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Buffalo Law Review

Document Type

Article

Abstract

From its earliest introduction in 1795, the notion of cosmopolitan law has made a long way, to finally become an established reference point in the legal discourse. Nonetheless, the concept still raises four fundamental questions. The first focuses on how it has been developed and which were the fundamental authors and theoretical steps that characterized the emergence of this notion. The second and most essential question refers to the meaning of cosmopolitan law by focusing on what characterizes the legal norms that we call cosmopolitan as well as on what distinguishes them from the broader field of traditional international law. The third question, then, concentrates on the challenges that cosmopolitan law faces with reference to its legitimacy. Indeed, since it binds on states beyond their explicit consent, legitimacy based on unanimity, which is the usual legitimation source that supports legal obligations in international law, is not available for cosmopolitan law. For that reason, its legitimation must resort to strategies which are similar to those applied to constitutional law, where the citizens’ support of the rules is implicitly assumed. However, some constitutional law strategies cannot be used for cosmopolitan law as a matter of principle, and all others are difficult to implement. The consequence is that the legitimacy of cosmopolitan law is inevitably weak—which does not mean, on the other hand, that it should be regarded as utterly illegitimate or that no reasonable solution can be envisaged. The fourth question, finally, addresses the feasibility of cosmopolitan law in times in which the idea of the existence of universal values seems to be in mortal danger.

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