Beruflich Dokumente
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Miguel Vatter
Miguel Vatter
Politico-Theological
Foundations of Universal
Human Rights: The Case
of Maritain
COSMOPOLITANISM BETW EEN P O LITICA L THEOLOGY
A N D BIO POLITICS
Contem porary political theory took a turn tow ard cosm opolitanism
roughly in the sam e years th at the Universal D eclaration o f Human
Rights (UDHR), according to the new historiography (Moyn 2012),
began to take hold as a governance m echanism o f the current neolib
eral world order. This new cosm opolitanism understood as a legiti
m ation discourse o f the em ergent institutionality o f universal hum an
rightsis accom panied by a new respect afforded w orld religions
in the public sphere and by a new understanding o f hum an dignity,
which is now recognized to all individuals by virtue o f their status as
living beings rather than as rational beings.
Jacques M aritain was one o f the earliest philosophical propo
nents o f universal hum an rights, and he played a nontrivial role as
leading intellectual advisor to the drafters o f the UDHR (Glendon 2002,
chap. 5; Moyn 2010). His case serves to support an hypothesis as to
why and how the cosm opolitical underpinning o f the new discourse
o f universal hum an rights brings together a political theology and a
biopolitics o f a special kind.
A cosm opolitan perspective, strictly speaking, requires that indi
viduals understand them selves first as citizens o f the w orld and then
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Pogge both point out that the indignation with regard to violation o f
hum an rights in faraw ay parts o f the w orld has two m irror com po
nents: the first has to do with the fact that hum an rights violations are
always the result o f actions or om issions o f the nation-states to which
these com patriots belong and whose actions or om issions they often
support (even i f tacitly or passively). Since the person o f the state
is but a representative o f its people, and its actions are perform ed on
the presum ption that they are authorized by the body o f the people,
each m em ber o f the people is, in one sense, responsible for such viola
tions. This hypothesis may also account for the guilt felt by those who
watch such atrocities at a distance.
Second, these violations occur to people who have lost their own
citizenship, either because they belong to failed states or because their
political, indeed democratic, aspirations have been sacrificed to other
national or ethnic interests. In other words, the object o f sym pathy and
indignation that m otivates a world citizen is not sim ply the suffering
o f bare life (see Agamben 1998), but m ore specifically the democratic
aspirations o f this bare life: it is a politicized bare life that m otivates
a nation al citizen to go again st the national self-interest o f his or
her com patriots and uphold the basic rights o f strangers in faraway
lands. That is why Shue insists that basic rights cannot only be rights
to security and subsistence, but m ust also entail som e m inim al politi
cal rights to participation and m ovem ent. Here the cosm opolitan
structure o f universal hum an rights gives rise, o f itself, to a biopolitical
approach (that is, when life itself becom es endowed with a function
o f legitimation) (Fassin 2009; Rose 2007).2
To sum up both approaches, one can say that the new cosm o
politanism depends on the sacralization o f bare life. The sacrality o f
bare life is both politico-theological and biopolitical, as Hannah Arendt
noted w hen she tried to understand the causes o f the em ergence o f
m odern (civil) society:
The reason why life asserted itself as the ultim ate point of
reference in the m odern age and has rem ained the highest
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m ere disdain for universal hum an rights, seeing them as a tool for
the im position o f a new Anglo-American em pire (Schmitt 2007, 54 ff.;
H aberm as 2001; Hardt 2000). In reality, the paradox vanishes as soon
as one realizes that, alongside the political theology o f Schm itt, other
political theologies were developed in the 1930s and 1940s that were
m uch m ore cosm opolitan and open to a certain (both neoconservative
and neoliberal) un d erstan din g o f universal hum an rights, o f w hich
the m ost in structive and in flu en tial rem ain s the case o f M aritain
(Duranti 2012).
Already before his 1942 book, The Rights of Man and Natural Law,
M aritain prepared the groundw ork for a cosm opolitan or universal
theory o f hum an rights by putting forward two fundam ental theses.
The first thesis equates sovereignty with totalitarianism . A gainst this
backdrop he sets out a new task: how to conceive a cosm opolitan
dem ocracy beyond the sovereignty o f the nation-state. It is my posi
tion that this allows his approach to the universalism o f hum an rights
to waylay Shues problem o f the priority o f com patriots. The second
thesis has to do with his attem pt to ground universal hum an rights in
natural law. Properly understood, this m eans that the normative order
established on the b asis o f universal hum an rights is for M aritain a
providential order. I argue that this reference to providence in reality
contains a theory o f governm entality that explains the sense in which
the im plem entation o f the UDHR fits within a neoliberal and neocon
servative ideal o f governance.
M A R ITA IN S CRITIQ UE O F SO VEREIGNTY A N D THE CASE
FOR A CHR ISTIAN PO LITIC A L THEOLOGY.
In 1939 Jacques Maritain writes The Twilight of Civilization,3 which is one
o f the first attem pts to understand the philosophical essence o f totali
tarian governm ents, both in the Soviet Union and in Italy and Germany.
M aritain holds the th esis o f the stru ctu ral equivalence betw een
Stalinism and Nazi-Fascism (Maritain 1975, 69-74) because both show
an anti-Christian essence: b oth reject a political ideal o f fraternal
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m en are sons o f God (quoting from John 13:34; M atthew 22:39 and
7:40; and Luke 10:29).
It is an irony o f history that M aritain here partially anticipates
Badious radicalization o f the universalism o f Paul, which for Badiou
is also based on the prem ise that the sonship o f God is not granted
to on e but to all those who have faith in the event o f the resurrec
tion. On Badious reading, Paul understands C hrists resurrection to
m ean the end o f political m onarchism : Christ is that Son o f God who
delivers all hum ankind from kingship. After the advent o f Christ, there
can be no m ore divine monarchs, for everyone (in virtue o f faith) is of
equal value as an equal participator in the son sh ip o f God (Badiou
2003, chap. 7). Seen in this light, it is not surprising that the sam e year
in which he publishes Twilight of Civilization, M aritain also publishes
in New York a French edition, and in London a year later the English
edition o f his presentation o f Pauls thought (Maritain 1942). M aritains
reading o f Paul is entirely centered on the one stum bling block posed
to Christian universalism , namely, the existence o f Jews who are both
Gods chosen people and yet, according to Paul, them selves stum bled
on the path to salvation by not recognizing that Jesus, in and through
his resurrection, becam e the Christ or Messiah. For Maritain, sim ilar to
Badious argum ent, Pauls m ission w as that o f m aking Christianity
becom e conscious o f its liberty from Judaism , o f its pure universality
(M aritain 1942, 2; em ph asis added). U nsurprisingly, w hen M aritain
com es to explain Pauls account o f how Gods hardening tow ard the
Jews was the occasion for the salvation o f the gentiles, and thus for the
aforem entioned universalism o f Christianity (referring to the obscure
discussion o f Romans XI), M aritain cites the words o f the French transla
tion o f Petersons theological tractate on Le Mystre des Juifs et des Gentils
dans lglise: the conversion o f the Jew s, at the end o f history, will
have a m eaning greater still than their lapse, for the cosm os and the
gentiles (1942, 70).
As A gam ben (2007) has recently pointed out, these passages in
Paulfor centuries used as one o f the m ain sources for Christian antiJew ish propagandapose the m ost vexed problem s for any Christian
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are (1) the recognition o f inalienable rights o f the hum an person; and
(2) the principle that those invested with authority are not vicars of
God, but vicars o f the m ultitude, as Thomas Aquinas said (1975, 98).
It is not difficult to see why, only a few years later, Maritain could
envision the drafting o f a Universal Declaration o f the Rights o f Man
as the clim ax o f his new Christian political theology o f the Multitude,
a sort o f new go sp el that could serve as the b asis for the struggle
against totalitarian and authoritarian politics as m uch as for the strug
gle against anti-im perialist Marxist-Leninist and Maoist politics.
M aritains Christian political theology depends on the oppo
sition o f the m ultitude again st the sovereignty o f the state, which
Maritain ascribes to Thomas A quinass political theoiy. In Man and the
State Maritain says: It is my contention that political philosophy m ust
get rid o f the word, as well as the concept, o f Sovereignty . . . because,
considered in its genuine m ean in g . . . this concept is genuinely w rong
(Maritain 1951, 29). The illusion consists in thinking that the legisla
tive authority in a society is an absolute authority, som ething entirely
separate from the political body and standing over and above it: the
Sovereign . . . transcends the political whole ju st as God transcends the
cosm os (1951, 34); he is a full-dress political im age o f God (1951, 37).
Sovereignty is entirely the result o f a false political theology:
[I]n the political sphere . . . there is no valid use o f the
concept o f Sovereignty. Because, in the last analysis, no
earthly power is the im age o f God and deputy for God. God
is the very source o f the authority with which the people
invest those m en or agencies but they are not the vicars o f
God. They are the vicars o f the people; then they cannot be
divided from the people by any superior essential property
(1951, 50).
This is a fundam ental text in that it denies precisely the claim of
Schm ittian political theology according to which only the single represen
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the legal sphere from the in terventions and plan n in g o f the politi
cal state. C hristian dem ocracy in M aritain is therefore both charis
m atic and constitutional: the politics o f universal hum an rights can
only be achieved by the com bined efforts o f prop h etic social and
political actors (for exam ple, A m nesty International or Mdecins sans
frontiers) th at struggle for the dem ocratic representation o f the m ulti
tudes w ithout and against political sovereignty (anticipating w hat is
today called cosm opolitan dem ocracy) and by the estab lish m en t o f
a global legal order th at is effectively su pran ation al and im po ses a
neom edieval rule o f law w ithout absolute sovereigns.
This conception o f cosm opolitan dem ocracy is dependent on a
dem ocratic gift that God extends to all peoples in virtue o f His being
the Creator o f nature. This grace or gift o f rule, therefore, is visible in
two spheres: on the one hand, in the struggle for self-governm ent and
independence (struggle for democracy) o f all peoples in the world, but
on the other hand and m uch m ore im portant, the grace o f God m ust
be visible in the w orkings o f nature itse lfm ore specifically, in the
fact that all governm ents are forced, o f necessity, to govern according
to natural law or ju stice. The expression o f natural law w ill becom e
the universality o f hum an rights. A global legal order based on univer
sal hum an rights brings together natural necessity with hum an free
dom in a way that can only be m ade sense o f by appealin g to divine
providence.
W H Y UNIVERSAL HUM AN RIGHTS NEED TO BE FOUNDED
ON NATURAL LAW
M aritain thus attacks a political theology o f sovereignty centered on
the figure o f the king as vicar o f God in order to propose a political
theology o f dem ocracy that centers around the deduction o f universal
hum an rights from natural law, w here natural law, as in A quinas, is
understood to be the reflection in hum an reason o f divine law. In the
literature on the philosophical foundations o f universal hum an rights,
M aritains foundational strategy has seriously fallen out o f favor. This
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is due in part to a com m only shared belief that giving a Christian theo
logical foundation to the claim to universality o f hum an rights runs
afoul o f the fact o f plu ralism and consequently cannot be used in
order to establish the UDHR as the centerpiece o f a global or cosm opoli
tan understanding o f public reason. On another front, today m ost advo
cates o f cosm opolitan dem ocracy sim ply advocate the legal positivist
(Kelsen) route o f adopting the UDHR as a basic law for a (coming)
global civil society. From this perspective, the very project o f seeking a
m etaphysical or philosophical foundation to hum an rights is at worst
sim ply a m isunderstanding o f w hat the UDHR really is (that is, the first
piece o f global positive legislation), and, at best, is a counterproductive
endeavor.
And yet, again and again a stubborn intuition persists in the
discourse on hum an rights, namely, the intuition th at such rights
belong to everyone because all hum an bein gs share som e com m on
hum an nature or hum anity prior to the variety o f cultural identities
that people end up adopting during the course o f their lives. It is this
intuition that accounts for why the identification o f the UDHR with a
new natural law persists in the literature (Griffin 2008; Parekh 2008).
Likewise, as I discuss below in m ore detail, M aritain h im self thought
that the UDHR did not require a philosophical foundation because, as
he said in a speech to the UNESCO second General Conference o f 1947,
the aim was to achieve a consensus
not on com m on speculative notions, but on com m on prac
tical notions, not on the affirm ation o f the sam e conception
o f the world, m an, and knowledge, but on the affirm ation o f
the sam e set o f convictions governing ac tio n .. . . A ssum ing
they both believe in a dem ocratic charter, a Christian and
a rationalist will, nevertheless, give justifications incom
patible with each other, justifications to which their souls,
minds, and blood are com m itted, and over which they will
fig h t.. . . They remain, however, in agreem ent on the prac
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developm ent o f a given b ein g or its ideal order (88). The doctrine
o f universal hum an rights, in M aritains interpretation, am ounts to a
return to the state o f nature as the truly political condition o f hum an
beings in the sense that politics ought to follow those standards that
allow every individual being the full developm ent or norm al function
ing o f its capabilities. The list o f universal hum an rights specify what
these standards and capabilities are: they describe the pure n ature
o f hum anity as a biological species endowed with sacrality or dignity,
w hat Jean Porter identifies, in Thom istic term s, as the perfection o f
nature through grace (Porter 2005, 382-391). M aritains point is that
only a hum an governm ent that adheres in its policies to this under
standing o f hum an nature and its flourishing (in Thomistic term s, its
perfection) is therefore legitim ate government.
In this context o f w orking out the m eaning o f natural law and
providence for the system o f universal hum an rights, M aritain rejoins
som e o f the p rin cipal ten ets o f n eoliberal governm entality, which
were being developed by Hayek and others roughly during the sam e
years (1940s-1950s). According to neoliberal doctrine, governm ent
refers to the regulation o f the actions o f hum an beings endowed with
free ration al choice not by m ean s o f external coercive laws b u t by
spontaneous norm ative orders that w ork through the polarity norm al
ity/abnormality. Thus, all legal regulations or governm ent policies are
legitim ate or good if they m aintain or restore the norm al function
ing o f these norm ative ordersfor instance, the spontaneous order o f
the free m arket (Foucault 2010; M irowski 2009). State planning o f the
economy, on the other hand, produces ab n o rm al developm ent o f
the economy. N atural law, as M aritain understands it, is but another
nam e for the idea o f the norm al functioning, self-regulating sponta
neous orders theorized by neoliberalism . This explains why M aritains
Christian D em ocratic b elie f in the subsidiary or in strum en tal role
o f the state could be am algam ated w ith neoliberal conception o f free
m arkets and com petition to produce hybrids like the Germ an social
m arket econom y, w hich w ould acquire n orm ative statu s in p o st-
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World War II Europe and Latin America, and later in other parts o f the
world as well.
Seen in this context, one can better understand why Maritain is
keen to defend the claim that the universality o f hum an rights be ju sti
fied on the grounds o f natural rather than positive law. Universal hum an
rights, on this account, are unlike the rights (and duties) that emerge
from hum an positive law because the validity o f hum an rights are not
dependent on a positive legal constitution, nor can they be deduced from
such a legal constitution. If they could then these rights would not apply
to all hum an life as such, irrespective o f citizenship. To the contrary, for
Maritain universal hum an rights can only be realized outside o f repub
lican constitutional laws, bypassing entirely the classical or republican
understanding o f the citizen as author o f its laws. The regulations that
establish the normative order o f universal hum an rights, in this sense,
are analogous to the spontaneous normative order o f the free market,
which is also a norm ative order that is not created by the concerted
action o f hum an beings, even though it depends on the acquisition o f
form al legal liberties provided by positive law. For this reason, universal
hum an rights are intrinsically the object o f what, since Foucault, one
calls police regulations rather than political legislation.
From a Foucaultian perspective, the universality o f hum an rights
can only be established panoptically, w hen everyone who is victim
ized by state force becom es in turn an instrum ent for the policing
o f this state-based sovereign violence, reporting on its infringem ent
o f hum an rights, punishing its perpetrators through judicial instances
that depend directly from the United Nations, and so on. In his counterhistoiy o f universal hum an rights, Moyn points out that there was a
lag o f several decades between the declaration o f these rights and their
effective im plem entation in a full-blown politics o f hum an rights. This
lag can now be explained on M aritains term s: it refers to the tim e that
it took to set up the instrum ents and dispositifs o f a global panopticon
sensitive to the interventions o f state sovereignty in violation o f the
natural rules o f hum an dignity (analogous to the global panopticon
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that m akes possible a global free m arket and is sensitive to all viola
tions by state sovereignty o f the natural rules o f economic value).
Thus, m y thesis is th at M aritains apparently m etaphysical or
theological grounding o f hum an rights in natural law is m isinterpreted
if it is understood to offer an alternative moral foundation to hum an
rights (for exam ple, an anti-constructivist or a m etaphysical founda
tion). Maritain does not appeal to natural law in order to offer a m eta
physical foundation o f hum an rights, since he was as aware back in
1947 as we are today that universal hum an rights do not require that
kind o f foundation. To the contrary, his interest in a natural law ground
ing to universal hum an rights was intended to offer a way to understand
these rights as an instrum ent o f global governance or governmentality, w hereby governm entality is taken in the Foucaultian sense o f
the term, m eaning ways o f controlling the conduct o f free individuals
(persons in M aritains sense o f the term) through a panoply o f regula
tory and control m echanism s, policing functions, securitization poli
cies that allow for the free developm ent o f each person s n atu re
or capabilities, for the norm ality o f functioning. Only w hen seen
from this governm ental perspective can one understand why Maritain
in sisted that universal hum an rights had to require new social and
econom ic rights (biopolitical rights, rights to quality o f life), and
why he also placed great em ph asis on the universal hum an right to
choose on es conception o f sacredness or religious b elief (Maritain 1951
104-106, 172; 1944). M aritain insists on a hum an right to religion not
for the sake o f theology but as a requirem ent o f dem ocratic politics:
the b elief that God exists m ust be safeguarded, but only because the
very structure o f universal hum an rights depends on a providential
conception o f natural norm ative orders. Gods providence or existence
is m anifest in history only as a function o f the spread o f the recognition
o f the universality o f hum an rights.
There is another advantage w ith grounding universal hum an
rights in such a conception o f natural law, namely, it allows the separa
tion o f the protection o f these universal rights from any positive legisla
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tion o f the state and its coercive power. Since natural law is inscribed in
the natural order o f things, it is an unwritten law and does not depend
on being posited by any sovereign authority the way hum an positive
law does. This claim leads to the obvious question: how is anyone to
know w hat is natural law, w hat are hum an rights, if these are not found
in w ritten legal codes, and are interpreted by authorized ju dges and
legislators? M aritain claim s that there are two ways in which natu
ral law com es to be known. The first is through Gods revealed posi
tive law, which, apart from revealing som e aspects o f Gods essence,
also gives the basic contents o f the natural law in the form o f divine
com m andm ents. This is a crucial part o f the argu m en t because it
perm its the founding o f a cosm opolitan regim e o f hum an rights on
the basis o f an overlapping consensus betw een rational, com prehen
sive world views, which is precisely what world religionswhen appro
priately reinterpreted in light o f this endare able to provide.7 As I
m entioned at the start, M aritain was one o f those theorists behind the
Universal Declaration who argued that any viable cosm opolitan legal
arrangem ent had to w ork through an overlapping consensus on the
basis o f a new dem ocratic charter that calls for new political actors,
new representatives o f the universality o f hum an rights who shall
be like prophetic shock-m inorities am ong elected officials (1951,
139 ff.). Here M aritain anticipates the contem porary fascination with
nonelected representatives o f the m ultitudes in the cause o f univer
sal hum an rights.
The other way to come to know the contents o f the natural law is
entirely secular, disconnected from any positive revealed religion. This
way consists in letting hum an reason discover the regulations o f natu
ral law through the guidance o f the inclinations o f hum an nature, that
is, by following the guidance o f a hum an biopolitics (1951, 91; em pha
sis added). The knowledge o f these inclinations o f hum an nature is a
gradual, dynam ic acquisition: principles o f natural law are revealed
throughout history and in all cultures because they cannot be deduced
theoretically, at one go; but this knowledge o f natural law is obscure,
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rights are functional to Gods right to see His governm ent realized in
and through His subjects com ing to respect, obey, and love the provi
dential natural order He has established in His wisdom. Is there any
secular, not question-begging way to m ake sense o f this seem ingly wild
extrapolation from hum an rights to divine wisdom?
In his recent book dedicated to Christian theories o f divine provi
dence or governm ent, Giorgio Agam ben has shown that in this tradi
tion providence receives two, related but distinct m eanings (Agamben
2007). According to the first m eaning, divine providence refers to an
econom y o f mystery. Here the m ystery refers to the gift o f salvation
that God gives to the hum an species. But since God does not give this
salvational gift all at once, He m ust em ploy an econom y o f dispen
sations (in the Christian tradition these are usually understood to be
com posed o f three m om ents corresponding to the Mosaic revelation,
to Je su ss Gospel, and lastly to the Holy Spirit). In Maritain, I suggest,
this m ystery corresponds to the gift o f ru le that God distributes
equally am ong all peoples and that determ ines history as the stage o f
a repeated, som etim es victorious and other tim es defeated, struggle
for the em ergence o f dem ocracy as the only global legitim ate form o f
government.
The second m eaning o f divine providence in the Christian tradi
tion is that o f a m ystery o f the economy. A gam ben shows that this
second m eaning refers to the idea that Gods governm ent or provi
dence operates indirectly, in m ysterious ways, because it is an effect
o f the unintended consequences and secondary causes that constitute
the interrelations between the different natures in the world order that
give rise to what I called above, using Hayeks terminology, a sponta
neous norm ative order. From this perspective, divine providence is
an em ergent pattern, an order that develops out o f the interaction
betw een chaotic, arbitrary choices and the com m unication between
such actors. My hypothesis is th at M aritains interpretation o f this
second sense o f providence, that is, divine providence as the mystery
o f the economy, com es into play in order to solve the serious problem
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o f how hum anity comes to know w hat is natural law, what is naturally
good for each and every individual. M aritains claim that knowledge
o f the natural law is knowledge o f the inclinations o f hum an nature
effectively m eans that the hum an knowledge as to what is the good o f
each nature or person is som ething that rem ains mysterious, not trans
parent to each individual, and therefore can only be com puted by an
econom y o f freedom as a whole.
Once again, M aritains intuition w ith respect to n atural law is
not unrelated to Hayeks transform ative idea that useful knowledge
is the best distributed th in g in the w orld (Mirowski 2007). The idea
o f an econom y o f know ledge allow ed Hayek to p o sit th at prices, for
exam ple, are best form ulated in a system in which the knowledge as
to w hat anything is w orth or its exchange value can be com m unicated
freely, and th at as a consequence the free m arket is really sim ply a
m ediu m o f com pu tin g, g ath erin g , and p ro cessin g th is p erfectly
distributed knowledge. If one expands these intuitions to the field o f
h um an righ ts, then one can begin to com prehend why Shue in sists
th at b asic h u m an righ ts can n ot be m erely righ ts to security and
subsistence, but they m u st be also basic rights to participation and
liberty o f m ovem ent. W hat Shue has in m ind here is, ultim ately, a
neoliberal idea o f access to and participation in a global netw ork o f
knowledge, in a world wide web o f inform ation, which, as I showed
above, is an essen tial elem en t o f the p an o p tical structu re o f the
im plem entation o f the universality o f hum an rights. Likewise, Shues
hum an right to liberty o f m ovem ent refers to the liberty o f com m u
nication and flow o f peoples, things, inform ation in this world wide
web or global world order. Only these kinds o f freedom can ultim ately
track the n atu ral inclinations o f the m ultitudes and thus generate
a true know ledge o f w h at n atu ral law really is. M aritains connec
tion betw een divine providence, n atu ral law, and u niversal hum an
rights only m akes sense if understood in light o f the dependence o f
a system o f universal hum an rights on a new econom y o f knowledge
th at is entirely in dependent o f the public reaso n o f the m odern
sovereign.
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