Pluralism and the Universality of Rights
Hans Jörg Sandkühler
One of the most essential elements of the modern culture of law is to think of the idea of law as having its basis in reason - be it the metaphysical notion of reason, be it - from a more pragmatic viewpoint - the rationality of reasonable persons. 'Reason' is the human capacity for self-rule and for shaping reality in a humane way. True, the substantial notion of reason, that it be existent in its own right and independent of human influence, no longer belongs to the self-conception of most cultures. The interests and the attitudes, the experiences and the world-views of 'reasonable persons' (the concrete individuals) have in modern societies become pluralistic.
The constitutional state, the fundamental and human rights are - under the conditions of 'factual pluralism' (1) - the answer to the question of how to achieve a more just world.
In the following paper I would like to draw your attention to some of the issues linked to the concept of law in pluralistic societies. In three steps I will try to substantiate the fact that, and for what reason, fundamental rights and human rights provide the basis for the legitimation of the modern state in its constitutional form.
The crucial question is to whether - and if so, how - guidelines can be formulated which, given the existence of factual pluralism, can bind both the state as well as the law to an unqualifiable fundamental norm. My initial response to this question is: state and law share this norm as the basis of their morality and rationality, not as result of any particular material ethics which may exist in competition in the various cultures, but rather through the positivised fundamental and human rights.
The situation in which we debate law is a paradox one. In modern times the enforcement of subjectivity and individual rights has given rise to a collision of interests and because of this has made necessary the juridification, or regulation by law of the life relations of society which were previously regulated by conformity in morals and ethical practice. This paradox can be reduced to the following simple formula: The more freedom, the more law; the more law, the more state; the more state, the less freedom; and the less freedom, the greater the necessity of law.
At the very beginning of the age-old struggle for fundamental and human rights, which ought really to be everyone's birth rights, the issues were primarily rights of defence, the idea of guaranteeing freedom by law against state tutelage and repression. The addressee was - and still is - not the state in any abstract way, but rather its concrete institutions, inasmuch as they initiate restrictions on freedom and violations of justice. These defence rights are intended to bolster, to guarantee the state - an obvious dilemma. Today we are confronted with quite a different situation: firstly, fundamental rights today are assuming ever more the status of the individual's rights of defence against oppression from non-state social forces. And secondly - whilst maintaining their function as defence rights - they have assumed the form of legal claims, rights in law granted mutually by the citizens within the state themselves. My thesis is that not only our human rights have undergone an alteration during this process, but also the very state itself. This transformation is in comparison to the classic power state so great that I speak of the new state, or - to be more prudent- of the historic development to the new state.
2. From Critique of the State to a Plea for the Constitutional State
The obvious change of paradigms from power state to democratic constitutional state in many societies whose democratic constitutions are the result of historic struggle is manifested in the assertion of the constitutional and social state: This state is entrusted with the functions of rational planning and just wealth distribution and it is an essential condition for the autonomous individual and social life of its citizens. The law no longer has the function of providing legitimation retrospectively; it now provides the basis for state action. Two important characteristics are: firstly, the autonomy of the law vis a vis political power and secondly, democracy - now no longer simply the state form, but now as guiding principle for the shaping of societal life in its entirety and including the economy.
Inevitably, this process gives rise to problems of a new kind: The given 'factual pluralism' makes it impossible to presuppose a system of norms of correct behaviour which can be comprehended by everyone and accepted by all members of society. On the other hand, it is impossible not to arrive at decisions as to what is considered to be legitimate. To quote Gustav Radbruch: Should no-one be able to determine what is just, then someone must determine what is to be legitimate.
Assuming the constitution contains the criteria for the functions which the state is permitted to perform as well as for its constraints, and that firstly the functions are to guarantee freedom through placing constraints on power and secondly the functions are also to fulfil the role of legitimation for the power monopoly of the state, then this is positive law and must be seen within the context of G. Radbruch's general observations on positive law: The constitution must "serve the social order and the certainty of the law" and be strong enough to end "the struggle of convictions" and of competing interests. In order to exert the influence commensurate with this commitment it also holds true that: As positive law it is only able to "fulfil this guarantee function upon the condition that (its) commitment is not towards the subjects of the administration of law alone, but also towards the legislator itself. (...) Legislation is only entrusted to the legislator upon the condition that the legislator himself submits to the rule of law. A state which is prepared to submit to its own laws is known as (...) a constitutional state. Relativism advances the constitutional state." (2)
If a political decisionism of the Carl Schmidt type is to be avoided, it follows that "the laws and political institutions must be subjected to ethical critique"; the criteria for this critique are to be found especially in political justice as "the basic concept of an ethical critique of law and state". (3) Where, though, are we to search for the criteria and gages for a critique of the state if they are not self-evident in generally accepted norms - be they religious, or secular?
Especially from the communitarian side, it is postulated that the 'politics of keeping animals encaged' is incapable of presenting real solutions for today's problems. The program of liberal democracy has - as is criticised - "little affinity for the ideal of citizenship that perceives man to be a political being by nature". To be a citizen of the state is in the mind of the liberals to occupy "an artificial role into which natural man slips by way of shrewdness and in order to protect his lonely human existence". (4) It is therefore somewhat surprising that communitarians find themselves at one with liberalists in their strategy of state critique, viz. the call for less state. The one part wants to set the state constraints in the name of sociality and the public good, whose protection can be better guaranteed in the family and in groups, and the other part in the name of freedom of the individual.
Following on the end of the metaphysics of 'substantial reason', this is a precarious strategy. Communitarians and liberalists alike fail to recognise that it is precisely 'factual pluralism' which compels us to rethink the correlation between freedom, law and the state. Although it is true that the globalisation of the neo-liberal individualistic economy is linked to a solipsistic ideology, it is also true that pluralism is also accompanied by a new culture, one in which cultures are confronted with each other, histories intersect and territories overlap. It is in this new culture that human rights have their place. It is human rights which make what the philosophers call man's 'being-in-the-world' concrete and global. In generality of human rights, at one and the same time universal and concrete, we really do find ourselves in the world. This lifeworld resembles less and less the classic national state (5) and less and less an economy confined within national borders. In many aspects of the modern political world it heralds the end of nation-statehood; the process is flanked by the rediscovery of regional cultural identity and local autonomy. In other words: The unification of human beings in the idea of justice and law is accompanied by liberation to the type of cultural difference which exists in a recognition of the otherness of others and the selfhood of oneself, thus first enabling the identities of cultures - also law cultures. (6) The subject of human rights is not the hypothetical, abstract 'man in genral', but rather the individual person in a culture of law.
What does all this entail for the investigation into the functions and limitations of the state? It means, on the one hand to free oneself from all functions of the authoritarian state and to defend the new state, the state of law, in its essential tasks. Functions which the state has derived from the ontology of the nation, from the ideology of race and from the priorities of separate economic lobbies present a danger. The functions to be defended are those attributed to the constitutional state as the organon of law in the interest of freedom and dignity for the individual. The call for 'less state' is not a priori the voice of emancipation. It must always be clarified precisely which state and which state functions are meant. It holds both for the Stalinistic state as well as for the neo-liberal concept that constraints placed upon the constitutional state lead to the abolition of the public sphere and to the subsequent empowerment of interests having no right to privileges in a pluralistic society. Often the de-legitimising critique of the state goes hand in hand with a legitimation of the terror of the particular.
Today the globalisation of one dominant form of particularity, and privacy is no longer a utopian scenario - its name is 'capitalism', and one should not shrink from calling capitalism by its name. Under these circumstances, what is entailed when in the name of freedom the plea is raised for 'a farewell to state'? The Hamburg based expert on state theory Stefan Breuer says: "The social, ecological and economic state, on the one hand, and on the other hand the transnational, international and supranational regimes together represent the most significant metamorphoses by means of which the modern state reacts to the predicaments brought forth by capitalism. It has not yet been sufficiently explained, though, whether we are talking of a metamorphosis whose design, the pattern, remains recognisable through all its changes in configuration; or whether it is a metamorphosis (...) which entails degeneration, a degradation. Could it not be that modern capitalism constitutes a world-historic novel type of social order, whose expansion à la longue takes place at the expense of statehood?" Max Weber still envisaged that "the state would emerge as victor from the conflict between order configurations". But since the modern state in its constitutional form has emerged precisely due to the counter-movement against chaos, hoping through the creation of a mutually agreed constitution to ban chaos permanently, capitalism therefore constitutes an order which is caused by chaos (...) - with the known high cost to the losers. There are several indications that in the conflict between these two order types, the latter mentioned is the determining factor and that the state is doomed to suffer repeated retreats." (7)
This is the reason for my anti-critique of state critique. Naturally, due to capitalist globalisation, on the one hand, and the constant debate surrounding a possible degeneration of the state to a power state, on the other, this is not to be misconstrued as a plea for 'the state' per se. The principles of justice, equality and freedom, whose realisation is the precondition for turning human coexistence into the 'good life', today more than ever must be defended by means of shaping a civil-societal equivalent to economic globalisation - by means of a world-wide networking of strategies and activities to assert and to guarantee fundamental and human rights. There is, though, little reason for the assumption that the freedoms of man can coexist in harmony in the absence of state - in the absence of a certain type of state, in the absence of the constitutional state, one which protects the fundamental rights and has its foundations in human rights. The concept of this state necessitates investigation into its morally legitimised political purpose and the constraints on its power: The state has no ontologically guaranteed, built in stability. Rather, - and this is a positive attribute - it is constantly in danger of losing its legitimation; this can happen when its citizens no longer perceive its form as being compatible with a unified society. If freedom through law is to be achieved - against oppression and state power - then it is necessary to create the conditions in which individual freedom, the recognition of differentness and collective equality and justice are no longer at odds with another.
The issue directly connected with the state in its historically variable form of political rule pertains to its legitimation and legitimacy; the historical development has led more and more to the state being assessed not on its order function alone, but on the merits of the degree of protection, certainty of the law, freedom and political and social justice. Already according to Kant in § 45 of his The Metaphysics of Morality/Ethics, the state is to be seen as "the union of a number of people under just laws". The concept of just law is not an ethically neutral one; it implies the idea of justice. The consequences arising from this idea exert an effect on both dimensions of the normative order: on the behavioural precepts, which prescribe a particular form of action or non-action, and on the competence norms, which lay down the regulatory competence and regulatory procedures. The adherence to norms and the acceptance of state regulatory powers depend to a great deal upon a) the legitimacy of the state, b) the 'appropriateness' of the law, c) the homogeneity of the law. These three considerations must find their embodiment in the constitution; and, to an extent which is needed to obtain general approval, they must be experienced as societal reality.
Once again, it is 'factual pluralism' which poses new problems for the relationship between law and the state. Claims to the one and only material value-ethical justification for legal norms are just as futile as the claim to the one and only truth. Tight limitations are therefore placed upon positive law: firstly, the limitation which appears in the question as to precisely what it is which is to be regulated; and secondly, the limitation which arises from the more or less formal character of the constitution as 'basic norm'.
Whilst the fundamental-rights norms of democratic constitutions provide the substance for a particular system of law, it is still not apparent what "on the basis of the fundamental rights norms is to be done". Since the character of fundamental rights norms is a set of principles, it is full of openness and subject to interpretation. The legal system is - according to Robert Alexy - an "open system confronted by morals". (8) Since in society it is virtually impossible not to make decisions and to discount normative regulation, the problem concerning a relationship between state and law characterised by justice is of the utmost significance. It is at this point we must inquire into a definition of democracy. Following the end of the authoritarian state, democracy can no longer be simply seen as a mere principle of organisation of the state; according to its idea, it is the self rule of the citizens, and as such it must embrace civilian society in its entirety. It is the 'primary determining principle' for the order of the constitution. (9)
This still does not explain what 'democracy' actually entails. The forms of just rule, too, are to be seen within the context of subjective interpretations within the context of cultures. Different cultures have given rise to their own peculiar interpretations regarding forms of just rule. They have in common that concepts of democracy involving consensus are necessarily formal and to a great extent determined by procedure. This formality aside, there is one thing, though, which is inexorably linked to the concept of democracy: This form of rule, in which the citizens themselves as well as their state 'are subordinated to the law' is expression of the interdependence between state and society. It therefore follows that "the principle of democracy in the state sphere cannot be fully realised in the absence of a democratisation of society". It is the fundamental rights and the principles of social-statehood, constitutionality and the democracy they are bound to which "place the legislation, the executive power and the jurisdiction under obligation to care for the realisation of the basic decisions in the sphere of society, too." (10)
The modern democracy calls for formal principles of justice, equality and generality of law which are neutral to world interpretations. These principles are manifested in formal positive law. In the words of Hans Kelsen, who was forced to leave Germany by the Nazis, this means "to discard deeply rooted custom which was, in the name of the science of law, i.e. by referring to an objective instance, to represent political demands which can only be of the most subjective character, even when they appear to be in best faith, as ideals belonging to either a religion, a nation or a social class". (11) This is one of the answers which was given in Europe following the experience with fascism, i.e. following the experience that it is not only the state which is the potential enemy of fundamental rights, but that this terror against fundamental rights can also come from the citizens themselves, that is from us. (12) That is why the democratic civil society is also in need of the state: The law not only tolerates the state, it also makes it necessary as an institution for its own guarantee. (13)
3. The Justification of the State and Human Rights
The functioning of a political democracy which can be expected to protect fundamental rights is dependent under the conditions of capitalism upon its development to a social democracy. Only when this condition is fulfilled - here I am conform with Hermann Hellers Staatslehre (published 1934) - can the power of the state become the power of the Law; this means "for the law to function not merely technically, but to become legitimate, representing the will of morally committed authority. (...) The sanctioning (justification) of the state is only possible by relating the state function to the law function. (...) If there is no distinction between justice and injustice there can be no justification for the state. Such a distinction can only be made by means of a measure for justice, which must be assumed to be above the state and its positive law." (14) This becomes the crucial issue: Where are we to find this measure for justice? In de facto pluralistic societies it is neither possible to derive this measure from divine right, nor from the prerogatives of social groups or classes. There is divided opinion to what degree man possesses justice 'by nature'. My answer is: The only possible measure for the legitimacy of the state is provided by the positivised human rights.
In their 'third generation', human rights have become so concrete that we are no longer living in a period of mere human-rights rhetoric. (15) At he same time, they have remained sufficiently general so as to ensure their universality in different societies and for states to have committed themselves to upholding them. The same applies to human rights as to the fundamental rights: The need for laws, on the one hand, and state order on the other hand are interdependent in constellations of cultures. (16) We are not dealing with an abstract entity, and in the case of human rights, not with a mere idea. What makes human rights the foundation of the new state is their status as law, and this as positive law. The expansion, concretisation and positivisation of human rights and international law as supranational world-citizen law today constitute the essential preconditions for generality and reciprocity of granting fundamental rights between citizens. The human rights are the articulation of political freedom, which the people grant each other. They are not a gift from the state. The citizens "are at one and the same time the authors and the addressees of claims to freedom". (17) Human rights in their positivised configuration have lent reality to a hitherto utopian perspective; thus, human rights constitute the precondition for a world-citizen culture of law, which, within the individual states of quite diverse cultural types, appears with its own peculiar profile.
This is precisely what is expressed in the Universal Declaration of Human Rights of 10th December 1948: "Article 1 All men are free and equal and born with dignity and rights. They are endowed with reason and conscience and should treat each other in the spirit of brotherhood. Article 2 Every man shall benefit from the rights and freedoms laid down in this declaration, regardless of any distinction, be it race, colour, sex, language, religion, political conviction, national or social origin, be it ownership or any other circumstances. (...) Article 3 Every man has the right to live, to freedom and safety of the person." (18) It is self evident that - regardless of any particular socio-cultural conditions - the woman's foetus is no exception to the norm of human rights, the protection of life.
If we construe these human rights as being not static, but rather the result of historical development which is not yet concluded, it subsequently assumes considerable significance for the definition of fundamental rights and on determining the tasks of the state. When the state derives its obligations from human rights and commits itself in constitutions - like the German Constitution - "to inviolable and inalienable human rights as the foundation of every human society, of peace and of justice in the world" (Article 1(2)), it then follows that there is a commitment concerning "the claim to the rightness of human rights on the part of the creators of constitutional law and those who interpret the constitution and to the permanent search for the best conception of human rights." (19) It follows that the fundamental rights are only sacrosanct inasmuch that they are irreversible; but they, too, are to be the subject of further development. This is true for the right of free development of personality, the right to life and freedom from bodily harm, the inviolability of freedom of the person, equality before the law, equality of sex; negative and positive non-discrimination due to sex, parentage, race, language, native country and place of birth, faith, religious or political conviction, and so forth.
The prospects for the development of fundamental rights today no longer stem solely from the mere recital of human rights. Of special significance are the two human rights pacts of 1966, which following their adoption in 1976 now form the real basis for today's situation of law: The International Pact on Economic, Social and Cultural Rights (IPESCR) and the International Pact on Civil and Political Rights (IPCPR). These pacts contain five essential categories of human rights which can be attributed to the individual human rights. I now quote the essential rights in order to illustrate to what extent the positivisation of human rights is connected to their concretisation and operationalisation. There are as follows (1) the economic rights: the right to food; the right to be protected from hunger (IPESCR 1 1.2); the right to a reasonable standard of living, including food, clothing and shelter (IPESCR 11.2); the right to work (IPESCR 6) and working rights: The right to just and favourable working conditions (IPESCR 7); the right to education or membership of a labour union, the right to strike (IPESCR 8.) (2) The social rights: The right to social security (IPESCR 9); the rights of family, mothers and children (IPESCR 10); protection for the family, freedom of marriage, rights of children (IPESCR 10); the right to physical and mental health (IPESCR 12). (3) Cultural rights: the right to education (IPESCR 13); the right to primary education (IPESCR 14); the right to participation in cultural activities and scientific progress (IPESCR 15); minority rights (IPCPR 27). And finally (4) the civil rights: The right of recognition and equality before the law (IPCPR 16, IPCPR 26); rights of imprisoned persons regarding the death penalty, or the right to life (IPCPR 6); the prohibition of torture (IPCPR 7); the prohibition of slavery (IPCPR 8), the prohibition of arbitrary arrest (IPCPR 9); maxims for the treatment of prisoners (IPCPR 10): The right to a fair trial; equality before the court, the assumption of innocence (IPCPR 14), the prohibition of retroactive penal law (IPCPR 15); the prohibition of detention for debt (IPCPR 1 1); the right of the freedom of movement (IPCPR 12); protection for foreigners facing extradition (IPCPR 13); the right of freedom of opinion; the protection of privacy of the individual (IPCPR 17); freedom of thought, conscience and religion (IPCPR 18), the right of free expression (IPCPR 19), the prohibition of war propaganda and incitement to discrimination (IPCPR 20); the right of peaceful assembly (IPCPR 21); the right of free association (IPCPR 22); the right of participation in political life (IPCPR 25).
None of these rights are utopian. They constitute not maximum claims, but rather the minimum conditions for a life in dignity. On the other hand, though, there is no reason to be unduly optimistic about these rights. For, if justice were to be already the ruling maxim in this world, there would be no need to make justice the object of law and coercion. (20)
Would it be possible to end the pathway of seeking the explanation for state legitimacy in the fundamental rights, and fundamental rights in human rights by way of reference to the inviolability of human dignity? No, it wouldn't. This is because the concepts of human dignity (21) and of life in dignity are not exempt from the burden of historicity and the conflict of interpretation. On the one hand, the concept of human dignity constitutes a constitutional norm of objective law: Any behaviour on the part of a subject of state power which were to violate human dignity, any failure of a responsible subject of state power which were not to protect dignity when endangered, any legal system or part of it which were to permit institutional, social, or societal circumstances forcing men to live in an undignified manner or preventing dignity being upheld is unconstitutional. It is at one and the same time a subjective public law for all persons and against all the subjects of state jurisdiction and against other possible addressees, e.g. economic power. Furthermore, the content of human dignity is protected against amendments to the constitution. On the other hand, though, we still have not explained what 'human dignity' means.
Within the context of my argumentation it is important to make the following clarifications: The first and most important condition for the maintenance of human dignity is the safety of individual and social life. Neither the state, nor the rule of democracy provide this safety per se. In the very first instance, the most important condition for the maintenance of human dignity is concretised by the principle of the social state within a democratic constitutional state. This is linked inexorably to four further conditions: man's equality before the law as the second condition, the upholding of human identity and integrity as the third condition, constraints on the use of state power as fourth, and respect for the bodily contingency of man as the fifth condition. (22) Not until all these conditionsare fulfilled can the wording of the Universal Declaration of Human Rights of 10th December 1948 be considered to be societal reality: "All men are born free and equal in dignity and rights."
Human rights are the crucial answer to the question whether and how freedom and equality, pluralism and solidarity as well as state and law can be harmonised. The concept of solidarity reveals that the human-rights laws contain more than a mere formal juridification. Here, opinion is divided: neo-liberalism propagates a society without solidarity; the plea for a constitutional state is at the same time a plea for the principle of solidarity; the plea for the constitutional state advances not only the generalisation of political freedom, or civil rights, but also the social and economic human rights which not only norm the relationships within a society, but also bring a commitment of the developed rich societies to solidarity with poorer societies. An attitude of solidarity entails much more than merely respect for the other. Solidarity does not rigidify the status quo of the other, but attempts to improve its lot. (23)
This brings me to the end of my deliberations. To summarise: The legitimation of the state and the tracing of laws to right, or to be more exact: to the 'basic norm' of the constitution is not possible without an in-depth examination of the grounds for the fundamental rights. The only material grounds which are today feasible for the 'basic norm of the constitution' and the positivised fundamental rights it contains are to be seen in the totality of human rights. This thesis also embraces the dimension of non-juridified human obligations included in the concept of solidarity which - as is true for the fundamental rights - do not first arise from state or supra-state legal enactment.
The problem of substantiation of the constitutional state is linked to the problem of the universality of human rights. The states must be able to recognise a reason for adapting inner-state law to agreed norms when this is in variance with human rights. Under the conditions of 'factual pluralism' - not only within societies, but also between cultures - societies and states have developed significant preconditions for a universal human-rights law, which at the same time takes account of the heterogeneity of cultures: first, the mediation between the generality of world-citizen law and the various inner-state positivisations of fundamental rights resulting from historic law cultures; second, a clear no to that type of relativism which leads to ethno-pluralism, i.e. to ghettoising cultures and human beings. When I speak of the universality of human rights, I do not do so out of any universal ethics of European origin, but I am referring to fact: The numerous concrete human-rights pacts have become the legal norm world-wide. They continue to be violated, but this does not deter from their normative power.
(1) Cf. author, 1996, 1998. The concept was first developed by J. Rawls in Justice as Fairness (1994a) and was subject to further development in the differentiation between 'factual' and 'reasonable' pluralism (cf. 1994, p.106)
(2) Radbruch 1990, p.19
(3) Höffe 1994, p. 11.
(4) Barber 1994, p. 39.
(5) Cf. Frankenberg 1988.
(6) Cf. Mohr 1997.
(7) Breuer 1998, p. 289 s.
(8) Alexy 1996, p. 494 s.
(9) Rinken 1991, p. 210-215.
(10) AK p. 1336. Stein, Art. 20 Abs. 1-3 II 46-49. Cf. Ridder 1975.
(11) Kelsen 1985, p. XI.
(12) Cf. Maunz/Dürig-Dürig, 1994, Art. 18 Rz. 5.
(13) Cf. Böckenförde 1992, p. 51.
(14) Heller 1983, p. 246 s.
(15) Cf. Cassese 1994.
(16) Cf. Schmale 1997.
(17) Forst 1996, p. 212.
(18) Ebd. p. 272.
(19) Alexy 1999.
(20) Cf. United States Catholic Conference, Economic Justice for All: Pastoral Letter on the Catholic social Teaching and the Economy of the United States, D.C.: National Conference of Catholic Bishops, 1987, § 7.
(21) Cf. hierzu historisch und systematisch Bayertz 1999.
(22) Podlech 1989, p. 205-218.
(23) Cf. Denninger 1998, p. 335 s.
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