The co-evolution of cosmopolitan and national statehood – Preliminary theoretical considerations on the historical evolution of constitutionalism

Abstract

The article claims that we should not just look towards a utopian future in fulfilling a claim about realization of a cosmopolitan, non-national world order. Already during antiquity the idea of a transcendent universal order took on a differentiated form at the same time as there happened to be institutionalization. Since the legal revolution of the long 12th century, this duality has been constitutional and has had a hierarchical structure. However, not only was the invention legal, it was also organizational; hence, the modern political, legal and organizational powers emerged long before the more celebrated state-building processes of the 16th and 17th centuries. The point is that the order was both political and cosmopolitan, institutional and universal. The nation-state was an exception compared with this long and widespread legacy of cosmopolitan power. But the universality of subjective rights was re-institutionalized according to principles that excluded inequalities. This was set in motion even before the UN Charter, not just with the ideas of 1789 but also institutionalized in Roosevelt’s New Deal together with the social and political rights that were institutionalized specifically as a consequence of the World Wars and the political claims that followed.