Abstract

According to J�rgen Habermas, the principle of popular sovereignty is about to be transformed into a law for the citizens of the world. Partly this is due to the non-institutionalized form of human rights politics, which has lead to the creation of political institutions above the nation state. Partly it is due to globalisation that challenges the autonomy and sovereignty of the nation-state. Politico-judicial bodies on the supra-national level are required in order to catch up with economic globalisation and to secure impartial law enforcement in case human rights violations. Consistent with the discourse theoretical reconstruction of international relations there is a tension between international law�s recognition of sovereign states and the regulative idea of equal rights for all, which is reflected in an actual opposition between democracy and law, and between foreign and domestic policy. The autonomy of the state is being undermined by international human rights politics, due to the taming of the will power of the nation state. Hence there is a cosmopolitan law in the making.

 

Introduction

In the previous chapters we have addressed the main aspects of Habermas�s social and political theory as it has developed since 1981 with the publication of the German edition of The Theory of Communicative Action. [1] In the aftermath of the original publication of Between Facts and Norms (1992) Habermas has commented upon international political events and written on a world domestic policy (�Weltinnenpolitik�) in such a way that we see the contours of a discourse-theoretical conception of the cosmopolitan order. In this chapter we will outline the basic structure of this order while drawing on categories established in the preceding chapters, in particular chapters 6 and 7. It should be pointed out from the outset that Habermas�s contribution is multi-facetted, has many targets and that there are tensions between different parts of it. In working out this outline we have drawn upon our own application of discourse theory to international relations. [2] We hope the outline may help readjust the impression from his Theory of Communicative Action, namely that this work, as Habermas himself acknowledges, conveyed the impression that the nation state was the model for society in general (Habermas 2000b).

 

The democratic Rechtsstaat exhibits universalistic traits, and the discourse theory of law and politics postulates co-originality between constitution and democracy, between human rights and popular sovereignty. Without a fundamental legal protection of rights, no valid democratic decisions can be made. And without democratic procedures there is no guarantee that human rights will be upheld. The co-originality of rule of law and democracy appears in Habermas�s conception of order in modern, complex and pluralist societies. He maintains that the political order of modern societies are not necessarily founded on comprehensive agreements based on shared values but rather on the rights-based, democratic procedures the observance of which commands respect.

 

But so far the principle of popular sovereignty has only been made applicable to the rule of particular societies; as yet it is at this level that democracy is institutionalized. Democracy is in other words limited to the nation-state, as �a national community of fate� that governs itself autonomously, and which is primarily geared towards self-maintenance. Hence the propensity of conflict between sovereign states: observing the borders and upholding state autonomy have priority over global concerns. Even though there are trends towards a post-Hobbesian world order, i.e., the domestication of the anarchical international order, further democratization is needed for this order to achieve functional stability and normative legitimacy.�

 

Human rights on their part are universal and refer to humanity as such. There is a tension between international law�s recognition of sovereign states and the regulative idea of equal rights for all, which is reflected in an actual opposition between democracy and law, and between foreign and domestic policy. However, one may say that the autonomy of the state is being undermined by international human rights politics, due to the taming of the willpower of the nation state, and that the principle of popular sovereignty is about to be transformed into a law for the citizens of the world.

 

In this chapter we will address the contribution of discourse theory to international relations. First we will do so in relation to human rights politics, then in relation to globalisation or denationalisation. Currently, there are global structures of finance, production, trade and communication that evaporate the boundaries of the nation state. Citizens� interests are affected in ways and by bodies difficult to hold responsible via the ballot box. The sovereign state is being challenged by a vast array of international institutions, organisations and regimes. Globalisation creates growing interdependence and escalation of risks that require transnational and supranational co-operation and new forms of governance. To catch up with globalisation and human rights violations a cosmopolitan law of the people as well as a world domestic policy are, according to Habermas, needed. What are the prospects for institutionalising democracy beyond the nation state?

 

In section two we start with the tension between democracy and rights which points to a cosmopolitan order for its solution. Only in such an order can the rights of human beings be reconciled with the principle of democracy. Even though the parameters of power politics have changed due to the growth of international law, human rights enforcement is still arbitrary. Human rights which are supra-positive, claim universal validity, as we saw in chapter 7, but how can they be defended? The normative dimension of human rights, or the rights to have rights, should be clarified. In the third section we address the need for cosmopolitan democracy in order to protect human rights and prevent war, and we outline Habermas� position as one between proponents of a world state and Kant�s plea for a mere confederation at the world level. According to Habermas, the shared values of a global order are too thin to generate obligations necessary for state-like integration. Rights have to be rooted in practical, socio-cultural contexts. However, allegiance is not merely given with historical descent but can be fostered through democratic procedures. The positive functions of the nation-state have to be protected, but a distinction between cultural and political integration should be made. In section four the deliberative perspective is applied to new forms of transnational governance and the reconfiguration of political power we are witnessing in Europe. Habermas vacillates between stressing the function of the law to supranational integration and that of the epistemic value of transnational network governance in reconstructing the post-national constellation. Law needs to be laid down authoritatively and made equally binding on every part for integration to come about. We apply this perspective to the European Union which Habermas holds to be the prime example of a world domestic policy able to control for the negative consequences of globalisation. This is the theme of section five in which we analyse the potential for post-national democracy and also the need for a European constitution. The last section holds the conclusion and some synthesising remarks.

 

Domesticating International Relations

The state is a war-making system; it has the monopoly of violence (Weber 1922) and collectivises the right to kill, to speak with Carl Schmitt (1996:32 f.). Moreover there is no binding law above the nation state as laid down in the Westphalian order: nation states are sovereign with fixed territorial boundaries and entitled to conduct their internal and external affairs autonomously. What is at stake in the current process of legalisation of international relations is the sovereignty of the modern state. In a post-Westphalian constellation there is law above the state to sanction the use of violence by the states.

 

The Tension between Human Rights and Popular Sovereignty

From the very beginning there was a basic normative dualism in the constitution of modern societies:

 

[Yet] international law (jus gentium), since its origins at the beginning of modern times, has been characterised by a dualism of its normative focus: on the one hand, the concern for human rights, which was first grounded theologically and metaphysically on natural right; and on the other hand, especially since the end of the Thirty Years� War in 1648; the principle of inviolability of the sovereignty of the particular states, which was primarily oriented towards the preservation of peace. (Apel 2001:32).

 

In the Westphalian order prohibition of violence against sovereign states is prioritized over the protection of human rights, thus this order safeguards the rulers� external sovereignty. Interstate relations are generally conceived of as being in a state of anarchy. international order is founded on the principles of co-existence and non-interference among sovereign states. [3] The latter principle, however, cannot prohibit genocide and cannot be sustained.

 

The principle of state sovereignty which international law after the Treaty of Westphalia 1648 warranted, is a principle that has protected the most odious regimes � and it should be recalled that it was only when Nazi-Germany attacked Poland that World War II broke out, not when the persecution of Jews started. This demonstrates the limitations of nationally founded and confined democracy that autonomously governs itself. [4] � While human rights are universal and appeal to humanity as such, democracy refers to a particular community of consociates who come together to make binding collective decisions. The validity of the laws is derived from the decision-making processes of a sovereign community. The propensity to adopt rights, then, depends on the quality of the political process in a particular community. ����

 

When peoples� basic rights are violated, and especially when murder and ethnic cleansing (ethnocide) are taking place something has to be done, our moral consciousness tells us. The growth in international law ever since its inception and in particular the system of rights embedded in the UN represent the transformation of this consciousness into political and legal measures. The purpose of these institutions was first to constrain the willpower of the nation states in their external relations to other states. The politics of human rights by means of systematic legalisation of international relations implies the domestication of the existing state of nature between countries.� Institutions above the nation-state are needed to constrain the internal willpower of the state, i.e., the power exerted over its citizens. Article 28 of The United Nations Universal Declaration of Human Rights (1948) made it clear that there is a right to a lawful international order:

 

�Everyone is entitled to a social and international order in which rights and freedoms set forth in this Declaration can be fully realized�

 

In the last decades we have witnessed a significant development of rights and law enforcement beyond the nation state. Human rights are institutionalised in international courts, in tribunals and increasingly also in politico-judicial bodies over and above the nation state that control resources for enforcing norm compliance. Examples are the international criminal tribunals for Rwanda and the former Yugoslavia, The International Criminal Court, the UN and the EU. In addition, European states have incorporated �The European Convention for the Protection of Human Rights and Fundamental Freedoms� and a good deal of its protocols into their domestic legal systems. These developments are constrained by the limitations of the international law regime as it is based on the principle of unanimity and as it lacks executive power. The Charter of the United Nations prohibits violence but forbids intervention in the internal affairs of a state. However, this is not the only difficulty of an international human rights regime.

 

The problem with human rights politics is due to their non-institutionalized form. Human rights exhibit a categorical structure - they have a strong moral content: �Human dignity shall be respected at whatever costs!� Borders of states or collectives do not make the same strong claim � �they do not feel pain�. In case of violations of basic human rights, our human reason is roused to indignation and urge for action. When conceived abstractly human rights do not pay attention to the context � e.g. to the specific situation and ethical-cultural values - and may violate other important concerns. As human rights do not respect borders or collectives, as they appeal to universality as such, they may threaten local communities, innate loyalties and value-based relationships. When you know what is RIGHT, you are obliged to act whatever the consequences. Imperialism in more than a moral sense, is among the problems of actual human rights politics performed by states. This cosmopolitan universalist idea of doing good set the European nation states on missions for human rights across the globe, a mission that the USA has overtaken in the twentieth century (Eder and Giesen 2001:265). Habermas maintains that the Europeans have learnt from past failures and that they today pursue a different strategy regarding human rights.

 

�The USA conceives the global enforcement of human rights as the national mission of a world power which pursues this goal according to the premises of power politics. Most of the EU governments see the politics of human rights as a project committed to systematic legislation of international relations, a project already altering the parameters of power politics.� (Habermas 1999a:269)

 

Cosmopolitan law

The general problem comes down to the following: in concrete situations there will be collisions of human rights as more than one justified norm may be called upon. To choose the correct norm requires interpretation of situations and the balancing and weightening of norms in application discourses. Another problem with the politics of human rights is its arbitrariness at this stage of institutionalisation. They are enforced at random. Some states are being punished for their violations of human rights while others are not. Today, there are sanctions against Iran and Iraq, but not against Israel or China. Some states violate international law with impunity. The politics of human rights is criticised for being based on the will-power of the US and its allies, not on universal principles applied equally to all. Human rights talk may well only be window-dressing, covering up for the real motives of big states. Recall the rhetoric �of the free world� in the Vietnam War by the US, a country that was accused also of intervening in the Gulf War because of its interest in oil resources. All too often ideals are a sham � they are open to manipulation and interest-politics and new imperialism. Human rights politics is often power politics in disguise. Carl Schmitt, who is the prominent adversary in Habermas� writings, sees this as endemic to international relations as such because there can be no supranational law:

 

�When a state fights its political enemy in the name of humanity, it is not war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its military opponent.� (Schmitt 1996:54)

 

The solution to the twin problems of the politics of human rights � the problems of norm collissions and of arbitrariness � is positivization or constitutionalisation, which confers upon everybody the same obligations and connects enactment to democratic procedures. Disregarding the ideological function of human rights serving as they often do to actual exclusion and unequal treatment and hence shielding a false universality, Schmitt is wrong because there in fact is an international law that claims normative validity. This is so because human rights �are juridical by their very nature.� (Habermas 1998a:190). They are not merely moral norms that can be enforced in the name of humanity, but legal rights depending for their legitimate enforcement on democratic procedures. The coercive power of the state has to be regulated both externally and internally by legitimate law. It is democratic legitimacy that warrants the claim that law can be �� in harmony with recognized moral principles. Cosmopolitan law is a logical consequence of the idea of the constitutive rule of law. It establishes for the first time a symmetry between the juridification of social and political relations both within and beyond the state�s borders.� (Habermas 1998a:199)

 

There are corresponding empirical developments as human rights now are incorporated both into international law and into the constitutions of the nation states. The UN was primarily founded to prevent the recurrence of war. Democracy was not a condition for membership. Increasingly, the UN has taken up human rights and democratic questions and has been supporting women�s and children�s rights, the protection of the environment, the promotion of development, participation etc. in many ways. [5] The UN helps facilitate transitions to constitutional democracy at the state level. Increasingly human rights are positivized as legal rights and made binding through the sanctioning power of the administrative apparatus of the states. This has changed the very concept of sovereignty. Today, for (some) states to be sovereign they have to respect basic civil and political rights. In principle, then, only a democratic state is a sovereign state and in such a state the majority cannot (openly) suppress minorities (Frank 1992).

 

Human rights are important because they directly point to the constitutional principle of modern states, whilst also constituting a critical point of reference for their justification. While basic rights are given to individuals in so far as they are citizens � members of a state � human rights have a moral content that is not absolvable in positive law, as we discussed in chapter 7. The democratic Recthsstaat is founded on the rights of the individual, her autonomy and dignity. It claims to derive legitimacy from the protection of the individual � her freedom and welfare. Human rights are thus part of what it takes to validate a procedure for legitimate decision-making. This is also seen in all liberation movements and claims for secession: they are first recognised by international society when they can show that basic rights are violated by the power-holders.

 

About 95% of all wars are within states and not between them. This among other things have brought human rights to the fore in international politics and changed their political status. There has been a remarkable shift in the discourse of how and when to intervene in the 1990�s.

 

�Interventions once aroused the condemnation of international moralists. Now failures to intervene or to intervene adequately in places such as Rwanda or Sierra Leone do.� (Doyle 2001:212)

 

The position of human rights is, as we have seen, strengthened internationally. However, this is not an unproblematic development. Human rights are universal, and with their expansion within international law they have also gained an authority that limits the state�s self-determination (cf. Apel 1998:833).� But human rights no longer follow from democratic states� self-legislation only, as is the case with the declarations that came about under the French and the American revolutions. They now also follow from international legislation under the direction of, among others, the UN and enforced by special human rights courts or the US and their allies. �With the criminalization of wars of aggression and crimes against humanity, nations, as the subjects of international law, have forfeited a general presumption of innocence�; and even though the UN has got neither judicial nor military power �� it can impose sanctions, and grant mandates for humanitarian interventions.� (Habermas 2001a:106) We may therefore speak of a law of peoples that places individual human beings at the center for the legitimacy and accountability of power (Held 2002, Rawls 1999). Hence, there is a cosmopolitan law in addition to state law and international law, i.e., a legal order that bypasses international and state authorities and grants individual subjects unmediated membership in a world organization (Habermas 1998a:181).

 

Before we proceed we will examine how human rights can be defended, because if this is the shared normative basis of a world order one needs to know whether they really are universal and in what sense they possibly are so. Further, if human rights are not completely absolvable in positive law, what is then the accurate discourse theoretical conception of such rights? An answer is required as one may ask if Habermas�s conceptual strategy fully grasps the normative dimension of human rights.

 

Is there a right to human rights?

To discourse theory human rights are not ungrounded axioms or self-evident facts. They are not merely posited. Rather they are made by man and can justified and are in need of legitimation. However, can human rights be defended in their own right, and not only as an �instrument� for democracy? Our moral intuition tells us that human rights need protection regardless of their contribution to democracy. Here we follow a proposal made by Rainer Forst. [6] As we have seen Habermas conceives the core content of human rights as being moral but there is no justification of their intrinsic value. They are derived from what is required for citizens to be proper participants in public deliberation. In simplified terms Habermas� conception of private autonomy is framed on the right not to communicate, or on a right to be left alone. Legal rights relieve the actors of the obligation to provide moral justifications.

 

Why do we need human rights and to what extent can we claim to be protected by them? A wider justification than the one referring to democracy, is needed, partly because positive laws can be unfair and because meta-legal perspectives are called upon to change and rectify legal orders and make new laws. This pertains to the larger philosophical problem of discourse-theory, whether its alleged proceduralism can be sustained or if it has to reckon with substantive, normative elements. Regarding this one may ask how it is possible to argue for everyone�s right to participate in a debate without going back to some substantive normative and non-procedural argument, for example, peoples� freedom, equality and dignity as postulated by natural law. After all, procedural and substantive conceptions of justice interchange in a justification process in so far as the claims of equal access and participation, inclusiveness and openness rest on the principles of tolerance, personal integrity, guaranteed private life, etc. (Alexy 1994, cf. G�nther 1994, 1999). Surely, infinite regress or circular argumentation arises here, because rights that are to ensure the process must be justified procedurally, something that in turn rests on substantial elements, which in turn again are to be justified procedurally, etc. (Michelmann 1997:162 f.). [7]

 

A wider justification for human rights is also required because we need to know more specifically why human rights should be respected unconditionally. A normative foundation is required in order to refute the accusation that human rights are particularistic and �Western� values. There is need for a culturally neutral but at the same time culturally sensitive defence of human rights. Demands for human rights are moral demands as they are put forward to secure some vital interests. They are always concretely justified with regard to someone�s frustrated need or unsatisfied interest and they are articulated when people are maltreated or humiliated. Human rights do not merely exist or not, they are not given by God(s) and they are not merely discovered. Rather they are created and recognised by people in certain situations and are enacted by political and judicial decision making bodies (K�hler 1999). They arise in difficult and dire situations and are responses to normatively demanding hardships.

 

"The conception of natural rights, sacred and inherent in man, was written into the constitutions of the eighteenth, nineteenth, and twentieth centuries, not because men had agreed on a philosophy, but because they had agreed, despite philosophic differences, on the formulation of a solution to a series of moral and political problems." (McKeon 1948:181)

 

Experiences of injustice which are common to all human beings give rise to demands for change and rectification - reiteration - and beneath claims to particular undertakings, to social and political remedial actions, there is a need for understanding and explanation. Why is this happening to me, and why do I have to obey rules and norms detrimental to my own interest? Claimants may have no abstract or philosophical idea of what it means to be a �human being,� but by protesting they demonstrate that there is at least one fundamental human-moral demand which no culture or society may reject: the unconditional claim to be respected as someone who deserves to be given justifying reasons for actions, rules, or structures to which s/he is subject (Forst 1999b:40).

 

At the heart of human rights demands is the need of every human being for meaning and reasons - as a universal feature of human kind. [8] Religions may be seen as responses to this need as they are representations of meaning: they explain man�s place in the world and provide justification of evil or injustice � i.e., teodic�. This need is also, so to speak, built into the very structure of the employment of the human language. In every social relationship, the demand for justification and explanation is present; and every human being expresses this demand from the earliest years. In modern societies this demand also takes the secular form of reason giving in first person singular and translates into the justification of political authority. Accordingly, every social order must be prepared to give reasons for their existence if they are to be recognised by their members. It is from this basis, recognising the right to justification, that other rights may be justified. This can be seen as the language theoretical basis for the talk of a cosmopolitan right in line with Kant, and it is an insight that is basic to the deliberative concept of democracy stating that only norms and statutes that are justified to those affected and that are accepted by all in a free debate can claim to be truly legitimate. [9] Especially it is reflected in the more strict moral principle of validation: �A law is valid in the moral sense when it could be accepted by everybody from the perspective of each individual.� (Habermas 1998b:31)

 

However, in practical terms there is a tension between human rights and democracy since the latter only exists at the level of the nation-state, i.e., in particular states, while human rights are propounded by non-democratic bodies such as courts and tribunals or, what is more often the case, enforced by the US and its allies. Hence, there is a need for entrenchment of rights in democratic and law enforcement bodies above the nation state and international relations.

�����������

The Nation State and Cosmopolitanism

When addressing cosmopolitan rights we may well remind ourselves of the words of Hannah Arendt (1986:295 f.): �We became aware of the existence of a right to have rights � and a right to belong to some kind of organized community, only when millions of people emerged who had lost and could not regain these rights�.�

 

Cosmopolitan Democracy?

According to cosmopolitans, the urgent task is to domesticate the existing state of nature between countries by means of human rights, i.e., the transformation of international law into a law of global citizens. [10] The parameters of power politics have already changed, as we have seen. Nevertheless, the problem of arbitrariness in the enforcement of norms in the international order is not resolved. For a true republic to be realised it must be possible for citizens to appeal to bodies above the nation state when their rights are threatened. Thus there are reasons for institutions beyond a particular state in which individuals have obtained membership and which protect the basic rights of the citizen. Such a state can fail to respect a �correct� understanding of human rights and can also fail to respect individuals with no membership rights and other states� legitimate interests.

 

�Since human beings are both moral persons and citizens of a state, they have certain duties in an international context. As a moral person, a member of the community of all human beings, one is a 'world citizen' insofar as one has not only the duty to respect the human rights of others, but also a duty to help them when their rights are violated, as when the basic rights of human beings are systematically disregarded in another state.� (Forst 1999b:53)

 

Yet the principle of popular sovereignty points to a particular society, while human rights point to an ideal republic, and only with a cosmopolitan order � democracy at a supranational world level � can this opposition finally find its solution. For the rights of the world citizen � kosmou polit�s - to be respected, human rights need to be institutionalized in bodies above the nation states that actually bind individual governments and international actors. [11] � Such bodies must be provided with the resources that make sanctions credible. This is needed for ensuring norm compliance and consistent and impartial norm-enforcement. The UN needs to be made into an organization equipped with executive power for law-enforcement because law should be made equally binding on each of the Member States.

 

�The Security Council could be transformed into an executive branch capable of implementing policies on the model of the Council of Ministers of the European Union. Moreover, states will be willing to adapt their traditional foreign policy to the imperatives of a world domestic policy only if the world organization can deploy military force under its own command and exercise police functions.� (Habermas 1998a:187-8)

 

Regarding democratisation, one option is to supplement the existing order with territorial representation: a World Parliament based on a transformation of the General Assembly into an upper house sharing its competencies with a second chamber and the introduction of qualified majority rule. [12] However, the institutionalisation of rights and decision-making bodies on lower levels is required by the cosmopolitan model. Intermediate institutions in a global world order � regional bodies capable of collective action between the UN and the nation state � are needed in order to establish democratically controlled institutions to cope with trans-border problems. That is why regional unions such as the EU are normatively attractive. Habermas, however, is not in full agreement with the proponents of cosmopolitan democracy like for example David Held and his colleagues.�

 

We have established that there is a need for political institutions that are capable of non-arbitrary and consistent norm enforcement, but while cosmopolitans put their trust in a democratizised and empowered UN, Habermas sees the role for such an order as rather limited. The cosmopolitan community of world citizens, with the UN as a government executing a common will, should be a rather constrained entity confined to maintaining order, i.e., security and human rights politics and risk prevention. Here Habermas is in line with Kant in seeing the world state merely as a security state, but he goes beyond Kant�s idea of a pacific federation of independent states � a confederation. In Toward Perpetual Peace Kant feared that a world government would become a global despotism or else be a fragile and impotent empire. On the other hand, a permanent congress of states without a constitution, as Kant opts for, is futile because a world organisation requires a procedure for authoritative decision-making and adjudication: �Just how the permanence of this union, on which �civilized� resolution of international conflict depends, can be guaranteed without the legally binding character of an institution analogous to a state constitution Kant never explains.� (Habermas 1998a:169) According to Held, a world state is necessary to protect seven clusters of rights: health, social, cultural, civic, economic, pacific, and political rights (1995:192 ff.). [13] Habermas objects to such a universalistic cosmopolitanism. The UN cannot be a polity with the ordinary functions of a state equipped with executive and enforcement power on a whole range of areas because the sources of solidarity are lacking. The basis for common will-formation in an ethical-political sense is not available at this level. Why is that so?

 

The Janus face of the nation state

Habermas explains this lack of solidarity at the global level by pointing to the preconditions of the modern nation state regarding its capacity for integration. Only the nation state could uphold the diverse functions of the sovereign territorial state in a democratic fashion, i.e., the functions of the administrative and tax based state, on the one hand, and those of the constitutional and modern welfare state on the other hand. The modern nation state contributed to solve problems concerning both social integration and democratic legitimation because it managed to keep together �the idea of a community of fate� based on a common language and history and the idea of a voluntary union based on citizenship rights. This type of political integration is held to be the achievement of the nation, because the latter undertakes two separate functions at once. It has two faces:

 

�The nation state is Janus-faced. Whereas the voluntary nation of citizens is the source of democratic legitimation, it is the inherited or ascribed nation founded on ethnic membership (die geborene Nation der Volkgsgenossen) that secures social integration.�(Habermas 1998d: 115).

 

The idea of a nation has been fused with the idea of a republic. Since the French revolution the willingness to sacrifice even one�s life for the fatherland has been combined with equal rights. The notion of a common history and of �a community of fate� have effectively stimulated the patriotic feelings. The nation state symbolizes the spirit of the people and the force of the �conscience collective� (to speak with Durkheim). Over a long period of time the language of primordial values has been used to foster allegiance,� �� the language of nationalism was forged in late eighteenth-century Europe to defend or reinforce the cultural, linguistic, and ethnic oneness and homogeneity of a people...� (Viroli 1995:1). The nation state created a solidaristic union between individuals that originally were strangers to one another: through general conscription, education, (hi)story-telling, mass communication and mass mobilisation heterogeneous peoples were �homogenized�. Due to changed loyalties and identities collective action on a whole range of fields was made possible. The state could act on the basis of a strong sense of common vision and mission because of the successful symbolic construction of a people. It made trust possible and a new form of larger solidarity which constitutes the social substrate of democracy. The symbolic construction of a demos or a people founded on a sense of common belonging and sentiment, is a precondition for both the nation and the welfare state.

 

On the other hand, the nation state made a new form of legitimation possible in that the principle of popular sovereignty replaced earlier forms of hierarchical legitimation, i.e., that of kings and princes based on �divine right� or on traditional bases of authority. This kind of legitimation based on the royal sovereignty was supplanted with the idea of popular sovereignty. Support was drummed up through the mobilisation of enfranchised voters, democratic elections and public debate. The nation state has had the main catalytic function for the democratisation of state power. [14] It contributed to the fostering of love of the political institutions - love of the republic - and the way of life that sustains the freedom of a people.

 

In sum, the nation state contributed to stability in two ways: it provided for solidarity and for legitimation. A new identity based on a more abstract form of social integration was created. The nation state through its naturalistic notion of a pre-political community provided a cultural-ethical substance that appeals to the hearts and minds of the people. Especially with regard to the German tradition it is held that the mythic character of nationalistic ideas established the cultural substrate necessary for people to regard each other as neighbours and fellow countrymen, as brothers and sisters. The nation, due to its deeper ties of belonging and allegiance, makes possible the transformation of a collection of disjunct individuals and groups into a collective capable of common action, the communitarians may say. Majority rule can only function when trust and solidarity prevail. A sense of solidarity and a common identification make for patriotism or �love of country� and constitute the �non-majoritarian� sources of legitimacy.

 

Habermas maintains that it us not only such �a community of fate� that has the potential of explaining imposed duties. It explains sacrifice based duties such as conscription, military duty, capital punishment. However, other duties can be explained from a rights-based perspective. For example, the duty to pay taxes and to education do not rely on such a pre-political basis of confidence. Rather they can be explained as resulting from a process of legislation where the citizens mutually give themselves rights and hence infer corresponding duties required to realise the rights. Sacrifice as a moral category belongs to the pre-modern era and is not in line with the egalitarianism of modern democratic states. The idea here is that the procedural properties of modern democracies themselves can bear the burden of legitimation and integration. Discursively structured opinion and will formation processes have themselves the capacity of generating social rights and bringing about the corresponding duties. In this regard a pre-political, cultural homogeniety, which may, historically, have been a necessary catalysing condition for democracy can be replaced by the democratic procedure itself. This is so because it includes the citizens in a process of mutual recognition where they see themselves as addressees of the same laws that they make. As we discussed in chapter 7 and 8 this requires a radical form of liberty. Hence, first when capital punishment and conscription have been abolished, when the state gives up the right to decide over life and death, and exit is possible � i.e., emigration - the true idea of a republic can be realised. However, while Habermas objects to the republican model in its communitarian-nationalistic reading, he is also critical of the liberal universalist model of cosmopolitan democracy.

 

Patriotism or love of humanity?

The nation state model of democracy reveals a dogmatic understanding of modernity, Habermas maintains. The emancipatory force of the enlightenment is not confined to the making of a nation state because with this a new principle of legitimation emerged. The nation state form of government does not exhaust the principle of self-governance because its procedural properties refer to more profound principles of democratic legitimation, i.e., legitimation from below through public debate and individual rights. Democracy should then be conceived of at a more abstract level and not be seen merely as an organisation principle � e.g., the nation state form of parliamentary democracy. Rather it is a legitimation principle which ensures the conditions necessary for justification of political action. In other words, it is not identical with a particular organisational form, but is rather a principle which sets down the conditions that are necessary for getting things right in politics. Modern democracy is thus not one among several alternative principles of associated life that may be chosen at will but entails the very idea of civilised life itself.

 

While the communitarians run the risk of seeing the nation state as the only form possible for a peoples� union based on a collective identity and thus of conceiving of the nation state as an end in itself, the cosmopolitans run the opposite danger of glossing over all distinctions and differences. Habermas points to the problem of creating a political order based on universality � on the status of world citizens who are represented in a world government through direct elections. A cosmopolitan order is based on complete inclusion � it can not exclude anyone � but a community and especially a democratic one is based on a distinction between members and non-members.� He sees the tension between universal principles � human rights - and particularistic identities based on a common culture and descent as constitutive for democratic legitimacy.� The �Janus face� of the modern nation state points exactly to this fact, i.e., it is a union based on universalistic principles, but that these principles are also embedded in specific communities and shape a collective identity that is historically and territorially situated. The citizens conceive and appropriate universalistic principles in light of their own history and tradition. They are realised in a particular context � in a particular form of ethical life founded on shared traditions and collective memories and commitments.

 

It is this cultural and ethical dimension that is lacking at the world level. There is no particular context of values and obligations that make rights shrewd. We have special obligations to fellow members of our society and to the specific persons that are close to us. They stem from the fact of belonging to a society and are socially ascribed and substantively underpinned. On the other hand, special obligations to strangers usually do not arise from membership in a community but from legal obligations underscored by human values (Habermas 1996a:510 f.). Universalistic cosmopolitanism does not recognise special obligations, i.e., obligations that arise out of membership in a concrete community; the sympathy and we-feeling that engender patriotism. In liberal cosmopolitanism borders only have a derived status, and thus have no independent value: assignment of responsibilities follows from the institutional division of labour. In this perspective the freedom and welfare of human beings will best be secured by organizing the human population into different societies each with their own political institutions specialised for taking care of the interests and rights of the citizens. Borders have no intrinsic value. Other cosmopolitans second this position: Patriotism does not trump the love of humanity (Nussbaum 1996:17). However, several objections can be raised to unlimited cosmopolitanism.

 

First, there is the argument that rights must �find their home� � they must be embedded in a culture and in concrete relationships in order to be meaningful and able to protect interests (Habermas 1999a:270). Rights have to be rooted in practical social relationships where they can be interpreted and operationalised in relation to concrete needs and interests of human beings in order to have bearing on actual problems and conflicts. It is with regard to experiences of injustice, disrespect and humiliation that claims to rectification and compensation can be made legitimately. This requires contextualisation. [15]

 

Second, there is the problem of legal protection. The principle of the rule of law - the Rechtsstaat � requires the state to act on legal norms that are general, clear, public, prospective and stable in order to safeguard against states� infringement of individual liberties and rights. However, rights are always contested and require argumentation and interpretation with regard to concrete interests and values and they need to be firmly institutionalised. They also require legal regulation and constraint. Individuals� rights are limited by others� rights and concerns, and the abstract law enforcement by a world state runs the danger of glossing over relevant distinctions and differences. The idea of the constitutional state is not only to protect against encroachment but also to make sure that the regulation of interests can be rendered acceptable from a normative point of view by taking stock of a whole range of norms, interests and values as has earlier been discussed in connection with the application discourse. Correct implementation of common action norms requires concrete institutions and procedures. Hence, proponents of a world state with far-reaching competencies � with an executive government - are facing severe theoretical and practical challenges.

 

Third, the shared values of the global culture are too weak to provide stability and motivation for collective action and solidarity in general. This is the sphere of universalistic claims and responsibilities that arise from general duties. Here human rights can be defended.� They are moral rights and they can only be justified with reference to duties that bind the will of autonomous persons. Human rights designate what is universally valid but not what is valid for a particular group of people. They do not generate obligations of the kind required for solidarity and common will-formation in a strong sense, i.e. the kind of solidarity that makes possible collective action in general and redistributive and welfare state measures in particular.

 

��. [A] world wide consensus on human rights could not serve as the basis for a strong equivalent to the civic solidarity that emerged in the framework of the nation-state. Civic solidarity is rooted in particular collective identities; cosmopolitan solidarity has to support itself on the moral universalism of human rights alone.� (Habermas 2001a:108)

�����������

While welfare state measures require a kind of civic solidarity where the members actively take responsibility for each other, the solidarity of world citizens is reactive, Habermas maintains. It is based on reactions to violations and humiliations of individuals in their capacity as human beings. Such a solidarity is not based on a collective identity which on its part requires distinctions. To have things in common requires that other things are excluded. What is basic to us, what we share with one another and not all the others, is what makes us special; something that arouses feelings and emotions, that we are committed to and that can motivate us to collective action and solidarity. [16] The latter stems from membership in a community of compatriots while the former from the rather weak form of an all-inclusive society. The world citizens do not have much in common apart from the shared �humanity�. The world order lacks the ethical-political component necessary for common will-formation and cannot be the basis for a world government. The plea for cosmopolitan democracy has to take another route, that of� �a global domestic policy � without world government� according to Habermas (2001a:104)

 

Hence, there are different kinds of political allegiances and communities � thick and thin � corresponding to different levels of governance and their adjacent allocation of responsibilities. In a system of multilevel governance the rights and duties vary and so do the requirements for allegiance conducive to the generation of obligations. There is an institutional division of labour for the assignments of rights and duties. The requirements for political integration vary on national, regional and global levels. Habermas� analysis is quite complex, as he does not only address different levels of integration but also relies on different conceptual strategies. Partly he relies on contingent arguments about genealogy and historic facts, partly on normative and conceptual arguments about the validity of constitutional principles, and partly on functional requirements of what is needed for the integration of political orders. Historic, normative, and functional arguments are all used in his reconstruction of the post-Westphalian political order.

 

Before we proceed by applying this perspective on catching up strategies regarding economic globalisation, we will sum up the implications of these findings with regard to social integration. Analysing how multicultural societies hang together can give us a clue to comprehending how post-national integration can come about.

 

Constitutional patriotism

Even if many modern states are stable and well functioning, they are highly differentiated, pluralistic and they contain multi-level structures of governance. There are many sorts of identities and belongings. Pluralistic societies display a heterogeneous value basis. Why these societies hang together may be explained, not by recourse to shared values and sentiments of cultural attachment but by means of a more complex model of how allegiances are formed. To do so it is necessary to distinguish between two kinds of social integration � etical or cultural and political. The first denotes the kind of integration that is needed for individuals and groups who seek to find out who they are or would like to be. By this we think of the values and affiliations, language and history that make up the glue of society - cohesion in general and trust and solidarity in particular - and that transform a collection of people into a group with a distinct identity, i.e., the cultural substrate of the nation.

 

A distinction is required between the cultural or value basis of a political order, which is dependent upon a particular identity that prevails in the groups and nations that people are members of, and the constitutional properties of such an order. The latter does not rest upon a particular set of values but on trans-cultural norms and universal principles. The constitutional order claims to be binding on all subjects and to be approved by the various groups within society, each with its particular and distinctive identity(ies) and value(s).� Nation states are not merely �nation states�, i.e., the state of one particular nation: as a rule they consist of many groups - social, ethnic, religious etc. - with different identities, values, and loyalties. Often, they are multi-cultural societies and as such require a second level of integration - political integration - which makes it possible to cope with difference and collective decision making without relapse into �ethnocentric politics�. Hence, respect for difference, pluralism, human rights, vulnerable identities, is required. The basic structure of constitutional democracies, then, does not only express certain values or conceptions of the good society, but in addition a conception of a rights-based society. Different groups continue to live together and resolve conflicts because they agree on the basic rules and procedures that claim to secure fair treatment of the parties. �Law is the only medium through which a �solidarity with strangers� can be secured in complex societies.� (Habermas 1996b:1544) In this way law not only complements morality but in a sense also constitutes it. This is even more the case in international affairs where a collective identity is missing because only with legal standards can we know what to do, what rights and duties should apply. There is no functional equivalent to law as a coordinating means in complex and non-ideal situations.

 

At the level of social interaction, the explanation of political integration is to be found in the way in which freedom, democracy, autonomy, equality, - in short, due process and equal respect for all - have obtained a deontological standing in our societies. They are principles, with which it is a duty to comply even though they could interfere with the values of the majority, particular conceptions of the good, roles, identities or utility calculations. That is why constitutional rights can function like trumps in collective decision-making (Dworkin 1984). Some norms claim categorical validity because they are derived from the inherent dignity of the person - they are so to say �... equal and inalienable rights of all the members of the human family ...� [17] . There is, then, not a conceptual link between ethnos and democracy, although there may be an empirical one.

 

�The ethical-political self-understanding of citizens in a democratic community must not be taken as a historical a priori that makes democratic will-formation possible, but rather as the fluid content of a circulatory process that is generated through the legal institutionalization of citizen�s communication.� (Habermas 1998c:161)

 

Hence, trust and solidarity required for a collective identity is made, not found as a pre-political, primordial and essentialist category. In the creation of the nation-state �ethnos� and �demos� wew only connected for a brief period of time and citizenship is a rights based category not internally linked to a national identity, according to Habermas. He is, however, somewhat ambivalent in the way he treats the nation state as revealed in the above analysis. It is a large container of democracy and trust but it is based on shared sentiments of attachment. [18] His conception combines elements of substance � the socio-cultural substrate necessary for democracy � with the universalism of legal principles. These principles must be embedded in a specific, historically contingent political culture through a kind of constitutional patriotism (Habermas 1994c). Surely one has to go beyond Thomas Hobbes�s idea that everybody in a post-traditional society has an interest in a legally powerful order � a state. Habermas maintains that such an order has to be supported by substantive ethical motives � a culture of a certain quality � and by rationally acceptable principles.� The constitutional state is culturally or ethically patterned at the same time as it protects the equal co-existence of the citizens. Habermas� ambivalence is reflected in the way he seems to mediate between values and rational principles in the conception of the political order. On the one hand Habermas comes close to a communitarian reading, underscoring the sharing of sentiments of attachment to a culturally integrated society. On the other hand these principles themselves are based on a rational reconstruction of �the unavoidable conditions of impartial judgement�: �If there is no authority for relations of moral recognition higher than the good will and insight of those who come to a shared agreement concerning the rules that are to govern their living together, then the standard for judging these rules must be derived exclusively from the situation in which participants seek to convince one another of their beliefs and proposals.� (Habermas 1998b:24)

 

In this manner Habermas conceives of democracy and human rights, not solely as representative of cultural traditions and shared meanings, but as manifestations of cognitive-moral principles that command respect in and of themselves. But how the balance between ethical values and rational principles should be struck is not clear. Which is the most important? For example, how can we explain that countries with the same legal basis rule differently in similar cases? If one country bans smoking and another one does not, is this difference due to different constitutional identities or to impartial judgement? However, it is clear that the latter has priority in discourse-theory and that the �communitarian strand� in Habermas� theory has more to do with genealogy � how things have been brought about � than with validity (�Geltung�), i.e., with what can be rationally defended. It is clear that Habermas sees the cognitive-liberal principles as essential prerequisites for self-governance and the cornerstone of modern constitutional arrangements. Constitutions protect the citizens� freedom by entrenching a host of individual rights. Basic civil rights cannot be altered by simple majority vote. Constitutionally entrenched rights clauses, in addition to the principle of a written constitution, the principle of separation of powers, and judicial review etc. impose restrictions on �the will of the people� and are meant to guarantee the freedom of the individual. They may be seen to protect the private autonomy of the citizens and are necessary for the formation of authentic private opinions.

 

Constitutional arrangements not only enable but also require and warrant popular participation in the political process. That is, they enable and warrant government by the people. The democratic principle entrenched in modern constitutions refers to the manner in which citizens are involved in public deliberations, collective decision making and lawmaking through a set of rights and procedures that range from freedom of speech and assembly to eligibility and voting rights. These political rights, and their attendant institutions and procedures, are to secure the public autonomy of the individual. They ensure that the addressees of the law can also participate in the making of the law. The alleged problem of the so-called infinite regress � between rights and democracy - disappears, according to Habermas, once the constitution is conceived in generational terms: even though the people are constrained by the constitution authored by their forefathers, the present understanding and the full use of the constitution depend on the agency of the present generation. As a self-correcting learning process� � � t (T)he allegedly paradoxical relation between democracy and the rule of law resolves itself in the dimension of historical time, provided one conceives of the constitution as a project that makes the founding act into an ongoing process of constitution-making that continues across generations� (Habermas 2001d: 768)

 

However, in practical terms there is a tension between popular sovereignty based on collective or national identities and human rights claims, because only the former is conducive to democratic legitimacy. This is the background for Habermas�s scepticism about a world state and this is also why he does not see the American constitution as a prototype for European reform. European constitutional patriotism has to take seriously the differences between countries. There are different national trajectories that have shaped the collective consciousness of the people and different interpretations of the universalistic principles. However, the nation state model of democratic governance is challenged by globalisation.

 

Globalisation and democracy

The modern nation state designates a governmental structure of political authority based on supreme jurisdiction over a demarcated territory, underpinned by the monopoly of the use of force and dependent on the loyalty of the ruled. Legitimacy is conferred by so-called liberal democratic institutions through which citizens elect their representatives, form common opinions and voice criticism. This model has been challenged due to several causes captured by the term globalisation that have all served to undermine and transform the liberal model of democracy.

 

Denationalisation and deliberation

The world is steadily becoming one through capital and information being available everywhere. Especially in the economic area this process is picking up pace as world financial and banking centres merge into one integrated network. The concept of globalisation denotes a spatial phenomenon on a continuum between the local and the global, involving the widening and deepening of social relations across space and time and the interdependence and vulnerabilities of day-to-day activities. In short, the compression of time and space (Giddens 1991, Held 1998). Currently, there are global structures of finance, production, trade and communication that threaten to undermine the boundaries of the nation state. Citizens� interests are affected in ways and by bodies which are difficult to hold responsible through the ballot box. In democratic terms globalization means that those who can be kept accountable have little control over the factors affecting peoples� lives, and those who have the decisive decision-making power are beyond democratic reach. David Held, in several of his works, argues that nation states lose some of their sovereignty due to globalisation and that this is wearing away the capacity for citizenship at the domestic level. Increasingly, the nation states have become �decision takers� and not only �decision makers�. Their sovereignty is eroded to the degree that the common action norms are decided by other forms of authority; their autonomy is reduced when their capability �to articulate and achieve policy goals independently� is abridged (Held et al. 1999:52)

 

Habermas on his part often uses the word denationalization to depict how national politics loses control because of deregulation and new interdependencies in the world financial markets as well as in the industrial production itself.� This process may reduce the tax revenues and the ability to make efficient employment and fiscal policies, redestribution and macro-economic steering. In so far as there is the emergence of a world society, it is a stratified one, because globalisation divides the world in two but at the same time �forces it to act cooperatively as a community of shared risks.� (Habermas 1998a:183)� These changes, however, not only signify the spread of market economy world-wide but the possible emergence of a new international political order as well. We are witnessing a reconfiguration of political power, which does not denote defeat of democracy but challenge the presupposition of its confinement to a bounded territory.

 

What is unique today compared to earlier forms of internationalisation and globalisation is that it unfolds in a situation where most of the states claim to be democratic. Globalism is connected to the end of the Cold War and the assertion of democracy as the sole legitimate system of governance:

 

�Globalization today thus raises an entirely novel set of political and normative������� dilemmas which have no real equivalent in previous epochs, namely, how to combine a system of territorially rooted democratic governance with the transnational and global organization of social and economic life.� (Held et al. 1999:431)

 

Then if real citizenship is to be realised today democratisation of transnational institutions that are affecting security, economic, health and environmental conditions are required. At the international level we actually see the establishment of new governance structures. The UN, OSCE, WTO, The World Bank, IMF are important and so are NGOs, social movements and transnational communication. Globalisation processes are multi-dimensional in character encompassing different domains of co-operation and does not only designate unfettered capitalism. International legislative and policy making bodies and transnational policy networks have emerged, and have added to the existing complex of local, regional and national centres of authority. There is a growing interconnectedness of states and of societies, because of multiple and rapidly growing networks of communication internationally and also because of transgovernmental regimes, diplomacy and even trans-national civil society (Bohman and Lutz-Bachmann 1997:8). Democracy is, however, only rarely brought to bear on international organisations and multilateral forms of regulation.

 

Government or governance?

Traditionally, international affairs are conducted through diplomacy and intergovernmental bargaining between executive branches of national governments. Today there are new forms of political governance emerging beyond the nation state. Here one sees the impact of indirect steering mechanisms and influence where �soft power� may force �hard power� aside (Habermas 1998a:175).

 

Cosmopolitans are faced with two options (Bohman 1999:499 ff.): One is to create hierarchical powers analogous to the nation state, i.e., authoritative organisations make up a world order buttressed by international law. This amounts to government. The other represents a less supranational solution as it puts the trust in decentralisation, networks and transnational agreements � governance - which designates steering beyond public law. Governance is due to different steering mechanisms that are brought about by several channels of influence, and these exist on different levels, some sponsored by state and some not. Such mechanisms range from NGOs and social movements to Internet, cities and micro regions and may be regarded as series of experiments in democracy as they amount to control mechanisms beyond governments (Rosenau 1997, 1998). New regimes are emerging based on various decentralised and co-operative solutions, and contribute to a remarkable expansion of collective power to handle new forms of risks and vulnerabilities.

 

This activity sometimes takes the form of a transnational public sphere and a discursive structure of opinion formation. Cross-cutting and transnational movements indicate that the world now is �a world of overlapping communities of fate� and testify to the thesis of new forms of global governance (Held 1998). Civil society organisations, (I)NGO�s, and social movements operate at this level as well and exert communicative pressure on power holders. Through protests, demonstrations, campaigns, Internet and media interventions they influence decision making processes. No one possesses absolute power within these structures, and for some analysts they represent functional equivalents to democracy. Pluralism and disaggregation are seen as conducive to democracy in a multi-centred world of diverse non-governmental actors.

 

�These regimes cannot directly control the effects of globalisation: they attempt to enable the normative constraints consistent with equality of effective freedom rather than with equal access to agency freedom over the levers of economic process� (Bohman 1999:509).

 

In short, governance denotes a method for dealing with political controversies in which actors, political and non-political, arrive at mutually acceptable decisions by deliberating and negotiating with each other. It is based on a variety of processes with different authority bases, and highlights the role of voluntary and non-profit organisations in joint decision-making and implementation and the semi-public character of modern political enterprise.

 

However, network governance actually means co-operation among representatives of the executive branch. This system amounts, in our opinion, merely to governance without democracy, because there is little chance of equal access and public accountability. The citizens lack the instruments of power to force decision-makers to look after their interests. The people are merely the subjects (or subordinates � Untertanen) of power, not the holders of power themselves � they are not empowered to authorise or instruct their rulers. The ultimate instruments of control do not rest with the people but with the decision-makers. Hence, transnational or network governance may enhance the problem solving capacity and rationality and as such have epistemic value � they improve the quality of the decisions; but it does not amount to popular rule. It compensates for lack of influence, but does not substitute it.

 

Habermas, on his part, however, sees intergovernmental bargaining complemented with new governance structures and deliberation in a transnational civil society as a model for world governance, i.e., as an alternative to a world government. Deliberative and decision-making bodies emerge transnationally � in between societies and beyond the state. Agreements are reached via deliberation in epistemic communities and communicative spaces are created that put decision makers to a test. This may, in his view, be sufficient for legitimating decisions in international organisations not only because of the ability of soft power to push hard power in a media society, but also because trans-national decision making can be made transparent for national public spheres.

 

Although these structures cannot replace established democratic procedures, they exert a certain pressure and �tip the balance, from the concrete embodiments of sovereign will in persons, votes and collectives to the procedural demands of communicative and decision-making processes.� (Habermas 2001a:111) Trans-national deliberative bodies also raise the information level and contribute to rational problem-solving because they include different parties and often adhere to arguing as a decision-making procedure and not voting and bargaining. To various degrees such bodies inject the logic of impartial justification and reason-giving into transnational bodies of governance. They have epistemic value even if ideal communication requirements have not been met, because deliberation forces the participants to justify their standpoints and decisions in an impartial and neutral manner. Deliberation contributes to a more rational way of solving problems and to improve the epistemic quality of the reasons in a justification process (cf. Bohman 1996:26 f.). [19] Here, deliberation is seen primarily as a cooperative activity for intelligent problem-solving in relation to a cognitive standard and not as an argument about what is correct because it can be approved by everyone. Publicity, then, is to be understood as a democratic experimental society for detecting and solving social problems - including identifying unintended side-effects - and not as a political principle of legitimacy. [20] � Under such conditions one can make assessments and agree on certain things that must be done, without agreeing on the conditions that form the basis of the decision, i.e., they don not have to agree for the same reasons. [21] The premises for agreement may be different. This is the area for working agreements that we discussed in the preceding chapter.

 

Transnational bodies of governance and deliberation may be able to tackle normative and politically salient questions in a qualitatively good manner. �The public use of reason� enhances problem solving capacity and political rationality also at the transnational level. �This development corresponds to Habermas�s desubstantialised concept of popular sovereignty that we discussed in chapter 6. Popular sovereignty does reside in the dispersed process of informal communication and not in a demos substantively defined. It is the autonomy of public spheres and party competition in addition to the parliamentary principle that provide the basis for democratic legitimacy. Habermas�s assessment here draws on the epistemic value of deliberative democracy, which underscores the rationality presupposition and not merely the institutional or participatory presuppositions in conceiving of democratic legitimacy.

 

�[T]he democratic procedure no longer draws it legitimizing force only, indeed not even predominantly, from political participation and the expression of political will, but rather from the general accessibility of a deliberative process whose structure grounds an expectation of rationally acceptable results.� (Habermas 2001a:110)

 

The basic problem with this solution is the lack of commitment that follows when law is not laid down authoritatively and made equally binding on every part. The role of law is to complement morality as discussed in chapter 7. When non-compliance is sanctioned, actors may act in a moral manner without facing the danger of losing out, and the incentives for strategic action are taken away. Actors comply more easily with interest-regulating-norms when they are subjected to a higher authority that legislates and sanctions non-compliance unilaterally. But law is also, as mentioned earlier, constituting morality in international affairs, as in such uncharted terrains only with the help of legal standards can complex coordination of action take place. Thus, law is not only needed to pacify the state of nature between the sovereign states, it is a precondition for the establishment of a civil society based on deliberatio. This is in line with Habermas�s criticism of Kant who was reluctant regarding �a constitutionally organized community of nations� and who had to � � rely exclusively on each government�s own moral self-obligation.� (Habermas 1998a:170,169) Habermas argues for cosmopolitan law and for a democratized world order limited to security functions. He does not opt for a polity with a government, i.e., a world state. The critical point regarding the viability of this option, which we cannot pursue here, pertains to the role and functions of the constitution-based supranational order of the deliberative model of post-national politics, i.e.: how strong and competent a world organization?� In any regard, such a world organisation is not capable of constraining global capitalism.

 

Post-national democracy

 

Habermas is pointing to a different strategy for catching up with the negative effects of economic globalisation than the cosmopolitan plea for a world state. He puts his trust in the development of regions between the nation state and the world order, i.e., post-national federations of member-states.

 

A Global Domestic Policy

Due to denationalisation there may be a hollowing out of the autonomy of the nation state, i.e., a declining capacity to take action on collective problems and conduct redistributive policies. If the welfare state is presently being undermined at the state level supranational orders are needed to regain control over the vital factors affecting people�s freedom and welfare. Capabilities on the supranational level are required. [22] For Habermas the EU is a candidate for rescuing the welfare state. On several occasions he has argued the case for European integration as a means to combat globalisation, ensure peace and to further some of the civilisational aspects of European culture. While Habermas finds a world state neither necessary nor desirable or feasible, the EU is a different matter: it is the prime example of a global domestic polity at the regional level. In order to combat the negative effects of economic globalisation it is necessary to expand national forms of solidarity and welfare state measures to a post-national federation at the regional level:

 

�Continent wide regimes of this sort can establish unified currency zones that help reduce the risk of fluctuating exchange rates, but, more significantly, they can also create larger political entities with a hierarchical organization of competencies� (Habermas 2001b:53)

 

Habermas envisages a republican Europe that can overcome the problematic aspects of nationalism and particularism of the prevailing nation state system of Europe, and that can solve common, trans-border problems. A republican Europe can rescue the collective self-determination threatened by globalisation. Traditionally war is the state-building impetus. What is interesting with regard to European integration is that it is a voluntary project and one that has to rely on other sources than those that established the nation states. The integration process can draw on different kinds of so-called �non-majoritarian� sources of integration. For one, the politico-legal, socio-economic institutions are quite similar, as the representative (and mostly parliamentary) democratic system and a market economy tamed by social concerns have contributed to stabilize Western welfare states for quite a long time now. The establishment of comprehensive social security systems and domestication of capitalist economies through Keynesianism are major European achievements, according to Habermas, and may be seen as representing an attractive European common denominator.

 

Further, common grounds that can ease the transition to post-national democracy range from experiences dating back to the Middle Ages about how to cope with conflicts of the most diverse kind - between church and secular power, between faith and knowledge, between centre and periphery, etc. - to modern collective learning processes stemming from two world wars, devastating economic crisis, holocaust, and large social movements. Key words are learning from catastrophe and reconciliation through the public use of reason. This has led to a new sensitivity for difference and the decentring of perspectives conducive to the principles of equal protection and mutual recognition of diversity. A conflict-ridden continent has managed to cope with difference through the institutionalisation of peaceful mechanisms of conflict resolution.

 

�These experiences of successful forms of social integration have shaped the normative self-understanding of European modernity into an egalitarian universalism that can ease the transition to postnational democracy�s demanding contexts of mutual recogniton for all of us � we, the sons, daughters, and grandchildren of barbaric nationalism.� (Habermas 2001a:103) [23]

 

Lastly, European integration is possible on democratic premises, according to Habermas. Post-national democracy is a viable option because, as we have seen, the democratic constitutional states are not conceived of as reflecting merely a particular nation or Sittlichkeit - i.e., Kulturnationen.� Rather, they are founded on the norms and principles underlying the French revolution � the Enlightenment era � and which nowadays are spread well beyond the Western Hemisphere. These entities still constitute the most essential aspects of what may be termed �the European identity�. This is a genuine political identity that is based upon the principle of self-rule via the medium of law, and which entails equal rights for all. Habermas�s distinction between cultural/ethical integration and political integration is attuned to the phenomena of European integration, as it enables him to distinguish between national attitudes based on particularistic values and beliefs one the one hand, and the legal-political attitude of civic rights and participation that is common to all Europeans. This legal-normative basis is procedural rather than substantive, moral and judicial rather than ethical and cultural but will have effects on the latter. Transformation of attitudes and identities and collective learning processes conducive to solidarity can come about in inclusive and deliberative settings.

 

�Citizens� solidarity, hitherto limited to the nation-state, must be expanded to the citizens of the Union in such a way that, for example, Swedes and Portuguese, Germans and Greeks are willing to stand up for one another, as it is the case now with citizens from former West and East Germany� (Habermas 2000:34)

 

By delineating the EU in democratic terms its boundaries can be justified within a cosmopolitan framework, we may add. The borders of the EU are in this perspective to be drawn both with regard to what is required for the Union itself in order to be a self-sustainable and well-functioning democratic entity and with regard to the support and further development of similar regional associations in the rest of the world. The borders of the EU are thus drawn also with regard to functional requirements both for itself and for other regions all within the constraints of a democratised and rights-enforcing UN. The EU is the most promising example of a post-national powerful organisation. Europe is the cradle of the so-called Westphalian order but it is also in Europe that the process of transforming or even dismantling it has progressed the furthest. That this is taking place in Europe is remarkable in itself. Even more remarkable, given Europe�s violent past, is the peaceful nature of this transformation. The EU has emerged into an entity with supranational traits � as part of a rapid and profound transformation of political power in Europe. It has moved beyond an international organisation and also beyond the limitations of the Charter of the United Nations, which prohibits violence but forbids the intervention in the internal affairs of a state.

 

However, the EU in its present form suffers from a democratic deficit due to a weak parliament, the absence of European wide parties and the absence of a European public sphere based on a symbolically constructed people. The EU, therefore, needs democratic reform and a formal constitution. This is even more urgent as the EU has become more than an intergovernmental, free trade union. �The Maastricht Treaty establishes a basis for the development of� the European Union beyond the status of a functional economic community� (Habermas 2001c:17), but as it still is an intergovernmental agreement it �lacks that symbolic depth which political constitutive moments alone possess.� (Habermas 2001e:4)

 

A post-national federation?

Intergovernmentalists argue that the EU is a type of international organisation. It is in the hands of the Member States, and as long as they are democratic there is no need for the EU to be developed into a democratic polity. In this perspective the EU regulates trade and harmonizes laws and solves problems common to all. This amounts in practical terms to negative integration � i.e., liberalisation and deregulation policies - and for this neither democracy nor a common identity is required. National democracy ensures the necessary source of legitimacy. This view is strongly opposed by others who see the EU as a supranational entity that does not leave the Member States untouched.�

 

The EU�s impact on the weal and woe of ordinary people of Europe is profound. Integration is both widened and deepened through measures aimed at redistribution, through regulation of social, environmental and health policies, and through police and judicial co-operation. Recent developments include three treaty revisions, Economic and Monetary Union, the creation of the Euro and The European Central bank. The latter is of utmost interest for macro-economic steering. The EU has taken important steps towards a common security and defence policy, and towards a common justice and home affairs policy. Taken together this indicates that the Union has come a long way to take on state-like functions.

 

The EU�s broadened and deepened scope of action and closer and more direct links to the citizens of the Member States contribute to a massive transformation of the Member States. The indirect or derivative model of legitimacy which is premised on the Member State as a legitimate site of authority is thus insufficient. The democratic legitimacy of the Member States cannot be established independently of the EU, because the EU and the individual states have become so deeply enmeshed that the pattern of legitimate authority in the States is also transformed. The Member States can therefore no longer serve as the source of their own legitimacy, independently of the EU (Eriksen and Fossum 2000a).

 

What is needed, then, is the establishment of a formal basis for legitimacy � the development of a rights-based democratic order. The EU itself has subscribed to the principles of democracy and human rights in The Charter on Human Fundamental Rights proclaimed at the Nice summit in 2000, which, as Habermas notes, designates �what Europeans have in common�. [24] The proposed Charter can be read as one of - if not the most - explicit statement on the EU�s commitment to direct legitimacy that has ever been produced in the EU, in the sense that the institutions and rights provided to the citizens by the EU in themselves shall provide the necessary basis for legitimate governance. The Charter of Fundamental Human Rights in the EU is an important step in the process of institutionalisation of a framework of a cosmopolitan order where violations of human rights can be persecuted as criminal offences according to legal procedures.

 

The system of representation and accountability already in place in the EU gives the citizens at least a minimal input in to the process of framing and concretising the rights. What is required, then, are rights that are specified with regard to the explicit duties of power-wielding bodies. The Charter observes this right in securing a right to vote and to political accountability. However, the EU is in need of a more fundamental democratic reform. According to democratic standards this has, in addition to the Charter of inalienable rights, to include a competence catalogue delimiting the powers of the various branches and levels of government. This implies further abolishing the pillar structure of the EU, altering the allocation of competencies of the decision-making bodies, empowering the European Parliament, making the Council into a second chamber, the Commission into a government headed by an (EP) elected president. Compared to the presidential regime of the USA, a European Union of Nation-States would according to Habermas have to display the following general features:

 

• a Parliament that would resemble the Congress in some respects (a similar division of powers and, compared with the European parliamentary systems, relatively weak political parties);
• a legislative �chamber of nations� that would have more competencies than the American Senate, and a Commission that would be much less powerful than the White House (thus splitting the classical functions of a strong Presidency between the two);
• a European Court that would be as influential as the Supreme Court for similar reasons (the regulatory complexity of an enlarged and socially diversified Union would require detailed interpretation of a principled constitution, cutting short the jungle of existing treaties) (Habermas 2001e:11-12)

 

Habermas does not foresee a European Nation based on a collective identity symbolised by an empowered Parliament, because of the position and legitimacy of the Member States. The second chamber of government � �the chamber of nations� - must have a stronger position than the directly elected parliament in order to secure equal protection and recognition of diversity. [25]

 

The problem with this model pertains to the role it allocates to �the chamber of nations� to the detriment of a directly elected parliament. It may be a realistic model given present constraints but it is weak in democratic terms. A directly elected parliament in addition to a vibrant set of public spheres is the prime source of popular sovereignty. The disadvantage of the proposed model is that the vital concerns of the European citizens are still to be handled through a system of inter-state negotiations. The tension between constitution and democracy cannot be solved until the people or their representatives are making the same laws that they have to abide by, as Habermas generally claims. Only when the citizens can address the same questions in a free public sphere and their representatives can legislate in popular elected bodies � parliaments � can democratic legitimacy be obtained. Habermas� proposal is a modest one, and it seems also to be slightly at odds with his belief in and plea for a collective identity and for a constitution-making process to be the catalyst of such.

 

�Only the transformed consciousness of citizens, as it imposes itself in areas of domestic policy, can pressure global actors to change their own self-understanding sufficiently to begin to see themselves as members of an international community who are compelled to cooperate with one another, and hence to take one another�s interest into account� (Habermas 2001a:55)

 

For a constitution-making process to be conducted in a proper way a democratic process of legitimation is required. This takes a European civil society as well as European-wide public spheres and the shaping of a political culture. It is difficult for representatives of member states to enter into binding agreements internationally as long as they are dependent on a local electorate to be re-elected. Hence, opinion formation European-wide is necessary and can be created through a communicative context of criss-crossing national and trans-national public spheres.� Some of the elements needed for a democratic identity formation are to a certain degree in place such as a parliament, while others like European-wide parties are lacking. This is a major obstacle because as long as representatives have to report only to domestic constituencies, a European bonum commune will not be established.� Habermas sees the need for a European party system which can contribute to development of opinion and will formation nationally, and that are also connected to and �find a resonance in a pan-European political public sphere� (Habermas 2001a:103).

 

Against the accusation that this is a futile endeavour given the present mentalities and power structures Habermas, would assert that trust and an obligatory cosmopolitan solidarity can be fostered, and that

 

�� there is no call for defeatism, if one bears in mind that, in the nineteenth-century European states, national consciousness and social solidarity were only gradually produced, with the help of national historiography, mass communications, and universal conscription. If that artificial form of �solidarity amongst strangers� came about thanks to a historically momentous effort of abstraction from local, dynastic consciousness to a consciousness that was national democratic, then why should it be impossible to extend this learning process beyond national borders?� (Habermas 1999b:58).

 

 

Conclusion

We are today in the midst of a transformation process where nation state based democracy is being challenged by supra-national forms of governance. The establishment of viable democratic orders above the nation state depend on successful abstraction processes. To be able to progress from nation-state forms of allegiance and solidarity to supranational ones requires enlarged mentalities and inclusive forms of communication. Cosmopolitan democracy is the horizon and aim of such processes but not the inevitable outcome. History is man made, but as man is frail, so are political processes, hence their fallibility.

 

In table 1 the dimensions of integration from nation-state to world level that we have established in this chapter are summarised in a very simplified and schematic way.

 

Table 1 Levels of integration and the corresponding requirements of the post-national order

 

Levels of integration	Function	Type of rule	Forms of allegiance
Nation State	Collective goal attainment	Representative government	Shared attachment and we-feeling
Federation of States	Regulation and �redistribution�	Post-national demo-cratic government	Rights-based collective identity
Trans-national governance	Joint problem- solving	Networks and soft law coordination	Epistemic founded identity
A World Organisation	Security and human rights protection	A law based policy without a government	Respect for cosmopolitan law

In this reconstruction of the post-Westphalian order the nation state and the world order are conceived of as options on the thick/thin continuum with regard to identity. While the nation state form of allegiance is based on a shared sentiment of attachment the governmental structure of the state also exhibits cognitive-universalist features. Hence, there are connections to post-national forms of governance. The universalist core of the constitutional state is similar to the normative infrastructure making up the EU as a federation of member states. However, other kinds of transnational forms of governance are also necessary to tackle problems beyond the state and cope with the negative consequences of globalisation. Some of these problems may be solved adequately by intergovernmental bargaining complemented by new governance structures such as epistemic communities and a transnational civil society. However, other kinds of problems and conflicts require more firm forms of coordination in order to be resolved properly. At the global level a world organization without a government in the shape of a democratised UN is needed for handling risk protection, for sanctioning human rights abuses consistently, and for establishing security measures in general.

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End remarks

 

The post-national constellation is torn between national and cosmopolitan concerns, between particularistic and universalistic claims, because human rights are among the constitutive elements of the legitimate procedure. The democratic Rechtsstaat points beyond the confinements of a particular demos. Only in a democratic world order can human rights and popular sovereignty eventually be reconciled. Genuine democracy, hence, is not possible in one country. Interestingly globalisation brings together democracy and human rights. Globalisation makes the inhabitants of the world aware of the growing interdependence and the risk escalation and common problems that require transnational and supranational co-operation. The problem is unfettered capitalism and the uncoupling of market decisions from governmental control where �money replaces power�. However, only �power can be democratised; money cannot� (Habermas 2001a:78). To catch up with economic globalisation and human rights violations a cosmopolitan law of the people as well as a world domestic policy are needed. This analysis hinges on the achievements of discourse theory, which yet in its microelements reflects the tension between particular and universal concerns.

 

Even though the rational principles of liberalism are prioritized in discourse theory, in practical terms it strikes a balance between rights and values, between universalism and particularism. The theory has been developed and expanded in such a way that it both captures the special duties and particular obligations arising from membership in a community of fellow compatriots as well as the individual rights and obligations stemming from belonging to the universal community of humans. It is sensitive to difference and otherness � to the inherent dignity of the person - at the same time as the requirements for social integration and collective action are fleshed out. The political order of multicultural societies is explained with the help of a refined conceptual strategy based on distinctions between norms and values, between political and cultural integration, on the one hand, and with the help of a set of discourses and their embedding in social and political institutions, on the other.

 

This complex and far-reaching theoretical system originates from the theory of communicative action that Habermas conceives of having the properties necessary for being able to abstract from the local and particularistic to universalistic settings. The fundamental human capacity to speak to one another, to understand each other and to reach binding agreements via speech acts, is the basic building block of the theory. This was addressed in the first part of the book, where the concept of communicative action and the basic structure of discourse ethics were spelled out. It is from the fine capillary structures of the human language that Habermas can reconstruct the limited but important universalist basis of our political order such as individual rights, popular sovereignty, democracy, public sphere etc., as we have seen in part two of the book.

 

Habermas sees the theory as cognitivistic, formalistic and universalistic. The discourse principle (D) is to be understood as a formal principle of rationality of how to justify norms. However, certain substantial elements are involved. The procedure itself involves substantive categories and the concept of the person is not empty and purely formal. Even at the foundational level of discourse-theory certain substantive elements are involved, reflecting modernity.

 

The attention to substance is even more evident in his recent work, The future of Human Nature, [26] which deals with the dispute over the ethical self-understanding of the species in light of developments of gene manipulative technology. Here he goes a long way to establish a substantial concept of what it takes to be human. Habermas makes use of a concept of the human nature to oppose cloning of human beings: �� for the person to feel one with her body, it seems that this body has to be experienced as something natural � as a continuation of the organic, self-regenerative life from which the person was born.� (Habermas 2002:47)

 

But in general the scope for substantive values and material interests is rather large in the discourse theory of politics. The circumstances of politics � the prevalence of conflict and disagreement - are always present in the work of Habermas. He might even subscribe to Hegel�s words that the fabric of political life is made up of� the �� malestrom of external contingency and the inner particularity of passions, private interests and selfish ends, abilities and virtues, vices, force, and wrong� (1967/1821:215 �340). The potential dangers emanating from this ceaseless turmoil in the form of war and human rights violations, require safeguards. In discourse theory morality should be seen as constituting the basic rationale behind constitutional guards. It draws the boundaries that are not to be crossed. The domain for morality in the strict Kantian sense is limited. However, it is given much attention because of its importance and suitability for theoretical formulation. Its importance derives from its ability to conceive of the basic aspects of human worth and dignity that should not be traded for whatever value or interest. Morality functions as a constraint - a negative arbiter - on value and interest based actions and hence subjects political courses of action to a test; it draws the boundaries and sets the basic conditions for civilised life, but it does not constitute social and political life as such.

 

Also when dealing with aspects of globalisation, such as governance beyond the nation state, we have seen that Habermas is not unconditionally subscribing to the rational principles of a universalistic cosmopolitan world order. His caution stems from recognizing the fragility of the modern political order and its reliance on a concrete ethical substance with a culturalist imprint. The nation state based on a symbolically constructed people is not obsolete. It is still a context of solidarity. The furthering of European integration can only be conducted in a legitimate and successful way by respecting the collective identities of the Member States. It can only be accomplished by protecting diversity and ensuring solidarity.

 

However, further democratization is needed for the post-Westphalian order to achieve functional stability and normative legitimacy. This is so as there is a tension between international law�s recognition of sovereign states and the regulative idea of equal rights and freedom for all which is reflected in an actual opposition between democracy and law, and between domestic and foreign policy. The growth in international law limits the principle of popular sovereignty. On the other hand, legal orders are orders of peace, and one may say that the principle of popular sovereignty is actually being undermined by international human rights politics as well. The principle of popular sovereignty is about to be transformed into a law for the citizens of the world.

 

 

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