Between Political Liberalism and Postnational Cosmopolitanism-Toward An Alternative Theory (David Ingran, 2003)

Between Political Liberalism and Postnational Cosmopolitanism: Toward an Alternative Theory of Human Rights Author(s): David Ingram Reviewed
work(s): Source: Political Theory, Vol. 31, No. 3 (Jun., 2003), pp. 359-391 Published by: Sage Publications, Inc. Stable URL: http://www.jstor.org/stable/3595680 . Accessed: 08/01/2013 09:30
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AND BETWEENPOLITICALLIBERALISM POSTNATIONAL COSMOPOLITANISM Towardan AlternativeTheoryof HumanRights

DAVIDINGRAM Loyola University,Chicago
and It is well knownthatRawlsand Habermaspropose differentstrategiesforjustifying classifying humanrights.Theauthorarguesthatneitherapproachsatisfieswhathe regardsas threshold conditions of determinacy,rank ordering, and completeness that any enforceable system of humanrights mustpossess. A relatedconcern is that neitherdevelops an adequateaccount of group rights, which the author arguesfulfills subsidiary conditionsfor realizinghumanrights but underspecific conditions.Thislatterdefect is especially serious in light of the different equal play in bringingabout roles thatbothsubnationalgroupsas well as supernationalorganizations a just global distributionof economic resources. Keywords:Rawls; Habermas; rights; globalization;justice
The limits of the possible in moralmattersare less narrowthanwe think.It is ourweaknesses, our vices, our prejudices,that shrinkthem. J. J. Rousseau (The Social Contract,bk. 2, chap. 12, par.2)
theoryof humanrights This essay examinesfourcriteriathatany adequate priority,and completemust satisfy: universality,prescriptivedeterminacy, ness. First,an adequatetheorymust articulateuniversalrightsthatanyratiopersoncould accept,regardnally self-interestedandreasonablyfair-minded less of cultural allegiance. Universality can designate either factual or potential agreement among reasonable people. I will argue that it should encompass potentialagreement,where the potentialityin questiondoes not preclude robust agreementon speciElcrights. Second, an adequatetheory deElned orderto be prescriptive in shouldarticulate rightsthataresufElciently and not merelyregulativein some vague and generalway. This follows from
AUTHOR 'SNOTE:Theauthoris gratefulto StephenWhite,JeffFlynn, and anonymousreaders for their commentsin revising this essay.
POLITICALTHEORY, Vol. 31 No. 3, June 2003 359-391 DOI: 10.1177/0090591703251906 (C) 2003 Sage Publications 359
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the concept of a humanrightas a legally enforceableclaim thatentitlesthose to whom it applies with some degree of fair warning.Such a requirement is of compatiblewith the progressivedetermination rights in accordancewith their increasingly universal acceptance. Third, an adequate theory should distinguishbasic from nonbasicrights,where basic rights are understoodas guaranteeingthe conditions necessary for the exercise of nonbasicrights. I arguethatthe distinctionbetween basic and nonbasicrights ought not to be interpretedas privileging one category of rights (e.g., negative rights to act withoutinterference) over othercategoriesof rights(such as positiverightsto for capacities,resources,and opportunities action).Finally,an adequatetheory shouldbe complete, in thatit includes all categoriesof rightsthatarenecessary for the full exercise of any humanright. I arguethat completeness is achievedonly when liberaldemocraticrightsareincludedamong the schedule of basic humanrights. These rights, in turn,imply cultural,social, and economic rights. In working out the details of my position I will be referringto two main types of liberal theories: cosmopolitantheories that take individualsas the primary addressees of internationallaw and political theories that take nations as theprimaryaddressees.My referencepointfor the firstkindof theory is the discourseethical theoryof law defendedby JurgenHabermas; my referencefor the second kind is the political liberaltheoryadvancedby John Rawls. These theories have much in common. Both departfrom the liberal theory of international justice set forth in Kant'sfamous treatise,Perpetual Peace (1795); both agreethatnationalsovereigntymustbe limitedby respect for universal human rights and that differing peoples must be allowed to political tradiinterpretthese rights in accordancewith their own particular tions, at least withinlimits. At the sametime, theydisagreeaboutthese limits, with Habermasaffirmingand Rawls denying the necessity of liberaldemocraticinstitutionsfor realizing a fully legitimateand stable system of rights. Althougheach of these theorieshas distinctivevirtues,neithersatisfactorily meets the fourconditionsof an adequate theoryof rightsas outlinedabove. Part I begins with a discussion of the universality criterion. While Rawlsianpolitical liberalismdoes an admirable at establishinga factual job basis for universal human rights, it does so by relinquishing prescriptive consensus on humanrights determinacy. conceding thatanyinternational By must accommodate radically incommensurable understandingsof such rights, it leaves the prescriptivemeaningof rights overly vague andindeterminate. In PartII, I argue that Habermasiandiscourse theory remedies this deficiency by establishingdialogue as a basis for negotiatingcross-cultural differencesover time. This theoryjustifies the potentialfor an ever-expanding agreementregardingthe specific meaning and deeperrationaleunderly-
THEORYOF HUMAN RIGHTS Ingram/ ALTERNATIVE
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ing rights.Althoughthis deeperagreementis postulatedas an ideal goal to be achievedover time-hence its practicallimitationsas a basis for workingout a universalschedule of rights in the present-it is a reasonabledesideratum once we (1) abandonthe-in my opinion, philosophically indefensibleinformingRawls's political libassumptionof culturalincommensurability eralism and (2) accept the likelihood that global modernizationwill incline all cultures to liberalize and democratize. Despite its advantages, Habermasiandiscourse theory does not remedy all forms of prescriptive indeterminacy.In Parts III and IV, I argue that both this theory and its fail Rawlsiancounterpart to establishan adequatecriterionfor distinguishing between basic and non-basic rights. While Rawls explicitly claims that humanrightshavepriorityover liberal(political andcivil) rightsandthatthe latterhavepriorityover economic, social, andculturalrights,it is noteworthy thateven Habermas'sgeneralreluctanceto prioritizerightsin this manneris open to doubt.I arguethat the Rawlsianapproachto rankingrightsis unacceptable and defend an alternativeranking scheme that acknowledges the equal weight and complementarityof differentcategoriesof rights. Failure to satisfy the fourth criterionby neglecting to include cultural rights among the completed system of human rights is often reflected in a neglect of grouprights.In PartV, I arguethat such neglect is unforgivablein world. Rawlsianpolitical liberlight of the realitiesof our post-Westphalian alism postulatesthe existence of closed, homogeneous nationsin a way that migrationand diversity.To the extentthatit explicitly bracketsmulticultural acknowledges group rights at all, it is only within the context of illiberal undemocraticsocieties. Habermas'sdiscourse theory fares little better,for multicultural even thoughit incorporates diversityinto its theoryof nationality and allows (howeverreluctantly)thatgrouprightsmight realize individual rightswithinliberaldemocracy,it does not explainhow this concessionto groupscan be reconciledwith its own liberalindividualisticassumptions-a reconciliation,I argue, that can be effectively defended in cases involving and Part women, immigrants, subnationalities. VI extendsthe critiqueof sovereignty and self-sufficiency to include the economic sphere. I argue that Rawlsian political liberalism especially succumbs to this critique, since its assumption of national economic sovereignty underminesany account of diseconomic rightsbeyondthose to subsistenceand assistance.Habermas's of course theory,by contrast,acknowledgesthe interdependency states and aimed at demourges strongermeasuresof global economic redistribution craticallyempoweringvulnerablesectors and communitieswithin the world the economy.However,it too underestimates extentto which the basic structures of a global capitalist economy will have to be transformed,and its appeal to supranationalorganizationsas the key to reform overlooks the
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importance of subnational groups and communities in protecting local resourcesand habitats.
I. UNIVERSALITY it law Of the two theoriesof international we areusing as ourbenchmark, is political liberalismthat seems most conducive to establishinga basis for rightsthatis trulyuniversal.Political liberalismlooks to factualcommonalities between differentnationalcultures in seeking its warrantfor universal rights.It is thereforecommittedto toleratingwide disagreementwith respect in to specific economic andpolitical institutions.Especiallypertinent light of recentevents is Rawls's opinionthatpolitical liberalismmust accommodate Islamic theocracies that do not treat all citizens equally and do not allow a spectrumof civil andpoliticalrightsthatis as extensive as thatpresentin liberal democracies. In his essay The Law of Peoples (LP),1Rawls proposes to base international respect for humanrights, just war principles, and principles of economic assistance vis-a-vis burdenednations on a political conception of mutualrespect between "peoples,"or societal groups unified by "common states. Accepting the idea that sympathies"and organizedaroundterritorial peoples, unlike the governmentsthatact in theirname (statesin the technical sense), can be motivatedby a sense of justice in dealing with otherpeoples ratherthan by sovereign self-interest,he sees no reason they should not be fully respected so long as they in turn respect basic human rights,2refrain from expansionistpolicies, andinstitutionalizea conceptionof justice based upon reciprocalduties and the rule of law. Significantly,Rawls holds that nationsthatdo not allow equal civil andpolitical even illiberalundemocratic freedom and whose legal institutions embody a conception of justice that privileges one particularcomprehensiveconception of the common good over others(whathe calls a "commongood conceptionof justice"as distinct from a liberal,"politicalconceptionof justice")can satisfy minimumthresholds of decency sufficientfor them to be recognized as legitimateby liberal peoples (LP,64-65). Consonantwith this conceptionof legitimacy,he mainstateshumanrightscanbe assignedto tainsthatwithinilliberalundemocratic persons as members of subgroups and that subgroups can be accorded unequalfreedoms as requiredby the common good (LP,66). In his opinion, legitimacy-if not full justice-is maintainedto the degree that minority respondedto, andeach groupsaretolerated,dissentinggroupsareadequately group is fairly representedin a consultationhierarchy(LP,69).3 Seen from the vantage point of economic justice, a minimally just Rawlsian world
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would also toleratedecent societies that choose not to provide state-funded services or to promotethe kind of socioeconomic equality normallythought to be essential to maintaininga healthy democracy.Hence, it would tolerate large differences in economic well-being within and between well-ordered states. Now, commentatorsfrequentlynote the discontinuitybetween Rawls's earliertheoryof justice, includinghis morerecentaccountof political liberalism, andhis justificationof a Law of Peoples.4The earliertheory'sdefense of a liberal, democraticconception of justice, which takes the freedom and equality of individuals as centralto its vision of a well-orderedand stable in law. legal regime,seems to havebeen abandoned the essay on international that Indeed,Rawls himself is quiteexplicit on this point. Once we understand a Law of Peoples must encompass illiberal undemocraticas well as liberal democraticsocieties, the conceptof whatis reasonableto expectin the way of agreementon basic human rights must be considerably weakened. In his opinion, decent and not altogetherunreasonablepeople living in illiberal, non-democraticsocieties will disagreeaboutthe superiorityof liberaldemocratic schemes of justice just as reasonablepeople living in liberal democraticsocieties will disagreeaboutthe superiorityof specific interpretations of liberaldemocracyor the superiorityof specific comprehensivereligious, philosophical, and moral doctrines.Therefore,it would be unreasonableintolerantand illiberal-for liberaldemocraticpeoples to impose theirbasic on institutionalstructures these other societies as a prerequisitefor mutually the advantageous cooperation.Furthermore, merefact thatthese othersocieties do not extend equal political rights to all their members is no argument againstrespecting them as equals in a communityof societies, since many illiberal hierarchicalorganizations,such as churches and universities, are treatedas equals by more liberal, egalitariangroups (LP,69). Although Rawls acknowledges that his concession to non-liberal,nondemocraticnations marksa deviationfrom his earliertheory,he insists that his conceptionof international is in some respectsan extensionof it. The law earlier, individual-centeredtheory attempted to reconstruct a distinctly Kantianaccount of justice for liberal democraciesby using the representational device of an originalposition in which hypotheticalcontractors agree on principlesof justice withoutknowing specific details aboutthemselvesor their society.5 The later-political liberal-theory, by contrast, sought to show that a more general set of liberal principleswere free standingof any comprehensivephilosophical doctrine-including Kantian Doctrine-and so could function as a point of convergencefor reasonablecitizens of liberal democracies holding conflicting comprehensive metaphysical and epistemological doctrines.6
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The argumentin supportof a Law of Peoples also appealsto the original position and ideas associatedwith political liberalism.The latteridea andits correlativenotions of reasonablenessandof overlappingconsensus areespecially crucial. For example, Rawls argues that the free exercise of reason leads to an irreducible pluralityof comprehensivedoctrines,so thatno liberal democraticregime should impose a comprehensiveconception of the good on its citizens in the way thatan illiberalsociety mightreasonablydo. At the same time, he notes thatthe reasonablecomprehensivedoctrinesof persons inhabitingliberal democracieswill at least overlap in their supportof a liberal democratic constitutionfor the right reasons-reasons of deep moral principle-even if they do not happento sharethe samereasons.LP deploysa Reasonablepeoples cannotbutdisagreeon compresimilarline of argument. hensive doctrines,andso some of themwill preferliberaldemocraticinstitutions, others not. However, all decent peoples can appeal to their specific moral philosophies in consenting to basic articles of international justice, which do not dependon any particular comprehensivedoctrine,and so will overlapon these strictlypolitical points (LP, 16, 18). Now, the extension of devices such as the originalposition and overlapping consensus beyond the domestic, liberal democraticsetting to the international arenahad alreadybeen proposedby Rawls in A Theoryof Justice to (1971) butdid not go muchbeyondconsiderationspertaining just wardoctrine.7It was left to othersto extendthese Rawlsianideas to areasof internaLP tional justice touching on economic redistributionand immigration.8 idea acknowledgesthese applicationsbut extends the originalcontractarian in a way thatis fundamentally differentfrom them. Insteadof populatinghis global originalposition with cosmopolitancontractorsseeking fairtermsof cooperationfor free andequal individuals(headsof households),Rawlspopulates it with contractors seeking fairtermsof cooperationfor free andequal nations.9 model to peoples rather Rawls's applicationof the social contractarian of thanindividualsis also reflectedin his subtlereinterpretation whatcounts In as "reasonable." Political Liberalism(PL) individualsaredescribedas reasonable who seek fairterms of cooperationas free and equal. In LP inhabitantsof consultationhierarchieswho seek fairtermsof cooperationaresaidto of be decent-if not fully reasonableandjust-in theirtreatment theirfellow citizens, while as peoples relatingequallyto otherpeoples they arecharacterized as fully reasonable(LP,74, 83, 87). In sum, Rawls's theory of international justice follows from his desire to extend the idea of a real social contractas far as reasonablypossible. This realist-or pragmatist-decision to achieve global stabilityby being maximally inclusive privilegestolerationof minimallydecentbut otherwiseillib-
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eralandundemocraticstates.This extension of political liberalismpresumes consensus on rightsandeconomicjustice will atbest be thatany international ratherthin and overlapping.It will be thin because the content agreedupon will perforce be very general and all encompassing. It will be overlapping because the (assumed) culturalinsularityand economic self-sufficiency of distinctpeoples makeagreementon a thicker,more comprehensivepoliticaleconomic culturevirtuallyimpossible.
DETERMINACY II. PRESCRIPTIVE This last fact underscoreswhat Habermasperceivesto be a seriousweakness in political liberalism.The relative superficialityof a theory of rights force. based on an overlappingconsensus deprivesthe theoryof prescriptive This defect, in turn,is closely weddedto the inabilityof an overlappingconsensus to distinguisha stable agreementbased on moraltrustfrom an unstable, modus vivendibased on strategicexpediency. The very concept of an overlappingconsensus suggests limits to what in sorts of public reasons might be appropriate official, governmentalcontexts. In a reasonable,pluralisticworld, persons will typically have different-possibly conflicting-reasons for agreeing on abstractprinciples of religious, justice. These non-shareablereasons, which stem from particular of ethical, and legal traditions,will also informconcreteinterpretations such principles, as expressedin definite legal and political institutions.Hence, a decent illiberal society will interpretthe specific content of basic human rightsdifferentlythana liberal one. Now, accordingto Rawls, leadersof liberal democracieswho act reasonablyand civilly will recognize thatreasonablepluralismamongpeoples imposes limits on the kindsof reasonstheycan bringto bear in discussingrights and otherprinciplesof justice with leaders of illiberalsocieties. In reasoningwith them, they will not rely mainly on the non-shareable featuresof theirspecificallyliberaldoctrines,even thoughit is precisely these doctrinesthat groundtheirbelief in the deepertruthof these rightsandprinciplesin the firstplace (LP,171). In otherwords,when leaders of liberaldemocraciesdiscuss humanrights with leadersof decent but illiberalhierarchies,theywill not rely mainlyon theirown society's liberaldemocraticinterpretation rights. of Notice that privatecitizens who do not officially representtheir nation (anddo not wield thepowerto sanction)arenot boundby suchconsiderations of public civility andpublicreason.Citizensof a liberaldemocracycan tryto persuadeprivatecitizens of an illiberalhierarchyto changetheirunderstandof ing of basic rightsthroughinformalarguments a non-officialnaturethatdo
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appealto reasonsheld as truein accordancewith deeperphilosophicalprinciples (LP,84). Whetherthese reasons succeed in persuadingthe citizens of an illiberal hierarchyto adopt a liberal democraticinterpretation rights will of depend on the extent to which the diverse comprehensivedoctrinesheld by interlocutorson both sides happen to agree on the relevant points. But whetherthey happen to agree or not is irrelevantto deciding the civility of Rawls insists thatofficials of libgovernment officials arguingin this manner. eraldemocraciesshouldneitherofferincentivesnorappealto theirdeepestor most comprehensiveprinciples in persuadingtheir illiberal, undemocratic to counterparts adaptliberal democraticrights (LP,84-85). Indeed,to do so would be philosophically futile, since, accordingto Rawls (and contraryto of Habermas),a liberal democraticinterpretation rights is not implied (logically or otherwise)by a strictlypolitical conceptionofjustice.10So given reasonable pluralism among rights interpretationsat the internationallevel, Rawls's ideal of public reason will effectively shield illiberal consultation hierarchiesfrom officially authorizedpressuresto liberalize and democratize. This would not only be bad for people inhabitingilliberal andundemocratic Middle Eastern regimes, but it would be bad for everyone, since Islamicfundamentalism its violent offshoots may well have arisenpartly and in reaction to Westerncomplicity in proppingup corruptauthoritarian and anti-egalitarian governments. There is another hitch to this principle of tolerance that threatens to unravelthe stabilityand trustworthiness international of covenants.Rawls's conception of internationalreasonableness, whose ideal of public reason involves accepting a non-aggressive government'sconsent to basic rights without demandingdeeper accountabilitywith respect to the moral duties in andideas ofjustice underlyingthe consentgiven, seems unreasonable light of the aim of agreement,which is to secure trustbetween peoples built on sharednorms.The mere existence of an overlappingconsensus amongpeoples who subscribeto what Rawls himself takes to be potentially "incommensurable"moral doctrinesT"does not alone establish its reasonableness. thereis Indeed,as Habermashad insisted in his earlierdebate with Rawls,12 no way of knowing whether the-otherwise incommensurable-doctrines that converge toward this consensus are minimally decent, short of their dialogue.Forthe merefact thatI beingjustifiedin an inclusive,cross-cultural observe that other persons agree to the same principles I endorse-and for reasonsthatI can, if at all, barelyfathom-would not entitle me to infer that theirreasonswere moralreasons,let alone fully reasonable(i.e., justifiable) ones (TheInclusionof the Other[IO],62-63,90-91). In short,unlessRawlsian overlappingconsensus on humanrights implicates more than incommensu-
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rable moralrationales,that is, unless it also implicates at some deeperlevel consensus on substantivecore norms, moral duties, and ideals of justice, there will be no way of knowing whetherthe agreementin questionwas not entered into for irrationalor strategicreasons. Leaving aside the fact that trustworthycommitments must ultimately be cemented in deeds, without knowingthatthe reasonsyou (a citizen of an illiberalIslamictheocracy)andI (a citizen of a liberaldemocracy)agree areboth deeplyjustifiable-and thus equallyreliable and stable-for roughlythe same reasons,I have no grounds for trustingyou. Forall I know,yourreligiousfaithin rightscould be trumped for ardour; all you know, my secularsupportof the same by fundamentalist could be trumpedby economic greed. Of course, trustis seldom an all or nothing affair.Ongoing acts of nonaggressionmay suffice to maintainminimallevels of trustbetween ideologically antagonisticpeoples necessaryfor partialcooperationon pressingmatters (witness, e.g., the immigrationdiplomacybetween the United Statesand Cuba).Even the strongantagonismbetween the United States and its Eurothe peanallies regarding deathpenaltyandthe basic rightsof childrendoesn't underminerobustlevels of trustwith respectto otherrightsissues. However, the generalrule for securingcomplete trustand efficient cooperationon any pressing rights issue requires something like the following: instead of disagreeing on core norms in deference to tolerating ideological or incommensurabilities agreeingon suchnormsin a mannerso generalas to preclude furtheragreementon their prescriptivemeaning and priority,we shouldratherinsist on a fully inclusive andopen dialogue aimedat achieving precisely this latterkind of agreement,which is the only way to forge a true consensus on basic humanrights. Certainly,achieving true consensus on basic rights is easier said than done. Once we abandonthe presumptionof incommensurability, different we possibilitiespresentthemselves.Following CharlesTaylor,13 can imagine different legal forms realizing the same "normsof action."Initially these normsmightbe sustainedby an overlapping consensus of relativelydisparate of traditions justification,so long as the consensusprogressively background In evolves towarddeepermutualunderstanding. the courseof mutuallytransand forming,interpenetrating, enlargingone anotherin the mannersuggested "fusionof horizons,"disparatetraditionscan convergeon by a Gadamerian and substantive norms.Forinstance,the anthropo(determinate prescriptive) centricindividualismof Westernhumanismandthe cosmocentricecologism of EasternReformBuddhismcan mutuallyenlargeandelevateone another in supportingnorms of nonviolence, individualresponsibility,and democracy capable of combating predatoryglobalization. Conversely,it may be that
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consensuson social norms(such as genderequality)will only come aftersustained efforts of mutual understandinghave transformedwhat otherwise Ideally,however,the anthropocenappearto be "closed"dogmatictraditions. tricindividualismassociatedwith secularliberalizationwill be mitigatedand transformed the ecological communalismof more spiritualtraditions. by Habermas's discourse theory of international law acknowledges the in importanceof mutualunderstanding both reaching and refining consensus. Stable systems of law must be recognized as legitimate by those on whom they are imposed. As in political liberalism,legitimacy is here understood consensually:only those laws are fully legitimatethathave the voluntary supportof those affected by them. The voluntarinessof this support, however,must be based on the deeper reason, sharedby everyone, that the law in question is truly impartial,meaning that everyone could have consented to it as advancing the interests of all equally. The counterfactual natureof the consent in questionis closely tied to an ideal notion of reasonableness:consentis reasonableonly when it follows froma maximallyinclusive and fair conversationin which all relevantdivisive assumptions-cultural, political, economic, or social-are openly criticized. The difference between this conceptionof reasonablenessandRawls's is subtlebutmomentous. Rawls's notion of reasonablenessis one with his political liberalism:it is reasonable to tolerate-and not to criticize-comprehensive cultural, political,economic, andsocial doctrinesthatarefactually incommensurable. It is reasonableto do this because we know thatthe free exercise of reasonis and unreas likely to lead to disagreementas to agreement,so thattrenchant it solvable pluralismis a fact of reason.Furthermore, is reasonableto predict and in advancewhich disagreementsaretrenchant unresolvable,for it is reasonable to avoid imposing uncivil expectationsregarding,for instance, the capacity of Islamic fundamentalistsand secular liberals to agree on equal rights for women. The disagreementbetween Rawls and Habermasthus largely boils down to a disagreement about reasonableness. For Habermas, reasonableness imposes an ideal demandto criticizecomprehensiveassumptionsin open and inclusive dialogue; indeed it stems from a comprehensive philosophical demandthat agreementbe created where none exists and that it be created autonomously,throughthe radical questioning, if need be, of all assumptions. Rationalconvictionis both egalitarianand deep; for genuine dialogue is distinguishedfrom rhetoricalmanipulationby being motivatedsolely by reasonsthatwould be acceptedas true-grounded in deeper,comprehensive philosophical theories-by persons who speak to one anotheras free and equal moral subjects, unhindered by material inequality or ideological coercion.
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III. COMPLETENESS The discoursetheory of rightsis willing to sacrificefactualconsensus on liberaldemocraticrightsin the presenton the expectationthatsucha consensus will emerge over time as dialogue between peoples is opened up and rationalenlightenmentspreads.The irrepressible modernization all societof ies throughglobalization-their institutionalization some form of market of economy coupled with some form of bureaucraticadministration-will likely force themto liberalizeanddemocratize.Oncethathappens,a strongly consensus on a liberaldemocraticinterpretation humanrights of prescriptive will also likely emerge. The modernizationargumentis controversialbut perhapsless necessary to the discourse theory than Habermas realizes.'4 A more conceptually grounded argumentof the sort Habermasprovides in Between Facts and Norms (BFN) (1993) sufficesjust as well. Extrapolating from thatargument, I will arguethathumanrightsand liberaldemocraticrights are conceptually of you complementary: can't have a fully realizedinstitutionalization the one without the other. Anotherway to get at this completenesstheoremis by recallingwhatI said earlierabouttoleration.Political liberalism-at least when divorcedfrom its original liberal democraticapplication-provides a shaky basis for defending the principle of toleration. Political liberalism mandates toleration because (1) we seek the broadestconsensus possible on basic rightsand (2) we cannot,ex hypothesi,agreeon the reasonsfor doing so. We must,in other words,tolerateeach others'differentreasons-and the culturalbackgrounds that give rise to those reasons-in orderto agree to live peaceably with one another.But tolerationborn of trenchantdisagreementbetween incommensurablesystems of thoughtprovides no basis for mutualtrust and cooperation. The religious wars in Europeduringthe sixteenthand seventeenthcenturies bear this out. Despite their intense dislike for one another,Protestant and Catholic sects initially toleratedone anotherout of a purely Hobbesian fear of mutualdestruction.The willingness to forgo total victory (unknown was amongtoday'sapocalypticsuicidalterrorists) based, however,on a fragile balanceof powerandon the perceivedfutilityof convertingthe apostatea prudentialsentimentthat still informs Locke's Letter concerning Toleration (1685). Given the instability of this modus vivendi, liberals from Montesquieuto Rawls have arguedthat true tolerationmust rest on moral respect for the equal dignity and worth of each and every individual.But sometimes even this minimal respect is not enough, especially when those whom we tolerateareviewed as having an unfairpolitical advantage overus. Here,tolerationdemandspoliticaljustice, or the equalinclusionof each indi-
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vidual (or group)in democraticdeliberationand decision making.Because distributive justice, full equalinclusionalso toucheson mattersof substantive tolerancewill furtherrequireeconomic, social, political, and culturalequality. All of this follows from a thinbut nonethelesscomprehensiveconception of a distinctlyliberalgood. In sum, toleranceof othersis an evolving liberal democraticprojectthatgraduallysubstitutestrustbased on justice for modus vivendi based on power. This Kantianconceptionof tolerance,based on equal respectfor autonomous individuals,is defendedby Habermasin IO and ThePostnationalConstellation (PC)."5 Nationality,he notes, designatesan artificiallyconstructed locus of identitywhose usefulness in strugglesfor liberationanddemocracy has long been surpassedby multiculturalmigrationsand other features of globalizationandhas all too oftenjustified illiberalforms of nationalismthat Concomitant suppressdissidentminoritygroupsand other subnationalities. of with this understanding nationalityas ideology is Habermas'sbelief that "popularsovereignty and [individual] human rights go hand in hand."'6 According to this view, rights devolve principallyon individualsratherthan groups, because it is individuals alone who generate legitimate moral and legal norms in the course of deliberatingtogetheras free and equal participants in democraticdialogue. Finally,because Habermasbelieves thatindividual rights flourish only within liberal democracies, which in his view require relatively high levels of government welfare and socioeconomic equality,he insists that a minimallyjust world composed entirely of liberal democracies would (and should) tolerate much less inequality between nations than one not so composed. in discoursetheoryfollows Rawlsianpragmatism denyNow, Habermas's ing thatuniversalhumanrightscan be directlyderivedfrom a priori morality as (naturallaw) since, like all legal rights,they too are "structured" enforceable statutes that have been democratically processed-in this instance, throughthe auspices of the UnitedNations (10, 190-92). However,unlikeits Rawlsian counterpart,it embeds itself in a comprehensivephilosophy. It implies that the philosophical reason why such rights are legitimateis that they refer beyond the contingentmoralreasons given in supportof them by political agents (10, 191) to include the necessary anduniversalpresuppositions of speech that condition socialization and normativeintegration.In speaking to one another,reasonablepersons are obligated to recognize one anotheras free andequal.Because equalityandautonomyaredeeply embedded in our (communicative) nature, laws sanctioning rights cannot be bestowed upon citizens paternalistically withoutviolating theirown humanity as self-legislatingrightsbearers(10, 261). Hence, liberaldemocracyis not
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simply one possible forma legitimateregimecan take:it is the only one-and federationthat seeks to protectthe the only one, too, for any transnational fragile social democracies of member nation-statesagainst the destructive impact of economic globalization(PC, 80-84, 120-26). The very fact that countries like China now embracethe UN Universal Declarationof HumanRights after having formerly denounced it as bourgeois ideology might be cited as evidence for Habermas'smore speculative claims about the linguistically deep-seatednatureof liberal humanism.But as he himself notes, if liberaldemocraticdoctrinesare as valid as he says they are, then they are valid in an ambiguousway that reflects their dual, morallegal status; for their widespreadacceptance as moral principles stands in embodimentin legal institutions. starkcontrastto theirless-than-widespread Here, comparisonwith human rights proves instructive.As we have seen, Habermasarguesthathumanrights"topursueone's privateconceptionof the good" areuniversallyvalid only in the sense that (1) underconditionsof fair, inclusive, and unlimiteddialogue, all reasonablepersonswould acceptthem as morallybindingand (2) theiracceptanceas such is butthe first steptoward full recognitionof theirlegal legitimacy,which is an ongoing projectwhose completionawaitsthe establishmentof a global democraticfederationof liberal democracies. WhatHabermassays abouthumanrightscan be saidwith slight modification about liberal rights associated with equal democratic participation. Habermassuggests that"politicalcivil rights, specifically the rightsof communicationand participation, that safeguardthe exercise of political autonomy" (I0, 259) areinstrumentally justified as enablingconditionsfor liberal realizademocracy(PC, 175-76). Since liberaldemocracyis the institutional tion of boththe ruleof law andthe humancondition(namely,the conditionof its a species thatreproduces moralandsocial being throughcommunication), these "political civil rights"occupy an importantniche in his scheme. Yet they are not privileged, for Habermasinsists that human rights have an "intrinsic[i.e., purelymoral]value"thatapplies to all individuals,no matter their political or civil status (10, 259-60). Despite theirintrinsicmoral content, the legal form they share with political and civil rights distinguishes themfrommoralrightsin thattheyaremerelypermissive,imposingno correspondingduty on those who possess them other than the dutyto allow their free exercise. The questionthus arises:is it more importantto instituteclassical human rights before instituting"politicalcivil" rights? Or does the very legitimacy of the formeras legally enactedrequireinstitutingthe latterfirst,in the institutional structureof the United Nations?
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IV PRIORITY Despite Habermas'sinsistence on the complementarityof privateautonomy (subjective freedom to pursue one's personal conception of the good) freedom to participatein democratic and public autonomy (intersubjective deliberation),he providesno clear answerto this question.Nor does he tell us how "politicalcivil rights"and "classicalhumanrights"ought to be ranked with respectto economic, cultural,and social rights. Sometimeshe seems to follow Rawls in privileging civil and political rights above economic, cultural, and social rights. The latter,which are mainly entitlements(positive rights) to enabling goods and capacities, are said by Habermas(following Rawls) to realize the fair value of "political civil" and "classical human" rights (cf. n. 19). Although Rawls expressly interprets"realizingthe fair have less priority value of rights"to meanthateconomic rights,in particular, than the political and civil rights whose values they realize, Habermasdoes not-at least not in any obvious sense. According to Habermas,the negative freedom to "pursueone's private conception of the good" without interferenceis meaningless apartfrom the positive freedom to be protected and supportedin this endeavorby one's consociates (BFN, 41-42). In protectingthe former(subjective)right,we are conceptuallycommittedto a host of otherrights,includingrightsto membership in equal standingand rights to due process. These basic categories of right-to (1) "thegreatestpossible measureof equal libertiesthat aremutually compatible,"(2) equal membership(includingfreedom to emigrateand immigrate),and (3) free access to impartialcourts-constitute an abstract In legal code thatmust be interpreted. the West, category (1) has been interpreted expansively-and some might say necessarily-to include "classic liberalrightsto personaldignity;to life, liberty,andbodily integrity;to freedom of movement, freedom in the choice of one's vocation, property,the inviolabilityof one's home, and so on" (BFN, 125). Who initially interprets form are the framersof constithese rightsin theirmost generaland abstract tutions acting on behalf of citizens, but the full prescriptivemeaning and force of rights must be workedout among the citizens themselves and their in elected representatives politicaldialogue-hence the conceptualnecessity catefor democraticrights.Withoutdemocraticlegal enactment,the abstract gories of subjective right at best enable but do not restrictthe legislator's autonomy(BFN, 128). Finally,Habermasconcludes thatcitizens must have "equalopportunitiesto utilize"the four "absolutelyjustified categories"of include "basicrights civil rightsmentionedabove.These equalopportunities to the provision of living conditions that are socially, technologically, and ecologically safeguarded."
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Habermasinsists thatthis fifth categoryof rights "canbe justified only in relativeterms"with respectto the four "absolutelyjustifiable"categoriesof civil andpolitical rights.This could mean eitherof two things:the fifth category of rightsis firstdeducedfromthe othercategories,in which case the latter are prioronly in the logical orderof justification, or the fifth categoryis less binding and imperative (less prior in the logical order of institutionalization).17 AlthoughHabermasseems to be suggestingthe equal priorityrankingof all rights in a way that goes beyond Rawls-and thereis human nothingin his accountof the peculiarmoraluniversalityunderwriting rightsthatlimits theircategoricalscope-his assertionthatthe fifth category of rights "only serve(s) to guaranteethe 'fair value' (Rawls); i.e., the actual conditions for the equal exercise of liberal and political rights"(PC, 187) suggests the second, Rawlsian meaning. Contraryto Rawls (and possibly Habermas),I will argue that at least some economic, cultural, and social rights are more than mere auxiliary goods and capacities that contingently realize the fair value of human,civil, and political rights. They are structurally, if not conceptually,embeddedin these very same rights.Thus, the right to self-preservation(the right to life) is a classical humanright that is intimately connected to a right to economic subsistence, if not (as Locke as Furthermore, I thought)to a rightto acquireandexchangeprivateproperty. shall argue below, some social and culturalrights are explicitly "civil and political"in nature, as some civil andpolitical rightsareinherentlysocial just and cultural,enabling not only individualsbut also groupsto preservetheir society and culture. I Borrowing a page from Henry Shue,18 would like to argue that many rights-albeit, not necessarily all those specified by the UN Declarationof Human Rights (which includes, for instance, the right to "leisure" and "rest")-have an intrinsic value, and one-contrary to Habermas-that exists quite apart from our metaphysical condition as potentially rational speakers.Shue suggests thatany society thatgrantsindividualsrights of one kind or another-and there are virtually none that don't-is theoretically committedto grantingthem more basic rights to subsistence,security,freedom, democraticparticipation,and (missing from Shue's account) culture. Rights are enforceabledemandsplaced on others, and they cannotbe made good without decent subsistence, security,freedom, and political power, all of which are complementaryprimarygoods, in the Rawlsian sense. The U.S. State Department's continualrefusal to endorsethe UN's InternationalCovenanton Economic, Social, and CulturalRights (1966) in wanton disregardof this complementarity thus parallels the theoretical obtuseness of both Rawls (despite his belated recognition of basic subsistence rights) and Habermas(despite his belatedrecognition of social and cultural
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rights).Of course,thereis a priorityrankingamongrights-the StateDepartment has got that right-but it is not a priorityof "negative"freedom over "positive"freedom. Nor is it a priorityof one category of right-say, civil the be political-over another it social, economic, or cultural.Rather, priority is thatof basic rightsoverless basic rightswithineach categoryof right.Thus, within the category of economic rights, the "subsistence"entitlementto a rightto acquireand minimallydecent shareof food outweighs the "market" transferpropertywithout interference.19
V GROUPRIGHTS:SUBNATIONALITIES, AND IMMIGRANTS WOMEN, One of the unfortunate consequences of Rawls's (and possibly Habermas's)way of drawing the distinction between basic and non-basic rightsis thatit excludes culturalrightsfromthe class of basic rights,thereby also neglecting the nearly equal priorityof group rights. That is, although both Rawls and Habermas recognize the validity of grouprightsin theirown fashion,they do not see such rightsas essentiallynecessaryfeaturesof liberal democraticsocieties. This oversightstems fromthe individualismimplicitin discoursetheoryandpolitical liberalism(as appliedto individualpersonsor of the individualnations).Rawls, for instance,understands importance group in representation illiberalhierarchicalsocieties (such as his idealizedIslamic theocracy,Kazanistan),but he does not grasp its role in liberal democracy, which he continuesto interpretprimarilyin terms of aggregatingindividual to is preferences.Grouprepresentation thusconceived by him as subordinate the integrity of individuals-be they persons or nations. Discourse theory likewise views the essence of democraticpolitical life as centeredon individual contributionsto discussion. Indeed, neitherpolitical liberalismnor discoursetheoryprovidesa satisfactoryaccountof groupidentity,andso neither basis for grouprights.But lackinga soundbasis for establishesa satisfactory group rights, neither can present a fully satisfactorytheory of individual rights. This becomes evident when we turn to what Rawls and Habermas have to say about subnationalities,women and immigrants. Subnationalities. As noted above, political liberalism presumes between what areregardedas essentially self-contained incommensurability politicalcultures.Tracesof the kind of raciallyinspiredculturaldeterminism thatfueled the nationalismthatsweptEuropeduringthe nineteenthandtwenthan resurfacein Rawls's appealto nationsrather tiethcenturiessurprisingly individualsor statesas the preeminentmoralagents (individuals)underwrit-
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ing international rights.To be sure,this appealpartlyrests on othergrounds, namely,Rawls's view thatthe Law of Peoples is arrivedat throughfirstworking out the principlesof justice for domestic societies. In regardinga domestic liberal society from the standpointof the original position, we make the simplifying assumptionthatit is closed. We regardit as "self-containedand as havingno relationswith othersocieties,"in such a way thatit "reproduces itself and its institutionsand cultureover generations"(PL, 12, 18) and its members"enteronly by birthand exit only by death"(LP,26). of Rawls, of course,is fully awarethatthe simplifyingabstraction a closed society bound together by a self-perpetuatingnational political culture is partly underminedby the fact that "historicalconquests and immigration have causedthe intermingling groupswith differentculturesandhistorical of memories"within the same territory. he continues to hold this assumpYet tion as if it were descriptiveof historicalreality,even to the extentof endorsing Mill's deterministicdefinition of nationalidentity as "commonsympathies"rooted in (among otherthings) "raceand descent"(LP,23). Forhis part,Habermasfinds such essentialistnotions of nationalidentity to be highly suspect. As he points out, nationalidentities areideological fictions (PC, 37) that,havingonce helpedpave the way for democraticpolitical at to level integration a local level, now threaten obstructit at the international and to (10, 112-15). Hence, they mustbe radicallytransformed subordinated less all-encompassing, cosmopolitan-friendly cultural identities that are maintainedand generatedmore or less reflectively and voluntarily.Moreand over, as Iris Young20 others have pointed out, the very identificationof peoples with closed territorial groupsneeds to be rethought,especially when consideringcases of overlappingpeoples, as in NorthernIrelandand Israel/ is Palestine.Partitioning not always the best solution in these cases, since the economies and spaces being contested by the contendingpartiesare essentially shared.A bettersolutionwould combinecosmopolitanforms of governance (sometimes involving thirdparties)with more local forms. The larger lesson to be drawnhere, as in the case of economic assistance,is that local forms of participatoryand/or advisory government at metropolitan and in regionallevels mustbe strengthened tandemwith moreglobal, cosmopolitan forms.21 Despite its salubriouscritique of culturalessentialism, Habermas'sdiscourse theory goes overboardin its hostility to cultural nationalism. By consensuson rightsthat,by equatinglegitimacywith a rationalconstitutional definition, are impartialand neutralwith respect to competing culturesand their respective conceptions of the good, Habermasdemands that citizens their nationalculturalidentitiesfrom the universalpolitical cul"uncouple" turethey all shareas rationalindividuals(I0,227). Whetherdemocratic(pro-
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cedural)impartialityrequiressuch a strong conception of neutralityis certainly doubtful, and for two reasons: first, no institutionalspecification of justice can be culturallyneutral.Habermashimself notes that political culturesinvariablygravitatearounda nationalculture,andthis appliesto liberal multicultural democraciesno less thanto illiberalhierarchies.Second, to the this extentthathe appreciates fact, he is forcedto concede thatnationalpolitical culturesare the essentialmedium in which largely abstractconstitutional principlesare interpreted. This fact alone does not vitiate constitutionalimpartiality. Nor does the fact that differentsubnationalities(or subcultures)within the same national The political cultureinterpretthe constitution somewhat differently.22 concern here is thattoo much subnational(or ethnic) diversityin the interpretation of a constitutionwill simply multiply the numberof effective constitutions, therebyresultingin a sort of lawless anarchy.Habermasclearly thinks thatnationalismis divisive in this bad sense. But he thinks thatculturalpluralism is good. So the question arises, can he clearly distinguish between divisive and closed nationalidentities, on one hand, and unifying and open cultural identities, on the other? I doubt it.23The distinction stems from ratherthan Habermas'sassumptionthatidentities thatare "merelycultural" quasi-racialcan be sustainedin their integritythroughrationalscrutinyin a way thatnationalidentitiesthat are ostensibly quasi-racialcannot.Yet even he admits that opening up cultural "lifeworlds"to global communication themwith pathologicaldisintegration threatens (PC, 127). As he pointsout in his commentson Quebec's culturallaws, culturalinstabilityis the price that liberal societies pay for allowing immigration. Here, we see that the distinction between cultural and national groups totallycollapses. Quebecoisnationalismis not racialbutcultural.The education law requiring immigrantsto send their children to French-speaking schools was intended to include them in Quebec's public life, and the language laws thatappliedto workspaces and signs eliminatedprivilegesrather the than limited fundamentalfreedoms. More importantly, laws had a thorof oughly rationalbasis:the preservation a public space in its linguisticintegrity.In discussingthese laws, Habermasarguedthatlegal effortsto preservea cultureinevitablyrunup againstthe freedom of expression so necessaryfor identityformationin liberalsocieties (10,222). He could haveconcludedjust as easily that without such laws the very medium of free expression itself would have been imperiled.Again, his optimistic belief that multicultural immigration poses no danger to the preservation of liberal democracy communicationalways accordswith the view thatunregulated multicultural revitalizes otherwise ossified cultures. But given what Habermasknows about the disintegrativeeffects of global mass culture and "postmodern
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neoliberalism"on smaller scale national-linguisticcultures (PC, 115, 124), this view seems naive. Habermas'sdefense of individuals'rights to access their own particular culturesdid not lead him to endorsegrouprights,which he found "unnecesHowever,he laterchangedhis mind, sary"and "normatively questionable." including "group-specificrights"-along with a "federalistdelegation of of powers, a functionallyspecified transferor decentralization statecompetencies, above all guaranteesof culturalautonomy ..., compensatorypolifor cies, and otherarrangements effectively protectingminorities"(10, 14546)-among the "difference sensitive" strategies for protecting cultural minorities.Unfortunately, Habermasnevertells us how we move from a cosmopolitantheory of individualrights to a political theory of grouprights. One way to do it is to show thatculturalrightsare among the list of basic, mutuallycomplementary rights.Culturalrightsmay takethe generalform of a rightto education,which is essentialto exercisingandpoliticallydefending one's other rights. However, they can also take a particularform. Because culture is principallypassed down in the form of particularheritance,the rightto cultureis morethanthe rightto education(culturein general);it is the right to access the cultureof one's people(s). So a basic, universalcultural sense may entailgroup rightto access culturein both a generic andparticular rights as well as individualrights. In particular,it will entail group rights wheneverthe domain of culture-or, for thatmatter,race, gender,(dis)abilmarked out for invidious ity, or any other group distinction-is discrimination. Culturalandpoliticalrightsareamongthe rightsmentionedin Articles21, 22, and 27 of the UN's UniversalDeclarationof HumanRights thatapplyto Others include the rights to nationality groups as well as to individuals.24 (Article 15), tradeunion membership(Article 23), free association (Article 20), andreligion (Article 18). Morerelevantto ourpurposes,Article29.1 furthernotes thatthe exercise of rights is linked to duties "to the communityin which alone the free andfull developmentof [one's] personalityis possible." Now, within liberal democracythe tension between "dutiesto the community," which are often specified as group rights, and individual rights is almost invariably resolved in favor of the latter. Since individuality is the regardedas an irrepressible of common humanity, rightsof individupart als areesteemed abovethe rightsof groups.Indeed,for Habermas, of the one trademarks anylegal right(as distinctfroma purelymoralright)is thatit is of merely permissive, imposing no correspondingduty on those who exercise them otherthanthe dutyto allow theirfree exercise. Havingindividualrights doesn't depend,therefore,on fulfilling anybroaderdutiesto the community. However,"liberals"as divergentas Will Kymlickaand CharlesTaylorhave
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persuasivelyarguedthat one's culturaland ethnic groupaffiliationsare also In an irrepressible of one's individuality. the wordsof Kymlicka,cultural part membership"affectsour very sense of identity and capacity"insofaras it is "thecontext within which we choose our ends, and come to see theirvalue, and this is a preconditionof self-respect, of the sense that one's ends are worthpursuing."25 Because culturalidentity is experienced as group identity, the cultural rightI have as an individualwill typically be assertedin the form of a group rightwheneverone of the culturalgroupsto which I belong is singled out for discrimination.For instance, the appropriate remedy for dealing with antiSemitic violence-which is not directed against Jews as individuals but againstJews as membersof a group-is a groupright,as exemplifiedby the New York State legislature'sestablishmentof a separateschool districtfor The same thinking applies to Quethe Kiryas Joel Hasidim community.26 bec's language laws. One's freedom to participateas an equal in Quebec's democracy may very well requirethat one share a common language with others,and since this languageis threatened the incursionof a moredomiby nant (English) language-and for some French speakers,the incursion of English in the workplacefunctionsto discriminateagainstthem-laws that "impose"Frenchin privateand public spaces also protectindividualsin the free exercise of their civil and political rights. Again, as John StuartMill arguedin RepresentativeGovernment,any democracythatunderrepresents political groups (like African Americans) also oppresses the individuals within those groups. An individualistlike Habermascan accept the wisdom of proportional since he now concedes thatgrouprightsmay be necesgrouprepresentation, sary for protectingindividualrights (10, 221). But could he or anyone else arguethat group rights are as basic as individualrights?As noted above, a can conceptualargument be made for establishinga basic individualrightto It culturein general(education)andto culturalidentityin particular. is inconceivablethatindividualsdeniedaccess to educationortheirculturalidentities could effectively exercise rightsor be respectedas rights-bearing agents.No such argumentcan be made for a correspondinggroupright, since the latter exists solely in orderto protectthe individualexercise of rights from purely contingent,group-baseddiscrimination.Nonetheless, given the widespread and enduringexistence of group-baseddiscriminationin all societies, group as rightsmightjust as well be regarded a basic categoryof rights,to be differentially institutedon a case by case basis. This position seems all the more reasonableonce we reject the extreme Habermasiannotion that liberal democraticpolitical cultureis neutralwith respect to all ethnic and nationalsubculturesthat sharein it and can be "de-
Ingram/ ALTERNATIVE THEORYOF HUMAN RIGHTS
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minoritycultures coupled"from them. How do we compensatesubordinate vis-a-vis the dominantculture?Politifor theirrelativepolitical disadvantage cal liberalism intervenes at this point as an explanationfor why different minoritiesshouldbe securedgroupprotectionandguaranteed politicalrepresentation. Aboriginal minorities, for example, should be given an institutional basis for voicing their differencesfrom the mainstreamwith regardto how the core normsof democracyandrights they sharein common oughtto be interpreted. Agreementon core normsand prescriptiverights must allow for some variation in justificatory rationale and application (as even Habermasadmits) because the pluralityof social positions, when coupled with the free exercise of reason, invariablyyields a reasonable-but not wholly incommensurable-pluralism of lifestyles and perspectives from which to interpretconstitutionalessentials, including the rules and vocabularies of civil engagement. Women. Rawls notes thatbasic humanrightsmustbe extendedto women in all societies. In fact he stronglyendorsesAmartyaSen's researchshowing thatsocieties thatgo beyond minimaldecency andempowerwomen to vote, runfor political office, receive anduse education,andown andmanageproperty (such as the Indian state of Kerala)show "the simplest, most effective [and] most acceptable"way to ease overpopulationand food scarcity (LP, 110). That said, Rawls concedes the possibility thatreligious views informing the basic institutionsof some decentbut illiberalsocieties will not permit women to haveequalrightssuch as these, an injusticehe thinksis tolerableso long as women make up a majorityof any groupclaiming to representtheir interestsbefore a national assembly (LP,75, 110). But if, as Rawls claims, religions can't reasonablyjustify their subjectionof women on groundsof survival,then it is unclearhow they can reasonablyjustify theirpolitical and civil subordination any conceivablereason.27 for when faced with the choice of equal civil and political Understandably, of rightsfor women andminoritiesor the preservation a hegemonicreligious However,the discoursetheory community,Habermaschooses the former.28 of rightsdoes not provideany theoreticalbasis for grantingwomen as members of a discriminated as groupspecialpolitical representation a group.This is because it views democracy principally in terms of equal participation between individuals.But protectingwomen's individualcivil and political rights-not to mention their basic subsistence and security rights-in Islamic societies and elsewhere will often requireguaranteeingthem representationas women, and in ways thatseem to violate the formaldemandfor and as equalparticipation representation, interpreted a principleof majorby ity rule suitably qualified by constitutionallyentrenchedcivil rights. For
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example, it might requirethatcompetingpolitical partiespost a certainpercentageof women candidatesfor contestedoffices (as in France),orreservea certainpercentageof legislative seats for them. It might even requirethe use of supermajoritarian procedures,such as office rotationand veto privileges, that aim to compensate women and oppressedminorities for their political disadvantage.This latterprovisionis extremelyuseful in protectingvulnerable ethnic minoritiesfor whom equally weighted balloting and proportional are representation not enough. But what about the potentialdominationof groups over their own dissidentminorities?Dissidentminoritiesareviewed by the groupsto which they belong as externalthreatsto the self-determinationof the groups'majority membership.Very often this conflict seems like a conflict between the individual rights of dissidents and the group rights of the majority.Within an illiberalundemocraticsociety it very often is-tragically so. But within liberal democracy-and within an ideally open global community-dissident individualsshould have the right to exit and form new groupsif they cannot negotiatea reasonablecompromisewith the majority.Of course,the rightto exit does notresolve all conflicts betweenindividualandgroup-a fact thatis powerfullybroughthome to us by the example of women inhabitingpatriarchal religious communities who must confront the hard choice of leaving their families and spiritual support groups or suffering sexist discrimination.29 the rightto exit does allow for an unprecedented But freedomof associationthatcan become the beginningof empowermentas well as emancipation, as it has been for many immigrantsand refugees. Immigrants. Immigrants and refugees are the classical addressees of humanrights, since they are often denied the rights of citizenship.Political those rights.One might liberalism,however,does a poorjob of representing be tempted to compensate for this disadvantageby applying the Rawlsian device of an originalpositionto cosmopolitanindividualson the groundsthat citizenship and place of residence are as morally arbitraryas other undeserved featuresaffecting theirfortunes.Ignorantof their citizenshipor residence, cosmopolitanindividualsplaced in an original position would relate to one anotheras fully free and equal, and so would incline towarda liberal of democraticinterpretation basic rights.They would also likely opt for principles of justice allowing for relatively unrestrictedfreedom of movement acrossborders,since thatwould maximize the overallwell-being of the most oppressedand most numerousamong them.30 Assuming thatRawls is right thatequal andfree personsplaced in a domestic (liberaldemocratic)original position would reject utilitarianprinciples in favor of strongly egalitarian ones like his DifferencePrinciple-which allows economic inequalitiesonly
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to the extent that they benefit the worst off-then it is not unreasonableto suppose that free and equal personsplaced in an international originalposition would choose the same way, thereby requiring massive transfers of wealth from rich individualsto poor individuals(LP, 119-20). Things look very differentif the contractorsare imagined to be peoples rather than cosmopolitan citizens. Self-interested peoples, Rawls insists, have good moralreasonsto protectthemselves,theircultures,andthe territories they inhabit by institutingrestrictiveimmigrationpolicies-at least so conlong as they coexist in a worldof securityrisks, epidemics, multicultural flicts, and economic scarcities. These views of immigrationand economic redistributionare ones-somewhat surprisingly-that Rawls draws from one of his staunchestcritics,Michael Walzer,who, as an opponentof cosmopolitan liberalism,holds that protectionof a people's property,no less than protection of its political culture, is sufficient to limit immigration.31 Although Rawls is probablyright to arguethat the political and economic causes thatdriveimmigrationwould be greatlymitigatedunderhis proposed Law of Peoples, he gives no reasonwhy the survivalneeds of desperateindividualsshouldnot outweighthe culturallyperfectionistexpectationsof affluent peoples with regardto maintaininga costly political cultureandlifestyle. Like Walzer,he thinksthata global statewithoutborderswould be a cosmomen and women, and he hastensto add that politan dystopia of deracinated underits regime, global capitalismwouldhave free reign to overwhelmlocal communities(LP,39). But elsewherehe seems more sanguineaboutthe benefits of free trade,andalthoughhe is hardlyoblivious to the harshinequalities generatedby global capitalism,he fails to note thatthe politicalevils contriblack of investment,and uting to bad resourcemanagement,overpopulation, other factors driving immigrationare partly if not mainly attributable a to benefitedaffluent,border-conscious global systemthathas disproportionately countries. Given his cosmopolitan liberal approach to international relations, Habermas's more sophisticated understandingof global interdependency andpolitical diversityleads him to identifyat least as stronglywith the rights of individuals(such as desperateimmigrantsand stateless refugees) as with the rights of nations.His endorsementof a relatively open immigrationpolicy of the sortrecommended JosephCarens,coupled with a moreegalitarby ian plan of global economic redistribution, follows from his recognitionthat benefitedfrom "thehistoryof colonithe FirstWorldhas disproportionately zation and the uprootingof regional culturesby the incursionof capitalist modernization"(10, 230-31). It also follows from his discourse theory, which de-essentializes national identities and places a high premium on democracy. Treating immigrants as equals in this context means, among
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otherthings, allowing them to assimilateto a constitutionalpolitical culture without having to "give up the culturalform of life of their origins,"even if doing so "changes the characterof the community"(10, 229-30). Such a view, of course, needs to be qualified.As in the case of Quebec, changes in the linguistic fabricof the communitycannotbe allowed to extend so farthat they underminethe integrityof the political culture.
VI. ECONOMIC RIGHTS Our discussion of the group rights of immigrantsagain recalls the comof plex complementarity political, cultural,and economic rights. Economic rights,too, arebasic. Yetneitherpoliticalliberalismnordiscoursetheoryprovides fully adequateaccounts of them-for both theories seem to presume the legitimacyof capitalistmarkets.Rawls urges decentpeoples to assistburdenednationsto the extentthatis necessaryfor themto enterinto relationsof peaceablemutualcooperationwith them. But, he adds,many decent nations could reasonablyrefuse to give up wealth and resourcessimply for the sake of equalizingthe lives of cosmopolitanindividuals.Hence he opposes global distributiveprinciplesof the sort thathave been advancedby CharlesBeitz and Thomas Pogge.32 Rawls does so because,as we've seen, he doesn't thinkthatall decentpeosuchdeferenceto facples can agreeon suchprinciples.But, as Beitz notes,33 tualdisagreementsis not as such morallycompelling.No morecompellingis Rawls's view thatmoralpsychology dictateslimited expectationsregarding the capacityof personsto thinkof themselvesfrom a cosmopolitanview. The idea thatwe mustprivilegethe tolerationof peoples aboverespectingindividuals' economic rights simply because individuals identify themselves first andforemostas fellow membersof a territorially boundedscheme of mutual cooperationand responsibilityconfuses (in the words of Beitz) "questions aboutjustificationand those aboutinstitutionaldesign."34 Even if territorial stateshappento be the most efficient mechanismfor managingresourcesfor mutualbenefit and so provide an exemplarybasis for determiningour primary obligations as citizens, this fact alone says nothing about our psychological capacity to identify with, and care for, strangersas humanbeings. If statescan identifywith one anotherfor thisreapersonsin largemulticultural son, surely they can identify with outsidersfor the same reason (indeed,we may dependon, andhave more in commonwith, people who live outsideour nation than with people who live within it). In any case, Rawls is wrong to maxim thatmoralpsychology-or feelings of soliadoptthe communitarian daritywith fellow members (whoever they might be)-ought to determine
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to the extent of our moralduties;for allowing this is tantamount caving in to ethnocentricprejudice,surely one of the most virulentcauses of terrorism. Rawls's privilegingof peoples over individualsas the principalsubjectsof law international also undermineshis defense of a principleof assistanceto burdenedsocieties. Rawls insists that this principlenot be understoodas a of distributive requirement international justice to be implementedcontinuously butmerely as a dutyto raise all societies to a minimumlevel of political culture and economic sustainabilitycommensuratewith requirementsof minimaldecency.As such, the dutyhas a definite"cutoffpoint."Here again, Rawls offers scantjustification for the duty, other than the possible global securityrisksthatunstablesocieties pose to the restof the world.Althoughhe remarks that liberal democratic societies will be morally requiredto (1) relieve absolutepovertyso thatpeople can live decent lives, (2) mitigatethe stigmaof inferioritythatcomes with differencesin wealth,and(3) securefair conditionsfor democraticpolitics, he notes thatthese reasonsdo not directly apply to the internationalarena,except insofar as any well-ordereddecent people will have met the basic needs of each citizen so thatthey, as an equal andautonomousmemberof the Society of Well-Ordered Peoples, can decide for themselves "thesignificanceand importanceof the wealth of [their]own society" (LP,114-15). So, unlikethe individual-centered theoryof justice he developedearlierwith respectto liberaldemocracy,thereis no mentionhere of the unfairnessof allowing arbitrary circumstances,such as one's being bornin a poor,resource-starved country,to diminishone's equal chancesfor a free and fulfilling life. Rawls's resistanceto a global theory of distributive justice is also revealing, in thatit reflects his questionableviews aboutthe capacityof statesto be of economically independentandautonomousin theirdistribution resources. Rawls assertsthat"thereis no society anywherein the world-except in marginal cases-with resourcesso scarcethatit could not, were it reasonablyand (LP,108). Leaving rationallyorganizedandgoverned,become well-ordered" aside the questionablenessof this assertion, Rawls makes no reference to causes otherthanlack of resourcesthat contributeto the impoverishment of nations, except perhapsunfairtradeagreements(LP,69). This is surprising, of given his understanding how capitalisteconomies in liberal democracies pergenerateinequalitieswhose effects on the life chances of disadvantaged and sons are both arbitrary unjust and thereforerequirecorrectionthrough redistributive means. Thus, to take the example of fair trade,thereis now a voluminous literatureon how inequalities in capital and other resources enable developed countries to implement free trade agreementsthat concountriesto perpetualneocolonialdependency; weakdemnunderdeveloped ened health,education,andwelfare service; ecological devastation; political
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class warfare; resourcedepletion;and(formost inhabitants) corruption; povfair erty.In sum, the nationalresourcesufficiency andinternational tradethat Rawls maintainsarenecessaryfor bringingabouta global "Societyof WellOrderedPeoples" are underminedby a capitalistglobal structure. Rawls gives additionalreasonsa principleof global distributive justice is infeasible-none of them convincing. He argues,for instance, thatit would be unjustto demandthatwell-orderednationsthathavemanagedtheireconomies responsibly-through hard work, population control, and savingstransfersome of their wealth to poorer,well-orderednations that have not been as industriousor thrifty.As Beitz notes, the appealof this argument tacitly depends "on an analogy with individual morality,where we typically believe that society has no obligation to hold people harmless from the adverseconsequencesof theirown informed,uncoercedchoices."35 full The force of this argumentbecomes apparentonce we realize that individuals nationshadmuchless choice in determining inhabitingmost underdeveloped their economic fates than individualsinhabitingdeveloped ones. For examAmerple, manyheavily indebtedpoorcountriesin Africa,Asia, andCentral ica accruedtheir debt and, along with it, a correspondingpoor creditrating thatdiscouragedoutsideinvestmentduringthe Cold War,when the U.S. govthe ernmentand its allies "persuaded" leaders of these countries (some of them militarydictators)to take out loans intendedfor militarydefense and The commercialinfrastructure. average citizen in these countrieshad little say in these decisions and received few, if any, benefits from the loans (indeed, many of the loans were pilfered by corruptofficials or investedin bad projects, often with the knowing acquiescence of U.S. officials). Not only was the choice to accept these loans constrained(if not coerced)by the U.S. government-thereby makingAmericanscoresponsiblefor the loansbut the deregulationof currenciesand the decline in the value of the dollar (anddollar-peggedexports,such as oil) resultedin inflationaryinterestrates thatincreasedthe debtburdenof client statesto the oppressivelevels they are readjusttoday.Only a blanketforgivenessof thatburden-not the structural ment policies dictatedby the International MonetaryFund and WorldBank multilateral loans-will save these nations as conditionsfor receivingfurther from total ruin. Perhapsit is unfairto saddleRawls's theory of economic assistancewith cases like this, andperhapshis the burdenof having to deal with "marginal" aboutfairtrademightreachall the way downto regulating,in some strictures and trade.Granting structures institutionsconstraining form,the background that, it is presuminga lot to suppose that representativesof peoples in the global originalposition of choice seeking to advancethe corporateinterests of their respectivepeoples would settle for a weak principle of charity(the
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dutyto assist burdened peoples) insteadof a more egalitarian principleof distributive (and,very possibly, justice. Wouldnot knowledgeof the short-term effects of a global marketsystemon the most vulneralong-term)detrimental ble nations of the world lead them to view continuouseconomic redistribution as a matterof right, necessary for guaranteeingthe equality and autonAs omy of all tradingpartners? ThomasPogge argues(see n. 32), even more egalitarianprinciples of distributivejustice, like the Difference Principle Rawls invokes for liberaldemocraticsocieties, would be preferred the repif resentativesin the global originalposition representedindividuals(heads of of households or caretakers dependents)instead of peoples. It would be wrong to think thatRawls's anti-egalitarian views on global economicjustice simply follow fromhis privileging(in the words of Samuel Scheffler)"specialresponsibilitiesto the membersof ourown families, communities, and societies" over "generalresponsibilities"to needy othersand humanity at large.36An emphasis on general responsibilities-as the neoliberal defense of free marketsshows-can be no less anti-egalitarian than can an emphasis on special responsibilitiesbe egalitarian-as the protectionist defense of local economies likewise shows. Rawls's appealto the redistribution is but rightsof peoples imposes limits on anyglobal egalitarian not hostile to egalitarianoutcomes achieved throughprotectionistmeans. However, it is a very large question whethernation-statescan protecttheir domesticeconomies withoutbandingtogetherin largersupranational organizations that are democraticallyempoweredto regulate marketinequalities andexternalities.Hereagain, economic self-determination the level of the at group (or community)ratherthan the nation might be the most efficacious way to protect economic rights. Regional and metropolitanself-determinaand,ultimately,supration, however,needs to be coupled with interregional nationalregulatorybodies in orderto rein in multinationalcorporationsand ensure equitabledevelopment. In the currentera of globalization,liberal democraciesacross the board areunderincreasingpressureby financialinstitutions-and, yes, global economic entities like the EU-to embrace structuraladjustmentpolicies that exact a heavy toll on social services andothersecuritynets essential to egalitariandemocracy.As Allen Buchananrightlyobserves,Rawls's protectionist understandingseems to reflect a "vanishedWestphalianworld"that inadeof Specifically,Rawls overquatelycapturesthe interdependency nations.37 estimatesthe extentto which statesare"economically self-sufficient" "disand while at the same time idealizing the degree to tributionallyautonomous"38 which they are "politicallyhomogenious,"without internalpolitico-cultural divisions.
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Habermas,by contrast,tends to view international justice as an extension of domesticjustice; in his opinion, relationshipsof mutualdependencyand mutualeffect implicatesomethinglike a "basicstructure" rectificarequiring tion vis-a-vis principlesof distributive justice. This suggestion-as salutary as it is-might not go far enough, however.Habermasoften comes close to associating modernization(and therewithmoral and legal enlightenment) with the developmentof marketsystems thathave a stronglycapitalisticflavor. Indeed, he seldom ever acknowledges the possibility of market-based socialism andusuallycouches his criticismof globalizationin termsof "tambecause of his relative Furthermore, ing" the capitalist economic system.39 neglect of group rights, he underestimatesthe possible economic benefits thatmight flow from a two-tieredstrategycombining local democraticoverdemocratic sight of regional economies (protectionism)with supranational oversightof global economies.
REMARKS CONCLUDING I have sought to sketch a theory of humanrights that satisfies four criteria-of universality,prescriptivedeterminacy, priority,and completenessbetter than competing cosmopolitan liberal and political liberal theories. Rawlsianpolitical liberalismsecures a universalbasis (overlappingconsencosmosus) for humanrights at the cost of prescriptiveforce. Habermasian politanliberalismmitigatesthis defect by framinghumanrightsas an evolving consensus thatarises from egalitarianand emancipatorycommunicative of premisesandaims towardthe full realization(andinstitutionalization) liberal democraticrights.However,neitherHabermasian cosmopolitanliberalism nor Rawlsian political liberalism presents an adequateaccount of the complementarity of all rights, including economic, cultural, and social rights. And neither adequately distinguishes basic from non-basic rights. Some economic rightsarebasic andrealizingthem will requiremoreradical thaneitherRawlsianpolitical liberalismor changes in governancestructures Habermasiancosmopolitan liberalism countenances. Ultimately, an adequate account of human rights must accommodate differences in social both withinandbetween nations,which means-contrary to cosstandpoint, mopolitan liberalism and political liberalism-that the rights of groups no less thanthe rightsof individualswill haveto be politicallyrecognizedwithin liberal democracytypicallyand notjust occasionally. Only in this way can the rights of women, immigrants,and subnationalitiesbe fully protected. Thatis also why an international democraticfederationof liberaldemocracies and interest groups is really the only lasting basis on which to build
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Until this federationbecomes a reality (and we have no peace andjustice.40 reason to think that it can't), full toleration and trustbetween nations will remainelusive. In the meantime,those of us living in affluent democracies should pressure our leaders to promote more liberal democracy here and abroad,preferablythrough diplomacy and not sanctions, and-remaining ever mindful of our nation's own presentand past failureto honor its principles-forswearing any crusadesthatfalsely and immodestly (andhypocritically) equate liberal democracywith our liberal democracy.Above all, we shouldbearin mindthe fact thattolerancemeans somethingquitedifferentin worldof partiallysovereignnations.It means opennessto a post-Westphalian interdependencyand mutual vulnerability.In today's world, we would be deluding ourselves if we thoughtthatunilateralism-especially when arroin by gantlytrumpeted the world'sonly superpower brazenpursuitof its own narrow self-interest-is an effective way to deal with terrorismand other covenantson suchpressglobal calamities.Absent enforceableinternational and ing issues as ecological safety, economicjustice, genderdiscrimination, racism,humanrightsabuse and othermorallyunconscionablesufferingwill continue unabated,and the world remaina less secure place because of it.
NOTES
1. J. Rawls, TheLawof Peoples (Cambridge, MA: Harvard UniversityPress, 1999), hereafter LP. 2. Among the humanrightsmentionedby Rawls arethe rightto life (to the meansof subsistence andsecurity);to liberty(to freedomfromslavery,serfdom,andforcedoccupation,andto a sufficientmeasureof libertyof conscience to ensurefreedom of religion and thought);to propand erty (personalproperty); to formalequalityas expressedby the rules of natural justice (that is, thatsimilarcases be treatedsimilarly)(LP,65). ElsewhereRawls notes thatArticles 3 to 18 of the UniversalDeclarationof HumanRights (1948) count as universalhumanrightsin his sense, whereas Article 1, which asserts that "all humanbeings are born free and equal in dignity and liberal interpretation humanrights (LP,80). of rights,"expresses a particular 3. Rawls excludes from the Society of Well OrderedPeoples (i.e., peoples who areguaranteed protectionfrominternational sanction)suchunreasonable peoples as outlaw statesthatviolate humanrightsandbenevolentdictatorships respecthumanrightsbutdeny theircitizens a that meaningfulrole in makingpolitical decisions. Also excluded arereasonablesocieties burdened by unfavorableeconomic or culturalcircumstances(LP,4). Rawls includes decent consultation hierarchies,in which only some persons are allowed to run for andhold office. Personschoose membersof theirown group(occupational,religious, etc.) to representthem in an assemblyof but group representatives do not directly vote as individualsfor governmentofficers. Government leaders(some of whom might be chosen by a clerical hierarchy)consult the higherassembly, fairly balancingthe interestsof all groups. 4. Cf. Allen Buchanan,"Justice,Legitimacy,andHumanRights,"in TheIdea of a Political Liberalism,editedby V. Davion andC. Wolf (Lanham,MD: RowmanandLittlefield,2000), 73-
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89; Kok-ChorTan,"LiberalTolerationin Rawls's Law of Peoples,"Ethics 108 (January1998): the 283-85; andDarrelMoellendorf,"Constructing Law of Peoples,"Pacific Philosophic Quarterly 77, no. 2 (1996): 283-85. 5. J. Rawls, A Theory of Justice. Rev. ed. (Cambridge,MA: HarvardUniversity Press, [1971] 1999). 6. J. Rawls, Political Liberalism(PL) (New York:ColumbiaUniversity Press, 1993). 7. As Rawls notes, because the originalposition posits its subjects as free and equal, and assumes a reasonablepluralismof comprehensivedoctrines,it contradictsthe circumstancesof justice thatobtainin illiberalconsultationhierarchies(LP,70). Hence, thereis no domesticapplication of the originalposition to these peoples. 8. Cf. Brian Barry,Theories of Justice (Berkeley:University of CaliforniaPress, 1989); Thomas Pogge, Realizing Rawls (Ithaca,NY: Cornell University Press, 1989); CharlesBeitz, Political Theoryand InternationalRelations (Princeton,NJ: PrincetonUniversityPress, 1979); andJosephCarens,"AliensandCitizens:The Case for OpenBorders," Reviewof Politics49, no. 92 (1987): 251-73. 9. JosephCarens,"Aliensand Citizens,"conceives the global originalposition to apply to thannations.This approach expresslyfavoredby Pogge in RealizingRawls, is individualsrather althoughin a later essay, "AnEgalitarianLaw of Peoples,"Philosophy and Public Affairs 23 (1994): 195-224, he defends a global resourcetax proposalby accepting, for the sake of arguof ment, Rawls's assumptionthat the global original position contain representatives homogeneous peoples. 10. At best, Rawls favors a comprehensiveKantianphilosophy thatholds thatthe mostjust and stableconceptionof humanrightsis liberaldemocratic.Interestingly, now concedes "the he but proviso"thatnon-publicreasonsmightbe given in civil argument only if they areaccompanied by purelypublic (political) reasons (LP, 125, 152). 11. AlthoughRawls normallytalksabouta pluralityof "opposing"and"irreconcilable" doctrines (PL, 3), he occasionally refers to a "pluralityof conflicting and incommensurable docRawls seems to mean "uncompromising" trines" (PL, 135). By "irreconcilable" (PL, 138); "incommensurable," contrast,suggests that doctrinesare "uncompromising" not being by by into a common public language in which they might be rationallydiscussed fully translatable and modified.If so, incommensurability would serve to immunize doctrinesfrom the demands of public accountability.However, as Habermas (citing well-known argumentsby Donald is Davidson) notes, such incommensurability itself incoherent. 12. Habermas'scontributionsto this debate are contained in The Inclusion of the Other: Studies in Political Theory,edited by C. Croninand P. De Greiff (Cambridge,MA: MIT Press, 1998), chap. 2 and 3. 13. C. Taylor,"Conditionsof an UnforcedConsensuson HumanRights,"in TheEastAsian Challengefor Human Rights, edited by Joanne R. Bauer and Daniel Bell (Cambridge:Cambridge UniversityPress, 1999), 101-19. to 14. Contrary Habermasbutin agreementwith Rawls, CharlesTaylorproposesthe idea of to "alternative modernities" capturethe differentlegal formsby which diversenationswill institutionalize universal"normsof action,"along with market-industrial economies and bureauHe cratic administrations. thinks that neither these legal forms nor the specific rationalesby which they arejustified need referto "subjective" "individual" or rightsin the liberalsense. See in C. Taylor,"Nationalismand Modernity," The Moralityof Nationalism, editedby R. McKim andJ. McMahon(Oxford,UK: OxfordUniversityPress, 1997). For a critiqueof Taylor'sviews that is sympatheticto Habermas,see T. McCarthy,"OnReconciling CosmopolitanUnity and National Diversity,"Public Culture11, no. 1 (1997).
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15. J. Habermas,Die PostnationaleKonstellation.PolitischeEssays (Frankfurt: Suhrkamp, 1998), hereafterPC. 16. J. Habermas,Between Facts and Norms: Contributions a Discourse Theoryof Law to and Democracy (Cambridge,MA: MIT Press, 1996), 127, hereafterBFN. 17. I thankJeff Flynn for suggesting the distinctionbetweenjustificatoryand institutional priority. 18. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2d ed. (Princeton:PrincetonUniversityPress, 1996). My criticalreconstructionof Shue's position is contained in David Ingram, GroupRights: Reconciling Equality and Difference (Lawrence: UniversityPress of Kansas, 2000), chap. 11. 19. The StateDepartment urgedthatthe UniversalDeclarationof HumanRightsbe split into two independentlyratifiabletreaties:the International Covenanton Civil and Political Rights andthe International Covenanton Economic, Social, andCulturalRights. While supporting the formercovenant,the StateDepartment refusedto endorsethe latteron the groundsthatthese has rights are less genuine and binding.Clearly,even if we accept the view, espousedby Habermas among others,thatculturaland social rights cannot have priorityover civil and political rights, since the former"only serve to guaranteethe 'fairvalue' (Rawls);i.e., the actualconditions,for the equal exercise of liberal and political rights"(PC, 187), it doesn't follow thatpolitical and civil rightshave priorityover culturaland social rights.The mere fact thatwe can agree on civil and political rights with greaterfacility and thatnegativerightsto noninterference easier to are discern and enforce is no reasonto privilege them over economic, social, and culturalrights. In and any case, the UN's division of rightsis arbitrary incoherent.Some rights,like therighttojoin laborunions, straddlethe distinction,while most rightsthatfall underone covenantareineffectualapartfrombeing conjoinedwith rightsfalling underthe other.Even as a marker priorities, of the distinctionfails to take into accountthat within each division there are rightsthat are more basic (meritinggreaterprotection)thanothers.Thus, the economic rightto acquirelandandproductive capacity for profit is less basic than the economic right to bare subsistence,just as the money to politicalcampaignsandpartiesis less basic thanthe rightto politicalrightto contribute vote. By not taking into account the priority of subsistence over marketfreedom, the State of Departmenthas imposed its own hyper-libertarian, interpretation basic hyper-individualist rights in a mannerthat subverts-rather than promotes-the aims of liberal democracy. 20. Iris MarionYoung,Inclusionand Democracy (Oxford:OxfordUniversityPress, 2000), 257-63. 21. Ibid.,chaps.6 and7; JordiBorjaandManuelCastells,Local and Global:Management of Cities in the Information Age (London:Earthscan,1997). 22. Cf. Michel Seymour,"OnRedefiningthe Nation,"TheMonist 82, no. 3 (July 1999): esp. 427, 432ff. and the SolidarityProblem:Habermason National 23. Cf. M. Pensky, "Cosmopolitanism and CulturalIdentities,"Constellations7, no. 1 (2000): 64-79. 24. Following Germany'snotoriousappeal-in justificationof its expansionistpolicies in the late thirties-to bilateral and multilateraltreaty provisions under the League of Nations Germansliving in Polandand Czechoslovakiaspecial privilegesandrights, grantingirredentist the UnitedNationsdeletedall referencesto the rightsof ethnicandnationalminoritiesin its Universal Declarationof HumanRights. Nevertheless, some of the individualrightsmentionedby the the Declarationare rights that are typically exercised in groups (see below). Furthermore, United Nations has been debatingboth a Declarationon the Rights of Persons Belonging to NationalorEthnic,Religious andLinguisticMinorities(1993) anda draftUniversalDeclaration on IndigenousRights (1988).
390
and Culture(Oxford,UK: Clarendon,1991), 25. Will Kymlicka, Liberalism,Community, 192-93. in 26. I discuss the Kiryas Joel and the following problem of proportional representation Ingram,GroupRights, chaps. 1 and 9. an 27. Rawls cites (LP,110, n. 39; 151, n. 46) AbdullahiAhmed An-Na'im's book, Toward Islamic Reformation:Civil Liberties, HumanRights, and InternationalLaw (Syracuse:Syraand cuse UniversityPress, 1990), andLeila Ahmed, Women Genderin Islam (New Haven:Yale of UniversityPress, 1992), to supportthe view thatIslamic divine law (at least the interpretation Shari'a based on the early Mecca teachings of Mohammad)supportsthe equality of men and women and other constitutionalessentials. 28. Against argumentsadvanced by East Asian signatories to the Bangkok Declaration (1993), Habermasinsiststhatthe rightsassociatedwith liberalismanddemocracyareintrinsicto to modernization(PC, 181). Contrary Rawls, he even insists thatstateneutralitywith respectto religion is necessary for full religious toleration(PC, 187). 29. Cf. Ingram, GroupRights, chaps. 1 and 5, for a discussion of sex discriminationin aboriginaland religious communities. is 30. This argument advancedby Carens,"AliensandCitizens."For a detaileddiscussionof immigrationrights, see Ingram,GroupRights, chap. 6. 31. LP, 39, and M. Walzer,Spheres of Justice (New York:Basic Books, 1983), 38ff. redistribution 32. LP, 117. Rawls finds CharlesBeitz's "resource principle"inconsequential because he thinks that a nation's political cultureis more decisive in hinderingits capacityto achieve economic independencethan its level of resources.He rejects Beitz's "globaldistribution principle,"which applies the difference principle to peoples, because it would penalize unfairlya nationthathadvoluntarilycontrolledits populationor increasedits rateof savingsand industrialdevelopmentin comparisonto anothernationsimilarlysituatedthathad chosen not to do so. Rawls is willing to acceptThomasPogge's GlobalResourcesTaxon resourceuse butonly if it specifies as its cutoff point the elevation of the world's poorest peoples to the level where theircitizens'basic needsarefulfilled andthey can standon theirown (LP,119). Forcriticismsof and Pogge's proposal,see Roger Crispand Dale Jamieson,"Egalitarianism a GlobalResources Tax:Pogge on Rawls,"in Davion and Wolf, TheIdea of a Political Liberalism,90-101; Hillel in Redistribution," GlobalJustice.NOMOSXLI,edited Steiner,"JustTaxationandInternational by I. Shapiroand L. Brilmayer(New York:New YorkUniversityPress, 1999), 171-91. 33. CharlesBeitz, "Rawls'sLaw of Peoples,"Ethics 110 (July 2000): 681. 34. Ibid., 683. 35. Ibid., 691-92. 36. S. Scheffler, "The Conflict between Justice and Responsibility,"in I. Shapiroand L. Brilmayer,86-106. 37. Allen Buchanan,"Rawls'sLaw of Peoples: Rules for a VanishedWestphalian World," Ethics 110 (July 2000): 701-3. The Peace of Westphalia(1648) thatended decades of religious warfarebetween Europeanstatesviewed relationsbetween largely self-sufficientandsovereign nations in militaryratherthan economic terms. 38. For Buchanan"statesare more or less economically self-sufficient if and only if they can . . . provide adequately for the material needs of their population. .... A state is within its autonomousif and only if it can determinehow wealth is distributed distributionally borders"("Rawls'sLaw of Peoples,"702). 39. For furtherdiscussionof Habermas'sambivalentattitudetowardmarketeconomies, see Freedomand Social Equality:Habermas'sDemocraticRevolutionin the my essay, "Individual Justificationof Law,"in Perspectiveson Habermas, edited by Lewis E. Social Contractarian Hahn (Chicago: Open Court,2000), 289-308.
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40. In additionto democratizingand opening up global banking and tradinginstitutions, and such as the International MonetaryFund,the WorldBank,theWorldTradeOrganization, the Organizationfor Economic Cooperation and Development, the United Nations should be eitherby abolishingthe veto of the permanentmembersof the SecurityCouncil or restructured, to membership statesfromthe Southernhemisphere.In additionto by openingup the permanent this reform, Young (Inclusion and Democracy,273) recommendssupplementingthe General Assembly of nationswith a People's Assembly, composed of persons, elected directlyby individuals from all over the world, who would representvulnerablesubgroups,includingwomen, indigenous people, and poor people.
David Ingramis a professor of philosophy at Loyola University,Chicago. He is author and editor of numerousbooks, including Habermasand the Dialectic Reason (1987); CriticalTheoryandPhilosophy(1990); CriticalTheory:TheEssentialReadings(1991); Groundsof Reason in the Modern Reason, History, and Politics: The Communitarian Age (1995); GroupRights:ReconcilingEqualityandDifference(2000); andThe Political: Readingsin ContinentalPhilosophy(2002). In 1998, he receivedCasa Guatemala's HumanRightsAward.He is currentlyworkingon a book that will bring togetherissues and politics in adjudicationand law. concerningdisabilityrights,groupidentity, identity

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Between Political Liberalism and Postnational Cosmopolitanism: Toward an Alternative Theory of Human Rights Author(s): David Ingram Reviewed

AND BETWEENPOLITICALLIBERALISM POSTNATIONAL COSMOPOLITANISM Towardan AlternativeTheoryof HumanRights

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THEORYOF HUMAN RIGHTS Ingram/ ALTERNATIVE

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importance of subnational groups and communities in protecting local resourcesand habitats.

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