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

Alec Stone Sweet · Clare Ryan

May 2018 · Oxford University Press

About this ebook

In this book, Alec Stone Sweet and Clare Ryan provide 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 constitutional justice within and beyond the nation state. Part II applies these ideas 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. Such an order was instantiated in Europe through the combined effects of Protocol no. 11 (1998) to the European Court of Human Rights (ECtHR) and the incorporation of the Convention into national law. The authors then describe and assess the strengthening of the European Court's capacities to meet the challenge of chronic failures of protection at the domestic level; its progressive approach to the "qualified" rights covering privacy and family life, and the freedoms of expression, conscience, and religion; the robust enforcement of the "absolute" rights, including the prohibition of torture and inhuman treatment; and its determined efforts to render justice to all people that come under its jurisdiction, including non-citizens whose rights are violated beyond Europe. Today, the Strasbourg Court is the most active and important rights-protecting court in the world, its jurisprudence a catalyst for the construction of a cosmopolitan constitution in Europe and beyond.

About the author

Alec Stone Sweet, Saw Swee Hock Centennial Professor of Law, National University of Singapore, and Clare Ryan, Assistant Professor of Law, Louisiana State University Paul M. Hebert Law Center 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 an Assistant Professor of Law at the Louisiana State University Paul M. Hebert Law Center. 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. András Sajó of Hungary.