In this essay I use the term ’legitimation’ (and the associated term ’legit-imacy’) in a doubly restricted sense: I am referring, first, to the legiti-mation of political systems and, second, only to the legitimation ofconstitutional democracies. I begin by recalling a proposal I have madefor reconstructing the internal relation between democracy and humanrights.2 I then briefly examine a few of the aspects under which this West-ern style of legitimation is criticized today - whether in the discourseamong Western theorists or in the discourses between other cultures andthe West.
I The procedural justification of constitutional democracy
Let me begin by explicating the concept of political legitimation. Socialorders in which authority is organized through a state - orders that can,for example, be distinguished from tribal societies - experience a needfor legitimation that is already implicit in the concept of political power.Because the medium of state power is constituted in forms of law, politi-cal orders draw their recognition from the legitimacy claim of law. Thatis, law requires more than mere acceptance; besides demanding that itsaddressees give it de facto recognition, the law claims to deserve theirrecognition. Consequently, all the public justifications and constructionsmeant to redeem this claim to be worthy of recognition belong to thelegitimation of a government organized in the form of law.
This holds for all governments. Modern states are characterized bythe fact that political power is constituted in the form of positive law,which is to say: enacted and coercive law. Because the question regard-ing the mode of political legitimation is bound up with this legal form,
I would like first to delineate modern law by describmg its structure andmode of validity. Only then can I discuss the kind of legitimation associ-ated with such law.
(1) Individual rights make up the core of modern legal orders. By open-ing up the legal space for pursuing personal preferences, individual rightsrelease the entitled person from moral precepts and other prescriptionsin a carefully circumscribed manner. In any case, within the boundariesof what is legally permitted no one is legally obligated to publicly justifyher action. With the introduction of individual liberties, modern law -in contrast to traditional legal orders - validates the Hobbesian principlethat whatever is not explicitly prohibited is permitted. As a result, lawand morality split into two.3 Whereas morality primarily tells us whatour obligations are, law has a structure that gives primacy to entitle-ments. Whereas moral rights are derived from reciprocal duties, legalduties stem from the legal constraints on individual liberties. This
conceptual privileging of rights over duties is implicit in the modernconcepts of the legal person and the legal community. The moraluniverse, which is unlimited in social space and historical time, includesall natural persons with all the complexities of their life histories. Bycontrast, a legal community, which has a spatio-temporal location,protects the integrity of its members only insofar as they acquire the arti-ficial status of bearers of individual nghts.
This structure is reflected by the law’s peculiar mode of validity. Inthe legal mode of validity we find the facticity of the state’s enforcementand implementation of law intertwined with the legitimacy of thepurportedly rational procedure of lawmaking. Modern law leaves itsaddressees free to approach the law in either of two ways. They canconsider norms merely as factual constraints on their freedom and takea strategic approach to the calculable consequences of possible rule-violations, or they can comply with regulation ’out of respect for thelaw’. Kant already expressed this point with his concept of legality,which highlighted the connection between these two moments withoutwhich legal obedience cannot be reasonably expected of morallyresponsible persons. Legal norms must be so fashioned that they can beviewed simultaneously in two different ways, as laws that coerce and aslaws of freedom. It must at least be possible to obey laws not becausethey are compulsory but because they are legitimate. The validity of alegal norm means that the state guarantees both legitimate lawmakingand de facto enforcement. The state must ensure both of these: on theone hand, the legality of behavior in the sense of an average compliancethat is, if necessary, enforced through penalties; on the other hand, alegitimacy of legal rules that always makes it possible to comply with anorm out of respect for the law.
However, for the legitimacy of the legal order another formal charac-teristic is especially important, namely the positivity of enacted law.How can we ground the legitimacy of rules that are always able to bechanged by the political legislator? Constitutional norms too are change-able ; even the basic norms that the Constitution itself has declarednon-amendable share, along with all positive law, the fate that they canbe abrogated, say, after a change of regime. As long as one was able tofall back on a religiously or metaphysically grounded natural law, thewhirlpool of temporality enveloping positive law could be held in checkby morality. Even temporalized positive law was at first supposed toremain subordinate to, and be permanently oriented by, the eternallyvalid moral law, which was conceived of as a ’higher law’. But in plural-istic societies such integrating world-views and collectively binding ethi-cal systems have disintegrated.
Political theory has given a twofold answer to the question of legit-imacy : popular sovereignty and human rights. The principle of popularsovereignty lays down a procedure that, because of its democratic
features, justifies the presumption of legitimate outcomes. This principleis expressed in the rights of communication and participation that securethe public autonomy of politically enfranchised citizens. The classicalhuman rights, by contrast, ground an inherently legitimate rule of law.These rights guarantee the life and private liberty - that is, scope for thepursuit of personal life-plans - of citizens. Popular sovereignty andhuman rights provide the two normative perspectives from which anenacted, changeable law is supposed to be legitimated as a means tosecure both the private and civic autonomy of the individual.
(2) However, political philosophy has never really been able to strike abalance between popular sovereignty and human rights, or between the’freedom of the ancients’ and the ’freedom of the moderns’. Republa-canism, which goes back to Aristotle and the political humanism of theRenaissance, has always given the public autonomy of citizens priorityover the prepolitical liberties of private persons. Liberalism, which goesback to John Locke, has invoked (at least since the 19th century) thedanger of tyrannical majorities and postulated the priority of humanrights. According to republicanism, human rights owed their legitimacyto the ethical self-understanding and sovereign self-determinationachieved by a political community; in liberalism, such rights weresupposed to provide inherently legitimate barriers that prevented thesovereign will of the people from encroaching on inviolable spheres ofindividual freedom. In opposition to the complementary one-sidednessof these two traditions, one must insist that the idea of human rights -Kant’s fundamental right to equal individual liberties - must neither bemerely imposed on the sovereign legislator as an external barrier nor be
instrumentalized as a functional requisite for democratic self-determi-nation.4
To express this intuition properly, in what follows I start with the
following question: What basic rights must free and equal citizens mutu-ally accord one another if they want to regulate their common life legit-imately by means of positive law? This idea of a constitution-makingpractice links the expression of popular sovereignty with the creation ofa system of rights. Here I assume a principle that I cannot discuss in
detail, namely, that a law may claim legitimacy only if all those possiblyaffected could consent to it after participating in rational discourses. Asparticipants in ’discourses’, we want to arrive at shared opinions bymutually convincing one another about some issue through arguments,whereas in ’bargaining’ we strive for a balance of different interests.(One should note, however, that the fairness of bargained agreementsdepends in turn on discursively justified procedures of compromiseformation.) Now, if discourses (and bargaining processes) are the placewhere a reasonable political will can develop, then the presumption oflegitimate outcomes, which the democratic procedure is supposed tojustify, ultimately rests on an elaborate communicative arrangement: theforms of communication necessary for a reasonable will-formation ofthe political lawgiver, the conditions that ensure legitimacy, must belegally institutionalized.
The desired internal relation between human rights and popularsovereignty consists in this: human rights institutionalize the communi-cative conditions for a reasonable political will-formation. Rights, whichmake the exercise of popular sovereignty possible, cannot be imposedon this practice like external constraints. To be sure, this claim is
immediately plausible only for political rights, that is, the rights ofcommunication and participation; it is not so obvious for the classicalhuman rights that guarantee the citizen’s private autonomy. The humanrights that guarantee everyone a comprehensive legal protection and anequal opportunity to pursue their private life-plans clearly have anintrinsic value. They are not reducible to their instrumental value fordemocratic will-formation.
At the same time, we must not forget that the medium throughwhich citizens exercise their political autonomy is not a matter of choice.Citizens participate in legislation only as legal subjects; it is no longer intheir power to decide which language they will make use of. Hence thelegal code as such must already be available before the communicativepresuppositions of a discursive will-formation can be institutionalized inthe form of civil rights. To establish this legal code, however, it is
necessary to create the status of legal persons who as bearers of indi-vidual rights belong to a voluntary association of citizens and can, whennecessary, effectively claim their rights. There is no law without the
private autonomy of legal persons in general. Consequently, without theclassical liberty rights, in particular the basic right to equal individualliberties, there also would not be any medium in which to legally insti-tutionalize the conditions under which citizens could participate in thepractice of self-determination.
This shows how private and public autonomy reciprocally presup-pose each other. The internal relation between democracy and the rule oflaw consists in this: on the one hand, citizens can make appropriate useof their public autonomy only if, on the basis of their equally protectedprivate autonomy, they are sufficiently independent; on the other hand,they can realize equality in the enjoyment of their private autonomy onlyif they make appropriate use of their political autonomy as citizens.Consequently, liberal and political basic rights are inseparable. The imageof kernel and husk is misleading - as though there were a core area ofelementary liberty rights that would have priority over rights ofcommunication and participation.5 For the Western style of legitimation,the co-originality of liberty rights and the rights of citizens is essential.
11 The self-criticism of the West
Human rights are Janus-faced, looking simultaneously toward moralityand the law. Their moral content notwithstanding, they have the formof legal rights. Like moral norms, they refer to every creature ’that bearsa human countenance’, but as legal norms they protect individualpersons only insofar as the latter belong to a particular legal community- normally the citizens of a nation-state. Thus a peculiar tension arisesbetween the universal meaning of human rights and the local conditionsof their realization: they should have unlimited validity for all persons -but how is that to be achieved? On the one hand, one can imagine theglobal expansion of human rights in such a way that all existing statesare transformed - and not just in name only - into constitutional democ-racies, while each individual receives the right to a nationality of his orher choice. We are obviously a long way from achieving this goal. Analternative route would emerge if each individual attained the effective
enjoyment of human rights immediately, as a world citizen. In this sense,Article 28 of the United Nations Declaration of Human Rights refers toa global order ’in which the rights and freedoms set forth in this Declar-ation can be fully realized’. But even the goal of an actually insti-tutionalized cosmopolitan legal order lies in the distant future.
In the transition from nation-states to a cosmopolitan order, it is
hard to say which poses the greater danger: the disappearing world ofsovereign subjects of international law, who lost their innocence longago, or the ambiguous mish-mash of supranational institutions and
conferences, which can grant a dubious legitimation but which dependas always on the good will of powerful states and alliances.6 In thisvolatile situation, human rights provide the sole recognized basis of legit-imation for the politics of the international community; nearly everystate has by now accepted, at least on paper, the United Nations Declar-ation of Human Rights. Nevertheless, the general validity, content andranking of human rights are as contested as ever. Indeed, the humanrights discourse that has been argued on normative terms is plagued bythe fundamental doubt about whether the form of legitimation that hasarisen in the West can also hold up as plausible within the frameworksof other cultures. The most radical critics are Western intellectuals them-selves. They maintain that the universal validity claimed for humanrights merely hides a perfidious claim to power on the part of the West.
This is no accident. To gain some distance from one’s own traditionsand to broaden limited perspectives is one of the advantages of occi-dental rationalism. The European history of the interpretation and real-ization of human rights is the history of such a decentering of our wayof viewing things. So-called equal rights have only been graduallyextended to oppressed, marginalized and excluded groups. Only aftertough political struggles have workers, women, Jews, Romany, gays andpolitical refugees been recognized as ’human beings’ with a claim to fullyequal treatment. The important thing now is that the individualadvances in emancipation reveal in hindsight the ideological functionthat human rights had also fulfilled up to that time. That is, the egali-tarian claim to universal validity and inclusion had also always servedto mask the de facto unequal treatment of those who were silentlyexcluded. This observation has aroused the suspicion that human rightsmight be reducible to this ideological function. Have they not alwaysserved to shield a false universality - an imaginary humanity, behindwhich an imperialistic West could conceal its own ways and interests?Following Martin Heidegger and Carl Schmitt, Western intellectualshave read this hermeneutic of suspicion in two ways, as a critique ofreason and as a critique of power.
According to the first reading, the idea of human rights is the expres-sion of a specifically Western notion of reason that has its origins inPlatonism. Spurred by an ’abstractive fallacy’, this notion leaps beyondthe boundaries of its original context of emergence, thus exceeding themerely local validity of its alleged universality. The critique of reasoncontends that every tradition, world-view, or culture has inscribed itsown - indeed incommensurable - standards for what is true and false.But this levelling critique fails to notice the peculiar self-referential char-acter of the discourse of modernity. The discourse of human rights is alsoset up to provide every voice with a hearing. Consequently, this discourseitself sets forth the standards in whose light the latent violations of its
own claims can be discovered and corrected. Lutz Wingert has calledthis the ’detective aspect’ of human rights discourses: human rights,which demand the inclusion of the other, function at the same time assensors for exclusionary practices exercised in their name.7
The variants of the critique of power proceed somewhat moreawkwardly. They too deny the claim to universal validity by referring tothe genetic priority of a suppressed particularity. But this time a reduc-tionistic feint suffices. The normative language of law can supposedlyreflect nothing else but the factual claims to power of political self-assertion ; according to this view, consequently, universal legal claimsalways conceal the particular will of a specific collectivity to have its ownway. But the critics of power forget that the more fortunate nationslearned in the 18th century how sheer power can be domesticated bylegitimate law. ’He who says &dquo;humanity&dquo; is lying’ - this familiar pieceof German ideology only betrays a lack of historical experience. 8
III The discourse between the West and other cultures:’Asiatic values’
Western intellectuals should not confuse their discourse over their ownEurocentric biases with the debates in which members of other culturesengage them. True, in the cross-cultural discourse we also encounterarguments that the spokespersons of other cultures have borrowed fromEuropean critics in order to show that the validity of human rightsremains imprisoned, despite everything, in the original Europeancontext. But those non-Western critics, whose self-consciousness comesfrom their own traditions, certainly do not reject human rights lock,stock, and barrel. The reason is that other cultures and world religionsare now also exposed to the challenges of social modernity, just asEurope was in its day, when it in some sense ’discovered’ or ’invented’human rights and constitutional democracy.
In what follows I will take the apologetic role of a Western partici-pant in a cross-cultural discussion of human rights. My working hypoth-esis is that those standards stem less from the particular cultural
background of Western civilization than from the attempt to answerspecific challenges posed by a social modernity that has in the meantimecovered the globe. Whether we evaluate this modern starting-point oneway or another, they confront us today with a fact that leaves us nochoice and thus neither requires, nor is capable of, a retrospectivejustification. The contest over the adequate interpretation of humanrights concerns, not the desirability of the ’modern condition’, but ratheran interpretation of human rights that does justice to the modern worldfrom the viewpoint of other cultures as well as our own. The controversy
turns above all on the individualism and secular character of humanrights that are centered in the concept of autonomy.
For the purposes of clarity I base my metacritical remarks on adescription that provides a frank expression of the Western standards oflegitimacy. The above reconstruction of the relation between libertyrights and the rights of citizens starts from a situation in which weassume that free and equal citizens take counsel together on how theycan regulate their common life not only by means of positive law butalso legitimately. I recall in advance three implications of this proposal,which are relevant for the further course of the argument:
(a) This model begins with the horizontal relationships that citizenshave with one another. Only in a second step, and thus only on an estab-lished rights basis, does the model introduce the relationships that citi-zens have to the functionally necessary state apparatus. This allows usto avoid the liberal fixation on the question of how one controls thestate’s monopoly on force. Although the liberal question is understand-able from the perspective of European history, it shoves the more innocu-ous question about the solidaristic justification of a political communityinto the background.
(b) In the model I propose, the starting question assumes that we cantake the medium of enacted, coercible law more or less at face value aseffective and unproblematic. Unlike classical contract theory, the
proposed model does not treat the creation of an association of legalpersons, defined as bearers of individual rights, as a decision in need ofnormative justification. A functional account suffices as justification,because complex societies, whether Asian or European, seem to have nofunctional equivalent for the integrative achievements of law. This kindof artificially created norm, at once compulsory and freedom-guaran-teeing, has also proven its worth for producing an abstract form of civicsolidarity among strangers who want to remain strangers.
(c) Finally, the model of constitution-making is understood in such away that human rights are not pre-given moral truths to be discoveredbut rather are constructions. Unlike moral rights, it is rather clear thatlegal rights must not remain politically non-binding. As individual, or’subjective’, rights, human rights have an inherently juridical nature andare conceptually oriented toward positive enactment by legislative bodies.
These reflections change nothing about the individualistic style andsecular basis of legal systems based on human rights; indeed, theyemphasize the centrality accorded to autonomy. At the same time,however, they cast a different light on the criticisms one hears in thecross-cultural discourse, which target both aspects of Western legalsystems.
As became evident at the Vienna Conference on Human Rights, adebate has gotten underway since the 1991 report of the Singapore
regime on ’Shared Values’ and the 1993 Bangkok Declaration jointlysigned by Singapore, Malaysia, Taiwan and China. In this debate thestrategic statements of government representatives are in part alliedwith, and in part clash with, the contributions of oppositional and inde-pendent intellectuals. The objections are essentially directed against theindividualistic character of human rights. The critique, which invokesthe indigenous ’values’ of far-eastern cultures shaped by Confucianism,moves along three lines. Specifically, the critics (1) question the prin-cipled priority of rights over duties, (2) appeal to a particular communi-tarian ’hierarchy’ of human rights, and (3) lament the negative effectsthat an individualistic legal order has on the social cohesion of thecommunity.
(1) The core of the debate lies in the thesis that the ancient cultures ofAsia (as well as the tribal cultures of Africa9) accord priority to thecommunity over the individual and do not recognize a sharp separationbetween law and ethics. The political community is traditionally inte-grated more by duties than by rights. The political ethic recognizes noindividual rights, but only rights that are conferred on individuals. Forthis reason, the individualistic legal understanding of the West is
supposedly incompatible with the community-based ethos that is deeplyanchored in a particular tradition and that requires individualconformity and subordination.lo
It seems to me that the debate takes a false turn with this referenceto cultural differences. In fact, one can infer the function of modern lawfrom its form. Individual rights provide a kind of protective belt for theindividual’s private conduct of life, and in two ways: rights protect theconscientious pursuit of an ethical life-project just as much as they securean orientation toward personal preferences free of moral scrutiny. Thislegal form is tailored for the functional demands of modern economicsocieties, which rely on the decentralized decisions of numerous inde-pendent actors. However, Asiatic societies too deploy positive law as asteering medium in the framework of a globalized system of marketrelations. They do so for the same functional reasons that once allowedthis form of law to prevail in the Occident over the older guild-basedforms of social integration. Legal certainty, for example, is one of thenecessary conditions for a commerce based on predictability, account-ability and good faith protections. Consequently, the decisive alterna-tives lie not at the cultural but at the socioeconomic level. Asiaticsocieties cannot participate in capitalistic modernization without takingadvantage of the achievements of an individualistic legal order. Onecannot desire the one and reject the other. From the perspective of Asiancountries, the question is not whether human rights, as part of anindividualistic legal order, are compatible with the transmission of one’s
own culture. Rather, the question is whether the traditional forms ofpolitical and societal integration can be reasserted against - or mustinstead be adapted to - the hard-to-resist imperatives of an economicmodernization that has won approval on the whole.
(2) These reservations about European individualism are often expressednot for normative reasons but with a strategic intention. This intentioncan be recognized insofar as the arguments are connected with the politi-cal justification of the more or less ’soft’ authoritarianism that charac-terizes the dictatorships of developing nations. This is especially true ofthe dispute over the hierarchy of human rights. The governments ofSingapore, Malaysia, Taiwan and China appeal to a ’priority’ of socialand cultural basic rights in an effort to justify the violations against basiclegal and political rights of which the West accuses them. These dictator-ships consider themselves authorized by the ’right to social development’- apparently understood as a collective right - to postpone the realiza-tion of liberal rights and rights of political participation until their coun-tries have attained a level of economic development that allows them tosatisfy the basic material needs of the population equally. For a popu-lation in misery, they claim, legal equality and freedom of opinion arenot so relevant as the prospect of better living conditions.
One cannot convert functional arguments into normative ones this
easily. True, some conditions are more beneficial than others for thelong-term implementation of human rights. But that does not justify anauthoritarian model of development, according to which the freedom ofthe individual is subordinated to the ’good of the community’ as it is
paternalistically apprehended and defined. In reality, these governmentsdo not defend individual rights at all, but rather a paternalistic caremeant to allow them to restrict rights that in the West have beenconsidered the most basic (the rights to life and bodily integrity, therights to comprehensive legal protection and equal treatment, to
religious freedom, freedom of association, free speech, and so forth).From a normative standpoint, according ’priority’ to social and culturalbasic rights does not make sense for the simple reason that such rightsonly serve to secure the ’fair value’ (Rawls) of liberal and political basicrights, i.e. the factual presuppositions for the equal opportunity to exer-cise individual rights. 11
(3) The two arguments above are often linked with a critique of thesuspected effects of an individualistic legal order, which appears toendanger the integrity of the naturally emergent living systems of family,neighborhoods and politics. According to this critique, a legal order thatequips persons with actionable individual rights is set up for conflict andthus at odds with the orientation of the indigenous culture toward
consensus. It helps if we distinguish the principled reading of this criti-cism from a political reading.
From the principled point of view, the reservations about the indi-vidualistic style of European human rights are backed by the justifiedcritique of an understanding of rights that stems from the Lockeantradition and that has been revived today by neoliberalism. This posses-sive individualism misses the idea that actionable individual rights canonly be derived from the pre-existing, indeed intersubjectively recog-nized norms of a legal community. It is true that individual rights arepart of the equipment of legal persons; but the status of legal persons asrights-bearers develops only m the context of a legal community whichis premised on the mutual recognition of its freely associated members.Consequently, the understanding of human rights must jettison the meta-physical assumption of an individual who would exist prior to all social-ization and would, as it were, come into the world already equipped withinnate rights. However, dropping this ’Western’ thesis also makes its’Eastern’ antithesis unnecessary - that the claims of the legal communityhave priority over individual legal claims. The choice between ’indi-vidualist’ and ’collectivist’ approaches disappears once we approachfundamental legal concepts with an eye toward the dialectical unity ofindividuation and socialization processes. Because even legal persons areindividuated only on the path to socialization, the integrity of individualpersons can be protected only together with the free access to those inter-personal relationships and cultural traditions in which they can main-tain their identities. Without this kind of ’communitarianism’, a properlyunderstood individualism remains incomplete.
In contrast to the principled critique, the political objection to thedisintegrating effects of modern law is rather weak. The processes ofeconomic and social modernization, which are both accelerated andviolent in the developing nations, must not be confused with the legalforms in which social disintegration, exploitation and the abuse ofadministrative power occur. The only means of countering the factualoppression exercised by the dictatorships of developing nations is a
juridification of politics. The integration problems that every highlycomplex society has to master can be solved by means of modern law,however, only if legitimate law helps to generate that abstract form ofcivic solidarity that stands and falls with the realization of basic rights.l2
IV The challenge of fundamentalism
The attack on the individualism of human rights targets one aspect ofthe underlying concept of autonomy, namely the liberties that are
guaranteed to private citizens vis-a-vis the state and third parties. But
citizens are autonomous in a political sense only when they give them-selves their laws. The model of a constitutional assembly points towarda constructivist conception of basic rights. Kant conceived autonomy asthe capacity to bind one’s own will by normative insights that result fromthe public use of reason. This idea of self-legislation also inspires theprocedure of democratic will-formation that makes it possible to basepolitical authority on a mode of legitimation that is neutral towardworld-views. As a result, a religious or metaphysical justification ofhuman rights becomes superfluous. To this extent, the secularization ofpolitics is simply the flip-side of the political autonomy of citizens.
The European conception of human rights is open to attack by thespokespersons of other cultures not only because the concept of auto-nomy gives human rights an individualistic character, but also becauseautonomy implies a secularized political authority uncoupled fromreligious and cosmological world-views. In the view of Islamic,Christian, or Jewish fundamentalists, their own truth-claim is absolutein the sense that it deserves to be enforced even by means of politicalpower, if necessary. This outlook has consequences for the exclusivecharacter of the polity; legitimations based on religions or world-viewsof this sort are incompatible with the inclusion of equally entitled non-believers or persons of other persuasions.
However, a profane legitimation through human rights, and thus theuncoupling of politics from divine authority, poses a provocative chal-lenge not only for fundamentalists. Indian intellectuals, such as AshisNandy, have also written ’anti-secularization manifestos’.13 They expectthe mutual toleration and cross-fertilization of Islamic and Hindu
religious cultures to develop more from a reciprocal interpenetration ofthe modes of religious perception of both cultures than from the neutral-ity of the state toward world-views. They are skeptical about an officialpolitics of neutrality that merely neutralizes the public meaning ofreligion. Such considerations, however, combine the normative question- how one can find a shared basis for a just political life in common -with an empirical question. The differentiation of a religious sphereseparate from the state may in fact weaken the influence of privatized’gods and demons’. But the principle of toleration itself is not directedagainst the authenticity and truth-claims of religious confessions andforms of life; rather, its sole purpose is to enable their equally entitledcoexistence within the same political community.
The central issue in the controversy cannot be described as a disputeover the relevance that different cultures each give to religion. Theconception of human rights was the answer to a problem that onceconfronted Europeans - when they had to overcome the political conse-quences of confessional fragmentation - and now confronts othercultures in a similar fashion. In any event, the conflict of cultures takes
place today in the framework of a world society in which the collectiveactors must, regardless of their different cultural traditions, agree forbetter or worse on norms of coexistence. The autarkic isolation againstexternal influences is no longer an option in today’s world.
However, the pluralism of world-views is also breaking out msidesocieties that are still conditioned by strong traditions. Even m societiesthat, culturally speaking, are comparatively homogeneous, a reflexivereformulation of the prevailing dogmatic traditions is increasingly harderto avoid. 4 The awareness is growing, first of all among the intellectuals,that one’s own religious truths must be brought into conformity withpublicly recognized secular knowledge and defended before otherreligious truth-claims in the same universe of discourse. Like Christiamtysince the Reformation, traditional world-views are thus being trans-formed into ’reasonable comprehensive doctrines’ under the reflexivepressure generated by modern life circumstances. This is how Rawls
designates an ethical world-view and self-understanding that has becomereflexive, open to reasonable disagreement with other belief systems butalso able to reach an understanding with them on the rules of equal co-existence. 15
My apologetic reflections present the Western mode of legitimationas an answer to general challenges that are no longer simply problemsjust for Western civilization. Naturally, this does not mean that theanswer found by the West is the only one or even the best one. To thisextent, the current debate provides us with an opportunity to becomeaware of our own blind spots. However, hermeneutical reflection on thestarting-point of a human rights discourse among participants fromdifferent cultures draws our attention to normative contents that arepresent in the tacit presuppositions of any discourse whose goal ismutual understanding. That is, independently of their cultural back-grounds all the participants intuitively know quite well that a consensusbased on conviction cannot come about as long as symmetry relationsdo not exist among the participants - relations of mutual recognition,reciprocal perspective-taking, a shared willingness to consider one’s owntradition with the eyes of the stranger and to learn from one another,and so forth. On this basis, we can criticize not only selective readings,tendentious interpretations and narrow-minded applications of humanrights, but also that shameless instrumentalization of human rights thatconceals particular interests behind a universalistic mask - a deceptionthat misleads one to the false assumption that the meaning of humanrights is exhausted by their misuse.
This article originally appeared in The Modern Schoolman, Volume 75,Number 2 (January) 1998. It is republished here with permission.
Notes
1 An earlier version of this paper was read at the Conference on Globaliz-ation held at Saint Louis University, 18-19 October 1996.
2 Jurgen Habermas, Between Facts and Norms: Contributions to a DiscourseTheory of Law and Democracy, trans. William Rehg (Cambridge, MA:MIT Press, 1996), Chap. 3.
3 Ingeborg Maus, ’Die Trennung von Recht und Moral als Begrenzung desRechts’, in Maus, Zur Aufklarung der Demokratietheorie (Frankfurt amMain: Suhrkamp, 1992), pp. 308-36.
4 On the following, see also Jurgen Habermas, ’On the Internal Relationbetween the Rule of Law and Democracy’, European Journal of Philosophy3 (1995): 12-20; also forthcoming in Habermas, The Inclusion of the Other:Studies in Political Theory, trans. Ciaran Cronin (Cambridge, MA: MITPress). Here I cannot go into the sympathetic critique of Ingeborg Maus,’Freiheitsrechte und Volkssouveranitat’, Rechtstheorie 26 (1995): 507-62.
5 However, R. Herzog, ’Die Rechte des Menschen’, Die Zeit, 6 September1996, correctly distinguishes the justification of human rights from theirimplementation.
6 Ingeborg Maus, ’Weltfrieden, Menschenrechte und Volkssouveranitat: DasProjekt Immanuel Kants und die Globalisierungskonzepte der Gegenwart’,ms 1996.
7 Lutz Wmgert, ’Turoffner zu geschlossenen Gesellschaften’, FrankfurterRundschau, 6 August 1995.
8 For a comprehensive critique of Carl Schmitt’s legal theory, see IngeborgMaus, Burgerliche Rechtstheorie und Faschismus: Zur sozialen Functionund aktuellen Wirkung der Theorie Carl Schmitts, 2nd edn (Munich: Fink,1980).
9 Compare the parallel position of the Nigerian political scientist Claude Ake,’The African Context of Human Rights’, Africa Today 34 (1987): 5: ’Theidea of human rights, or legal rights in general, presupposes a society whichis atomized and individualistic, a society of endemic conflict. It presupposesa society of people conscious of their separatedness and their particularinterests and anxious to realize them.... We put less emphasis on the indi-vidual and more on the collectivity, we do not allow that the individual hasany claims which may override that of the society. We assume harmony, notdivergence of interests, competition and conflict; we are more inclined tothink of our obligations to other members of our society rather than of ourclaims against them.’
10 Yash Ghai, ’Human Rights and Governance: The Asia Debate’, Center forAsian Pacific Affairs, November 1994, pp. 1-19.
11 See my exchange with Gunther Frankenberg in Habermas, ’Reply toSymposium Participants’, Cardozo Law Review 17 (1996): 1542-5.
12 Cf. Ghai, ’Human Rights and Governance’, p. 10: ’Governments have
destroyed many communities in the name of development or state stability,and the consistent refusal of most of them to recognize that there areindigenous peoples among their population who have a right to preservetheir traditional culture, economy and beliefs, is but a demonstration oftheir lack of commitment to the real community. The vitality of the
community comes from the exercise of rights to organize, meet, debate, andprotest, dismissed as "liberal" rights by these governments.’
13 Partha Chatterjee, ’Secularism and Toleration’, Economic and PoliticalWeekly (9 July 1994): 1768-76; Rajeev Bhargave, ’Giving Secularism ItsDue’, Economic and Political Weekly (9 July 1994): 1784-91.
14 H. Hoibraaten, ’Secular Society’, in Islamic Law Reform and HumanRights, ed. T. Lindholm and K. Vogt (Oslo: Nordic Human Rights Publi-cations, 1993), pp. 231-57.
15 John Rawls, Political Liberalism (New York: Columbia University Press,1993).
