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- Kategorie: Geisteswissenschaft
- Sprache: Englisch
The international order of the post-WW II period is in disarray. The sounds of war can be heard all around us, from Ukraine to Gaza, from Darfur to the Congo, and there is growing skepticism towards human rights and democracy, the rule of law and peace among peoples.
Facile expressions such as “Eurocentrism” and “demise of the West and the rise of the rest” miss the real challenge in this situation: how to extend moral, legal and political universalism to address the experiences of the multitude of humanity for whom western modernity has brought not only equality but also subordination, not only emancipation but also domination. Benhabib argues that rethinking this universalist project and participating in world-building together can be achieved by reconstructing and retrieving the best insights of critical social theory in the Frankfurt tradition and the liberal Kantianism of Rawls and Dworkin. In that spirit, this volume addresses state and popular sovereignty, Third World approaches to International Law, the 1951 Refugee Convention, and climate change legislation, while focusing on the changing fortunes of the European Union and cosmopolitanism. Benhabib engages with postcolonial thinkers and argues that, although validity claims and relations of domination and inequality are often intermixed, it is possible to reconstruct the insights of international law to serve a more inclusive universalism and world-building.
This vibrant defense of human rights and universal norms in an age of political skepticism and extremism will appeal to a wide readership and will be of particular interest to students and scholars in political theory, critical theory and law.
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CONTENTS
Cover
Table of Contents
Dedication
Title Page
Copyright
Preface
Acknowledgments
Introduction
Part I The Modern European State from Hegel to Habermas
1 The Specter of Popular Sovereignty in Habermas’s Between Facts and Norms
Contemporary political thought and its discontents
Legitimacy: legal, sociological, and moral
A system of rights and the discourse theory of democracy
A brief excursus on Kelsen and Schmitt’s critique of Hobbes
A system of rights
Popular sovereignty in Between Facts and Norms
Conclusion: reconstituting the we
Notes
2 Hegel’s Concept of the Person and International Human Rights
International human rights today
Persons, property, and contract
The universality of personhood
Notes
3 Restructuring Democracy and the Idea of Europe (with Stefan Eich)
Creating a common market
A European constitution?
European identity and citizenship between universalism and particularism
Political fragmentation
Provincializing a special area for hope
Notes
Part II Democracy and Normativity beyond Borders
4 Ronald Dworkin and the Normative Orders of International Law
Rainer Forst and the Kantian legacy
Ronald Dworkin on international law
Dworkin’s international law: statist or cosmopolitan?
Democratic iterations: international law and state consent
Forst’s “right to justification” and Dworkin’s principle of salience
Notes
5 Beyond the Hermeneutics of Suspicion: Reconstructing Cosmopolitan Law
The post- and decolonial critique of Kant
Third World approaches to international law
Migration as decolonization
Liberal nationalism, liberal internationalism, neoliberal globalism, and postcolonial cosmopolitanism
Conclusion: postcolonial cosmopolitanism
Notes
6 The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights
Territoriality and sovereignty
Louis Henkin on sovereignty
The post-World War II international human rights regime and the 1951 Refugee Convention
A thousand little Guantanamos
And the United States?
Notes
Part III Sovereignty and Cosmopolitanism after Europe
7 Sovereignty and Constituent Power
The New Sovereigntists
Popular vs. state sovereignty
Jürgen Habermas and proceduralization of popular sovereignty
Sovereignty and cosmopolitan federalism
Sovereignty as governmentality: Michel Foucault
Sovereignty as constituent power – we, the people
Post-sovereign constitutionalism
Conclusion: sovereignty of ghosts and zombies
Notes
8 Politics in a Planetary Age: The Globe as World, Earth, and Planet
Anthropocene, globe, and planet
Latour on the planet and the terrestrial
Hannah Arendt on Karl Jaspers as citizen of the world
Conclusion: from the Science to the Law of Climate Change
Notes
9 Habermas’s New Phenomenology of Spirit: Two Centuries after Hegel
From the Theory of Communicative Action to Also a History of Philosophy
Hegel’s Phenomenology of Spirit as a precursor to Habermas’s Auch eine Geschichte der Philosophie
After Europe?
Notes
10 Conclusion: In Defense of Rational Indignation
Notes
Index
End User License Agreement
Guide
Cover
Table of Contents
Dedication
Title Page
Copyright
Preface
Acknowledgments
Introduction
Begin Reading
Index
End User License Agreement
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Dedication
For Jürgen Habermas with gratitude
At the Margins of the Modern State
Critical Theory and Law
Seyla Benhabib
polity
Copyright © Seyla Benhabib 2025
The right of Seyla Benhabib to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2025 by Polity Press
Polity Press65 Bridge StreetCambridge CB2 1UR, UK
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All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
ISBN-13: 978-1-5095-6359-3
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Library of Congress Control Number: 2024942759
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PREFACE
The international order of the post-World War II period is in shambles all around us. The wounds and sounds of war extend from Ukraine to Gaza, from Darfur to the Congo. General skepticism and political nihilism toward human rights and democracy, the rule of law, and peace among peoples accompany this sound and fury.
Facile expressions such as “Eurocentrism” and “demise of the West and the rise of the rest” miss the real challenge in this predicament: how to extend moral, legal, and political universalism to address the experiences of the multitude of humanity for whom western modernity has brought not only equality but also subordination, not only emancipation but also domination. Rethinking this universalist project and participating in world-building together can be achieved only through reconstructing and retrieving the best insights of critical social theory in the Frankfurt tradition, and the liberal Kantianism of Rawls and Dworkin.
This volume reconstructs these insights and addresses state and popular sovereignty, Third World Approaches to International Law (TWAIL), the 1951 Refugee Convention, and climate change legislation, while focusing on the changing fortunes of the European Union and cosmopolitanism. This encounter is framed in light of the postcolonial critique of both traditions.
I engage with postcolonial thinkers such as Anthony Anghie, Tendayi Achiume, Dipesh Chakrabarty, Adom Getachew, and Walter Migñolo. Paul Ricoeur’s concept of the “hermeneutics of suspicion” is my guide here. Ricoeur distinguishes between traditional hermeneutics, whose goal is to analyze the internal contradictions of a text with the purpose of formulating a more complex grasp of its unity and coherence, and a hermeneutics of suspicion that uses these contradictions to reveal undisclosed assumptions and prejudices in the text, often showing it to be full of hypocrisy. Thus some TWAIL scholars argue that international law is not about creating a rule-based order among states but, rather, about ensuring the domination of western colonial powers over colonized peoples. Decolonization and self-determination may be recognized as human rights by United Nations documents, but such recognition is often grossly hypocritical since it does not lead to the construction of a just economic order among nations. The hermeneutics of suspicion sees every claim to the validity of a universal norm or principle as a gambit for power. Following Habermas, I argue that facticity and validity (Faktizität und Geltung) are always imbricated in one another, and validity claims and power games are often intermixed. Still, a reconstruction of the insights of international law to serve a more inclusive universalism and a more equitable world is possible.
As contemporary conflicts pull nations and peoples apart, climate change reveals how fragile and interdependent the Earth is. What kinds of politics are desirable as well as possible in the planetary age? Can cosmopolitan ideals be reconciled with climate change, or are they totally discredited by assumptions of endless growth and progress? Can the “reasonable freedom” of the moderns (Habermas) be disentangled from the disenchantment and destruction of nature? Doing justice to such questions must lead to radical reconsiderations of territorial sovereignty and the constitutional “we” in whose name a territory is appropriated. Such political challenges to the existing international order are visible not only in youth protests all over the globe but also, and maybe surprisingly so, in attempts by different constitutional courts on different continents to face climate change in our times. As opposed to the growing number of voices shouting that the project of political modernity is over, I maintain that it is still capable of transformation through democratic contestation.
ACKNOWLEDGMENTS
The chapters collected in this volume were composed between 2019 and 2024, and five of them have not previously appeared in English. I owe a debt of gratitude to large numbers of individuals who have acted as my interlocutors and lecture audiences. During November 2023, I was Albert Hirschman Visiting Fellow at the Institute for the Human Sciences in Vienna, where early versions of chapters 5 and 8 were held as lectures. These lectures have been published in German as Seyla Benhabib, Kosmopolitismus im Wandel. Zwischen Demos, Kosmos, and Globus (Vienna: Mandelbaum Verlag, 2024). I thank Professor Ayse Caglar for her kind invitation to be a Fellow at the IWM and Evangelos Karagiannis for his outstanding editorial help in preparing their German edition for publication.
The idea for this book crystallized in my mind after I delivered a revised version of the opening chapter of this volume, “The Specter of Popular Sovereignty in Habermas’s Between Facts and Norms,” as a plenary lecture at the Baldy Center for Law and Social Policy at SUNY Buffalo Law School on May 26, 2023 during the conference “Critical Encounters with Habermas’ Legal Theory.” It was subsequently presented at Fordham University Law School’s Legal Theory Workshop on March 21, 2024. Many thanks to colleagues who have participated in both events, and in particular to John Abromeit, Aditi Baghci, Matthew Dimick, Jeffrey Flynn, Than Klein, and Benjmain Zipursky for their comments. I am grateful to William E. Scheuerman and Paul Linden-Retek for their critical input on earlier versions of this chapter.
Chapter 2 is a revised version of my contribution to a Festschrift for Axel Honneth published as “Hegel’s Concept of the Person and International Human Rights,” in Julia Christ, Kristina Leopold, Daniel Loick, and Titus Stahl (eds.), Debating Critical Theory: Engagements with Axel Honneth (Lanham: Rowman and Littlefield, 2021), pp. 187–205. Reproduced with permission. All rights reserved.
Chapter 3 has previously appeared as Seyla Benhabib and Stefan Eich in W. Breckman and P. E. Gordon (eds.), The Cambridge History of Modern European Thought (Cambridge: Cambridge University Press, 2019), pp. 545–68. © Cambridge University Press 2019. Reprinted with permission.
Chapter 4 is a revised version of my contribution to the Festschrift for Rainer Forst on his sixtieth birthday: Seyla Benhabib, in Mahmood Bassiouni, Eva Buddeberg, Mattias Iser, Anja Karnein, and Martin Saar (eds.), Die Macht der Rechtfertigung. Perspektiven einer kritischen Theorie der Gerechtigkeit (Berlin: Suhrkamp, 2024), pp. 355–74. This is its first English publication.
Chapter 5 is a revised English version of S. Benhabib (2024), Kosmopolitismus im Wandel. Zwischen Demos, Kosmos, and Globus, pp. 31–53.
Chapter 6 has a long history and is my first foray into the doctrine and empirics of international refugee law. It is based on a lecture initially delivered at Columbia University Law School’s Faculty Workshop on April 30, 2019. I am indebted to Jeremy Waldron and Bernard Harcourt for their comments during this occasion. A shorter version was offered as the John Dewey Lecture at the University of Chicago on January 15, 2020 upon the invitation of Martha Nussbaum, whom I thank for her hospitality. Susanna Mancini, Michel Rosenfeld, and Jamal Greene were most gracious hosts during the Cardozo and Columbia Law School’s Joint Seminar on “Illiberal Constitutionalism and the Future of Constitutional Democracy,” on March 5, 2020, during which a version of this chapter was also presented. It has previously appeared in Jus Cogens 2(1) (2020): 75–100. Reproduced with permission of Springer Nature. https://doi.org/10.1001/s4239-020-0022-1. It is included here in a much abbreviated form.
Chapter 7 owes its inspiration to an invitation by Michel Rosenfeld to contribute to Edward Elgar, Research Handbook on the Law and Politics of Sovereignty, ed. by Michel Rosenfeld and Marinos Diamantides (forthcoming).
Chapter 8 is a revised version of the German edition, S. Benhabib (2024), Kosmopolitismus im Wandel. Zwischen Demos, Kosmos, and Globus, pp. 53–73.
Chapter 9 is an abridged version of an article published as S. Benhabib, “Habermas’s New Phenomenology of Spirit: Two Centuries after Hegel,” Constellations 28 (2021): 33–44. https://doi.org/10.1111/1467-8675.12550/ Permission to reprint granted by John Wiley and Sons.
During the composition of these essays, former students and colleagues produced a Festschrift on my work: Stefan Eich, Anna Jurkevics, Nishin Nathwani, and Nica Siegel (eds.), Another Universalism: Seyla Benhabib and the Future of Critical Theory (New York: Columbia University Press, 2024). I am immensely grateful to them and to the contributors – Umur Basdas, Angelica Maria Bernal, Sonali Chakravarty, Drucilla Cornell, Carmen Dege, Carolin Emcke, Rainer Forst, Ayten Gundogdu, Bernard Harcourt, Gaye Ilhan, Cristina Lafont, Paul Linden-Retek, Matthew Longo, Patchen Markell, Thomas A. McCarthy, Eduardo Mendieta, Max Pensky, William E. Scheuerman, Brandon Terry, Shatema Threadcraft, Cristian Volk, and Peter Verovsek. The present volume has developed in conversation with their work over many years, and they have enabled my own thinking to go farther and deeper.
A leave of absence from Columbia University Law School during the academic year 2023–24 has permitted me to put the finishing touches to this book. I am grateful to former Dean Gillian Lester for her gracious hospitality during the years that I have been affiliated with Columbia Law School as a Senior Research Fellow, and to Bernard Harcourt for his leadership at the Columbia Center for Contemporary Critical Thought (CCCCT), which fosters the kind of conversation between law and critical social theory which this book aims at.
John Thompson has been a most supportive and incisive editor, and it has been a pleasure to work with Polity Press again. I thank Fonda Shen and Hedwig Liebeck for research and proofreading assistance. Grace Wang has gone beyond the call of duty in assisting me with references and standardizing the text.
I am grateful to my husband, Jim Sleeper, for his stylistic and conceptual contributions to this volume, and to my family, Laura, Blake, and Arlo, for loving support.
Seyla BenhabibNew York City and Alford, MassachusettsJune 2024
INTRODUCTION: CRITICAL SOCIAL THEORY, LIBERAL POLITICAL THOUGHT, AND POSTCOLONIAL THEORY
At the start of a new century, the optimism about the global spread of democracy and international human rights that dominated western democracies after the fall of the Berlin Wall in 1989 has waned in the wake of the endless “wars against terror” and “humanitarian interventions.” The many crises of the European Union have led to disillusionment with the European project. Democratization in Eastern and Central Europe has stalled, giving rise to illiberal democracies. The exit of the United Kingdom from the European Union in January 2020 seems to have put the nail in the coffin of cosmopolitan dreams. A slow and persistent rise of authoritarianism and the new right has taken place in many countries, including Hungary, Italy, the Netherlands, Sweden, Turkey, India, and the United States. Democracy everywhere is in retreat; the wars in Gaza and Ukraine continue with ferocious intensity and in violation of major norms of post-World War II international law.
Against the dark mood of our times, this volume returns to fundamental questions in democratic theory and international law. My goal is to retrieve insights and ideals which we are in the process of casting aside. This can only be done at our peril. For when old institutions begin to falter, they can be reconstructed only if one has a clear sense of what they had promised in the first place and why they failed.
Chapter 1, “The Specter of Sovereignty in Habermas’s Between Facts and Norms after Three Decades,” analyzes Jürgen Habermas’s Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996 [1992]), arguing that this text is the most comprehensive theorization of the liberal constitutional state as it evolved into the administrative-democratic state after World War II.
The true systematic achievement of Between Facts and Norms was synthesizing principles of liberal-democratic constitutionalism, which have since fallen apart. Habermas attempted to show that human rights versus sovereignty, liberalism versus republicanism, democracy versus social complexity, deliberative politics versus administrative power were false antitheses, and that a discourse theory of law and democracy would demonstrate how they could fit together, albeit not without tensions and contradictions.
More than thirty years later, these pairs of opposites have become antagonisms fueling the crises of contemporary constitutional democracies. Liberalism and republicanism have gone their separate ways, and for most democratic theorists the unity of rights and popular sovereignty has fallen asunder. The call for sovereignty is heard not only among the “new sovereigntists” on the right. In the wake of the Carl Schmitt revival among left theorists, it has been used to denounce the liberal-democratic constitutional state, and rights – whether human, transnational, and/or constitutional – have been attacked as holdovers from a last utopia.
If the above sketch of contemporary trends is accurate, can rereading Between Facts and Norms provide us with some guidance? The first four chapters in this book answer that question in the affirmative and engage in retrieving the fundamental principles of liberal-democratic constitutionalism via a conversation with contemporary critical social theory. In Part I, “The Modern European State from Hegel to Habermas,” I discuss the transformations of the European nation-state by reconstructing the centrality of human rights to that transformation, while also diagnosing those trends which have led to the demise of this state form at the end of two world wars.
Chapter 2 asks why the anniversaries of the Universal Declaration of Human Rights (1948) in 2018 and 2023 have received such a muted and lackluster reaction worldwide. Three types of criticism have contributed to the sense of widespread intellectual disillusionment with the politics of human rights. They are: the charge that human rights are a fig leaf for humanitarian interventions; the claim that humanitarianism thereby has generated a politics of victimhood; and that international human rights still have an aporetic relation to state sovereignty. Focusing on this final claim, I argue that the relationship between human rights and state sovereignty raises one of the most important problems for human rights doctrine and practice. Since 1948, human rights have been legally and politically institutionalized and professionalized via complex networks of conventions, treaties, monitoring, and compliance bodies, giving rise to a set of interlocking but transnational jurisdictions, as well as producing considerable legal doctrine and commentary. What is the relationship between rights and state sovereignty? Do rights limit sovereignty? Or are they only made possible – conceptually and institutionally – in the sovereign space of a territorially organized state?
To elucidate this question, I make a surprising turn to Hegel’s discussion of “abstract right” in the opening sections of The Philosophy of Right. Hegel makes the recognition of the individual as a person, that is, as an individual entitled to the exercise of certain rights, the cornerstone of the legitimacy of the modern state as a Rechtstaat. Yet he limits such rights to the private enjoyment of economic, moral, and personal liberties, thereby blunting any critical potential that may accrue to state sovereignty from the critical exercise of political rights. But the right of personality has a subversive and expansionist dynamic that even Hegel’s well-known presumptions of inequality of the sexes and the backwardness of African peoples cannot negate.
There is a surprising convergence between the Hegelian concept of the person and Hannah Arendt’s “the right to have rights.” The international human rights regime emerged after 1948 precisely because the European nation-state system and the institutional regime of sovereignty in the interwar years had failed. Arendt formulated the right to have rights in this context. Hegel’s Philosophy of Right and Arendt’s The Origins of Totalitarianism thus can be read as bookends to this epoch of European history.
It was not Hegel but Kant who most clearly anticipated the forms of political institutions that needed to emerge after the demise of the nationalist sovereigntist regimes in Old Europe. Some of the central values which the European Union aims to uphold – respect for the rights and dignity of the person; a republican constitution based on the rule of law; and peace among nations, to be furthered through a federation of republics based on international as well as cosmopolitan law – were formulated by Kant. Chapter 3, co-authored with Stefan Eich, gives an overview of the evolution of European states toward the European Union.
This recasting of the European project inevitably raises a triplet of questions: What was Europe? Where was Europe? Who was European? During the 1990s and 2000s, renewed attempts to give Europe a normative meaning and to form a genuinely public debate about its identity and the nature of the European political experiment competed with skeptical narratives stressing distinctively national cultural legacies and democratic achievements. Was the European Union (EU) a regionalist stepping stone toward cosmopolitan internationalism and global economic governance, European intellectuals asked, or just a hegemonic project of market liberalization leading to German economic dominance? Did it pave the way for transnational citizenship or merely replicate an exclusionary European identity logic on a continental scale? This chapter argues that these debates reflect a struggle over contested identity categories that oscillate between universalistic and particularistic understandings. These contestations touch on the external boundaries of the EU; on the nature of the European project; and, lastly, on the reconfiguration of citizenship and belonging in Europe.
In Part II, “Democracy and Normativity beyond Borders,” I turn to the liberal philosophy of international law. Ronald Dworkin’s work bears the closest affinity to the neo-Kantian legacy of contemporary critical theory. Chapter 4 focuses on a posthumously published essay of Dworkin’s, “A New Philosophy of International Law,” in the light of Kant’s “Perpetual Peace.” I distinguish sharply between the Rawlsian law of peoples and Dworkin’s cosmopolitanism. In his new philosophy of international law, Dworkin developed two principles: the principle of mitigation and the principle of salience. According to Dworkin, “If a state can help to facilitate an international order in a way that would improve the legitimacy of its own coercive government, then it has a political obligation to do what it can in that direction.” A state’s own legitimacy is fundamentally imbricated with the international order in which it is situated.
Written for a Festschrift for Rainer Forst, chapter 4 then explores the affinities between Dworkin’s principles of mitigation and salience and Rainer Forst’s right to justification and the ideal of a noumenal republic. Both thinkers assume that normativity entails treating each person over whom power is exercised as one to whom we owe a normative justification. The right to justification is an expression of respect for the moral autonomy of the person as an individual whose actions cannot be constrained without the justification of such constraints by reasons that are general and reciprocal. Likewise, the principle of salience seeks to enhance the legitimacy of state coercion over citizens and others by embedding the state in such a system of international law as would make it impossible for it to slide into tyranny. In a tyrannical system, human beings would be treated not as “ends in themselves” but as means to the aggrandizement of power by those who exercise domination.
In proceeding from hypothetical sovereign equality among the state parties, Dworkin’s philosophy neglects relations of power, inequality, and exploitation among states to such an extent that, despite his noble intentions, significant omissions and distortions result. This objection has been raised most forcefully by a group of scholars referring to their contributions as TWAIL, or “Third World Approaches to International Law.” Beginning with the pioneering work of Antony Anghie, TWAIL scholars have made us aware of doctrines, practices, and judgments that perpetrate the inequality among states that lies at the very origins of the post-World War II system of international law and institutions. Many newly independent nations were deprived of enjoying permanent sovereignty over their natural resources and of freeing themselves from dependence on an unjust global system of economic distribution. Attempts to bring proposals for a New International Economic Order onto the agenda in UN meetings were continuously thwarted, and principally by the United States. Migrations from the Global South resulting from desertification, joblessness, and political violence are still criminalized by many countries of the Global North. TWAIL scholars see their contributions as demystifying central tenets of international law for the sake of building a more emancipatory vision of justice among peoples.
By focusing on the work of TWAIL scholars and the evolution of international law in the period after the liberation movements of the Global South, I bring into conversation ideal and non-ideal theory. Whereas the Kantian tradition of Rawls and Dworkin proceeds from ideal thought experiments and counterfactual hypotheticals to develop principles of normative validity, the critical social theory of Habermas, Honneth, and Forst analyzes these normative ideals in institutionally embedded contexts which are part of a cultural lifeworld. Reconstructing normativity in the first place is a form of internal criticism (immanente Kritik) through which the ideal and the real are contrasted; the justificatory aspirations of institutions and their actual functioning in the real world are compared and analyzed. Critical theory is not pure normative philosophy, since it always takes into account institutional dynamics and social struggles. Following this method in chapters 5, 6, and 8, this book delves into empirical developments in law, society, and politics.
In chapter 5, I distinguish among four ideal models of normative and social theory: liberal nationalism, liberal internationalism, neoliberal globalization, and postcolonial cosmopolitanism. These positions are represented by major voices in contemporary thought, and they address the normative legitimacy of the liberal-democratic state as viewed from the perspective of a world society of states. Liberal nationalism is the claim that without well-protected borders, there can be no democratic self-governance. There must be a centralized agent of some kind that takes responsibility for protecting a country’s natural and material assets and that ensures continuity of its public culture and democratic values (Rawls, Walzer, Nussbaum, Nagel, and Miller).
The weakness of the liberal nationalist position is that it neglects international law constraints on sovereignty by constructing state sovereignty as if it were solely defined by the self-assertion of the demos. Liberal internationalists argue that it is wrong to think of sovereignty as a unilateral prerogative to be wielded against other sovereigns. Rather, states exist within larger regimes of sovereignty that change over time (Dworkin, Slaughter, Koh, and Doyle).
Neoliberal globalism is a position favored more by economic thinkers than political theorists. Neoliberal globalists, among whom are Hayek, Milton, the early Thomas Friedman (2012), and the editorial writers of the Wall Street Journal, defend the unimpeded free movement of commodities, services, and persons across borders. Whereas liberal internationalists conceive of the international order in terms of macro-institutions regulating interstate behavior, neoliberal globalists view the international order as an emanation of market networks. State interference is not welcome.
Postcolonial cosmopolitanism, like neoliberal globalism, pushes liberal nationalists and internationalists beyond the perspective of the state, which, whether liberal or not, privileges an “ontology of containment” (Linda Bosniak) that denies the radical fluidity, historical variability, and interdependence of peoples, histories, cultures, and territories on all sides of a border. Cosmopolitanism proceeds from the premise that human mobility is an anthropologically deep-seated drive of the human species and that intelligent and humane solutions to the regulation of the ever-increasing cross-border movement of peoples can be found.
Besides war among states, perhaps no other issue has demonstrated the incongruence of the principles upon which the post-World War II international order rests more than the behavior of states in view of the global refugee crises of our times. In chapter 6, “The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights,” I turn to a close examination of the 1951 Refugee Convention and its 1967 Protocol. As Hannah Arendt anticipated, the plight of refugees, asylum seekers, displaced persons, and so on reveals a fateful disjunction between human rights and the rights of the citizen; between the universal claims to human dignity and the real indignities suffered by people who possess nothing but their human rights and who have lost membership of a political community. The asylum seeker, the stateless person, and the refugee have become metaphors as well as symptoms of a deeper malaise in the politics of late modernity.
While global economic developments and the rise of the World Wide Web have led to deterritorialization of vast domains of the economy and the media, enabling them to escape state control, territorial presence, whether on terra firma or on vessels at sea that function as surrogates for territorial sovereignty, continues to be the basis for entitlement to human and citizens’ rights. We are facing a dual movement of deterritorialization and re-territorialization at the same time, with states engaging in maneuvers to escape their obligations under the 1951 Convention. Sometimes states excise territory and therewith their responsibility to refugees on that soil; at other time, states extend their sovereign prerogatives accordion-like, shrinking and expanding, in order to monitor and control movements of refugees on territories over which they have no internationally recognized jurisdiction. Take, for example, attempts by the European Union to control conditions in Libyan refugee camps or to monitor movements of refugee boats leaving the West African coast on their way to the European Union. Contemporary normative political theory addresses the refugee question mostly by neglecting such developments and the law of refugee status.
Chapter 7, “Sovereignty and Constituent Power,” highlights the dualism at the heart of the concept of sovereignty since Thomas Hobbes’s Leviathan (1651). This dualism – between state and popular sovereignty – enables states to act as protectors of their territories and to do so in the name of a sovereign people defending itself against intruders and outsiders. State sovereignty signifies the jurisdiction of a state power with the prerogative to control all that is dead and alive within a designated territory. This preliminary definition of sovereignty is usually referred to as the “Westphalian model,” and, despite significant revisionist work in both historical and legal studies questioning the validity of this term, it continues to exercise exclusive power over our social imagination. State sovereignty changes over time and can only be defined within regimes of sovereignty. The regime of sovereignty, emerging after 1948, recognizes states as free and equal, but it also posits that such states must subscribe to the United Nations Charter and undertake, in various measures, to comply with international human rights agreements and jus cogens norms against genocide, slavery, ethnic cleansing, and the rights of refugees.
The second dimension of sovereignty is popular sovereignty. According to the legacy of the American and French revolutions, state sovereignty derives its legitimacy from the will of the people. But what use is popular sovereignty in an age of economic globalization, the World Wide Web, planetary climate change, global pandemics, and the like? Is the conviction that the demos alone can control its fate a realistic one, or does it belong to the history of ancient political myths? As Martti Koskenniemi poignantly formulates it, “sovereignty points to the possibility, however limited or idealistic, that whatever comes to pass, one is not just a pawn in other people’s games, but, for better or worse, the master of one’s life.” Is this more than a pious wish or an aspiration that peoples strive for?
With these challenges in mind, I return to the specter of sovereignty in Habermas’s Between Facts and Norms. Does contemporary democratic theory need a concept of sovereignty? Or is the proceduralization of sovereignty sufficient, as Habermas advocates? Many democratic theorists argue that without the principle of a constituent power, a constitutional “we, the people,” in whose name the constitution is given and the state is legitimized, democratic power makes no sense and becomes a form of legalism without animating spirit. But might such constituent power be rethought in a transnational and cosmopolitan context?
Not only the refugee crisis of our times but also climate change show that older conceptions of territorial sovereignty and constituent power are experiencing profound transformation. Rejecting territorial sovereignty as an illusory attempt at mastering the forces of the planet and the earth, Dipesh Chakrabarty and Bruno Latour focus on the “deep earth,” on that layer of terrestrial soil which makes human life on this planet possible in the first place. The globe of globalization must be distinguished from the earth and the planet.
Yet there is a third meaning of the globe besides earth and planet, and that is the “world,” in the Arendtian sense of the word, of human affairs, institutions, artifacts, and narratives. Human history unfolds in this space, and though climate change may threaten us as a species, it is worldly politics which will lead toward building a planetary politics encompassing the earth as a whole.
Arendt’s essay on her teacher Karl Jaspers shows that cosmopolitan citizenship must begin with worldly engagements in the institutions which we find given in our lifeworld, all the while seeking to transform them. Chapter 8 looks at two cases of climate change litigation, in which constitutional courts in Germany and Central America formulated new legal doctrines in order to meet obligations toward future generations. The court in Ecuador went farthest by declaring the “Rights of Nature,” of Pachamama, as that organism which gives us life in the first place.
In the penultimate chapter of this book, “Habermas’s New Phenomenology of Spirit: Two Centuries after Hegel,” I turn to Habermas’s Also a History of Philosophy, which defends human dignity and rationality in an age when we seem to be stranded between the shores of naturalism and religion. This quest(ion) takes the form of a reconstruction of the history of occidental reason from the Axial Age onward to Kant, the German Idealists, and to Feuerbach, Marx, Kierkegaard, and Peirce. Habermas’s claim is that the encounter between faith and knowledge in the West is a learning process (Lernprozess).
Yet, I ask, how might a fallibilistic consciousness of universal human rights be constructed in terms of the genealogy of western reason alone if it is to remain open to learning from other cultural traditions in a world society? In what sense can a narrative of the encounter between faith and knowledge in the West provide us with a response to the puzzles confronting humanity in our times? How can such universal questions be satisfied through such a geographically and culturally circumscribed narrative?
I answer these questions by considering Habermas’s claims in the light of Hegel’s “phenomenological method.” Hegel also told the narrative of modernity as a learning process for an anonymous we. But who is this we through whose learning process modernity is being reconstructed? In the last few decades, a type of historical scholarship has emerged, the goal of which is to present the narrative of global modernity as a multivocal, conflictual, and discordant one. Such new historical-philosophical accounts force us to cast into doubt the idea of a unilinear learning process with its authoritative directionality. Who is learning and who is forgetting? Rather, we must ask, who is learning differently? I argue that provincializing the European narrative does not mean that we may reject the cognitive gains of modern philosophy and science – falsifiability, reflexivity, and epistemic validation via a community of inquiry. Such universalism remains indispensable. But we need to take more seriously the voices of those who try to reconcile these epistemic values with the gods of their lifeworlds. Constructing a more polyphonous narrative of modernity by including the voices of women and other cultures by no means implies that the project of communicative reason and freedom should be rejected.
If we want to engage in the conversation of validity, we have to respect one another as beings whom we try to convince with good reasons. Such conversations have procedural requirements such as equality and reciprocity among conversation partners in taking turns in speech acts; in putting issues on the agenda; in questioning the distribution of speech rules, including the reflexive questioning of the discourse procedures themselves. Such discourses have become embedded in the rule of law, parliamentary procedures, and the public spheres of constitutional democracies. They are not infallible, and they must be periodically challenged and revised, but without the universals embedded in such institutional practices, we cannot address the continuing exploitation, injustice, marginalization, and silencing of human groups. The purpose of this book is to continue the contentious dialogue between critical theory and liberal legal thought such as to build a more just universalism, while facing the challenges to both traditions voiced by postcolonial theorists.
Part IThe Modern European State from Hegel to Habermas
1THE SPECTER OF POPULAR SOVEREIGNTY IN HABERMAS’S BETWEEN FACTS AND NORMS
Contemporary political thought and its discontents
If John Rawls’s A Theory of Justice of 1971 gave us the most extensive and still unsurpassed ideal theory of post-World War II constitutional liberal democracies, two decades later Jürgen Habermas’s Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996 [1992])1 provided the most comprehensive theorization of such democracies as they evolved into the administrative state based on the legitimacy of the rule of law. Habermas’s method is not that of ideal theory but of rational reconstruction. Like Hegel in his 1821 Philosophy of Right, who sought to lay bare the normative logic of the institutions of the modern state – abstract right, legality, morality, the family, the market, and the state – Habermas, too, seeks to uncover the normative logic of the institutions of advanced liberal democracies.2
While Hegelian reconstruction, although dissecting the inadequacies of certain spheres and institutions, nonetheless sublates these into a larger conceptual whole in which these inadequacies are neutralized, Habermas insists on the interplay between validity and facticity or between the claim to rationality of existing institutions and their failure to live up to the normative demands of communicative reason. As he explains in the opening pages of BFN:
Tossed to and fro between facticity and validity, political and legal theory today are disintegrating into camps that hardly have anything more to say to one another. The tension between normative approaches, which are constantly in danger of losing contact with social reality, and objectivistic approaches, which screen out all normative aspects, can be taken as a caveat against fixating on one disciplinary point of view. (BFN: 6)
By contrast, Habermas’s goal is to “be open to different methodological standpoints” (BFN: 6). The phrase “being open to” ought to be read carefully. Habermas does not mean that these different methodological perspectives can be reconciled, or aufgehoben, in a Hegelian sense. The tension between the standpoint of the theoretical observer of democratic and legal institutions and that of the participant in them, the tension between the perspectives of judges, politicians, and legislators and those of the defendant, the citizen, and the client, and above all, the systems-theoretic versus discourse-theoretic perspectives on law and democracy must be articulated and each given their due.
Among competing theoretical approaches to the law, the dominant one for Habermas in this work is the systems-theoretic approach of Niklas Luhmann. Neither the Critical Legal Studies Movement, which had gained ascendance in the US academy during the 1990s, nor Michel Foucault’s theory of power, which was fundamentally a critique of the disciplinary apparatus of the modern state – called “l’état provident,” or, more pejoratively, “the nanny state” in the French context – are given much consideration. The challenge Habermas sets for himself is to show that despite the considerable gains of viewing law as autopoietic, that is, as a self-generating and self-regulating system, as systems-theory does, if the perspective of normative validity disappears and law is viewed as a system of referentially self-validating norms and statutes alone, it becomes a medium of power for the exercise of administrative control over passively complying citizens and loses its democratic legitimation function. Yet the question of how to do justice to the self-referential complexity of modern legal systems normatively without repeating the naivety of natural law theories is a challenging one.
Niklas Luhmann had argued that the political system is neither at the center nor at the apex of the modern state but is just one more subsystem among others.3 Can this be made compatible with the expectation that a democratic people ought to be able to govern itself according to certain principles and values? Or should we bid farewell to this ideal of demos-kratia as a romantic vision, or maybe as a fata morgana, which Hannah Arendt had once described the council system to be, that is, a form of government which appears in certain periods of history only to disappear again, as if it were a mirage like the ones seen by sailors at sea?4
The systematic achievement of Between Facts and Norm was holding together opposites which have since fallen apart. Habermas attempted to show that human rights and sovereignty, liberalism and republicanism, democracy and social complexity, deliberative politics and administrative power were false antitheses and that a discourse theory of law and democracy would show how they could fit together, albeit not without tensions and contradictions.
Three decades after its first publication, far from being reconcilable, these pairs of theoretical opposites have become antagonisms at the center of the crises of contemporary constitutional democracies. Liberalism and republicanism have gone their separate ways: liberalism has been reduced by its opponents to a mouthpiece for the economic hegemony of a global economic elite, while republicanism has been reappropriated by left- or right-wing populists. Within the European Union, the critique of Brussels bureaucracy and technocracy, the outcry against the democratic deficit, and the hostility toward migrants, asylees, and refugees are shared by the Italian populists as well as the French left. In Italy, the Brothers of Italy Party of Giorgia Meloni, with roots in Italian fascism, has come to power, while in France, Jean-Louis Mélenchon has revived the memory of France’s struggle against Hitler with the evocative slogan of “la France insoumise” (indomitable France or non-subservient France). With the elections to the European Parliament in the summer of 2024, the European right has surged in many erstwhile social democratic countries like Sweden, the Netherlands, Belgium, and Germany. Whether populism is a permanent temptation within democracy itself, as Jan Werner-Müller and Nadia Urbinati have argued,5 or it is a destruction of democracy, as Yasha Mounk sees it,6 it is clear that very few believe that liberalism and democracy can be held together anymore.
The liberal-communitarian debate of the late 1980s has also resurfaced forty years later, but this time the players are not progressive critics of individualistic liberal rights theories, such as Charles Taylor or Michael Sandel had been.7 Nor are they critics of liberal redistributionism, such as Amartya Sen or G. A. Cohen.8 The culture wars of the intervening decades, particularly in the United States, have led to a new literature on the death of liberalism,9 and in some legal circles it has produced a revival of a “common goods constitutionalism,” tinged by Catholic virtue teaching.10 Whether constitutional democracy can survive the death of liberalism or whether virtue teaching can be reconciled with a constitutional democracy, based on the irreducible diversity of visions of the theological, moral, and aesthetic good, are questions left unanswered or ignored through significant silences.
Mainstream liberal-democratic theorists who still want to hold on to the project of liberal democracy, such as Steven Levitsky and Daniel Ziblatt in How Democracies Die?, examine the malfunction of democratic institutions in the wake of the failure of the elites, the fragmentation and polarization of the media, and the disappearance of democratic norms of comity.11 But they provide little by way of reforming or reconstructing institutions, focusing instead on attitudinal and value changes among the elite.
If the above brief sketch of contemporary trends is accurate, can rereading Between Facts and Norms more than three decades later and in hindsight provide us with some guidance? To answer this question, I want to highlight the two most original aspects of Habermas’s discourse theory of law and democracy: first, the centrality of civil society and the public sphere in mediating between citizens’ deliberation and administrative power, thus nourishing the “sluices of communicative power” (BFN: 150 ff.); second, the thesis of the equiprimordiality of rights and popular sovereignty. During debates in the 1990s, the concept of civil society had been revived by East European dissidents in their critique of totalitarianism in order to emphasize the significance of free spaces of deliberation and association among citizens beyond the control of the autocratic state.12 Together with the public sphere, which he saw to be central to civil society, Habermas placed both concepts at the heart of a normative theory of advanced democracies.
Since then, the transformation of the public sphere with the rise of digital media and the spread of the World Wide Web have posed difficult challenges to Habermas’s discourse theory of democracy. In his recent book A New Structural Transformation of the Public Sphere and Deliberative Politics,13 he reckons with the fragmentation and privatization of the public sphere, and the ensuing polarization this causes among content consumers who now only flock to media which confirm their biases and prejudices. Habermas is concerned that, “[j]ust as printing made everyone a potential reader, today digitalization is turning everyone into a potential author. But how long did it take until everyone was able to read … ?” (Habermas 2023: 38). If the digital media has made everyone an instantaneous author, how can we distinguish between responsible journalism and the emotive manipulation of the public, between facts and fiction? The rise of the post-truth society and the destructive consequences of the digital public sphere for a deliberative model of democracy will be one of the most important tests for Habermas’s theory of democracy in the years to come.14
This chapter will focus on the equiprimordiality thesis, that is, the common origin (“Gleichursprünglichkeit”) of rights and popular sovereignty, which I believe is Habermas’s most original contribution in bringing together liberalism and republicanism, human rights and popular sovereignty.15 As with the dichotomies explored above, the unity of rights and popular sovereignty has fallen asunder. While sovereignty has become the rallying cry for a denunciation of the liberal state in the wake of the Carl Schmitt revival among theorists such as Giorgio Agamben and Chantal Mouffe,16 rights – whether human, transnational, and/or constitutional – have been described as holdovers from a last utopia.17 I would like to reread Habermas’s contribution as a corrective for this polarization.
This chapter is named “the specter of popular sovereignty” because I fear that the procedural model of popular sovereignty which Habermas advocated in Between Facts and Norms and other writings of this period has removed the beat at the heart of democratic constitutionalism. On the 200th anniversary of the French Revolution, he published an essay with the provocative title “Has the Heartbeat of the Revolution Come to a Standstill?”18 He calls for a proceduralization of popular sovereignty in order to avoid the false substantialization of the people by mistakenly considering it as if it were a unitary agent of change. Following a long line of critical reflections on the revolution in France, extending from Edmund Burke to Immanuel Kant,19 Habermas seeks to retain the legitimacy of popular sovereignty while seeking to reconcile it with the realities of complex democratic societies in which no single institution as such can be said to embody popular sovereignty. Such sovereignty remains dispersed among the interstices of democratic legislation, administrative action, and public opinion.
In the wake of his procedural model of sovereignty, Habermas left sovereignty as constituent power unthematized. As we will see, in Between Facts and Norms he was still operating with a rationalistic conception of communicative reason which blocks political and constitutional indeterminacy in an attempt to forestall the excesses to which unbridled constituent power would give rise. It is also no coincidence that the constitutional we in this text is an extremely homogeneous one. Habermas ignores forms of constitutional contention that may redefine the we but that may also cause ruptures within these constitutional traditions themselves. In the decades to come, all these issues would come to dominate his work as well as the European public sphere, suggesting that the specter of sovereignty in contemporary legal and political theory could not be laid to rest so quickly.
Legitimacy: legal, sociological, and moral
As is well known, Max Weber had theorized three ideal types of legitimacy: traditional, charismatic, and legal-rational. Legal-rational authority was the core model of legitimacy in the modern state, and Weber continued to define legitimacy “as the likelihood that commands issued from a given source will be obeyed.”20 Blending facticity and normativity, this definition construed the reasons of obedience to authority as a social fact
