This week Habermas spoke at the conference ”Law and Justice in a Global Society”, Granada University, Spain. The conference was arranged by The International Association for Legal and Social Philosophy.
Habermas’ lecture – ”The Kantian Project of Cosmopolitan Law - And What It Means Today” – was based on his essay ”Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?” from his latest book ”Der gespaltene Westen” (Suhrkamp Verlag, 2004). His book will be published in English by Polity Press (”The Divided West”) and in French by Fayard (”L'Occident divisé”).
Professor Lawrence B. Solum, University of San Diego, USA, has written this report from Granada (see his very fine legal theory weblog):
”It’s Monday morning in Granada, Spain. I’m sitting through the tradition opening ceremonies of the World Congress for the Philosophy of Law and Social Philosophy—the biannual meeting of IVR and, for better or worse, the only real worldwide forum for high legal theory and legal philosophy.
The first substantive speaker this morning will be Jürgen Habermas—the great German political philosopher and social theorist. I first encountered Habermas’s work as a student in the 70s: I remember devouring several of his early books—thirty years later I still can do a fair job or recapitulating the arguments of Legitimation Crisis & Knowledge and Human Interest—and when I was a law student I wrote a paper for Gunter Frankenberg that developed a theory of the freedom of expression from Habermas’s Theory of Communicative Action. In the 1990s, Habermas became intensely interested in legal theory—writing a largish volume on legal theory. Today, Habermas’s topic is “The Kantian Project of the Constitutionalization of International Law, Does it Still Have a Chance?”.
The speeches have come to an end—finally!
Jürgen Habermas takes the stage. I’ve seen Habermas speak only a few times, at Harvard University when he visited Rawls’s political philosophy seminar in the early 80s, at a world Congress in Bologna a few years ago, and most recently at the University of San Diego, where Habermas gave a lecture as part of the Kyoto Prize activities. Habermas is a notoriously difficult speaker to understand—he has a mild speech impediment and, although the substance of his English is superb, his delivery is not entirely fluent. Despite this, Habermas has a commanding presence—won through the force of intellect and ideas—and audiences are always transfixed even if they are also perplexed. As always, these are just my notes—which record my impressions and not the actual text of Habermas’s talk.
He begins by briefly reviewing the history of the United Nations and then mentions the recent efforts to reform the UN. Then Habermas turns to Kant and introduces Kant’s idea of a ‘cosmopolitan condition’ which Habermas identifies as a step beyond international law, which is concerned only with nation-states. Kant conceived of a choice between “world republic” or “commonwealth of nations.” That is, Kant thought there were only two alternatives for international order—nation states with minimal international law or world government. (Habermas is going to try to show that there is a third way—involving international order that is more substantial than that posited by Westphalian realism but short of world government.)
Habermas turns to the modern ideas that allow us to see that Kant’s two choices are not the only ones. We can now see the assumptions that underlay his conception of the choice. First, we now have the idea of federalism or “divided sovereignty.” Second, whereas Kant thought of a constitute as creating a government, we now have an alternative idea—a constitution that is not solely the constitution of a state. A constitution that constrains an existing state, breaking the link between a state and democratic citizenship. Third, Kant may also have based the dualism of “world republic” and “league of nations” on the improbability of a constitutional revolution. We see constitutionalization as a long term process, in which constitutional regulation emerges gradually in stages or degrees.
Habermas summarizes the three ideas: (1) federalism, (2) the new idea of a regulatory constitution, and (3) the idea of gradual constitutionalization implemented by governments rather than a popular revolutions.
Habermas then turns to a discussion of the means by which a new international constitutional order might emerge, discussing among other topics, the idea of constitutional law made at a supernational level—the EU provides a model of how this can work. States can act as “members of international organizations” and not just as the free agents of the realist theory of international order. The nation-state system recognized only one kind of entity (the “nation state”) with two kinds of policy—foreign and domestic. There are now supernational entities, such as the UN, with power to act in well-defined fields, i.e. securing peace and protecting human rights. New mechanisms for the coordination of nation states and NGOs are also emerging to do with particular issues—trade, the environment, international finance, etc. These arrangements, however, do not provide a framework for “international will formation” or the mechanism for the enforcement of international norms. With the exception of the United States, there are no viable actors to enforce such norms.
Historically, Habermas argues that with the process of decolonization, an international community of nation states arose. National states are comparatively young (on a world wide basis), and they are currently the most powerful actors in the international sphere. Nation states form regional alliances and engage in international cooperation, but these are comparatively weak. The EU has achieved the status of “laying claim” of growing into the role of global actor. But the EU will only do this if it achieves political integration that will enable it to claim democratic legitimacy.
Habermas then turns to the idea of the legitimation deficit. As international actors do more, they outgrown their sources of democratic legitimacy. Even if the UN does reform itself, this will not create the kind of connection between the UN and the nation state that would confer legitimacy. Ever since the development of international law has followed the logic of human rights, the emergence of international legal order has been more legal than political. The protection of human rights through fair procedures can be legitimate.
The neoliberal response to these problems is to see democratic legitimacy as the wrong model. Rather, legitimacy is provided by the excellence of the decision making process. The legitimacy of the international system of markets and states is presumed. This neoliberal approach has not met with democratic consensus. The shift from political mechanisms to market mechanisms would rob future generations of the ability to change these decisions.”