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60651
olitical TheoryBenhabib
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Political Theory
40(6) 688713
2012 SAGE Publications
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DOI: 10.1177/0090591712460651
http://ptx.sagepub.com
Seyla Benhabib1
Abstract
Carl Schmitts critique of liberalism has gained increasing influence in the last
few decades. This article focuses on Schmitts analysis of international law in
The Nomos of the Earth, in order to uncover the reasons for his appeal as a
critic not only of liberalism but of American hegemonic aspirations as well.
Schmitt saw the international legal order that developed after World War I,
and particularly the criminalization of aggressive war, as a smokescreen to
hide U.S. aspirations to world dominance. By focusing on Schmitts critique of
Kants concept of the unjust enemy, the article shows the limits of Schmitts
views and concludes that Schmitt, as well as left critics of U.S. hegemony,
misconstrue the relation between international law and democratic sovereignty as a model of topdown domination. As conflictual as the relationship
between international norms and democratic sovereignty can be at times,
this needs to be interpreted as one of mediation and not domination.
Keywords
international law, non-discriminating concept of war, the unjust enemy,
cosmopolitanism, sovereigntism, Immanuel Kant, Carl Schmitt
Corresponding Author:
Seyla Benhabib, Department of Political Science,Yale University, 115 Prospect St., Rosenkranz
Hall, Room 225, New Haven, CT 06520-8
Email: seyla.benhabib@yale.edu
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Abu Ghraib, Guantanamo and much else. While Raschs judgment that Schmitt
could be named one of the Heines of the moment, is certainly an instance of
perverse irony (Rasch, 1683), nevertheless, he was correct in sniffing the
odor of the times, which would come to identify cosmopolitanism with
global imperialism and, in particular, with the project of U.S. world hegemony.
Carl Schmitt has since then, and even earlier, become the indispensable reference point for all those who want to unveil the hypocrisies, inadequacies, and
maybe even bankruptcy, of liberal democratic politics, at home and abroad.7
My goal in this article is to go to the root of Carl Schmitts critique of
liberal international law as being a ruse to hide hegemonic aspirations by
considering his neglected discussion of Kants concept of just war in The
Nomos of the Earth in the International Law of Jus Publicum Europaeum.8
Contrary to what Rasch asserts, we will see that Schmitt is no innocent
defender of multiculturalism resisting the Western hegemon. He is an authoritarian state theorist who wishes war to remain the sole prerogative of sovereign nation-states and who fights against international law restrictions on
aggressive war by denouncing the League of Nations, the KelloggBriand
pact and Woodrow Wilson for criminalizing war.
After examining the multiple layers at which Schmitts argument in his
Nomos of the Earth proceeds (II and III), I focus on a close reading of his
critique of Kants concept of the unjust enemy (hostis injustus) in the
Metaphysical Elements of Justice (1799). Schmitt is not wrong in claiming
that Kants discussion presents a profound moral argument to limit the jus in
bello (right in war) but that it also contains certain slippages and ambiguities
that may justify humanitarian interventions such as to enable the building of
a liberal international order (IV). My approach is both criticalinterpretive
and reconstructive, in that I wish to engage Schmitts reading of Kant to draw
out broader issues pertaining to international law and sovereignty.
In conclusion (V), I turn to contemporary discussions of these issues,
also raging in the U.S. Supreme Court, and argue that Schmitt, as well as
left critics of U.S. hegemony, misconstrue the relation between international law and democratic sovereignty as if this were a model of topdown
domination. As conflictual as the relationship between international norms
and democratic sovereignty can be, it needs to be interpreted as one of
mediations and not one of domination.
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integrity and a unified jurisdictional authority are two sides of the same coin;
protecting territorial integrity is the obverse side of the power of the state to
assert its jurisdictional authority.
The modern absolutist states of western Europe were governed by the Jus
Publicum Europaeum as their international law. However, this model was
unstable from its inception, or in Stephen Krasners famous phrase, sovereignty is hypocrisy.14 The discovery of the Americas in the fifteenth century,
the imperialist ventures into India and China, the struggle for domination
over the Indian Ocean and the nineteenth-century colonization of Africa
destroyed this form of state sovereignty and international law by chipping
away at its peripheries.15 Not only the Wests confrontation with other continents, but the question whether the non-Christian Ottoman Empire belonged
to the Jus Publicum Europaeum, showed the limitations of this order.
Though Schmitt himself is not far from idealizing this Westphalian moment
in the evolution of the law of the earth, his own account documents its
inherent limits and eventual dissolution. The deterritorialization of modern
states goes hand in hand with their transformation from early bourgeois
republics into European empires, be they those of England, France, Spain,
Portugal, Belgium, the Netherlands, or Italy.16
Accompanying these developments have been attempts to formulate a new
law of nations to succeed the Jus Publicum Europaeum. Foremost among
these were the failed League of Nations efforts to devise a new legal spatial
order between 1919 and 1939 (Nomos, 225; 25758). For Schmitt, the decisive problem in this periodeven more than that of the coloniesis the relationship of the United States to the League. As he puts it quite bitingly,
Once the priority of the Monroe doctrinethe traditional principle of
Western Hemisphere isolation, with its wide-ranging interpretations
was asserted in Geneva, the League abandoned any serious attempt to
solve the most important problem, namely the relation between Europe
and the Western Hemisphere. Of course, the practical interpretation of the
ambiguous Monroe Doctrineits application in concrete cases, its determination of war and peace, its consequences for the question of interallied debts and problem of reparationswas left solely to the United
States. . . . Whereas the Monroe doctrine forbade any League influence in
American affairs, the Leagues role in European affairs . . . was codetermined by these American member states. (Nomos, 224; 25455)
In a turn of phrase that could have flown from Jacques Derridas pen,
Schmitt concludes: The United States was, thus, formally and decisively not
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present in Geneva. But they were, as in all other matters, and hardly ineffectively and very intensely present as well. There thus resulted an odd combination of official absence and effective presence, which defined the relationship
of America to the Geneva Convention and to Europe (Nomos, 22425, my
emphasis; I used my own translation here since the English version has been
somewhat abbreviated).
Schmitts diagnosis of American exceptionalismits absent presence
with respect to the League of Nations, and to international organizations
and international law in general, is quite accurate, and in the period between
the Gulf War of 1993 and the Iraq War of 2003 has found fresh and receptive audiences. It is this ambivalent relationship of American understandings of sovereignty to a new law of nations that is at the source of the
contemporary concerns of Supreme Court Justices, vis--vis international
law.17 Indeed, the United States remains an absent presence, even today,
from the International Criminal Court.
While I find Schmitts commentary on the historical, geo-political, and
legal gyrations and inconsistencies of the United States as a world power
unobjectionable, we must also be clear that Schmitt critiques American
behavior not to offer a new law of nations but rather to undermine it altogether by showing it to be based on hypocrisies. American hegemony may be
economically and militarily irresistible but it is by no means juridically justified in his eyes.
Schmitts personal interest in this matterand this is the third level mentioned aboveis to destroy the legitimacy of the emergent world order
between 1919 and 1939, and in particular the criminalization of war through
the doctrine that wars of aggression are legal crimes. With this argument,
Schmitt is not only trying to save the honor of Kaiser Wilhelm II who was
rendered a war criminal by the Allies as a result of the Versailles Treaty of
1919, but he is also trying to save his own honor, since he would refuse to
cooperate with the investigation of the Denazification Commission and would
have his own right to teach (venia legendi) revoked by the Allies after World
War II.18 If the legal order that emerged in this period under the influence of
the League of Nations and the criminalization of aggressive war was based
upon juridical, moral, and geo-political hypocrisies and contradictions, then
how could the Nremberg legal order that resulted from the Third Reichs
defeat be anything but a continuation of this bankrupt order? It is in this context that Schmitts attacks against the discriminating concept of war, and his
plea to restore the non-discriminating concept of war need to be evaluated,
although the preoccupation with these themes derive from his deeply seated
theoretical concerns and do not reflect motives of self-justification alone.
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then by whom, and who will concretely decide? asks Schmitt. All this
remains open. . . . . And sounds like the old doctrine of just war . . . (Nomos,
141; 169).
As a jurist, Schmitt is right to be concerned with the distinction between
word and deed and to question whether words alone would suffice to make
one an unjust enemy. Is ideological propaganda by a state that supposedly
contradicts the established international order sufficient to declare it an
unjust enemy, for example? Think here of contemporary Iran. Is not Kants
principle dangerously expansive and vague in that it seems to eliminate distinctions between wars of words and wars of deeds?
There is a more direct way of introducing some content to Kants definition and this would involve reading this principle in the light of Kants earlier
work on Perpetual Peace of 1795. An unjust enemy could be interpreted as
one who would reject the three definitive, as opposed to provisional, principles of Perpetual Peace. These are: The Civil Constitution of Every State
should be Republican; The Law of Nations shall be founded on a Federation
of Free States; and The Law of World Citizenship Shall be Limited to
Conditions of Universal Hospitality (Kant [1795] 1923, 43446; 1994,
99108).25 Any state that refuses to enter into a lawful condition with other
states, by explicitly refusing to acknowledge these principles, remains in a
state of nature, that is, a state of hostility. That there is textual evidence
for my reading is provided by two further arguments of Kants.
First, since the freedom of all nations would be threatened by those who
deny these principles, other nations can wage war against them but cannot
make them disappear from the earth since this would be injustice against its
people, which cannot lose its original right to unite itself into a commonwealth, though it can be made to adopt a new constitution that by its nature
will be unfavorable to the inclination for war (MEJ, 60, 119). A people
can be made to adopt a new constitution; in other words, regime change to
make the unjust enemy respect the principles of perpetual peace is permissible. Schmitt is not wrong then in seeing in Kants text the beginnings of a
vision of a liberal world order within which the range of regimes that would
be considered legitimate is narrowed to those that would respect the laws of
nations, defined through the principles of perpetual peace. But this answer
raises further difficulties: Are only republics to be tolerated in the new world
order then? How about empires such as the Chinese, for which Kant has some
kind words in other texts? Or non-sedentary and nomadic peoples who may
not want to be subjugated by European powers and whom Kant praises in
other writings? How extensive and intensive are the principles of perpetual
peace? Questions remain.26
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Varieties of Sovereigntism
One of the most important developments in international law in the post
World War II period is, in addition to the criminalization of wars of aggression, the normative limitations placed on state sovereignty through the
spread of human rights norms. I will refer to the many treaties that have been
concluded since the Universal Declaration of Human Rights of 1948 as cosmopolitan human rights treaties.34 These treaties confirm the status of
humans as rights-bearing beings not in virtue of their national citizenship but
in virtue of their human personality, although such rights can be meaningfully exercised only in the context of specific polities. It is quite correct to
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as well as by opening new channels of mobilization for civil society actors who
then become part of transnational networks of rights activism and hegemonic
resistance.44 Human rights norms require interpretation and vernacularization;
they cannot just be imposed by legal elites and judges upon recalcitrant peoples;
rather, they must become elements in the public culture of democratic peoples
through their own processes of interpretation, articulation and iteration.
Such contextualization, in addition to being subject to various legal traditions in different countries, attains democratic legitimacy insofar as it is carried out through the interaction of legal and political institutions within free
public spaces in civil society. When such rights principles are appropriated by
people as their own, they lose their parochialism as well as the suspicion of
western paternalism often associated with them. I call such processes of
appropriation democratic iterations.45
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Conclusion
We have entered a new stage in the development of global civil society in
which the relationship between state sovereignty and various human rights
regimes generate dangers of increasing interventionism but also paradoxically create spaces for cascading forms of democratic iteration across borders. It is the perplexities of this new legal and political landscape that send
many critics on the left and the right to Carl Schmitts work. Yet Schmitts
work, as historically rich and conceptually challenging as it may be, is not
easily extricated from its ideological moorings in his own political entanglements with the Nazi regime. Nor was Schmitt wrong to see in Kants doctrine
of the unjust enemy certain ambiguities and obscurities that may lead to a
coercive regime of liberal cosmopolitanism. Yet the evolution of human
rights norms in the postWorld War II period ushers in a new phase of international law, which cannot be interpreted as a coercive regime of neo-liberal
hegemonic intentions. Critics who do so fail to understand the structure of
mediations between international law and democratic sovereignty that are
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Funding
A Guggenheim Fellowship and a stay at New York University Law Schools Straus
Institute for the Advanced Study of Law and Justice in spring 2012 made its completion possible.
Notes
1. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty,
trans. with an Introduction by George Schwab (Chicago: University of Chicago
Press, 1985), based on the revised edition of 1934 (PT hereafter).
2. Carl Schmitt, The Concept of the Political, trans. and with an introduction by
George Schwab, expanded edition with Leo Strausss Notes on Schmitts Essay
(Chicago: University of Chicago Press, 1996); hereafter referred to as TCP; Carl
Schmitt, Crisis of Parliamentary Democracy, trans. and with an introduction by
Ellen Kennedy (Cambridge, MA: MIT Press, 1988); referred to as TCPD.
3. Otto Kirchheimer, Remarks on Carl Schmitts Legality and Legitimacy, in
The Rule of Law under Siege: Selected Essays of Franz L. Neumann and Otto
Kirchheimer, ed. William Scheuerman (Berkeley: University of California Press,
1996), 6498. On the influence of Carl Schmitt on Walter Benjamin who wanted
to dedicate his doctoral dissertation on German baroque drama to Schmitt,
see Richard Wolin, Between Proust and Zohar: Walter Benjamins Arcades
Project, in The Frankfurt School Revisited and other Essays on Politics and
707
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708
9.
10.
11.
12.
13.
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14. Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999).
15. For a masterful account, which is also a sustained critique of Schmitt, see
Koskenniemi, The Gentle Civilizer of Nations, 98179.
16. For further explorations of this theme, see S. Benhabib, Twilight of Sovereignty
or the Emergence of Cosmopolitan Norms: Rethinking Citizenship in Volatile
Times, Citizenship Studies 11, no. 1 (February 2007): 1936; now in Seyla Benhabib, Dignity in Adversity: Human Rights in Troubled Times (Cambridge, UK:
Polity, 2011), 94117.
17. This strange affinity between the theory and practice of American exceptionalism
and Schmitts political thought is well explored by Paul Kahn in Political Theology: Four New Chapters on the Concept of Sovereignty (New York: Columbia
University Press, 2011). But Kahns methodology obscures Schmitts politics and
takes the bite out of some of his most outrageous theses. See below, footnote 30.
18. See W. Scheuerman, Carl Schmitt and the Nazis, German Politics and Society
23 (summer 1991): 7179; and W. Scheuerman, Carl Schmitt: The End of Law
(Lanham: Rowman & Littlefield, 1999); R. Mehring, Carl Schmitt: Aufstieg und
Fall (Munich: C.H. Beck, 2009).
19. For inconsistencies in Schmitts own usage, see Der Begriff des Politischen, Text
von 1932 mit einem Vorwort und drei Corollarien, 7th ed. (Berlin: Duncker &
Humblot, [1932] 2002); TCP, 2627; 28; 33; 36.
20. Karl Lwith, The Occasional Decisionism of Carl Schmitt, in Martin Heidegger and European Nihilism, ed. Richard Wolin, trans. Gary Steiner (New
York: Columbia University Press, 1995), 151.
21. Cf. Uday Mehta, Liberalism and Empire: A Study in Nineteenth-Century British
Liberal Thought (Chicago: University of Chicago Press, 1999); Sankhar Muhtu,
Enlightenment against Empire (Princeton: Princeton University Press, 2003);
Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton: Princeton University Press, 2010); Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge, MA:
Harvard University Press, 2002); Richard Tuck, The Rights of War and Peace:
Political Thought and the International Order from Grotius to Kant (Oxford:
Oxford University Press, 1999); James Tully, A Discourse on Property: John
Locke and His Adversaries (Cambridge, UK: Cambridge University Press, 1983),
and James Tully, Public Philosophy in a New Key, Vol. 2, Imperialism and Civic
Freedom (Cambridge, UK: Cambridge University Press, 2008); Anthony Pagden, ed., The Languages of Political Theory in Early-Modern Europe: Ideas in
Context (Cambridge, UK: Cambridge University Press, 1987); A. Pagden, Lords
of All the World: Ideologies of Empire in Spain, Britain and France c.1500
c.1800 (New Haven, CT: Yale University Press, 1998).
710
22. Immanuel Kant, Die Metaphysik der Sitten in zwei Teilen, In Immanuel Kants
Werke, ed. A. Buchenau, E. Cassirer, and B. Kellermann (Berlin: Verlag Bruno
Cassirer, [1797] 1922); English translation, The Metaphysics of Morals, trans.
and edit. Mary Gregor, Cambridge Texts in the History of Political Thought
(Cambridge, UK: Cambridge University Press, 1996). This edition is referred to
in the text as Kant, MEJ, followed by paragraph and then page number.
23. That Kant is surprisingly close to Hobbes in some of his formulations regarding
the state of nature has been emphasized by Richard Tuck in The Rights of War
and Peace. Political Thought and the International Order from Grotius to Kant
(New York: Oxford University Press, 2001), 2079.
24. Cf. Hauke Brunkhorsts discussion of Kant and Schmitt, The Right to War:
Hegemonial Geopolitics or Civic Constitutionalism, Constellations 11, no. 4
(2004): 51225; cf. also Wolfram Malte Fuss, The Foe: The Radical Evil, Political Theology in Immanuel Kant and Carl Schmitt, Philosophical Forum (2010):
181204.
25. I have consulted several English translations of Kants Perpetual Peace essay,
amending the text when necessary. See Immanuel Kant, Zum Ewigen Frieden.
Ein philosophischer Entwurf, in Immanuel Kants Werke, ed. A. Buchenau,
E. Cassirer, and B. Kellermann (Berlin: Verlag Bruno Cassirer, [1795] 1923);
English translation: H. B. Nisbet, trans., Perpetual Peace: A Philosophical
Sketch, in Kant: Political Writings, ed. Hans Reiss, Cambridge Texts in the
History of Political Thought, 2nd and enlarged ed. (Cambridge, UK: Cambridge
University Press, 1994). The first date and page number refer to the German text
and the second to the English editions.
26. Here Kants doctrine of relations among states leads to his theory of cosmopolitan right, which Kant made the Third Definitive Article of Perpetual Peace:
Cosmopolitan Right shall be limited to Conditions of Universal Hospitality
(Kant 1795 [1923], 443; 1994, 105). There is considerable debate as to how
expansively we should interpret Kants cosmopolitanism: did Kant expect the
whole world eventually to converge around the principles of a republican
constitution? How was this to be distinguished from a world state which he
sharply criticized as a form of soulless despotism etc.? Tuck is among those
who tend towards e a minimalist understanding of Kants doctrine of cosmopolitan right. Cf. Tuck, The Rights of War and Peace, 220ff. Cf. S. Benhabib, Introduction: Cosmopolitanism without Illusions, in Dignity in Adversity: Human
Rights in Troubled Times, 120.
27. Cf. the collection, Perpetual Peace: Essays on Kants Cosmopolitan Ideal, ed.
James Bohman and Matthias Lutz-Bachmann (Cambridge, MA: MIT Press, 1997).
28. For an illuminating and detailed account that also surveys some of the reasons
for the revival of interest in this aspect of Kants thought, see Martin Frank,
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Benhabib
Kant und der ungerechte Feind, Deutsche Zeitschrift fr Philosophie 59, no. 2
(2011): 199219.
29. Carl Schmitt, Glossarium: Aufzeichnungen der Jahre 1947-1951 (Berlin:
Duncker & Humblot, 1991). The first quote is from 113, dated March 12, 1948;
the second from 265, dated August 21, 1949; and the last is from 282, dated
December 6, 1949.
30. Interpretations of Schmitt have given rise to a battle of readings in contemporary thought. Paul Kahn writes of his approach: My approach, then, is to engage
Schmitts texts in an effort to uncover the phenomenon of the political. This work
is neither an exegesis of his text, nor an intellectual history. I assume no familiarity with Schmitts text and none with his historical situation (Kahn, Political
Theology, 29). I disagree. This kind nave reading, without prejudice, can lead
to distortions and does not help us understand Schmitts fighting words and contradicts Schmitts own methodology of concept formation. Schmitt writes: Words
like state, republic, society, class, and also: sovereignty, constitutional state, absolutism, dictatorship, planning, neutral or total state, etc., are unintelligible if one
does not know who in concreto is supposed to be encountered, fought, negated,
and refuted with such words . . ., TCP, 30ff. Cf. also Lwith, The Occasional
Decisionism of Carl Schmitt, 28081, fn. 76. Chantal Mouffes rather decontextualized treatment of Carl Schmitt has had the purpose of excising some of the
most troubling dimensions of his thought, and presenting him as a theorist of agonistic politics. Cf. Chantal Mouffe, ed., The Challenge of Carl Schmitt (London:
Verso, 1999); C. Mouffe, Carl Schmitt and the Paradox of Liberal Democracy,
Canadian Journal of Law and Jurisprudence 10, no. 1 (1997): 2133.
31. Jrgen Habermas, Kants Idea of Perpetual Peace: At Two Hundred Years
Historical Remove, in The Inclusion of the Other: Studies in Political Theory,
trans. Ciaran Cronin and Pablo de Greiff (Cambridge, MA: MIT Press, 2001),
165203; here 188. Referred to in the text as Habermas, KIPP, followed by page
numbers. For a reading of the HabermasSchmitt connection that reveals some
affinities, see Reinhard Mehring, Der Nomos nach 1945 bei Carl Schmitt
and Jrgen Habermas, http://www.forhistiur.de/zitat/0603mehring.tm (March
31, 2006).
32. Perry Anderson, Arms and Rights: Rawls, Habermas and Bobbio in an Age of
War, New Left Review 31 (JanuaryFebruary 2005): 540.
33. This is a theme that is prevalent in much of Hannah Arendts work; cf. The Origins of Totalitarianism (New York: Harcourt, Brace and Jovanovich, 1979); first
published as The Burden of Our Time (London: Secker & Warburg, 1951). On
judgment, propaganda and understanding, see Understanding and Politics (The
Difficulties of Understanding), in Arendt. Essays in Understanding 1930-1945,
ed. Jerome Kohn (New York: Harcourt, Brace and Co., 1994), 30728, here 313.
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(Cambridge, UK: Cambridge University Press, 1999); Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge, UK:
Cambridge University Press, 2009).
45. By democratic iterations, I mean complex processes of public argument, deliberation and exchange through which universalist rights claims are contested and
contextualized, invoked and revoked, posited and positioned throughout legal
and political institutions as well as in the associations of civil society. For a more
recent statement which addresses several critical objections, see Seyla Benhabib,
Democratic Exclusions and Democratic Iterations: Rethinking The Rights of
Others, in Dignity in Adversity, ch. 8, 13866.
46. See Beth Simmons, Civil Rights in International Law: Compliance with Aspects
of the International Bill of Rights, Indiana Journal of Global Legal Studies
16, no. 2 (Summer 2009): 43781, here 443. Abbreviated in the text as Simmons,
followed by page number.
47. Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and
Rights Adjudication in Europe, Global Constitutionalism 1, no. 1 (2012): 5390.