2 Discourse ethics, democracy, and international law: toward a globalization of practical reason

American Journal of Economics and Sociology, The, Jan, 2007 by Karl-Otto Apel

Should it be possible to ground the validity-claim of "human rights" only by recourse to the legislative function of a democracy with regard to positive law, especially with regard to the fundamental rights of citizens that are grounded in the constitution of a democratic state? In other words: Is no external normative intervention conceivable with regard to the conception of human rights, as it is brought about by the constitution of positive law through the people's sovereignty in an ideal democratic state?

Jurgen Habermas has given an affirmative answer to this question in his book Between Facts and Norms (Faktizitat und Geltung). Here, he separated for the first time the discourse-theoretical foundation of law from that of morality; and he identified the former's foundation ultimately with that of the legislative function of a democracy, since in a democracy, the authors of the legislative function are identical with the recipients of that function. (12)

John Rawls has agreed, in effect, with Habermas's conception in this respect, especially with his thesis of the "political autonomy" for the grounding of human rights. (13) This is all the more remarkable since Rawls, after all, continues the tradition of "political liberalism," a tradition that in its classic formulation conceived of human rights as some external authority that could intervene in the positive law of states in order to protect private rights.

Of course, Rawls, once he presented the new foundation of his "theory of justice" as purely political and thus independent of metaphysics, (14) had to refuse any external foundation of human rights as political rights, for instance, by recourse to a metaphysics of natural law. Thus he arrived at a partial agreement with Habermas who, in his political philosophy of law, wants to overcome the antagonism between liberalism and communitarianism by a strictly "proceduralistic" foundation for the constitution of positive law that appeals to the nature of the democratic state. (15)

I believe, however, that even if we abandon the metaphysical foundation of "human rights" by recourse to natural law and suppose, along with Habermas, that they have their destination as basic elements of positive law (for instance, as "basic rights" of constitutional states), there are still strong reasons why "human rights"--as the paradigms of universally valid law--must have a unique status above all positive law as well as a capacity for external intervention (even in the political autonomy of a democracy that is grounded by the people's sovereignty).

The first reason for this is constituted by the fact that there is a plurality of sovereign democratic states (from which, it might be claimed, human rights are constituted by shared agreement). Habermas has accounted for this argument, but he reduces its difficulty to a Rousseau-inspired understanding of the ethno-ethical aspect of the concept of "people's sovereignty." Therefore. Habermas calls for the elimination of the ethno-ethical dimension from the conception of the political autonomy of a democracy with regard to justifying its authority for constituting legal norms. It should be replaced, for instance, by a conception similar to "'constitutional patriotism." But I think that this Habermasian proposal deals only with one aspect of the fact that there is a plurality of democratic states. The other aspect is constituted by the fact. detected at the time of Bodin and Richelieu, that sovereign states, being independent systems of self-maintenance, are basic subjects of a "raison d'etat." In our day, this means that. notwithstanding the pretended openness of the constitutional norms of all democracies to the universal validity-claims of international law. there are always special normative reservations of the particular states due to the different imperatives of their "raison d'etat." One could cite the resistance of the United States to the institution of an international court of justice, or the legislative differences concerning the law of asylum seekers or immigrants within the European democracies, as good illustrations of this point.