Between political liberalism and postnational cosmopolitanism: Toward an alternative theory of human rights

Political Theory

Volumn 31, Issue 3, 2003, Pages 359-391

  Ingram, David ^a  

^a LOYOLA UNIVERSITY CHICAGO   (United States)

Author keywords

Globalization; Habermas; Justice; Rawls; Rights

Indexed keywords

EID: 0037780538     PISSN: 00905917     EISSN: None     Source Type: Journal    
DOI: 10.1177/0090591703031003002     Document Type: Review

References (49)

1. J. Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), hereafter LP.
2. Among the human rights mentioned by Rawls are the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly) (LP, 65). Elsewhere Rawls notes that Articles 3 to 18 of the Universal Declaration of Human Rights (1948) count as universal human rights in his sense, whereas Article 1, which asserts that "all human beings are born free and equal in dignity and rights," expresses a particular liberal interpretation of human rights (LP, 80).
3. Rawls excludes from the Society of Well Ordered Peoples (i.e., peoples who are guaranteed protection from international sanction) such unreasonable peoples as outlaw states that violate human rights and benevolent dictatorships that respect human rights but deny their citizens a meaningful role in making political decisions. Also excluded are reasonable societies burdened by unfavorable economic or cultural circumstances (LP, 4). Rawls includes decent consultation hierarchies, in which only some persons are allowed to run for and hold office. Persons choose members of their own group (occupational, religious, etc.) to represent them in an assembly of group representatives but do not directly vote as individuals for government officers. Government leaders (some of whom might be chosen by a clerical hierarchy) consult the higher assembly, fairly balancing the interests of all groups.
4. Cf. Allen Buchanan, "Justice, Legitimacy, and Human Rights," in The Idea of a Political Liberalism, edited by V. Davion and C. Wolf (Lanham, MD: Rowman and Littlefield, 2000), 73-89; Kok-Chor Tan, "Liberal Toleration in Rawls's Law of Peoples," Ethics 108 (January 1998): 283-85; and Darrel Moellendorf, "Constructing the Law of Peoples," Pacific Philosophic Quarterly 77, no. 2 (1996): 283-85.
5. Cf. Allen Buchanan, "Justice, Legitimacy, and Human Rights," in The Idea of a Political Liberalism, edited by V. Davion and C. Wolf (Lanham, MD: Rowman and Littlefield, 2000), 73-89; Kok-Chor Tan, "Liberal Toleration in Rawls's Law of Peoples," Ethics 108 (January 1998): 283-85; and Darrel Moellendorf, "Constructing the Law of Peoples," Pacific Philosophic Quarterly 77, no. 2 (1996): 283-85.
6. Cf. Allen Buchanan, "Justice, Legitimacy, and Human Rights," in The Idea of a Political Liberalism, edited by V. Davion and C. Wolf (Lanham, MD: Rowman and Littlefield, 2000), 73-89; Kok-Chor Tan, "Liberal Toleration in Rawls's Law of Peoples," Ethics 108 (January 1998): 283-85; and Darrel Moellendorf, "Constructing the Law of Peoples," Pacific Philosophic Quarterly 77, no. 2 (1996): 283-85.
7. J. Rawls, A Theory of Justice. Rev. ed. (Cambridge, MA: Harvard University Press, [1971] 1999).
8. J. Rawls, Political Liberalism (PL) (New York: Columbia University Press, 1993).
9. As Rawls notes, because the original position posits its subjects as free and equal, and assumes a reasonable pluralism of comprehensive doctrines, it contradicts the circumstances of justice that obtain in illiberal consultation hierarchies (LP, 70). Hence, there is no domestic application of the original position to these peoples.
10. Cf. Brian Barry, Theories of Justice (Berkeley: University of California Press, 1989); Thomas Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989); Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979); and Joseph Carens, "Aliens and Citizens: The Case for Open Borders," Review of Politics 49, no. 92 (1987): 251-73.
11. Cf. Brian Barry, Theories of Justice (Berkeley: University of California Press, 1989); Thomas Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989); Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979); and Joseph Carens, "Aliens and Citizens: The Case for Open Borders," Review of Politics 49, no. 92 (1987): 251-73.
12. Cf. Brian Barry, Theories of Justice (Berkeley: University of California Press, 1989); Thomas Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989); Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979); and Joseph Carens, "Aliens and Citizens: The Case for Open Borders," Review of Politics 49, no. 92 (1987): 251-73.
13. Cf. Brian Barry, Theories of Justice (Berkeley: University of California Press, 1989); Thomas Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989); Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979); and Joseph Carens, "Aliens and Citizens: The Case for Open Borders," Review of Politics 49, no. 92 (1987): 251-73.
14. Joseph Carens, "Aliens and Citizens," conceives the global original position to apply to individuals rather than nations. This approach is expressly favored by Pogge in Realizing Rawls, although in a later essay, "An Egalitarian Law of Peoples," Philosophy and Public Affairs 23 (1994): 195-224, he defends a global resource tax proposal by accepting, for the sake of argument, Rawls's assumption that the global original position contain representatives of homogeneous peoples.
15. At best, Rawls favors a comprehensive Kantian philosophy that holds that the most just and stable conception of human rights is liberal democratic. Interestingly, he now concedes "the proviso" that non-public reasons might be given in civil argument but only if they are accompanied by purely public (political) reasons (LP, 125, 152).
16. Although Rawls normally talks about a plurality of "opposing" and "irreconcilable" doctrines (PL, 3), he occasionally refers to a "plurality of conflicting and incommensurable doctrines" (PL, 135). By "irreconcilable" Rawls seems to mean "uncompromising" (PL, 138); "incommensurable," by contrast, suggests that doctrines are "uncompromising" by not being fully translatable into a common public language in which they might be rationally discussed and modified. If so, incommensurability would serve to immunize doctrines from the demands of public accountability. However, as Habermas (citing well-known arguments by Donald Davidson) notes, such incommensurability is itself incoherent.
17. Habermas's contributions to this debate are contained in The Inclusion of the Other: Studies in Political Theory, edited by C. Cronin and P. De Greiff (Cambridge, MA: MIT Press, 1998), chap. 2 and 3.
18. C. Taylor, "Conditions of an Unforced Consensus on Human Rights," in The East Asian Challenge for Human Rights, edited by Joanne R. Bauer and Daniel Bell (Cambridge: Cambridge University Press, 1999), 101-19.
19. Contrary to Habermas but in agreement with Rawls, Charles Taylor proposes the idea of "alternative modernities" to capture the different legal forms by which diverse nations will institutionalize universal "norms of action," along with market-industrial economies and bureaucratic administrations. He thinks that neither these legal forms nor the specific rationales by which they are justified need refer to "subjective" or "individual" rights in the liberal sense. See C. Taylor, "Nationalism and Modernity," in The Morality of Nationalism, edited by R. McKim and J. McMahon (Oxford, UK: Oxford University Press, 1997). For a critique of Taylor's views that is sympathetic to Habermas, see T. McCarthy, "On Reconciling Cosmopolitan Unity and National Diversity," Public Culture 11, no. 1 (1997).
20. Contrary to Habermas but in agreement with Rawls, Charles Taylor proposes the idea of "alternative modernities" to capture the different legal forms by which diverse nations will institutionalize universal "norms of action," along with market-industrial economies and bureaucratic administrations. He thinks that neither these legal forms nor the specific rationales by which they are justified need refer to "subjective" or "individual" rights in the liberal sense. See C. Taylor, "Nationalism and Modernity," in The Morality of Nationalism, edited by R. McKim and J. McMahon (Oxford, UK: Oxford University Press, 1997). For a critique of Taylor's views that is sympathetic to Habermas, see T. McCarthy, "On Reconciling Cosmopolitan Unity and National Diversity," Public Culture 11, no. 1 (1997).
21. J. Habermas, Die Postnationale Konstellation. Politische Essays (Frankfurt: Suhrkamp, 1998), hereafter PC.
22. J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996), 127, hereafter BFN.
23. I thank Jeff Flynn for suggesting the distinction between justificatory and institutional priority.
24. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2d ed. (Princeton: Princeton University Press, 1996). My critical reconstruction of Shue's position is contained in David Ingram, Group Rights: Reconciling Equality and Difference (Lawrence: University Press of Kansas, 2000), chap. 11.
25. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2d ed. (Princeton: Princeton University Press, 1996). My critical reconstruction of Shue's position is contained in David Ingram, Group Rights: Reconciling Equality and Difference (Lawrence: University Press of Kansas, 2000), chap. 11.
26. The State Department urged that the Universal Declaration of Human Rights be split into two independently ratifiable treaties: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. While supporting the former covenant, the State Department has refused to endorse the latter on the grounds that these rights are less genuine and binding. Clearly, even if we accept the view, espoused by Habermas among others, that cultural and social rights cannot have priority over civil and political rights, since the former "only serve to guarantee the 'fair value' (Rawls); i.e., the actual conditions, for the equal exercise of liberal and political rights" (PC, 187), it doesn't follow that political and civil rights have priority over cultural and social rights. The mere fact that we can agree on civil and political rights with greater facility and that negative rights to noninterference are easier to discern and enforce is no reason to privilege them over economic, social, and cultural rights. In any case, the UN's division of rights is arbitrary and incoherent. Some rights, like the right to join labor unions, straddle the distinction, while most rights that fall under one covenant are ineffectual apart from being conjoined with rights falling under the other. Even as a marker of priorities, the distinction fails to take into account that within each division there are rights that are more basic (meriting greater protection) than others. Thus, the economic right to acquire land and productive capacity for profit is less basic than the economic right to bare subsistence, just as the political right to contribute money to political campaigns and parties is less basic than the right to vote. By not taking into account the priority of subsistence over market freedom, the State Department has imposed its own hyper-libertarian, hyper-individualist interpretation of basic rights in a manner that subverts - rather than promotes - the aims of liberal democracy.
27. Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000), 257-63.
28. Ibid., chaps. 6 and 7; Jordi Borja and Manuel Castells, Local and Global: Management of Cities in the Information Age (London: Earthscan, 1997).
29. 21. Ibid., chaps. 6 and 7; Jordi Borja and Manuel Castells, Local and Global: Management of Cities in the Information Age (London: Earthscan, 1997).
30. Cf. Michel Seymour, "On Redefining the Nation," The Monist 82, no. 3 (July 1999): esp. 427, 432ff.
31. Cf. M. Pensky, "Cosmopolitanism and the Solidarity Problem: Habermas on National and Cultural Identities," Constellations 7, no. 1 (2000): 64-79.
32. Following Germany's notorious appeal - in justification of its expansionist policies in the late thirties - to bilateral and multilateral treaty provisions under the League of Nations granting irredentist Germans living in Poland and Czechoslovakia special privileges and rights, the United Nations deleted all references to the rights of ethnic and national minorities in its Universal Declaration of Human Rights. Nevertheless, some of the individual rights mentioned by the Declaration are rights that are typically exercised in groups (see below). Furthermore, the United Nations has been debating both a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1993) and a draft Universal Declaration on Indigenous Rights (1988).
33. Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1991), 192-93.
34. I discuss the Kiryas Joel and the following problem of proportional representation in Ingram, Group Rights, chaps. 1 and 9.
35. Rawls cites (LP, 110, n. 39; 151, n. 46) Abdullahi Ahmed An-Na'im's book, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse: Syracuse University Press, 1990), and Leila Ahmed, Women and Gender in Islam (New Haven: Yale University Press, 1992), to support the view that Islamic divine law (at least the interpretation of Shari'a based on the early Mecca teachings of Mohammad) supports the equality of men and women and other constitutional essentials.
36. Against arguments advanced by East Asian signatories to the Bangkok Declaration (1993), Habermas insists that the rights associated with liberalism and democracy are intrinsic to modernization (PC, 181). Contrary to Rawls, he even insists that state neutrality with respect to religion is necessary for full religious toleration (PC, 187).
37. Cf. Ingram, Group Rights, chaps. 1 and 5, for a discussion of sex discrimination in aboriginal and religious communities.
38. This argument is advanced by Carens, "Aliens and Citizens." For a detailed discussion of immigration rights, see Ingram, Group Rights, chap. 6.
39. LP, 39, and M. Walzer, Spheres of Justice (New York: Basic Books, 1983), 38ff.
40. LP, 117. Rawls finds Charles Beitz's "resource redistribution principle" inconsequential because he thinks that a nation's political culture is more decisive in hindering its capacity to achieve economic independence than its level of resources. He rejects Beitz's "global distribution principle," which applies the difference principle to peoples, because it would penalize unfairly a nation that had voluntarily controlled its population or increased its rate of savings and industrial development in comparison to another nation similarly situated that had chosen not to do so. Rawls is willing to accept Thomas Pogge's Global Resources Tax on resource use but only if it specifies as its cutoff point the elevation of the world's poorest peoples to the level where their citizens' basic needs are fulfilled and they can stand on their own (LP, 119). For criticisms of Pogge's proposal, see Roger Crisp and Dale Jamieson, "Egalitarianism and a Global Resources Tax: Pogge on Rawls," in Davion and Wolf, The Idea of a Political Liberalism, 90-101; Hillel Steiner, "Just Taxation and International Redistribution," in Global Justice. NOMOS XLI, edited by I. Shapiro and L. Brilmayer (New York: New York University Press, 1999), 171-91.
41. LP, 117. Rawls finds Charles Beitz's "resource redistribution principle" inconsequential because he thinks that a nation's political culture is more decisive in hindering its capacity to achieve economic independence than its level of resources. He rejects Beitz's "global distribution principle," which applies the difference principle to peoples, because it would penalize unfairly a nation that had voluntarily controlled its population or increased its rate of savings and industrial development in comparison to another nation similarly situated that had chosen not to do so. Rawls is willing to accept Thomas Pogge's Global Resources Tax on resource use but only if it specifies as its cutoff point the elevation of the world's poorest peoples to the level where their citizens' basic needs are fulfilled and they can stand on their own (LP, 119). For criticisms of Pogge's proposal, see Roger Crisp and Dale Jamieson, "Egalitarianism and a Global Resources Tax: Pogge on Rawls," in Davion and Wolf, The Idea of a Political Liberalism, 90-101; Hillel Steiner, "Just Taxation and International Redistribution," in Global Justice. NOMOS XLI, edited by I. Shapiro and L. Brilmayer (New York: New York University Press, 1999), 171-91.
42. Charles Beitz, "Rawls's Law of Peoples," Ethics 110 (July 2000): 681.
43. Ibid., 683.
44. 35. Ibid., 691-92.
45. S. Scheffler, "The Conflict between Justice and Responsibility," in I. Shapiro and L. Brilmayer, 86-106.
46. Allen Buchanan, "Rawls's Law of Peoples: Rules for a Vanished Westphalian World," Ethics 110 (July 2000): 701-3. The Peace of Westphalia (1648) that ended decades of religious warfare between European states viewed relations between largely self-sufficient and sovereign nations in military rather than economic terms.
47. For Buchanan "states are more or less economically self-sufficient if and only if they can . . . provide adequately for the material needs of their population. . . . A state is distributionally autonomous if and only if it can determine how wealth is distributed within its borders" ("Rawls's Law of Peoples," 702).
48. For further discussion of Habermas's ambivalent attitude toward market economies, see my essay, "Individual Freedom and Social Equality: Habermas's Democratic Revolution in the Social Contractarian Justification of Law," in Perspectives on Habermas, edited by Lewis E. Hahn (Chicago: Open Court, 2000), 289-308.
49. In addition to democratizing and opening up global banking and trading institutions, such as the International Monetary Fund, the World Bank, the World Trade Organization, and the Organization for Economic Cooperation and Development, the United Nations should be restructured, either by abolishing the veto of the permanent members of the Security Council or by opening up the permanent membership to states from the Southern hemisphere. In addition to this reform, Young (Inclusion and Democracy, 273) recommends supplementing the General Assembly of nations with a People's Assembly, composed of persons, elected directly by individuals from all over the world, who would represent vulnerable subgroups, including women, indigenous people, and poor people.