a1 Yale University
The status of international law and transnational legal agreements with respect to the sovereignty claims of liberal democracies has become a highly contentious theoretical and political issue. Although recent European discussions focus on global constitutionalism, there is increasing reticence on the part of many that prospects of a world constitution are neither desirable nor salutary. This article more closely considers criticisms of these legal transformations by distinguishing the nationalist from democratic sovereigntiste positions, and both, from diagnoses that see the universalization of human rights norms either as the Trojan horse of a global empire or as neocolonialist intentions to assert imperial control over the world. These critics ignore “the jurisgenerativity of law.” Although democratic sovereigntistes are wrong in minimizing how human rights norms improve democratic self-rule; global constitutionalists are also wrong in minimizing the extent to which cosmopolitan norms require local contextualization, interpretation, and vernacularization by self-governing peoples.
I am particularly grateful to Hauke Brunkhorst, Richard Beadsworth, Ed Baker, Rainer Forst, Stefan Gosepath, Jürgen Habermas, Frank Michelman, Regina Kreide, James Sleeper, and William Scheuerman for observations and comments on earlier drafts of this article and to Kirstie McClure for editorial guidance. I also thank the Wissenschaftskolleg zu Berlin for a research fellowship from January to July 2009, during which I was able to complete this article.
For Jürgen Habermas on His Eightieth Birthday