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Human Rights, Democracy, and Global Governance

IPSA

Montreal 2014

© 2014 Andrew Buchwalter

Andrew Buchwalter

Department of Philosophy

University of North Florida

Jacksonville FL 32224 USA

[email protected]

Human rights and democracy are often understood to exist in some conflict with one

another. There are many ways in which this conflict can be articulated,1 but certainly one

pertains to the opposition between the universality associated with human rights norms and the

particular conditions associated with modes of popular self-determination. Human rights are

often assumed to connote norms that possess universal application and pertain to human beings

as such, irrespective of membership in a particular political, social, or ethic community.

Conversely, democracy involves modes of popular self-governance that are intertwined with

membership in a distinct and delimited political community.

In this paper I challenge this disjunctive understanding of the relationship of human

rights and democracy, focusing especially on their connection in a global context. I do so by

employing tools of dialectical analysis that derive from the work of Hegel, even if I make little

direct reference to Hegel himself. On the one hand, I argue that human rights depend for their

validity and specific meaning on processes of application and concretization that liminally entail

democratically conceived modes of collective self-interpretation and self-definition. Conversely,

1 For an overview see Christoph Menke and Arnd Pollman, Philosophie der Menschenrechte zur Einführung

(Hamburg: Junius Verlag, 2007), pp. 170-186.

mailto:[email protected]

Buchwalter, IPSA 2014, 2

I claim that popular forms of democratic self-interpretation give expression to robust accounts of

human rights transcending the particularism of a specific political community. Not only does

meaningful public deliberation presuppose a full account of individual rights (and duties); the

processes of collective interpretation central to deliberative self-definition entail relations with

other cultures and communities that serve to clarify and validate universal norms of right and

justice, which in turn are shaped via agreements fashioned and refashioned in the social and

historical interaction of the world’s peoples and cultures.

One consequence of this view is that it entails a decidedly historical and pragmatic notion

of universal norms of rights, one forged not through abstract appeal to metaphysically presumed

norms and principles but through processes of intercultural or intersocietal learning. Another

consequence is that permits an account of human rights norms that not only eschews an abstract

distinct between universal and particular or transnational and local, but does so in ways that

demonstrate the coimplication and mutual dependence of such poles. Yet another consequence

is that it clarifies the relationship between democratic self-governance and universal human

rights, where (a) cultivation of conditions for democracy proceeds isomorphically with the

formation both of a human rights community and the increasingly global validation of universal

principles of right and justice and (b) human rights themselves find realization in local and

transnational processes of democratic self-determination. I further contend that this mediated

view of the relationship of rights and democracy suggests a specific view of legal and political

institutions, one expressed in a differentiated, multi-level, transnational federalism associated

with the notion of global governance without global government.

The paper is divided into five parts. First I detail the dependency of a doctrine of human

rights on processes of democratic self-determination, focusing on the degree to which the very


assertion of rights depends on modes of interpretive application embodied in forms of

autonomous political agency. Second, I argue that this contextualizing process, far from

championing a normative relativism, not only entails a context-transcending receptivity to other

legal-political cultures and traditions but does so in a way that occasions a notion of intercultural

sociation resulting in an account of universal human rights generated and validated in the

recognitive interaction of the world’s peoples and cultures. Third, I further explicate the view

presented here by relating it to the account of the relationship of universal human rights,

democratic self-determination and normative context-transcendence espoused by Seyla

Benhabib, with whose notions of democratic iteration and jurisgenerative politics this paper

shares commonalities. Fourth, I explicate some implications of this view, focusing on the notion

of a human right regimes, the universality of a human rights doctrine, the concept of impartiality

in the moral-political judgment associated with that doctrine, and the conjunction of rights and

democracy under conditions of globality as regards both bounded and transnational communities.

Fifth and finally, I conclude with some brief remarks about the viability of an account of human

rights, democracy, and interculturality in the face of the seemingly unfavorable conditions

supplied by current forces of neo-liberal globalization, affording special emphasis to the notion

of global governance without global government.

I.

The notion that human rights have a transhistorical, transcultural status distinct from

reference to specific embodiment has a long and even distinguished pedigree. It is part of the

legacy of rational natural law, for which rights, to the extent they can be said to exist at all, do so

in a state of nature or as features of an essential human nature, separate from any specific social-

political instantiation. It flows as well from the liberal natural rights tradition, which construes


rights as entitlements individuals possess prior to social or political entanglements. It is a feature

of the post-1945 discourse on human rights, in which rights are championed precisely as a way

to challenge the forms of human abuse and degradation condoned and legitimized by particular

legal communities. It is justified further by the specifically moral dimension of the discourse on

human rights, with its emphasis on intrinsic human dignity and entitlements individuals are

deemed to possess simply in virtue of their status as human beings and as members of a common

humanity. Some even claim that the separate status of rights is attributable to distinctions

between academic disciplines, where law considers formal structures while political scientists

focus on empirical social realities.2

For various reasons, then, it has been long assumed that norms of human rights possess a

transhistorical and transcultural dimension juxtaposed to specifically embodied forms of social

and political life. In what follows it is not my intention to dispute this general understanding,

although of course there are now those who do so.3 I do claim, however, that it is also false to

assume that the doctrine of human rights, even a doctrine of universal human rights, is to be

construed only from this perspective. For one thing, this misunderstands the nature of rights

themselves. Although rights can be understood as moral principles that have standing

universally and irrespective of institutional embodiment, it is also the case that rights are legal

principles that are meant to be promulgated and enforced, and so depend upon and require

institutional concretization. Hegel famously defined right as the “existence of the free will”

(Dasein des freien Willens),4 and this captures a distinctive feature of rights—moral principles

2For a discussion of this point, see Carol C. Gould, Globalizing Democracy and Human Rights

(Cambridge: Cambridge University Press, 2004), 192. 3For a distinguished example, see Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford

University Press, 2009). 4G.W.F. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H.B. Nisbet (Cambridge:

Cambridge University Press, 1991), §29.


tied to institutional articulation. In the words of Seyla Benhabib: “Human rights protect the

moral claims of individuals in institutionalized form.”5

The point here, however, is not simply that rights depend for their validity and proper

articulation on legal institutionalization; such institutionalization is itself intertwined with

processes of cultural articulation, those that further attest to the embodied nature of a meaningful

concept of human rights. On this view legal norms depend for their acceptance and validity on

interpretive processes through which they acquire meaning and authority for a particular

community. The standing that a particular right has in a particular community is inextricably

tied to the manner in which it articulates the specific values, practices, and traditions of that

community. The specific meaning of the right of free speech in, say, the United States, Canada,

and Germany varies in line with different historical traditions and expectations in those

countries.

In his account of constitutional interpretation, American legal philosopher Ronald

Dworkin famously differentiates between concepts and conceptions, asserting that conceptions

represent the historical application and animating concretization of generally presumed

conceptual principles.6 This point is relevant here as well, for rights and other general normative

concepts acquire their specific relevance and authority for a particular legal community as those

concepts assume the form of particular political-cultural conceptions. Appreciation of this point

was clear even to the drafters of the 1948 Universal Declaration of Human Rights, a document

often criticized for the abstract nature of its claims to universality. If not explicitly, they

5Seyla Benhabib, “Democratic Sovereignty and International Law: the Contemporary Debate,” paper

presented at the Straus Institute for the Advanced Study of Law and Justice, November 28, 2011. 6Ronald Dworkin, Taking Rights Seriously (Cambridge MA: Harvard University Press, 1977). The

distinction between concepts and conceptions has been employed by Seyla Benhabib, Dignity in

Adversity: Human Rights in Troubled Times (Cambridge: Polity, 2011). Later in this paper I indicate how

the approach advanced in this paper differs from that of Benhabib.


acknowledge implicitly the degree to which articulation of basic rights is always confronted with

expectations for interpretive contextualization. “Nothing in this Declaration may be interpreted

as implying for any State, group or person any right to engage in any activity or to perform any

act aimed at the destruction of any of the rights and freedoms set forth herein.”7

To understand this application process properly, however, it is not enough simply to point

to the dependency of rights on their embodiment in a particular cultural tradition. Rather, this

process must be regarded as one in which agents affected by those rights can be said to

appropriate and endorse those rights, construing them as meaningful for themselves and their life

contexts. Only through such active appropriation are rights and other norms accepted as

authoritative for members of a cultural community. Following Habermas, we might say that the

concretization process depends on regarding agents not only as the grantees or addressees of

rights but their authors as well.8 Only through such authorial identification can individuals fully

and freely acknowledge the authority of rights as binding on themselves and their social

circumstances.

This point speaks directly to the connection of rights and democracy. To say that rights

depend on the autonomous agency of affected individuals is of course not to attend to individual

or private autonomy alone. Autonomy in that sense may be relevant for moral decision-making,

yet for matters of law and public life autonomy denotes something of more broadly public

significance. At issue is the autonomous agency of a polity in which individuals deliberatively

and in concert with one another define and redefine the meaning that rights hold for them as

members of a political community. The process of interpretative application in this case is

indeed one of collective self-determination. In Sources of the Self, Charles Taylor wrote: “to talk

7 http://www.un.org/en/documents/udhr/, accessed July 23, 2012.

8Jürgen Habermas, “On the Internal Relation of the Rule of Law and Democracy,” European Journal of

Philosophy 3, no. 1 (April 2005): 11-20.

http://www.un.org/en/documents/udhr/


of universal, natural or human rights, is to connect respect of human life and integrity with the

notion of autonomy. It is to conceive people as active cooperators in establishing and ensuring

the respect which is owed them.”9 Yet to link rights to the active cooperation of people in

establishing and ensuring respect is just another way of asserting that rights depend on the

political self-determination of those addressed by those rights. Thus against the view that

democracy and a doctrine of human rights may be at odds with one another, I want to argue here

that rights themselves depends for their validity and concrete meaning on processes of

democratic agency and decision-making. David Held has put the point well in detailing his

account of a “layered cosmopolitanism,” something to which in a general way I return in the last

section of this paper.

On the one hand, the position upholds certain basic egalitarian ideas—those which

emphasize equal worth, equal respect, equal consideration and so on and, on the other, it

acknowledges that the elucidation of their meaning cannot be pursued independently of

an ongoing dialogue in public life. Hence, there can be no adequate institutionalization

of equal rights and duties without a corresponding institutionalization of . . . forms of

public debate, democratic participation, and accountability.10

Of course, a certain circularity is attached to the position here presented. I have argued

that rights depend on democracy, and yet democratic decision-making, reliant as it is on inter

alia rights to speech and participation, itself depends on the presence of rights. Yet this not a

significant problem for the position I am advancing. Certainly, any community, including and

maybe especially a political community, will always rely on some received or presumed norms

of sociation, including those involved in clarifying the norms of sociation themselves. It is the

9Charles Taylor, Sources of Self (Cambridge: Cambridge University Press), 12.

10David Held, “Principles of Cosmopolitan Order,” in The Cosmopolitan Reader, ed. Garrett Brown and

David Held (London: Polity, 2010), 235.


case as well, though, that the specific meaning and validity those norms have for a particular

community are also clarified and determined in the deliberation and collective self-reflection of

members of that community. Legal theorist H.L.A. Hart defined a system of law as a social

order which both depends on certain “primary rules”—the received customs and traditions of a

particular community—and the “secondary rules” though a community explicitly clarifies what

those rules mean, how they can changed, and how they can be adjudicated. 11

In like manner, we

might say that as a general matter rights take a certain priority over democracy while also saying

that, as regards the specific meaning and validity of rights, that democracy takes a certain

priority of rights. There is a circularity here, but, as in the case of Hart, it a productive one

reflective of the relationship of rights and democracy itself.

The merit of the position sketched here can be noted by briefly comparing it to some

notable competing accounts. In his Law of Peoples, Rawls famously rejects any conceptual

connection between human rights and democracy. Rawls does affirm the universality of some

basic “urgent” rights, e.g., freedom from slavery, protection from genocide. Not included among

these, however, is a right to democracy, a state of affairs that distinguishes his position even

from the one codified in the 1948 Universal Declaration of Human Rights. Inclusion of a right to

democracy would be a problem for a conception of international law which, like Rawls’, seeks to

demonstrate tolerance for the world’s peoples and cultures, including those “decent hierarchical

societies” that do not guarantee a universal right to vote or other rights associated with political

equality.12

11

H.L.A. Hart, The Concept of Law 2nd

ed. (Oxford: Oxford University Press, 1994), 79-99. 12

John Rawls, The Law of People (Cambridge MA: Harvard University Press, 1999), 78-81.


This paper does not dispute commitment to principles of plurality and diversity, a

commitment that drive Rawls’ concerns for toleration.13

On the contrary, it fully affirms it. The

processes of legal interpretation empowering a particular of political self-definition are rooted

precisely in a recognition that rights are not abstractly and ahistorically valid, but must always be

fashioned in ways expressive of local social and cultural conditions. True, this interpretive

process depends on forms of democratic self-governance that on Rawls’ account are unavailable

in certain culture and societies. Yet it is not clear that Rawls’ own account is fully intelligible

without some commitment to processes of popular self-determination, a concept he himself

invokes in advancing the idea of a full Society of Peoples.14

Rawls seeks to accommodate the

integrity of diverse cultural traditions, and yet that integrity is arguably not properly affirmed

unless members of that culture are able to participate fully in the processes through which they

can clarify, validate, and endorse those traditions.15

The position sketched here thus challenges any hard and fast distinction between human

rights and democracy. But it is also avoids any overly hasty conjunction of the two concepts. A

version of this position is present, at least implicitly, in the work of Hannah Arendt, who

famously construes the concept of right as a right to have rights.16

To be sure, Arendt fashions

this right as a right to political membership and not a right to democracy per se. Yet inasmuch as

political membership, for her, is a republican conception that finds preeminent expression in

13

Law of Peoples, 59-62. 14

Law of Peoples, 61. 15

A similar point is made by Rainer Forst, who argues that any conflict that might arise in the common

good conception of justice that Rawls assigns to a decent consultation hierarchy would necessitate the

type of right to equal participation he excludes. See his “The Justification of Human Rights and the Basic

Right to Justification: a Reflexive Approach,” in Philosophical Dimensions of Human Rights: Some

Contemporary Views, ed. Claudio Corradetti (Dordrecht NL: Springer Verlag, 2012): 94-96 and generally

81-206. In this essay he advances similar criticism of the related position advanced by Joshua Cohen, “Is

there a Human Right to Democracy?” in The Egalitarian Conscience. Essays in Honour of G.A. Cohen,

ed. C. Christine Sypnowich (Oxford: Oxford University Press, 2006), 226-248. 16

Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973), 296f.


agents acting in concert to shape and define themselves, their relationships, and the public sphere

itself, it does approximate something like a right to democratic self-rule. At the same time, by

linking so closely the idea of rights with that of self-rule, Arendt misses the advantage of a more

dialectical approach. On that approach, we can account for the conjunction of human rights and

democracy even while eschewing any direct identification of rights with political agency. In

this way, we allow, as I think one must, a central place for “negative” liberty rights as well as

“positive” welfare rights—rights that of course do not figure prominently in Arendt’s thought—

and still claim, given the requirements for legal-political interpretation detailed above, that such

rights depend for their validity and concrete meaning on processes of democratic will-formation.

In this sense one might say that the account offered here is more capacious, as it allows for a

connection between human rights and democracy not because but precisely in spite of any

conceptual link between the two.

II.

Against the view that universal human rights and democratic self-government stand in

some opposition, I have argued instead for a type of dialectical mediation, one in which rights

depend for their validity and concrete meaning on processes of contextualization, which in turn

find their most complete expression in forms of democratic self-determination. An apparent

problem with this view, however, is that it may seem to undermine the idea of human rights

itself. As norms pertaining to humanity in general, human rights are assumed to possess

universal status and extension. Yet a view that says that rights have meaning only when

embodied in particular contexts suggests that in real terms rights have no such universal standing

at all but are simply the expression of local circumstances. In this way, rights are deprived not

only of their presumed universality but also their capacity, central to the human rights discourse,


to serve as standards by which to condemn and criticize unjust or abusive practices in particular

settings. Hence, the position outlined so far may seem to promote the relativism that a theory of

universal human rights is meant to contest.

There are many ways in which to respond to this challenge. One could, for instance,

follow American political theorist Amy Gutman, who claims that current state-centric forms of

democratic self-determination provide citizens with otherwise unavailable military, economic

and diplomatic resources to be defend general human rights claims in a world where robust

forms of transnational governance are weak.17

One might follow Will Kymlicka, who asserts

that national self-determination, especially of the sort respectful of individual liberties, it itself a

universal right of all nations.18

One might follow Thomas Pogge, who holds that, in a globally

interconnected world, democratic self-governance is not possible without forging ties with other

communities, which itself entails affirming social relations governed by rights-based norms of

interaction.19

One might also follow Carol Gould, who both challenges a notion of locality that

does not incorporate more than merely “local” considerations and asserts that local self-

determination itself is not fully intelligible without appeal to broader notions of human rights.20

There is much to be said for these various arguments. In what follows, though, I

approach the matter from a somewhat different perspective. In particular, I claim that

accommodation of human rights is entailed by the very process of interpretive appropriation

occasioned by the requirements for contextualization associated with a doctrine of human rights.

The particular point of this argument hinges on the recognition that processes of interpretative

17

“Democratic Citizenship,” in For Love of Country, ed. Josh Cohen (Boston: Beacon Press), 71. 18

Politics in the Vernacular (Oxford: Oxford University Press, 2001). 19

See Kok-Chor Tan, “Nationalism and Cosmopolitanism,” in The Cosmopolitan Reader, 186. 20

Carol C. Gould, “Negotiating the Global and the Local: Situating Transnational Democracy and Human

Rights,” in Democracy in a Global World: Human Rights and Political Participation in the 21st Century,

ed. Deen K. Chatterjee (Lanham MD: Rowman & Littlefield Publishers, 2008), 71-87.


appropriation are also matters of cultural self-interpretation and self-definition. 21

Appreciation of

this point is important from the perspective for a mode of analysis, for which individual self-

understanding is also an intersubjective process depending ideally on achieved relations of

recognition with others. On this account, then, the very process of cultural self-interpretation

contains a context-transcending dimension. On an intersubjective view of the relationship of self

and other, one community can properly engage in processes of self-understanding only to the

degree that it integrates into its own self-understanding the perspectives of others, including the

latter’s perspective on it. For the issue at hand, then, the process by which one culture defines

the meaning of rights in ways relevant to its own traditions at least in principle depends on its

incorporating into that self-understanding the perspectives of other legal traditions and practices

as well. It is thus true that processes of legal hermeneutics require restatement of general norms

in terms of the traditions and practices specific to a particular political community. Yet, far from

entailing a type of relativistic enclavism, this very process has a transcendent dimension, one

reflected both in an openness to other legal-political traditions and a willingness to incorporate

into one’s own self-understanding those of the other. Nor should it be assumed that this

integration of external perspectives undermines local autonomy. Rather, such integration, in

engaging new and different approaches to rights norms, can provide opportunities for new and

expanded modes for democratic empowerment and self-determination. In this sense as well,

21

To forestall misunderstanding, let me note that the appeal to the idea of selfhood in designating a collective is not

meant to suggest that collective are identities in the sense of individual persons, nor is to suggest that such

collectives can be comprehended in terms of the more homogeneous features of an ethnic notion of identity. Such

features may be elements of the notion of peoples espoused by Rawls, yet the concept of “selfhood” employed here

is better understood though a Hegelian inspired model of self-determination, one both constituted through practical

activity and established only through engaging difference and diversity. In this respect the position I advance has

affinities to the recognitively construed notion of collective self-determination employed by Eva Erman in her

account of the politics of international recognition. On the other hand, I dispute her contention that a notion of

collective self-determination must necessarily be demarcated from those of “subjectivity” and “collective identity.”

See Eva Erman, “The Recognitive Practices of Declaring and Constituting Statehood,” International Theory 5, 1

(March 2013): 129-149. I have discussed the viability of a notion of collective identity with a little more detail in

“Honneth, Hegel, and Global Justice,” in Tony Burns and Simon Thompson (eds.), Global Justice and the Politics

of Recognition (Houndmills, Basingstoke,Hampshire: Palgrave MacMillan, 2013), 23-47.


then, there is a more than a merely contingent connection between contextually specific modes

of democratic self-determination and a context-transcending endorsement of principles of right

and justice.

To be sure, such practices of openness are not in great evidence in current American

jurisprudence. But they are increasingly evident in the legal practice and judicial self-

understanding of other countries and states, and notably the European Union. There, not only are

rights claims of citizens in one country increasingly advanced through appeal to supra-national

legal entities, like the European Court of Justice; the legal self-understanding and even the public

culture of individual states are increasingly reshaped through integration of perspectives

resulting from transnational juridical exchange. Global legal developments reveal a “dialectical”

process, one characterized—to use terms employed by Saskia Sassen—by an “endogenizing of

the non-national . . . inside the national,” something that in turn has a “denationalizing” effect on

the legal-political self-understanding of national communities themselves.22

This view has affinities with the above mentioned position of Thomas Pogge, who asserts

that democratic self-governance in an increasingly interconnected world entails a robust account

of universal human rights. Yet there is at least one difference. On his view, democratic self-

determination engages a preexisting and already accepted account of human rights. Especially

under circumstances of increasing global interconnectivity, democratic self-government requires

forging relations with other states and political entities, something that in turn requires

acknowledging and accepting the norms regulating such interaction. The view sketched here,

however, is more emphatically historical. While appeal to a set of already present and

commonly existing shared norms is a part of any social interaction at the global level, the more

22

Saskia Sassen, “Response,” European Journal of Political Theory 6, no. 4 (2007): 436. See also her

“Neither Global nor National: Novel Assemblages of Territory, Authority, and Rights,” Ethics & Global

Politics 1, no. 1-2 (2008): 61-79.


central focus on the present account remains on the legal self-understanding of individual

cultures. It is such understandings that are integrated in processes of mutual recognition. Yet

appreciation of such historicity is no impediment to an emphatic account of universal human

rights. Instead, it simply clarifies its features. On this view, a doctrine of human rights does not

denote a set of norms presumed to possess, in the tradition of rational natural law, some

transcendent status, preexisting cultural and political embodiment. Instead, a doctrine of human

rights is generated and validated in the intersociation and interchange of peoples and persons as

they define and redefine their relations with one another in history. It is one, in particular, tied to

a normative convergence process animated by the activity of peoples and persons (re)adjusting

their legal conceptions and self-conceptions as they forge and maintain relations with other

peoples and persons. In this respect, human rights represent a decidedly intercultural

phenomenon, not the metaphysical one commonly associated with the natural law tradition and

some of its current proponents.23

Following Charles Taylor, we might speak of a doctrine of

human rights as the product and ongoing creation of an overlapping consensus, one achieved,

however, not through theoretical reflection—as in the case of Rawls’ original formulation of this

concept—but in the real interaction of peoples and persons throughout history.24

In this sense we

might more appropriately speak, with Martha Nussbaum, of a “political overlapping

consensus,”25

yet one that is genuinely political and not simply the historical realization of

purportedly essential human capacities presumed to possess universal standing.26

23

See, for instance, James Griffin, who affirms the continuing value of the Enlightenment notion of rights

that “we have simply in virtue of being human.” See his On Human Rights (Oxford: Oxford University

Press, 2008), 13. 24

Charles Taylor, “Conditions of an Unforced Consensus on Human Rights,” in The Politics of Human

Rights, ed. Obrad Savić and Beogradski Krug (London: Verso, 1999), 101-119. 25

Martha Nussbaum, “Capabilities and Human Rights,” Fordham Law Review 66, no, 2:113-147. Cited in

Seyla Benhabib,”Is There a Human Right to Democracy?,” in Corradetti, 200. 26

Here I follow Benhabib, “Is There a Human Right to Democracy?”: 200-204.


To be sure, the language of “consensus” should not mislead. Certainly there is no talk of

a final consensus or even the “fusion of horizons” thematized in hermeneutic theory. Likewise,

Taylor’s talk of an “unforced” consensus on human rights is also not altogether useful in this

context. Any process of historical exchange on rights will always be a matter as much of

confrontation as cooperation, disagreement as agreement. Yet appreciation of the reality of

conflict is not incompatible with development of an increasingly global convergence on rules

and norms of sociation. Indeed, such conflict can even facilitate it. It might be said that any

consensus on human rights is itself the response to experiences of misrecognition and the other

failed processes of human interaction that accompany and perhaps even drive human history.

Referencing Axel Honneth, Jürgen Habermas presents a doctrine of human rights as emerging

“from violent and sometimes even revolutionary struggle for recognition.”27

In the present

context we might invoke this point to suggest war, conflict, strife and other forms of struggle are

to be understood as part of an intercultural learning process, one in which principles of right are

forged in response to historical forms of injustice (Unrecht) and to the modes of misrecognition

with which such injustice is often associated.28

One can thus construe a doctrine of human rights

as the product of a historically generated overlapping consensus, yet one for which consensus not

only does not preclude dissensus but even presupposes it.

III.

The argument I have been advancing in this paper can be further clarified by contrasting

it to a position with which generally it has much in common--that advanced by Seyla Benhabib

27

Habermas, “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” Coarradetti,

73. 28

See Heiner Bielefeldt, “Menschenrechte als interkulturelle Lerngeschichte,” in Philosophie, wozu? ed.

Hans Jörg Sandkühler (Frankfurt: Suhrkamp, 2008), 289-300.


in her book Another Cosmopolitanism,29

which contains her 2004 Tanner Lectures. Attention to

Benhabib’s position is instructive for at least the three following reasons: she also addresses of

the relation of rights and democracy in a global setting, she claims that rights must be

interpretively contextualized through democratic deliberation (she calls this “democratic

iteration”), and she asserts that the nature and meaning of rights claims thus shaped are fashioned

in “bottom-up” modes of political activity she terms “jurisgenerative politics.” Yet there are

important differences in the two positions. These differences focus, among other things, on the

question of the extent to which democratic iteration and jurisgenerative politics can be said to

possess a context-transcending dimension.

In the case of the position I sketch, this context transcending dimension may be

characterized as a form of immanent transcendence. Proceeding from an intersubjective model

of self-identity, I suggest that the very process of collective self-interpretation central to a

particular appropriation of rights norms itself normatively entails an openness to engage and

integrate into one’s own legal-political self-understanding the self-understanding of other

peoples and persons. In this way the process of democratic iteration represents a type of two-

way street. Not only are general principles of right appropriated in ways relevant to the

circumstances of a particular political community; that appropriation is also one which triggers

interactions with other communities, in this way not only engendering richer and more expansive

local understanding of rights but contributing to processes of intercultural dialogue that can

foster a richer, more expansive, and more genuinely global account of universal human rights.

We might say that on this reading jurisgenerative politics is emphatically jurisgenerative,

contributing to the generation and regeneration of the doctrine of universal human rights itself.

29

Seyla Benhabib, Another Cosmopolitanism (Oxford: Oxford University Press, 2006).


For Benhabib, however, context-transcendence has a different dimension. It is not one

immanent to the actual process of democratic iteration itself, but instead is stipulated through an

account of the nature of rights themselves, one whose very assertion details, alternatively,

context immanent and context transcending dimensions. On this view rights reference on the

one hand perspectives we adopt that result from obligations associated with membership in

bounded communities and on the other hand the moral perspective we must adopt as human

beings simpliciter.30

On this view rights do indeed articulate a “mediation,”31

as Benhabib puts

it, between universal and particular or as she calls it the moral and the political. Yet in terms of

democratic iteration the mediation is largely external or contingent, not constitutive or, we might

say, truly jurisgenerative. Here iteration takes the form of the particular application or

appropriation of norms whose general nature and validity remain presumed. Iterative

appropriation is not itself a process that contributes to the articulation or rearticulation of the

general discourse on universal human rights itself.

This is not to say, as has Benhabib critics Bonnie Honig, the logic of democratic iteration

is one of subsumption, where local practices are simply subordinated to a logic of universal

norms.32

At issue is not the mere subordination of the political to the moral. Against Honig,

Benhabib asserts that the process by which received norms are appropriated especially by new

political actors is one which can “open new worlds and create new meanings.”33

This is an

important and compelling feature of the practice of democratic iteration. Still, it is not clear how

this addresses the issue of a mediation of moral and the political perspectives, those we possess

as members of a political community and those we may possess in virtue of our humanity. As

30

Another Cosmopolitanism, 18-9. 31

Another Cosmopolitanism, 158. 32

Bonnie Honig, “Another Cosmopolitanism? Law and Politics in the New Europe,” in Another Cosmopolitanism,

102-127. 33

Another Cosmopolitanism, 159.


Benhabib herself asserts, the new worlds that are opened and the new meanings that are created

are those pertaining to membership in a particular political community. It is not clear how these

help with the general discourse on human rights, which pertains to norms that, as she herself puts

it, are “cross-border in scope.”34

Honig is thus incorrect to assert that Benhabib’s account of

iteration reflects a logic of subsumption; she does not seem to be incorrect, however, in

characterizing Benhabib’s iterative practices as those that entail changes only “in the subject’s

relation to universalistic categories, not the categories themselves.”35

Consider Benhabib’s own example. Focusing on “l’affaire du foulard,” she notes how

the exclusion in France of scarf-wearing Muslim girls triggered a significant reassessment of

rights to freedom of religion as well as general issue of the relationship of church and state. This

represents a good example of the revisioning of rights achieved through democratic iteration and

jurisgenerative politics. At the same time, it is telling that this process of reassessment and

rearticulation of rights is one that for Benhabib occurs within the confines of French public

sphere. She does not present as one that leads to a context-transcending, “transnational”

reassessment or revaluation either of gender rights or norms of human rights generally.36

For her part, Benhabib would likely dismiss an in effort to account of universal rights to

via historical processes of intercultural learning as a conflation of conditions of facticity and

validity. This is how she criticizes the neo-Wittgensteinian Jeremy Waldron, who presents

human rights norms as emerging from everyday practices of human interaction. 37

And it is true

that Waldron presents too rosy a picture of the role played by trade and commerce in the

emergence of a doctrine of universal human rights, just as he minimizes the countervailing role

34

Another Cosmopolitanism, 149. 35

Honig, “Another Cosmopolitanism?” 111. 36

Another Cosmopolitanism, 51-61. 37

Another Cosmopolitanism, 154f.


played by conflict, crises, and catastrophes. Yet if one should not conflate the conditions of

facticity and validity, politics and morality, one should not artificially separate the two, either.

Instead, they should be regarded as mutually implicative and co-conditioning. Thus certainly

interactions and struggles of peoples and persons involved in intercultural learning process

should be answerable to certain basic norms governing their modes of sociation. Yet for those

norms to take the form of a binding and globally authoritative doctrine of human rights, they

should also be construed as the product historical processes by which the world persons and

peoples interactively, reflexively, and often in the face of great tragedy, clarify, establish,

endorse, and accept the conditions governing of their sociation. This, I submit, is the view that

best accords with an account of human rights attentive to the requirement of democratic iteration

and sustained by modes of jurisgenerative politics. It is also one that helps clarify the idea of an

intercultural theory of universal human rights.

IV.

Several implications flow from the account of the relationship of human rights,

democracy, and interculturalism I have advanced so far in this paper. For one thing, it clarifies

the nature of a global “human rights regime.” On this view such a regime is not simply a set of

agreements and covenants, nor is it even a “consensus” on those agreements. A global human

rights regime on this account is characterized instead by the ongoing and never-ending effort on

the part of members of the world community to articulate and rearticulate the rules, norms, and

values that govern their sociation. Rooted in recognitive processes where general norms are

refashioned to express local practices, just as these practices are modified to express wider

principles,38

a human rights regime subsists in the ongoing process of diverse and differentially

situated persons and peoples defining and redefining the conditions of their commonality. In this

38

See Hegel, PR §339.


sense, we might follow Richard Rorty in speaking of a global “human rights culture,” one

characterized, however, just by the activity of world’s persons and peoples clarifying the

meaning and nature of rights themselves.39

A second consideration bears on the nature of the universality associated with a doctrine

of universal human rights. On the view presented here, human rights are universal not in the

sense that they express some essential feature of human nature. Instead, universality denotes the

historical process of the world’s persons and people, in the face of continuing contestation,

gradually coming to some agreement, revisable though it may be, on the shared norms and

principles of their sociation. As Benhabib writes, universality consists “in experiences of

establishing commonality across diversity, conflict, divide, and struggle.”40

In this sense the

adoption of the various human rights documents over the past 60 years, not just the 1948

Universal Declaration of Human Rights itself but the two 1976 Covenants as well, give voice to

a notion of universality defined through the legal and political process a global community

clarifying the conditions of its sociation. Earlier Kant, in Perpetual Peace, invoked an

intersocietal learning process of this sort to characterize the emerging acceptance of the notion

that “the violation of right in one part of the world is felt in all.”

At a more abstract level a similar point can be made as regards the idea of impartial

reasoning, certainly an element in any clarification and validation of an account of universal

human rights. In this context, impartial reasoning specifies rules and principle that can be

universally shared and in ways that deny special standing to any particular individual, group, or

country. In the words of American ethicist Thomas Hill, impartiality is the claim that “principles

must be defensible to anyone looking at the matter apart from his or her special attachments,

39

See Hauke Brunkhorst, “Dialectical Snares: Human Rights and Democracy in the World Society,” in

Coradetti, 221. 40

“Is There a Human Right to Democracy?” Corradetti, 198.


from a larger human perspective.” Thomas Scanlon has argued similarly, asserting that we

should ask of any rule or principle whether or not it could be reasonably rejected by someone

motivated by “the desire to find principles which others similarly motivated could not reasonably

reject.”41

Yet impartial reasoning, certainly in the moral-political context, is not just a theoretical

exercise. As David Held has emphasized, invoking Hannah Arendt, it is a “social activity” as

well. Here such reasoning is directed to “an anticipated agreement with all those whose diverse

circumstances affect the realization of a people’s equal interest in self-determination and

autonomy.”42

From this perspective as well, then, specification and validation of universally

applicable principles of human rights is tied, however hypothetically, to intersubjective

conditions for establishing actual agreements on those principles by all subject to them.

But the preceding considerations also shed important light on the relationship of

democracy and human rights. One issue is the idea of global democracy itself. This is a topic

much discussed in recent years, and I can’t begin to do it justice here. Instead, let me note, rather

schematically, just a couple of points. First, the process of intersocial exchange described here,

inasmuch as it does serve to further entrench human rights world-wide, variously facilitates

opportunities for more and more individuals to participate in decision-making processes

concerning actions and policies that affect them.43

Second, an interculturally construed

understanding of the notion of human rights, forged as it is in the ongoing dialectic of universal

and particular/self and other, facilitates the mediation of individual and community required of

genuinely collective and, indeed, genuinely global processes of political self-determination.

41

The definitions by Hill and Scanlon are taken from Brian Barry, “International Society from a

Cosmopolitan Perspective,” in Brown and Held, 101-f. 42

Held, “Principles of Cosmopolitan Order,” 239. 43

Lorella Cedroni has emphasized the centrality of a ramified account of human rights for what she calls

“democracy-building processes.” See “Rights in Progress. The Politics of Rights and Democracy-

Building Processes in Comparative Perspective,” in Corradetti, 253-263.


Third, and perhaps most significantly in this context, the process of intercultural learning

described here also demonstrates the degree to which respective attention to rights and

democracy can be mutually enforcing and mutually enhancing. On the one hand, a global human

rights community, devoted as it is to reflection by its members on the conditions of their

sociation, itself engages in and gives expression to process of self-determination. On the other

hand, such processes of self-determination, precisely because they are devoted to fostering the

conditions for its members’ sociation and shared existence, contribute to the further clarification,

validation, and realization of human rights world-wide. Especially in this regard particularly

human rights and democracy are co-conditioning and mutually implicative.

Yet we can account for the relationship between rights and democracy under global

conditions even without appealing to a notion of cosmopolitan governance. Such a relationship

is already discernible in the transnational interactions of diverse persons and people world-wide.

As we have seen, forms of democratic self-definition, given an intersubjective understanding of

self-identity, depend on forging relations of recognition with other persons and peoples. Yet

such modes of recognition themselves depends on relations of respect and reciprocity, those that

both presuppose and affirm acceptance of basic rights and duties. A concept of democratic self-

determination thus affirms a transnational conception of rights. Conversely, rights themselves

depend on modes of popular self-determination. As suggested, rights-claims express relations of

reciprocity and mutual recognition. Yet reciprocal recognition both depends upon and fosters the

autonomous agency of the individual parties involved. At the political level such autonomous

agency is expressed in processes of democratic self-determination. In this sense, then,

realization of the idea of human rights depends on cultivating possibilities for democratic well-


formation. Here, too, an intercultural understanding of the generation and validation of universal

norms affirms the co-primordiality and mutual dependence of rights and democracy.44

V.

This paper has sought to promote a notion of interculturalism that contributes to the

further realization of both human rights and democracy under conditions of globality. Yet the

proposition that globalization generally can contribute to further realizing democracy and human

rights is not especially plausible today. Indeed, much evidence suggests just the opposite. At

least in the current constellation, globalization is largely defined by neo-liberal market

mechanisms that enunciate a truncated notion of human rights and empower multinational

entities increasingly immune from traditional democratic oversight and accountability.

Similarly, the international organizations that supposedly regulate global commerce (e.g., the

IMF, WTO, and European Central Bank) are themselves largely committed both to a neo-liberal

orthodoxy and to decision-making procedures significantly shielded from public scrutiny and

agenda-setting. Far from empowering rights and democracy world-wide, global trends today

suggest a growing gap between “decision-makers and decision-takers,”45

one that makes talk of

realizing rights and democracy globally an increasingly dubious and even delusionary

aspiration.46

At the same time, however, it is possible—and here I employ another classically

Hegelian motif—that the very problem may contain seeds for its resolution. One feature of

44

On this point see “Hegel, Global Justice, and the Logic of Recognition,” Chapter 11 of my book

Dialectics, Politics, and the Contemporary Value of Hegel’s Practical Philosophy (New York & London:

Routledge, 2011), 214-35. 45

See David Held, “Democracy, the Nation-State, and the Global System,” in Models of Democracy, 3rd

ed. (Cambridge: Polity, 2006), 290-311. 46

For a critique of this view, see Charles R. Beitz, “Global Political Justice and the ‘Democratic Deficit,’”

in Reasons and Recognition: Essays on the Philosophy of T.M. Scanlon, ed. R. Jay Wallace, Rahul

Kumar, and Samuel Freeman (Oxford: Oxford University Press, 2011).


contemporary capitalism is indeed the emergence of transnational and multinational corporations

that increasingly undermine the authority of traditional state-centric forms of political power.

Yet this very undermining process may itself create new opportunities for democratic

organization, human rights, and their relationship. Thus, by way of conclusion, let me make

three quick points. All bear on how the phenomenon of global governance without global

government can assist in reconciling human rights and democracy under conditions of globality.

The first regards democracy. With the decline in power of sovereign states, one can no

longer presume a preexisting site for democratic deliberation and decision-making. Instead, the

site for such action may now be seen as the type of “empty place” that Ernesto Laclau and

Chantal Mouffe claimed are features of modes of governance no longer embodied in the

personage of a sovereign subject.47

Yet far from a limitation, this may actually be a positive

feature of current constellations. No longer able to rely on preexisting political structures, a

transnational citizenry is now more compelled to forge those relations and affiliations

themselves.48

Included here are inter alia cross-border coalitions of governmental and semi-

governmental institutions, networks of non-governmental organizations and associations, non-

territorial movements and interests groups, and transnational citizens’ initiatives. Current modes

of capitalism and neo-liberal globalization may call into question the conditions for democracy

on a global scale, but it also created the conditions for arguably more comprehensive and robust

forms of democratic engagement, those where the modes and conditions of democratic

engagement themselves increasingly become objects of democratic engagement.

47

Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Toward a Radical Democratic

Politics, trans. Winston Moore and Paul Cammack (London: Verso, 1985). 48

See James Bohman, “Toward a Critical Theory of Globalization: Democratic Practice and

Multiperspectival Theory,” Globalizing Critical Theory (Lanham MD: Rowman and Littlefield, 2004),

48-71.


A similar point can also be made regarding the idea of human rights. Thus, the

diminution in the power of centralized state structure can have the effect of empowering a

broader global public sphere invested with the responsibility both to call attention to human

rights abuses and to provide fresh perspectives in advancing the cause of human rights. In this

respect scholars have noted the role played by informal networks of observers in assisting the EU

Fundamental Rights Agency in conjunction with the 2000 protests in reaction to inclusion of the

allegedly xenophobic Freedom Party in the Austrian government.49

In a different vein, others

call attention to how Non-Governmental Organizations (NGOs) serve to broaden an

understanding of human rights to include women’s rights.50

Both are examples how the goal of

protecting and fostering human rights can actually be aided by networks of civil society actors

who emerge in response to the vacuum potentially resulting from the loss of traditional modes of

state-centric power.

Finally, the emergence of a global public sphere can itself throw new light on the

dialectical relationship of human rights and democracy itself under current conditions.51

As just

suggested, one function of a global public sphere in a postnational order is increasingly to

monitor, protect, and even enforce human rights. Yet such a global public sphere itself depends

on processes by which all those affected, however exactly this principle is to be understood,

might have some say in public decision-making. In this regard, fostering human rights depends

on democratic participation. Yet such participation itself entails a complex relation to human

49

See Joshua Cohen and Charles F. Sabel, “Global Democracy?” International Law and Politics 37/2005:

763-97. 50

Margaret Moore, “Globalization and Democratization: Institutional Design for Global Institutions,” Journal of

Social Philosophy 37/1 (Spring 2006): 32. 51

For one account of the positive potential of a global publis sphere, see Nigel Dower, “Situating Global

Citizenship,” in Randall D. Germain & Michael Kenny (eds.), The Idea of Global Civil Society: Politics and Ethics

in a Globalizing Era. Routledge (2005). For one more sensitive to its aporias, see Nancy Fraser “Transnationalizing

the Public Sphere,” Theory, Culture and Society, 24 (2007): 7-30.


rights. On the one hand, participation depends on a rich account of human rights—e.g., not only

civil rights of speech and political rights of participation but presumably some manner of social-

economic rights as well. On the other hand, and especially relevant for the arguments advanced

in this paper, participation serves to articulates and validate an account of universal human

rights. One of the features of a global public sphere is precisely that provides a forum in which

its members attend to the conditions of their sociation, above all the rights and duties pertaining

to membership in the global public sphere itself. At the global level, however, such attention

assumes a decidedly universal dimension, where “universality” is understood in line with the

account of global interculturality presented—in the interactive experiences of peoples and

persons establishing commonality across diversity. It is with regard to this socio-historical

account of universality that a global public sphere can be said to play a distinctive role in

detailing how democracy and universal human rights may be conjoined under conditions of

globality. And at the risk of pollyannaism, we might say that this conjunction is conceivable not

only in spite but perhaps even because of the forces of neo-liberal globalization that appear to be

marshalled against it.

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