of the world between colonis-
ing and colonised countries but came to be an organising principle
of Marxist political thought that made arbitrary distinctions based
on all manner of contingent factors, especially the relation of this or
that nationalism to Russian foreign policy imperatives (Rodinson
1972). The dichotomy between nationalism and constitutional
patriotism is, of course, conceptually quite different from the
dichotomy between the nationalisms of the oppressor and of the
oppressed, one based on content and the other on form, but in both
cases we find ourselves immersed in a prior settlement that creates
its own notions of superiority and inferiority. I do not claim that
constitutional patriotism must be exclusionary in this way – only

that the urge is internal to it (Mehta: 1999). These observations are
not intended to support a light-minded relativism, as if there were
nothing to choose between nationalism and constitutional patri-
otism, but to open up a more troubling vista: that constitutional
patriotism is closer to nationalism than its advocates would like to
think and its compatibility with cosmopolitanism less secure. It is
perhaps this sense of unease over the affinity of constitutional patri-
otism to nationalism that led Habermas to relocate the theory on a
transnational stage.
Constitutional patriotism and the turn

to Europe
Faced with the difficulties of reconciling cosmopolitanism with
constitutional patriotism at the level of the nation-state, Habermas
turns to the idea of the transnational political community and the
European Union in particular as a functional equivalent to the
nation-state in a postnational age. His remark that ‘national politics
have dwindled to more or less intelligent management of a process of
forced adaptation to the pressure to shore up purely local positional
advantages’, may be taken as exemplary of the reduction he sees in
the nation-state’s own functional capacities (Habermas 2001a: 61).
Habermas advanced a number of persuasive pragmatic arguments
in favour of this transnational turn. He suggests, for example, that
transnational mechanisms of governance are more capable than
national governments of constructing a life-world response to the
systemic forces of globalisation, more capable of integrating ‘mixed’
populations with a self-awareness of their own cultural diversity,
and more capable of overcoming the kind of nationalism that led to
two world wars, the mass production of displaced persons and the
rise of national socialism.
To be sure, the pragmatic arguments for the transnational turn
are all contestable. First, the formation of a transnational body such
as the European Union may be a necessary condition for responding
politically to globalising systemic pressures but it is not sufficient.
Some conservatives who share Habermas’s enthusiasm for the polit-
ical integration of the European Union do so for opposite reasons:
they applaud the fact that the EU is functionally driven and erodes
inhibitions imposed by nation-states on the movement of capital.

Conversely, the normative presupposition of some social democrats
opposed to the political integration of the European Union is that
social democracy is only realisable through the institutions of the
nation-state. Second, the theory of constitutional patriotism itself
reveals, the modern idea of the nation is no less artificial than the
idea of the transnational political community. Both create political
unity among rights-bearing citizens from diverse backgrounds and
it is not self-evident that a multicultural nation-state is less capa-
ble of providing a political form appropriate to the heterogeneity
of populations than a transnational political community. Third,
totalitarian movements in the mid-twentieth century were not in
any strict sense nationalistic. They represented a reactionary form
of revolt against the whole system of nation-states, they organised
on a transnational scale, they had global ambitions, they scorned
the parochialism of nationalist ways of thinking, they were bent
on the destruction of the institutions of the nation-state, and they
thought and acted in terms of racial or class principles that shat-
tered any conventional sense of national unity. The reconstruction
of the nation-state could provide, as Talcott Parsons appreciated,
as plausible a response to the experience of totalitarianism as the
construction of new transnational entities (Chernilo 2007a).
Over and above any such pragmatic considerations Habermas
views the extension of constitutional patriotism from the national
to the European level not only as providing a rational basis for
European political integration but also as furthering the process of
separating citizenship from Volk that began in the post-war German
context. However, the equivocations of transnationalism as a politi-
cal solution to the problems raised both by globalisation and nation-
alistic responses to globalisation impelled Habermas to place more
weight on the specific idea of ‘Europe’ to justify the transplantation
of constitutional patriotism to this level. Although Habermas envis-
ages the EU as a model for other transnational political communi-
ties, he also represents it as occupying its own determinate social and
cultural space. Europe, he maintains, supports the re-instatement
of the re-distributive policies of the welfare state; Europe permits
a close mesh of deliberative politics, civic value orientations and
shared conceptions of justice; Europe provides a space in which
human rights culture and politics can flourish and in which citizens
can see themselves at once as nationals, Europeans and world citi-

zens. The terms that run through his analysis of Europe are those
of ‘shared values’, a ‘form of life’, a ‘model of society’, a ‘civic tradi-
tion’, a ‘particular ethos’, etc. In his essay on ‘Why Europe needs a
constitution’ Habermas argues that the project of European politi-
cal union requires ‘the legitimation of shared values . . . an interest
in and affective attachment to a particular ethos . . . the attraction of
a particular way of life’. During the third quarter of the past century,
he writes, ‘the citizens of Western Europe were fortunate enough to
develop a distinctive form of life’ and today this persists. His socio-
logical faith is that ‘against perceived threats from globalisation’ the
citizens of the EU ‘are prepared to defend the core of a welfare state
that is the backbone of a society still oriented towards social, politi-
cal and cultural inclusion’. Europe, in his view, is ‘more than a mar-
ket . . . it stands for a model of society that has grown historically’
(Habermas 2001b: 8–10). The ‘post-traditional’ model of society
Habermas sees in Europe has nothing to do with the Carolingian
heritage of the founding fathers of Europe with its explicit appeal
to a Christian West, nor indeed with any concept of a European
nation existing independently of, or prior to, the political process
from which it springs. Yet it is precisely this post-traditional quality
that distinguishes the European political community from others
and makes it special.
The form of life Habermas sees in Europe is one that acknowl-
edges its own deeply equivocal history but stands for normative
principles that learn from and confront the dark side of this his-
torical experience. In his earlier writings on Germany, Habermas
spoke of the need for a ‘critical appropriation of ambiguous tra-
ditions’ to understand how a civilised nation could be capable of
the crimes committed under Nazism and yet recover the tradition
of constitutional patriotism inaugurated by Kant. Now he brings
the idea of ‘critical appropriation’ to a larger European canvas. This
reconstructive approach is important if we are not simply to impose
an abstract ‘ought’ on Europe but build on what already exists.
Yet there is something ambiguous in this ‘critical appropriation of
ambiguous traditions’. In earlier writings Habermas cited Thomas
Mann: ‘There are not two Germanys, an evil and a good, but only
one which, through devil’s cunning, transformed its best into evil’.
He also cites Walter Benjamin: ‘There has never been an artefact of
culture that is not at the same time an artefact of barbarism’. We

might add the warning bell rung by Hannah Arendt at the start of
her book, The Origins of Totalitarianism:
We can no longer afford to take that which was good in the past
and simply call it our heritage, to discard the bad and simply
think of it as a dead load which by itself time will bury in oblivion.
The subterranean stream of Western history has finally come to
the surface and has usurped the dignity of our tradition. This is
the reality in which we live.
(Arendt 1979: ix)
To my mind, these quotations go against the grain of simply

treating the tradition of ‘constitutional patriotism’ as the good and
calling it our heritage and discarding ‘nationalism’ as the bad and
thinking of it as a dead load. Charles Turner points out that the
theory of constitutional patriotism does not easily cohere with ‘the
view from Eastern Europe’ where:
the source of pain was not ‘nationalist excess’ alone, but rather
six years of Nazi occupation followed by forty years of Soviet
domination . . . The lesson of history here is not one in which
the mistakes of the past are corrected, but one in which the past
continues to haunt the present.
(Turner 2004: 303)
From this perspective Habermas’s critical appropriation of ambig-

uous traditions may appear too quick to ‘resolve’ the equivocations
of the past. He not only faces the sociological question of how far
his enlightened vision for Europe is in fact rooted in the social and
political consciousness of Europeans, especially given the regression
of public opinion into defensive manoeuvres of a nationalistic kind,
but also the conceptually more demanding question of whether the
postnational vision of Europe represents a kind of nationalism writ
large that may not be appealing to all its constituent parts, let alone
to those outside its borders. His anti-Gemeinschaftlich version of
Europe avoids any formulation of European identity along cultur-
ally homogeneous lines, but the appeal to a European ‘way of life’,
grounded neither in state power (the medium of the east) nor in
money (the medium of the west) but in communicative rationality

(the medium of civil society), has an affinity to nationalism – enough
at least to question the premature identification of constitutional
patriotism with the name of cosmopolitanism.

democracy
There is a further issue raised by the turn to Europe that one might
expect would make Habermas wary of the transnational turn: it has
to do with the question of democracy. For Habermas, constitutional
patriotism has a rational content in part because it rests on the twin
pillars of human rights and democratic participation. It represents
a shared attachment to political procedures that offer citizens the
chance to be at the same time recipients and authors of the laws that
govern them: bearers of rights and participants in the processes that
determine the distribution of rights. In this conception of political
community any democratic praxis presupposes participants as bear-
ers of legal rights and any system of rights presupposes that they
are legitimated and substantiated through democratic deliberation.
Habermas writes:
The internal relation between democracy and the rule of law

consists of this: on the one hand, citizens can make appropriate
use of their public autonomy only if, on the basis of their equally
protected private autonomy, they are sufficiently independent;
on the other hand, they can realise equality in the enjoyment of
their private autonomy only if they make appropriate use of their
political autonomy as citizens.
(Habermas 2001a: 118)
Within the framework of the nation-state this normative perspective

is actualised by the constitutional regulation of power and guarantee
of basic rights, the creation of positive laws in the representative
assembly, a professional civil service, an impartial judiciary and a
healthy civil society and public sphere. The question is whether
the co-originality of rights and democracy can hold when we move
from a national to transnational frame of reference.
While Habermas is quick to deride the idea that solidarity ties are
conceptually linked to a nation-state, he is cautious about breaking

the connection between democracy and the nation-state. At times
he offers a depiction of democracy that stresses the boundaries
of political community within the nation-state: ‘democratic self-
determination can only come about if the population of a state is
transformed into a nation of citizens who take their political des-
tiny into their own hands’ (Habermas 2001a: 64). At other times he
seems to hold that the attainment of democracy beyond the limits
of the nation-state is both a desideratum and real possibility: ‘pre-
cisely the artificial conditions in which national consciousness arose
argue against the defeatist assumption that a form of civic solidarity
amongst strangers can only be generated within the confines of the
nation’ (Habermas 2001a: 102). His understanding of constitutional
order, that it is ‘a political order created by the people themselves
and legitimated by their opinion and will formation’, does not pre-
suppose the existence of a nation and leaves the scope of democratic
political community undefined providing only that democratic pro-
cedures exist to facilitate the legitimate generation of positive law
(Habermas 2001a: 65).
One of the problems Habermas has to face in transplanting
constitutional patriotism to Europe is the well-worked charge that
transnational institutions cannot replicate the democratic legitimacy
possible at the national level. Will Kymlicka puts the matter thus:
‘transnational organisations exhibit a major “democratic deficit”
and have little public legitimacy in the eyes of citizens’ (Kymlicka
2001: 312). Habermas acknowledges that in transnational political
communities it is harder for individual citizens to relate to authori-
tative decisions: ‘As new organisations emerge even further removed
from the political base, such as the Brussels bureaucracy, the gap
between self-programming administrations and systemic networks,
on the one hand, and democratic processes, on the other, grows
constantly’ (Habermas 1998: 151). He acknowledges that a demo-
cratic deficit emerges because no effective way has yet been discov-
ered to replicate the forms of national democratic deliberation and
decision-making at the transnational level. The dilemma it creates
for Habermas is that on the one hand he holds that transnational
political community is required for all the conceptual and practi-
cal reasons elaborated above, and on the other that transnational
institutions do not easily compete with the democratic legitimacy
of national decision-making.
In the face of this dilemma a device Habermas employs is to

draw on the two track theory of deliberative democracy he origi-
nally devised for national communities. There must be some organic
connection between formal processes of democratic will-formation
in representative bodies and informal processes of opinion forma-
tion within the public sphere – some scope for creative interaction
between the two spheres. Civil society must be able to influence,
though not coerce, processes of will formation and this influence
must go beyond conventional means of participating in elections.
One reason why Habermas accords such a significant role to civil
society is its epistemic function for democracy: ‘democratic proce-
dure no longer draws its legitimising force only, indeed not even
predominantly, from political participation and the expression of
political will, but rather from the general accessibility of a delibera-
tive process whose structure grounds an expectation of rationally
acceptable results’ (Habermas 2001a: 110). The rational quality
of outcomes is dependent on a deliberative process sensitive to
the communicative power generated at the level of civil society,
a power difficult to achieve in the sphere of will formation. This
intimate relationship between democratic procedures whose legiti-
macy rests on the grounds that they are open to all and democratic
procedures whose legitimacy rests on the grounds that deliberation
and decision-making have a rational quality, helps us understand
how Habermas expects transnational bodies to achieve acceptable
standards of democratic legitimacy. Even if the deliberative proc-
esses of civil society are unable to replicate the legitimacy conferred
on nation-states through representative bodies, they may at least be
able to mimic the informal moment of democratic legitimacy:
The institutionalised participation of non-governmental organi-

sations in the deliberations of international negotiating systems
would strengthen the legitimacy of the procedure insofar as mid-
level transnational decision-processes could then be rendered
transparent for national public spheres, and thus be reconnected
with decision-making procedures at the grassroots level.
The strength of this argument lies in the complex view of

democratic legitimacy it invokes. However, it downplays the role
of representative bodies at the transnational level and suggests

that democratic legitimacy at this level can be more of a one track
rather than two track process. It may be true, as Habermas claims,
that emphasising the rationality of deliberative processes ‘loosens
the conceptual ties between democratic legitimacy and the familiar
forms of state organisation’, but loosening the ties is a different
matter from breaking them altogether.
The difficulty is this: the larger units of political decision-making
required to control global economic forces are those that are likely
to have less democratic legitimacy by the standards of democracy
Habermas has elaborated in the context of the nation-state. He fore-
stalls pessimism by encouraging us to re-conceptualise the European
Union through the lens of a new kind of democratic political body.
Nonetheless, he risks undermining values he wishes to promote,
namely those that support a democratic form of political life, by
advocating a transnational solution which cannot secure the same
degree of democratic legitimacy as the nation-state. Increasingly
Habermas seems to handle this problem by emphasising that
‘democratic procedures of legitimation . . . demand a form of civic
solidarity that cannot be extended at will beyond the borders of the
nation-state’ and arguing that, since the EU is not a ‘state’ in the
proper sense of the term and lacks the core element of sovereignty,
namely monopoly on the legitimate use of force, it is not subject to
the same demanding requirements of democratic legitimacy as the
nation-state (Habermas 2006: 139). He seems to reconcile himself
to the prospect that, at the transnational level, ‘constitutions of the
liberal type recommend themselves’, that is, a constitutional order
only indirectly tied to processes of democratic legitimation.
cosmopolitanism and natural law

theory
This reconstruction of Habermas’s political writings illustrates
some of the complexities of adopting a cosmopolitan perspective.
It involves three stages of analysis: (a) it traces the shifting basis
of solidarity at the national level and extracts from this analysis
normative conclusions regarding the decline of nationalism and
rise of constitutional patriotism as a form of reflective and critical
solidarity justifiable in their own right and compatible with a cos-
mopolitan political imagination; (b) it traces the conflicts involved

in seeking to develop constitutional patriotism at the national level,
including the emergence of surrogate forms of nationalism, and
the kinds of resolution offered by the development of transna-
tional forms of political community; and (c) it traces the conflicts
involved in the development of transnational resolutions in relation
to the danger both of constructing a new nationalism writ-large and
of not being able to reproduce the degree of democratic legitimacy
possible at the national level. In the next chapter I shall pursue this
story at the level of international institutions and laws. At this stage,
however, we can draw certain conclusions concerning the differen-
tiated character of the ‘cosmopolitan condition’ and some of the
misunderstandings which surround it.
The new cosmopolitanism is not so much about the displacement
of the national by the transnational and thence the international but
rather about the ‘fit’ between these levels of political community.
It is about the necessity of enlarging our political imagination so as
to be able to break from the fetters of nationalism politically and
methodologically. The great strength of Habermas is that he locates
cosmopolitanism in the world of actually existing political forms
and he looks for the real-life bearers of the cosmopolitan project
on this terrain. This said, I have tried to show that the fit between
constitutional patriotism and cosmopolitanism is more problematic
than Habermas allows. There is something about the way Habermas
imagines reconciliation that is indicative of the difficulties the new
cosmopolitanism has more generally in extracting itself from a
natural law framework. Whilst he is not to be faulted for seeing the
cosmopolitan condition as a complex and differentiated whole, the
reconciliation he offers between cosmopolitanism as a transforma-
tive political project and existing political communities hangs on
idealisations of the constitution, patriotism and the idea of Europe
that rationalise rather than confront the exclusions on which they
are based. One of the challenges facing cosmopolitan social theory
is how to foster the development of particular forms of political
community whilst at the same time resisting the temptation to iden-
tify them with the name of cosmopolitanism.
I shall end this chapter with the observation that Habermas
self-consciously analyses cosmopolitanism within the framework
of natural law theory. This claim may appear surprising given his
explicit commitment to overcoming Kantian metaphysics but for

Habermas this means modernising natural law theory, not supplant-
ing it. For Kant, as we have seen, the necessity of embracing a cos-
mopolitan perspective was not accounted for primarily as a political
response to social circumstances but as a demand of reason. He
deduced cosmopolitanism from the postulates of Practical Reason.
Habermas rejects the suggestion that cosmopolitanism can be justi-
fied in this way. One of the key problems he sees in Kant’s theory
of cosmopolitanism is precisely the metaphysical baggage it still
carries. Rather than derive the idea of the ‘cosmopolitan condition’
from a priori principles of right, he introduces the ‘postmetaphysi-
cal’ proposition that if individuals are to be the authors of the laws
to which they are subject, then the form and content of these laws
have to be determined through intersubjective processes of delib-
eration. The issue here is one of admitting democratic procedures
and non-deterministic forms of reasoning into the determination of
cosmopolitan right. Habermas looks for a space in which the politi-
cal urgency of cosmopolitan solidarity may be given its due and one
of the points of contention he has with Kant is that transcenden-
tal deductions of the idea of right are insufficiently connected to
political processes of deliberation. By embedding individual rights
within processes of radical democratic praxis Habermas develops
the intuition that rights and democracy cannot be imagined apart
from one another. The thought that cosmopolitanism represents
the rational will of freely deliberating citizens, and not only the a
priori deduction of the philosopher, animates his writings. So, while
Kant advocates cosmopolitan politics as a necessary next step in the
project of realising the idea of right and the opportunity to opt out
of this process or deny the rationality of cosmopolitan justice does
not easily cohere with this approach, Habermas sees cosmopolitan-
ism as a desirable political project responding to the inability of the
nation-state to realise the freedom of its citizens on the exclusive
basis of its own resources. For Habermas, in short, cosmopolitan-
ism furnishes the means by which citizens can, if they so choose,
reclaim the scope for agency that contemporary developments have
denied. It is a shared project Habermas invites us to join and fashion
in our own image and not simply an institutional blueprint projected
onto reality.
In the work of Habermas, however, we can scarcely miss the
inclination to depict this particular political and intellectual choice,

that of cosmopolitanism, as the choice that is in accord with the law
of nature. Against a seemingly intransigent faith in the nation-state,
Habermas presents cosmopolitanism as the logical culmination of the
principles of right on which enlightenment was founded (Habermas
2006: 133). The underlying argument is that the universal principles
of right and law, though once swamped by the particularistic self-
assertion of one nation against another, are ‘best suited to the iden-
tity of world citizens, not to that of citizens of a particular state that
has to maintain itself against other states’. For Habermas, there is a
sense in which the rational necessity of cosmopolitanism is not up
for discussion and a democratic community cannot opt out of the
project of realising constitutional principles at the national, tran-
snational and global levels. The sense of a Law of Nature asserting
itself behind our backs may account for Habermas’s insistence that
cosmopolitanism is reconcilable with constitutional patriotism and
must be institutionalised notwithstanding the problems of political
hierarchy and democratic legitimacy this raises.4 To my mind, this
form of reasoning not only irons over the creases of the modern
state; it also downplays the difficulties of cosmopolitan judgement
in a world which, to say the least, is only partially cosmopolitan.
4
Cosmopolitanism and
international law1
From the ‘law of peoples’ to the
‘constitutionalisation of international law’
This chapter focuses on the role of international law within the

‘cosmopolitan condition’. It addresses the juridical approach to
cosmopolitan thinking taken by Rawls and Habermas and how this
differs from those who advocate ‘cosmopolitan democracy’ or ‘glo-
bal civil society’. I shall argue that whilst there are good reasons
for not embracing the perspectives of cosmopolitan democracy and
global civil society, something is lost in the process of juridification.
The idea of the ‘Law of Peoples’ put forward by John Rawls sets
the scene for cosmopolitan thinking about international law in a
way that is correctly described as ‘liberal’ but it also has some non-
cosmopolitan and worrying implications. The case for the ‘constitu-
tionalisation of international law’ embraced by Habermas creatively
builds on his theory of constitutional patriotism at the national and
transnational levels. He successfully, to my mind, addresses the
defects of Rawls’s Law of Peoples but in a manner that raises dif-
ficult questions about the status of international law and its relation
both to the violence of the state and to the power of the people.
60 cosmopolitanism and international law
Whilst the meaning of the constitutionalisation of international law

is not entirely clear, I argue that it threatens to turn the principles
of international law into the foundation of a ‘cosmopolitanised’
natural law theory and restrict the role of political judgement to a
transitional and subordinate moment.
Cosmopolitan democracy and global

civil society
Advocates of cosmopolitan democracy (Archibugi 1998, 2000;
Held 1995b, 2004) argue that cosmopolitan democracy is distinct
from other projects for world government in its attempt to ‘create
institutions that enable the voice of individuals to be heard in global
affairs irrespective of their resonance at home’ (Archibugi 2004a:
144). They propose not only the reform of the UN, the WTO
and other global bodies but a ‘parallel series of democratic institu-
tions’ including an assembly of representatives whom the people
can elect through international political parties. The task they have
undertaken, which I shall not discuss here in any detail, is a dif-
ficult one: it is how to conceive of cosmopolitan democracy given
that the existing structures of international organisations such as
the United Nations or the WTO appear antithetical to democratic
norms and given that at the international level the obstacles in the
way of establishing democratic norms of representation, administra-
tion, enforcement and legitimation are themselves dauntingly high.
Nonetheless, there has been much creative thinking about how to
establish a cosmopolitan party system and deliberative assembly;
how to implement democratic decisions and channel deliberative
power into concrete policy initiatives; how to ensure individual state
actors comply with cosmopolitan legislation; and how to encourage
people to identify with cosmopolitan institutions, accept their deci-
sions and respect other members as free and equal citizens. There
has emerged widespread consensus among cosmopolitan writers in
favour of reform of the UN and other international institutions,
the construction of new institutions of democratic governance and
more robust forms of legitimation, either direct or indirect, from
global public opinion.
While proposals for democratic reform of and innovation in
international institutions are to be treated on their merits, theories
cosmopolitanism and international law 61
of ‘cosmopolitan democracy’ may be more difficult to sustain. They

become especially problematic if they have resonances of establish-
ing a democratic republic writ large – a world state akin to political
states at the national level. This way of thinking comes up against
the empirical objection that ‘the political constitution of a world
society lacks the character of a state as a whole’ (Habermas 2006:
136) and the normative objection, prefigured by Kant, that a world
state is in any case the wrong model for thinking about cosmopoli-
tan order. If we expect the same standards of democratic legitima-
tion as those we demand of republican government, not only might
we have to prepare for perpetual disappointment but also for the
de-legitimisation of international laws and institutions. Habermas
goes further and argues that the concept of ‘cosmopolitan democ-
racy’ may be self-contradictory in that the all-inclusive character of
cosmopolitan institutions excludes democracy in principle:
Any political community that wants to understand itself as a

democracy must at least distinguish between members and
non-members. The self-referential concept of collective self-
determination demarcates a logical space for democratically
united citizens who are members of a particular community.
Even if such a community is grounded in the universalistic prin-
ciples of a democratic constitutional state, it still forms a col-
lective identity in the sense that it interprets and realises these
principles in light of its own history and in the context of its own
particular form of life. This ethical-political self-understanding of
citizens of a particular democratic life is missing in the inclusive
community of world citizens.
The case Habermas advances is that democratic legitimacy is not

possible in a political body that embraces everyone and provides no
particular foundation for collective identity or civic solidarity, and
that it is not necessary, or as necessary as in nation-states, because
international institutions perform limited functions (such as secur-
ing peace, promoting human rights and protecting individual rights)
and impose only negative duties (no wars of aggression, no viola-
tions of human rights, no crimes against humanity). However, we
cannot avoid the question theorists of cosmopolitan democracy

raise: what is left of democracy at the supra-national level.
Advocates of global civil society look to civil society as a source
of de-centred, democratic authority, based on horizontal networks
of interconnected ‘nodes’, capable of co-ordinating action by means
of information and communication technology independently both
of state and market (Walzer 1995; Castells 2000; Rosenau 2002).
Global civil society encompasses transnational non-governmental
organisations, social movements and other formal and informal
associations that contribute to the growing emphasis on human
rights and social justice in the international arena as well as to the
implementation of international legislation in domestic jurisdic-
tions. Examples might include the crucial role global civil society
played in the Ottawa Convention on Banning Landmines, in the
events leading up to the arrest of Pinochet or in the formation of
the International Criminal Court (Kaldor 2003). The strength of
this perspective lies in its recognition that transnational advocacy
networks can play a leading role in bringing issues of public concern
to the top of the international agenda and influencing otherwise
resistant representative and executive bodies. Civil society argu-
ments provide for the crucial role of publicity, the public uses of
reason and the public sphere in world society and for the formal and
informal influencing of civil society on legal and decision-making
processes (Lara 2007).
Yet the problems of global civil society theory are no less than
those of cosmopolitan democracy. Civil society associations arise
out of the same political economy as other international institutions,
they are subject to the same pressures of co-optation by powerful
interests, and their own policy making structures are often just as
remote from the deliberations of any representative body (Lupel
2004). In Europe the development of a transnational civil society
in isolation from representative institutions might even enhance the
feeling of detachment of European citizens, since participation in
transnational civil society presupposes a range of cognitive skills
and social opportunities that may be limited to relatively few citi-
zens within each nation-state. At the national level civil society is a
middle term between the private lives of citizens and the political
state and it becomes incoherent or positively unsafe when afforded
supreme status in its own right. Habermas argues that we have to
dispel the romanticism of civil society that sees it as an alternative

to the representative institutions of modernity. At the global level,
where there is no international state in the strict sense of the term,
civil society cannot substitute for it. Civil society is not a singular
‘subject’ with its own undivided will and should not be presented as
such (Fine 1997).2
If cosmopolitan democracy is too much like a world state and
global civil society too little, a ‘third way’ for the cosmopolitan to
take is to look to the development of a form of cosmopolitan law,
backed by coercive capacities, to regulate relations between states,
protect the basic rights of citizens and impose itself on sovereign
legislators as an external constraint. This strategy fits well with a
Lockeian form of natural law theory that presents us with an image
either of a benevolent grouping of powerful, well-ordered states act-
ing in the best interests of all individual rights-bearers or of a con-
stitutional order legislating, adjudicating and enforcing the rights
of subjects. In this third way, questions of democratic legitimacy,
civil society initiative and the influence of public opinion are self-
consciously downplayed.
John Rawls and the Law of Peoples

In The Law of Peoples Rawls makes the case that ‘a constitutional
regime must establish an effective Law of Peoples in order to realise
fully the freedom of its citizens’ (Rawls 1999: 10). The principles
he outlines for the Law of Peoples are for the most part philosophi-
cal re-formulations of well-established principles of international
law. They emphasise the independence and self-determination of
peoples, respect for treaties and other agreements between peoples,
non-intervention in the internal affairs of other peoples, and norms
regulating the conduct of war between peoples. In line with recent
directions in international law they also advance more distinctively
cosmopolitan themes: peoples are bound to honour human rights,
the principle of non-intervention may be suspended in the case of
major human rights abuses, and the principles of international law
provide the frame of reference for the effective authority of inter-
national organisations such as the United Nations or World Trade
Organisation.
Rawls denies that the Law of Peoples is a cosmopolitan project.
However, this denial is related to his definition of cosmopolitanism

as a commitment to the social well-being of all global citizens and to
global distributive justice (Rawls 1999: 119–20) and to his own refusal
in the Law of Peoples to pursue the claim he raises in the context of
domestic justice, namely that large social and economic inequalities
between parties may generate serious inequalities in political power
(Pogge 2001). In fact, the exclusion of social questions from the
Law of Peoples does not substantially distinguish Rawls from Kant,
or even from Habermas, given his admission that a weak democratic
legitimation of the UN ‘will suffice for the activity of the world
organisation only if the latter restricts itself to the most elemen-
tary tasks of securing peace and human rights on a global scale’
(Habermas 2006: 174). In any case, a cosmopolitan accent is audible
in Rawls’s commitment to the legal regulation of relations between
peoples, to the legal authority of supranational organisations and to
a package of universal human rights (Brown 2002: 178).
And yet there is a certain truth to Rawls’s self-assessment. He
does show himself to be at least ‘half-hearted’ in his cosmopolitan
enthusiasm. First, he retains the classical notion of bounded politi-
cal peoples as the basic unit of the Law of Peoples. It is striking,
for instance, that in so far as Rawls offers any argument in defence
of human rights, he mirrors contemporary practice by appealing
to ‘peace and security’ considerations. Rights-violating states are
‘aggressive and dangerous’, he states, and ‘all peoples are safer and
more secure if such states change or are forced to change their ways’
(Rawls 1999: 81). This defence of human rights remains hostage
to the empirical criticism that rights-violating states may not nec-
essarily pose a serious threat to international security and to the
moral criticism that rights should be defended irrespective of their
functional value in preserving global security (Beitz 2000: 685). The
principle of cosmopolitan law, by contrast, starts from the proposi-
tion that all persons of the globe are in principle rights-bearing citi-
zens and that world society is not regulated solely around the rights
and obligations of peoples. For all individuals to enjoy their status
as rights-bearing citizens, mechanisms must exist for their human
rights to be legally guaranteed beyond the unit of peoples. Multiple
strategies for realising world citizenship of this sort might include,
for example, avenues for citizens to raise complaints against their
own states (through national, international and regional courts), co-
ordinated forms of international pressure on rights-violating states,

the establishment of legal precedents to prevent large-scale rights
abuses and the enhancement of the publicity-generating functions
of global civil society.
Second, Rawls maintains that only those peoples which acknowl-
edge and uphold human rights should be recognised as equal mem-
bers of a society of peoples. He argues that liberal peoples, by virtue
of their commitment to toleration, should incorporate within the
society of peoples certain non-liberal regimes as ‘equal participating
members in good standing of the Society of Peoples’ in so far as
they are sufficiently ‘reasonable’ (Rawls 1999: 59). He describes a
hypothetical ‘decent people’ (sic) as one that does not have aggres-
sive international aims, is regulated around an idea of justice, con-
sults its citizens about the direction of law and policy, and respects
certain basic human rights. It maintains some freedom of religion
but not necessarily equal freedom of religion, some provisions for
political consultation but not necessarily a full range of democratic
rights, some respect for women but not necessarily women’s equal-
ity (Rawls 1999: 71–80). Such a society is not ‘liberal’ in that it does
not respect a full range of equal rights and liberties, does not oper-
ate a strict division between state and religion, and does not fol-
low constitutional procedures. Nonetheless, Rawls maintains that
such a regime would satisfy a minimal threshold of reasonableness
if it respects some basic human rights and accepts the same Law
of Peoples as liberal peoples (Rawls 1999: 65–70). For Rawls, this
commonality provides a basis on which ‘liberal’ and ‘decent’ peoples
can co-operate, since both types of societies acknowledge the same
Law of Peoples and the same conditions for entering a society of
peoples.
The restriction of the society of peoples to ‘liberal’ peoples and
those peoples deemed ‘decent’ by liberal peoples has echoes of
the restrictive principle of membership which once informed the
ill-fated League of Nations and does not engage with the actual
evolution of world society. It was surpassed by the all-inclusive
principle of ‘sovereign equality’ that now underwrites the UN
– even if the price to be paid for this inclusiveness is ‘the glaring
contradiction between the professed principles of the world body
and human rights standards actually practiced by certain member
states’ (Habermas 2006: 165). The principle embodied in the UN
is not to restrict membership of the society of peoples but rather

– though very unevenly practised – to make rights-violating states
uncomfortable about the gap between their actual practices and the
standards they profess by the act of signing up.
Third, Rawls’s sixth principle of the Law of Peoples states that
peoples are to honour human rights. Human rights are defined as ‘a
class of rights that play a special role in a reasonable Law of Peoples:
they restrict the justifying reasons for war and its conduct, and they
specify limits to a regime’s internal autonomy’ (Rawls 1999: 79).
Rawls holds that an external coercive authority can legitimately
impose human rights requirements on peoples and speaks of organi-
sations charged with correcting violations of human rights through
diplomatic pressures, economic sanctions and in extremis military
intervention (Rawls 1999: 36). He declares that ‘outlaw states’ can,
and under certain circumstances should, become the subject of
legitimate intervention when they fail to acknowledge or actively
violate the core tenets of the Law of Peoples (Rawls 1999: 81). He
does not spell out on what basis a state will be deemed ‘outlaw’ or
by what mechanism this judgement will be authorised.
There is something parochial about an analysis in which Rawls
sometimes displays an alarming lack of awareness of the workings of
the global economy (Brown 2002: 177). For instance, in his discus-
sion of ‘burdened societies’ he attributes the failure to develop sta-
ble and minimally just regimes to a lack of political will and cultural
resources and appears to neglect the role of external factors in con-
tributing to the state of a nation’s internal affairs (Rawls 1999: 108).
There is also something troubling about the concept of ‘outlaw’ or
‘rogue’ states. Partly this is because at the national level the concept
of the outlaw state has introduced a fundamentalist outlook into the
policies of the US. Nico Krisch argues convincingly that since the
mid-1980s the US has developed a category of outlaw states under
varying titles – reaching from ‘terrorist states’ and ‘state sponsors of
terrorism’ to ‘rogue states’, ‘states of concern’ and the ‘axis of evil’.
Initially, these notions mainly served political purposes but since
1996 states designated as ‘state-sponsors of terrorism’ have legally
become second-class states, no longer enjoying the full protection
of sovereign states. With the 2002 National Security Strategy outlaw
states have become potential objects of pre-emptive self-defence and
denied the usual protection in international law of the prohibition
on the use of force. Similarly, individuals from ‘outlaw states’ have

been stripped of some of the rights they enjoy under international
human rights and humanitarian law – under the title, for instance,
of ‘unlawful combatants’. The concept of outlaw states has allowed
the US to create different categories of states and individuals and to
limit the reach of international law to some of them (Krisch 2004).
A critical point at issue here concerns the relation between ‘peo-
ples’ and ‘states’. It seems on the surface that Rawls’s preference for
the category of ‘peoples’ over that of ‘states’ reinforces the cosmo-
politan character of his text (Buchanan 2000: 698–700). For Rawls,
peoples and states are alike in that they are both bounded political
societies whose members share ‘common sympathies’ and submit
to their own law making institutions (Rawls 1999: 23–5). Yet he
prefers the concept of ‘peoples’ to ‘states’ in order to break from the
assumption underpinning classical international law that allows for
unrestricted state sovereignty in the pursuit of national interests.
Peoples, he argues, are unlike states in that they accept membership
of a legal order in which sovereignty is mediated through law and
can never be conceived as absolute in terms of external relations
with other states or in terms of internal policies towards their own
citizens (Rawls 1999: 25–30). This shift in nomenclature sounds
promising from a cosmopolitan point of view: it is intended to break
from any assumption of absolute or exclusive sovereignty. However,
it also collapses a distinction vital to all political thought – between
the state and the people over which the state rules. To exclude this or
that people from the society of peoples on the grounds that its state
fails to observe basic human rights, opens the gate to all manner of
injustice – even if it can be shown that some or many of the people
support the state in question. The slippage from condemning a state
for its human rights abuses to condemning a people as unworthy
of recognition within the society of peoples is internal to Rawls’s
theory and sounds an alarmingly anti-cosmopolitan note. It threat-
ens to cross the line between international law and the demonisation
of ‘outlaw’ peoples.
There is also something fixed and restrictive in Rawls’s determi-
nation of human rights. The limitation of human rights to a ‘special
class of urgent rights’ may be justified if human rights are treated
as a ground for intervention but it is unduly restrictive if we wish
to advocate a full range of rights and liberties for all global citizens
or be in a position to support those who are denied such rights and

liberties (McCarthy 1997). It certainly makes it difficult to assimi-
late ongoing movements towards a more comprehensive doctrine
of human rights. We can see such a movement in practice in the
emergence of ‘democratic rights’ (rights to political participation
in free and fair elections) as a salient principle of international law
(Cassesse 2001: 48–52; Kaldor 2003). This suggests it is unwise to
establish once and for all the particular rights that should underpin
a Law of Peoples or base membership of the society of peoples on
this criterion.3
It is characteristic of Rawls to say little about the practical
implications or institutional dynamics of this conception of cos-
mopolitan justice. How serious would a rights violation have to be
to justify outside intervention? Which body has the authority to
legitimise intervention? What form should intervention take? How
is the distinction between ‘well-ordered peoples’ and ‘outlaw states’
to be played out in practice? These silences reflect a general feature
of Rawls’s approach: he sketches the broad outlines of a Law of
Peoples but leaves much unsaid about its realisation. Rawls makes a
self-conscious decision to stay at the level of ideal theory and leaves it
to others to explore how ideal theory can guide reflection and action
in actual political circumstances. Ideal theory involves ascertaining
the principles that ought to regulate a given association of peoples:
‘it should . . . help to clarify the goal of reform and to identify which
wrongs are more grievous and hence more urgent to correct’ (Rawls
2001: 13). It can inform reflection over issues that emerge where
there is non-compliance with principles of justice, including when
there is a threat posed by ‘outlaw’ states, but Rawls acknowledges
that the Law of Peoples is incapable of determining action in non-
ideal contexts and must be able to draw upon the capacity of politi-
cal actors to make complex and informed judgements throughout
the course of their engagement in political activity (Rawls 1999:
97–8). However, once we begin to think of the actual ways in which
this or that people is labelled ‘outlaw’, the politics of labelling raises
all manner of difficult issues. It is notable too that Rawls leaves little
space for such judgements to reflect back on the principles they seek
to apply. He moves from general principles to particular judgements
but seemingly not from particular judgements to the elaboration of
general principles.
So while the Law of Peoples lays the groundwork for thinking

about the role of international law in international society, there is
no avoiding its cosmopolitan limitations. It retains peoples as its
basic unit of analysis; it subordinates the protection of human rights
to peace and security between states; it restricts membership of the
society of peoples to liberal peoples or those approved by liberal
peoples; it speaks inexactly of ‘outlaw states’ and slips into the stig-
matisation of whole peoples; it neglects reflective judgement in the
determination of the Law of Peoples; and it has little to say about the
problems of putting ideal theory into practice. In the face of these
limitations I shall turn to Habermas for a more defensible approach
and his reformulation of the cosmopolitan condition in terms of
what he calls the ‘constitutionalisation of international law’.
The constitutionalisation of
international law
The idea of the ‘constitutionalisation of international law’ is drawn
from international legal theory as a means of defending the legiti-
macy of international law despite its expanded scope and increasing
distance from the consent of states (Kumm 2004; Rosenau 2002;
Teubner 2004). A key indicator of the constitutionalisation of inter-
national law is the enhanced authority of the UN and its involvement
not only in conflicts between states but also in conflicts within states
– in response to civil wars, the breakdown of government and major
human rights abuses or for the promotion of democracy. It reflects
an increasing public engagement with international law. Whether a
particular action is or is not in accord with international law or the
principles of international law, and whether international law has to
change to accommodate a particular action, have become the stuff
of public debate since 1989 – in contrast with its relative invisibility
in the post-1945 period when international law was widely regarded
as ineffective or narrowly technocratic in its concerns and citizens
were inclined to rely on the resources of domestic legal systems.
Today, international law not only claims a ‘soft’ influence over states
to take human rights into account, it demands compliance and
declares a duty to obey. Its subject matter has expanded to such an
extent that there is no clear nucleus of sovereignty states can invoke
against it. Its dependence on state consent and the state’s degree
of freedom in interpreting and enforcing the law have both signifi-

cantly diminished. Meanwhile non-state actors such as international
courts and tribunals, transnational executives, non-governmental
organisations (NGOs) and multinational corporations (MNCs)
have emerged as major players in international legal processes.
There are very good reasons for citizens to endorse the con-
stitutional principles of international law, even in opposition to
the positive laws of the international community (Kumm 2004).
International law can be an asset for the world community as a whole
in fostering human rights, protecting welfare, enabling co-operation
and building up trust.4 It can help protect minorities within states
and curtail the abuse of power by states. It can further the right of a
people to self-government and freedom from domination by other
states. It can generalise norms of democratic legitimacy through
representative institutions and compensate for the structural defi-
cits of national processes of decision-making when they lead to out-
comes that are unacceptable from a more global point of view. The
constitutionalisation of international law aims at resolving the split
between human rights law and the gross violations of human rights
that occur in practice through the formation of ‘a world organisa-
tion with the power to impose peace and implement human rights’
(Habermas 2006: 136). It looks to the construction of a rule of law
in the international arena based on the principles of equal sover-
eignty, human rights and the authority of international law itself.
It involves extending the scope of international law, increasing its
range of authority and distancing it from the immediate consent of
states. It declares that the norms of international law now function
as a higher law vis-à-vis that of states; that they include prohibi-
tions on torture, genocide, crimes against humanity, disappearances
and other such activities; and that there is an increasing number of
rules that obligate all states whether or not they have signed the
treaty in question. One of the advantages of thinking in terms of
the constitutionalisation of international law is its holistic focus. It
encourages us to keep in mind the whole menu of considerations
that determine the legitimacy of international law and not pick and
choose this or that element (Kumm 2004: 929).5
Habermas presents the constitutionalisation of international law
as an alternative to ‘realist’ and ‘ethical’ conceptions of the primacy
of power over law, the former rooted in classical international law
and the latter in the hegemonic unilateralism of the US. He sees

constitutionalisation as the condition of the transformation of
international law from an instrument of power into ‘the crucible in
which quasi-natural power relations could be dissolved’ (Habermas
2006: 149). In the framework of the nation-state, Habermas writes,
‘the fusion of command and law initially means that law is at the
service of power or law is the means by which power is organised
. . . Constitutionalisation reverses the initial situation in which law
serves as an instrument of power’ (Habermas 2006: 130–2, my
italic). Reversal means that rather than law serving as an instrument
of power, power serves as an instrument of law. In identifying the
‘cosmopolitan condition’ with the constitutionalisation of inter-
national law, Habermas manifestly draws on his earlier conception
of constitutional patriotism. He argues that it is the constitution of
the nation-state, not the state itself, which provides the appropriate
model for the transition from classical to cosmopolitan interna-
tional law. The opposition Habermas discerns between the universal
principles of the constitution and the power of the nation-state is
heightened at the international level so that the constitution is dis-
sociated altogether from the formation of an international state.
Whilst in the national context the political state and constitution
are fused in one and the same institution, in the international arena
one finds a legal order without a state, the rule of law without demo-
cratic legislation. The analogy is more with pre-modern forms of
law not yet integrated into a single state system. Habermas goes
back to natural law to be able to think forward. He demonstrates
the asymmetry between the evolution of the nation-state and that
of cosmopolitan order by reference to existing structures of interna-
tional law, perceived as capable of performing their basic functions
of securing peace and promoting human rights without having to
assume a state-like character. As with every law, international laws
can never be valid simply because they exist. There is always the
possibility of conflict between what they are and what they ought
to be. The constitutional principles of international law provide for
Habermas a rational foundation for criticism and reform of positive
international laws. What we see here is an adaptation of the theory
of constitutional patriotism to the arena of world society.
A key political question Habermas faces is whether the
reformulation of the cosmopolitan project in terms of the
constitutionalisation of international law is doomed to failure

because of American imperial power. He forestalls pessimism by
arguing that the American turn to hegemonic unilateralism repre-
sents a recent, and hopefully temporary, reversal of its more endur-
ing commitment to an internationalist strategy as well as a neglect
of its own long-term rational interest in ‘binding emerging major
powers to the rules of a politically constituted international com-
munity’ (Habermas 2006: 150).6 More problematic for Habermas is
the relation of the constitutionalisation of international law to his
own theory of the co-originality of rights and democracy: how is
one to defend this legal conception of a cosmopolitan world order
from the charge that it lacks democratic legitimacy? Habermas
is reluctant to go all the way with the liberal tradition of natural
law, ‘from Locke to Dworkin’, that draws its resources exclusively
from the natural order of things. He does not wish to sever supra-
national constitutions altogether from the channels of democratic
legitimation institutionalised within the nation-state and to a lesser
degree within transnational federations. He sees various connec-
tions remaining intact: the normative substance of supranational
constitutions rest on rights, legal principles and criminal codes tried
and tested within democratic constitutions; supranational constitu-
tions receive indirect backing from democratic processes that are
only institutionalised in nation-states; global communication in an
informal public sphere confers a supplementary level of democratic
legitimacy on the decisions of the world organisation even without
institutionalised paths for translating influence into political power.
Nonetheless, Habermas recognises that the constitutionalisation of
international law does not satisfy republican standards of democratic
legitimation and justifies this deficit on the ground that interna-
tional law is in its very nature distinct from the law of a nation-state
and performs relatively limited functions compared with political
states. His acknowledgement that international law can never have
the same level of democratic legitimacy as republican government
raises difficult questions not just about the validity of Habermas’s
‘co-originality’ thesis but about the political costs that might be
involved in constitutionalising international law. These costs cannot
be spirited away by rationalising what already exists.
The idea of ‘the constitutionalisation of international law’ is based
on the recognition that international law imposes restraints on the
exercise of hegemony by powerful states. The rules of international

law limit their freedom of action; the stability it demands prevents
any rapid reshaping of international norms; the formal egalitarian-
ism it imposes makes it difficult for hegemonic powers to apply rules
to others which it does not apply to itself. It is also based on the
recognition that great powers may respond to these restraints with a
variety of strategies: they may instrumentalise existing international
law to suit their own interests; they may reshape the concepts and
rules of international law, say, to exempt themselves from its provi-
sions or provide more space for them to intervene in the affairs of
other states; they may create zones of exclusion where the norms
of international law have no purchase (as in Guantanamo Bay); they
may substitute domestic law over which they retain control for the
less certain authority of international law; or they may withdraw
altogether from international law and simply bring their military
superiority to bear. However, big powers may also have an interest
in supporting international law for reasons to do with global regula-
tion (it sets rules), pacification (it reduces resistance), stabilisation
(it preserves the current order) and legitimation (it justifies power).
To be sure, all such strategies involve trade-offs but the normative
project of constitutionalising international law is not necessarily
at odds with the realities of state power or capitalist interest. The
associations and parties of global civil society may also develop
instrumental strategies in relation to international law but they too
have an interest in its capacities to uphold human rights and inhibit
the abuse of power by states.
The limits of constitutionalisation

The theory of the constitutionalisation of international law offers an
intellectually stimulating and politically rich way of re-interpreting
the cosmopolitan condition. Let us consider more critically, how-
ever, this juridical turn. The notion that international law already
has a constitution, either written in the UN Charter or unwritten,
would blind us to the political instrumentalisation of existing inter-
national law. Jean Cohen puts the matter plainly: the idea that the
power of the state has already been reduced to the status of serv-
ant of international law runs the real risk of ‘dressing up strategic
power-plays . . . in a universalistic garb’ (Cohen 2004: 10).
In addition, there may be deeper conceptual problems in the

very idea of the constitutionalisation of international law. In her
essay on ‘What is authority?’ Hannah Arendt makes reference to
Montesquieu’s judicial branch of government whose power he
called ‘somehow nil’ and which nevertheless constitutes the highest
authority in constitutional governments. It is, as Mommsen put it,
‘more than advice and less than command, an advice which one may
not safely ignore’ (Arendt 1977a: 122–3). It builds on the notion
of authority established in the tradition of natural law, in which the
source of authority transcends power and those in power. In the
past this notion of authority relied on religious trust in a sacred
beginning and traditional and unquestioned standard of behaviour.
Today, Arendt comments, ‘to live in a world with neither authority
nor the concomitant awareness that the source of authority tran-
scends power . . . means to be confronted anew . . . by the elemen-
tary problems of human living together’ (Arendt 1977a: 141). The
analogy is not exact but the constitutionalisation of international
law bears resemblance to the idea of a branch of government whose
power is nil but which still represents the highest authority in world
society. We do not have to endorse an ‘ontology of power’ (an ide-
ology which roots the incessant drive for power in human nature
and reduces all questions of justice to those of power) to recog-
nise that the authority of international law in world society can no
longer be based on such traditional grounds. We may set our sight
on the establishment of an international law no longer distorted by
power, whose authority transcends power, but whether power is
identified with the violence of the state or with the deliberations of
a democratic political community, international law may prove an
insufficiently effective regulator in the face of the intransigence of
the one and the collective creativity of the other.7
The relation between law and politics needs to be conceptualised
outside the dichotomy of either law serving power or power serving
law. On the one hand, law rarely just serves power and if it does it
ceases to be law; it is rather a form of power, a mediation of power,
and it implies some level of inhibition on power. On the other hand,
power never just serves law; law is part of society and contains within
itself the power relations that traverse society; power is integral to
law. In its attempt to find remedies for crimes against humanity,
genocide, ethnic cleansing and other forms of mass murder, terror,
torture and rape, I do not think cosmopolitan social theory should

endorse the myth of a wholly legalised international order, a con-
stitutionalised international law, still to come. The problem is not
just one of treating the constitutionalisation of international law as
if it were already established, when it is in fact highly contested and
only in its infancy (Cohen 2004: 11), but one of conceptualising the
cosmopolitan condition in these exclusively juridical terms.
Habermas writes of the transition from classical international
law to cosmopolitan law, that is, from an international law based
on the sovereignty of states to a cosmopolitan law based on the
rights of citizens. We need to be careful, however, in how we handle
this concept of transition, which can be misleading for a number
of reasons. First, the so-called Westphalian system of international
relations disappeared long ago. The universalism of the natural law
framework that governed this system was restricted in practice to
European states, offered little obstacle to the justification of colo-
nialism and imposed prohibitions on war that were at best weakly
applied. Second, the classical international law that evolved in the
course of the twentieth century, and especially after 1945, was based
on the principle of sovereign equality for all member states, imposed a
universal norm of non-aggression and non-intervention on all states
and rejected all forms of colonialism. Third, internal sovereignty
was never an absolute claim to unlimited power unrestrained by
law – even in its most Hobbesian moments. It indicated for nation-
states the establishment of a public authority that ruled through law
and in its more developed versions through a separation of pow-
ers in which the idea of popular sovereignty was given institutional
expression. Fourth, external sovereignty was never a claim to be able
to wage war at will. It indicated mutual recognition among a plural-
ity of autonomous political communities according to a growing
body of international law whose basic principle was that agreements
between states had to be respected. Nor was external sovereignty
an exclusive claim for non-interference in a state’s internal affairs
since it always depended on the state’s ability to act as a public
authority. Fifth, sovereignty in general expresses a particular form
of political community and a particular relation of the rulers to the
ruled. It is, however, not a fixed form and among the changes it has
undergone we find the domestic constitutionalisation of civil and
political rights and the international elaboration of human rights.
Even Schmitt recognised that in the past, the ‘Westphalian’ order

was based on shared political norms involving mutual recognition
and institutionalised co-operation between states:
Such an order was not a lawless chaos of egoistic wills to

power . . . these egoistic power structures existed side-by-side
in the same space of one European order, wherein they mutu-
ally recognised each other as sovereigns. Each was the equal of
the other, because each constituted a moment of the system of
equilibrium.
(Schmitt 2003: 167)
Regarding the future, what is at stake is not the ‘end’ of sover-

eignty or its displacement by human rights but rather a process of
democratisation. While for Kant classical international law (between
states) and cosmopolitan law (between subjects and across states)
are supposed to co-exist, for Habermas classical international law
and cosmopolitan law appear as discrete historical stages. Kant
spoke of the co-existence of classical international law and cosmo-
politan law, rather than a transition from one to the other. He may
have had a good point. It certainly makes little sense to speak of
the death of sovereignty in the context of the constitutionalisation
of international law, for the end of sovereignty can only indicate a
regression from international law in favour of some other principle
of domination.
This is not to reject the idea of transition from classical to cosmo-
politan international law, but it is to take issue with the idealisation
of international law in a new cosmopolitan cloth. My contention
is that we should resist the temptation to present the principles of
international law as if they were the natural law of the cosmopolis
against which all other positive laws must be measured or to attribute
the political abuse of international law simply to the incompleteness
of the transition. The only problem from this perspective is, as Jean
Cohen points out, ‘the restricted reach of global remedies: the ICJ
lacks compulsory jurisdiction, the ICC lacks a definition for the
crime of aggression, the Security Council is legally unrestrained . . .
When these restrictions are overcome, law will be able to control
politics’ (Cohen 2004: 11). Many cosmopolitans look forward to
a time to come when the UN will have its own army and its own
legal mechanisms for deciding when to use it as the sine qua non of
subordinating power to international law (Habermas and Derrida
2003a). We may share the aspiration to develop more robust forms
of international and cosmopolitan law, but as I shall argue in the
next chapter, we should resist the temptation to overburden law
by exaggerating its attractiveness and capabilities (Hirsh 2005). We
have to leave space for the political field of judgement. The task, as
I see it, is not so much to constitutionalise international law but to
attach it more firmly to a cosmopolitan politics.
5
Cosmopolitanism and
humanitarian military
intervention
War, peace and human rights
This chapter addresses an uneasy question: the relation between

cosmopolitanism and humanitarian military intervention.1 The re-
emergence of cosmopolitanism as a flourishing intellectual project
has coincided with what Michael Ignatieff describes as a ‘new tide
of interventionist internationalism’, whereby Western nations have
become embroiled in various efforts to ‘put the world to rights’
(Ignatieff, 1999: 3). Perhaps the most contentious element of this
interventionism has been the willingness to use military force for
humanitarian ends. Prominent examples of allegedly humanitarian
military interventions include US intervention, sanctioned by the
United Nations, in Somalia between 1992 and 1994 and NATO’s air
campaign, not officially sanctioned by the United Nations, in Kosovo
and Serbia in 1999. Prior to the 1990s debate was provoked on this
issue by India’s intervention into Bangladesh in 1971, Vietnam’s
intervention into Cambodia in 1978–9 and Tanzania’s intervention
into Uganda in 1979 (Wheeler 2000). In the first half of the 1990s the
Security Council of the UN authorised peace-keeping interventions
cosmopolitanism and humanitarian military intervention 79
in eight instances and military interventions in a further five. Today,

there is extensive debate over the foibles and follies of the US/UK
invasion of Iraq, the refusal of the UN to grant legitimacy to the
military exercise and retrospective attempts to justify the invasion
in humanitarian terms (McGoldrick 2004).
The practice of humanitarian military intervention goes to the
heart of cosmopolitan aims to defend human rights and it raises
searching questions about whether and how individuals can be safe-
guarded against the murderous actions of their own governments.
Support for humanitarian military intervention is premised on the
widespread feeling that the exercise of military force has been both
possible and urgently needed to stop grave humanitarian crimes. It
is also provoked by the consequences that have ensued from the
failure of the international community to act effectively in the face
of genocide in Rwanda in 1994 (Wheeler, 2000: 208–41) and ethnic
cleansing in Bosnia throughout the 1990s (Bobbitt, 2002: 414–67).
Today some observers say that crimes against humanity and possibly
genocide are occurring among the African populations of Darfur
and Zimbabwe and yet there has be till now little evidence that the
international community is prepared to intervene with any signifi-
cant show of military force (Reeves 2005).
The chapter is also triggered by the serious criticisms coming
from both ends of the political spectrum on the damage humanitarian
military intervention has done to the whole cosmopolitan project.
Consider, for example, the comments of mainly leftist critics of cos-
mopolitanism in an interesting collection Debating Cosmopolitics
(Archibugi 2004b). The sociologist Geoffrey Hawthorne re-affirms
the continuing relevance of state formation in parts of the world
where states are barely able to exercise control over their own ter-
ritory or ensure the security of their own citizens. For Hawthorne,
the key political question concerns how failed and failing states are
to be re-formed. His article of faith is that states cannot be repaired
through military interventions and he is particularly sceptical of
liberals who claim the right to use force in the name of humanity.
David Chandler declares that the NATO bombing of Yugoslavia
was a clear breach of international law and more generally that cos-
mopolitan arguments which endorse the limitation of sovereignty
for some states in effect grant the right to intervene at will to oth-
ers. He maintains that the new interventionism is a throwback to a
80 cosmopolitanism and humanitarian military intervention
time when state sovereignty was the privilege of the few and pow-
erful states granted themselves the right to use force against the
less powerful. According to Chandler, cosmopolitanism should be
read as an attack on the principle of sovereign equality introduced
after 1945. Similarly, Tim Brennan identifies cosmopolitanism with
Pax Americana dressed up in the cloth of international law. He is
dismissive of cosmopolitan concerns over crimes against humanity,
referring to them as ‘fear-mongering cameos of “tribal” blood-let-
ting in barbaric backlands’, and interprets the cosmopolitan attack
on national sovereignty as an attack on the capacity of ‘indigenous
peoples to draw a boundary between what is theirs and what lies
beyond’ (Archibugi 2004a: 46). Peter Gowan argues that the forma-
tion of a supra-state authority, far from exercising jurisdiction over
the US, is destined to become its lightly disguised instrument. For
Gowan, the cosmopolitan dream of uniting humanity on the basis
of a global citizenry and universal human rights is a self-deception,
since no scheme for universal harmony can work which fails to con-
front the social relations of actually existing capitalism.
The gap between facts and norms leads some critics to conclude
that the cosmopolitan outlook is either hopelessly naive or wilfully
cynical (Zolo 2002; Chomsky 1999). Most of these writers reserve
their severest criticism for the doctrine that there can be a right
of intervention even without the formal authorisation of the UN.
They see the appeal to ‘global justice’ as an umbrella under which an
attack on international law is being launched by big powers and see
cosmopolitanism as, naively or wilfully, justifying an imperial inter-
national order. Jacques Rancière argues that under a cosmopolitan
register the rights of man have become the rights of victims: ‘of
those unable to enact any rights or even any claim in their name, so
that eventually their rights had to be upheld by others, at the cost
of shattering the edifice of international law, in the name of a new
right of humanitarian interference’ (Rancière 2006). He concludes
that the rights of man or human rights (he equates the two) have
been boiled down to a right of invasion, a right of war, which is
in effect no right at all. He argues that since the invasion of Iraq
the idea of humanitarian military intervention has become so deeply
imbricated in a new imperialism as to drag the larger cosmopolitan
project down with it.
These arguments are compelling but to my mind they leave
unanswered the question that gives rise to cosmopolitan think-

ing in the first place. If people are hunted out of their homes and
threatened with ethnic slaughter, should there not be humanitarian
military intervention if this is feasible? Is there not a responsibility
attached to power not to remain inactive in the face of gross inhu-
manity? Why should our sense of responsibility stop at national
boundaries? What does the slogan ‘never again’ mean if it excludes
in principle military interventions designed to stop genocides?
Should we really be nostalgic about the classical system of interna-
tional law whose core principle was that of non-intervention under
all circumstances, including the murderous abuse by the state of its
own subjects, and whose practice allowed the US and the USSR
to do as they willed in their own ‘backyards’? Is there not a sense
of self-serving cant in the claims of rulers that international action
over their mistreatment of minorities is unwarranted interference in
their internal affairs? Critics of cosmopolitanism must engage with
the problem to which cosmopolitanism is a response: never again
to be indifferent to the deliberate mass destruction of human lives
simply because the perpetrators are ordained by a sovereign nation-
state or because the victims are foreigners. In a world which now has
experience of totalitarian terror and annihilation, the cosmopolitan
imagination refuses to rule out the need for humanitarian military
intervention. Instead, it seeks to establish a firm ethical and legal
basis on which to decide under what circumstances humanitarian
military intervention might be justified, through what institutions
such interventions are to be authorised and by what means such
interventions are to be conducted.
When people are subjected to ethnic cleansing, crimes against
humanity or genocide at the hands of the authorities that rule them,
the cosmopolitan intuition is that there must be a form of ethical life
beyond that of their own state to which they have a right to appeal
and from which they can have a realistic expectation of support.
From this perspective humanitarian military intervention appears as
one element in the construction of a sense of universal responsibil-
ity. While it does not address the big issues concerning the origins of
totalitarian tendencies in our own world, the new cosmopolitanism
enjoins us to think hard about the conditions of its legitimacy. The
results are as interesting for what they reveal about the emerging
cosmopolitan paradigm as for what they offer to ongoing debates

about military intervention.
Dealing with ambivalence

One of the main characteristics of cosmopolitanism in relation to
humanitarian military intervention is equivocation in the face of
competing pressures. On the one hand, cosmopolitan principles
of human rights and global governance lend support to humanitar-
ian military intervention if it is deemed necessary in order to pro-
tect the basic human rights of the most vulnerable. Humanitarian
military intervention appears as an extension of the precedent set
at Nuremberg: if evidence of crimes against humanity can serve as
a basis for legal prosecution after the event, then it can also serve
as a basis for military intervention to prevent or stop the crimes
themselves. If ‘universal responsibility’ is to mean anything, it is
the responsibility of those who have the power not to stand idly by
when crimes against humanity are being committed and it is within
their capacities to end them. On the other hand, cosmopolitanism is
historically associated with the critique of militarism, the search for
alternatives to war and the ideal of ‘perpetual peace’. Not for nothing
did Kant call the contract he envisaged between nation-states foedus
pacificum – the peace-making pact. The normative philosophy of
Kantian cosmopolitanism endorses the categorical imperative to put
an end to war. The new cosmopolitanism is suspicious of a humani-
tarian rhetoric that conceals the exercise of dominance on the part of
powerful states and there are many who fear that the legitimisation
of violence in terms of human rights can only delay the construc-
tion of a genuine universal human rights culture (Booth 2001: 314).
Their credo is that the governance of international affairs through
cosmopolitan norms requires non-violent processes of communica-
tive interaction (Young 2007). The ambivalence of cosmopolitan-
ism manifests itself in the fact that individuals who share similar
cosmopolitan principles can and do come to opposite conclusions
with regard both to the principle of humanitarian military interven-
tions and its application to particular situations. The question the
new cosmopolitanism faces is how to deal with ambivalence without
denying either side of it and without being paralysed by it.
I shall consider what I take to be the prevailing strategy of the
new cosmopolitanism: it is to specify in precise terms the criteria of

justification, authorisation and military conduct which humanitar-
ian military intervention must meet if it is to be deemed legitimate.
I consider this to be a necessary and productive strategy but one
that can never do the work that is expected of it. The argument runs
roughly as follows.
First, military action becomes justifiable only in the context of
‘supreme humanitarian emergencies’. We have to distinguish between
‘the ordinary routine abuse of human rights that tragically occurs
on a daily basis and those extraordinary acts of killing and brutality
that belong to the category of “crimes against humanity”’ (Wheeler
2000: 34). In the latter category Nicholas Wheeler includes state-
sponsored mass murder and mass population expulsions by force
and genocide (Wheeler 2000: 34). Whilst no cosmopolitan writer
claims to provide an unambiguous distinction between acceptable
and unacceptable humanitarian crimes, most trade on the idea of
crimes which ‘shock the conscience of humanity’ (Walzer 2000:
107). Daniele Archibugi, for example, makes the dubious conten-
tion that
whilst debate continues to rage over the acceptability of prac-

tices such as stoning adulterous wives . . . no one would dream
of urging military intervention to foreign countries to ban these
practices . . . it is quite plain and straightforward that military
humanitarian intervention is necessary when and only when bla-
tant collective violations of human rights are being perpetrated.
(Archibugi 2004c: 6)
According to Richard Falk, the moral and legal requirements for

intervention are satisfied only if ‘the governing process has collapsed
or is widely perceived as engaged in massive and gross violations of
human rights amounting to “crimes against humanity”, especially if
there is a genocidal element present’ (Falk 1998: 96).
The universal emphasis on human rights violations to be found
in the literature may be misplaced in that the only grounds for
humanitarian military intervention actually given are not to do
with violation of human rights as such but with the commission of
serious crimes under international criminal law. Even so, military
action is still only justified as a means of last resort, with much of the
debate over the Kosovo intervention revolving around whether or

not the intervening powers were seriously committed to finding a
diplomatic solution (Chomsky 1999: 22–3; Falk, 1999: 855). There
must be some sort of proportionality threshold in the sense that
military action has a reasonable chance of not causing more harm
than it resolves (Wheeler 2000: 36–7; Archibugi 2004c: 11–13). And
pre-emptive intervention is valid only if intervening parties are con-
vinced that mass killings are imminent and that it makes no sense to
wait for them to start (Wheeler 2000: 34–5). In Rwanda it is argued
that speedy action before the genocide unfolded was possible, given
that there had been clear and urgent warnings to the international
community (Barnett 2003: 175).
Second, it is an important cosmopolitan principle that humani-
tarian military interventions must be given legal authorisation at
the global level. States should not be able simply to appeal to their
own interpretation of cosmopolitan principles to justify military
interventions without being constrained by legal procedures for
determining whether or not such an appeal is appropriate. This idea
is central to the Habermasian rebuttal of the ‘Schmittian’ complaint
that humanitarian military intervention constitutes a dangerous
moralisation of warfare:
the establishment of the desired situation of world citizenship

would not mean that violations of basic human rights are evalu-
ated and fought off in an unmediated way according to philo-
sophical moral standards, but instead are prosecuted as criminal
acts within a state-ordained legal order.
Humanitarian military interventions are conceived not so much

as a species of war but rather as police actions designed to enforce
cosmopolitan laws (Kaldor 2003: 134). One can even imagine with
Daniele Archibugi the establishment of a world court to act as a
deliberative body or to determine publicly whether humanitarian
crimes are serious enough to merit military intervention (Archibugi
2004c: 10). In addition, members of global civil society and region-
ally active civil society groups, aided by the world press, may have a
significant role in forming public opinion and influencing the deci-
sion to intervene and this can be taken to the point of their being
granted some kind of formal institutional representation at the

global level (Archibugi 2004c: 12; Kaldor 2001: 119–24). The aim in
all cases is to maximise the role that genuine humanitarian concerns
play in deliberation leading up to any decision over the use of force
and to minimise the possibility of humanitarian concerns acting as a
cover for other interests.
Third, cosmopolitan criteria must be established concerning the
conduct of humanitarian military intervention. These include restric-
tions on military conduct familiar from international law: interven-
ing states must not put innocent persons at risk in order to protect
the lives of their own forces and the rights of enemy soldiers and
non-combatants must be respected. Restrictions should be placed
on the bombing of ‘dual-function’ facilities that have both military
and civilian functions and are ‘vital to the minimal functioning of
the society’, such as the infrastructure guaranteeing the provision
of electricity, clean water, medical care and basic sanitation (Shue
2003: 108–9). In the face of the threat of ‘total war’ it is imperative
to preserve ‘some minimal form of human society to continue dur-
ing the war’ (Shue 2003: 102). Rawls puts it simply: ‘well-ordered
peoples must respect, so far as possible, the human rights of the
members of the other side, both civilians and soldiers’ (Rawls 1999:
96). The most distinctive contribution of cosmopolitanism lies in
its account of changes in military strategy necessary if militaries
are to respond to violations of humanitarian law in a humanitarian
way. There is a commitment to training, equipping and motivating
military forces to engage in civil rescue operations, humanitarian
missions and reconstruction. ‘Cosmopolitan-minded militaries’ dif-
fer from conventional state-based militaries: ‘unlike war-fighting, in
which the aim is to maximise casualties on the other side and to
minimise casualties on your own side . . . cosmopolitan law-enforce-
ment has to minimise casualties on all sides’ (Kaldor 2001: 129–30).
The strategic imperative of cosmopolitan militaries is not primarily
to win wars or overpower an enemy, but to see military victory as
a means of securing the end of state-organised atrocities: ‘Whereas
the soldier, as the legitimate bearer of arms, had to be prepared to
die for his country, the international soldier/policeman risks his or
her life for humanity’ (Kaldor 2001: 131). Military strategies must
be designed to ‘protect citizens and stabilise war situations so that
non-extremist tolerant politics has space to develop’ (Kaldor 2003:
134). The more optimistic cosmopolitan may look forward to a time

when ‘military forces may move . . . to the forefront of the move-
ment concerned with seeing in a more just, equitable and humane
world, to become a kind of global social movement for peace and
security, or a true “force for good”’ (Elliott and Cheeseman 2002:
55). In all cases the central challenge is to carve out a form of mili-
tary intervention that can respond to the charge that any military
response necessarily involves unacceptable destruction of human
life and social infrastructure.
When we consider the rigorous criteria of justification, authori-
sation and military conduct that have to be met if a military inter-
vention is to be legitimated in humanitarian terms, it becomes clear
that the new cosmopolitanism intends to strike a balance between
its commitment to the protection of human rights, by force if nec-
essary, and its commitment to perpetual peace and the abolition of
war. The concern that humanitarian military intervention enables
imperial powers to intervene in the internal affairs of less powerful
states is allayed by the high hurdles any intervention has to jump to
warrant the label of humanitarian. This is as it should be. However,
the very height of the hurdles creates its own problems. In the spirit
of Rawls, the new cosmopolitanism offers a set of principles which
prescribe how military action ought to be carried out in an ideal
world in which states are motivated by cosmopolitan norms, inter-
national bodies exist to render an authoritative judgement about the
need for intervention and military forces are trained and motivated
to enforce cosmopolitan laws. Idealisations are injected into every
stage of this theory. It describes how military action should be car-
ried out in a more or less cosmopolitan world but says little about
what happens in the face of the ‘non-ideal’ complexities of a world
order in which powerful states have interests that conflict with
cosmopolitan purposes, human rights law and international crimi-
nal law lack reliable enforcement mechanisms, and military forces
are tied to the organising principle of the nation-state. When we
factor in the ‘non-ideal’ conditions of the actual world order, its
shifting hierarchy of powers and the passions, prejudices and par-
ticular interests of political life, the original sense of equivocation is
destined to return. For in any particular case an actual ‘humanitarian
military intervention’ is bound to fall short of the high ideals set out
within the cosmopolitan framework.
Powerful states or groupings of states undoubtedly pursue

geo-strategic interests in conflict with cosmopolitan norms. They
not only have the greater capacity to intervene militarily but more
influence than weaker states over the interpretation of international
law and over the determination of what is and is not a ‘supreme
humanitarian emergency’. In the face of these considerations, cos-
mopolitans may focus less on the motives of intervening actors than
on the consequences of their military actions. Nicholas Wheeler,
for instance, is prepared to endorse distinctively non-humanitar-
ian motivations on the part of intervening states if the interests of
the victims are nonetheless met. The complaint that state actors
might have ulterior motives for intervention ‘is an objection to
humanitarian intervention only if the non-humanitarian motives
behind an intervention undermine its stated humanitarian purposes’
(Wheeler 2000: 39). On the other hand, Richard Falk has argued
that we cannot overlook the extent to which ‘interventionary claims
are exclusively mounted by powerful states that have often in the
past put forward self-serving rationalizations for their questionable
uses of force to coerce weaker countries with what appears to be an
anti-humanitarian net-effect’ (Falk 1998: 98). Faced with the coin-
cidence of instrumental and ethical concerns among intervening
powers, cosmopolitans may be forced to choose between endorsing
humanitarian military intervention despite the motives of interven-
ing powers (e.g. for geo-political advantage or for control of oil
resources) or rejecting humanitarian military intervention despite
the urgent plight of the victims of terror for fear of the advantages
accruing to the powers that intervene.
The principle that humanitarian military interventions should
be authorised by an appropriate international decision-making pro-
cedure should also address the unsatisfactory character of existing
institutional arrangements. According to the Charter, the Security
Council has the authority to determine whether or not a particular
emergency calls for the use of military intervention to restore inter-
national peace and security. No mention is made of military inter-
vention to enforce respect for fundamental human rights, though
during the 1990s the Security Council has interpreted threats to
international peace and security more widely to include humanitar-
ian crimes under this register (Holzgrefe 2003: 41–3). The Security
Council, however, retains the discretion to interpret its mandate as
it sees fit and the current arrangement, which allows humanitarian

actions to be vetoed by one or more of the permanent members of
the Security Council, makes the decision to enforce humanitarian
law responsive to the political interests of a minority of powerful
states (Archibugi 2004c). Faced with the absence of satisfactory
international institutions, cosmopolitans may be forced to choose
between endorsing illegal action by a particular state or coalition of
states to protect human rights by force or staying loyal to an inter-
national legal authority which is incapable of offering an effective
regime of rights enforcement but at least contains powerful states
within the framework of international law.
Cosmopolitans clearly divide and are divided over this issue. In his
discussion of NATO’s unauthorised intervention in Kosovo, Jürgen
Habermas makes allowances for ‘emergency situations’ that might
entitle democratic states or regional alliances of democratic states
to intervene without the formal authority of the United Nations.
He reaches this conclusion as a consequence of the tension between
legitimacy and effectiveness brought about by the low level of the
institutionalisation of cosmopolitan law: ‘the dilemma of having to
act as though there were already a fully institutionalised global civil
society . . . does not force us to accept the maxim that victims are
to be left at the mercy of thugs’ (Habermas 1999a: 271; see also
Wheeler 2000: 41–4). Against this, Daniele Archibugi is circumspect
about states or regional bodies acting outside existing frameworks
of international law. He argues that ‘the authority of the United
Nations ought to be preferred to unilateral decisions taken by states
or state alliances’ and that discretion leads right back to a ‘state of
nature’ where states decide on the basis of their own interests when
and how to carry out acts of military intervention (Archibugi 2004c:
9). Chomsky puts the case bluntly. In the ‘real world’ there are only
two options: on one side, ‘some kind of framework of world order,
perhaps the UN Charter, the International Court of Justice, and
other existing institutions, or perhaps something better if it can be
devised and broadly accepted’; on the other side, ‘the powerful do as
they wish, expecting to receive the accolades that are the prerogative
of power’ (Chomsky 1999: 154).
Finally, the obstacles to reforming military forces and strategic
cultures to suit the imperatives of cosmopolitan law enforcement
are stark. National military forces are often unable and unwilling to
conduct themselves in anything like a cosmopolitan fashion. They

are trained and equipped for combat, not for rescue operations, and
intervening powers are often unwilling to risk their own troops for
the sake of saving strangers. Humanitarian missions may be carried
out in circumstances where the distinction between combatants and
non-combatants is blurred, so that military forces trained to fight
clearly recognisable opponents struggle to adapt to demanding new
conditions. Humanitarian missions require political skills such as
winning the respect of the local populations in targeted regions and
working with locally based civil society groups, and existing mili-
tary forces are frequently unable or unwilling to carry out the basic
functional requirements of this political purpose. In these circum-
stances it is possible reluctantly to endorse military intervention
on the grounds that some kind of response is better than none in
the face of humanitarian crimes; it is equally possible reluctantly to
condemn military intervention because the proposed remedy does
not live up to cosmopolitan criteria.
In all cases we are confronted with reluctance against reluctance:
a reluctance to endorse a humanitarian military intervention that
does not live up to cosmopolitan criteria versus a reluctance to
absolve powerful states of their responsibility in the face of humani-
tarian catastrophes. Once the ideal character of this cosmopolitan
approach is brought down to earth, we discover that equivocation
returns. This is not a reason to dismiss it. Cosmopolitan theories of
military intervention perform important functions: they clarify and
systematise our convictions, they provide a framework for making
judgements in particular situations; they act as a stimulus for legal
and institutional reforms. However, specification of criteria does
not resolve ambivalence; it lifts it to another level. The downside of
the specification of criteria is the radical indeterminacy present in
their application to concrete situations.
There have been various attempts to resolve the problem of radical
indeterminacy. Consider, for example, the concept of ‘responsibility
to protect’ which was formulated by the high-profile International
Commission on Intervention and State Sovereignty set up by the
Canadian government in 2001. It called for a fresh approach that
looked at the problem from the victims’ point of view and replaced
what it saw as the atavistic terminology of sovereignty and human
rights with the new language of ‘responsibility to protect’ (Bellamy
2005). It holds that the primary responsibility to protect lies with

the host state. If the host state proves unwilling or unable to fulfil
its responsibilities, then secondary responsibility lies with domestic
authorities working in partnership with outside agencies. If both
these levels fail, then a humanitarian emergency warrants outside
intervention. At this level it accepts the view that legal authority
for action is vested in the Security Council and that states should
always seek its authorisation before using force. If the Security
Council is deadlocked, then the potential intervener or interveners
should approach the General Assembly. If that fails to produce a
result, outside states should intervene if possible through regional
alliances. The Commission supported the principle that, should the
Security Council fail to fulfil its responsibility to protect because of
a veto by one of its permanent members, then other states may take
it upon themselves to act. It places on the Security Council two ‘just
cause thresholds’ for intervention (large scale loss of life and ethnic
cleansing) and four ‘precautionary principles’ (right intention, last
resort, proportional means and reasonable prospects of success).
The report expressed a growing consensus in international law
for the desirability of intervention in supreme humanitarian emer-
gencies when authorised by the Security Council and perhaps a
more contested acceptance that unauthorised interventions may
be legitimate if the Security Council is deadlocked. This reformu-
lation of the problem is illuminating in various ways but it does
not and cannot resolve the initial ambivalence. As Alex Bellamy
demonstrates in relation to Darfur, the language of ‘responsibility
to protect’ can be mobilised to legitimate opposition to interven-
tion in humanitarian emergencies as well as to support it (Bellamy
2005: 40). In Darfur, the responsibility to protect has generally been
attached to the Sudanese host government, not with the Security
Council, notwithstanding the charges of genocide laid against the
host government.
debasing the coinage

Equivocation cannot be resolved through the specification of ever
more rigorous criteria or through its reformulation in terms of a
new legal vocabulary. Its resolution always involves the exercise of
political judgement (Ferrara 2007; Fine 2008 forthcoming). This can
be illustrated by considering the stance taken by Jürgen Habermas

in relation to NATO’s intervention in Kosovo and then the US-led
invasion of Iraq (Smith 2007a). In general, Habermas endorses the
argument that ‘confronted with crimes against humanity, the inter-
national community must be able to act even with military force, if
all other options are exhausted’ (quoted in Postel 2002: 1–2). He is
in no doubt that the legal doctrine of absolute sovereignty must be
revised: ‘since human rights would have to be implemented in many
cases despite the opposition of national governments, international
law’s prohibition on intervention is in need of revision’ (Habermas
1998: 182). With these principles in mind, he offers a cautious but
nonetheless decided defence of NATO’s intervention in Kosovo in
1999 and openly condemns the war in Iraq in 2003 (Habermas 2003;
Habermas and Derrida 2003a; Smith 2007a).
Habermas attributes his own guarded support for the interven-
tion in Kosovo partly to learning from the history of the UN’s
inability to protect Bosnian Muslims in the declared ‘safe area’ of
Srebrenica in 1995. His basic case is that notwithstanding the absence
of legal authorisation the intervention in Kosovo was right because
of the urgency of stopping the ethnic cleansing then taking place.
He endorsed the official characterisation of the intervention as an
‘armed peace-keeping mission’ triggered by an emerging humanitar-
ian catastrophe (Habermas 1999a: 269). While he recognised that
the campaign of ethnic cleansing intensified during the bombing,
he did not see this as a reason to withdraw support for NATO’s
actions: ‘even though Milosevic is using the NATO air war to force
his policy to a bitter conclusion, depressing scenes from the refugee
camp do not reverse the relations of causality’ (Habermas 1999a:
264). The Kosovo intervention seemed to Habermas to constitute
a reasonable attempt to pursue ‘the politics of human rights’ in the
context of a drastically imperfect global order.
Habermas qualified his support by maintaining that the Kosovo
intervention should not be treated as a precedent: ‘NATO’s self-
authorization should not be allowed to become the general rule’
(Habermas 1999a: 271). It should be seen rather as a stimulus to
accelerate the transition from classical international law, based on
state sovereignty, to a cosmopolitan legal order. Habermas was con-
cerned over the lack of an explicit UN Security Council resolution
to back the use of military force but regarded the situation so grave
that military intervention was justified as an exception. Whilst he

placed great weight on the fact that the intervention was supported
by a majority of democratic nations, he acknowledged that in a
world in which human rights were more firmly embedded within an
international legal framework such atrocities would be prosecuted
as criminal acts within a legal order. He argued that the realisation
of this vision of a cosmopolitan legal order would require sweep-
ing reform of existing arrangements, including the reform of the
Security Council and the establishment of the binding jurispru-
dence of the International Criminal Court and International Court
of Justice (Habermas 1999a: 269; 2006: 173–4). As William Smith
observes, ‘the absence of these institutional arrangements places the
politics of human rights in the invidious position of being a mere
“anticipation” of the prospective legal order it simultaneously tries
to promote’ (Smith 2007a).
In 2003 the war in Iraq confirmed Habermas’s worst fears that
the ‘state of exception’ was becoming the rule – precisely in the way
that the followers of Carl Schmitt might predict (Agamben 2005).
The apprehension he expressed during the Kosovo emergency
appeared to be actualised in the Bush-Blair doctrine: ‘if the regime
of international law fails, then the hegemonic imposition of a global
liberal order is justified, even by means that are hostile to interna-
tional law’ (Habermas 2003: 365). Habermas maintained that the
US, with the support of the UK government, acted as a unilateral
hegemon outside of international law and international institutions.
There was no convincing authorisation for the war, no immedi-
ately pressing humanitarian emergency, no clear indication that the
military intervention was a last resort and no efficiency threshold in
terms of the harm the military action itself might create. There were
deep divisions among democratic nations concerning the legitimacy
of the invasion and rather than accelerate the transition from state-
based international law to cosmopolitan law the effect of the war
was to discredit the very idea of humanitarian military interventions
(Roth 2004).
Habermas contrasts the ‘Anglo-American’ approach to interna-
tional law, based on an unhealthy mix of strategic instrumentalism,
moralism and withdrawal, with the ‘European’ orientation towards
the establishment of a cosmopolitan legal order. A sense of disap-
pointment inhabits the text: ‘For half a century the United States
could count as the pacemaker for progress on this cosmopolitan

path. With the war in Iraq . . . the normative authority of the United
States of America lies in ruins’ (Habermas 2003a: 365). He views
these opposing perspectives on international law as seriously
dividing the West and making the development of a cosmopolitan
approach within the European Union all the more urgent.
law and judgement

There is an admirable boldness to the manner in which Habermas
attempts to resolve the ambivalences of the cosmopolitan thinking
without losing sight of the cosmopolitan end.2 He shows an aware-
ness of the need for political judgement rather than rely exclusively
on the application of more or less precise legal criteria. For the
cosmopolitan to face up to the violence of the age, it is never just
a question of mechanically applying pre-given principles to con-
crete instances; there is always a moment of judgement that medi-
ates between the constitutional principles of international law and
their application to particulars. Unlike Rawls, who seems to limit
the role of judgement to the application of established principles
to particular circumstances, Habermas leaves space for the reflexive
elaboration of cosmopolitan principles in the light of our experience
of actual interventions. He views experience as a learning process
in which we learn to deal with the dangers of slippage, for example,
from the making of an exception in international law to the treat-
ment of the exception as the rule or from the judgement of states as
outlaw states to the judgement of peoples as outlaw peoples.
Habermas confronts these difficulties but in so doing encounters
new difficulties. There is something unsettling about his repeated
argument that political judgement is necessary only because the
constitutionalisation of international law is not yet complete. From
this perspective, it might appear that when the transition from clas-
sical international law to cosmopolitan law is complete, then the
role of political judgement can be surpassed. If this is a vision of
finally overcoming political judgement through the procedures of
international law, then it is not obviously desirable or plausible.
The question is whether political judgement is a stop-gap measure
necessary in the absence of clear, concise and authoritative crite-
ria of justification, or rather an irreducible aspect of justifying,
authorising and monitoring military interventions. Habermas does

not altogether neglect the role of global civil society in publicis-
ing the conditions which might make us wish to support or oppose
humanitarian military interventions and in influencing those who
make the decisions to intervene. The worldwide publicity over the
massacre at Srebrenica and the worldwide demonstrations against
the invasion of Iraq are cases in point. However, in his vision of the
cosmopolitan order to come, deliberations conducted in the public
sphere are channelled strictly into avenues of international law, legal
judgement, law enforcement and police action.
One can understand the reasoning behind this move to re-posi-
tion humanitarian military intervention within the confines of inter-
national law. It stems from a legitimate attempt to put an end to
merely moral justifications of the use of force and to confront the
danger of a political power using human rights talk as a spurious
justification of military aggression or imperial conquest. The con-
stitutionalisation of international law appears as the cosmopolitan
answer to the Schmittian complaint: ‘He who invokes humanity
wants to cheat.’ However, this defensive strategy transfers respon-
sibility for making difficult judgements, in which the values of
upholding human rights, seeking peaceful resolution of disputes and
respecting national sovereignty are necessarily weighed against one
another, from political argument to the legal system. This transfer
of responsibility may appear as an attractive strategy in the face, for
instance, of unconvincing attempts by the US and UK governments
to use justifications of a humanitarian kind for military intervention
in Iraq. The perception that this use of humanitarian justifications
was in fact an abuse has not only discredited the capacity of the US
and its allies to act as bearers of the humanitarian norm but has also
cast doubt on the validity of the norm itself. In the face of this dis-
piriting conclusion the legalisation of the norm appears to have the
advantage of rescuing the norm from its political critics by isolating
it from the distortions of power.
The difficult question is whether the turn to international law can
carry the weight the new cosmopolitanism puts on its shoulders and
whether humanitarian military intervention has to be juridified to
be justified. I do not wish to argue that Habermas and other cosmo-
politans are wrong to defend juridical and procedural mechanisms
for justifying, authorising and conducting interventions, only that
a politics of intervention would not disappear in a regime of ‘cos-

mopolitan law enforcement’. The image that cosmopolitan law can
substitute for cosmopolitan political argument forgets that one has
to be angry about atrocities being committed somewhere else in the
world to want to do something about them and to risk lives to stop
them. The unkindest image I sometimes have of legal cosmopolitan-
ism is that we can have the same politicians in power in Western
states but that we would go to war for humanitarian reasons because
a group of judges say we should.
There is also a residual state-centred quality to this kind of
legal imagination. Cosmopolitanism does not have to be attached
to the notion that only states, individually or in concert, have the
responsibility to protect people against organised terror, expulsion
and annihilation. The responsibility to protect has a more univer-
sal application within cosmopolitan thought. It might include, for
instance, publicity and support for civil rights movements, free
trade unions, women’s equality movements and democratic political
parties in atrocity-committing regimes, and safe havens for refugees
in search of asylum from these regimes, rather than or in addition
to state-based armed interventions. We should not forget that geno-
cide in Rwanda was terminated neither by Western states nor by the
UN but in this case by the Rwandese Patriotic Front and Army.
Finally, humanitarian military interventions are likely to give rise
to reactive forms of resistance in the name of anti-imperialism. It is
a matter of political judgement, however, whether such ‘resistance’
is justified. Today we see a resistance which increasingly glorifies
violence, demonises its enemies and loses touch with the values of
political democracy and post-traditional civil society. In these cir-
cumstances, cosmopolitanism involves not only an appeal to the
constitutional principles of international law but a political critique
of the world view which feeds the sheer negativity of this form of
resistence.
6
Cosmopolitanism
and punishment
Prosecuting crimes against humanity
The prosecution of crimes against humanity is often given pride of

place within the new cosmopolitanism as the marker not only of the
transition from classical international law to cosmopolitan law but
of the emergence more broadly of a cosmopolitan consciousness
that stretches across national boundaries. What makes this aspect
of international criminal justice so significant for cosmopolitanism
is that the idea of crimes against humanity refers to ‘crimes that can
be committed completely within one state’s borders by members of
that state against other members of that same state’ and therefore
‘challenges the traditional understanding of a state’s exclusive pre-
rogative over crimes committed within its borders’ (May 2006: 349).
And yet the normative standing of this legal institution has been
challenged from all sides: by those who denigrate the prosecution of
crimes against humanity as merely ‘victors’ justice’ in a legal cloth;
by those who see the criminalisation of individuals as an irrelevance
in relation to larger issues of responsibility and justice; and those
who are suspicious of codified abstractions dissolving the particular
experience of horror shared by the victims. In the face of these criti-
cisms the characteristic response of the new cosmopolitanism is to
look to the completion of the transition to cosmopolitan law: to
develop an international criminal court, to specify the content of
crimes against humanity, consolidate the status of this crime within
international criminal law, establish an international police force to
apprehend suspects, and construct a system of impartial adjudica-
tion and punishment. I suggest, however, that this predominantly
legal response to the normative fragility of the law of crimes against
humanity should also address the inter-connections of law and
cosmopolitanism and punishment 97
politics. Instead of exploring the relation between cosmopolitan

law and politics, the juridical approach seeks to isolate the law from
politics and elevate it above politics. I shall argue that cosmopolitan
social theory entails a way of understanding crimes against human-
ity which from the start traces the ties that bind law to politics and
politics to law.
The exemplar of this approach to cosmopolitanism whose work I
shall discuss in this chapter is the political theorist, Hannah Arendt.
Her investigations into the actuality of crimes against humanity and
the construction of an anti-totalitarian politics capable of facing
up to their ‘horrible originality’ provide my starting point. More
specifically, her accounts of the Nuremberg trials after the Second
World War and 15 years later the trial of Adolf Eichmann, the
official in charge of transporting Jews to the death camps, provide
a rich seam of analysis from which I shall seek to extract what I
would call a ‘worldly cosmopolitanism’ (Arendt 1977b, 1994, 2003;
Arendt and Jaspers 1992; Arendt and McCarthy 1995). Arendt took
into account competing renditions of crimes against humanity: the
idealisation of cosmopolitan law in the work of Karl Jaspers; the
dismissal of cosmopolitan law as victors’ justice in the work of Carl
Schmitt; the downplaying of cosmopolitan law in relation to larger
issues of responsibility in the work of Martin Heidegger; the subor-
dination of cosmopolitan law to the uniqueness of the Holocaust in
the work of Gershom Scholem. Worldly cosmopolitanism does not
necessarily entail empathy with these alternative standpoints, but
it seeks to capture the element of ‘truth’ in what others have to say
and draw it into our own thinking. My contention is that Arendt’s
threefold engagement with crimes against humanity – with the actu-
ality of the crimes themselves, with the prosecution of the crimes
after the event and with the differing standpoints from which others
‘see’ both the crimes themselves and their prosecution – remains as
instructive for our understanding of cosmopolitan social theory as
it is for current debates on international criminal justice.
Arendt and Jaspers: Nuremberg

The formative moment in contemporary cosmopolitanism was the
institution of the law of ‘crimes against humanity’ in the Nuremberg
Charter and then its application in the Nuremberg Tribunal. The
98 cosmopolitanism and punishment
category of crimes against humanity was conceived as a supplement

to existing crimes in international criminal law, ‘war crimes’ and
‘crimes against peace’, made necessary by the unprecedented levels
of organised violence directed against civilians. The concept was
not entirely new. Its pre-history goes back to the charge of ‘crimes
against humanity and civilization’ laid at the Turkish government
for the massacre of Armenians in 1915. It was reformulated by
international lawyers in the latter part of the Second World War to
make it possible for a court of law to consider such crimes as those
that were being committed in the so-called ‘final solution of the
Jewish question’ (Marrus 1997: 185–7).
Why has this innovation in international criminal justice caught
the cosmopolitan imagination? An answer to this question is to
be found in The Question of German Guilt written in 1945 by the
philosopher and friend of Arendt, Karl Jaspers. Jaspers discerned
among the ruins of Nuremberg ‘a barely perceptible dawn’ – the
actualisation of the vision of cosmopolitan order first conceived by
Kant (Jaspers 1961). His argument may be reconstructed around
the following eight points. First, the prosecution of crimes against
humanity transcended established principles of national sovereignty,
which had too long put a ‘halo’ around heads of states and made
them inviolable to prosecution. Second, it announced that individu-
als acting within the legality of their own state could nonetheless be
tried as criminals and that service to the state no longer exonerates
any official in any bureaucracy or any scientist in any laboratory
from personal responsibility. Third, it removed the excuse of ‘only
obeying orders’ from perpetrators and it held those who sit behind
desks planning atrocities as guilty as those who participate directly in
their execution. Fourth, it enabled a distinction to be made between
the criminally guilty and the indefinite number of others who were
capable of co-operating under orders but not guilty in a criminal
sense. Fifth, it provided a lawful alternative to the barbarities of col-
lective punishment. Sixth, it extended the notion of criminal guilt
in international law beyond that of war guilt and made visible the
unprecedented levels of violence against civilians that had come into
existence. Seventh, by treating mass murderers as mere criminals it
represented them in their ‘total banality’ and deprived them of that
‘streak of satanic greatness’ with which they might otherwise have
been endowed. Finally, it signified that crimes committed against
one set of people, be it Jews, Poles or Roma, are an affront not

only to these particular people but to humanity as a whole and that
humanity has a duty to hold to account those who commit them.
This list is not exhaustive but it indicates why Jaspers was moved to
describe the Nuremberg Charter as ‘a feeble, ambiguous harbinger
of a world order the need of which mankind is beginning to feel’
(Jaspers 1961: 60).
In correspondence with Jaspers, Arendt offered a more equivo-
cal assessment. She endorsed the prosecution of crimes against
humanity as a crucial step in the direction of universal responsibility.
However, her enthusiasm for the law of crimes against humanity
was weighed against the overwhelming eventfulness of the crimes
themselves. She suggested that the enormity of Nazi crimes explode
the limits of the law:
For these crimes, no punishment is severe enough . . . That is,

their guilt, in contrast to all criminal guilt, oversteps and shat-
ters any and all legal systems . . . We are simply not equipped to
deal, on a human, political level, with a guilt that is beyond crime
. . . The Germans are burdened now with thousands or tens of
thousands or hundreds of thousands of people who cannot be
adequately punished within the legal system.
(Arendt and Jaspers 1992: 54)
She maintained that criminal law is not equipped to deal with

the difference between ‘a man who sets out to murder his old aunt’
and ‘people who without considering the economic usefulness
of their actions at all ... built factories to produce corpses’. There
was something about this guilt that oversteps all legal systems. She
underlined the disproportion between the small number of Nazis
who could be treated as criminally guilty and the vast numbers of
individuals implicated in conceiving, planning and executing the
Final Solution. When a machinery of mass murder impels practi-
cally everyone to participate in crime, the distinction between the
guilty and the innocent is effaced: ‘Where all are guilty, nobody in
the last analysis can be judged’ (Arendt and Jaspers 1992: 125). She
doubted that this exercise in criminal law would instil in Germans
a sense of responsibility for what had been done to Jews. German
people, she wrote, did not in general regard themselves as murderers
and the punishment of war criminals, rather than construct a new

sense of responsibility, provoked in them feelings of resentment and
betrayal. Its effect was to exonerate all Germans but the accused of
their guilt.
I would present the difference between Arendt and Jaspers in
this way. Jaspers acknowledged that the Nuremberg trials were not
yet based on a global legal order and that the category of crimes
against humanity was still contained within a national framework.
The deficiencies of Nuremberg were that the charge of crimes
against humanity was sparingly used by prosecutors; crimes against
humanity were tied to the conduct of war; the tribunal could only
consider crimes committed by Germans and excluded in principle
those committed by the allied powers; and the tribunal itself was a
multinational body established by the victorious powers and not an
international tribunal. For Jaspers, the shortcoming of the tribunal
lay in its reluctance to shake the foundations of national sover-
eignty (Deak 1993; Douglas 2001; Salter 1999). However, he saw
it as the first sign of a more general re-evaluation of responsibility
after Nazism, whose aim was not just to re-orient the pariah nation,
Germany, back to the main current of Western humanism but to
renew the tradition of Western humanism itself. Even if the norms
established in international criminal law were not yet universalised,
they were universalisable.
Arendt shared Jaspers’ cosmopolitan vision of universal respon-
sibility. In language reminiscent of Søren Kierkegaard, she looked
to a time when
human beings would assume responsibility for all crimes com-

mitted by human beings, in which no one people are assigned
a monopoly of guilt and none considers itself superior, in which
good citizens would not shrink back in horror at German crimes
and declare ‘Thank God, I am not like that’, but rather recog-
nise in fear and trembling the incalculable evil which humanity
is capable of and fight fearlessly, uncompromisingly, everywhere
against it.
(Arendt 1994: 132)
Arendt’s appeal to universal responsibility served less to indicate

the legal limitations of international criminal justice, limitations that
could be surpassed, than a conflict between the universal signifi-

cance of the prosecution of crimes against humanity and the moral
division of the world into the poles of German barbarism and allied
innocence. The prosecution of crimes against humanity is Janus-
faced: on the one hand, it overcomes the impunity of rulers; on
the other, it threatens to stigmatise the enemy in ways that would
serve only to reinforce the old national framework. While Jaspers
addressed the defects of Nuremberg in juridical terms of law’s pro-
gression, Arendt’s concern was that the law was neither working to
create a sense of responsibility among Germans nor to break the
image of the ‘unspeakable Nazi beast’.
The differences between Jaspers and Arendt should not be over-
stated, since both saw the majesty of international law in some sense
realised at Nuremberg. The more salient point, perhaps, is that the
cosmopolitan precedent established at Nuremberg quickly evapo-
rated with the onset of the cold war – not because crimes against
humanity disappeared from the world but because the political
sensibility that nurtured their prosecution was no longer present.
For 40 years or more the idea of ‘crimes against humanity’ returned
to the backburner of world history, sustained only among a few
radical intellectuals of an anti-totalitarian persuasion and some civil
society groupings committed to holding to account perpetrators of
atrocities, no matter how high their status.1 The major powers either
withdrew from international criminal law or, as in the Auschwitz
trials of 1963, turned to domestic legislation.2 There was something
premature in any cosmopolitan faith in law’s progress. The ideals
represented at Nuremberg were more like a flash of light prior to
the Cold War than a transition to a new cosmopolitan order.
Arendt and Jaspers: the Eichmann trial

When we move forward fifteen years from Nuremberg to Jerusalem,
we find a shift of emphasis in both Jaspers and Arendt. Jaspers
expressed equivocation about a trial he saw falling far short of
the ideals of legal cosmopolitanism. He criticised the kidnapping
of Eichmann from Argentina as having no legal justification. He
criticised the use of a national court on the grounds that ‘it is a
task for humanity, not for an individual national state’ to pass judge-
ment on crimes against humanity. He criticised the use of an Israeli
court, arguing that punishment might appear more like vengeance

than law. He maintained that ‘something other than law is at issue
here’ and to address it in exclusively legal terms was a mistake
(Arendt and Jaspers 1992: 410–19; Jaspers 2006). Arendt was less
impressed by legalistic objections. She was unwilling to condemn
the kidnapping of a man indicted at Nuremberg for crimes against
humanity – particularly from a country with such a bad record of
extradition as Argentina. She was unwilling to condemn the use of
an Israeli court: many of the surviving Jewish victims lived there,
Eichmann was charged with the mass murder of Jews, and in any
event there was no international court. She repudiated the argument
echoed by Eichmann’s counsel that as a Jewish institution the court
had a political interest in the outcome and could not therefore be
relied upon to deliver justice. She acknowledged that bigger issues
were at stake than are containable within a purely legal framework
– the nature of evil, totalitarianism, political anti-Semitism – but
this was no reason to deny the validity of prosecuting Eichmann. In
any event there were no other tools to hand except legal ones with
which to judge Eichmann (Arendt and Jaspers 1992: 417).
Arendt’s reservations over the Eichmann trial were of another
kind. They had to do with losing sight of the universalistic prom-
ise of prosecuting crimes against humanity. She heard the voice of
Jewish nationalism in the prosecution’s contention that only in
Israel could a Jew be safe, in its camouflaging of ethnic distinctions
in Israeli society, in its refusal to face up to the complicity of Jewish
community leaders in the administration of the Final Solution, and
not least in the fact that Eichmann was charged not only with crimes
against humanity but more centrally with ‘crimes against the Jewish
people’. In permitting this newly constructed offence Arendt argued
that the court failed to understand that
the physical extermination of the Jewish people was a crime

against humanity perpetrated on the body of the Jewish peo-
ple, and that only the choice of victims, not the nature of the
crime, could be derived from the long history of Jew-hatred and
antisemitism.
(Arendt 1977b: 269)
This was the nub of the issue for Arendt: the attempted extermina-
tion of the Jewish people was not to be understood as the culmina-
tion of a long line of persecutory acts against Jews, rather it was ‘an
attack upon human diversity as such, that is, upon a characteristic
of the “human status” without which the very words “mankind” or
“humanity” would be devoid of meaning’ (Arendt 1977b: 268–9).
The court failed to understand that in destroying an ethnic group
humankind in its entirety might be ‘grievously hurt and endangered’
(Arendt 1977b: 276). Arendt’s concern was that the court and espe-
cially the prosecutor, Gideon Hausner, were reinforcing the very
situation that the idea of crimes against humanity had sought to
correct – the breaking up of the human race into a multitude of
competing nations.
Arendt argued that the political shortcomings of the trial dove-
tailed with its legal shortcomings. The main business of any criminal
trial, she argued, is to ‘weigh up the charges, render judgement and
mete out due punishment’. However, in this trial the prosecutor
could not resist the temptation to subordinate legal justice to moral
ends. He appealed to Jewish rather than secular legality, he resorted
to biblical conceptions of vengeance, he subsumed legal criteria of
relevance to the unchecked testimony of survivor-witnesses, and he
portrayed them all as Jewish heroes. Arendt acknowledged the extra-
legal achievements of the trial, not least its exposure to public scru-
tiny of the destruction of European Jewry and the space it provided
for survivor-witnesses to have their say in public, but she maintained
that these ends would not be served if justice were not done and be
seen to be done. It is important not to overstate Arendt’s criticisms.
The failures of the Eichmann trial, as she put it, were ‘neither in kind
nor in degree greater than the failures of the Nuremberg trials or the
successor trials in other European countries’ (Arendt 1977b: 274).
Justice was done even if the principal crime could not be found in
the law books. The difference between Arendt and Jaspers should
not be overstated. Both attempt to construct a cosmopolitan point
of view on the trial and both supported the construction of an inter-
national criminal court. However, while Jaspers measured the trial
against a legal ideal and found it wanting, Arendt drew hard-headed
judgements from deeply equivocal material.
Strategies of denial
The cosmopolitan analysis put forward by both Jaspers and Arendt
contrast markedly with strategies of denial adopted by the defend-
ants themselves as well as by onlookers and historians sceptical of
the significance of this innovation in international criminal justice.
The jurist Carl Schmitt, himself interrogated at Nuremberg, quipped
that a ‘crime against humanity’ is one committed by Germans while
a ‘crime for humanity’ is committed by Americans. He treated the
prosecution of crimes against humanity as a prime example of ‘vic-
tors’ justice’ in a juridical disguise which served only to construct
the defeated enemy as ‘inhuman’ (Salter 1999).3
One strategy was to deny the validity of the law on the grounds
that it was enacted by four victorious military powers and not by an
authorised international legislature, it used vague phrases like ‘other
inhumane acts’ as part of its lexicon, it was retrospectively applied
to acts committed prior to the law itself, and it excluded equivalent
crimes committed by the victorious powers (Deak 1993). Since the
law violated formal principles of legality – that it be authoritative
in its origins, general in its application, specific in its formulation
and non-retroactive in its enforcement – it was argued that it was
not properly speaking law at all (Kirchheimer 1969; Neumann
1942). Another strategy was to claim that acts labelled ‘crimes
against humanity’ are normal routines of power in the international
arena, not fundamentally different from other acts of power not so
labelled. In the later case of Klaus Barbie, ‘the butcher of Lyons’,
his lawyers based their defence on the argument that their client’s
actions as police chief during the occupation were merely a case of
‘white Europeans’ doing to other ‘white Europeans’ what all white
Europeans have routinely done to black non-Europeans and that by
putting Barbie on trial the French were camouflaging their colonial
history (Finkielkraut 1992). A third strategy was to deny personal
responsibility on the grounds that perpetrators of crimes against
humanity have no choice but to obey orders and cannot, therefore,
be held guilty of the crimes committed. Appeal was made to external
constraints to which the perpetrators were subjected: if the choice
facing an individual is that of ‘kill or be killed’, it is only in a formal
sense that an individual is responsible for his or her actions. Appeal
was also made to the internal constraints faced by the accused.
Eichmann argued that since the command of the Führer was the
‘absolute centre’ of the legal system, he simply could not have acted
otherwise despite bearing no ill feelings towards his victims.
Martin Heidegger employed similar strategies of denial when
called upon by Herbert Marcuse to disavow the Nazi regime. What
the Nazis did to the Jews was no worse, he wrote, than what the
Russians did to the Germans. He maintained that the ‘manufacture
of corpses in gas chambers and extermination camps’ deserves no
more attention than other practices of modern technology, like ‘a
motorised food-industry’, which are ‘in essence – the same’. He
compared ‘those who were liquidated inconspicuously in extermi-
nation camps’ to ‘the millions of impoverished people right now . . .
perishing from hunger in China’ and distinguished only between
those ‘capable of enduring death in its essence’ and those who
merely ‘succumb’ and are ‘done in’ (Lang 1997; Rabinbach 1997).
A more interesting perspective, however, is apparent in his ‘Letter
on Humanism’ (1947). Written as a response to Sartre’s credo of
absolute individual responsibility, which allows no excuses for one’s
actions, not even Abraham acting under the command of God,
Heidegger relocated humanism as a metaphysics of the subject
that denies the historicality and finite freedom of human existence
(Heidegger 1976: 219). Humanism elevates the human being as
master of all things. It constructs a technological relation to the
world based on the domination of nature and people. Heidegger
insisted that when he spoke against humanism, his argument was
not designed to be destructive. It ‘in no way implies a defence of the
inhuman, but rather opens other vistas’ (Heidegger 1976: 250). It
does not declare humanism false but inadequate to the task of realis-
ing ‘the proper dignity of man’. It does not align itself ‘against the
humane’ or advocate ‘the inhuman’ but maintains only that human-
ism ‘does not set the humanitas of man high enough’ (Heidegger
1976: 233). Nazism became a catastrophe because it turned oppo-
sition to humanism into an advocacy of the inhuman. Heidegger
said he did not wish to do away with laws that ‘hold human beings
together ever so tenuously’ but rather ‘to think the humanity of
homo humanus . . . without humanism’ (Heidegger 1976: 254). If
Schmitt stood for the atrophy of responsibility, Heidegger stood for
its hypertrophy. In either case ordinary legal responsibility appeared
hard to sustain.
In response to these strategies of denial Jaspers heard only the

voice of hypocrisy and evasion. For Arendt, their more troubling
aspect lay in the ‘truth’ they contained. The prosecution of crimes
against humanity can serve to demonise the enemy, it can conceal the
crimes of the victors, it can reinforce national conceptions of guilt
and innocence, it can absolve the ordinary citizen of responsibility,
it can label people arbitrarily and it can draw attention away from
the larger ethical issues at stake. Even the epithet ‘victors’ justice’
expresses the truth that there is no court in the world that is not
the result of a prior victory. Resentment may be fuelled by a justi-
fied sense of the gulf between the humanitarian standards powerful
nations purport to respect and the violence they reveal in practice.
Arendt noted the ‘conspicuous helplessness the judges experi-
enced when they were confronted with the task they could least
escape . . . understanding the criminal whom they had come to
judge’. Eichmann was neither perverted nor sadistic but terrifyingly
normal: ‘this new type of criminal . . . commits his crimes under
circumstances that make it well-nigh impossible for him to know
or to feel that he is doing wrong’ (Arendt 1977b: 276). Other than
personal ambition he seemed to have no motives. It was as if ‘sheer
thoughtlessness . . . predisposed him to become one of the greatest
criminals of that period’ (Arendt 1977b: 288). Eichmann’s defence
was that he was a cog in a machine, to which Arendt observed that
‘the whole cog theory is legally pointless’ because in a trial ‘all the
cogs in the machinery, no matter how insignificant, are in court
forthwith transformed back into perpetrators, that is to say, into
human beings’ (Arendt 1977b: 289). The alternative was not attrac-
tive: to ‘judge and even . . . condemn . . . trends, or whole groups
of people – the larger the better’ in such a way that ‘distinctions
can no longer be made, names no longer named’ (Arendt 1977b:
296). As Arendt put it, we have to overcome ‘the reluctance evident
everywhere to make judgments in terms of individual moral respon-
sibility’ (Arendt 1977b: 297).
Arendt was, mistakenly in my view, critical of sociology for
accepting too readily that the essence of modern bureaucracy is ‘to
make functionaries and mere cogs . . . out of men, and thus to dehu-
manise them’ (Arendt 1977b: 289).4 In fact, in Weber’s conception
of bureaucracy officials are responsible for their actions, and part
of the immense power of bureaucracy is based on a responsibil-
ity for decision-making and rule interpretation that is distributed

throughout the hierarchy. If crimes against humanity were organ-
ised by a typical modern bureaucracy, individuals would have been
expected to take responsibility for the tasks assigned to them and
the leadership could not have relied on employees to perpetrate
murder simply as cogs in a machine. The process of following a rule
is mediated through consciousness and the ethos of public service is
the oil that allows the machine to run smoothly. Rules are nothing
without interpretation and application. Arendt argued, however,
that the form of organisation involved in crimes against humanity
was radically different from the Weberian model of legal-rational
bureaucracy. Movement rather than structure was its essence. There
was an intermeshing of state and party institutions. Duplication was
apparent in the many police apparatuses all doing similar work, spy-
ing on the population and on each other, without any clear knowl-
edge of who will be rewarded and who purged. In the complexities
of totalitarian domination all were ‘equal with respect to each other
and no one belonging to one group owed obedience to a superior
officer of another’ (Arendt 1977b: 71). The categorical imperative
of the Führerprinkip was: ‘Act in such a way as the Führer, if he
knew your action, would approve it’ (Arendt 1977b: 136). This was
not a principle of bureaucracy organised on the basis of formal rules
within a structured hierarchy; the allegiance of the official was not
owed to his or her immediate superior but to the leader. To be sure,
elements of bureaucracy were retained: people were numbered and
processed by bureaucratic-type machines; there were papers, form
filling, official stamps, mug shots and files kept on individuals. But
behind the simulacrum of bureaucracy we find no hierarchy of com-
mand or system of rules recognisable to a student of Weber. Officials
in positions of authority could be denounced and replaced by jun-
iors; one apparatus was liable to be liquidated in favour of another;
the stability and hierarchy of genuine bureaucracy were absent.
Arendt herself was equivocal about the effects of totalitarian
organisation on personal responsibility (Lefort 1986). It is certainly
arguable, however, that the individual responsibility of the official
was greater under the ‘leader principle’ than in a regulated hierarchi-
cal bureaucracy in which responsibility and authority are distrib-
uted according to plan. To grasp the will of the Führer demanded
zeal and creativity far in excess of the plodding bureaucrat and
wide latitude given to sub-leaders for the execution of policies.

Each holder of position was responsible for the activities of subor-
dinates, even in cases of disobedience and failure. Individuals were
not generally forced into the formations that perpetrated crimes
against humanity and members of murderous police battalions
(Einsatzgruppen), for example, were given the opportunity to with-
draw from the killing actions (Browning 1993). Under the ‘leader
principle’ authority worked through the will of every member to
know and act in accordance with the will of the leader and take
responsibility for all the decisions taken in their field of operation.
In short, responsibility for crimes against humanity is more than
a legal fiction; it is a form of social organisation and the image of
bureaucracy devoid of human subjectivity is a chimera. Actors may
present themselves as if they were cogs in a machine but the respon-
sibility of the doer for his deed does not thereby vanish. Eichmann
was the archetype of this new type of bourgeois, not the Kantian
individual who prides himself on thinking for himself but the ‘mass
man’ who sees himself as an employee without agency. Eichmann
said in court he had read Kant’s Critique of Practical Reason and
came up with a roughly correct version of the categorical impera-
tive: ‘I meant by my remark about Kant that the principle of my will
must always be such that it can become the principle of general laws’
(Arendt 1977b: 136). However, once charged with carrying out the
Final Solution, Eichmann claimed that he ceased to live according
to Kantian principles and became a mere employee working under
orders. Since he was ‘only doing his job’ and acting ‘in a professional
capacity’, he could not be regarded as a murderer. We have to distin-
guish between Eichmann’s self-presentation as a cog in a machine
and his actual responsibility for the crimes he committed.
Arendt also takes seriously the idea of a crime being against
humanity. She described the Nazi death camps as an organised
attempt to ‘eradicate the concept of the human being’. What was
at stake was not only ‘the blotting out of whole peoples, the “clear-
ance” of whole regions of their native population’, but also the
destruction of ‘the human status’ (Arendt 1977b: 257). The idea
of being ‘against humanity’ percolates through Arendt’s account of
modern politics:
Something seems to be involved in modern politics that actually

should never be involved in politics as we used to understand it,
namely all or nothing – all, and that is an undetermined infinity
of forms, of human living together, or nothing, for a victory of the
concentration camp system would mean the same inexorable
doom for human beings as the use of the hydrogen bomb would
for the human race.
(Arendt 1979)
Or again:
These modern, state-employed mass murderers must be pros-

ecuted because they violated the order of mankind, and not
because they killed millions of people. Nothing is more perni-
cious to an understanding of these new crimes, or stands in the
way of the emergence of an international penal code that could
take care of them, than the common illusion that the crime of
murder and the crime of genocide are essentially the same, and
that the latter therefore is ‘no new crime properly speaking’.
(Arendt 1977b: 272)
Death camps were an attempt not only to murder en masse human

beings of a certain stripe but also to ‘eradicate the idea of humanity’.
They functioned to eliminate ‘spontaneity itself as an expression
of human behaviour’, to transform ‘the human personality into a
mere thing’, to destroy ‘all sign of human plurality’, to realise the
supposition that ‘all men have become equally superfluous’ (Arendt
1979: 439–59). They constituted ‘an attack upon human diversity
as such, that is, upon a characteristic of the “human status” without
which the very words “mankind” or “humanity” would be devoid of
meaning’ (Arendt 1977b: 268–9).
Arendt acknowledged that in speaking of crimes against human-
ity international lawyers have to deal with human propensities that
are ‘very difficult to grasp juridically’ and there has indeed been
much debate about what is meant by the term ‘against humanity’
(May 2005). Arendt too found it difficult to grasp. In using the term
‘humanity’ she declared she did not have in mind a fixed conception
of human nature: ‘Nothing entitles us to assume that man has a nature
or essence in the same sense as other things’ (Arendt 1958: 9). She
preferred the language of ‘human status’ to ‘human nature’ because
it refers to ‘the sum total of human activities and capabilities which
correspond to the human condition’ (Arendt 1958: 10). I think we
need to make a further step. Once we think of ‘humanity’ in terms
of a certain status in the world, we can also address its historicity.
The idea of the human status originated in the ancient world as a
particular status that contrasted with that of slaves, foreigners and
women. In the modern world it is generalised as the status of all
human beings. The anthropologist, Claude Lévi-Strauss, observed:
The concept of an all inclusive humanity, which makes no dis-

tinction between races or cultures, appeared very late in the his-
tory of mankind and did not spread very widely across the globe.
What is more, as proved by recent events, even in one region
where it seems most developed, it has not escaped periods of
regression and ambiguity. For the majority of the human spe-
cies, and for tens of thousands of years, the idea that humanity
includes every human being on the face of the earth does not
exist at all.
(Lévi-Strauss 1983: 329; cited in Finkielkraut 2001: 5)
Crimes against humanity are crimes committed to undo this

accomplishment of the modern age and conceptually they may be
distinguished from the much longer history of crimes committed
in the name of humanity: for example, against colonial subjects
excluded from the status of human being by virtue of their ‘idolatry’,
‘coarseness of intelligence’ or the ‘evil they inflict on one another’
(Mehta 1999). In practice the dividing line is difficult to define.
What I take from Arendt is this: it is justified to prosecute crimes
against humanity because some crimes are against humanity and
individuals are responsible for them. Arendt referred to Eichmann
through a category of Roman law, hostis generis humani, enemy of
the human status. Her point was not to portray Eichmann as an
inhuman beast outside of human community. On the contrary, the
prosecution revealed Eichmann to be human, all too human. The
prosecution of crimes against humanity is designed not to demonise
the accused (Norrie 2006) but to humanise them, to treat them as
responsible human beings. The history of the idea of ‘crimes against
humanity’ in international criminal justice is a story of opportunities

and lost opportunities whose outcome is as dependent on the judge-
ment of ordinary citizens, like Arendt, as on the formalities of law
and legal process. The cosmopolitan point of view is not simply to
validate international criminal justice but to reconcile a commit-
ment to this transformative political project with recognition of the
world as it actually exists (Smith 2007a).
Arendt’s ‘worldly cosmopolitanism’, as I have put it, addresses
the intersection of law and politics in a style that recognises that
there is more to international criminal justice than ‘the unfolding
of law’s master plan’. It acknowledges that the universalistic import
of prosecuting crimes against humanity can revert to a logic of
demonisation, that justice can be subordinated to extra-legal ends,
that a prosecution can end up looking more like a show trial than
a court of law, that hostility to the idea of ‘humanity’ is more than
a pathological outburst of nihilism (Koskenniemi 2002). Worldly
cosmopolitanism is not forged simply through the progression of
legal and institutional forms but through our capacity as actors in
the public sphere to come to terms with our cosmopolitan exist-
ence. This means that when we judge and act in political matters, we
take our bearings ‘from the idea, not the actuality, of being a world
citizen’ (Arendt 1992: 76). In her reflections on crimes against
humanity Arendt offers an illustration, however fractured, of what
it is to think as a cosmopolitan citizen in a world in which cosmo-
politanism is no more than a flash of light in dark times.
cosmopolitanism and Holocaust

uniqueness
The elaboration of the cosmopolitan point of view may be pursued
by contrasting it with another reading of crimes against the Jewish
people that also surfaced in the Eichmann trial. The philosopher,
Gershom Scholem, picked up on Arendt’s discussion of evil and her
use of a now familiar term, ‘banality of evil’:
Your thesis concerning the ‘banality of evil’ . . . underlies your

entire argument. This new thesis strikes me as a catchword;
it does not impress me, certainly, as the product of profound
analysis – an analysis such as you give us so convincingly . . . in
your book on totalitarianism. At that time you had not yet made
your discovery . . . that evil is banal. Of that ‘radical evil’ to which
your then analysis bore such eloquent and erudite witness, noth-
ing remains but this slogan . . .
(Arendt 1978a: 245)
Scholem accused Arendt of trivializing the destruction of European

Jewry when she abandoned the language of ‘radical evil’ she had used
in The Origins of Totalitarianism to describe the death camps. Arendt
acknowledged that Scholem was right in one respect:
You are quite right: I changed my mind and do no longer speak

of ‘radical evil’ . . . It is indeed my opinion now that evil is never
‘radical’, that it is only extreme, and that it possesses neither
depth nor any demonic dimension. It can overgrow and lay waste
the whole world precisely because it spreads like a fungus on the
surface. It is ‘thought-defying’ . . . because thought tries to reach
some depth, to go to the roots, and the moment it concerns
itself with evil, it is frustrated because there is nothing. That is its
‘banality’. Only the good has depth and can be radical.
(Arendt 1978a: 250–1)
Arendt wrote of ‘the appearance of radical evil’ because the death

camps lacked any ‘humanly understandable sinful motives’, such as
‘self-interest, greed, covetousness, resentment, lust for power, and
cowardice’ (Arendt 1958: 241). The Eichmann case revealed, how-
ever, that the perpetrators of horror can be thoroughly pedestrian
individuals motivated by little more than careerism. Although his
deeds were monstrous, the doer was ‘ordinary, commonplace, and
neither demonic nor monstrous’ (Arendt 1977b: 3–4). She was not
trying to trivialise the Holocaust, she was trying to understand the
gulf between agency and action that makes such events possible
(Bernstein 1996: 138).
Banality of evil involves a cluster of connotations with family
resemblance to one another. It indicates that it requires no depth to
destroy and that the Final Solution substituted destruction of ‘the
Jews’ for any vision Nazism might once have had of reconstructing
Europe. It is a rejoinder to conventional images of the ‘Nazi mon-
ster’, signifiying a refusal to dehumanise the perpetrator in return
for the perpetrator’s dehumanisation of his victims. It refuses to

see the perpetrator as having nothing in common with ourselves.5
It reveals that evil is not outside the range of human understanding,
judgement and punishment. Scholem’s hostility was the expression
of another sensibility: one which fashioned the concepts of the
‘Holocaust’ and ‘Shoah’ out of the raw materials of Jewish theol-
ogy to name this singular and incomparable event and remove it
from the terrain of human understanding and judgement.6 Arendt
speculated on the possibility of a catastrophe so consuming as to
destroy our capacity for understanding: ‘how can we measure length
if we do not have a yardstick, how could we count things without
the notion of numbers?’ The Holocaust might have been like this
if the voice of resistance were silenced and if the attempt to exter-
minate Jews had been carried to a successful conclusion. But this
thought-experiment is counterfactual: it highlights the limitations
of ‘an experiment which requires global control in order to show
conclusive results’ (Arendt 1979: 459). We can perhaps envisage a
catastrophe so terrible as to exterminate the possibility of ‘know-
ing’ the catastrophe itself or judging those responsible for it, but
the Holocaust left behind survivors, witnesses, documents, traces
and perpetrators.7 Our capacity both to understand and to judge
survived.
The seemingly arcane distinction between ‘radical evil’ and ‘banal-
ity of evil’ became charged because these terms stood proxy for a
conflict between two ways of thinking: one which we might term
‘Holocaust uniqueness’ and the other ‘worldly cosmopolitanism’.
Crimes against humanity can appear beyond human comprehen-
sion. It seems senseless to punish innocent people, to fail to keep
them in a condition in which profitable work might be extorted
from them, to be intent on terrifying a completely subdued popula-
tion. Arendt wrote: ‘It was as though the Nazis were convinced that
it was of greater importance to run extermination factories than to
win the war’ (Arendt 1992: 233). The gas chambers did not benefit
anybody. They did not seem to have any definite purpose. The office
of Himmler issued one order after another ‘warning the military
commanders . . . that no economic or military considerations were
to interfere with the extermination programme’ (Arendt 1992:
236). The spirit of Arendt’s response to Scholem is this. Because
we can find no rational explanation for such phenomena, we are
tempted to declare them beyond human understanding. However,

the cosmopolitan institution is to resist this temptation and through
judgement and understanding to reconstruct the idea of humanity
in the face its eradication.
7
Cosmopolitanism and
the life of the mind
The critique of nihilism1
This chapter, as the title suggests, draws self-consciously on a

reconstruction of Hannah Arendt’s The Life of the Mind. I refer to
this text in part to affirm the importance of the life of the mind in
any vision of cosmopolitan order and in part to explore the critical
role cosmopolitanism plays in understanding the life of the mind as
it is currently lived. My thesis is that Arendt’s perplexing, late and
unfinished text offers not only a defence of the life of the mind but
also a diagnosis of the pathologies of the life of the modern mind. It
is, if you wish, a critique of modern reason.
The book itself was unfinished. Judgement, or judging, was to
be its last section but was never written. We have the first two sec-
tions of The Life of the Mind, those on Thinking and Willing, and
fragments of discussion on the nature of judgement drawn from
Arendt’s Lectures on Kant’s Critique of Judgment and various other
political and cultural essays.2 Curiously, this has not stopped many
commentators from representing this ‘incomplete’ work on judging
as the apex of Arendt’s contribution to political thought (Beiner in
Arendt 1992). ‘The faculty of judgment played a pre-eminent role
in Hannah Arendt’s political and moral thought’, writes Albrecht
116 cosmopolitanism and the life of the mind
Wellmer (2001: 165).3 This may be true but it is a little strange to

pick out this one radically incomplete aspect of Arendt’s political
thought when she proffered such highly developed analyses of other
subjects such as totalitarianism, anti-Semitism, imperialism, crimes
against humanity, revolution and the public sphere. Something
special is being accorded to the faculty of judgement, or rather to
one type of judgement, reflective judgement, and there is a sense
that either Arendt herself or her later commentators have seen in
reflective judgement a kind of philosopher’s stone that will open the
secrets of political thought.
Any reconstruction of The Life of the Mind has to address what
Arendt was doing in the book as a whole. To ‘complete’ in any satis-
factory sense the unfinished section of this book, we need to extract
the method present within Arendt’s analysis of the life of the mind
as a whole, see how she applies this method to the study of thinking
and willing, and then extend this method to the subject of judging.
This is no easy matter – particularly as the sections on Thinking and
Willing have a very different character.4 Yet if we are to reconstruct
the unwritten final section of The Life of the Mind on judging, we
need to have an idea of what the work as a whole is doing and how
the different parts relate internally to one another.
Putting aside for a brief moment any doubts we might have about
the treatment of thinking, willing and judging as distinct faculties,
let me put forward the following proposition about the relationship
between thinking, willing and judging as Arendt conceived, or more
accurately might have conceived it. My proposition is that Arendt
was a cosmopolitan thinker in this respect, that she had some notion
of a possible harmony between these ‘faculties’ of the mind; but she
saw any such harmony severely jeopardised in the modern world
where the activities of thinking, willing and judging are radically dif-
ferentiated, specialised and in constant risk of isolation. The danger
she saw lies both in the atrophy and in the hypertrophy of one or
more of these faculties. If modernity in some sense constitutes the
differentiation of the faculties and allows for the specialisation of
thought, will and judgement as discrete elements in a larger division
of mental labour, modernity also creates the pathogenic conditions
for the underdevelopment of some of these faculties of the mind
and the overdevelopment of others. It is an instance, if you like, of
combined and uneven development of the faculties of the mind.
cosmopolitanism and the life of the mind 117
The focus of Arendt’s study is on the pathologies of the life of

the modern mind. When we read the text of The Life of the Mind, it
becomes clear that Arendt sees the ‘faculties’ of thinking and will-
ing as containing deep inner contradictions and there is no reason
to suppose that her treatment of judging would be any different.
While the isolation of thinking, willing and judging in the modern
division of intellectual labour brings to the fore the contradictions
latent within each of these faculties, Arendt’s underlying motif is
that it is only through the unity of the life of the mind that the
contradictions internal to one faculty can be mediated by another.
In other words, we might say that the angle from which Arendt
approaches her critique of the life of the mind as a whole is that
of understanding the distorted form of modernisation that results
from the division of the life of the mind into distinct and opposing
faculties.5
This reading of the text resists any temptation to rationalise the
division of the mind into ‘faculties’ or reconstruct Arendt’s miss-
ing section on judgement on this basis. It resists in particular the
temptation to locate the text within a teleological framework which
I find incompatible with Arendt’s aporetic way of thinking. We can-
not, for instance, elevate thinking as the good faculty of the mind,
demote willing as the bad and posit judgement as the ‘promised syn-
thesis’ or ‘solution’ to an ‘impasse’.6 Nor should we posit thinking
as reflective inaction, willing as non-reflective action and judgement
as the reconciliation of reflection and action. Nor should we treat
thought as the abstract universal, will as the concrete particular and
judgement as the reconciliation of the universal and the particular.
No such ‘dialectic’ or philosophy of reconciliation – in which think-
ing serves as the thesis, willing as its antithesis and judging as the
moment of synthesis – is a road either Arendt or any cosmopolitan
thinker would go down.
In reconstructing the absent section on judging, my view is that
we should oppose any impulse to elevate judgement as the moment
of reconciliation between opposing faculties. To be sure, judgement
is an essential component of the life of the modern mind but it
serves less as a promised synthesis than as the equivocal source of
new repressions and conflicts. What I take from Arendt is that there
is no faculty of the mind, not even reflective judgement, which does
not create as many difficulties as it solves when it enters into the
public arena. Judgement without thought is arbitrary; judgement

without will is ineffective.7
To support this aporetic reading of the text, I shall review in turn
Arendt’s critiques of the activities of thinking, willing and judging
and end on the note of the unity of the life of the mind as a whole.
The equivocations of thinking

In her report on the Eichmann trial Arendt argued that the most
striking quality of Adolf Eichmann, the Nazi official in charge of
transporting Jews to the death camps, was his thoughtlessness, his
inability to engage in the activity of thinking. The effect of this
inability to think, this total absence of thinking, led Arendt to focus
on the relationship between thinking and judgement and pose the
following question:
Might the problem of good and evil, our faculty for telling right
from wrong, be connected with our faculty for thought? Could the
activity of thinking as such, the habit of examining and reflecting
upon whatever happens to come to pass, regardless of specific
content and quite independent of results, could this activity be
of such a nature that it ‘conditions’ men against evil-doing?
(Arendt 1978b: 1, 5)
Arendt’s intuition was that thinking has an internal connection

with the ability to judge right from wrong. The final words of her
essay on Thinking and Moral Considerations express this connection
thus:
The manifestation of the wind of thought is no knowledge; it is

the ability to tell right from wrong, beautiful from ugly. And this
indeed may prevent catastrophes, at least for myself, in the rare
moments when the chips are down.
(Arendt 2003: 189)
Faced with the conjunction of evil-doing and thoughtlessness,

Arendt found in the activity of thinking as such an antidote to evil:
‘thinking is among the conditions that make men abstain from evil-
doing’ (Arendt 1978b: 1, 5).
The connection between thinking and judging is formulated by

Arendt in basically negative terms: thinking prepares for judgement
by purging us of ‘fixed habits of thought’, ‘ossified rules and stand-
ards’ and ‘conventional . . . codes of expression’. As Dana Villa puts
it, it creates an ‘open space of moral or aesthetic discrimination and
discernment’ (Villa 1999: 89–90). Arendt characterises judgement
as a by-product of the liberating effect of thinking. While thinking
deals with the representation of things that are absent, judgement
always concerns things close at hand. The liberating effect of think-
ing is not because it reveals, in the manner of Kantian metaphysics,
the truth of what is right: ‘We cannot expect’, she wrote, ‘any moral
propositions or commandments, no final code of conduct, from the
thinking activity, least of all a new and now allegedly final definition
of what is good and what is evil’ (Arendt 1978b: 1, 167). Rather she
finds something in the ‘negative’, ‘resultless’ and ‘dissolvent’ nature
of thinking that, by questioning everything and treating nothing
as final, shatters the unreflective morality of good and evil. Arendt
draws on metaphors associated with Plato’s account of Socrates.
Thinking is a ‘gadfly’ that arouses us from our sleep and makes us
feel alive; thinking is a ‘midwife’ that helps people purge themselves
of unexamined prejudices; thinking is an ‘electric ray’ that momen-
tarily paralyses us, interrupts our activities and infects others with
our own perplexities. This capacity to ‘stop-and-think’ may appear
as irritating indecision but at times of crisis, when ‘everybody is
swept away unthinkingly by what everybody else does and believes
in’, thinking asserts the claims of inaction – of a refusal to join in.
It makes us unsure of what seemed beyond doubt while we were
unthinkingly engaged in action. If Eichmann is the representative
figure of thoughtlessness, Socrates is the representative figure of the
moral efficacy of thinking per se.
This is one side of the picture and it is the more familiar. There is,
however, another side to Arendt’s analysis of thinking which con-
cerns the danger of nihilism inherent in the activity of thinking as
such. Arendt acknowledges that thinking ‘inevitably has a destruc-
tive, undermining effect on all established criteria, values, measure-
ments for good and evil, in short on those customs and rules of
conduct we treat of in morals and ethics’ (Arendt 1978b: 1, 175).
While the strength of thinking lies in its critical capacity, the pathol-
ogy of thinking is the mirror of its strength. It transforms the
non-results of Socratic thinking into negative results. If thinking

undermines established notions of piety, it can also turn impiety
into its maxim. The spectre of nihilism is latent within the very
activity of thinking:
Thinking can at any moment turn against itself, produce a reversal

of old values, and declare these contraries to be ‘new values’ . . .
What we commonly call nihilism . . . is actually a danger inherent
in the thinking activity itself. There are no dangerous thoughts;
thinking itself is dangerous . . .
(Arendt 1978b: 1, 176)
Since all thought must go through a stage of negating accepted

opinions and values, nihilism is the ‘ever-present danger of think-
ing’. While thinking may clear the path for judgement, it may equally
engender a mere reversal of old values.
We find that thinking has an unexpected affinity with non-think-
ing. Non-thinking, as Arendt puts it, teaches us only ‘to hold fast
to whatever the prescribed rules of conduct may be at a given time
in a given society’ (Arendt 1978b: 1, 177). If the prescribed rules of
conduct change and there is a reversal of the basic commandments
of Western morality, such as ‘Thou shalt not kill’ and ‘Thou shalt
not bear false witness’, as there was in the era of totalitarianism,
we can as unthinkingly hold to the new code as we did to the old.
The ease with such reversals can take place under certain conditions
suggested to Arendt that most people were ‘fast asleep’ when they
occurred.
This unexpected affinity of thinking with non-thinking takes up a
theme which Arendt referred to in her The Origins of Totalitarianism
as ‘the temporary alliance between the mob and the elite’. There is an
alliance, albeit a temporary one, between the atrophy of thinking on
the side of the mob and the hypertrophy of thinking on the side of
the elite (Arendt 1979: 326–40). The glue that holds this temporary
alliance together is nihilism. Arendt drew on Nietzsche’s depiction
of nihilism in The Will to Power: ‘What does nihilism mean? That
the highest values devaluate themselves. The aim is lacking; “why?”
finds no answer’ (Nietzsche 1969a: 9). ‘Here there is no why’,
as Primo Levi was to recount the words of an Auschwitz guard.
Nietzsche anticipated a time when the values and beliefs taken as
the highest manifestation of the spirit of the West would lose their
validity and breed a ‘spiritless radicalism’ full of hostility to culture
and images of destruction.
Arendt argued that the barbarism Nietzsche anticipated proved
to be a pale image of the barbarism to come. She wrote of the jus-
tified disgust with the fake world of bourgeois values felt by the
most thoughtful of the ‘elite’ after the Great War. She wrote of the
revulsion felt by radical intellectuals of the front generation over the
gulf between the values society espoused and the mechanised mur-
der it actually produced.8 The intellectual elite became ‘absorbed by
their desire to see the ruin of this whole world of fake security, fake
culture and fake life’ and elevated violence, cruelty and destruction
as ‘supreme capacities of humankind’ (Arendt 1979: 330). It turned
negativity into nihilism. True, Arendt emphasised the temporary
nature of the alliance between the elite and the mob, for thinking
and thoughtlessness are uneasy bed-fellows, but experience of the
pathologies of thinking belies any premature identification of this
activity with abstention from evil-doing.
Actually the dangers of thinking are scattered throughout
Arendt’s writings. Thinking can turn ‘what ought to be’ into an
absolute standard against which everything that exists is treated
with indifference or disdain. Thinking can turn the idea of progress
into a justification for the most criminal of human actions. Thinking
can superimpose the logic of an idea onto the concrete historical
process and pretend to know the mysteries of the whole histori-
cal process. Thinking can privilege spurious deductions from ideo-
logical premises over any activity of understanding or judgement.
Heidegger is for Arendt the exemplary case of a philosopher who
pushed thinking to the point where its remoteness from the world
led to ‘error’, if not evil – in this case, his engagement with National
Socialism (Villa 1997). It is an old story that great philosophers
do not necessarily manifest sound political judgement and tend to
regard ‘with indifference and contempt . . . the world of the city’.
Thinking does not only prepare the way for judgement. It needs
judgement to save itself from itself.
The equivocations of willing

Willing for good reason is a less studied section of Arendt’s The Life
of the Mind. Its long historical passages on philosophical concep-

tions of the will fail to make transparent what Arendt was trying to
say about this ‘faculty’. Arendt was deeply critical of the modern
identification of freedom with the will. Freedom, she insisted, is a
political artefact, not an internal quality of human beings, and its
origins can be traced back to the ancient polis. The faculty of the
will, by contrast, is a modern phenomenon. Its differentiation from
the life of the mind as a whole is the product of modern times:
We almost automatically equate freedom with free will, that is,

with a faculty virtually unknown to classical antiquity . . . The
Greeks never became aware of the will as a distinct faculty sepa-
rate from other human capacities.
(Arendt 1978b: 2, 5)
Arendt argued that the emergence of the will proved to be a

mixed blessing. On the one hand, free will provides the basis of
all modern conceptions of right, morality, responsibility and law-
fulness: ‘Without the assumption that the will is free no precept
of a moral, religious or juridical nature could possibly make sense’
(Arendt 1978b: 2, 164). Arendt’s own focus, however, is firmly on
the pathologies of willing. For Arendt, the idea of the will is inti-
mately attached to terror rather than to freedom – or to a form of
freedom that can only express itself in the experience of terror.
Arendt’s discussion of the Rousseauian doctrine of the ‘general
will’ in her earlier study On Revolution drew the outlines of this con-
nection between terror and the will. She contrasts the idea of the will
which ‘essentially excludes all processes of exchange of opinions and
an eventual agreement between them’ to the idea of consent with its
‘overtones of deliberate choice and considered opinion’. The silent
assumption behind the general will is that the will is an automatic
articulation of interest and that the general will is the articulation
of the national interest. Indivisible and dedicated to unanimity, the
general will can only exist as a singular entity. It conceives of the
people as a ‘multiheaded monster, a mass that moves . . . as though
possessed by one will’. Its quality is unanimity. It presents itself as
always in the right and it holds not only that the particular opinions
of individuals are subordinate to the whole but that the value of the
individual should be judged by the extent to which ‘he acts against
his own interest and against his own will’. The common enemy that
unites the nation is not only an external power but the particular will
of every individual: ‘such an enemy existed within the breast of each
citizen’. The general will inaugurates a world of mutual suspicion
and the abolition of all legal and institutional guarantees. In follow-
ing Rousseau’s dictum that ‘it would be absurd for the will to bind
itself for the future’, it anticipates the structureless quality of totali-
tarian governments to come: ‘Nothing is less permanent and less
likely to establish permanence than the will’. Nature itself seems to
offer no resistance (Arendt 1988: 73–94). It is not surprising that
Arendt presents the faculty of the will as ‘the trickiest and the most
dangerous of modern concepts and misconceptions’ (Arendt 1988:
225).
In The Life of the Mind Arendt develops this theme. She found
something deeply disturbing in the change in the conception of the
future that accompanies the modern concept of progress – ‘from
that which approaches us to that which we determine by the Will’s
projects’. There is something frightening in the movement from a
political conception of freedom that is possible only in the sphere
of human plurality to a philosophical conception of freedom that is
fundamentally solipsistic. There is something delusional in the prej-
udice that political community can represent the will of the people,
for all political communities ‘constrain the will of their citizens’ and
at best ‘open up some spaces of freedom for action’ (Arendt 1978b:
2, 199). Unlike thinking, which manifests itself in internal dialogue,
Arendt argued that willing is essentially about domination, not dia-
logue, even if we are both those who give the orders and those who
obey them and take for granted the obedience in ourselves. ‘To will
is to command’, writes Nietzsche, ‘inherent in the Will is the com-
manding thought’ (Arendt 1978b: 2, 161). Drawing on Nietzsche,
Arendt links the emergence of the will to the sources of evil in the
modern world: from the fact that ‘the will cannot will backward . . .
cannot stop the wheel of time . . . from that impotence Nietzsche
derives all human evil’ – resentment, thirst for vengeance, the will to
power over others (Arendt 1978b: 2, 168). Drawing on Heidegger,
Arendt associates the destructiveness of the will with its obsession
with the future: ‘In order to will the future in the sense of being the
future’s master, men must forget and finally destroy the past . . .
This destructiveness ultimately relates to everything that is’ (Arendt

1978b: 2, 178). Nihilism appears as the natural end of the will:
Man as he is now, when he is honest, is a nihilist . . . a man who

judges of the world as it is that it ought not to be and of the
world as it ought to be that it does not exist.
(Arendt 1978b: 2, 169)
Arendt writes of the ‘abyss of freedom’ that opens up when the

will underpins the establishment of a new social order, the ‘abyss
of nothingness’ that opens up before the thought of an absolute
beginning, the ‘abyss of pure spontaneity’ that opens up in the face
of the unfounded promises of a final realm of absolute freedom – a
realm that ‘would indeed spell “the end of all things”, a sempiternal
peace in which all specifically human activities would wither away’
(Arendt 1978b: 2, 207–16). The will, to use a more Hegelian vocabu-
lary, contains the possibility of abstracting from every determination
in which it finds itself and of treating every content as a limitation.
In such circumstances freedom becomes the ‘freedom of the void’.
Hegel put it thus: ‘Only in destroying something does this negative
will have a feeling of its own existence . . . its actualisation can only
be the fury of destruction’ (Hegel 1991: §5 A and R).9
It would appear that for Arendt the spectre of nihilism lies at the
margins of thinking but at the core of willing. However, this con-
trast may be misleading. The source of nihilism lies not in the will as
such but in its lack of determinate form. It is the abstraction of the
will from its worldly existence that exposes the abyss of freedom.
Even Arendt cannot in the end separate the achievements of moder-
nity in expanding the space of human freedom from the emergence
of the will: our capacity for beginning; our refusal to acknowledge
anything not justified in thought; our right of individual personal-
ity; our ability to overcome the givenness of the world; even the
strength we find in the willing act itself. Not for Arendt, then, the
Heideggerian conclusion that to overcome nihilism we need the
strength to ‘deify the apparent world as the only world’ (Arendt
1978b: 2, 168–70). Arendt’s final word on the will is not one of
repudiation or resignation but of ‘impasse’ – an impasse which, she
writes, ‘cannot be opened or solved except by an appeal to another
mental faculty . . . the faculty of judgment’ (Arendt 1978b: 2, 217).
judgement and understanding

Judgement is the ability to apply thinking to particulars or, as Arendt
puts it, it is ‘the manifestation of thinking in the world’ (Arendt
1978b: 1, 193). Arendt follows Kant in distinguishing between
determinate judgement, which is the capacity to apply given princi-
ples established within your own community to any set of particu-
lars, and reflective judgement, which is the ability to tell right from
wrong, beautiful from ugly, without the guidance of fixed rules, that
is, ‘when all [people] have to guide them is their own judgment’ and
even when their judgement ‘happens to be completely at odds with
what they must regard as the unanimous opinion of all those around
them’ (Arendt 1977b: 294). Determinate judgement is the ancient
virtue Aristotle called phronesis or prudence, the virtue of the politi-
cal actor able to apply generally accepted standards to particular
circumstances. Reflective judgement is the capacity for independent
judgement which comes to the fore when the world around us goes
mad. Arendt wrote of those few individuals who in a totalitarian
society were still able to tell right from wrong:
They went really on their own judgments, and they did so freely;
there were no rules to be abided by, under which the particular
cases with which they were confronted could be subsumed. They
had to decide each instance as it arose, because no rules existed
for the unprecedented.
(Arendt 1977b: 295)
Arendt wrote of those Germans who refused complicity with

Nazism at great risk to themselves as ‘the only ones who dared
judge by themselves’. Reflective judgement expresses this capacity
to make autonomous judgements irrespective of public opinion,
scientific authority or state legislation.
Arendt connects reflective judgement to terms drawn from
Kant’s Critique of Judgment – ‘common sense’ (sensus communis)
and ‘enlarged mentality’. Common sense relates to the world of
experience rather than to the mantras of an ideology. It implies the
sharing of a common world with others rather than the isolated
thinking of an individual and thus breaks the fetters of subjective
self-absorption. Enlarged mentality is a mindset that pushes beyond
the boundaries of any particular mode of perception to behold the

world through the eyes of an abstracted generalised other. It seeks
to embrace the standpoint of everyone else, to place itself in the
shoes of another and see the world from another’s standpoint. These
connected terms are afforded a distinctly cosmopolitan accent in
Arendt’s writings:
One judges always as a member of a community . . . but in the

last analysis, one is a member of a world community by the
sheer fact of being human; this is one’s ‘cosmopolitan exist-
ence’. When one judges . . . and acts in political matters, one is
supposed to take one’s bearings from the idea, not the actuality,
of being a world citizen.
(Arendt 1992: 75–6)
Arendt addresses the conundrum that we make judgements as

members of a particular community. Judgement in this sense is
always situated: it does not come from ‘nowhere’ or from ‘on high’.
On the other hand, for judgement to be valid, it is not merely an
expression of the interests, prejudices or values of our particular
community. It must have a universal and timeless validity over and
beyond its origins. If judgement is local, it also strives for univer-
sality. Arendt translates this striving into political terms. We must
judge as members of a world community and take our bearings from
the idea of being world citizens. This basis of judgement is open to
everyone by virtue of the sheer fact we are all human beings.
There is reason to think that the distinction between determi-
nate and reflective judgement refers to extremes, neither of which
is achievable or even conceivable in practice (Ferrara 1999: 6–7;
Makkreel 1994). In the case of determinate judgement the idea of
moving non-reflectively from a general principle to a particular
judgement obscures the inescapable work of interpretation that the
actor must engage in. In the case of reflective judgement the idea of
judging independently of any social norm obscures our reliance on
some community of thought. In their pure forms both determinate
and reflective judgements have a mythic quality: one based on the
denial of agency and myth of total absorption in the community,
the other based on the denial of community and myth of total inde-
pendence. Judgement always lies between these extremes.
It seems to me that what is at stake in the distinction between

determinate and reflective is the relation between the social norms
of our immediate national community (in Arendt’s example, the
norms of Nazi Germany) and the social norms of a more distant
yet no less real community, the world community in which we
take our bearings from the idea of being world citizens. This is our
‘cosmopolitan existence’, our human identity, and it is our most
vital resource in dark times. Reflective judgement in this account
involves above all the capacity for imagination – for re-presenting
cosmopolitan standards of judgement which are institutionalised in
a variety of forms but which have no visible presence in the society
in question. It is along these lines that I would reconstruct the affin-
ity of cosmopolitanism to reflective judgement.
Judgement, however, is not immune to the equivocations and
pathologies that beset the other ‘faculties’ of the mind. The morality
of good and evil expresses the danger of nihilism inherent in reflec-
tive judgement as such. It is not a question of this or that dangerous
judgement but of the dangers of the activity itself of judging. The
spectre of nihilism is present since all reflective judgement must go
through the stage of discriminating anew between what is good and
evil, beautiful and ugly, guilty and innocent.
One of the dangers inherent in the ‘faculty’ of judgement is that
of elevating the moral point of view to supreme status. The ‘moral-
ity of good and evil’, to use Nietzsche’s phrase, prioritises morality
over all instrumental considerations. It calls for the destruction of
evil as the condition for the triumph of the good. Evil is the ‘enemy’
as the man of ressentiment conceives him: ‘Here precisely is his deed,
his creation: he has conceived “the evil enemy”, “the evil one”, and
this in fact is his basic concept, from which he then evolves, as an
afterthought and dependant, a “good one” – himself ’ (Nietzsche
1969b: 39). In its rush to judgement the morality of good and evil
exonerates the ‘good’ of all responsibility except that of destroying
evil. It revels in the ‘exultant face-to-face confrontation between
Innocence and the Unspeakable Beast’ (Finkielkraut 1992: 60).
Not only does it make no effort to understand what it judges but
it recoils from the task of understanding itself for fear that ‘tout
comprendre, c’est tout pardonner’.10
The morality of good and evil contrasts sharply with those tradi-
tional theodicies dating back to Leibniz, in which the occurrence of
evil was an occasion for deep reflection on how human cruelty and
misery can co-exist with a just god. Today, it would seem, the judge-
ment of evil can be opposed to all reflection, dialogue or delibera-
tion. The strength of Arendt is to stress from the start the unity of
judgement and understanding. She saw the crisis of understanding
and crisis of judgement brought about by the rise of totalitarian-
ism so closely inter-twined that she spoke in the same breath of
‘the ruin of our categories of thought and standards of judgment’.
The essential point, she argued, is to learn to ‘understand without
preconceived categories and to judge without the set of customary
rules which is morality’ (Arendt 1992: 388). Judgement and under-
standing belong to one another.
The relation of judgement to understanding was a key thematic
of Arendt’s earlier works, collected under the title of Essays in
Understanding. Understanding has much in common with think-
ing. Arendt characterises understanding as ‘a profoundly human
activity . . . a specifically human way of being alive; for every single
person needs to be reconciled to a world into which he was born
a stranger and in which, to the extent of his distinct uniqueness,
he always remains a stranger’ (Arendt 1992: 308). Understanding
is the opposite of indoctrination or ideology. It generates no fixed
results. It can only be done in concert with others. It takes into
consideration the viewpoints of others. It is prepared to share its
conclusions in open and uncoerced discussion with others. It is
prepared, like Penelope’s weaving, to ‘undo every morning what
it has finished the night before’ (Arendt 1978b: 1, 88). It takes as
much pleasure, as Gotthold Lessing put it, in ‘making clouds’ as it
does in clearing them. Understanding differs from thinking in that
it relates the subjectivity of thinking to the substance of what is
to be understood. Understanding is always of something. It must
have an object and its task is the comprehension of what exists,
not the setting up of an ‘ought’ which has ‘no proper topos or place
in the world’ (Arendt 1978b: 2, 196). It can never be a statement,
therefore, only of the subject’s opinions, convictions or feelings.
This does not imply acquiescence in the arrangements of the world,
for the peace understanding established with the world has more
warmth in it than this. Nor does it imply empathy with the subjects
of our understanding or justification of their actions, for empathy
may be unwarranted and justification reveals nothing of subjectiv-
ity. The core value of understanding is to preserve the subjective

freedom of the individual while at the same time attaching it to the
world.11 This worldliness makes understanding a vital aspect of our
cosmopolitan existence (Smith 2007b).
The effects of severing judgement from understanding are mir-
rored in the effects of severing understanding from judgement. A
positivistic social science which excludes moral judgement is one
which disables understanding in the face of the extremes of human
behaviour (Baehr 2002). It threatens to become scholastic or coldly
analytical, incapable of grasping the essence of things. Arendt
observes that the tradition of dispassionate and objective analysis in
American sociology can make it very difficult to understand what
human beings are capable of:
To describe the concentration camps sine ira et studio is not to

be ‘objective’, but to condone them; and such condoning cannot
be changed by condemnation which the author may feel duty
bound to add but which remains unrelated to the description
itself. When I used the image of hell, I did not mean this alle-
gorically but literally . . . In this sense I think that a description
of the camps as Hell on earth is more ‘objective’, that is, more
adequate to their essence than statements of a purely sociologi-
cal or psychological nature.
(Arendt 1992: 404)
In so far as the social sciences try to explain the death camps in

terms of political, economic or military utility, they cannot grasp
the ‘nightmare of reality’ before which such scientific categories
necessarily fail. Just as moral judgement can be opposed to under-
standing the world, so too understanding the world can seriously
lack judgement.12 The diremption of understanding and judgement
comes full circle when, confronted by our inability to find a rational,
i.e. utilitarian, explanation for atrocity, we are tempted to declare
it beyond human understanding and susceptible only to judgement
(Lyotard 1988).
The social sciences are reluctant to admit categories of good and
evil into their vocabulary. The morality of good and evil rings of
theology rather than of science, of tradition rather than modernity,
of absolute moral standards rather than cultural relativism, of dogma
rather than critical reflection, of one church rather than a plurality

of language games, of faith rather than enlightenment. When social
scientists address the question of evil, it is to place it within scare
quotes: we write not of evil but of conceptions of ‘evil’ held by
social actors and we treat even the conception of ‘evil’ as the mark
of unenlightened consciousness. Ultimately the aim of the social
sciences is to dissolve evil – to eliminate it from its own lexicon and
from the lexicon of a self-reflexive society. It is difficult, however, to
evade the suspicion that the exclusion of the language of evil from
the social sciences may serve to conceal its factual existence.
The task of cosmopolitan social theory, as I conceive it, is not to
reintroduce the language of evil into the social sciences, still less to
justify the flight we now see from the social sciences to a new political
theology. However, we do not have to be nostalgic for theodicy to
be apprehensive of the effects of spiriting ‘evil’ away in the name of
‘science’ and ‘technology’. The offence Arendt’s critics found in the
style of her work on the Eichmann trial – her refusal either to aban-
don understanding in relation to the perpetrators of the Holocaust
or to abandon judgement in relation to the leaders of the Jewish
community – may serve as an index of the unity of understanding
and judgement that I take to be her prime cosmopolitan virtue.
nihilism and cosmopolitanism

I am aware that my line of argument to some extent goes against
the grain of Arendt’s own work and her debt to Kant. She seems
to believe in the idea of the faculties. She writes, for example, as if
thinking and willing are not just two distinct faculties but ‘oppo-
sites’ – one based on the harmonies of internal dialogue, the other
on an ongoing conflict between will and counter-will, command and
resistance. It appears from this perspective that willing is not only
divorced from thinking but prejudicial to it. However, we cannot
have a will without thinking. An animal has no will in so far as it
does not re-present to itself in thought what it wants. Nor can we
think without a will, for thinking itself is an activity. The distinc-
tion between thinking and willing is better conceived, following
Hegel, as that between a theoretical and practical attitude. These
apparently distinct and opposed faculties are in fact inseparable, for
both moments can be found in every act of thinking and willing

alike.
Arendt also writes as if willing and judging were distinct and
opposite faculties. However, she cannot escape the intimate con-
nection between reflective judgement and the exercise of the will.
She comments, for instance, that the few Germans who refused to
comply with Nazism were the only ones who dared judge for them-
selves, but we do not know this to be the case. We know only that
these individuals had the courage to translate their judgement into
action – into an act of resistance. They manifested not only a capac-
ity to judge but also the will to resist. Reflective judgement cannot
be independent of the will since it can only manifest itself in an act
– whether it is the actor who draws general principles from his or
her own act of resistance or the observer who stresses the exemplary
validity of another’s act of resistance.
Arendt, however, often wrote of the activities rather than the fac-
ulties of the mind, and this alternative terminology serves as a caveat
for us not to reify the faculties or rationalise their separation. It
suggests that human beings do not have distinct faculties but rather
that we engage in activities of thinking, willing, judging, imagining,
understanding, etc. and move more or less fluently from one to the
other. It also suggests that the philosophical theory of the facul-
ties is an expression of a determinate division of mental and manual
labour (Sohn-Rethel 1978) in which the activities of the mind are
not only differentiated and specialised but in danger of becoming
isolated and fixed.
Arendt’s initial question, on the link between thoughtlessness
and evil-doing, raises an exceptionally interesting question con-
cerning the role played by the life of the mind in public life. I have
extended her thesis by asking whether the proclivity to evil-doing
can be explained, in part or in whole, by the division of the life of
the modern mind into isolated, distinct and opposing faculties and
by the separation of the life of the mind (vita contemplativa) from
the life of action (vita activa). I make use of her conception of
‘worldliness’ as the cosmopolitan virtue par excellence that refuses
to rationalise the division of the life of the mind into reified faculties
or its separation from the life of work and politics. The spectre of
nihilism is never far from the surface of the life of the modern mind
because worldlessness, which is akin to subjectivism (Fine 2006a),

isolates the mind from the world, gives even to the life of the mind a
barbaric and nihilistic aspect. We cannot conceive of cosmopolitan-
ism without the life of the mind but neither can we conceive of it
without facing up to the worldlessness that affiliates the life of the
mind to the logic of destruction.
Conclusion
The elements of a cosmopolitan
social theory
Viewed as a whole, this book offers a critical engagement with the

modern cosmopolitan tradition, beginning with Kant and then
explored through certain key post-war writers, notably Hannah
Arendt, Ulrich Beck, Jürgen Habermas and, more broadly, ‘the
new cosmopolitanism’. The concept of ‘cosmopolitanism’ has not
been addressed in conceptual isolation but through its uses in the
language games of social and political thought and its applications
to urgent political phenomena: the reforming of social solidarity
within the nation-state, the political integration of the European
Union, the role of international law in the current world order, the
phenomenon of humanitarian military intervention, the prosecution
of crimes against humanity, the critique of the life of the modern
mind, and the formation of an anti-totalitarian politics. The critical
engagement of which I speak has revolved around a number of over-
lapping thematics and in this conclusion I shall briefly summarise
some of the principal ones.
Under the title of taking the ‘ism’ out of cosmopolitanism, I have
argued that in the social sciences cosmopolitanism should be under-
stood as a research agenda rather than a fixed idea or state to be
134 conclusion
achieved. Cosmopolitanism has its origins in natural law theory and

contemporary cosmopolitanism pays its debt, in particular to Kant.
I have sought to re-instate cosmopolitanism within the tradition of
social theory and have used the term ‘cosmopolitan social theory’
to characterise my own approach and to contrast it with ‘the new
cosmopolitanism’. I have sought to problematise the tradition of
natural law, de-nature the idea of the cosmopolis, extract cosmo-
politanism from a teleological philosophy of history and dispel the
spectre of a ‘cosmopolitan age’ to come.
I have addressed the two faces of cosmopolitanism, which I
have referred to as the cosmopolitan outlook and the cosmopoli-
tan condition. By the cosmopolitan outlook I mean a way of see-
ing the world, a form of consciousness, an emerging paradigm of
sociological analysis. It is cosmopolitanism’s interpretive moment.
By the cosmopolitan condition I refer to an existing social reality,
a state of the world, a set of properties belonging to our age. It is
cosmopolitanism’s external moment. These two aspects of cosmo-
politanism are in fact expressions of a unitary phenomenon. On the
one hand, the development of cosmopolitan consciousness is itself
part of social reality, a vital element of the cosmopolitan condition,
and the cosmopolitan vision is itself an intellectual expression of the
development of the cosmopolitan condition. On the other hand, the
idea of the cosmopolitan condition is itself a mediated, and indeed
highly contested, characterisation of the social reality in question.
Cosmopolitan being and cosmopolitan consciousness are two sides
of the same experience and are reunited through political action.
I have distinguished between three aspects of the cosmopolitan
outlook – its theoretical moment (or way of engaging in concept
formation in various social scientific disciplines); its empirical
moment (or way of understanding the social phenomena of the
modern age); and its normative moment (or way of judging what
people do). I have argued that in all three respects – theoretical,
empirical and normative – cosmopolitanism is a form of radicalism
that challenges the status quo. It confronts the boundedness of the
methodological approaches of the social sciences not least through
its critique of ‘methodological nationalism’. It refuses to accept
the restricted understanding of our age in terms of essentialising
particularisms (e.g. Germanness, Britishness, Jewishness) but rather
explains national peculiarities through the general structural devel-
conclusion 135
opments of modernity and the inter-subjective relations in which

these particulars are inserted. It resists the reduction of either poli-
tics or science to a moral point of view that demonises the Other as
it idealises the Self.
I have argued that cosmopolitan categories of understanding and
standards of judgement pose a challenge both to the modernist iden-
tification of the universal with some socially selected particular (for
instance, the identification of the ‘universal class’ or the ‘universal
nation’ with the interests and values of humanity as a whole), and to
the postmodern identification of universalism as such with the sup-
pression of difference and exclusion of the Other. Cosmopolitan
social theory casts a critical eye on the modernist politics of ortho-
dox socialism and nationalism and on postmodernist ‘identity’ poli-
tics. It has the virtue today of facing up to the decline of the ‘old
left’, with its fixation on the politics of anti-imperialism regardless
of substantive content, and the decline of the ‘new left’ with its own
fixation on particular visible identities regardless of our common
human condition (Postone 2006).
I have not tried to formulate the cosmopolitan outlook in a neat
phrase. It does not, and certainly should not in my view, idealise the
age in which we live. Rather it interrogates the foundations of criti-
cal theory by breaking down the assumptions both of what has been
called a ‘homologising logic’ (Caverero 1992), in which differences
are erased and subsumed to a far from innocent uniform standard,
and of ethical conformity to visible identities. At the same time it
ties its own negativity to an ethical universalism (Oliver 1993: 1). It
takes off from the understanding that every individual is more than
what society gives them and that no one actually coincides with
what the sociologists call their social ‘identity’ (Gorz 1989: 176).
The ‘moreness’ to which I refer is our humanity and cosmopolitan-
ism occupies the space between our humanity as such and our ‘local’
identities.
I have drawn from Beck and the new cosmopolitanism the insight
that cosmopolitanism does not expect that in the era of global inter-
connections people will or should live ‘without local, immediate,
concrete or exclusive bonds’, as one critic has put it, or that ‘in a
borderless society of strangers . . . the distinction between local and
strangers, locals and cosmopolitans, friends and enemies, civilisa-
tion and barbarism, the West and the Rest is abolished’ (Ossewaarde
136 conclusion
2007: 384). However, to quote again the same critic, it does indeed
invite each human being to become ‘friends of humanity’. I have
argued that what it means to become a friend of humanity is itself
socially situated and very much depends on our local position.
I have argued that the concept of the ‘cosmopolitan condition’
refers to the development not only of certain forms of cosmopoli-
tan consciousness but also of certain laws, institutions and prac-
tices. There is a sense in which the cosmopolitan condition is ‘out
there’ in the world. We can try to understand what it is, and there is
indeed much disagreement over how it is to be understood, but we
cannot determine what it is. In this regard cosmopolitanism is not
just an abstract ideal, but an evolving set of social forms which, like
all social forms, is a potential object of confirmation or criticism,
reform or repudiation. It can neither simply be willed into being
nor willed away. Since the cosmopolitan condition is constructed
through the activities of humankind, it can be reconstructed and
deconstructed, is always unfolding, and may or may not accord with
our own sense of what is right.
I have maintained, following Habermas, that the cosmopolitan
condition is a complex social reality. It incorporates what I take to be
three separate moments or elements: first, the development of a vari-
ety of new practices, institutions and laws in the sphere of interstate
relations; second, the refraction of these new practices, institutions
and laws on all preceding fields of right and law (including those of
the nation-state, civil society, the family, morality, civil and politi-
cal rights and private property); and third, the recalibration of the
‘system of right’ as a whole in the light of these new developments.
I have viewed cosmopolitanism more like a modern cathedral than
an ancient temple, more like the fluid and adaptive organism of a
human brain than a simple relation between structure and function,
more like a set of flows between nodal points than a fixed state of
affairs. It is not identical to any particular institution (such as the
UN, a world parliament, international law, human rights, interna-
tional courts, global civil society), but to an open, conflictual and
dynamic system in which the relation between form and function is
always relative to its place within the system as a whole.
I have maintained that there is a sense in which the cosmopolitan
condition may be viewed as a necessary stage in the development of
the idea of right – necessary in the same sense that the development
conclusion 137
of money out of generalised commodity production is necessary,

or the development of capital out of generalised money relations is
necessary, or the development of civil society out of independent
private property and the development of the nation-state out of civil
society are necessary. I do not mean that history has to follow this
particular path of progression. There are many societies in which –
for various historical reasons – money, capital, civil society or the
nation-state failed to develop organically or were stopped from
developing by external forces. Looking backwards, however, we can
reconstruct the logic by which a movement (from value to money
to capital in the economic system and from right to civil society to
the state in the legal system) occurs in the absence of exogenous
inhibiting factors. From this perspective I have treated the advent
of cosmopolitanism not merely as a contingent happenstance but as
the product of the complex web of interrelations between discrete
societies. Thus it may be acknowledged that, while we do not live in
a cosmopolitan age, there is a sense in which we may be said to live
in an age of cosmopolitanism.
I have formulated the cosmopolitan condition as a stage of devel-
opment in the system of right. Drawn from Hegel, my conception of
a ‘system’ does not hold that the system of right is based on natural
presuppositions, or that it is without an environment beyond itself,
or that it is closed and non-conflictual, or that cosmopolitanism
represents its final synthesis. On the contrary, I have argued that
the cosmopolitan condition is to be conceived as a social system;
that it is in constant movement, torn asunder by conflicts, strains
and contradictions; that it can only exist in relation to its economic
environment; and that the emergence of cosmopolitan social forms
should be conceived as a kind of sublation which reproduces as well
as overcomes all prior conflicts. The integration of the cosmopoli-
tan condition should be seen as a problem whose solution is always
provisional, precarious and tentative (Chernilo 2007a). Movement,
metamorphosis, tension and crisis are its key characteristics. Among
the internal conflicts of cosmopolitanism I have addressed those
which arise between criteria of peace, human rights and global gov-
ernance; between its normative and analytical applications; between
the different levels of the cosmopolitan condition; between the uni-
versal and the particular, the global and the local.
I see two poles of misunderstanding the cosmopolitan
138 conclusion
condition. The positive pole of misunderstanding has an affin-

ity to natural law theory. In its idealised view of the cosmopolitan
condition, cosmopolitanism appears as the apex of modernity and
culmination of the idea of right as such. It is based on natural or
rational presuppositions and presented as the end of history. It ide-
alises the cosmopolitan condition either by singling out one of its
moments for special treatment (human rights, international law, the
UN, international criminal courts, etc.) or by harmonising the idea
of the whole (including the layers of post-national, transnational
and international citizenship). Cosmopolitanism appears here as the
moment of synthesis or reconciliation overcoming all previous divi-
sions and conflicts.
The negative pole is to say either that cosmopolitanism does not
exist – that what is called the cosmopolitan condition is the wrong
name for the sovereign exercise of state power aided by the denial of
sovereignty to weaker state powers – or that it does exist in the sense
that it marks a new stage in social evolution but that it presents itself
as a system of freedom when in actuality it is a system of imperial-
ism, domination and violence. These negative viewpoints, based on
the re-assertion in one case of the doctrine of the state and in the
other of the ontology of violence, are often fused in the critique of
cosmopolitanism as the continuation of old power politics and as
the expression of a new imperialism. I have declared my wariness of
the doctrine of ‘anti-cosmopolitanism’ not only because of its scur-
rilous history but also because of its sometimes current conceptual
shortcomings.
I have argued that these interpretative poles are more closely
interlocked than they appear at first sight, that idealisation and dis-
illusionment are two sides of the same medal. Thus the representa-
tion of international law as the answer to all the problems facing
political and social theory is closely tied to the disillusionment that
arises when international law fails to perform its allotted role. If it is
true that an idealised cosmopolitanism can treat the law as its deus
ex machina, it is equally the case that critics of cosmopolitanism can
base their scepticism towards human rights on the failure of human
rights to live up to an ideal which exists basically inside their own
heads.1 The law only appears as nothing from the perspective of one
who treats it as everything. The cosmopolitan call for an interna-
tional court of law, with international armies at its disposal, capable
conclusion 139
of making judgements based exclusively on the pursuit of justice,

may not be able to explain how they can avoid becoming either an
imperial court or a tool in the plans of a great power, but this, after
all, is the stuff of politics. Let us imagine a scenario in which the
leaders of the powers which have invaded Iraq and the leaders of
the ‘Resistance’ which have blown up fellow citizens as a strategy
of resistance have to face public judgement before an international
court of law. It may not solve anything but it opens up interesting
possibilities.
My own approach to cosmopolitan social theory may be illus-
trated through its conception of human rights. I have proposed
that human rights are a contradictory and relative social form.
Contradictory because of the gap between the universality of the
concept and its particular instantiation – between the freedom,
equality and solidarity the concept promises and the dependence,
class division and moral indifference its existence also contains.
Relative because human rights are a finite achievement in relation
to all other rights – be they the rights of property, rights of moral
conscience, rights of association in civil society or rights of political
participation in the nation-state – and they should not be turned
into a new kind of absolute. Social because human rights are a
historical achievement of the modern age (the concept of ‘human
rights’ arose during the Second World War), albeit a precarious and
ever threatened achievement, and neither an artefact of nature (as is
imagined by natural law theory) nor a mere construction of the state
(as is imagined in legal positivism). Finally human rights are a form
because all rights, human rights included, express the various forms
and shapes of subjectivity which prevail in contemporary capitalist
society.
I have maintained that rights should be understood as a social
form of the subject in the modern world. It expresses one aspect
of our complex relations to other subjects. If we consider moder-
nity as a system of rights, as Kant and Hegel sought to do, in which
individual right, morality, civil society and the state are key fields of
contestation and struggle, human rights are the product of a certain
stage of the historical development of international society – of
postnational federations, transnational civil society, global public
spheres, international law and human rights conventions. Human
rights share all the contradictions of the rights that precede them
140 conclusion
and mean nothing without the power of coercion to enforce them.

There is much conceptual slippage in the literature, as when crimes
against humanity are understood as a serious violation of human
rights rather than of international criminal law, or when human
rights are equated with the right to have rights in general rather
than with a specific subset of rights; but to remedy such slippages is
the task of a science of right.
I have attempted to distinguish between the critique of human
rights and the mere dismissal of the idea of right. A standard criti-
cism of the institution of human rights is that it contributes little to
the struggle against capitalist exploitation and political domination;
that its promotion by humanitarians turns it into a palliative that may
be useful for a limited protection of individuals but blunts political
resistance; and that it expands the imperial writ until it reaches the
end-state of empire. Such criticism warns against the depoliticis-
ing trap of human rights and draws a strict division between the
top-down employment of human rights as an instrument of control
and the bottom-up employment of human rights as a redemptive
and emancipatory instrument of resistance. It purports to defend
politics against ‘preachers of moralism, suffering humanity and
humanitarian philanthropy’ (Douzinas 2007: 293). Against such
airy polemics, I have argued that everything interesting occurs in
the in-between.2 In any event, it makes little sense to separate these
two moments as distinct modalities – one redemptive and the other
imperialistic – as if struggle and institutionalisation were not both
endemic in the idea of human rights itself.
I have defended the idea of humanity as a social accomplishment
of the modern age and expressed a wariness of critics who write
with scorn of ‘humanity’ and ‘humanitarianism’ as if these terms
are necessarily opposed to political action. While the politics of
human rights can of course downplay politics in favour of law, there
is nothing inherently depoliticising in the turn to law. I am wary of
constructing a sharp divide between ‘actually existing cosmopoli-
tanism’ and the ‘cosmopolitanism to come’. In this diremption all
ethics, spirit and hope are placed on the side of the ‘to come’ and all
law, naivety, domination and deception are placed on the side of the
‘actually existing’. The appeal of this diremption forgets that in both
cases we are speaking of cosmopolitanism; there must be some fam-
ily resemblance between them, or our use of the same term in both
conclusion 141
cases is merely rhetorical. The forced separation of the good and

bad sides of cosmopolitanism reminds me of a pre-critical meth-
odology – akin, perhaps, to that of Proudhon’s forced separation
of the good and bad sides of private property. The point, as I have
sought to demonstrate, is to explore the phenomenon itself, in its
actuality, not take what we like and call it our heritage and discard
the rest as the detritus of history.3
What is at stake in cosmopolitan social theory is our relation to
the natural law framework in which the concept of cosmopolitan-
ism was formed and from which it is now seeking to emancipate
itself. The history of cosmopolitanism has traversed various stages
of natural law theory: traditional natural law, modern natural law,
postnational natural law and now postmodern natural law. The
difficult task is not to dispose of the idealisations of natural law
theory but to retain its rational kernel while drawing cosmopolitan-
ism firmly into the terrain of history, politics and the social. This
is as much the terrain of wars between nation-states, the slaughter
of civilians, the break up of empires, the rise of imperialism and
nationalism, the emergence of totalitarian movements, global mar-
ket forces, ethnic nationalism, religious fundamentalism and bloody
forms of anti-imperialism as it is of the gentler virtues. It is on this
terrain that cosmopolitanism seeks to establish its own ethical and
critical space.
These are my thematics. There are of course many fruitful areas of
cosmopolitan thinking that I have not explored in this short book.
This book is offered as an invitation to enjoy what is being done
within this roughly defined research agenda and to participate in the
difficult and obstacle-strewn task of thinking, writing and research-
ing in a cosmopolitan way. That the coinage of cosmopolitanism
may from time to time be debased does not diminish its value.
Notes
1 Taking the ‘ism’ out of cosmopolitanism

1 The underlying logic has some resemblance, though surely not in accord
with Beck’s own wishes, to a dialectic in which the ‘thesis’ appears
as the traditional unity of morality and politics prior to the Treaty of
Westphalia, the ‘antithesis’ is the modern diremption of morality and
politics after the Treaty of Westphalia, and the ‘synthesis’ is the reuni-
fication of morality and politics under a cosmopolitan register. This
formulaic philosophy of history renders invisible the troubled history
of nation-states throughout the modern age and the equally troubled
history of social scientific attempts to understand and intervene in this
history.
2 Durkheim was not alone in seeing the Great War as a clash of civilisa-
tions and a contest of rival ‘national’ values and virtues. Exchanges of
fire on the battlefields took place alongside a war of ideas in which the
big intellectual and spiritual cannons blazed with accusations, denials
and counter-accusations. French intellectuals of all backgrounds and
persuasions were united in the belief that the war was between civi-
lisation and barbarism, a view confirmed by the catalogue of German
atrocities and oppressions on and off the battlefield, and that France
had a universal mission on behalf of humankind. Durkheim certainly
had an appropriate target in Treitschke who was openly antisemitic.
3 Beck criticises the sociological tradition for falsely universalising par-
ticular national experiences. He put the matter thus: ‘There is an inner
affinity between the national and universal perspectives. One’s own
society serves as the model for society in general, from which it follows
that the basic characteristics of universal society can be derived from
an analysis of this society’ (Beck 2006a: 28). This may be a recognisable
trait of sociology but so too is understanding other cultures and pay-
ing careful attention to their own truth claims and value judgements
(Taylor 1994).
4 Again there is a certain resemblance between the logic of Beck’s argu-
ment and a philosophy of history in which the ‘thesis’ is humanistic
universalism, the ‘antithesis’ is methodological nationalism and the
‘synthesis’ is cosmopolitanism.
5 The new cosmopolitanism has an equivocal relation to the two corner-
stones of the self-understanding of modern societies, nationalism and
socialism (Chernilo and Fine 2003). The core deficiency it sees in these
great intellectual and political movements of the modern age is that
they prioritise the particular interests and values of a nation or class
over the universal interests of humanity or identify these particular
interests and values with those of humanity as a whole. The shibboleth
notes 143
it seeks to overcome is the idea of a ‘universal’ class or nation whose

particular values and interests are identified with the general interests
of humanity as a whole. The new cosmopolitanism also parts com-
pany with the practice, if not idea, of internationalism, seeing in it an
ideology deployed by national elites to justify the universality of their
own particular interests. At one time, to be a good internationalist one
had only to support the Soviet Union through all its twists and turns
of its foreign policy (Fine 1990; Hobsbawm 1994; Rodinson 1972).
Against these competing forms of particularism and the spurious
universals they generate, the new cosmopolitanism presents itself as
a collective endeavour to reconstruct a genuine universalistic outlook
and overcome the narrow particularism and merely abstract universal-
ism constitutive of the modern political imagination. It wishes to build
a radically different vision: one which no longer looks to a particular
class or nation as the embodiment of universal values, still less to the
destruction of another class or nation as the condition of human eman-
cipation, but to the construction of a complex, differentiated, lawful
and institutionalised universalism different from all these spurious
forms of reconciliation.
6 The tension between liberalism and the megalomania of the state is
already immanent within Hobbes’s conception of the Leviathan. In
the state of nature people are driven by ‘fear of death’ and ‘desire for
security’ into ‘seeking peace’. Reason demands a renunciation of their
natural liberty and the erection of a ‘common power’, a ‘mortal God’,
to compel the performance of promises and obedience to laws. This
common power reduces the plurality of voices into one will, so that
everyone must ‘own and acknowledge himself to be the author of
whatsoever he that so beareth their person, shall act or cause to be
acted in those things which concern the common peace and safety’
(Hobbes 1996: 122). The sovereign ‘can do no injury to any of his sub-
jects nor ought he to be by any of them accused of injustice’ (Hobbes
1996: 124).
2 Confronting reputations
1 Kant’s key essays are: ‘Idea for a Universal History from a Cosmopolitan
Point of View’ (1785), ‘Reviews of Herder’s Ideas on the Philosophy of
the History of Mankind’ (1784–5); ‘On the common saying “This may
be true in theory but it does not apply in practice”’ (1793), ‘Toward
Perpetual Peace: A Philosophical Sketch’ (1795–6), ‘International
Right’ in The Metaphysics of Morals (1797); and ‘The contest of the
faculties’ (1798). They are collected in Kant 1991.
2 In The Rights of Others Seyla Benhabib elaborates thus the idea of cos-
mopolitan right: ‘A cosmopolitan theory of justice cannot be restricted
to schemes of just distribution on a global scale, but must also incor-
porate a vision of just membership. Such just membership entails:
recognizing the moral claim of refugees and asylees to first admittance;
144 notes
a regime of porous borders for immigrants; an injunction against

denationalization and the loss of citizens rights; and the vindication
of the right of every human being “to have rights”, that is, to be a legal
person, entitled to certain inalienable rights, regardless of the status of
their political membership’ (Benhabib 2004: 3).
3 The immediate occasion for Kant’s writing of Perpetual Peace was an
event that was hardly predisposed to the cosmopolitan idea: it was the
signing of the Treaty of Basel in which Prussia agreed to hand over to
France all territories west of the Rhine in exchange for being allowed
to join Russia and Austria in the east in partitioning Poland. This was
the sort of realpolitik treaty that Kant condemned as a mere ‘suspen-
sion of hostilities’ and as the opposite of true peace (Reiss 1991).
4 The first three articles of the 1789 Declaration of the Rights of Man and
Citizen illustrate the tension succinctly: ‘Article I. Men are born and
remain free and equal of right; social distinctions may be founded only
on the common usefulness. Article II. The aim of any political asso-
ciation is to preserve the natural and inalienable rights of man; these
are the rights liberty, property, security, and resistance to oppression.
Article III. The principle of all sovereignty lies essentially in the nation;
no group, no individual may have any authority that does not expressly
proceed from it.’ These articles articulate three key republican princi-
ples: rights belong equally to all individuals as such; the aim of the state
is to give political support for these rights; no one can claim rights that
the nation or people has not authorised. That the free and equal man
is the citizen is made explicit in Article VI of the Declaration: ‘The law
is the expression of the general will; all citizens have the right to work
towards its creation; it must be the same for all, whether it protects or
punishes.’
5 It was true that the scope of legitimate war was expanded to the point
where ‘there was hardly anyone against whom war could not be under-
taken’; that it was left to the judgement of individual states to decide
how far they could safely refrain from the forcible prosecution of
their rights; that the majority of nations sought only to strengthen
themselves at the expense of others and the good faith of nations was
always a subject of suspicion among other nations; and that there was
little prospect of ‘a human legislative power of universal character and
world-wide extent’ (Bull 1992, 1995; Tuck 2001).
6 Kant showed he was aware that existing interstate relations were
not exactly like a Hobbesian state of nature, when he acknowledged
that they already contained some idea of right. As Katrin Flikschuh
has argued, ‘the strict dichotomy between ‘natural condition’ and
‘civil condition’ disappears and is replaced by the distinction between
‘provisional Right’ and ‘preremptory Right’ (Flikschuh 2000: 176). At
the level of the individual state, Kant envisaged the transformation of
provisional into preremptory right as a process of reform in which the
obligation of individuals to enter into a civil condition under the legal
authority of the state is turned into a social and political reality. At the
notes 145
international level he envisaged an equally gradual transformation of

provisional into preremptory right that would eventually encompass
the whole Earth.
7 The relation of Kant to the tradition of natural law seems more like an
ongoing dialogue than a sudden rupture. Stephen Toulmin recounts
how central the Greek word ‘cosmopolis’ was to this natural law tradi-
tion. It had the connotation of bringing together the cosmos (order of
nature) and the polis (order of human society). It expressed an idea of
harmony in which the structure of nature would reinforce a rational
social order and human affairs would proceed in step with heavenly
affairs (Toulmin 1992: 67). For traditional natural law theory this
meant that what God is to nature, so too the king is to the state, the
husband to his wife and the father to his family (Toulmin 1992: 128).
Modern natural law tradition, culminating in Kant, was a movement to
rationalise the relation between natural and social order. Kant added
a further political dimension to the cosmopolis but his conception of
‘universal cosmopolitan existence’ as the highest purpose of nature was
in tune with the well-established principles of natural law theory. The
language Kant used conveys the enthusiasm of discovery. He refers
to the formation of a federation of peoples or nations as a ‘sublime
idea’ and one which brings the legal constitution of humankind near
to its ‘greatest possible perfection’. In line with the presuppositions of
natural law theory the institution of an external authority appears to
Kant as the dividing line between the state of nature and civil society at
the international level.
8 Hegel noted that in the wars of coalition waged by England against
France, ‘the entire people has pressed for war on several occasions and
has in a sense compelled the ministers to wage it . . . Only later when
emotions had cooled, did people realise that the war was useless and
unnecessary and that it had been entered into without calculating the
cost’ (Hegel 1991: §329A).
9 Discipline makes for highly effective fighting forces. Hegel comments,
for instance, that ‘In India, five hundred men defeated twenty thou-
sand who were not cowards, but who simply lacked the disposition to
act in close association with others’ (Hegel 1991: §327A).
10 Ironically the young Marx’s critique of Hegel’s Doctrine of the State
in the Philosophy of Right follows closely the lines of Hegel’s original
critique of Kant.
3 Cosmopolitanism and political community

1 This chapter draws in part on Fine (1994a) and Fine and Smith (2003).
I am grateful to William Smith for permission to use some of our joint
work.
2 The idea of ‘constitutional patriotism’ was originally developed by
Dolf Sternberger in the 1960s. He associated it with the tradition of
eighteenth-century republicanism, prior to the emergence of modern
146 notes
nationalism, and presented it in post-war West Germany as a func-

tional equivalent to conventional notions of national belonging. He
also sought to divest patriotism of its traditional connotations of self-
sacrifice for la patrie (Rosales 2001; Turner 2004: 297).
3 William Smith observes that the ambivalences of constitutionalism are
reflected in the work of Hannah Arendt. In On Revolution and her
essay on ‘Civil Disobedience’ she discusses the conservative character
of law and judicial institutions whilst at the same time celebrating the
US Constitution as a revisable mechanism that underpins the durabil-
ity and structure of the body politic. (Smith 2007c)
4 Chernilo argues that Habermas’s method, concepts and normative
standpoints have always been compatible with a broadly cosmopolitan
agenda. The fact that he now explicitly uses the term ‘cosmopolitan-
ism’ may be down to a number of reasons, but his overall theoretical
project has always been cosmopolitan-friendly (Chernilo 2008b).
4 Cosmopolitanism and international law

1 This chapter draws in part on Smith and Fine (2004). I am grateful to
William Smith for permission to use some of our joint work.
2 The distinction Habermas makes between traditional and post-tradi-
tional forms of civil society is central to the critique of civil society
romanticism. In its traditional form civil society refers to longstand-
ing communities (ethnic, religious, patriarchal, etc.) whose historical
depth may make them resistant to modern political and economic
forces but whose normative deficiency is indicated by their lack of
space for individual choice or critical reflection. Post-traditional civil
society is an arena of association in which emphasis is placed on choos-
ing those with whom we associate and choosing the terms on which
associations are formed. In place of a conventional orientation to fixed
rules, unreflective duty and respect for authority, this modern form
of civil society requires a mature self-consciousness through which
individuals learn to evaluate moral authority in terms of general ethical
maxims. Civil society is in this sense a ‘life-world’, a site of mutual
understanding and common convictions in which speaker and hearer
meet, reciprocally raise claims about the world, criticise or confirm
these validity claims, and try to settle their disagreements.
3 Habermas’s claim that ‘normative agreement concerning human
rights . . . is a matter of dispute between the West . . . and Asians and
Africans’ and must be the subject of international dialogue may be less
justified than it might appear (Habermas 1999b: 184–5). Although on
some issues some states express disagreements in terms of interpre-
tive declarations and reservations, there is a prevailing consensus over
human rights norms. What strikes the social theorist about human
rights law is how rich and diverse it is and how little sign there is
of dissensus over principles, even if there is some conflict over the
interpretation of principles – for example, in relation to current US
interpretations of torture.
notes 147
4 I am thinking in part of the UN’s interventions in Congo in the

1960s, Somalia, Cambodia, Rwanda and Bosnia in the 1990s, many
of which failed but nonetheless offer a sobering reminder of why we
need an international organisation. I am also thinking of the many
UN sub-groups – UNESCO, UNICEF, WHO, UNRWA, UNHCR,
UNCTAD, ICTY, ICC, etc. – which tend to do the ‘soft’ and routine
tasks of international regulation and assistance.
5 It reveals, for instance, the one-sidedness of the ‘American’ argument
that there is something deeply problematic about international law
simply because of its lack of democratic legitimacy; for this draws a
misleading parallel between constitutionalism at national and inter-
national levels. It also reveals the one-sidedness of the ‘European’
claim for the legitimacy of international law based exclusively on the
substantive ground of its protection of human rights and the fair out-
comes this generates.
6 Reference to the history of US commitment to an internationalist
strategy has an element of truth to it. We only have to think of the
impetus President Wilson gave to the formation of the League of
Nations and the Kellogg-Briand Pact (proscribing wars of aggression)
after the First World War and the establishment of the Nuremberg
Charter and Tribunal, the UN and the Universal Declaration of Human
Rights after the Second World War. Eleanor Roosevelt famously wrote
in 1948: ‘Taken as a whole, the Delegation of the United States believes
that this a good document – even a great document – and we propose
to give it our full support. [...] This Universal Declaration of Human
Rights may well become the international Magna Carta of all men
everywhere.’ Even Ronald Reagan was moved to say in 1989 that ‘For
people of good will around the world, that document is more than just
words: It’s a global testament of humanity, a standard by which any
humble person on Earth can stand in judgement of any government
on Earth’ (http://en.wikipedia.org/wiki/Universal_Declaration_of_
Human_Rights). Talcott Parsons, observing that the US involvement
in the Second World War was a break from the isolationism that had
often marked its history, pushed hard for more vigorous and interna-
tional law-abiding US involvement in the world scene.
7 Consider Hannah Arendt’s citation of Montesquieu’s insight in On
Revolution: ‘only power arrests power’.
5 Cosmopolitanism and humanitarian military intervention

1 This paper arises out of joint research with William Smith. I am
extremely grateful for his generous and wise collaboration. Our
research was funded by the ESRC New Securities Programme, directed
by Stuart Croft, and I am grateful to the ESRC for its support.
2 The virtue of Habermas’s approach lies in the concreteness of his
judgement and his own readiness to make a decision in the face of
148 notes
ambivalence. We may or may not agree with his judgements but he

does not shy away from making them. We may question, for example,
the legitimacy of the contrast he draws between Anglo-American uni-
lateralism and European multilateralism, but we know where he stands.
There is an interesting contrast in this respect between Habermas and
Derrida. In his dialogue with Habermas on Philosophy in Terror Derrida
also looks on the violence of the world through a cosmopolitan gaze.
He at once expresses support for the establishment of a UN army as an
effective intervening force and articulates his own equivocation over
this proposal:
I am not unaware of the utopic character of the horizon I’m

sketching out here, that of an international institution of law
and an international court of justice with their own autonomous
force . . . this unity of force and law is not only utopic but
aporetic . . . we would be reconstituting a new figure . . .
of universal sovereignty, of absolute law with an effective
autonomous force at its disposal.
(Habermas and Derrida 2003a: 114–15)
Ambivalence punctuates every dot and comma of Derrida’s text:
The Progress of cosmopolitanism, yes . . . But

cosmopolitanism . . . presupposes some form of state
sovereignty, something like a world state . . . The state is . . . at
once remedy and poison.
(Habermas and Derrida 2003a: 123–33)
I am less convinced than Derrida that we should pin our faith on the
building of a UN army or that we can simply declare our ambivalence
in general philosophical terms. Cosmopolitanism must be able to draw
upon the resource of political actors capable of making complex and
informed judgements on urgent questions of public deliberation. It has
to grapple with ambivalence.
We seem to be increasingly haunted by the spectre of terrorism:
images of 9/11 and 7/7, images of the beheading of hostages, images
of the suicide bombing of many innocent civilians by the ‘resistance’
in Iraq. On the surface, much of this terrorism appears to have lost all
rational connection with political instrumentality and appears distinct
from the traditional terrorism that has marked national movements in,
say, Algeria or Ireland, or even in Israel/Palestine. On the other side, it
may well be the case that under current American leadership much of
what is called the ‘war on terror’ works to ‘regenerate the causes of the
evil they claim to eradicate’ (Habermas and Derrida 2003a: 100). The
cosmopolitan outlook is a refusal to lose our sense of astonishment in
the face of either form of violence and an understanding that we are not
notes 149
defenceless. In seeking an alternative to the ill-defined ‘war on terror’,

it declares that international law must be respected and made effective.
In resisting terrorism, it reminds us that ‘those called “terrorists” are
not in this context “others” whom we as “Westerners” can no longer
understand. We must not forget that they were often recruited, trained,
and even armed, and for a long time, in various Western ways by a
Western world that itself . . . invented the word, the techniques and the
politics of “terrorism” ’ (Habermas and Derrida 2003a: 115).
Law and politics are the two sides of the cosmopolitan coin: they
bring together institution and outlook, judgement and understanding.
Were judgement split from understanding, law might revert to
demonisation of the perpetrators. Conversely, were understanding
split from judgement, politics might revert to mere justification of the
perpetrators. The function of international law is not to demonise those
who commit crimes but to hold them responsible for their actions and
thereby to humanise them. The function of political understanding is not
to justify the crimes such perpetrators commit – whether in the name of
other crimes committed by the West or of higher motives projected onto
the perpetrators themselves – but to confront the politics of subjectivity
that celebrates terrorism as the method of choice.
6 Cosmopolitanism and punishment

1 I am thinking of intellectuals such as Albert Camus, Raymond Aron,
Arthur Koestler and Hannah Arendt herself, and civil society group-
ings like the Bertrand Russell Tribunal. This tribunal was designed to
investigate and publicise war crimes by American forces and its allies
during the Vietnam War. It was constituted in November 1966 and
conducted two sessions in 1967. Representatives of eighteen coun-
tries participated in the tribunal, which called itself the International
War Crimes Tribunal. More than thirty individuals testified or
provided information, among whom were military personnel from
the United States and both sides in Vietnam (http://en.wikipedia.org/
wiki/Russell_Tribunal).
2 In the 1963 Auschwitz trials in Frankfurt the West German authorities
decided to use domestic rather than international law to handle the
prosecution of personnel from the extermination camp. The leading
prosecutor, Fritz Bauer, urged Germans ‘to understand their inner
responsibility and not take the easy way out’. The defendants were
accused of murder and to secure conviction the prosecution had to
prove not that they were merely carrying out orders but that they
were sadists who killed at whim and on their own individual initia-
tive. The resulting press coverage turned into what Wittman called a
‘pornography of the Holocaust’ and allowed ordinary Germans to
distance themselves from the crimes on display. Arendt points out in
her account of the trial that the defence was based on the little-man
theory that ‘the defendants had been forced to do what they did and
150 notes
were in no position to know that it was criminally wrong’ and that ‘the
selections of able-bodied people on the ramp had in effect been a res-
cue operation because otherwise “all those coming in would have been
exterminated”’ (Arendt 2003: 237). Arendt concluded that only when
Judge Hofmeyer pronounced the sentences did one realise how much
‘damage to justice’ was done by not taking into account the everyday
reality of Auschwitz.
3 We may hear in this reductive view of history an echo of Goebbels’
comment, ‘we will go down in history as the greatest statesmen of all
times or as their greatest criminals’, or as Eichmann’s lawyer put it,
‘you are decorated if you win and go to the gallows if you lose’.
4 Alain Finkielkraut argues ambiguously that the Holocaust was ‘from
Eichmann to the engineers on the trains . . . a crime of employees’
and that it was ‘precisely to remove from crime the excuse of service
and to restore the quality of killers to law-abiding citizens . . . that the
category of “crimes against humanity” was formulated’ (Finkielkraut
1992: 3–4). Zygmunt Bauman adopts a mechanistic view both of soci-
ology and of the actual workings of bureaucracy with less equivocation
(Bauman 1990). For a critique of Bauman’s approach to the question
of responsibility, see Fine and Hirsh (2000).
5 This theme is taken up by Primo Levi who, in The Periodic Table,
describes the SS as ‘ordinary men’ and in If This is a Man argues that
save for exceptions, they were not monsters but ‘average human beings’
who had been ‘reared badly’ and ‘subjected to a terrifying miseduca-
tion’ (Levi 1995).
6 In her essay on ‘Fascism and representation’, Gillian Rose used the
label ‘Holocaust piety’ to characterise this way of thinking: ‘It is this
reference to the “ineffable” that I would dub “Holocaust piety” . . .
The “ineffable” is invoked by a now widespread tradition of reflection
on the Holocaust: by Adorno, by Holocaust theology, Christian and
Jewish, more recently by Lyotard, and now by Habermas. According to
this view, “Auschwitz” or “the Holocaust” are emblems for the break-
down in divine and/or human history. The uniqueness of this break
delegitimises names and narratives as such, and hence all aesthetic or
apprehensive representation . . . the search for a decent response to
those brutally destroyed is conflated with the quite different response
called for in the face of the inhuman capacity for such destruction.
To argue for silence, prayer, the banishment equally of poetry and
knowledge, in short, the witness of “ineffability”, that is, non-repre-
sentability, is to mystify what we dare not understand, because we fear
that it may be all too understandable, all too continuous with what we
are – human, all too human’ (Rose 1996: 41–3).
7 The philosopher, Jean-François Lyotard, compared the Holocaust
with an earthquake so catastrophic as to ‘destroy not only lives, build-
ings, and objects but also the instruments used to measure earthquakes
directly and indirectly’ (Lyotard 1988: 56). In his thought experiment
he imagined a situation in which not only vast numbers are extermi-
notes 151
nated but the means to prove this happened are also destroyed and the
authority of the tribunal supposed to establish the crime is discred-
ited on the ground that the judge is ‘merely a criminal more fortunate
than the defendant in war’. There are parallels between the questions
Lyotard and Arendt pose but this should not be allowed to obscure
the opposing answers they give and the different sensibilities which
inform them.
7 Cosmopolitanism and the life of the mind

1 This chapter is based on an original paper written for Philosophy and
Social Criticism (2007). I wish to give special thanks to Alessandro
Ferrara for inviting me to contribute to this volume and for his encour-
agement and insight.
2 See ‘The Crisis in Culture: Its Social and its Political Significance’,
‘Truth and Politics’ and ‘Freedom and Politics’ in Arendt (1977b),
especially pp. 219–26.
3 Beiner and Nedelsky (2001: 165). Other key texts on Arendt’s approach
to judgement include: Beiner (1983: ch. 6), d’Entrèves (2000) Beiner
(1994) and Beiner in Arendt (1992).
4 An analogy might be drawn here with Marx scholarship. When Marx
scholars sought to reconstruct Marx’s planned but incomplete work
on law, morality and the state, a less than satisfactory approach was
simply to pull together the various passages in which Marx commented
on or expressed his opinions about these various issues. The more
fruitful and certainly more scientific approach was to reconstruct the
methodology that Marx employed in his critique of political economy
and apply it, flexibly and with due regard to the shift of subject matter,
to the absent critique of political philosophy. This approach has not
always been done well because the thinking of Marx scholars has too
often been locked within the categories of political economy, but as a
mode of reconstruction it is superior to the search for Marx’s scattered
and situated ‘views’ on these subjects. See my Political Investigations,
ch. 5, ‘Right and value: the unity of Hegel and Marx’.
5 The relation to Kant is ever present in Arendt’s work. Arendt writes of
Kant’s ‘paradoxical legacy . . . just as man comes of age and is declared
autonomous, he is utterly debased’. She comments that this legacy is
an accurate reflection of ‘the antinomical structure of human being as
it is situated in the world’. The splitting of the life of the mind into
the distinct ‘faculties’ of thinking, willing and judging turns out to
be one aspect of the antinomical structure of human beings as we are
currently situated in the world. Kant recognises and helps to create
one of modernity’s major accomplishments, the autonomy of reason,
but for Arendt he pays too big a price for it: the separation of reason
into allegedly autonomous fields. Essays in Understanding, pp. 169–71.
Cited in Kohn (1997: 163).
6 Ronald Beiner writes: ‘It is not merely that the already completed
152 notes
accounts of two mental faculties were to be supplemented by a yet-

to-be provided third but, rather, that those two accounts themselves
remain deficient without the promised synthesis in judging . . . So we
arrive at the threshold of Judging still in search of solutions to the
basic problems that impelled Arendt to write The Life of the Mind’
(‘Interpretive Essay’, in Arendt 1992: 89–90).
7 I find curious parallels between the structure of The Life of the Mind
and Arendt’s earlier work, On Revolution. In the latter, Arendt dis-
tinguished between three moments of the revolutionary tradition: the
American, the French, and the ‘lost treasure’ of town hall and council
democracy that has existed on the margins of every modern revolu-
tionary movement. At first sight, it appears that Arendt is positive
about the tradition of 1776, negative about the tradition of 1789 and
finds the realisation of the revolutionary idea in the lost treasure of
participatory democracy. On reflection, however, we find along with
Arendt that the American revolutionary tradition has its own disabling
contradictions (e.g. its prioritisation of private rights over rights of
public participation); that the French revolutionary tradition repre-
sents a huge achievement despite the terror (especially its formulation
of the ‘constitution of liberty’); and that the ‘lost treasure’ of radical
participatory democracy has far more problems than is apparent at first
sight. Arendt finishes the text on this note when she calls the council
system an ‘aristocratic’ form of government run by a self-constituting
elite (Arendt 1988: 279–80). As her study of revolution unfolds, it
becomes apparent that there is no ‘pure’ revolutionary tradition, no
ideal form of actualisation, no formula for liberation from tyranny
and the constitution of liberty that does not reinstate the perplexities
of foundation and new beginnings. The underlying structure of On
Revolution, then, is not ‘dialectical’, or rather is dialectical only in the
sense that it is a study of the development of the idea of revolution
as it dissolves and produces its various particularisations. The lesson
Arendt drew, or seems to have drawn, is not to repudiate the modern
revolutionary tradition but to retain our political judgement in the
midst of its perplexities. See Arendt 1988.
8 For Ernst Junger, this negation of all existing standards was transmuted
into the hope that the whole culture and texture of life might go down
in ‘storms of steel’. War appeared as the means of chastisement and
purification in a corrupt age (Thomas Mann); as the great equaliser in
class-ridden societies (Lenin); as the arena in which selflessness oblit-
erates bourgeois egoism (Bakunin); as the site of the doomed man with
no personal interest, no attachments, no property, not even a name of
his own (Nechaev).
9 There are many interesting parallels still to be drawn between Hegel’s
analysis of the ‘freedom of the void’ and Arendt’s analysis of the ‘abyss
of freedom’ (Fine 2001a: 36–9, 100–19).
10 Primo Levi wrote of his desire to understand the Germans but none-
theless refused to meet the German chemist at Auschwitz for fear that
notes 153
this encounter might prevent him from making ‘the correct judgment’.
In the Afterword of If This is a Man Levi declared his own equivoca-
tion thus: ‘Perhaps one cannot, what is more one must not, understand
what happened, because to understand is almost to justify . . . I can-
not say I understand the Germans’ (Levi 1995: 395–6). His fear was
that understanding the Germans might lead to loss of judgement even
though his purpose was to understand and judge at the same time.
11 Again there are interesting resemblances between Arendt’s notion of
understanding and that of Hegel. In the Preface to his Philosophy of
Right Hegel famously comments: ‘To comprehend what is, is the task
of philosophy, for what is, is reason . . . If his [an individual’s] theory
. . . builds a world as it ought to be, then it certainly has an existence,
but only within his opinions – a pliant medium in which the imagina-
tion can construct anything it pleases . . . this rational insight is the
reconciliation with actuality which philosophy grants to those who
have received the inner call to comprehend, to preserve their subjective
freedom in the realm of the substantial and at the same time to stand
with their subjective freedom . . . in what has being in and for itself ’
(Hegel 1991: 21–2).
12 Arendt’s characterisation of the social sciences is overblown to the
extent that an array of positions in the field has sought to face the ten-
sions between facts and norms. I would rather see Arendt as providing
a critique of positivist social science from within the parameters of
social science.
Conclusion
1 A similar methodological error is to be found in other fields of social
inquiry. For example, critical histories of the Labour party in the UK
may construct an ideal of socialism which the Labour party has never
fulfilled and represent its history as one betrayal after another of an
ideal which exists only in the head of the critic and his or her fellow
thinkers. This essentially idealist methodology displays no shortage
of judgement but it cannot possibly understand the dynamics of the
party.
2 For example, in my research on black workers in South Africa (Fine
1991), I explored how some workers struggled against all the odds for
basic human rights in the apartheid workplace and how the winning
of basic human rights brought with it new dilemmas caused by the
legalisation of trade unions, the establishment of industrial courts and
thence the ensconcing of labour rights in the constitution of the new
South Africa. The movement between struggles for human rights and
the institutionalisation of human rights is inherent in the phenomenon
itself. This movement runs in both directions and in the case of more
vulnerable workers institutionalisation may well precede the possibil-
ity of struggle.
3 For example, in his impassioned polemic against existing
154 notes
cosmopolitanism, Costas Douzinas establishes the ‘cosmopolitanism

to come’, based on ‘universal but absent principles beyond all law and
finitude’, as the position from which the law of the polis is judged and
found wanting. The axiom of cosmopolitan justice he puts forward is
that of justice to the other and respect for the singularity of the other.
His cosmopolitan principle is that each singular being is a cosmos
and that the other is a ‘unique finite being that puts me in touch with
infinite’ otherness (Douzinas 2007). Rather than explore the dialectic
between respect for the singularity of the other and respect for human
rights, the one is simply opposed to the other and given its separate
label.
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Zolo, Danilo (1997) Cosmopolis: prospects for world government, Polity, Cam-
bridge.
Zolo, Danilo (1999) ‘A Cosmopolitan Philosophy of International Law? A
Realist Approach’, Ratio Juris, 12, 4, 429–44.
Zolo, Danilo (2002) Invoking Humanity: war, law and global order, Continuum,
London.
Index
‘abyss of freedom’ 124, 152 national 62–3; post-traditional

Adorno, Theodor 29 146; traditional 146
ancient concept of civilians, violence against 98
cosmopolitanism 14–15, 16 Cohen, Jean 73–4, 76–7
anti-Semitism 21 cold war 101
Appiah, Kwame Anthony 15 collective self-determination 61
Arendt, Hannah 74, 146, 147, colonisation 25
149–50; account of Eichmann common sense 125–6
trial 101–3, 118; account of constitution 42, 45–6; Germany
Nuremberg Tribunal 97–101; 46; and international law 71;
and the ‘banality of evil’ 111–14; republican 23; United States
characterisation of social 146–7
sciences 129, 152; and strategies constitutional order 53
of denial 106–11; views on Kant constitutional patriotism 16, 71;
151; Essays in Understanding and cosmopolitanism 41–4,
128; Lectures on Kant’s Critique 56–8; and democracy 52–5;
of Judgment 115; The Life of equivocations of 39–58; and
the Mind 115–32, 151–3; On the European Union 48–52;
Revolution 122, 152–3; The Germany 46–7; and nationalism
Origins of Totalitarianism xiv–xv, 44–8; origin of concept 145–6
51, 120; Thinking and Moral constitutionalisation of
Considerations 118 international law 69–73; limits
Aristotle 125 of 73–7
Armenian massacre 98 cosmopolis 14, 134, 145
Aron, Raymond ix, 149 cosmopolitan, definitions 14
Auschwitz trials 149–50 cosmopolitan condition ix, xii,
xiii, 39–40, 56, 133–41; and
‘banality of evil’ 111–14 the constitutionalisation of
Barbie, Klaus 104 international law 71
Beck, Ulrich ix, 6–14, 16, 17–19, cosmopolitan democracy 60–3
142–3 cosmopolitan law 63, 64–5, 75–6;
belonging x and crimes against humanity
Berlin Wall 1 96–114
Bertrand Russell Tribunal 149 cosmopolitan nationalism 16
Bosnia 79, 91 cosmopolitan outlook 134–5
cosmopolitan patriotism 15
Camus, Albert 149 cosmopolitan right xii, 24, 143–4
capitalism ix cosmopolitan social theory ix–xvii,
Cavallar, Georg 43 4–5, 133–41
Cicero 15 cosmopolitan vision 17–19
civil society: global 62–3, 94; ‘cosmopolitanism to come’ 140, 154
172 index
crimes against humanity 83, 140; flaws in cosmopolitanism 21

concept of 97–8, 150; and foedus pacificum 82
personal responsibility 106–8; freedom and the will 122
prosecuting 96–114, 149–51; ‘freedom of the void’ 37–8, 124, 152
strategies of denial 104–11; trials French Revolution 152; aftermath
97–103 25–6; and French citizenship 28;
crimes against the Jewish people Hegel’s analysis of 37
102–3 Führerprinkip 107
crimes against peace 98
criticism of cosmopolitanism 19–21 general will 122–3
cult of the new 8 genocide 83
Germany: constitution 46;
Darfur 79, 90 constitutional patriotism 46–7;
Debating Cosmopolitics 79–80 understanding actions of 50–1
Declaration of the Rights of Man and global civil society 62–3, 94
Citizen 144 global movements xiii
deliberative democracy 54–5 Goebbels, Joseph 151
democracy: and constitutional Great War 13, 142
patriotism 52–5; cosmopolitan Grotius, Hugo 23, 30
60–3; deliberative 54–5; and
nation-states 53 Habermas, Jürgen 15–16, 29,
democratic rights 68 40–58, 146; on cosmopolitan
Derrida, Jacques, and J. Habermas, democracy 61; on humanitarian
Philosophy in Terror 148–9 military intervention 84, 88,
determinate judgement 125, 126–7 91–5; Philosophy in Terror 148–9
Diogenes 14 Hegel, Georg Wilhelm Friedrich
discipline, military 34, 145 ix; critique of Kant’s theory of
Douzinas, Costas 154 cosmopolitanism 29–38; and the
Durkheim, Emile ix, 12, 13, 15, 142 freedom of the void 37–8, 124,
152; Marx’s critique of Doctrine
Eichmann, Adolf 101–3, 104–5, 106, of the State 145; The Philosophy
108, 110, 112, 118 of Right 16–17, 29, 32, 35, 37, 145,
Eichmann trial 101–3, 118 153
Elias, Norbert, The Germans xiii–xiv Heidegger, Martin 97, 105, 121, 123
enlarged mentality 125, 126 history of cosmopolitanism ix
enlightenment 4; Kant’s views 19; Hobbes, Thomas 143
second 8 Holocaust 97; Eichmann trial 101–3,
European Union: and constitutional 118; Nuremberg Tribunal 97–101;
patriotism 48–52; and piety 150; and social sciences
democracy 53–5 129; uniqueness 111–14
hospitality, right of 24, 25, 29
faculties of the mind 115–18, 130–1 hostis generis humani 110
Falk, Richard 87 human rights xi, 138–40; and
fallacy of presentism 9 the constitutionalisation
Federation of Nations 24, 28, 29; of international law 70;
and war 34–5 differences in determination and
Final Solution see Holocaust interpretation 67–8, 146; and
index 173
the Law of Peoples 64–8; South Jaspers, Karl: and the Eichmann
Africa 153; Universal Declaration trial 101–3; and the Nuremberg
of Human Rights 147; violations Tribunal 97–101; and strategies
and humanitarian military of denial 106; The Question of
intervention 83 German Guilt 98
human status 110 judgement/judging
humanism 105 115–18; equivocations of
humanitarian military intervention 125–30; and thinking 118–21;
78–95; ambivalence towards and understanding 128, 129;
82–90, 148; authorisation 84–5; universality 126; and willing 131
and international law 93–5; juridical approach to
justification 83–4; military cosmopolitanism 59
conduct 85–6
Kant, Immanuel ix, xi, xii, xiii,
idealisation of cosmopolitanism 40 4, 57, 82, 134, 143, 144,
industrialism ix 153; Hegel’s critique of
international authority, Kant’s theory of cosmopolitanism
proposition 24 29–38; legacy of 36–8; theory
International Commission of cosmopolitanism 22–9;
on Intervention and State Critique of Judgment 125; Critique
Sovereignty 89–90 of Practical Reason 108; Idea
International Court of Justice 92 for a Universal History from a
International Criminal Court 62, 92 Cosmopolitan Point of View
international institutions: limited 25; Metaphysics of Justice 22;
functions 61; reform 60 Perpetual Peace 25–6, 144; What
international law 138–9; classical is Enlightenment? 19
75–6, 81; constitutionalisation Kellogg–Briand Pact 147
69–77; and humanitarian Koestler, Arthur 149
military intervention 93–5; Kosovo, NATO intervention 78, 84,
interpretation of principles 88, 91–2
43; Kant’s proposition 24; Kymlicka, Will 16, 53
Law of Peoples 63–9; and new
cosmopolitanism 2–3; and Labour party 153
political judgement 93–4; and Law of Peoples 63–9
power 73–5; and republicanism League of Nations 65, 147
23–4; and terrorism 149 Levi, Primo 121, 150, 152–3
international relations and new Lévi-Strauss, Claude 110
cosmopolitanism 3–4 Leviathan 24, 143
International War Crimes Tribunal Life of the Mind, The (Arendt)
149 115–32, 151–3
internationalism: liberal 43–4; and Lyotard, Jean-François 150–1
new cosmopolitanism 143
inter-societal conflict xiv Mann, Thomas 51
inter-societal relations xi, xii Marx, Karl ix, 12; critique of Hegel’s
intra-societal conflict xiii–xiv Doctrine of the State 145;
Iraq, US-led invasion 79, 92–3, 94 reconstruction of incomplete
ius gentium 30–1 works 151
174 index
Mertens, Thomas 44 29–33; Kant’s analysis 22–9,

methodological cosmopolitanism 145; Lockeian form 63; and
6, 7, 11 rationalisation of state power
methodological nationalism: Beck’s 35; traditional and modern 145;
critique 6–9; critique of Beck’s transition to cosmopolitan
critique 9–14, 142–3; and nation- social theory 22–38; and the
states 6–14, 142–3 Westphalian system 75
Michelman, Frank 42 new cosmopolitanism x–xi, xvi, 134;
military discipline 34, 145 basis of 1–2; criticism of 19–21;
military forces: cosmopolitan 85–6; equivocations of 1–21; and forms
in humanitarian interventions of political community 39–40;
88–9 Habermas’ work 40–58; roots of
Mill, John Stuart 15 1; within the social sciences 2–6
MNCs 70 new imperialism 80, 138
modern concept of NGOs 70
cosmopolitanism 15–16 Nietzsche, Friedrich 123; The Will to
modern state: ‘both–and’ quality Power 120–1
16–17; and cosmopolitanism nihilism: and reflective judgement
33–6 127; and thinking 119–21; and
modernity: affinity with war 121, 154; and the will 124–5
cosmopolitanism 26; non-governmental organisations 70
classification of 7 non-thinking 120
morality of good and evil 127–8, Nuremberg Charter 97–8, 99
129–30 Nuremberg Tribunal 97–101
multilateralism, regressive/ Nussbaum, Martha 14–15
progressive 8–9
multinational corporations 70 ‘only obeying orders’ defence 98,
104–5, 106–8
nation-states: and democracy 53; Ottawa Convention on Banning
and methodological nationalism Landmines 62
6–14, 142–3; role of new outlaw states 66–7
cosmopolitanism 6
National Security Strategy (USA) Paine, Tom 28
66–7 pariah people xvi
national self-determination xv patriotism: distinction from
nationalism: and constitutional constitutional patriotism 45;
patriotism 44–8; definitions enlightened 15–16; reconciliation
41; liberal 43–4; and new with cosmopolitanism 12, 15;
cosmopolitanism 142; of and war 33–4
oppressor and oppressed 47–8 patriotism éclairé 15
nationalist movements xv peace-keeping intervention 78–9
NATO intervention in Kosovo 78, perpetual peace 24–5, 26, 27, 33, 82;
84, 88, 91–2 Hegel’s views on 29, 30
natural law theory xi, 19, 134, 138, personal responsibility and crimes
139, 141; and cosmopolitanism against humanity 106–8
56–8; Hegel’s analysis phronesis 125
index 175
Plutarch 14–15 Rousseau, Jean-Jacques 122, 123

political community 39–58; Rwandan genocide 79, 84, 95
transnational 48–52
political judgement: and Schmitt, Carl 97, 104, 105
humanitarian military Scholem, Gershom 97, 111–12
intervention 90–3; and Security Council 87–8, 90, 92
international law 93–4 self-discipline and violence xiii–xiv
political philosophy and new self-sacrifice: and patriotism 146;
cosmopolitanism 4 and war 34
politics, modernist/postmodernist Seneca 15
135 Serbia 78
post-nationalism 20 Simmel, Georg 12
post-universalism and the modern social sciences and the morality of
state 14–17, 142–3 good and evil 129–30
presentism, fallacy of 9 social theory: Beck’s views on 6–9;
property rights 23 and new cosmopolitanism 4–5
public law and republicanism 23 socialism 153; and new
Pufendorf, Samuel 23, 30, 31 cosmopolitanism 142
punishment for crimes against society, concept of 5
humanity 96–114, 149–51 Socrates 119
South Africa, human rights 153
‘radical evil’ 112–14 sovereign equality 80
Rawls, John, The Law of Peoples sovereign states, Westphalian
63–9 model 3–4, 10–11, 75, 76
reflective judgement 116, 125–7, 131 sovereignty 75–6
Reformation 32–3 Sternberger, Dolf 145–6
republicanism: affinity with Suarez, Francisco 23
cosmopolitanism 26, 36; Kant’s
analysis of 22–4; and the rights terrorism 8–9, 149
of man 27–9; and violence within thinking 116–17; equivocations of
the state 37–8; and war 26, 33–5 118–21; and judgement 118–21;
resistance to humanitarian military and nihilism 119–21; and willing
intervention 95 130–1
responsibility to protect 89–90 Thirty Years War 32
revolution 25–6, 28, 37, 152 time-consciousness 6
right: cosmopolitan forms xii; totalitarianism xiii, xiv–xv, xvi;
development of idea of 136–7; mid-twentieth century 49; and
new forms xi; social forms personal responsibility 106–8;
xi–xii; system of 137; to rights and reflective judgement 125;
xv–xvi, 27, 144; transformation of and terrorism 9
provisional to peremptory 144–5; transnational civil society 62–3
universality of xv transnational political communities:
rights of man: Declaration of the constitutional patriotism 48–52;
Rights of Man and Citizen 144; and democracy 53–5
and republicanism 27–9 Treaty of Basel 144
rogue states 66–7 Treaty of Westphalia 3, 8, 11, 32–3,
142
176 index
Treitschke, Heinrich von 13, 142 violence: against civilians 98; and
Turner, Charles 51 republicanism 37–8; and self-
discipline xiii–xiv
understanding 128–9, 153
United Kingdom, invasion of Iraq war: enthusiasm of people for 33,
79, 92–3, 94 145; Kant’s views on 24–5, 26;
United Nations: army 77, 148; legitimate 30, 144; and nihilism
and the constitutionalisation 121, 152; and republicanism 26,
of international law 69; 33–5
interventions without war crimes 98
authorisation of 80, 88; ‘war on terror’ 149
membership 65–6; peace- Weber, Max xiii, xiv, 12; Science as a
keeping and humanitarian Vocation 12
military interventions 78–9, 90, Westphalian model 3–4, 10–11, 75,
148; reform 60; Security Council 76
87–8, 90, 92; sub-groups 147 Wheeler, Nicholas 87
United States: commitment will/willing 116–17; equivocations of
to internationalism 72, 147; 122–5; and freedom 122; general
constitution 146; invasion of Iraq will 122–3; and judging 131; and
79, 92–3, 94; National Security nihilism 124–5; and thinking
Strategy 66–7 130–1
universal civic society 24 Wolff, Christian 31
Universal Declaration of Human world citizens 4
Rights 147 world state 61; dangers of xiii,
universal responsibility 82, 99, xiv–xv; Kant’s views on 24
100–1 World Trade Center destruction 8–9
universalism x; humanistic World Trade Organization (WTO)
13–14, 142; modern/postmodern 60
identification 135 worldlessness 131–2
worldly cosmopolitanism 97, 111,
Vattel, Emmerich von 23, 31 113–14, 131
victors’ justice 96, 97, 106
Vietnam War 149 Zeno of Elea 14
Zimbabwe 79

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Cosmopolitanism

The idea of cosmopolitanism is increasingly in circulation both in

In this book Robert Fine explores the concept of cosmopolitanism,

Cosmopolitanism offers an innovative discussion of the social, legal

Robert Fine is Professor of Sociology at the University of Warwick,

Designed to compliment the successful Key Sociologists, this series covers

Class Sexuality – second edition

Communi Social Capital

Globalization - second edition The Virtual

Lifestyle Social Identity – second edition

Mass Media Culture – second edition

Moral Panics Human Rights

Old Age Childhood – second edition

Racism – second edition

Simultaneously published in the USA and Canada by Routledge 270

Printed and bound in Great Britain by MPG Books Ltd, Bodmin

All rights reserved. No part of this book may be reprinted or

British Library Cataloguing in Publication Data

Library of Congress Cataloging in Publication Data

ISBN 0-203-08728-3 Master e-book ISBN

ISBN10: 0–415–39224–1 (hbk)

ISBN13: 978–0–415–39224–2 (hbk)

1 Taking the ‘ism’ out of cosmopolitanism: laying out the field 1

2 Cosmopolitanism and natural law: Kant and Hegel 22

3 Cosmopolitanism and political community: the

4 Cosmopolitanism and international law: from the ‘law of

5 Cosmopolitanism and humanitarian military intervention:

6 Cosmopolitanism and punishment: prosecuting crimes

7 Cosmopolitanism and the life of the mind: the critique of

Conclusion: the elements of a cosmopolitan social theory 133

1 The idea of cosmopolitanism existed long before that of

2 Cosmopolitan social theory is a collective endeavour to build a

There is a sense in which the new cosmopolitanism is not new

rights of the nation-state and its constituent elements – the

new avenues of mobility and not least new ways of thinking

the means of violence on the part of the state. He argues that

Anti-Semitism, imperialism and totalitarianism have

She argued that world government provides no solution for it

It is quite conceivable . . . that one fine day a highly

Arendt seeks to demonstrate that ‘Universality’ in the modern

If in a mixed area one group makes good a territorial claim and

Many of those who lived together, albeit unequally, in the old

they did not belong to the nation-state. Many were displaced

difficult phenomenon that taxes the resources of social theory.

The physical dismantling of the Berlin Wall in 1989 offers a com-

number of shared commitments. These include: (a) the overcom-

The new cosmopolitanism within the

legal bodies above the level of nation-states to perform this function.

rationalisation of a political order based on a lack of moral and legal

‘society’ itself, from the presuppositions of the nation-state. It is

of democracy in political theory, theories of society in sociology,

Ulrich Beck and the critique of

‘zombie categories’ and looks to the emancipation of social theory

positively misleading to assume that concepts of power drawn from

democracy and hospitality to the security of the Western citadel. A

The critique of the critique of

mirrors the ‘methodological nationalism’ he criticises. He argues

nationalism has in fact been a fairly constant feature of social theory,

In the case of Marx, we find not only a normative commitment

I do not suggest that these critiques of methodological national-

Universalism obliges us to respect others as equals in principle,

Beck argues that the humanistic universalism of Enlightenment

to be upheld at all costs and ‘universal procedural norms’ to regulate

1 Taking the ‘ism’ out of cosmopolitanism: laying out the field 1

2 Cosmopolitanism and natural law: Kant and Hegel 22

Conclusion: the elements of a cosmopolitan social theory 133

It is quite conceivable . . . that one fine day a highly

Each state is . . . a sovereign and independent entity in relation

Patriotism . . . is merely a consequence of the institutions within

supreme self-sufficiency . . . and total obedience and renuncia-