On Cold Calling and Cosmopolitan Constitutionalism

This morning I had the distinct displeasure of being woken up by a phone call coming in on my Finnish cell phone, around 6 a.m. The caller turned out to be a Helsinki-based energy company, which started to promise me all sorts of cheap energy until I pointed out that I was currently residing in New York, that it was 6 a.m., and that I was not too happy at being called at such an indecent hour. Cold calling: one of the many, many delights of global capitalism, and typically always done at the most unwelcome moments. This must have been the 5th or 6th time a call came in at night since I moved (temporarily) to New York a few months ago, and a particularly memorable earlier occasion involved a crowded classroom in Geneva, a high-strung over-enthusiastic salesperson speaking all-too-rapid Finnish, and a highly bewildered me.

Unable to get back to sleep, I picked up the book on my table (the fine volume on constitutionalism edited by Jeff Dunoff and Joel Trachtman, ‘Ruling the World? Constitutionalism, International Law, and Global Governance’), and started to read Matthias Kumm’s lengthy contribution to that volume: ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State.’ About two hours later – I did say it was a lengthy piece – I was in a good mood, almost good enough to return the energy company’s call and thank them for waking me up so early, because Kumm’s piece is truly excellent: one of the best, and most useful, pieces I have read in a while.

Kumm’s main proposition is that all the talk of global constitutionalism actually is sensible, even in the absence of a written global constitution or constitution-like institutions. Instead of suggesting that global constitutionalists got it all wrong, he adopts the reverse stand: the domestic constitutionalist paradigm is mistaken, because it unduly restricts constitutionalism to the state. Cosmopolitan constitutionalism, as he calls it, is not only normatively desirable (this is a proposition quite a few international lawyers would intuitively accept), it is also descriptively superior. It is, in Kumm’s rendition, able to describe more accurately what is going on, e.g. when domestic courts find inspiration in international law or even apply it without much further ado but also, intriguingly, when they refuse to do so: Kumm actually makes the ECJ’s decision in Kadi look sensible and attractive to an international lawyer. While I’m not sure I would accept his analysis in all its detail, Kumm is to be congratulated on having written an excellent piece, making a thought-provoking yet plausible argument and doing so in a nicely combative style.

Still, one nagging question remains: can cosmopolitan constitutionalism protect me against cold calling at 6 a.m when I happen to be abroad? I realize, 6 a.m. in New York is 1 p.m. is Helsinki, but even so: why should I require protection to begin with? Why not insist that cold calling can only take place with the consumer’s explicit permission? Put in more general terms: cosmopolitan constitutionalism may help keep public power in check, but maybe that is effectively only a rearguard battle. What is sobering about all the writings about global constitutionalism these days (and my own are no exception) is the realization that very little attention is being paid to the role of private power. Maybe that is because we collectively think that constitutionalism somehow has to do with keeping public power in check and has nothing to do with private power, but perhaps this too is a proposition that would warrant further scrutiny. And maybe, just maybe a constitutionalist frame of mind should also be applied when it comes to organizing the global economy: the utility of cosmopolitan constitutionalism might be limited if a Thatcherite global economy is left untouched. In addition to seeing Mr Kadi’s right to property protected, perhaps the protection of other kinds of economy-related rights would make sure that we could all get a decent night’s sleep.