CWR > Volume 4(1); 2018 > Current Developments
Research Paper
Published online: March 1, 2018
DOI: http://dx.doi.org/10.14330/cwr.2018.4.1.04
Pluralism or Cosmopolitanism? Reflections on Petersmann's International Economic Law Constitutionalism in the Context of China
Tao Li & Zuoli Jiang
Shandong University Law School
No. 5, Hongjialou, Jinan, Shandong Province 250100 P.R. China.
Corresponding Author: lawyerlitao@126.com
ⓒ Copyright YIJUN Institute of International Law. This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.
Abstract
Petersmann has developed a constitutionalization theory for IEL based on Western constitutionalism theory in conjunction with human rights law. However, there is a paradox in his theory considering that he stresses 'legal pluralism' on the one hand, while calling for a cosmopolitan conception of IEL on the other hand. The hypothesis of this paper is that there are no 'universalizable' principles and common constitutional principles that can guarantee the compatibility between the two. Petersmann's three often-used keywords, 'human rights,' "principles of justice," and "judicial protection of individual rights," are clarified in the context of Chinese thought and China's progressive integration into the world economy. This paper finds that Petersmann's theory focuses on bottom-up individual struggles, whereas Chinese thought is characterized by top-down overall consideration. The value divergence between the goodness of human nature in Chinese thought and the evil of human nature in Western thought makes 'legal pluralism' an insurmountable obstacle to a cosmopolitan conception of IEL.
Keywords : Human Rights, Principles of Justice, Judicial Protection of Individual Rights, IEL, Multilevel Constitutionalism, Legal Pluralism
