|The Dangers and Demands of Cosmopolitan Law|
|Jessica Stern, Monday, 09 April 2007 [View as PDF]|
In a recent essay in this Journal, Noah Feldman describes his conception of a “cosmopolitan law” and offers several theories of how such law could be applied. These theories explain when a liberal state may—and should—apply its law to the acts of foreigners in foreign lands. In this Response, I draw on my own experience conducting ethnographic interviews in the Netherlands to address what I see as the greatest obstacle to Feldman’s theories in practice: to succeed, cosmopolitan law would require wise leaders to interpret it and skillful diplomats to apply it. Without extraordinary wisdom and tact in its execution, I fear Feldman’s conception of cosmopolitan law may do the world more harm than good.
Central to Feldman’s conceptions of cosmopolitan law is the idea of a duty to obey certain laws, arising from a common conception of what is just. Laws need not be imposed from the top down, he argues, but may begin with one person or entity, expanding into universal norms through the practice of compliance and recognition of their inherent justice. While persuasive in theory, this approach has troubling practical ramifications. What happens when competing norms emerge from different communities? Is it up to the international community to arbitrate between competing conceptions of just law? Is it up to the state if these conceptions clash within its borders, as seems to be happening in the Netherlands? Can there be a natural duty to obey a “just law” if, as Feldman suggests, natural law arguments are no longer generally persuasive?
I am a specialist on terrorism, not legal theory. So my response to Feldman reflects my own limited and rather specialized experience and expertise. Since the murder of Theo van Gogh in Amsterdam in fall 2005, I have repeatedly visited the Netherlands to speak with young Muslim migrants. These conversations have been illustrative of both the painfully fractured identity of these youth and their desire for a sense of community that leads them to turn to extremist groups. My experience suggests that they will not readily embrace a cosmopolitanism that they perceive to be biased toward Western cultural preferences. Religious terrorists and their supporters often feel they have direct access to God—presumably an excellent source of “just” law—and the “just” laws they aim to promote are often intolerant of women and adherents of other faiths.
Many of the Dutch-Moroccans I talked to described the pain they feel as a result of their confused identities. They described the prejudice they face, referring to themselves as the “new Jews” of Europe. Many of these youth do not speak Arabic or Berber—their parents’ languages—but only Dutch and English. Their understanding of Morocco is based on their parents’ or grandparents’ memories of a Morocco that no longer exists. When they go to Morocco on summer vacations, Moroccans see them as Dutch. But when they are at home in Holland, they are often viewed as Moroccan, not Dutch.
Ironically, these youth are, in a sense, “rooted” cosmopolitans, to borrow a phrase from Kwame Anthony Appiah. They perceive ethical obligations to a community that competes and sometimes takes precedence over their moral obligations to the rest of humanity, but their roots in that community often dangle in virtual space. For example, the Hofstad group in the Netherlands designed what a police-intelligence officer described as a “Do-it-Yourself” version of Islam, in part based on what the group learned about Takfir ideology on the Internet, and in part based on the “teachings” of a self-taught Syrian imam, a former drug dealer. Similarly, Mohamed Bouyeri, the murderer of Theo van Gogh and a kind of ideological leader of the Hofstad group, was a kind of Internet Stoic. He purified himself through contemplation and he cultivated alienation. Many of the young men I have interviewed identify more with a community they meet on the Internet than with the physical community where they live. To compete with these more community-specific conceptions of self, cosmopolitanism will have to offer a more inclusive, less Westernized worldview than the one it is currently perceived to embody.
Feldman’s theories of cosmopolitan law require that we accept that there are moral universals that supersede culturally defined ethical norms. This perspective requires that we allow—and perhaps require—some cosmopolitan enforcers to impose these “moral universals” on peoples that are perceived to have fallen off the moral or legal grid. Even the most cosmopolitan Moroccan migrants I met in Holland would probably bridle at the suggestion that a foreign, Christian state could enforce its laws in the Muslim world. A Dutch Moroccan boy, whom I interviewed in 2005, complained,
By imposing one collective’s interpretation of natural duties and fundamental norms on other collectives, cosmopolitan law might be perceived as condescending, humiliating, or even threatening. Although Feldman’s proposal appears to restrict itself to norms already codified by international law—for example, norms against genocide, or against the extralegal confinement and torture invoked by the Dutch Moroccan boy—such norms may be difficult to implement in practice because these terms must be interpreted and applied by concrete actors who possess conflicting cultural and political interests.
I believe that Feldman is correct in asserting that there are moral universals related to the preservation of human life and dignity that should, in principle, allow us to conceive and develop a cosmopolitan ethic that goes beyond what is banned under the existing international legal regime. But there are profound difficulties with implementing such a plan.
Our cosmopolitan enforcers would need great self-awareness to ensure that their own ethical norms—not to mention impulses toward political expedience—do not contaminate their moral judgment when interpreting the content of minimal cosmopolitan law. For example, while people of all ethnicities around the world appear to agree that torture should be prohibited in the abstract, this principle’s implementation would become highly controversial if governments began accepting the arguments of some Western human rights and feminist activists that the traditional cultural practice of genital cutting—which is practiced by members of some African Islamic immigrant communities in the Netherlands—falls under international legal definitions of torture or cruel, inhuman, or degrading treatment. Although the views of these activists have not yet prevailed on the international stage, they have significant political support because Westerners are horrified by “genital mutilation,” even when adult women choose to undergo it. But its actual negative impact on women’s health and sexual responsiveness is uncertain. And it is not entirely clear that women in the West who undergo cosmetic surgery in the belief that they are making themselves more attractive to men are any less manipulated by their perceptions of male views of feminine beauty than the young African women who choose to undergo genital cutting because they believe that women are more attractive when “smooth.” Yet if cosmopolitan law gave effect to the views of Western activists, it would potentially result in an international regime that rewarded practitioners of cosmetic surgery with hundreds or millions of dollars a year, while punishing practitioners of genital cutting as “hostis humani generis, an enemy of all mankind.”
The enforcers of cosmopolitan law would also need the foresight to ensure that the beneficial effects of their moral interventions exceed any possible negative long-term consequences. To take an extreme example of the cosmopolitan principle’s implementation, one of the principal aims of the disastrous invasion of Iraq was to remove a vicious, genocidal tyrant from power and make him account for his crimes. Even if the principle of universal jurisdiction would not be typically deployed to justify military invasion, its exercise will always involve a country or institution intervening in some way in a foreign context and will raise a host of potential unintended consequences, which will principally be borne by people outside of the nations enforcing the universal norm. Cosmopolitan enforcers who fail to act with great tact and foresight will never be viewed as legitimate, not even by the most cosmopolitan members of the groups they hope to help.
Feldman is right that there are some crimes that ought to be punishable by anyone, with little regard for national, cultural, or familial sovereignty. But his theories of cosmopolitan law would be, in practice, not only radical, as he concedes, but also potentially dangerous—even for those whose rights we aim to protect.
Jessica Stern is Academic Director of the Program on Terrorism and the Law at Harvard Law School and Lecturer in Government at Harvard University, where she teaches courses on terrorism and counterterrorism. She is the author of Terror in the Name of God: Why Religious Militants Kill (2003) and The Ultimate Terrorists (1999). She served on President Clinton’s National Security Council Staff during 1994–1995.
Preferred Citation: Jessica Stern, The Dangers and Demands of Cosmopolitan Law, 116 Yale L.J. Pocket Part 322 (2007), http://yalelawjournal.org/2007/04/09/stern.html.