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Alexander Somek's The Cosmopolitan Constitution
Thinking Normatively Without Moralizing? Constitutional Theory — Somek's Style
Published online by Cambridge University Press: 06 March 2019
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The Cosmopolitan Constitution is an intriguing and puzzling book. In particular, the book has the uncanny ability to render fresh what is for the constitutional theorist familiar territory such as the debate on judicial supremacy and the counter-majoritarian difficulty, the expansion of the proportionality principle, etc. In fact, one of the most interesting aspects of its overarching argument is that given our present conditions—such as those of the cosmopolitan constitution or constitutionalism 3.0—we should be increasingly plagued by self-doubt, at least to the extent that we are to remain committed to the tenets that once animated our constitutional traditions. This implies that the partial sense of disorientation with which one is left after reading the book is deliberately provoked precisely because of the main insights it has to offer.
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- Copyright © 2018 by German Law Journal GbR
References
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17 One might take issue with Somek's selection of exemplars, wondering how representative they are. The constitutional tradition of the United States, with its more than two centuries old constitution and with the oldest practice of constitutional adjudication, seems to be entirely exceptional. Similarly, the way in which the German Basic Law and constitutional practice took shape after the war may have something to do with, for example, Somek's contention that the dwindling of the constituent power is characteristic of the second phase of the constitutionalist project. Seen from the perspective of most nations, which have joined the constitutionalist project in a great majority cases as a part of a process of independence or decolonization and which have remained in the receiving end of an unbalanced world order, the European constitutional experience must result a distant reality. If The Cosmopolitan Constitution were an exercise in comparative constitutional law rather than constitutional theory such suspicions would be more damaging. Given its philosophical interest in tracing the development of key constitutional ideas, it makes sense to examine selectively those paradigmatic cases that have reached a high degree of articulation and are taken by others as blueprints for understanding and reforming their own constitutional practices. Under such conditions it becomes rather difficult to come up with better cases than those chosen by Somek.Google Scholar
18 While accepting the Eurocentrism that infuses the book, Somek remarks that it “addresses—concededly, at a high level of abstraction—a regional phenomenon without downplaying its genuinely universal ambition. Any group of states that chooses to commit itself to the selfsame ideas does not have to have a European cultural background. The final stage of constitutionalism could be taken anywhere in this world.” Somek, supra note 13, at 928.Google Scholar
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38 Id. at 24 (“[S]tates that jointly abstain from controlling markets expose themselves fully to their force.”).Google Scholar
39 E.g., Patterson, supra note 11.Google Scholar
40 Somek, supra note 2, at 200–12 (2014).Google Scholar
41 Id. at 237–82.Google Scholar
42 Colin Crouch, Post-Democracy (2004).Google Scholar
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