A Cosmopolitan Legal Order Kant, Constitutional Justice, and the European Convention on Human Rights

by Stone Sweet, Alec; Ryan, Clare

• ISBN13: 9780198825340
• ISBN10: 019882534X
• Format: Hardcover
• Copyright: 2018-07-17
• Publisher: Oxford University Press

Summary

This book provides an accessible introduction to Kantian constitutional theory and the law and politics of European rights protection. Part I sets out Kant's blueprint for achieving Perpetual Peace, and to the elaboration of a Kantian-congruent model of constitutional justice, both within and beyond the nation state. Part II applies this theoretical framework to explain the gradual constitutionalization of a cosmopolitan legal order: a transnational legal system in which justiciable rights are held by individuals; where public officials bear the obligation to fulfil the fundamental rights of all who come within the scope of their jurisdiction; and where domestic and transnational judges supervise how officials act. The book argues that this order has emerged in Europe thanks to the combined effects of Protocol no. 11 (1998) of the European Convention on Human Rights and the incorporation of the Convention into national law.

The book covers the strengthening of the Court's capacities to meet the challenge of chronic failures of protection at the domestic level; its progressive approach to "qualified" rights, including privacy and family life, freedoms of speech, assembly, the press, conscience, and religion; the robust enforcement of "absolute" rights, including the prohibition of torture and inhuman treatment; and the Court's aim to render justice to all people that come under its jurisdiction, even non-citizens who live - and whose rights are violated - beyond Europe. It explains how the European Court of Human Rights has become one of the most active and important advocates for human rights in the world, while helping to construct a nascent cosmopolitan constitution in Europe.

Author Biography

Alec Stone Sweet, Saw Swee Hock Centennial Professor of Law, National University of Singapore, Clare Ryan, Ph.D. Candidate, Yale Law School

Alec Stone Sweet is Saw Swee Hock Centennial Professor of Law, National University of Singapore, and Senior Research Fellow, the Yale Law School. He is the author of The Birth of Judicial Politics in France, Governing with Judges: Constitutional Politics in Europe, On Law, Politics, and Judicialization, The Judicial Construction of Europe, The Evolution of International Arbitration: Judicialization, Governance, Legitimacy, and the co-editor of European Integration and Supranational Governance, The Institutionalization of Europe, and A Europe of Rights: The Impact of the European Convention on Human Rights on National Legal Systems, all published by Oxford University Press.

Clare Ryan is a Ph.D. in Law candidate at Yale. Her research interests include family law, comparative law, and European legal institutions. She was a Visiting Assistant Professor of Political Science at Macalester College and clerked for the Hon. M. Margaret McKeown of the Ninth Circuit and served as a Robina Human Rights Fellow at the European Court of Human Rights in Strasbourg, France, where she clerked for the Hon. Andras Sajo of Hungary.

Table of Contents

Introduction and Overview
Part I: Kantian Imperatives
1. Perpetual Peace and the Cosmopolitan Constitution
2. A Kantian System of Constitutional Justice
3. Transnational Justice and Constitutional Pluralism
Part II: The European Convention on Human Rights
4. Beyond Individual Justice
5. Beyond Rights Minimalism
6. Beyond Borders
Conclusions