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

Here, for the first time, the potential conflict between the two apparent solutions to the problem of establishing an international order of law has become manifest. Likewise, the imminent danger for the freedom and the very conception of international law has become visible as well. For it was the technological and military superpower of the United States, the only current candidate for a world hegemony, that completely ignored the moral and legal authority of international law that is represented by the United Nations. Indeed, it disregarded all acknowledged rules of international law by high-handedly opening a preemptive war.

I think that this key experience of recent global politics has shown that the idea of law, in the sense of the universal conception of human rights, cannot be adequately realized either by particular democratic states or by a world-state as despotic superpower. Although each form of positive law must be authorized and enforced with the aid of state power, the universal conception of law cannot be reduced to any legislative autonomy of a state; it must keep a distance from all state functions while at the same time using them for its realization.

This does not mean that the universal conception of law, for example, of human rights, must be based on a so-called metaphysics of natural law: but it does mean that it must be based ultimately on the transcendental-pragmatic foundation of morality, that is, on the fundamental norms of an ideal communication community that we always already have acknowledged in every serious discourse. Thus, we have simultaneously ascertained the transcendental basis of the idea of a democracy and a regulative principle for possible distantiation and critique of every factual democratic state. For every democratic state is a particular institution and, as such. it is subject to the functional constraints of a power system. But the primordial discourse of humanity is a meta-institution: it may and should very well become the concern of a global reasoning public, but it cannot be definitely represented by the single sovereign states or by a world-state or hegemonic superpower.

Therefore. I think that the present conflict between unilateralists and plurilateralists with regard to settling questions of global peace and security must itself be settled by an institution that is open to the meta-institution of global discourse, and this can only be a federation of nations like the UNO. It must certainly be continually strengthened by reforms, but it must never be dominated by a single power system.

IV

Democracy and the "Law of Peoples"

IN THE PRECEDING DISCUSSION on the relationship between law and the democratic state, we touched upon the problem of the foundation of international law (or, as it was previously called, jus gentium, or in German, Volkerrecht). And it seems clear that by pleading for a furthering of the role of the United Nations in dealing with world problems, I have also pleaded for a further elaboration of international law. For the UNO, I think, must be primarily considered as a political representation of international law.