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Cosmopolitan Norms, Human Rights and Democratic
Iterations
Seyla Benhabib
Eugene Meyer Professor of Political Science and Philosophy
Yale University
Not for Circulation and Publication
@Seyla Benhabib
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The status of international law and of transnational legal agreements and treaties
with respect to the sovereignty claims of liberal democracies has become a highly
contentious theoretical and political issue. On September 18, 2008 The New York Times
carried an article by Adam Liptak entitled “U.S. Court, a Longtime Beacon, is Now
Guiding Fewer Nations.”1 Liptak detailed how in the last decade citations of decisions of
the U.S. Supreme Court had declined, while the influence of the European Court of
Human Rights and the Canadian Supreme Court had grown. This evidence was all the
more surprising since so many of these courts and their leading constitutional documents
– such as The Indian Constitution of 1949; the Canadian Charter of Rights and Freedoms
of 1982; the New Zealand Bill of Rights of 1990 and the South African Constitution of
1996-- all drew on American constitutional principles at their inception.
At stake is not only the esteem in which the U.S. Supreme Court is held worldwide, but the standing of international and foreign law itself in U.S. courts. In his highly
controversial decision that struck down the death penalty for juvenile delinquents, Justice
Anthony M. Kennedy cited the United Nations Convention on the Rights of the Child and
the African Charter on the Rights and Welfare of the Child, among other documents.2 In
his dissenting opinion, Justice Antonin Scalia, thundered: “The basic premise of the
court’s argument – that American law should conform to the laws of the rest of the world
– ought to be rejected out of hand.” Seeing this as an all or nothing equation, Justice
Scalia drove to a reductio ad absurdum: “The Court should either profess its willingness
to reconsider all these matters in the light of views of foreigners, or else it should cease
putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke
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alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned
decision making, but sophistry.”3 (Emphasis in the original)
This controversy concerns not only the heft and weight of foreign courts in
influencing the decisions of Supreme Court justices, but broader issues such as: what is
the proper epistemology of judicial decision-making? Why should judges not learn from
other colleagues who have considered similar problems in their own jurisdictions? Isn’t
legal epistemology enriched by looking across the border and even the ocean? Citing a
foreign ruling does not convert it into a binding precedent, does it?
Not only Justice Antonin Scalia, but Chief Justice John G. Roberts Jr. as well,
oppose this liberal-minded problem-solving approach to judicial decision-making that
would learn and borrow from other courts and international documents is. Justice Robert
considers the citing of foreign law to be not an innocent exercise in decision-making, but
a compromise or dilution of sovereignty. Liptak quotes Justice Roberts from his 2005
confirmation hearings: “If we’re relying on a decision from a German judge about what
our Constitution means, no president accountable to the people appointed that judge and
no senate accountable to the people confirmed that judge. And yet he is playing a role in
shaping the law that binds the people in this country.”4 By blurring the distinction
between “citing an opinion” and “creating a precedent,” Justice Roberts raises the specter
of the weakening of democratic sovereignty and judicial accountability.5
What indeed is the status of foreign and international law in a world of increasing
interdependence? Do they dilute sovereignty? What is the source of the anxieties and
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fears invoked by so many in these debates about the problematic relation of transnational
legal norms and democratic sovereignty?6
Let me distinguish between foreign, international and transnational law from the
standpoint of a political theorist rather than that of a legal scholar: By ‘foreign law’ I will
broadly understand special obligations, privileges and encumbrances which emerge
among states as a consequence of bilateral or multilateral treaties. Thus, tax agreements,
commercial contracts and the like among countries pertaining to individuals or
corporations would be prime examples.
By ‘international law’ I understand public legal conventions pertaining to the
world community at large, some of which may be formulated in written form, such as the
Universal Declaration of Human Rights, and others of which, such as norms of jus
cogens, are unwritten but pertain to customary international law. Jus cogens norms mean
that any treaties among nations and international agreements which engage in gross
human rights violations by advocating genocide, ethnic cleansing, slavery, mass murder
are eo ipso invalid.
In defining ‘transnational law’ I follow Harold Koh’s processual focus on
“transnational legal process.” He writes: “… the theory and practice of how public and
private actors including nation-states, international organizations, multinational
enterprises, nongovernmental organizations, and private individuals, interact in a variety
of public and private, domestic and international fora to make, interpret and enforce rules
of transnational law… transnational law is both dynamic –mutating from public to
private, from domestic to international and back again – and constitutive, in the sense of
operating to reconstitute national interests.”7
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Duly executed foreign and international law is binding upon lawmakers, as the
U.S. Constitution itself states in Article VI on the status of treaties.8 In this respect, there
is no contradiction between the will of democratic legislatures and the force of
international law and treaties. Entering into such agreements or declining to do so is a
crucial aspect of sovereignty itself. Yet unlike some jurisdictions in which foreign and
international law become part of domestic law, in the U.S. treaties are not self-executing
and require congressional ratification.
What about the status then of multilateral treaties concerning human rights in
particular? I will raise this question not with specific reference to the U.S. case alone, but
against the background of larger transformations in international law.9
I approach these questions as a political philosopher and not as a legal scholar. I
want to look at the alleged conflict between one class of international legal norms in
particular, namely those pertaining to human rights, broadly understood, and sovereignty,
and I want to argue that in fact the alleged conflict between such norms and democratic
sovereignty derives from an inadequate understanding of how international and
transnational norms function. Such norms enhance rather than undermine popular
sovereignty.
Since these transformations are altering norms of state sovereignty as well as
impacting the actual capacity of states to exercise sovereignty, it is important at the outset
to distinguish between state sovereignty and popular sovereignty. The concept of
‘sovereignty’ ambiguously refers to two moments in the foundation of the modern state,
and the history of modern political thought in the West since Thomas Hobbes can
plausibly be told as a negotiation of these poles: First, sovereignty means the capacity of
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a public body, in this case the modern nation-state, to act as the final and indivisible seat
of authority with the jurisdiction to wield not only ‘monopoly over the means of
violence,’ to recall Max Weber’s famous phrase, but also to distribute justice and
manage the economy.
Sovereignty also means, particularly since the French Revolution, popular
sovereignty, that is, the idea of the people as subjects and objects of the law, or as makers
as well as obeyers of the law. Popular sovereignty involves representative institutions,
the separation of powers, and the guarantee not only of liberty and equality, but of the
“equal value of the liberty of each.” Etienne Balibar has expressed the interdependence
between state sovereignty and popular sovereignty thus: “… state sovereignty has
simultaneously “protected” itself from and “founded” itself upon popular sovereignty to
the extent that the political state has been transformed into a “social-state”… passing
through the progressive institution of a “representation of social forces” by the
mechanism of universal suffrage and the institutions of social citizenship…”10
My question is: how does the new configuration of state sovereignty influence
popular sovereignty? Which political options become possible? Which are blocked? I
will argue that cosmopolitan norms enhance the project of popular sovereignty while
prying open the black box of state sovereignty. They challenge the prerogative of the
state to be the highest authority dispensing justice over all that is living and dead within
certain territorial boundaries. In becoming party to many human rights treaties, states
themselves “bind” their own decisions.
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The argument presented in this paper bears upon but does not lead to a definitive
position regarding the global justice debate in contemporary political philosophy. One
aspect of that debate, largely between Rawlsians such as Thomas Nagel and more
cosmopolitan theorists such as Thomas Pogge as well as Joshua Cohen, concerns the
picture of the world order from which we proceed.11 I agree with cosmopolitans that the
world-picture of the “law of nations” is inadequate, but I also concede that this point
alone cannot determine the nature and extent of obligations of justice among nations and
individuals in the world community. But legal developments matter, and we need to
correct the picture of national autarchy on the basis of which Rawls, at least, wrote The
Law of Nations. I will outline the normative implications of my argument in the
concluding sections of this paper.
From International to Cosmopolitan Norms
It is now widely accepted that since the UN Declaration of Human Rights in
1948, we have entered a phase in the evolution of global civil society which is
characterized by a transition from international to cosmopolitan norms of justice. While
norms of international law emerge through treaty obligations to which states and their
representatives are signatories, cosmopolitan norms accrue to individuals considered as
moral and legal persons in a world-wide civil society. Even if cosmopolitan norms also
originate through treaty-like obligations, such as the UN Charter, and even if the various
human rights covenants can be considered for their member states, their peculiarity is that
they bind states and their representatives, sometimes against the will of the signatories
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themselves. This is the uniqueness of the many human rights agreements concluded
since WWII. I want to describe this process as ‘multilateral covenantalism.’
Let me list here briefly the numerous human rights declarations which have been
signed by a majority of the world’s states since the 1948 Universal Declaration on
Human Rights (UDHR):12 the United Nations Convention on the Prevention and
Punishment of the Crime of Genocide, adopted by Resolution 260 (III) A of the UN
General Assembly on December 9 1948 (Chapter II); the 1951 Convention on Refugees
(which entered into force in 1954);13 the International Convention on Civil and Political
Rights (ICCPR; signed in 1966 and entered into force in 1976, with 152 countries are
parties to it)14; and the International Covenant on Economic, Social and Cultural Rights
(ICESCR; entered into force the same year and with similar number of signatories),15 and
the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW; signed in 1979 and entered into force in 1981). 16 These are some of the best
known among many other treaties and conventions.
But what does all this really mean? What possible significance do these multilateral
human covenants have if states continuously and brazenly violate them? Are these not
mere words at worst or aspirational ideals at best that have little traction in limiting state
conduct? Can these treaties be considered law at all?
Empire and Cosmopolitanism
In contemporary thought, terms such as ‘globalization’ and ‘empire’ are often
used to capture these transformations in the international domain. Yet these terms are
greatly misleading, in that they fail to address the distinctiveness of cosmopolitan
norms. Defenders of economic globalization, such as Thomas Friedman (at least in
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his earlier work, The World is Flat), reduce cosmopolitan norms to a thin version of
the human rights to life, liberty, equality, and property that are supposed to
accompany the spread of free markets and trading practices. In this respect, neoliberal theorists of globalization join hands with neo-Marxist theorists of ‘empire,’
most notably, Tony Negri and Michael Hardt. As is well-known, Hardt and Negri
distinguish between imperialism and empire in order to capture the novel logic of the
international order. While imperialism refers to a predatory, extractive and
exploitative order through which a sovereign power imposes its will upon others,
‘empire’ refers to an anonymous network of rules, regulations, and structures which
entrap one in the system of global capitalism. Empire is a hegemon without a center.
Global capitalism requires the protection of the rights of the individual to freely
exchange goods and services in the market place; above all; global capitalism
demands that contracts be upheld (pacta sunt servanda), that they be predictable and
capable of execution. Empire, then, is the ever-expanding power of global capital to
bring farther and farther reaches of the world into its grip.
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A more interesting version of the empire thesis has been recently provided by
James Tully, who names such cosmopolitan rights discourse “the Trojan horse” of a
neo-imperial order extending throughout the globe. “The two cosmopolitan rights,”
writes James Tully, harking back to the development of cosmopolitan discourse in the
18th century, namely “of the trading company to trade and the voluntary organizations
to convert – also fit together in the same way as with the nation state.
The
participatory right to converse with and try to convert the natives complements the
primary right of commerce …From the perspective of non-Western civilizations and
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of diverse citizenship, the two cosmopolitan rights appear as the Trojan horse of
western imperialism.”18
But let us pause here: the contours of the precise relationship between the
global commercial transactions and the law remains yet to be determined. Alec Stone
Sweet in his article, “The new Lex Mercatoria and Transnational Governance,”
provides a sobering view: the medieval “law merchant,” which appeared between the
eleventh and twelfth centuries, “was operated by traders and their agents.”19 It was
based on good faith; reciprocity; non-discrimination between foreigners and locals,
and conflict-resolution favoring equity settlements (Ibid.) “The new Lex Mercatoria
also employs general principles of contract, mediation and arbitration along equity
lines, and means of curating reputations,”20 but it does so with a new legal system
“replete with its own ‘a-national’ law of contract and system of private ‘courts’.”21
Lex Mercatoria is parasitic upon state authority, in that it uses the state for the
purposes of enforcement, “while otherwise working to reduce the reach of sovereign
control over transnational business.” (Ibid.) Stone Sweet is not as alarmed as others
are about the erosion of state sovereignty implied by this process, seeing rather the
emergence of instruments such as UNIDROIT Principles of International Commercial
Contracts as norms that could become a comprehensive code for international
commerce. Reminding his readers that the American Law Institute in 1932 first
produced a Restatement of the Law of Contracts and drafted the Uniform Commercial
Code, Stone Sweet argues that “the bulk of the law governing contracts and interstate
trade was harmonized, without federalization.”22 According to Stone Sweet the
relationship between lex Mercatoria and the state, therefore, is one of deep
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interdependence: while lex mercatoria is giving rise to arbitration procedures which
circumvent national courts, it is only states that can enforce the results of such
arbitration; and arbitrators are increasingly working according to precedent, giving
reasons etc. What we are witnessing, says Stone Sweet, is the emergence of an
alternative model of transnational governance, and this “decentralized transnational
‘governance’ will now begin to take on the features of ‘government.’”23
On this model, sovereignty is not being eroded as much as it is being voluntarily
‘outsourced’ to new institutions. The neo-liberal advocates of global capitalism and
Marxist critics of globalization each miss the extent to which this system is
decentered and fragmented and escapes the control of any kind of single center of
power which can be deemed hegemonic over it. But conservatives are not wrong in
worrying that a new system of governance without consent is emerging. The
‘decentralized transnational governance’ of the new lex mercatoria is created by
elites and judicial officials who are responsible and responsive to each other; but the
extent of their responsiveness to the peoples in the countries from which these
transactions emanate is murky at best.
Another version of the argument that the spread of cosmopolitan norms heralds a
project of hegemony has been advanced by Kim Sheppele and Jean Cohen. 24
According to this analysis, it is the creation of an international emergency situation
primarily through the actions of the UN Security Council which must be heeded. “…
[The] seemingly arbitrary redefinition of domestic rights violations as a threat to
international peace and security, and the selective imposition of debilitating sanctions,
military invasions, and authoritarian occupation administrations by the SC or by
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states acting unilaterally (‘coalition of the willing’), framed as ‘enforcement’ of the
values of the international community, gave some of us pause. This discursive
framework opened a Pandora’s box, the import of which is becoming clear only now,
in the third post 9/11 phase of the transformation of public international law.”25 The
Security Council is usurping law-making capacities, and in legislating against
terrorism, in favor of humanitarian emergencies, and post-peace-keeping regimes and
the like, it is violating privacy as well as sovereignty rights. The member states of the
UN can neither oppose these measures, nor can they amend them, since the
amendment rules place the UN Security Council out of their reach by endowing its
members with special veto rights. The connection between these actions of the SC
and cosmopolitan norms of human rights is that, formulae such as “the obligation” or
“the responsibility” to protect, which have been increasingly endorsed by the
Secretary General of the UN and which are logical consequences of viewing every
individual as a being entitled to rights within the global civil society, become slippery
slopes towards the creation of an international emergency situation, prodded by the
actions of UN SC. As Mahmood Mamdani puts it in biting terms: “ The new
humanitarian order, officially adopted at the UN’s 2005 World Summit, claims
responsibility for the protection of vulnerable populations…Whereas the language of
sovereignty is profoundly political, that of humanitarian intervention is profoundly
anti-political …. The international humanitarian order, in contrast, does not
acknowledge citizenship. Instead it turns citizens into wards.”26
There is a great deal in these objections that should be taken seriously and that ought
to give one pause: both neo-liberal theorists of the “the world is flat” school and
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critics of neo-imperial capitalist hegemony recapitulate a well-known Marxist critique
which views the discourse of human rights as the ideological veneer enabling the
spread of free-commodity relations.27 Certainly, there is a historical as well as
conceptual link between the universalization of market forces and the rise of the view
of the individual as a self-determining and free being, capable of disposing over her
goods and actions. But human rights norms are not norms of person, property and
contract alone and they cannot be reduced to norms protecting free-market
transactions. Human rights norms such as freedom of speech, association, assembly,
entitlements to socio-economic equality are also citizens’ rights, subtending and
enabling collective action and resistance to the very processes of rapacious capitalist
development. Many of the international human rights covenants contain, in fact,
provisions against the exploitative spread of market freedoms in that they protect
union and associational rights; rights of free speech; equal pay for equal work;
workers’ health, social security and retirements benefits. Global capitalism which
creates special free-trade zones is often directly in violation of these human rights
covenants.28
The charge that the defense of these cosmopolitan rights has unwittingly given
rise to a “responsibility to protect” and hence to an international emergency regime is
more complicated: A very good example of this slippery slope from the responsibility
to protect to the duty to intervene, by military force if necessary, occurred during the
great typhoon that hit Myanmar- Burma in Spring 2008. Bernard Kouchner, the
former President of Medecins Sans Frontiers, foreign minister of France, argued that
the nations of the world had a duty to intervene even against the will of the secretive
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Myanmar military junta. Robert Kaplan, the conservative thinker, concurred and
suggested that the US Navy could move up the river delta to Myanmar and that once
it did so, the mission of humanitarian aid to the victims of the cyclone, could easily
morph into one of “nation-building.” Only this time, one would be self-conscious
about this task and apply the Crate and Barrel principle outright: “if you break it, you
own it”!29
I do not wish to deny, therefore, the many ambivalencies, contradictions and
treacherous double meanings of the current world situation, which often transforms
cosmopolitan intents into hegemonic nightmares. However, I do wish to claim that
some of these general assertions and criticisms derive from a faulty understanding of
multilateral convenantalism, in that they view the new international legal order as if it
were a smooth “command structure” emanating from a hegemonic source – whether
this be global capitalism, the modern nation-state as complicit in the spread of global
capitalism or the Security Council itself. In all these diagnoses little attention is paid
to the social dissemination of human rights norms throughout member states and to
the legal, social, cultural and political institutions through which this takes place. But
I want to argue the distinguishing feature of the period we are in cannot be captured
through the bon mots of ‘globalization’ and ‘empire’; rather, we are facing the rise of
an international human rights regime and the spread of cosmopolitan norms, while the
relationship between state sovereignty and such norms is becoming more contentious
and conflictual. I will argue that these human rights instruments can empower
democracies by creating new vocabularies for claim-making for citizens in signatory
states as well as opening new channels of mobilization for civil society actors who
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then become part of transnational networks of rights activism and hegemonic
resistance.
The public law documents of our world -- the UDHR, the various international
human rights covenants, and the Geneva Conventions of 1951 Relating to the Status of
Refugees and their Protocol of 1967 -- are distillations of collective struggles as well as
of collective learning. It may be too utopian to name them steps toward a “world
constitution,” but they are more than mere treaties among states. They are global public
law documents which are altering the terrain of the international domain. They are
constituent elements of a global and not merely international civil society. In this global
civil society, individuals are rights-bearing not only in virtue of their citizenship within
states but in virtue of their humanity. Although states remain the most powerful actors,
the range of their legitimate and lawful activity is increasingly limited. We need to
rethink the law of peoples against the background of this newly emergent and fragile
global civil society, which is always being threatened by war, violence, and military
intervention.
In recent works such as The Rights of Others. Aliens, Citizens and Residents
(2004) and Another Cosmopolitanism (2006),30 I have argued that understanding
cosmopolitanism in terms of the legal and moral status of the individual in the world civil
society goes back to Kant’s concept of “Weltbuergerrecht,” as expounded in “Perpetual
Peace.” (1797) I will not be concerned with this genealogy in this essay nor with the
philosophical problems of the justification of human rights except very briefly to set out
the terms of my argument. I have done so elsewhere.31 Rather, I want to suggest a model
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of ‘democratic iterations’ for analyzing the relationship between cosmopolitan norms and
the will of democratic majorities.
Human Rights and the Generalized and Concrete Other
I need to offer some brief philosophical clarifications. I want to argue that rights
claims are in general of the following sort: “ I can justify to you with good reasons that
you and I should respect each others’ reciprocal claim to act in certain ways and not to
act in others, and to enjoy certain resources and services.” Some rights claims are about
liberties, that is, to do or to abstain from doing certain things without anybody else
having a moral claim to oblige me to act or not to act in certain ways. Liberty rights
generate duties of forbearance. Other rights claims are about entitlement to resources.
Such rights, as the right to an elementary school education or to secure neighborhoods,
for example, entail obligations on the part of others, be they individuals or institutions, to
act in certain ways and to provide certain material goods. As Jeremy Waldron observes,
such rights issue in “cascading obligations.”32
For me human rights or basic rights are moral principles that need to be
embedded in a system of legal norms such as to protect the exercise of communicative
freedom.33
First and foremost, as a moral being capable of communicative freedom you have
a fundamental right to have rights. The right to have rights involves the
acknowledgment of your identity as a generalized as well as a concrete other.34 If I
recognize you as a being entitled to rights only because you are like me, then I deny
your fundamental individuality which entails your being different. If I refuse to
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recognize you as a being entitled to rights because you are so other to me, then I deny
our common humanity.35
The standpoint of the ‘generalized other’ requires us to view each and every
individual as a being entitled to the same rights and duties we would want to ascribe to
ourselves. In assuming this standpoint, we abstract from the individuality and the
concrete identity of the other. We assume that the other, like ourselves, is a being who
has concrete needs, desires and affects, but what constitutes his or her moral dignity is
not what differentiates us from each other, but rather what we, as speaking and acting
and embodied beings, have in common. Our relation to one another is governed by
the norms of formal equality and reciprocity: each is entitled to expect from us what
we can expect from him or from her. In treating you in accordance with these norms,
I confirm in your person the rights of humanity and I have a legitimate claim that you
will do the same in relation to me.
The standpoint of the ‘concrete other,’ by contrast, requires us to view each
and every being as an individual with an affective-emotional constitution, concrete
history and individual as well as collective identity, and in many cases as having more
than one such collective identity. In assuming this standpoint, we bracket what
constitutes our commonality and focus on individuality. Our relation to the other is
governed by the norms of equity and complementary reciprocity. Our differences in
this case complement rather than exclude one another. In treating you in accordance
with these norms, I confirm not only your humanity but your human individuality. If
the standpoint of the generalized other expresses the norm of respect, that of the
concrete other anticipates experiences of altruism and solidarity.
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Such reciprocal recognition of each other as beings who have the right to have
rights involves political struggles, social movements and learning processes within
and across classes, genders, nations, ethnic group and religious faiths. This is the true
meaning of universalism: Universalism does not consist in a human essence or nature
which we are all said to have or to possess, but rather in experiences of establishing
commonality across diversity, conflict, divide and struggle. Universalism is an
aspiration, a moral goal to strive for; it is not a fact, a description of the way the world
is.
Variations in Rights and Legal Systems
Human rights, on this account, then embody principles which need
contextualization and specification in the form of legal norms. How is this legal content
to be shaped? Basic human rights, although they are based on the moral principle of the
communicative freedom of the person, are also legal rights, i.e. rights that require
embodiment and instantiation in a specific legal framework. As Ronald Dworkin has
observed, human rights straddle that line between morality and justice; they enable us to
judge the legitimacy of law.36 The core content of human rights would form part of any
conception of the right to have rights as well: these would include minimally the rights to
life, liberty (including to freedom from slavery, serfdom, forced occupation, as well as
protecting against sexual violence and sexual slavery);37 the right to some form of
personal property; and equal freedom of thought (including religion), expression,
association and representation. Furthermore, liberty requires provisions for the “equal
value of liberty” (Rawls) through the guarantee not only of socio-economic goods,
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including adequate provisions of basic nourishment, shelter and education, but also
through the right to self-government.
Let us raise at this point a question concerning the legitimate range of rights : if
we agree on the centrality of a principle such as “freedom of religious expression,” must
we also accept that minority religions are entitled to rights to public expression equally
with the majority, as I would argue, or can we maintain that freedom of religious
expression is compatible with some reasonable restrictions upon its exercise, as Rawls
has claimed? Certainly, the juridical, constitutional, as well as common law traditions of
each human society, the history of their sedimented interpretations, their internal debates
and disagreements will shape the legal articulation of human rights. For example, while
equality before the law is a fundamental principle for all societies observing the rule of
law, in many societies such as Canada, Israel and India, this is considered quite
compatible with special immunities and entitlements which accrue to individuals in virtue
of their belonging to different cultural, linguistic and religious groups.38 There is, in
other words, a legitimate range of variation even in the interpretation and implementation
of such a basic right as that of “equality before the law.” But the legitimacy of this range
of variation and interpretation is crucially dependent upon the principle of selfgovernment. My thesis is that without the right to self-government which is exercised
through proper legal and political channels, we cannot justify the range of variation in
the content of basic human rights as being legitimate.
Herein lies the distinctiveness of an approach based on communicative freedom.
Freedom of expression and association are not merely citizens’ political rights the content
of which can vary from polity to polity; they are crucial conditions for the recognition of
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individuals as beings who live in a political order of whose legitimacy they have been
convinced with good reasons. They undergird the communicative exercise of freedom,
and therefore, they are basic human rights as well. Only if the people are viewed not
merely as subject to the law but also as authors of the law can the contextualization and
interpretation of human rights be said to result from public and free processes of
democratic opinion and will-formation. 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 with
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 will call such processes of appropriation
“democratic iterations.”
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.39 In the process of
repeating a term or a concept, we never simply produce a replica of the first intended
usage or its original meaning: rather, every repetition is a form of variation. Every
iteration transforms meaning, adds to it, enriches it in ever so-subtle ways. The iteration
and interpretation of norms and of every aspect of the universe of value, however, is
never merely an act of repetition. Every act of iteration involves making sense of an
authoritative original in a new and different context. The antecedent thereby is reposited
and resignified via subsequent usages and references. Meaning is enhanced and
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transformed; conversely, when the creative appropriation of that authoritative original
ceases or stops making sense, then the original loses its authority upon us as well.40
If democratic iterations are necessary in order for us to judge the legitimacy of a
range of variation in the interpretation of a right claim how can we assess whether
democratic iterations have taken place rather than demagogic processes of manipulation
or authoritarian indoctrination? Do not democratic iterations themselves presuppose
some standards of rights to be properly evaluated? I accept here Juergen Habrmas’s
insight that “the democratic principle states that only those statutes may claim legitimacy
that can meet with the assent (Zustimmung) of all citizens in a discursive process of
legislation which has been legally constituted.”41 The “legal constitution of a discursive
procedure of legislation” is possible only in a society that institutionalizes a
communicative framework through which individuals as citizens or residents can
participate in opinion- and will-formation regarding the laws which are to regulate their
lives in common.
Democratic legitimacy reaches back to principles of normative justification,
though the two are not identical. Democratic iterations do not alter conditions of the
normative validity of practical discourses that are established independently of them;
rather, democratic iterations enable us to judge as legitimate or illegitimate processes of
opinion and will-formation through which rights claims are contextualized and contested,
expanded and revised through actual institutional practices in the light of such criteria.
Such criteria of judgment enable us to distinguish a de facto consensus from a rationally
motivated one.42
21
22
Cosmopolitan Norms and Democratic Iterations
What is the interaction between cosmopolitan norms and actual legislative
processes, and how can democratic iterations help us understand such processes better ?
Because the UDHR is “only” a declaration of principles and does not detail mechanisms
for enforcement, some argue it does not function sufficiently as law,43 while others see it
as a different kind of law. In several articles Judith Resnik has argued that by ratifying
treaties, domestic obligations are altered, and that particularly in a federal system, judges
duly regard valid treaties as binding law. Resnik calls such processes “law’s migration”
and cites numerous examples: “…federalism is also a path for the movement of
international rights across borders, as it can be seen from the adoption by mayors, local
city councils, state legislatures, and state judges of transnational rights including the
United Nations Charter and the Convention to Eliminate All Forms of Discrimination
Against Women (CEDAW) and the Kyoto Protocol on global warming. Such actions are
often trans-local – with municipalities and states joining together to shape rules that cross
borders.” 44 Another common method of implementation for UN provisions are the
establishment of “expert bodies” chartered to elaborate the meaning of conventions by
promulgating “general comments” and by receiving reports from member-states, which
in turn are obliged to detail how they are compliant with or failing to live up to their
commitments as parties to conventions. Further, in some jurisdictions (but not generally
in the United States), international obligations can be a direct source of legally
enforceable rights through litigation in national courts.45 In addition to processes of law’s
22
23
migration and the establishment of ‘expert bodies,’ cosmopolitan norms enshrined in
multilateral covenants can enter the process of democratic iterations in specific polities
via the action of social movements and civil society actors.
In a forthcoming article entitled “Global Feminism, Citizenship and the State,”
the Iranian sociologist, Valentine Moghadam analyzes the effects of an international
human rights regime, of transnational civil society, and of a global public sphere on
women’s rights in Muslim countries.46 Moghadam, who considers case studies from the
Republic of Iran and the Kingdom of Morocco in addition to Egypt, Algeria and Turkey,
explores how “local communities or national borders” are affected by globalized norms.
She asks: “What of the migration and mobility of feminist ideas and their practitioners?
How do local struggles intersect with global discourses on women’s rights? What role is
played by feminists in the diaspora, and what is the impact of the state?” By analyzing
the formation of women’s rights and feminist organizations both within specific countries
and through transnational feminist networks, she argues that international conferences
and treaties such as CEDAW have created tools that women tailor to their own contexts.
Moghadam maps the “significant variations in women's legal status and social
positions across the Muslim world.”47 Yet in general, “similar patterns of women's
second-class citizenship”48 can be identified in terms of family life and economic
opportunity. Citizenship is transmitted through fathers, and marriage laws give men
rights that women do not have. In both Iran and Morocco, for example, the state, the
family and economic forms of dependency create what Moghadam calls the “patriarchal
gender contract.”49
23
24
Responding in the 1980s to efforts to strengthen application of gendered Muslim
family law, various women's networks came into being. Nine women from Algeria,
Sudan, Morocco, Pakistan, Bangladesh, Iran, Mauritius and Tanzania, formed an action
committee that resulted in Women Living Under Muslim Laws (WLUML), which serves
as a clearinghouse for information about struggles and strategies. WLUML includes
women with differing approaches to religion; some are anti-religious while others, such
as Malaysia’s ‘Sisters in Islam,’ are observant Muslims. Some women work to abandon
religious strictures while others challenge interpretations of religious laws and make
arguments from within texts and traditions.
Moghadam identifies features of these efforts that distinguish their work from
counterparts in North America and Europe. Many Middle Eastern women's groups
display “a tendency to work with men and to engage state agencies”50 rather than adopt
more radical feminist postures characteristic of some groups in other parts of the world.
Furthermore, these groups are relatively isolated “from the transnational feminist
networks”51 perhaps in part because of language barriers. Yet, by reviewing recent
conflicts in Iran and in Morrocco on family rights, Moghadam argues that WLUML,
along with the Women Learning Project, had an impact through interactions between
state-centered and transnational action. Thus she concludes that “The integration of
North and South in the global circuits of capital and the construction of a transnational
public sphere in opposition to the dark side of globalization has meant that feminism is
not ‘western’ but global.”52 Raised by her examples are ironies in global struggles: the
struggle for women’s equality requires revisiting the discourse of universalistic human
rights just as the conditions of global migrations raise questions about whether to aspire
24
25
to global citizenship, to particularized affiliations, or combinations thereof. Further, in
an important confirmation of democratic iterations Moghadam suggests that the more
culturally embedded a group is within a nation-state, the more effective could be their
efforts to incorporate universalist norms.
An extraordinarily interesting case of democratic iterations occurred when, in the
course of a debate in Canada concerning whether or not religious arbitration courts ought
to be legalized, Canadian Muslim women turn to WLUML to help them overturn Muslim
arbitration courts. This case is worth considering in some detail:
Many countries now promote “alternative dispute resolution” to create stateenforced private settlements of conflicts in lieu of adjudication of rights. 53 As Audrey
Macklin explains, under the law of the Canadian Province of Ontario, women are rights
holders when families dissolve and they can seek compensation for household labors that
enabled their husbands to develop careers. Ontario also permits resolutions through
negotiations that result in “domestic contracts.” In addition, when disputants use
arbitration, those outcomes are enforceable in court. (In contrast, in Quebec, family law
arbitrations are advisory rather than binding.)
In 2003, a then-new “Islamic Institute for Civil Justice” offered to arbitrate
family and inheritance conflicts under Muslim law, prompting an inquiry about whether
faith based arbitration ought to be given legal force. Opposition came from the Canadian
Council of Muslim Women, who worked with the transnational group, Women Living
Under Muslim Laws (WLUML), discussed by Moghadam. Reliant on networks “as
Canadians, as women, as immigrants, and as Muslims,” the opponents built
constituencies both locally and globally, just as they argued from national and
25
26
transnational principles including the UDHR’s commitments to dignity and equality.
Proponents of faith-based resolutions were similarly domestic and international —
including “the Christian Legal Fellowship, the Salvation Army, B’nai Brith, the Sunni
Masjid El Noor, and the Ismaili Muslims.” The denouement was Canadian legislation
that does not prohibit parties from turning to faith-based tribunals but gives such
judgments no legally enforceable effect.
As Macklin details, women played central roles in this case, expressing “political
citizenship in the public sphere of law reform,” and doing so through transnational and
transcultural claims of equality.54 “Claiming their entitlement as legal citizens of Canada
to participate in governance… [they] demanded equal citizenship as Canadian women. At
the same time, they pointedly refused to renounce their cultural citizenship or to confine
their gender critique to the specific cultural context.”55
Such practices not only render the meaning of citizenship more complex by
revealing the interaction of the language of universal rights and culturally embedded
identities; they also expand the vocabulary of public claim-making in democracies and
aid them in evolving into “strong democracies.” They are reconstituting the meaning of
local, national and global citizenship through processes of democratic iterations in which
cosmopolitan norms enable new vocabularies of claim-making, assume a concrete local
and contextual coloration, and often migrate across borders and jurisdictions in
increasingly complex and interconnected dialogues, confrontations and iterations.
Returning now to a question I posed earlier concerning the relevance of my
account to contemporary debates around global justice, this would be twofold: first, the
degree of development of multilateral covenantalism suggests that international public
26
27
law exceeds the articles of the Rawlsian “law of peoples:” transnational law creates wider
and deeper interdependencies among nations, pushing them farther and farther towards
structures of global governance. While the world system of states is not one of perfect
cooperation with defined rules of justice, neither are relations among states “mere
contractual obligations,” as Thomas Nagel has argued. The current global system of
interdependence is, as Cohen and Sable argue, sufficiently thick as to trigger significant
relations of justice, which are weaker than those within nation states but certainly
stronger than those envisaged by the world picture of sovereigntistes. The demands for
global coordination in response to the recent economic world-wide meltdown is but one
indication, among many others, of this new phase of global interdependence.
Second, the law’s migrations and processes of democratic iterations both reveal
that global human rights discourse moves across increasingly porous borders to weaken,
and render irrelevant, the distinction between ‘liberal’ and ‘decent-hierarchical’ societies.
Particularly those societies where the human rights of women, of ethnic, religious,
linguistic and other minorities were curtailed on grounds of faith and religion, must now
contend with increasingly transnational movements and actors who network across
borders in developing new strategies of claim-making expanding the human rights’
agenda. These developments are all the more significant since they undermine the
divide between ‘liberal tolerance’ on the one hand and ‘liberal interventionism’ on the
other, by inducting citizens, social movements, churches, synagogues, mosques, cultural
institutions, the global media etc., into a contentious dialogue about ‘justice across
borders.’ Recent movements mobilizing to end genocide in Darfur; to help AIDS victims
in Africa; against the practice of female genital mutilation; for protecting the rights of
27
28
undocumented migrants – les sans papiers and many others are illustrative of this new
global activism enabled, in part, by the spread of cosmopolitan norms.
A Disquieting Conclusion
What I have called “multilateral convenantalism” is a new stage in the
development of global civil society, in which the relationship between state sovereignty
and the spreading human rights regime may generate increasing interventionism on the
one hand as well as open up spaces for democratic iterations on the other. I see no reason
not to acknowledge the ambiguities of this moment. But as a critical social theorist, I
look for those moments of rupture and possible transformation when social actors
reappropriate new norms both to enable new subjectivities to enter the public sphere and
to alter the meaning of claims-making in the public sphere itself. This is the promise of
democratic iterations and cosmopolitan norms in the present.
However, despite these developments I also have a disquieting thought:
increasingly I am convinced that we need to understand the creation of “zones outside the
law” alongside this process. From renditions of enemy combatants to unknown locations
with the cooperation of US and European governments to the emergence of
maquilladoras in Central and South America and free-growth zones in China, Southeast
Asia, and not to mention the decline of the state everywhere in Africa, there is also a
process of “dejuridification” afoot. The attempt is to resist the spread of global law and to
create enclaves of lawlessness and of the denial of the right to have rights altogether. In
many free-trade and growth zones, the rights of workers to fair pay, to assemble, unionize
and organize are suspended and violently controlled. In the desperate straits that the
current world economic crises will generate in many developing countries, it is likely that
28
29
these norms will be further suspended in a Faustian bargain to keep foreign direct
investment coming and the economies growing.
I don’t have a good explanation for how or why these processes continue to
coexist in the world society at the present; but I want to insist on the significance of
existing instruments of cosmopolitan norms to help combat them. These are not
complicit in the legitimation of but rather they are enabling conditions of resistance to the
forces of a global capitalism run amok. Any defensible vision of global justice in the
current world-order will have to take these legal instruments and documents seriously and
work with them rather than against them. For this project, we not only need to overcome
the reductionist resistance of many on the Left to the force of transnational law but also
the defensiveness of many on the Right who see transnational law as undermining
democratic sovereignty, when in fact, it can enhance it.
References
See Adam Liptak, “U.S. Court, a Longtime Beacon, is Now Guiding
1
Fewer Nations,” NY Times, September 18, 2008, p. A1, continued on A 30.
2
See Roper v. Simmons (2005); and Liptak, p. A 30.
3
Roper v. Simmons, Justice Scalia dissenting, joined by The Chief
Justice and Justice Thomas.
4
Liptak, “U.S. Court, a Longtime Beacon, is Now Guiding Fewer
Nations,” p. A30.
5
The letters to the editor on this issue on the whole favored the more
inclusive approaches to foreign law taken by Justices Kennedy, Ginsburg, and former
29
30
Justice Sandy Day O’Connor ( out of the 6 letters printed 4 were favorable; 2 were not).
However, one reader returned to the question of sovereignty. “Our Supreme Court cannot
legitimately adjudicate based upon “inspiration” from other countries, or borrow from
them to create a “good impression”… In America, laws must derive from the consent of
the governed through the representative branches. To do otherwise destroys selfgovernment, which is what our country is all about in the first place.” “U.S. and Foreign
Law: Oceans Apart,” The New York Times, September 20, 2008, A18. Letter by Wendy
Long, a counsel to the judicial confirmation network. Ms. Long is referring to a
statement of Justice O’Connor’s quoted by Adam Liptak to the effect that relying on
foreign and international law “may not only enrich our own country’s decisions: it will
create that all-important good impression.” Cited by Liptak, Ibid, p. A30. Providing a
detailed account of the splits within the U.S. Supreme Court on these matters and its
historical precedent, Harold Koh introduces the terms ‘transnationalist’ vs. ‘nationalist’
jurisprudence. He writes: “The national approach is characterized by commitments to
territoriality, national politics, deference to executive power, and resistance to comity or
international law as meaningful constraints on national prerogative.” Harold Koh, The
Future of Transnational Litigation, Part Four, ch. xiii, “The Supreme Court’s Emerging
Jurisprudence of Transnational Litigation,” pp. 247-260, here p. 248 (Forthcoming; on
file with the author)
6
This is not the same as the well-known question since Thomas
Hobbes, Jeremy Bentham and J. L. Austin about whether international law is law because
it is incapable of enforcement by a sovereign with the capacity to constrain and oblige. I
am concerned here with international obligations which states themselves voluntarily
undertake, without being forced or constrained to do so, by a more overpowering
sovereign. Multilateral covenantalism is voluntary, not imposed. See the essay by Koh
in the following footnote about why nations obey international law.
7
Harold Koh, “Why Do Nations Obey International Law?”, Review
Essay, The Yale Law Journal, vol. 106, No. 8 (June 1997), pp. 2599-2659; here p. 26262627.
30
31
8
“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” Article VI, United States Constitution on “Debts,
Supremacy, Oaths.”
9
On the relationship between treaties, the Constitution and Congress,
and how compliance with many treaties may encroach upon the constitutionally
guaranteed authority of Congress and Article III courts, see Curtis A. Bradley and Jack L.
Goldsmith, Foreign Relations Law (2nd edition, 2006). In a recent article entitled, “When
Judges Make Foreign Policy,” Noah Feldman discusses the case of Medellin v. Texas to
illustrate the complexities of the status of international law in the U.S. courts. “The case,
Medellin v. Texas, grew from a conflict between the Supreme court and the International
Court of Justice over death-row inmates in the United States who were apparently never
told that they had the right to speak to the embassies of their home countries, a rights
guaranteed by a treaty called the Vienna Convention on Consular Relations. The
international court declared that the violation tainted the inmates’ convictions and
insisted that they have their day in court to try to get them overturned…. The Supreme
Court disagreed….What made this conflict between the Supreme Court and the
International Court of Justice particularly stark was that the Bush administration had for
once taken the side of international law.” Noah Feldman, “When Judges Make Foreign
Policy,” The New York Times Magazine (September 28, 2008), p. 56. I do not agree with
the kind of political pragmatism that Feldman recommends to the Court in attempting to
resolve these issues in the future. We need a more principled normative account of the
ways in which international and transnational norms do or do not enhance democratic
popular sovereignty. In the Medellin v Texas case they would have obviously done so by
enhancing the rights of all, particularly inmates, to due process. What can be more
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32
democratic than protecting due process rights? The Court upheld an undemocratic
sovereigntisme in this case.
10
Etienne Balibar, “Prolegomena to Sovereignty,” in: Balibar, We,
The People of Europe? Reflections on Transnational Citizenship. (Princeton, NJ:
Princeton University Press, 2004), p. 152.
11
Cf. Thomas Nagel, “The Problem of Global Justice,” Philosophy and
Public Affairs, 33, No. 2 (2005), pp. 113-147; Joshua Cohen and Chuck Sabel, “Exta
Rempublicam Nulla Justitia,” Philosophy and Public Affairs, 33, No. 2 (2005), pp. 147175; Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities
and Reforms (Oxford: Basil Blackwell, 2002).
12
Universal Declaration on Human Rights, G.A. res. 217A (III) (Dec.
10, 1948) [ hereinafter, “UDHR”].
13
Convention relating to the Status of Refugees, G.A. res. 429 (V)
(entered into force April 22, 1954). [hereinafter, “1951 Convention.”]
14
International Covenant on Civil and Political Rights, G.A. res. 2200A
(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171 (entered into force Mar. 23, 1976.) As of 2007, 152 countries were state parties [
hereinafter, “ICCPR”]
15
International Covenant on Economic, Social and Cultural Rights, G.A.
res. 2200A (XXI), 21 U.N.GAOR Supp (No. 16) at 49, U.N. Doc. A/6316 (1966), 993
U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter, “ICESCR”].
16
The Convention to Eliminate All Forms of Discrimination Against
Women, United Nations, General Assembly Resolution 34/180, Dec. 18, 1979 (entered
into force, Sept. 3, 1981) available at http://www.un.org/womenwatch/
daw/cedaw/econvention.htm [hereinafter, “CEDAW”.] These provisions are, of course,
augmented by many others. See, e.g., Declaration on the Human Rights of Individuals
Who are not Nationals of the Country in which They Live, G.A. res. 40/144, annex, 40
U.N. GAOR Supp. (No. 53) at 252, U.N. Doc. A/40/53 (1985) (providing such “aliens”
32
33
with rights to leave, liberty of movement within a country, as well as to have their
spouses and minor children of legal aliens be admitted to join and stay with them, and to
protect them from expulsion by requiring opportunities for hearings and for decisionmaking not predicated on discrimination based on “race, colour, religion, culture, descent
or national or ethnic origin”; Convention on the Reduction of Statelessness, 989
U.N.T.S. 175, (Dec. 13, 1975) (requiring that nations grant nationality rights, under
certain conditions, to "persons born in its territory who would otherwise be stateless");
Migration for Employment (Revised) (ILO No. 97), 120 U.N.T.S. 70, (Jan. 22, 1952)
(providing that members of the ILO make work policy and migration policies known and
treat fairly "migrants for employment"); Declaration on Territorial Asylum, G.A. res.
2312 (XXII), 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967).
17
Although first translated into English in 2001, the Italian version of
Empire (Cambridge: Harvard University Press, 2001) was written in the period between
the Persian Gulf War of 1991 and the Yugoslav Civil War of 1994. Its view of USA
power is more benevolent than the subsequent work by Michael Hardt and Antonio
Negri, Multitude. War and Democracy in the Age of Empire (The Penguin Press: New
York, 2004) Since the webs of empire are so ubiquitous, sites of resistance to it are
diffuse, decentered and multiple. The ‘multitude’ resists the total penetration of life
structures by the empire in organizing demonstrations against the G-7; the World Bank;
the Gulf War, the Iraq War and the violation of international law. The multitude focuses
on power as a global phenomenon and attempts to generate a counter-force to empire.
The metaphors of networking, entanglement, binding, spread of communicative forms
and the like which underlie this social-theoretical analysis are one-sided precisely
because they present a world without institutional actors and without structured centers of
resistance. Relatedly, the multitude, Hardt’s and Negri’s revolutionary subject, is not the
citizen. The multitude is not even the carrier of popular sovereignty since it lacks the
drive toward the constitutionalization of power, which has been the desiderata of all
popular movements since the American and French revolutions. The multitude gives
expression to the rage of those who have lost their republics: the multitude smashes
institutions and resists power. It does not engage in what Hannah Arendt has called the
33
34
“constitutio libertatis.” (Cf. Hannah Arendt, On Revolution (Viking Press: New York,
1963). See also Seyla Benhabib, The Reluctant Modernism of Hannah Arendt, 2nd
edition (Rowman and Littlefield: New Jersey, 2003), pp. 130-172. Hardt and Negri’s
residual skepticism towards human rights and the rule of law is so intense, that, in the
final analysis, they hollow out the real challenge of cosmopolitanism, which is the
reconciliation of universalistic norms with democratic politics, in favor of an
undifferentiated concept of the masses or of the multitude who are said to be the only
counter-hegemonic force capable of resisting global capitalism.
18
James Tully, “On Global Citizenship and Imperialism Today: Two
Ways of Thinking about Global Citizenship,” Lecture presented at the Political Theory
Workshop, Yale University, ISPS on May 1st 2008. Tully develops a concept of ‘diverse
citizenship’ in this essay, which he believes can serve as a counter-hegemonic challenge
to the modern-statist conception of citizenship. I would argue that cosmopolitan norms, in
the sense in which I develop in this paper, are enabling conditions of such diverse
citizenship.
19
Alec Stone Sweet, “ The new Lex Mercatoria and transnational
Governance,” in: Journal of European Public Policy, 13:5, 627-646; here p. 629.
20
Ibid., p. 630.
21
Ibid., p. 627.
22
Stone Sweet, “The new Lex Mercatoria and transnational Governance,”
pp. 633-635.
23
24
Stone Sweet, Ibid., p. 643.
Jean L. Cohen, “A Global State of Emergency or the Further
Constitutionalisation of International Law: A Pluralist Approach,” forthcoming,
Constellations: An International Journal of Critical and Democratic Theory (Fall 2008)
and Kim Lane Scheppele, “International State of Emergency: Challenges to
34
35
Constitutionalism After September 11”, Yale Legal Theory Workshop, September 21,
2006.
25
Ibid., p. 2. It would be important to know which of the SC-sanctioned
interventions and non-interventions are being referred to here and whether there are
significant differences that must be heeded: intervention in Bosnia vs. non-intervention in
Rwanda and Darfur; intervention in Iraq after 9/11 vs. non-intervention in Iraq after the
Gulf War, when twenty thousand Shi’ites and many more Marsh Arabs were decimated
by Saddam Hussein’s regime.
26
Mahmood Mamdani, “The New Humanitarian Order,” The Nation
(September 29, 2008), p. 18.
27
Karl Marx, “The Grundrisse “ in The Marx-Engels Reader, edited by Robert
C. Tucker, second edition (New York: W.W. Norton , 1978 ), pp. 238-244.
28
See my essay, “Twilight of Sovereignty or The Emergence of Cosmopolitan
Norms. Rethinking Citizenship in Volatile Times,” in: Citizenship Studies, 11/1
(February 2007), pp. 19-36.
29 Seth Mydans, “Myanmar Faces Pressure to Allow Major Aid Effort,” NY
Times, May 8, 2008 and Robert Kaplan, “Aid at the Point of a Gun,” NY Times, Op-Ed,
May 14, 2008.
30
Seyla Benhabib, The Rights of Others. Aliens, Citizens and Residents
(Cambridge: Cambridge University Press, 2004); Another Cosmopolitanism. The
Berkeley Tanner Lectures, edited and introduced by Robert Post and with commentaries
by Jeremy Waldron, Bonnie Honig and William Kymlicka (Oxford: Oxford University
Press, 2006).
35
36
31
See Seyla Benhabib, “Another Universalism: On the Unity and Diversity of
Human Rights,” Presidential Address. Proceedings and Addresses of the American
Philosophical Association, vol. 81, No. 2 (November 2007), pp. 7-32.
32
Jeremy Waldron, “Introduction,” Theories of Rights (Oxford: Oxford
University Press, 1984), p. xxx . I have also found very helpful, Matthew Noah Smith,
“The Normativity of Human Rights,” (manuscript on file with the author.)
33
My position here is distinct from that of Martha Nussbaum’s as well as
Amartya Sen’s. Martha Nussbaum suggests that a nonparochial view of human rights,
while it may not be endorsed by all conventional moralities, may find favor in the eyes of
main conceptions of political and economic justice in the world: understood thusly,
human rights would constitute the core of a political rather than moral overlapping
consensus. See Martha C. Nussbaum, “Capabilities and Human Rights,” in: Fordham
Law Review (1997-98), vol. 66, No. 273, pp. 273-300. Nevertheless, Nussbaum’s method
of philosophical deduction, which ties in rights concepts all too narrowly to a
philosophical anthropology of human capabilities, is problematic. No distinction is made
in her account between rights as “moral principles” and rights as “legal entitlements,” on
the one hand, and “the principle of rights” and “the schedule of rights,” on the other.
In “Elements of a Theory of Human Rights,” Amartya Sen criticizes
Nussbaum’s attempt to identify an “overarching ‘list of capabilities’,” on the grounds that
such a “canonical list,” as well as the weight to be attributed to the various items on this
list, cannot be chosen without a further specification of context. More importantly, Sen
sees in such a procedure “a substantive diminution of the domain of public reasoning.”
See Amartya Sen, “Elements of a Theory of Human Rights,” in: Philosophy and Public
Affairs 32, no. 4 (2004), pp. 315-356, here p. 333. fn.31. Sen wishes to consider human
rights as “primarily ethical demands,” which relate to the “significance of the freedoms
that form the subject matter of these rights.” (Ibid) Although he refrains from an
exhaustive listing of these freedoms himself, for Sen freedoms are actualizations of
capabilities, both in the sense of opportunities and also of processes requisite for
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37
capabilities to be unfolded. “Rather, freedom, in the form of capability, concentrates on
the opportunity to achieve combinations of functionings…” he writes. (Ibid., p. 334).
By situating human rights so centrally within an ethical theory of
freedom and capabilities, Sen disregards the political history of rights which were always
closely tied to claims to legitimacy and just rule. Rights are not simply about strong
moral entitlements which accrue to individuals; they are about claims to justice and
legitimacy enframing our collective existence as well. We cannot simply reduce rights to
the language of moral correctness. Violating a right is different than inflicting a moral
harm on a person.
I have dealt with these issues extensively in: “Is There a Human Right to
Democracy? Beyond Interventionism and Indifference,” University of Kansas at
Lawrence, Lindley Lecture. Forthcoming (2008); cf. also, Seyla Benhabib, “The
Legitimacy of Human Rights,” Daedalus (Summer 2008), pp. 94-104.
34
See Seyla Benhabib, Situating the Self. Gender, Community and
Postmodernism in Contemporary Ethics (London and New York: Routledge, 1992), pp.
35-37.
35
See the innovative interpretation of Arendt’s “the right to have rights” by
Peg Birmingham, Hannah Arendt and Human Rights. The Predicament of Common
Responsibility (Bloomington: Indiana University Press, 2006). Birmingham writes: “The
right to have rights is inspired by a new principle of humanity; the principle of publicness
that demands that each actor by virtue of the event of natality itself has the right to
temporary sojourn on the face of the earth.” Here, p. 58. Underlining mine. Although I
cannot go into greater detail within the compass of this essay, let me simply mention that
Birmingham addresses but, in my view, does not resolve, the problem of “the lack of
normative foundations” in Hannah Arendt’s thought.
36
See the classical essay by Ronald Dworkin, “Taking Rights
Seriously,” (1970), in: Taking Rights Seriously (Cambridge, MA: Harvard University
Press, 1978), pp. 184ff.
37
38
37
Since I consider individuals as “generalized” and as “concrete” others,
taking into account their embodiment, the protection of the bodily integrity of persons,
who are sexed differently, is an important human right. It is not only women who are
subject to sexual violence, many gay and lesbians are as well; however because of their
capacity to become pregnant, forced and arbitrary violence against women affects their
personhood and capacities for communicative freedom differently than gay men. The
important point is to keep in view the different kinds of violence that one can be subject
to as a result of sexual difference and to incorporate this into our understanding of human
rights. For example, many governments, including the USA and Canada, now recognize
and grant as legitimate, requests for asylum for women escaping Female Genital
Mutilation.
38
For further elucidation, see Benhabib, The Claims of Culture, ch. 5 in
particular.
39
See Seyla Benhabib, Another Cosmopolitanism, pp. 45 ff. See also Frank
Michelman, “Morality, Identity and ‘Constitutional Patriotism’,” Denver University Law
Review, vol. 76, No. 4 (
40
), pp. 1009-1028.
I offer democratic iterations as a model to think of the interaction
between constitutional provisions and democratic politics. It may be possible to extend
democratic iterations as a model for the “pouvoir constituant,” the founding act as well.
In this essay, I am assuming that democratic iterations are about ordinary as opposed to
constitutional politics; though I am claiming that ordinary politics can embody forms of
popular constitutionalism and can lead to constitutional transformation through accretion.
There is a lot more that needs to be said about the relationship of a discourse-theoretic
analysis of democratic iterations and political liberalism than I can within the scope of
this paper. See Rawls’s final reflections in his “Political Liberalism: Reply to
Habermas,” The Journal of Philosophy, vol. 92, No. 3 (March 1995), here pp. 172 ff.
Thanks to my student Angelica Bernal for her observations on this problem.
38
39
41
Juergen Habermas, Between Facts and Norms. Contributions to a
Discourse Theory of Law and Democracy, trans. By William Regh (Cambridge, MA: the
MIT Press, 1996), p. 110.
42
For a clarification of the distinctions between normative justification
and democratic legitimation, see “Symposium on The Rights of Others,” in European
Journal of Political Theory, vol. 6. no. 4 (October 2007), pp. 395-463 in general and
specifically, Seyla Benhabib, “Democratic Exclusions and Democratic Iterations:
Dilemmas of ‘Just Membership’ and Prospects of Cosmopolitan Federalism: Reply to my
Critics,” in: European Journal of Political Theory, pp. 445-463.
43
That critique has been made more generally about many forms of
international law. See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and
Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001).
Yet, national jurists can conclude that, by ratifying treaties, domestic obligations change.
44
See Judith Resnik, “Law’s Migration: American Exceptionalism, Silent
Dialogues, and Federalism’s Multiple Ports of Entry,” in :The Yale Law Journal 115
(2006); Judith Resnik, “Law as Affiliation: “Foreign” Law, Democratic Federalism, and
the Sovereigntism of the Nation-State” International Journal of Constitutional Law 6, no.
1 (2008). Also, cf. Judith Resnik, “Categorical Federalism: Jurisdiction, Gender, and the
Globe,” Yale Law Journal 111 (2001).
45
Medellín v. Texas, 552 U.S. (2008)
46
Valentine Moghadam, “Global Feminism, Citizenship, and the State” in:
Gender, Borders and Citizenship. Mobility and Immobility, ed. by Seyla Benhabib and
Judith Resnik (Forthcoming: NYU Press, 2009)
47
48
Moghadam, “Global Feminism, Citizenship, and the State,” 2 .
Ibid., 10.
39
40
49
Ibid., 8.
50
Moghadam, “Global Feminism, Citizenship, and the State,” 17.
51
Ibid.
52
Ibid., 28.
53
See Judith Resnik “Procedure as Contract” Notre Dame Law Review 80:
593 (2005).
54
Macklin, “Particularized Citizenship,”in: Gender, Borders and
Citizenship. Mobility and Immobility, Benhabib and Resnik eds. (Forthcoming) See also
Bruker v. Marcovitz, [2007] S.C.J. No. 54 (Can).
55
Macklin, “Particularized Citizenship,”in: Ibid.
40