Democracy in an Age of Globalisation (Studies in Global Justice)

DEMOCRACY IN AN AGE OF GLOBALISATION

STUDIES IN GLOBAL JUSTICE VOLUME 3 Series Editors Darrel Moellendorf, San Diego State University, U.S.A. Thomas Pogge, Centre for Applied Philosophy and Public Ethics, Australian National University, Canberra, Australia, Columbia University, New York, U.S.A., and University of Oslo, Norway Editorial Board Gillian Brock, University of Auckland, New Zealand Jon Mandle, SUNY, Albany, U.S.A. Kok-Chor Tan, University of Pennsylvania, U.S.A. Veronique Zanetti, University of Bielefeld, Germany Elizabeth Ashford, University of St. Andrews, U.K. Virginia Held, CUNY, U.S.A. Simon Caney, Oxford University, U.K. Michael Doyle, Columbia University, U.S.A. Alison Jaggar, University of Colorado, U.S.A. Henry Shue, Oxford University, U.K. Onora O’Neill, Cambridge University, U.K. Andreas Føllesdal, University of Oslo, Norway Sanjay Reddy, Columbia University, Barnard College, U.S.A. Aims and Scope In today’s world, national borders seem irrelevant when it comes to international crime and terrorism. Likewise, human rights, poverty, inequality, democracy, development, trade, bioethics, hunger, war and peace are all issues of global rather than national justice. The fact that mass demonstrations are organized whenever the world’s governments and politicians gather to discuss such major international issues is testimony to a widespread appeal for justice around the world. Discussions of global justice are not limited to the fields of political philosophy and political theory. In fact, research concerning global justice quite often requires an interdisciplinary approach. It involves aspects of ethics, law, human rights, international relations, sociology, economics, public health, and ecology. Springer’s new series Studies in Global Justice takes up that interdisciplinary perspective. The series brings together outstanding monographs and anthologies that deal with both basic normative theorizing and its institutional applications. The volumes in the series discuss such aspects of global justice as the scope of social justice, the moral significance of borders, global inequality and poverty, the justification and content of human rights, the aims and methods of development, global environmental justice, global bioethics, the global institutional order and the justice of intervention and war. Volumes in this series will prove of great relevance to researchers, educators and students, as well as politicians, policy-makers and government officials.

Democracy in an Age of Globalisation OTFRIED HÖFFE Eberhard-Karls-Universität Tübingen, Germany Translated by Dirk Haubrich with Michael Ludwig

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TABLE OF CONTENTS

Preface

ix

1

1 1 1 2 6 8 9 12 15

The challenges of our times 1.1 Complex globalisation 1.1.1 The demise of the individual state 1.1.2 The plurality of globalisation 1.1.3 Two qualifications 1.1.4 Only a trend 1.2 Two visions 1.3 Modernisations 1.4 Philosophy as the advocate of humankind

Part One: Qualified democracy

19

2

Consent out of advantage 2.1 The authority to compel 2.2 Welfare (utilitarianism) or justice? 2.3 Legitimatory individualism 2.4 The contract as a metaphor 2.5 A transcendental exchange

21 21 22 24 27 30

3

Principles of justice 3.1 A transcendental grammar 3.2 Human rights 3.3 Negative rights to freedom 3.3.1 Integrity of life and limb 3.3.2 Freedom of speech and religion 3.3.3 The criterion of freedom rights 3.4 Positive rights to freedom: social rights 3.5 Proto-justice A first list of principles of justice 3.6 Solidarity

35 35 38 41 41 43 44 46 50 56 57

4

Public powers 4.1 The task of implementing the law 4.2 Separation of powers

61 62 67

v

vi

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4.3

4.4

Democracy 4.3.1 Rule-legitimising democracy 4.3.2 Rule-exercising democracy 4.3.3 Participatory democracy The right to be different

69 69 71 76 78

5

Subsidiarity and federalism 5.1 Traditional subsidiarity 5.2 Modernisations A complete list of principles of justice 5.3 Federalism

83 83 89 93 94

6

The demise of the state? 6.1 Internal metamorphoses 6.1.1 Against a false glorification of the state 6.1.2 A look at history 6.1.3 A weakened state? 6.2 Erosion from outside 6.3 An enlightened nation state 6.3.1 A neutral concept 6.3.2 Five modernisations

103 104 104 105 108 112 117 117 121

7

From subject to citizen 7.1 Civic virtues 7.2 Civic courage and the sense of law 7.3 Tolerance and the sense of justice 7.4 The sense of state citizenship 7.5 The sense of community 7.6 Prudence, composure, wisdom

131 131 135 137 144 147 150

Part Two: A subsidiary and federal world republic

157

8

159 160 160 165 167 169 169 170 172 175 178

A look at history 8.1 Citizen or world citizen 8.1.1 Antiquity 8.1.2 Seven models 8.1.3 Modernity 8.2 On perpetual peace 8.2.1 Plato and Aristotle 8.2.2 A positive or negative concept? 8.2.3 Augustine 8.2.4 The Middle Ages 8.2.5 Modernity

TABLE OF CONTENTS

8.3 8.4

Kant After Kant

9 A world order without a world state? 9.1 A strategic world order 9.2 Governance without a state 9.3 Democratisation of the world of states 9.3.1 Pro arguments 9.3.2 Contra arguments 9.3.3 Summary 9.4 First constructive vetoes

vii 179 183 187 187 193 197 198 199 204 205

10 The complementary world republic 10.1 A world republic respectful of differences 10.2 Globality instead of globalism 10.3 A continental level 10.4 The dual global social contract

209 209 214 216 218

11 Against a global Leviathan 11.1 ‘Soulless despotism’ 11.2 A global public 11.3 State rights 11.4 A glance at the United Nations 11.4.1 No rudimentary world republic 11.4.2 ‘Glory and misery’ 11.4.3 Eight proposals for reform

223 224 227 229 230 230 233 235

12 Global civic virtues 12.1 Complementary world citizens 12.2 A sense for global rule of law and justice 12.3 A global civic sense and a global sense of community

239 239 243

Part Three: Institutions and responsibilities

249

13 Peace and the rule of law 13.1 Protection of international law 13.2 The protection of world citizens 13.2.1 Generosity 13.2.2 Asylum 13.2.3 Crime 13.3 Global courts of law 13.3.1 A judicial sense of global law

251 251 252 254 256 257 258 259

247

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13.3.2 The state under the rule of law and the state under the rule of judges 13.3.3 Global courts of arbitration? 13.4 A global criminal law 13.5 Opus iustitiae pax

260 261 262 267

14 Self-determination, secession and intervention 14.1 Absolute sovereignty? 14.2 Self-determination and secession 14.2.1 Which nation? 14.2.2 Which self-determination? 14.2.3 Collective rights 14.2.4 The right to secession 14.3 Humanitarian intervention

269 269 271 271 274 275 278 281

15 A global social and ecological market 15.1 Global regulation of competition 15.2 A global economic and fiscal policy 15.3 Global justice 15.3.1 Social standards 15.3.2 Development 15.4 Global solidarity and global charity 15.5 Global environmental protection

287 287 290 293 293 294 297 300

16 The view ahead 16.1 A complex world order 16.2 A third democratic revolution 16.3 A realistic vision

305 305 308 310

Bibliography

313

Author index

337

Subject index

345

PREFACE

Individual societies tend to meet their collective need for action with principles of statehood and the rule of law, thus organising themselves as collective and also accountable entities. These elements of self-organisation and accountability attain their perfect expression as a qualified democracy. Given that the collective subject is legitimised through natural individuals as legal subjects, self-organisation occurs in a deliberate manner; and given that the collective subject strives towards principles of justice, its principle of accountability is exercised. Social reality, however, extends considerably beyond individual democracies. Economic affairs, science, medicine, technology, culture, migration, environmental pollution, terrorism and organised crime – these concerns create a need for action that extends beyond national borders. Hence, if the demand for action is global, then the idea of an equally global polity cannot be avoided, i.e. a global system of government that would organise itself in a deliberate manner as a global democracy and world republic. In so doing, the accountability of collective actors stretches beyond the borders of states or even groups of states, and the solution to global problems is left neither to market forces (economic neo-liberalism), contingent evolution (systems theory), nor to any possible combination of the two. This book does not deny that evolution and market forces apply on a global level. It rejects, however, their claims to exclusivity. Globalisation should not come at the price of political regression, the rolling back of democracy. There is an alternative: an all-encompassing democratic accountability. Two biases are thereby avoided: global ‘statism’, which aims to solve problems top-down through state-driven interventions, and ‘economism’, which aims to achieve the same through bottom-up competition. The introductory chapter presents the most significant social and political challenge of our times: the phenomena of globalisation and modernisation, which are not limited to economic forces alone (ch. 1). Part One develops the model of a selfaccountable society that complies with principles of justice (chs. 2 and 3) and sets itself up as a democracy (ch. 4). In so doing I intend to broaden my theory of political justice (Höffe 1995a) into an extensive theory of the state – by expanding the themes of solidarity and proto-justice (chs. 3.4 to 3.6), by adding new principles such as subsidiarity and federalism (ch. 5), by scrutinising the claim that state power is undermined by globalisation (ch. 6), and finally, by extending institutional deliberations through a broad list of civic virtues (ch. 7). After a detailed look at the history of ideas (ch. 8), Part Two examines whether a world order is possible without statehood: as a strategic order, as a network of international organisations and rules, or through a democratisation of all states (ch. 9). Although the question has to be answered in the negative, the model of individual ix

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PREFACE

statehood cannot itself be simply applied to the global realm. Rather, objections and complications would inevitably arise that will require any theory of globalism as a homogeneous world state to be rejected. At the other end of the spectrum, however, a theory of communitarianism that rejects any form of global statehood does not prove to be a convincing alternative either. A constructive compromise between these juxtaposed positions is required. On the one hand, globalism demands, quite justifiably, a global governing body, but it unjustifiably dissolves individual statehood. Communitarianism, on the other hand, unjustifiably rejects a global state but justifiably defends the need for differentiation (ch. 10). The constructive compromise is a global democracy that allows existing democracies to retain extensive rights and introduces an additional ‘continental’ level of government. Since global democracy consists in a complementary, subsidiary and federal world republic, insist on a global public, and recognises the rights of states, it avoids the danger of becoming a ‘global Leviathan’ (ch. 11). Just as in the first part, Part Two concludes by outlining a list of civic virtues (ch. 12). Part Three presents exemplary duties of a complementary world republic: maintaining peace and the rule of law (ch. 13); questions of self-determination, secession and intervention (ch. 14); and a framework for a social and ecological global market (ch. 15). The Epilogue proposes a world order of complexity, which precisely for that reason is a realistic ideal (ch. 16). This book employs a complex methodological approach, the core of which consists in a normative, legal–moral argument. Yet, contrary to the normative fallacy that deduces specific obligations only from normative reasoning alone, substantive facts and empirical constraints are also considered. When the subsidiary world republic is to be set up and the necessary responsibilities are to be specified, competences beyond those provided by philosophy are needed. I will therefore deal with the relevant research from the realms of international law, international relations theory, political economy, and sociology. I am grateful to my students in Tübingen and Zürich for various comments. Particular thanks are owed to my colleagues Corinna Mieth, Peter Rinderle and Tim Wagner, as well as to Christoph Horn and my friend Thomas Pogge in New York. Tübingen, Germany, March 1999

CHAPTER 1

THE CHALLENGES OF OUR TIMES

1.1 COMPLEX GLOBALISATION

Even in political philosophy ideas have to wait for their time to come. The history of ideas informs us that the exploration of the link between democracy, human rights and the separation of powers – qualified democracy – reached prominence during the Enlightenment; political practice tells us that it did so during the sectarian civil wars and the period of Absolutism that followed. Further demands for the provision of welfare developed during the era of industrialisation and urbanisation. Once those were met, the state faced additional responsibilities in the form of environmental protection and a responsibility towards future generations. Finally, the two world wars highlighted the imminent need for a global order of peace. The most recent cue for political philosophy goes by the name of globalisation. Of course, the term is laden with contradictory emotions – part hope, part fear – and is used in such inflationary and imprecise a manner that it is better avoided. Yet, when given a more exacting profile, it has considerable diagnostic value for our times because it specifies a challenge without biasing its response. A first approximation is uncontroversial but also lacking in profile: globalisation as an increase and intensification of worldwide social relations. Only through four qualifications does the phenomenon acquire a more discernable shape (an introduction to international debates, which displays their limited perspective, is offered by Beck 1998 and 1998a). 1.1.1 The Demise of the Individual State Be it internal and external security, welfare provision, economic prosperity or environmental protection, most of the responsibilities requiring human self-organisation that are based on statehood and the rule of law now stretch beyond state borders. What is more, additional actors are gaining increasing power and influence on the international stage: multinational corporations, international or transnational institutions, and non-governmental organisations. While these new entities do not supersede existing political concepts, such as that of the liberal democracy and its social and ecological responsibilities, they do acquire a new dimension that comprehensively transforms politics and the theory that underlies it. From the first great proponents Plato and Aristotle to Roman scholars such as Cicero, from the Middle Ages to the renewed philosophical foundation of the state and the law in modernity and into our century, the cornerstone of state theory has always been that of the individual community. Although this community did not take shape as a national state until very late in history, the city states of Antiquity, the 1

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Roman Empire, its successors in the Middle Ages, the territorial states of the modern age, as well as political utopias, were all based on regionally limited communities. Globalisation significantly undermines the importance of these communities. The superlative diagnosis that globalisation “has changed everything” (Cerny 1995, 264) is however inaccurate. The popular thesis that national governments are losing their ability to solve problems of global reach is, in fact, circular: genuinely global responsibilities cannot be solved regionally. The bold claim that, because it is gradually being undermined, the individual state will eventually vanish (see ch. 6) is neither empirically correct nor normatively required. But even the more modest scenario of a state whose power has been undermined does present a challenge to political philosophy. In order to respond, the political needs to be reassessed in a way that does not replace but extends the individual state. 1.1.2 The Plurality of Globalisation Globalisation tends to be exclusively equated with economic changes. If this were accurate, only academic disciplines other than philosophy would have any analytical remit, most notably economics and supplementary fields such as international law, international relations theory and sociology. However, at least two reasons can be furnished why political philosophy is required. First, philosophy has always dealt with one of the conditions that allowed globalisation to come into existence: the abilities to reason and to speak as they are shared by all humankind. Since philosophy appeals to nothing else, it managed to achieve globalisation early and quickly. From its origins in Asia Minor and later Athens, philosophy stretched first across the Mediterranean region and then across the globe. For this very reason the classics in philosophy such as Plato, Aristotle, Hobbes, Descartes, Kant, and Hegel were already being read and studied on a global level whilst the globalisation of economies and financial markets had not yet been contemplated. It was long before the arrival of personal computers that the works of Nietzsche, Heidegger and Wittgenstein made it into the households of the educated classes around the world. This remark is only ostensibly praise for philosophy, however, and leads us straight to the heart of the matter. For usually, globalisation is referred to in the singular and interpreted only in terms of economic transformations, which critics then exaggerate into a ‘capitalisation of the world’ (Altvater and Mahnkopf 1997, 17). Globalisation in the singular is an economic reduction common to two otherwise fiercely opposed adversaries: orthodox Liberalism and orthodox Marxism. Both see mainly economic forces at work in the world. However, in reality, even economic changes are not driven solely by economic factors but are also strongly influenced by political decisions, technical advancements and changes in public attitudes. What is more, globalisation is not only limited to the global economy or the global work environment and its counterpart of global leisure, including global tourism. Rather, a wealth of additional phenomena exist that are only partially if at all related to economics. Collectively, and taking into account economic globalisation, they can be grouped into three areas of concern.

THE CHALLENGES OF OUR TIMES

3

Whether or not the related structural transformations result in a profoundly new era is a futile question. What is certain, however, is that a global network of associations has emerged, a mixture of influences and relations that generate new threats as well as opportunities and involves not only standardisations but also demarcations. This creates a common world society in the sense of a community of fate (Schicksalsgemeinschaft) along three dimensions, all of which are significant for a political philosophy of globalisation: (1) Globalisation must not be glossed over, nor must it be seen from one particular geographical perspective. Rather than limiting ourselves to the Western viewpoint, acknowledging solely the positive and cooperative aspects and accepting only environmental pollution as a negative consequence, our first bundle of phenomena comprises an acute threat to human life and welfare: the worldwide use of physical force and violence. In its first dimension, the human community of fate consists of a multi-facetted community of violence. The most devastating factor, war, is an ancient feature of human history. Communities allow between themselves what they disallow internally: arbitrariness and violence, and the supremacy of power over the rule of law. For most of history wars have been regional conflicts. Yet, during the modern age in Europe, through colonisation as well as imperialism, war began to show the first signs of having global reach, a development that was further reinforced during the two world wars and the subsequent developments in military technology. Nuclear warheads can reach any corner of the world within minutes and, because of the massive destructiveness of the atomic warheads they carry, place humankind under the threat of collective suicide. The violence permeating national borders, on the other hand, is perpetrated by organised crime, such as the trafficking of drugs, weapons and human beings as well as international terrorism. Environmental pollution across borders, too, constitutes violence and is exerted on the property of foreign states. It is a fact of ecological globalisation – albeit not necessarily of the community of violence – that humankind has indeed affected the entire globe, as there is no longer any ecological ‘outside’. Whereas civilization used to be limited to a few islands within a sea of otherwise unspoilt nature, today even natural parks lie within the sphere of human activity. The global community of violence also offers opportunities that are constructive and forward-looking. From a collective memory of the devastating atrocities of conquests, oppressions and exploitations, from slavery, colonisations and imperialisms, from the horrors of nationalism and the countless victims of social and socialist revolutions, may eventually emerge a ‘critical world memory’. If that conscience is not selective, but cultivates a sense of ‘anamnetic justice’ that is rooted in case history and, moreover, does not stop at mere remembrance, then it will help prevent atrocities in the future. (2) Fortunately, there is a second bundle of phenomena promoting individual as well as collective well-being, as the vast community of violence is supplemented by a hopefully richer community of cooperation. Yet, even within that community, the economy is a significant, but not the sole determinant. Contrary to the first bundle of

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factors, this second one has a geographical component that does not apply to all factors. With respect to at least one factor, cultures such as that of China display a remarkable level of self-development (Needham 1954–1988, 1970 and 1972); and many more cultures come into play with respect to other factors. Even so, the second bundle of phenomena is nowadays expanding primarily out of Western and Central Europe and North America. Factually as well as historically, the community of cooperation began with the development of humankind’s abilities to reason and to speak and, as such, with philosophy and science – including the natural sciences, medicine, technology, as well as the social sciences and primary, secondary and higher education. Regional differences notwithstanding, they all spread across the entire globe. Qualified democracies are affected in the same way as autocratic regimes by a weaker type of globalisation: both are put under pressure, as much from the outside as from the inside, as violations of human rights, though not yet universally punished, run up against universal protest. Thus emerges a collective public character: a world public, which can connect with the aforementioned world memory. The global public is further strengthened through the expansion and intensification of international law that, in some areas, is supported by courts with global jurisdiction. There is also an increasing number of organisations and activities that have a global reach. Intergovernmental and non-governmental organisations, including their conferences and consultations, pursue economic, technical, ecological or political objectives. This is not only true for the more recent additions such as the World Bank, Amnesty International or Médecins Sans Frontières (Doctors without Borders), but for the older organisations as well, including international sport associations such as the Olympic Committee and, even older, churches. Moreover, significant aspects of culture are reciprocally assessed on a global level, including museums, stage, film, architecture (both in the sophisticated and the low-cost variety) as well as classical and popular music. That reciprocity is not restricted to the willingness to adopt authentic cultural elements from all parts of the world. Rather, at the intersection of various cultures, the universal openness is supplemented by regional adaptations, even innovations. Pars pro toto these developments constitute what could be called ‘Hellenisations’, as in many areas, and in different variations, an ever increasing number of features originating from the West and the East, from North and South America, from Europe and Africa, are stimulating each other. All types of mixing can be found, from interbreeding, cramming and melting to syncretism and hybrid creations (Nederveen Pieterse 1998). That customs detach themselves from their existing contexts to unite themselves with new practices can be observed at levels as diverse as the fine arts and popular youth culture. The most often mentioned area, that of economic globalisation, is multi-facetted. Political decisions came first. Economic globalisation is not a natural phenomenon that would, like the law of gravity, occur even without, or against the will of humankind. The liberalisation and deregulation of the markets for goods and capital was established through agreements such as Bretton Woods (1944), the General

THE CHALLENGES OF OUR TIMES

5

Agreements on Tariffs and Trade (GATT, 1947), and the Organisation for European Economic Cooperation (OEEC, 1948; later OECD, 1960). The resulting process of globalisation is further accelerated by factors such as decreasing transportation costs, faster transportation and communication links, and the independence of electronically traded goods and services from any given geographical territory. Of further significance are the international differences in labour costs, global investments, and the increase in educational levels in many parts of the world. The relocation of research facilities, manufacturing plants and headquarters as well as the multinational corporations operating as global players nearly all over the world are certainly the more obvious features of economic globalisation; so too is the high degree of internationalisation in the markets for capital and goods. Separate mention needs to be made of the electronic world-wide web (the ‘Internet’). It is a medium and an accelerator of globalisation processes. But it also goes against the trend of centralising transnational management, control and coordination functions in a few metropolitan areas, the so-called ‘global cities’. Geographically fixed locations thus loose some of their importance; this has a democratising effect: in the electronic world-wide web all locations, persons, corporations and states are treated equally. There is also an ecological gain: travelling via the Internet rather than by car or airplane saves energy and reduces the impact on the environment. Finally, one’s legal protection is improved as well – at least life and limb are not at risk (for other legal problems see ch. 13). As a whole, economic factors bring about a continued internationalisation of all markets. If this process remains uninterrupted, all goods – including natural resources, semi-finished and finished merchandise, service provisions such as information, management and organisation, workplaces as well capital – will soon be ‘globalised’ in as much as they will be traded worldwide. The result is a global market since, in so far as local and regional markets will naturally continue to exist, they will follow global determinants. The global community of cooperation should not be taken to signify mere sweetness and light. Quite the contrary, competition reigns not only in the economy but also in all other spheres, including science, culture and even language and religion. And this competition extends to regional and national ‘sectors’, understood here as a bundle of elements, including infrastructure, educational achievement, as well as taxation and regulatory burden, and quality of life. The global community of fate, which owes its existence to the second bundle of factors, is self-evident: events are perceived and processed both globally and simultaneously – influenced by technological advances, international treaties and political liberalisation, and caused by the worldwide interconnection of the means of transportation and communication, which reduces transmission times and diminishes the importance of geographical distances. The attendant cultural globalisation should, of course, not be reduced only to those events that are “simultaneously present around the globe as a mass media experience” (Beck 1998, 55). Of course, when transmitted worldwide via television, events such as the atomic catastrophe in Chernobyl or the Olympic Games can evoke emotions globally. Yet, an integral part of cultural

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universality is also that Bach, Beethoven, Mozart, Jazz and popular music are listened to throughout the world, that the theories of relativity and quantum physics are studied at all universities, that Homer, Shakespeare and Goethe are read, and Plato, Aristotle and Kant are discussed. (3) Competition does not only drive those forces from which we would expect a collective (albeit not exclusively economic) benefit such as effort, courage and creativity; it also has costs internal to the economy such as unemployment, as well as external to it such as environmental degradation. The first bundle of phenomena as well as the second, for their part, only hint at what is in effect the main characteristic of the third: the community of fate in the narrow sense that is the community of pain and suffering. Certainly, given that the majority of relevant factors originate outside of Europe or North America, their source is only regional in scope. The repercussions these factors then have on these countries give them a global significance: the civil wars and abhorrent violations of human rights are, for the most part, late consequences of colonisation and decolonisation that can be also explained as eruptive responses to corruption and mismanagement. Hunger, poverty, economic and cultural underdevelopment, as well as major natural catastrophes are plentiful. We witness major streams of refugees and migrants, caused by either political and religious or economic factors. In cases where migration started a long time ago, a ‘patriotism across borders’ can be discerned: the international solidarity in the Diaspora, that of the Armenians, the Irish, the Jews, the Kurds and the Palestinians. 1.1.3 Two Qualifications Even in a diagnosis that extends into three separate dimensions, globalisation is not the only sign of our times. If only because there are notable counter-movements, it cannot function as the only valid basic concept. One of these counter-movements, regionalisation, is even in part caused by economic globalisation. In a global market, both states and regions compete with one another. Of course, regionalisation encompasses much more than that, as it includes the dissolution of larger states (‘the rich’) into several smaller ones as well as the establishment of regional administrative bodies. Anyway, the self-confidence of some regions extends far beyond mere economic aspects. The fragmentation of mega-cities into ethnically and culturally distinct areas also represents a counter-movement, as does the strengthening of national identities within young democracies. (A reversal of this counter-movement is, of course, also noticeable, as is evidenced by the states longing to join the European Union). Neither must the great variety of languages, customs, and religions be forgotten. These counterpoints show the talk of a world society or of a global village to be oversimplified and, fortunately, the danger of the “inevitable standardisation” of life (Strindberg 1903/1916, 79) to be avoidable. On close examination a second qualification that is of a historical rather than a factual nature becomes apparent. It counters our era’s tendency to overestimate its significance as well as its historical short-sightedness. Following Dahrendorf (1998, 41), the beginning of globalisation could be dated back to the first landing on

THE CHALLENGES OF OUR TIMES

7

the moon on 20 July 1969. Equally plausible, however, would be a date around 1800, with the advent of the industrial revolution. Yet another possibility is 1492, the year when America was discovered. A glance back into history reveals that the intensification of global social relations began well before modernity. The human condition must be the foundation. Despite the current scepticism afforded the discipline of philosophical anthropology, two factors of globalisation can be discerned that do operate independently of history and culture. The first factor, a natural condition, is our spatially restricted planet, including its natural resources and benefits. The second factor, a psychological precondition, is the capacity to reason and to speak, which enables humankind to live nearly anywhere and to communicate across any distance. As Democritus remarked, because humans are able to reason, they feel at home everywhere. “To a wise man the whole earth is his home; the universe is the fatherland of the good soul” (see ch. 8.1.1). These two anthropological factors do not cause globalisation, they are merely conditions of its possibility. This potential for globalisation is realised, initially at least, by three additional conditions that have existed everywhere, always: the social condition that living space must usually be shared if only because one always has neighbours, with whom one is on either friendly or hostile terms. We only know of absolutely independent and autonomous communities from those novels of the sixteenth and seventeenth centuries, which are, following the model of Thomas More, rightly called utopias and ‘never-lands’. Real polities, by contrast, have neighbours with whom they maintain either friendly or hostile relations. Since we are willing to comply with common rules, customs and laws within our borders, we cannot help but also take an interest in establishing relations across borders in a legally binding manner. This international and transnational legal willingness has helped to establish the precursors of international law. From the outset it has dealt with two fields of application: an international public law, as the law applicable to relations between states, and an international private law (later global civic law), as the law applicable to the relations between societies, including trade, cross-national marriages, and the exchange of information and culture. There is a psychological as well as a normative prerequisite for our international legal willingness and the laws that emerge from it: that we regard aliens as not actually alien; that we acknowledge them as one of us, not as lawless animals but as fellow human beings. While the first two conditions are simply given, the other three require an active effort. Even the decision to move within or beyond one’s borders is a matter of human responsibility. In all three aspects, however, humankind seems to have moved beyond the particular and accepted a law of conduct which, to a limited degree, applies across borders. An alien is hardly considered an outlaw. If early polities such as clans and families, are accepted as ‘states’ in the modern sense, then the beginnings of international and supranational laws and customs can be traced back as far as the advent of law itself. It is possible to generalise and argue that because all five prerequisites for its application have long existed, modern globalisation does not create any new

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relationships. Wherever polities fight with their neighbours, or trade goods and services, where knowledge, skills, art, stories, songs are exchanged and nationalities intermarry, a network of relations develops that prevents any single community from living its history sheltered from, and untouched by, other communities. Let us highlight three eras of globalisation: Antiquity, modernity and our present time. An exchange between cultures existed four millennia ago between Mesopotamia and Egypt. International trade routes, such as the Silk Road extending from China, Central and Western Asia to Europe and Africa, existed long before modernity. In the era of Hellenism, the Orient (including India and China) and the Mediterranean (including Central Africa) merged to become a global trade area, with global market prices and trade centres such as Alexandria and Seleucia in Mesopotamia. Moreover, this merging was not only limited to the economy. From the link between Hellenic and Oriental cultures emerged a new and almost global culture. Some religions – such as Christianity, Judaism, Islam and Buddhism – spread globally, and we now refer to them as ‘world religions’. They provided international routes of pilgrimage to such sacred places as Jerusalem, Rome, Mecca and Santiago de Compostela. Alongside the religious pilgrimages, there were also ‘epic pilgrimages’: the tales and stories we read in Boccacio’s Decamerone are international flotsam and jetsam that can be traced back to the Orient and Occident. Others can be mapped out from Persia to India and much reappears at a later stage in the writings of nearly every European language. More significantly, since Antiquity, philosophy, science, medicine, and technology, the manifestations of natural reason, have “globalised themselves” as well. A renewed push for globalisation occurred in the age of discoveries and later, in the age of colonisation. Soon so-called global empires – Spain, Portugal, Great Britain, the Netherlands and France – were established, competing for control of the oceans. Foreign peoples were thereby conquered and oppressed; contemporary globalisation is not the first to produce injustice. Criticism was raised very early in the philosophy of the Enlightenment, most notably by Kant (Perpetual Peace, 3rd def. art.; The Doctrine of Right § 62). In addition, globalisation at this time was either facilitated or reinforced by inventions as significant as the compass, the telescope, gunpowder, and the printing press. Unlike the second globalisation, that of modernity, contemporary globalisation is no longer solely instigated by individual states. Once again, peaceful inventions (such as radio technology and electronic media) as well as military inventions (longdistance bombers and intercontinental missiles) play pivotal roles. They are supplemented by political decisions that affect the liberalisation of markets for capital and goods, as well as international organisations and treaties (UN, World Bank, Human Rights Conventions, etc.). 1.1.4 Only a Trend We are not yet done sharpening our definition: two pinches of scepticism are yet required for an accurate diagnosis. As these relate predominantly to economic globalisation (Hirst and Thompson 1998; critically: Perraton et al. 1998), they should, once more, not be overrated. The first sceptical note is that globalisation is not that

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new after all. Historians see its most striking aspect, the internationalisation of capital and exchange markets, more as a recurrence than as something novel. Modernity tends to indulge in the illusion that each generation outflanks the preceding one. During the early period of the gold exchange standard between 1887 and 1914 goods were, however, traded on a global scale at about the same level as they are today (Thomson and Krasner 1989). Hence we have merely returned to the status quo of that period, which had been interrupted by the First World War, the crises of the 1930s, and the Second World War. Whether or not information is transmitted via submarine cable or electronically is of course not irrelevant, but not of great significance either as far as global trade is concerned. And as for the political efforts to keep the peace, they are barely worth mentioning. Take, for example, the peace accord 350 years ago to end one of Germany’s greatest ordeals, the thirty-year war; since mailing letters to Madrid took almost a month in those days, instructions from Spain did not arrive until three months later, so that it took four years for the peace accord to be ratified. And yet, neither air travel nor electronic communication managed to speed up the peace processes in the Middle East or Yugoslavia. The second pinch of scepticism comes from the observation that even today economic globalisation is a relatively weak case in point. In quantitative terms, global trade occurs primarily between the United States of America (USA), Europe and Japan: out of the hundred biggest corporations, only two are located outside highly industrialised states. Economic globalisation thus proves to be a highly selective affair. In the cases of Japan and the USA, the export ratio is a mere 10% of the Gross Domestic Product (Siebert 61994, 11). Even the financing of corporations is predominantly done within the respective domestic economy. Exchange is presumably more intensive in other realms, and in terms of globalisation, culture and science are once more on equal footing, if not a cut above. Because both sceptical injunctions are legitimate, the current processes of globalisation merely represent a trend and not the final outcome. We live in a ‘civilisation in transition’, and one single globally networked world society does not exist – yet. 1.2 TWO VISIONS

What is the best-suited response humanity can provide to address the challenges of globalisation? Two basic patterns are known which enable us to live together (see ch. 3.6). Both have visionary power; if you will, call them utopias. First, common rules and public powers replace private arbitrariness and the private use of physical force. We must determine that it is morally required that justice and the rule of law prevail over force and violence, always and everywhere, and that to achieve this aim public powers are established and democratically organised. This I call the universal precept of a legal order and a state, and the equally universal precept of democracy (see chs. 3 and 4). Qualified democracy allows the unfolding of the forces at play and expects from this highly competitive play great wealth – of goods and services, of science, medicine, technology, of music, literature and the arts. The vision of peace and justice is

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thus augmented by a vision of manifold prosperity, thereby realising an immemorial dream of humankind. Concurring with one of the prophets that “they shall pound their swords into ploughshares, their spears into pruning hooks” (Is 2,4), physical forces are to be transformed into economic and cultural ones, and where peace prevails, a more than just material prosperity will take root. A philosophy of the state and the law acknowledges the second vision but refuses to absolutise it as a second type of economism: markets displacing politics. Sometimes it is argued that politics is, in fact, not being displaced but ‘only’ exercised at a different level, no longer by elected representatives but by global corporations or entrepreneurs. Yet, not only do these global players lack democratic legitimacy, directed as they are by corporate objectives, economic laws and market constraints and short of any capacity to legislate, they also lack both the will and the power for creative political development. Consequently, they do not compete with (democratic) politics but, should they become the dominant force, they crowd it out, replacing it with a different medium. The second type of economism acknowledges only the law of supply and demand not only for economic but also for scientific and cultural affairs. At times, an ‘economic fatalism’ prevails, according to which the economy determines not only the means but also the ends. The means of the economy set ends to which politics can do nothing but react; instead of actively creating and shaping, politics is reduced to adapting to and complying with those goals. There is, however, actually no anonymous fate to be found here: market forces do not rule without exception and globalisation can be given specific names, such as, “The Treaties on Global Economic Liberalisation”. What is more, just as domestic markets are dependent upon a given framework, the global market too, must operate within such a structure. It is left to (international) politics itself to either submit to the forces of the market or to compel them into a fair regulatory framework that ensures a minimum set of social and ecological standards. Political control is perhaps also conceivable, although neither the capacity nor the warrant of politics to control should be overestimated. Neither the centres in Antiquity such as Athens, Seleucia or Rome, medieval Paris, Vienna or London nor the modern metropolises, believed themselves able to steer an entire economy, and even less so philosophy, science, arts, music and literature. Although censorship has of course always existed, it has long been considered illegitimate and has proven rather impotent. Ancient European societies have known well before modern system theories, and since the Enlightenment at the very latest, that the forces at work here have their own normative criteria and are better left to operate unchecked. World society must and should leave much to itself: the creativity of individuals and groups, free enterprise, and chance evolution. Other areas, however, require its capacity to create and structure. And since the basic form of collective creation is a political system based on the rule of law, such a requirement applies to the global sphere as well. If, instead of force and violence, justice and the rule of law are to prevail between groups and individuals and if both are to be democratically organised, then the same should have to apply beyond and between states. Do we not need

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a world order that is committed to a principle of justice? And do we not need to organise it democratically? Is the political response to the age of globalisation not, in fact, to expand individual democracy into a global democracy, a world republic? We have yet to establish the scope of the activities that require global action and the principles that will apply to it. Already the three bundles of phenomena point to three different areas: (1) Overcoming the global community of violence requires a global order of peace and the rule of law. (2) The global community of cooperation needs a fair operating framework, which addresses anticompetitive behaviour by states and establishes a minimum set of ecological social standards. (3) Poverty and hunger raise questions about global justice, global solidarity as well as global philanthropy. Expanding from a single state to a world republic seems to be a quantitative matter and therefore an easy one: by expanding its geography and population, the small polity, the individual polis, develops into an all-encompassing cosmopolis. This expansion even promises to release utopian energies: it offers more than small-scale solutions to the globalisation problems that frighten us and threaten our existence. There is, however, a serious challenger to moving forward: pragmatic scepticism. The only way to quell those sceptical voices is to resist that romanticised ‘nowhere’, that elusive promise of salvation, and instead, with a down-to-earth awareness of the problems involved, develop a feasible ‘not-yet’, an ideal rather than a utopia. In view of the global community of violence, this ideal lies in a global peace order that also keeps the newer forms of global violence in check: nuclear and ecological threats, terrorism, the trafficking of humans, drugs and arms, as well as organised crime. When the ideal accepts the challenge of additional globalisation-related problems, such as environmental protection and the acknowledgement of minimum social standards, it thereby expands into a global legal order. This order does not invalidate the first vision: by means of economic, scientific and cultural competition, societies, and above all their citizens, blossom. Of course, a global legal community that is open to competition represents so radical a break with the current situation that objections become perfectly obvious. Their closer examination follows later in chapters 9 to 11. Five of the most important ones can, however, here be mentioned. According to a first objection, there is a far simpler way to protect human rights on a global scale: the democratisation of all states. According to the second objection globalisation leads to a levelling out that requires a strong counterpoint: nurturing regional and local particularities so as to protect the social and cultural wealth in the world and to secure the associated identity of individual human beings. Immanuel Kant himself raised the third objection: a world republic is a monster that, by virtue of its size and elusiveness, cannot be governed at all (The Doctrine of Right § 61; also: Bodin and Grotius, see ch. 8.1.3). Fourth, the world republic, the great achievement of civilisation, would jeopardise civil and human rights, because so far only the individual state has managed to guarantee those rights. Lastly, a world state impairs competition among people to such an extent that humankind’s creative energies may actually fall asleep. As we shall see, all five objections are valid to some degree. Yet, they do not have the force required for a striking counter-argument, one that would send a mortal

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blow to a democratic world order – neither individually nor collectively. Rather than carrying the weight of an absolute veto, each objection is only a relative and at the same time constructive criticism: it points directly to both the perils and to the ways in which they can be overcome. Consequently, a world republic remains justifiable, even obligatory on legal–moral grounds – provided it engages with this constructive criticism and addresses each of the dangers indicated. The world republic must leave to worldwide democratisation what it performs competently already. It must resist the levelling of all diversity with a right to differ. It needs to avoid the incapacity to govern, as well as its overcompensation, too much bureaucratisation, or worse, a surveillance state, the global Leviathan. It must secure human and civil rights and make room for competition. 1.3 MODERNISATIONS

Globalisation poses a further challenge. Even if it does not standardise our living conditions, it leads to changes that take place worldwide and, despite their differences, interlink in such a way that a common global society emerges – a global civilisation. As far as the community of cooperation is concerned, it links rational economy with science, medicine, technology and the qualified democracy. Even where this civilisation does not yet exist, the promise it radiates overcomes any form of resistance, as long as there are no prohibitions constructed as roadblocks. In some places a ‘modernisation reduced to technocracy’ has been attempted, whereby a market-economy, and at times even science, are adopted, but democratisation per se is rejected. This model, however, seems unsuccessful in the long run. Now global civilisation proceeds from a large region, the West, and therein lies the second challenge: a civilisation that spreads so effortlessly without a fight employs a hegemonic approach which harms the self-esteem of others. Since such humiliation is hardly consistent with a principle of global justice, and is moreover conflict-laden, even polemogenous, one cannot help asking once again how best to normatively deal with it. As in medical therapy, the answer here depends on an exact diagnosis. According to the political scientist Huntington (1993 and 1996) a global ‘Clash of Civilisations’ is imminent. The wars, which used to take place first among feudal lords, then between nation states and later between ideologies, would henceforth occur predominantly between civilisations, understood here as types of societies or cultural spheres. Huntington’s taxonomy encompasses seven or eight civilisations: Western, Islamic, Sino-Confuscian, Japanese, Hindu, Latin-American, SlavicOrthodox, and possibly also African. Already this enumeration requires some correction. The troubled continent of Africa, for instance, is not nearly as homogeneous as to warrant its own category of civilisation. Further, in Japan believers in Shintoism and Buddhism, two religions often interpreted as heterogeneous from a European perspective, have been coexisting peacefully, even in one and the same person. This constellation does not either preclude some openness to many cultural influences from the West.

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In addition, a substantial part of Eastern and Central European countries do not profess orthodox Christianity but are nonetheless of Slavic descent. Finally, Latin America feels too strongly connected to Spain and Portugal and to Christian churches for it to be isolated from the West as a separate cultural sphere. The borders between the civilisations that will allegedly clash with one another are, then, not as clearly demarcated as Huntington makes them out to be. Experience too, speaks against Huntington. For so far no large-scale formation of factions along cultural or religious fault lines can be detected. Rather, ‘indulgence in minute differences’ leads to fragmentation and regionalisation, for example, in Islam the conflicts between Sunnis and Shi’ites, or between ‘orthodox’ and ‘enlightened’ Muslims. Further, the civilisations mentioned turn out to be ‘syncretistic’, not only in their border areas but also at their centres. The West in particular grants the right to live in its territory not only to Christians and Jews, but also to Muslims, Hindus, and Buddhists; and in its arts, it is readily inspired by all cultures. What is more, cultures tend to differentiate themselves along transcultural factors, such as age, sex and occupation, or according to social and political attitudes, settlement patterns, geography and climate. This results in commonalities across cultures, so that the urban youth in Western Europe resemble their counterparts in Eastern Europe and Japan more than the previous rural generation in their own cultural spheres. This, moreover, may represent the greater source of potential conflict. In Islam, for example, the fight between the way of life in the cities and that of the tribal hinterlands dates back to the earliest times. At any rate, the crucial borders today run less along religious or cultural fault lines than between urban and rural populations, between the educated and the uneducated and between the rich and the poor. A still weightier objection against Huntington is offered by the manner in which social structures proliferate nowadays; this happens, as mentioned earlier, to a large extent by suggestion, without a fight. It is only competition that arises between civilisations, and despite occasional setbacks, it tends to go in favour of that social form which, because of its origin, is called Western and modern. Other forms of society do as well attain some degree of global significance. Yet, when it is ‘only’ religion that spreads, as was the case with Buddhism and Christianity and Islam today still, or an ideology such as socialism, the commonalities carry insufficient weight to qualify as a separate form of civilisation. For that to happen fields like medicine, the natural sciences and technology that do not seriously follow Christian, socialist or Islamic agendas are required; the economy has, anyways, restricted these agendas. Incidentally, this state of affairs helps to explain the triumphant advance of global civilisation. Because it is indifferent to questions of faith and salvation and goes along with the most diverse religions, it is both capable of and entitled to globalisation. Its ‘multi-religious wholesomeness’ precludes the humiliation of any religion. The fact that its regional origin is not decisive also speaks in favour of this particular form of civilisation. Although the sources of inspiration today proceed primarily from the West, they are not inherently European or European-North American. Rather, they are modern in the sense that universal human talents are allowed to fully flourish. The ambiguous expression ‘modern’ is here understood in the normative

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sense of Aristotelian physis: the realisation of a universal human potential to its full actuality and flourishing. Modernisation can also be understood in a second, epochal sense: that the development of these abilities has specific characteristics of European modernity to thank. There remains the danger that the actual spread of civilisation does not represent ‘pure modernity’ in its normative sense. Instead of pure science, pure economy or pure democracy, we witness a form of ‘contamination’: universal human influences are combined with individual behaviour patterns and interests, with those of a language sphere, a particular national economy, or perhaps even certain corporations. Only the pure form, however, is entitled to globalisation: the global spread of Europe, preceded however by a ‘de-Europeanisation’ or, the global spread of the West, preceded by a ‘de-Westernisation’. Only if European modernity rids itself of its specifically European and specifically modern elements, only if it realises, on the basis of universal human reason and interests, opportunities that have remained as yet undiscovered by other epochs and cultures, only then can a civilisation develop that is indeed, in its beginnings, tied to Europe and modernity but is, in fact, modern in a normative sense. Only then is the lofty proverb valid that it is through modernity that humankind comes to its senses. That the concept of a normative modernisation is not a mere fig leaf behind which a certain euro-centrism might grow undisturbed is evidenced by ‘modern’ science, medicine and technology. They indeed succeed in realising to an unforeseen degree the knowledge and skill that humankind has always sought. Within that general inquisitiveness, however, a particular emphasis is stressed: a shift from knowledge to skill. Whereas Antiquity favoured a pure, non-utilitarian inquisitiveness (see, for example, Aristotle, Metaphysics, vol. I, chs. 1 and 2), modernity rejects this in favour of a useful but also humanitarian knowledge. Sure enough, this displacement serves universal human purposes: the alleviation of material suffering, the healing of diseases and the reduction of toilsome work. The shift in emphasis from knowledge to skill accommodates the practical side of religions – that is, the appeal to compassion and charity that unites diverse religions and denominations beyond their dogmatic controversies (see the plea for a global ethos uniting all religions in Küng 1993). This shift of emphasis thus avoids the danger of favouring one of the religions while debasing the others. Economic rationality, a second element of global civilisation, also has the advantage of being culturally indifferent. The efficiencies gained both with respect to labour and natural resources promote the universal human interest of minimising the work carried out ‘at the sweat of one’s brow’ and of achieving either a greater profit with the same inputs or the same profit with fewer inputs. Indeed, humankind today has at its disposal a material wealth unknown in earlier times. No society will, though, ever be wealthy enough to fulfil all of the needs and interests of its members. Even European modernity cannot free mankind from its tendency to desire ever more. The sting of constant discontent even endangers natural, social and cultural resources. We can now draw a preliminary conclusion; it begins with a clear counter-diagnosis to Huntington. And this for three reasons: because of the religious neutrality of

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Western civilisation, the relative importance of its geographical origins, and its modernisation in the normative sense, the main controversy today does not oppose the West and the non-West, certainly not Christianity and Islam, and not even directly secular and pre-secular societies, something that would be burdensome to religiously influenced cultures. Secondary issues may be addressed in this way, as many a conflict does feature a religious or otherwise cultural component. The crucial conflict, however, arises between groups or societies that expose themselves to normative modernisation and those that do not but rather shut themselves out. Finally, those losing out in the modernisation process provide substantial cause for further conflict. Second, the global form of civilisation grants individual societies and sub-societies a high degree of self-sufficiency. It is the impartiality with respect to religion and other factors that makes diversity possible: a variety of customs, languages and religions (including religious impoverishment), positive rights, and political culture. Because global civilisation is only a form of society that remains open to socio-cultural differences, one can advocate it without being enslaved by the cultural imperialism that imposes, as an ideal, one’s own culture on others. Incidentally, Western intellectuals are among the fiercest critics of euro-centrism. Third, since it is universal human interests that matter, non-Western cultures need not endure humiliation but can instead positively identify themselves with modernisation. The West does not carry itself as an imperious hegemon would but is, if at all, merely the mouthpiece of a development that brings universal human potential to its full flourishing while favouring universal human interests and abilities. Fourth, because it is universal human rationality alone that matters, experiences from other cultures can be integrated. Global civilisation is flexible and able to learn, if not in each concrete situation then certainly in principle. This is also because, fifthly, comprehensive reason also encompasses enlightenment in the sense of a reflexive self-criticism, one that can steer away from the undesirable developments of global civilisation. 1.4 PHILOSOPHY AS THE ADVOCATE OF HUMANKIND

Ever since its inception, philosophy has taken upon itself a claim to universality: in its attempt to address general and often universal problems it has employed arguments of universal applicability so as to arrive at universal conclusions. Given the pertinent doubt that universal principles are, in fact, only partially applicable, philosophy becomes involved in a discourse that is often intercultural, that is moderating, and often transcultural, that is one that encompasses cultures (Höffe 1996, ch. 1). As far as the state and the law are concerned, this discourse is to be conducted on three levels: The theory of the state and the law does not invoke specific elements in the legal culture of its Euro-American origin, neither with regard to normative principles nor to empirical circumstances. For only when all particularities are set aside, can we place societies that are fundamentally different under an obligation to commit to a common ground. The trade-off is obvious: we do not gain a spelled-out legal order but obtain only procedural principles. However, this is actually not a price to be paid

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but rather an advantage. On the one hand, the principles are valid without exception while on the other they remain, in their concrete application, open to experience, wisdom and their respective boundary conditions, including traditions and drafts of new social orders. On the second level, that of the history of the state and the law, the discourse connects historical consciousness with socio-historical knowledge. For instance, it remembers that already in its beginnings, Western civilisation had been influenced by non-Western sources, that Greek culture was shaped by Eastern (Egyptian, Babylonian, Hittite, Phoenician) influences, and that this culture was transmitted to the medieval Latin era not primarily via Rome but via Syrian Christians and the Islamic-Arab cultural sphere. Further, the discourse does not forget that ‘the West’ gave rise to such pathologies as colonialism, religious intolerance, and the absolutist state, against which human rights became a necessary therapy. However, it also recalls the fact that neither colonisation nor imperialism were invented by European modernity. They were already practiced in Ancient Egypt, Phoenicia, and Persia, later in Greece and Rome, and also by the Incas, as well as in India and China. This intercultural discourse finds, because of its historical consciousness, suitable starting points in other cultures for three components of ‘modern polities’ – national sovereignty, human rights, and the separation of powers. With regard to popular sovereignty it refers to early hunter cultures, in which kinship-based tribes made their decisions (as to hunting and camping) jointly. Many religious fraternities also display democratic characteristics, for instance the Dominicans and the Franciscans, whose leaders are elected for a defined period by a congregation of their members, the ecclesial chapter. Also, in the case of the African palaver the concerned parties continue debating until a consensus is reached. The majority of human rights, in turn, are protected by the criminal laws implemented in their respective legal orders (Höffe 1999a). Asian authors such as Carolina Hernandez (1997) and Eun-Jerny Lee (1997) even see the concept of human rights rooted in their own Asian traditions. Finally, starting points for the separation of powers are to be found wherever rulers, through either customary or divine law, are subject to rules. The separation of powers is further reinforced wherever the ruler is advised, or even controlled, by a council. The third level is just as important: for the practice of law, the intercultural discourse advocates such a careful implementation of the procedural principles that their openness comes to true and full fruition. The demands for justice and the rule of law of modern civilisation can only be expected of other cultures if these maintain a high degree of self-sufficiency and independence. Rather than having to surrender their identity, they have the right to be acculturated, that is, incorporated in such a way that remains compatible with their culture. Without a doubt, the third condition has long been seriously violated. Not only do Western states cultivate religious intolerance internally, which leads to religious wars and large-scale migration, but even slavery, colonialism, and imperialism are no strange concepts to states that do adhere to the principle of religious tolerance. Their late ramifications include other cultures’ identity conflicts, which have remained active well into the present time and urge on the West a less haughty self-

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assessment. Conversely, the systems of government that were developed in Europe and North America are too quickly and too directly imported. Cases in point are when, after the dissolution of the Spanish and Portuguese colonial empires, South America adopted the presidential structure of the USA; when Japan, after the Meji restoration, adopted Prussian constitutionalism; or when Africa, depending upon the earlier colonial power, was guided by either French, British or other models. Sufficient time and effort were not (and perhaps could not be) devoted to mediate between the Western systems of government and indigenous traditions and mentalities. The consequences, the well-known crises, reinforce the third condition: that the basic model, qualified democracy, be realised only very carefully and only taking the indigenous cultures into account. The discourse on intercultural and transcultural rights is not fundamentally new. Philosophy has always understood itself as an advocate of humankind. And ‘humankind’ here primarily refers to the humane character of mankind, and only secondarily to humankind as a species. Leaning neither on particular traditions, conventions, nor on holy texts or a Revelation, philosophy relies exclusively on universal human reason and universal human experience. By thus proceeding it secures a suitable normative core for cosmopolitan debates: concepts and statements that are valid across cultures.

PART ONE

QUALIFIED DEMOCRACY

Those who are convinced that democracy is an ideal for human self-organisation, must immediately subsume globalisation, the challenge of our times, under this very ideal. They will straight away demand either global democratisation or global democracy. A sound philosophy, however, must deal with pertinent scepticism, which, in the case of democracy, voices two reservations. First, does this ideal consist in a pure democracy or rather in a qualified democracy, one which is linked to principles of justice, namely human rights? Second, regardless of whether simple or qualified democracy is chosen, does this ideal depend on the presumptions of a particular culture, that of the modern West, or is it valid across cultures? Both questions require more than a simple reconstruction of democracy, the nowadays predominant approach. While it is true that reconstruction uncovers normative foundations, it does little to establish their legitimacy. It only manages therefore to convince those who are in principle already convinced anyway. “Fundamentalist political philosophy” (Höffe 1995a) begins with a more basic starting-point: with the task of establishing a universally applicable legitimacy, i.e. the authority to compel, and with an equally universal criterion for legitimation, i.e. universal consent based on benefits which accrue to all (ch. 2). This universal criterion of legitimation implies specific normative social principles: initially, a universal precept of the rule of law with equally universal legal principles (ch. 3), followed by a universal precept of democracy and statehood (ch. 4). This sequence remains open to the idea of normative modernisation: although only a qualified democracy provides the environment in which it can fully flourish, political self-organisation may also begin with an alternative conception of law and statehood. After introducing two complementary principles of statehood, subsidiarity and federalism, we examine the thesis that globalisation processes undermine the power of the individual state (ch. 6). Also, while democratic theory is usually happy to content itself with institutional theory, we supplement the debate with considerations of a more person-centred nature, arguing that the creation and maintenance of democratic institutions require a multitude of civic virtues (ch. 7).

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CONSENT OUT OF ADVANTAGE

2.1 THE AUTHORITY TO COMPEL

We begin with the question of what it actually is that is in need of legitimation and, to do so, examine the structure of polities. As long as human beings create communities for the mere purpose of cooperation and as long as this happens in a spontaneous and voluntary manner, one might ask oneself why humans choose to live together at all. A good many reasons can be given. The issue of social rights aside (see ch. 3.4), fundamental political philosophy leaves it to the realm of social theory to determine precisely those reasons. A wholly voluntary community of cooperation does not require a justification but only an explanation. The issue is different, however, once a polity is no longer satisfied with voluntarism and starts to introduce mandatory rules that constrain the freedom of its members. Since each polity claims the authority to compel, it is here that the legitimating task lies. Even today, in an age of practised historicism, this task confronts philosophy with a question that is valid across cultures and demands of it a universally applicable answer: Why is it permissible to interfere with the freedom of individual persons? Why should coercion be legitimate? The law constitutes the embodiment of the ordered form of the authority to compel. Its procedural as well as substantive regulations accomplish three things. It coordinates parts of the polity, including individuals, groups and institutions, and either assists in solving problems without (private) physical force or prevents them from occurring in the first place. Finally, it licenses legal instances wherever questions of authorisation and responsibility arise. All three variants of the law share one characteristic: the authority to compel, which more recent theories of justice and the state surprisingly ignore. Neither Rawls (1971, 1993), Dworkin (1993, 1996), nor Habermas (1996) show any interest in the topic. Of course, the authority to compel is not to be equated with Medusa’s head. Unlike naked force, legal coercion is authorised, and also constrained by rigid regulations. It should not be reduced to its ultima ratio, that is, penal enforcement. Equally significant is the formal requirement, which, if ignored, negates the intended legal act. There is, furthermore, an obligation towards the state, that is, paying taxes. At times even the rudiments of ‘soft law’ and courts of arbitration are satisfactory. In the case of a global order, concrete action is necessarily constrained by law. In all these spheres, the polity demands a monopoly on coercive power and ‘enforces’ it as jealously, and as justifiably, as the monotheist divinity affirms itself vis-à-vis other gods. Not only breaking the rules, but merely personally punishing such breaches – the use of private force – constitutes an infringement of the law. 21

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As an embodiment of force that is no longer private but public, the polity presents itself as a system of rule that encroaches upon the freedoms of citizens and thus requires justification as such. Why should the law be withdrawn from private responsibility and be left to public powers? Because of this supplementary question, justification proves to consist of two stages: first, the law itself has to be justified, and then the state in the wider sense of the term, the no longer private but public responsibility for the law. Some believe that qualified democracy, as a political ideal, puts an end to coercion. This view, which usually remains tacit, may be the reason why the authority to compel is not a topic of dominant legal and democratic theories. Of course, it is true that, in the case of democracy, the origin of the authority to compel changes: it is no longer derived from a (foreign) authority but from those subjected to authority. Moreover, the goal is altered: coercion serves no longer the purposes of those holding it, the rulers, but the citizens themselves. Even a Rousseauvian democracy, which assumes the unity of the rulers and the ruled, maintains penal enforcement, the authority to compel, and requires that the ruled provide for the state. Hence, while the democratic metamorphosis – from an alien authority to one that is self-enforced by those subjected to it – represents a fundamental change, it does not do away with the task of legitimation, nor the authority to compel. 2.2 WELFARE (UTILITARIANISM) OR JUSTICE?

The preceding descriptive element, the legitimation task, is methodologically followed by a normative element, the legitimation criterion. By which standard can the authority to compel be legitimate? The normatively modest answer, a prudential and pragmatic justification, appeals to ends advocated by common sense which, in the case of the polity, are interior and exterior security as well as economic welfare. And since there are many such ends, which are best pursued all at once, it is welfare, their embodiment, which imposes itself as the standard. The authority to compel then appears legitimate when it serves the collective well-being. It is possible to object to this socio-pragmatic justification and claim that its guiding concept (Leitbegriff ) is hopelessly indeterminate, suspiciously close to ideology, and that he who appeals to notions of welfare cloaks his own particular interests under the cover of the universal and the common. However, a good raison d’être does exist for this indeterminateness. Welfare is the embodiment of intelligent ends, and it is impossible to articulate a priori what this will encompass. Rather, ascertaining the appropriate ends as well as defining and coordinating them in detail is a task that must be pursued time and again and the outcome of which remains open-ended. Of course, such openness invites ideological abuse; yet, the concept itself is not ideological, but only the attempt to reduce it to a particular interpretation. Welfare’s most successful ethics is utilitarianism. It takes the maximum collective well-being as its guiding principle and seeks to calculate it, following Bentham, by means of a hedonistic calculus, yet, leaves the concept otherwise expressly open (for a list of selected readings on utilitarian ethics, see Höffe 1992; for more recent discussions

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see Brandt 1992; Nida-Rümelin 1993, and Häyry 1994; for a comparison with contract theory see Rinderle 1998). For this reason and because it inspired, under the intellectual leadership of Mill and Bentham, important reforms in late feudal, early capitalist, and colonial Great Britain, utilitarianism has played a dominant role in the English-speaking world ever since. In Germany, however, utilitarianism has been acknowledged (see Kaler 1885), but is fiercely rejected by leading intellectuals. Marx and Engels criticise it as an “exploitation de l’homme par l’homme”, an exploitation of Man by Man (German Ideology 1845/46, section ‘Morality, Intercourse, Theory of exploitation’: MEW 3, 394). For Nietzsche it counts among the “superficial thoughts and naïveties” (Beyond Good and Evil, no. 225); and even an aphorism in Twilight of the Idols may represent a critique of utilitarianism: “humankind does not strive for happiness, only the Englishman does” (Sayings and Arrows, no. 12). The political successes and theoretical advantages notwithstanding, such as an open-mindedness towards the wealth of empirical reality, serious difficulties should not be overlooked. Two of them can be rejected right away: the contention that the case for the justification of the utilitarian principle has not yet been made, and that the comparisons of intra-personal utility, which are necessary in order to calculate accumulated welfare, are often all but impossible (Griffin 1986, part 2; Elster and Roemer 1991). The third problem, that justice is not taken into account, is more crucial as far as political legitimation is concerned. This deficiency appears in two stages: a lack of conventional justice that would standardise the state and the rule of law, as well as the more fundamental lack of justice that would legitimise the state and the law. Certainly, with respect to the difference between legitimate and illegitimate actions, laws, and forms of government, utilitarians are concerned, in a normative sense, with every single individual and they do so to an equal degree. This democratic approach, however, applies only to the initial data that are used to calculate collective welfare. The rigid application of equal treatment to each and everyone cannot prevent that, when performing the calculation, the suffering of some is evened out by the happiness of others, without any compensation offered to those who are thus disadvantaged. Hence, utilitarianism as such knows no human rights. What is more, Jeremy Bentham (Political Thought, 269; Waldron 1987), an honorary citizen of revolutionary France, even mocked the declaration of human rights as ‘nonsense upon stilts’. As long as general welfare is maximised, utilitarianism allows the innocent to be punished and humans to be enslaved, and thus justifies the criticism forwarded by Marx and Engels that Man is being exploited by Man. Of course, given the right empirical circumstances, a deficiency in justice appears to be a rather moot point. Wherever the (psychological) law of diminishing marginal utility does apply – that is, when the pleasure derived from a given good diminishes as the quantity of the good increases (the first apple provides more satisfaction and enjoyment than the second, which, in turn provides more than the third) and when additional conditions are satisfied – utilitarianism actually requires a strictly equal treatment. Even then, however, the objection stands that this equal treatment is due to accidental empirical circumstances, whereas it would be a normative requirement for the justice-based

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perspective should this perspective indeed require equality: human rights are inalienable and should accrue to human beings, regardless of accidental circumstances. According to Fogel’s (1994) provocative study, slavery in North America was not only of particular benefit to the slaves (!), but also of collective advantage to the states. This implies that, from a utilitarian viewpoint, slavery was actually called for (see Höffe 2002, ch. 6, for a critical analysis of Mill’s attempt to rebut the justicebased objection, which he outlines in Mill 1861, Utilitarianism, ch. 5). With regard to the justice that legitimises the law and the state – that is, the question as to why the state and the law should exist in the first place – neither utilitarians nor other advocates of the principle of general welfare are concerned with questions of the authority to compel. Some activities, such as patronage or honorary posts, contribute to overall welfare without giving anyone the right to coerce people into doing them (see ch. 7.4). Consequently, utilitarianism is insufficient, not because it does not justify its principles, struggles with comparisons of utility, or is, in our context, generally deficient in its concern for justice; rather, utilitarianism is insufficient because it lacks the justice that would legitimise the authority to compel. Justice constitutes the basic elementary layer within social morality; it is that minimal morality, the acknowledgement of which human beings owe to one another. By contrast, the highest morality, philanthropy or charity, remains a moral demand that goes beyond that which can be required. This lucid definitional distinction is reflected in our reactions to moral violations: because philanthropy and charity are only solicited, we are no more than disappointed when they are refused, whereas we react with utter dismay to a lack of justice (for an early juxtaposition see A. Smith, Theory of Moral Sentiments, part 2, sec. 2). This dichotomy is missing, however, from both utilitarianism and the principle of general welfare. Since the authority to compel curtails freedom, it can only be justified by what human beings owe to one another, and not simply what they request from each other. Just as general welfare, which is indifferent to the distinction between philanthropy and justice, philanthropy too, must hence also be discarded as a legitimating criterion. The deliberations that follow proceed from the viewpoint of justice, and thereby lead to a fundamental political philosophy in two respects: thematically they go back beyond democracy, the contemporary structure of our communities, and deal with law and state as such, with the authority to compel, irrespective of culture and history. With the Aristotelian argument of an immanent completion we move on to qualified democracy. Also, from a normative point of view, we will not content ourselves with collective wisdom. Unlike socio-pragmatic or utilitarian justifications, we appeal to the highest normative level, to morality and, more specifically, the social morality of that which is reciprocally owed, that is to say: we appeal to justice. 2.3 LEGITIMATORY INDIVIDUALISM

Sure enough, justice produces its own set of difficulties. There is so much disagreement over the specific principles that most prefer to dispense with a discussion of justice altogether, if only for pragmatic reasons. Political legitimation cannot, however,

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allow itself such a waiver. For if the authority to compel cannot be justified by appeal to notions of justice, then polities, which exercise such authority anyway, are using force against their members and acting unlawfully. Fortunately, the authority to compel comes with an uncontested criterion. Ostensibly, curtailing liberties is justified if everybody can agree to it. According to the principle that “he who volunteers cannot be wronged” (volenti non fit iniuria), an authority is legitimate if it is voluntarily accepted. Yet, the voluntariness requirement is only satisfied if each and every individual’s consent counts. In that sense it entails an individualism, though not one that is open to the popular criticism of poor intersubjectivity (Habermas 1989, 322; for a counterargument, see Höffe 2002, ch. 13.3). A human being is undoubtedly no isolated atom that can exist independent of those of its kind. Even an individualistic way of life such as the bios theoretikos, the contemplative life dedicated to philosophy and science, requires a social way of life, the bios politikos, as precondition and complement (Aristotle, Nicomachean Ethics X 8, 1178a25–b3; also X 9, 1178b33–1179a9). This insight can even be couched in anthropological terms such that humans are defined as ‘animals’ attaining individuality only when embedded in society. In order to rebut the claim that the argument lacks intersubjectivity, some elementary ambivalence needs to be recognised: following a first socio-theoretical individualism, people are capable of action even without society. It may be debatable whether, with the exception of Ibn Tufaïl’s (Abubaker’s) philosophical novel Hayy ben Yaqdhan, a forebear of Robinson’s in the twelfth century (Conrad 1996), and Max Stirner’s 1845 work The Ego and His Own, the position of a radical solipsism has ever been seriously defended. Tenable it is most certainly not, for a human being is in many different ways a social being (ch. 3.3). Unlike socio-theoretical individualism, legitimatory individualism acknowledges people’s social nature. Yet, rather than starkly stipulate that, as a result, communities simply cannot function without an authority to compel, this requirement is instead critically examined. In so doing, it is the community that has to justify itself before each individual rather than vice versa, as is the case with legitimatory collectivism. Legitimatory individualism thus amounts to a most genuine consensus-based theory. As is well known, in the more recent debates about morality, the law and the state, theories based on consent or agreement play just as prominent a role as does utilitarianism. Neither must their long tradition be forgotten, nor must it be overlooked that they, in fact, constitute a larger family of theories that should be described in more detail. Within this same family of consensus-based theories, legitimatory individualism stands out in two ways: by differentiating between a morality that is owed and one which is a meritorious supplement, and by defining a strict concept of consensus, one which requires unanimous agreement. For this reason there lies, at the systematic outset, a basic freedom that is joined to an equally basic equality: in so far as they have to agree voluntarily and individually, persons are considered to be equal and free. In the wake of that justification, an additional individualism surfaces that is now of a political nature. The authority to compel is only legitimate if each individual is granted

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a claim to inalienable rights, including positive rights to freedom and democratic rights to participation. In Habermas’ discourse theory too, these rights have the rank of unalterable requirements, of innate and inalienable standards. For this reason Habermas is content, though à contre coeur, with a mere procedural interpretation of the law. His discourse stipulates substantive requirements, of which one can of course be assured reflexively, but which in praxis one must have already acknowledged beforehand. Those who fail to respect human rights – such as the integrity of life and limb, freedom of speech and the right to participation – do not enter into any discourse at all with their opponent. After the objection to a lack of intersubjectivity, it is the more pragmatic objection that unanimity never has and never will be achieved that threatens legitimatory individualism. For not only is it conceivable that consent be given out of blindness or thoughtlessness, in which case it would not quite be given freely; but some persons are not even present, and infants or the mentally incapacitated are incapable of making free decisions due to their limited accountability. Since this objection is to some extent plausible, our legitimation criterion needs to be further refined: to ensure that consent is deliberated (‘reasonable’) it needs to be tied to a verifiable advantage. The formal criterion of ‘free consent’ thus migrates into the substantial criterion of ‘worthy of consent’, in the sense of ‘own advantage’. A weak consentworthiness – a consent that can be given for good reasons – is thereby insufficient. The authority to compel is legitimate only under the more demanding condition that one cannot reasonably fail to consent to it. This criterion also resolves the second part of the objection concerning the representation of absentees and the guardianship of non-accountable persons. The authority to compel is legitimate, not due to some historical and factual consent but because, and in so far as, nobody can justifiably refuse to consent to it. Political legitimation, interpreted in this intentionally limited sense, even allows for a certain degree of legitimatory paternalism. Certainly, as the embodiment of authoritarian behaviour, paternalism appears to us as generally obsolete, even as a clear contradiction to liberal democracy. Yet, it remains indispensable, and also legitimate, in so far as a community’s authority to compel has to be of benefit even to those who are either temporarily or indefinitely lacking either reason or will. Only in very limited and elementary cases will something be legitimate against unwillingness or unreasonableness. An all-encompassing paternalism is never justifiable. Given that everyone’s advantage is to be taken into account, one could worry that a normative egoism is being introduced according to which the law and the state are justified on the basis of selfish private interest. Nothing, however, has as yet been said as to what types of advantages are to be taken into account. ‘Selfish private interest’, such as the protection of private property is not what matters, but instead, that no one be sacrificed to the interests of others, however many others there may be. Whatever the actual advantage may be, it has to be of benefit to each and everyone. That way legitimatory individualism fulfils the ‘formula of Humanity as an end in itself’ stipulated by Kant’s categorical imperative (Groundwork, sec. 2, IV 429/79). Unlike the exploitation of Man by Man that looms over utilitarianism, no one is reduced to becoming a means to someone else’s end; everyone counts as a

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unique person. Even those who are not able to give consent – infants, some elderly and the severely incapacitated – count as ends in themselves and are bearers of the corresponding rights (see also ch. 3.5). 2.4 THE CONTRACT AS A METAPHOR

The prototype of voluntary self-obligation is the contract. Political legitimation leads to a particular contract, the original political contract that legitimises law and state, that is to say: the political ur-contract. The philosophical tradition speaks here somewhat inaccurately of a social contract. It is not the society that is to be justified, however, but rather civil society, as a political community. The beginnings of philosophical contract theory can be traced back to Antiquity, for example to Solon (fragm. 36 West, v. 15–27; fragm. 37), to sophists such as Protagoras (see Plato, Protagoras, 322a–d) and Lykophron (Aristotle, Politics III 9, 1280b8), to Plato in the Crito dialogue (50a–52d), to Epicurus (Principle Doctrines, 33) and to Augustine (The City of God, IV 4). In the late Middle Ages the quintessential element, mutual consent, can be found in Duns Scotus: no one has authority over someone else, unless it is mutually agreed to (Reportationes Parisienses, Opera Omnia 24, 234). Not until the philosophy of the enlightenment – in Hobbes, Locke, Rousseau, and Kant – is the legitimation pattern fully developed. Of course, from the late enlightenment onwards objections have been raised, propounded by Hume and Adam Smith, by Burke, Hegel and Schlegel and later Bentham, Austin, and the Social Darwinists, and not least by Nietzsche and Durkheim. Their critique is, however, misguided in that it misunderstands the legitimatory demand of contract theory; this can be shown with respect to four of the most well-known objections. A fifth objection, that of individualism, has already been discussed (ch. 2.3). (1) According to Hume’s objection, a contract is binding only to those who agree to it, so that offspring would have to renew it in turn. However, no state, so the argument goes, would be willing to wait for this to happen before it demanded legal obedience (Of the Original Contract, 189). Similar to later works by Nietzsche (On the Genealogy of Morals, 2nd treatise, sec. 17) and Durkheim (The Division of Labor in Society, 202), contract is here understood as an historic event and is thus rightly criticisable as a basic pattern for the formation of states. Few states are actually created by concluding a contract; and even these demand the legal obedience of later generations before they renew the contract. Further, not all contracts are so exemplary that they deserve the unequivocal consent of the offspring. Yet, the original political contract is not concerned with historic contracts, nor with explicit or tacit agreements. Indifferent to the creation of society or the establishment of particular circumstances of the law and the state, it pursues a thought experiment for legitimatory reasons. The original political contract is a virtual contract that accounts for the primary justice that legitimises law and state. (2) The second objection obtains its full impact due to the importance of its author: Hegel views the contract as a legal institution that only applies to private

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property and that is inappropriate for the “altogether different and much higher nature” of a state (Philosophy of Right, § 75 n.; see § 258 n.). At the end of the day, the community is not a share-holding enterprise. In reality however, the contract is a legal institution that also applies to public law. Inspired by Aristotle, Hegel advocates a substantial morality, as an apparent alternative to contract theory. ‘Modern’ contract theories are even today often contrasted with the antique thesis, especially as put forward by Aristotle, of the political nature of Man (physei politikon zôon: Politics I, 2). This counter-thesis is not a suitable alternative, however, if only because it fails to address the legitimising goal of philosophical contract theory. Aristotle is concerned with social conditions that allow for an optimum, the good life (eu zên); whereas contract theory is satisfied with a minimum, with the preconditions of the authority to compel. Hence, we are not dealing with the alternative ‘Aristotle or contract theory’ nor with the supposedly analogous alternative ‘the good or the just’. Rather, we are dealing with both and also with a matter of priority: before one gets involved with the optimum and some of its additional voluntary provisions, one should first deal with the minimum, the authority to compel. (For interpretations of Aristotle see Höffe 2003, sec. 15.2; that it is also possible to develop contract theory based on Aristotelian foundations is shown by Althusius (Politics, 1614, XIX 23); also Gierke (1958) who assigns too much philosophical weight to Althusius, as compared to Hobbes, Locke and Rousseau.) (3) According to the objection raised in the philosophy of science, the philosophical social contract is linked to methodical expectations typical of early modernity. It attaches itself, so the argument goes, to Hobbes’ enthusiasm for a philosophy that is modelled after Euclid and his rationalistic and, in the eyes of some scholars, quasi-technical ideal of a strictly deductive legitimation: the mos geometricus. Indeed, a contemporary contract theorist, Rawls (1971, § 4, § 87), resorts to the somewhat equivalent idea of rational prudential choice. But other contract theorists such as Locke and Kant do not draw on the mos geometricus. A systematic revitalisation of contract theory can dispense with a quasi-mathematical rationalism. Rawls also qualifies it. In his Theory of Justice (1971) he gives priority to the other methodical element, the reflective equilibrium (see O’Neill 1998); and in his second seminal work, Political Liberalism (1993), rational prudential choice no longer has any role to play. (4) According to a further objection, contract theory overestimates the strength of intersubjectivity. Contract theory is said to suppose that participants unbound by law have the capacity to create law and that stateless subjects have the capacity to create a state. It is therefore said to create law from non-law and state from non-state. But contract theory does not need to assert such a ‘contractual creation myth’. Incidentally, the law and the state do not just fall out of the sky; rather, they are created by people, so that their existence demonstrates a corresponding capacity for human intersubjectivity: knowing the danger they pose to each other in a state of unlimited freedom, human beings allow restrictions on their liberties and maintain them permanently through the state and the law.

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Hence, human beings are able to outwit themseves and to constrain the dangers of subjectivity through institutionalisations. Now that the objections against contract theory have been rebutted, their real achievement should be drawn out. Just as the task of legitimation is double, so the original contract comes in two stages. The law-legitimising contract, the original legal contract (pactum juris) is followed by the state-legitimising contract, the original state contract (pactum juris publici). This dichotomy deviates from the paradigm of modern contract theory as advanced by Hobbes and various of his successors, such as Locke, Rousseau and Kant, without reverting to the doctrine of the dual contract proposed by German natural law theorists such as Althusius (Politics, 1614, 1,1.2; 2), later Pufendorf (On the Law of Nature and Nations, 1672, VII 2, §§ 7 ff.) and Achenwall (Elementa Iuris Naturae, 1750, §§ 655 ff.). The dual contract doctrine dispenses with the strict link between ‘classical contract theory’ and political legitimation and begins with the pactum unionis, the unification contract that unites individuals into a society for their own communal well-being. The legitimatory pactum subjectionis follows, that is, the subjugation contract that justifies the rule of state power. In contrast, the two-stage legitimation contract that is here being defended legitimises the embodiment of the rules, that is, the law, in its first part, in the original legal contract. This is followed in the second part, the original state contract, by the justification of the public powers that are responsible for the law. In both parts the contract constitutes a metaphor that is aimed at the core of the legitimation of state and law in three ways: First, all participants are free to agree to the contract (‘all’ being understood not only in the collective, but also in the distributive sense): each and every one is free, on their own, to enter into the contract. If the contract is to avoid treating anyone unjustly, it cannot be content with a qualified majority alone, however qualified that majority may be. In strict compliance with the principle volenti non fit iniuria, it must lead to a consensual agreement, to that which will be worthy of each and everyone’s accord (and because all human beings here matter, including the mentally incapacitated and infants, Tugendthat’s objection against contract theory [1998, 53] does not apply). Second, in order to account for everyone’s advantage, contract theory argues e contrario as follows: it assumes a form of communal life, the state of nature, that is, a society with neither law nor state, but not the way of life of natural, primitive people. The state of nature allows for two definitions, which refer not to real life situations but to two stages of a thought experiment: the complete, primary state of nature is void of law and state; whereas the secondary state of nature, which results from the legitimation of the law but still lacks any public powers, is merely void of the state. When the law and the state are put aside, their historical and cultural particularities too are discarded a fortiori. Consequently, contract theory achieves what is politically required in an age of globalisation: it emancipates itself from the normative convictions of any given culture or epoch and operates with arguments that are valid inter- or trans-culturally.

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If everything that is characteristic of the state and the law is set aside, four elements nonetheless remain. The primary state of nature distinguishes itself through (1) a plurality of human beings that (2) live on a planet that is spatially limited and (3) live freely according to their rational discretion. This third element does not amount to Hobbesian competitive egoism, which – for reasons of competition, distrust and thirst for glory – demands ever more, and especially more than anyone else has (Leviathan, ch. 13). Presupposing such egoism would endanger contract theory’s claim to universality, since this egoism is only attested in some cultures but not in others. The same problem arises when only those who own property are recognised as legal subjects – the position attributed to Locke (§ 123, but see also: Second Treatise, § 6). By not making any such supplementary assumptions, the primary state of nature turns out to be much more modest. It is content with negative freedom – that is, the absence of constraints on the freedom to act rationally. Everyone decides for themselves what they want and what they need to do in order to achieve it. (4) Finally, human beings are of course allowed to make use of relationships that develop out of mutual dependence, a common history, or compassion and cooperativeness. The condition of rational discretion, however, does not allow such ties to be assumed as given, which is why the primary state of nature must abstract from them. Third, the original legitimation for the law and the state corresponds to a contract in so far as the state of nature is abandoned by way of a mutual transfer of rights and duties: each individual surrenders certain freedoms bindingly, so that he or she benefits bindingly from an even greater advantage in return. Also, ‘bindingly’ here means that one is legally tied to the transfer; the principles of, first the law and then the state, are authoritatively and coercively obligating. To summarise these three elements: the original political contract constitutes a free and mutual self-restriction of negative freedom that is advantageous to, and legally binding for, all parties. In accordance with the legal principle of pacta sunt servanda one is free to agree to the contract but bound by the agreement once it is reached. 2.5 A TRANSCENDENTAL EXCHANGE

Due to its reciprocity, the transfer of rights and duties takes on the character of an exchange, and an exceptional one at that: the transfer is not subjected to a termination proviso but is valid indefinitely. More importantly, it is not about goods, services or capital, and even less so about economic exchange. Neither does it involve songs, tales, or – as in collective marriage contracts – persons, all of which are, in archaic societies, significant and analogous to economic exchanges (see Mauss 2000, Lévi-Strauss 1971, Kramer and Sigrist 1978; also Wetzel and Rabaté 1993). Rather, the reciprocity extends to rule-based obligations. What is more, the idea of the exchange, in as much as it is actually justified, shows a way out of the “uncertainties of distributive justice” (Richli 1998, 203). The transcendental exchange thus addresses an order that is based on rules and, consequently, something genuinely social. Unlike socio-theoretical individualism, it

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extends to the collective advantage that, unlike the utilitarian interpretation, does not replace the distributive advantage but unites with it so as to form a collective–distributive advantage. The utilitarian and merely collective advantage permits individuals to be sacrificed for the collective welfare; it serves many, but not all. Certainly, a merely distributive advantage is, by contrast, of benefit to all, that is, to each individual; but the individuals fail to unite into an orderly whole. Also, as in the contract theories of Buchanan (1975 and 1977) and Gauthier (1986), no one is degraded to being a means to other peoples’ ends. Yet, the individuals remain isolated atoms that strategically interact but that lack anything genuinely in common. The third and most demanding type of advantage, the collective–distributive advantage that is characteristic of legitimatory individualism, constitutes a genuine common ground: rules that are of benefit to each and everyone. Unlike a mere strategic common ground, the personal interests of the concerned parties are not heaped like grains of sand into a pile, a volonté de tous. Rather, a common order is established, which is mutually desired by each and everyone, because it is advantageous to all parties involved. In this sense, the original contract is different than a coalition of private advantages, a cake from which everyone wants to snatch the biggest possible slice. Because of the collective–distributive advantage, it avoids the alternative of conventional egoism or altruistic sympathy. Since it is personal advantage that counts, altruism is not required; and because advantage is achieved only concertedly, the egoism that induces people to compete with each other is rejected as well. The stipulation ‘either altruism or egoism’ is on a basic level replaced by interest-led communication. The idea of an advantage that is of a distributive as well as a collective nature is not directed against a merely individualistic social contract alone. Clearer than Rousseau’s, it also differs from a merely collective common ground. Since Rousseau (The Social Contract, I 6) differentiates his fundamental term, the volonté générale, only from the distributive common ground, the volonté de tous, he runs the risk of formulating only a collective understanding. However, as Kant (The Doctrine of Right § 47: VI 315/458) rightly saw, the original contract is agreed to by ‘all’ in both senses of the omnes et singuli: by everyone together and also, in contrast to an organic understanding of a society, by everyone individually. From this ensues the universal consent-worthiness of the legitimatory contract: it aims at a universal interest (omnes or volonté générale), in which each and everyone (singuli or volonté de tous) can find oneself again. Without a doubt, not every exchange is just. Quite on the contrary, one party can outsmart another, so that certain preconditions must be met for an exchange to be just. The two most important ones are obvious: subjectively, free consent is required, while objectively that which is exchanged needs to be of equal value, or at least exhibit no significant disparity. An exchange cannot be just if someone is being taken advantage of because of their plight, pressured, or deceived in fundamental aspects of the exchange, nor if that which is exchanged (intentionally or not) turns out to differ greatly in value. Exchanging alcohol for entire estates is hardly just; and it is most definitely unjust to sell one’s own freedom or that of one’s children or

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grandchildren for a little ‘firewater’. Transcendental exchanges do away with such problems. In the case of the universal interest, free consent, understood here as the consent-worthiness mentioned earlier, is a given just as is the equitable value of that which is exchanged. The distributive–collective advantage is first of all a task, the accomplishment of which appears plainly impossible at first sight given that the needs and interests of individuals are much too different for there to be such a thing as an advantage for all. Indeed, that advantage cannot be found at the level of ordinary interests, but is rather found in the necessary conditions of human action that are indispensable for the development, pursuit and very existence of ordinary interests. A universal advantage is only to be found in the conditions required for both action and practical subjectivity. As conditions of agency, these provisos are not located in universal empirical facts but in interests of a logically higher order. They are derived from a theory of agency that is based on the conditions of the capacity to act and, in so far as possible, on a transcendental theory of agency; they can be called – relatively – transcendental interests. As we know about the capacity to act only from human beings, we can associate these interests with a new type of transcendental anthropology: a doctrine of humankind that is concerned with neither the particularities of a biological species, such as an upright walk, imperfection and restlessness, nor with the diverse ways of becoming an accomplished human being, such as science, art, friendship, generosity and love. Contrary to an (all-encompassing) biological–philosophical anthropology, a partial and minimal anthropology will suffice. Also, contrary to a theory of the fulfilled (i.e. the good, possibly even the accomplished) life, an ateleological anthropology is sufficient: a theory of those initial conditions of being a human that contain the indispensable conditions of the capacity to act. Transcendental interests are demanding in that they claim universal validity. At the same time, however, they are also modest, because they are content with a minimal anthropology, with the initial conditions of the human capacity to act. What is more, because they are at the same time demanding and modest, they are suited to a discourse in an age of globalisation. As universally valid interests, they befit not only people of Western, but also of all cultural origins. And as logically higher order interests and only minimal initial conditions, they avoid the danger of uniformity which looms over any strict cultural relativism. Since transcendental interests are not located at the level of ordinary interests, they remain open to the multiplicity of interests, to the diversity of individuals as well as groups, even of cultures and epochs. From this openness, incidentally, follows a right to be different (ch. 4.4. also 10.3). Transcendental interests alone, however, do not justify the authority to compel. They merely state that everyone has such interests. They do not yet explain why others should be obliged to lend themselves to that authority. There remains here a justificatory deficit, a legitimatory gap akin to the ‘is/ought’ fallacy. The gap can be closed by extending the transcendental nature with the social nature mentioned in the original contract, which leads to a transcendental reciprocity, pars pro toto to a transcendental exchange. This exceptional exchange is absolutely transcendental in the

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sense that it represents the condition of the possibility of common reciprocity and common exchange. It does not produce a detailed web of reciprocal relations, of either archaic or modern societies. Yet, this exchange makes socialisation possible and necessary. The transcendental as well as social, the ‘socio-transcendental interests’, are conditions no one can dispense with because they are valid for every way of life; beyond that, these interests also require the existence of a structured society, since they can only be achieved if we all work together. Before I continue elaborating on the topic of legitimation, a note on the double-track nature of my methodology is in order (see Höffe 42000, ch. 14.4): only philosophy’s internal discourse is still engaged in justifying the principles of human rights and democracy; philosophy’s external discourse has long accepted them as uncontested principles.

CHAPTER 3

PRINCIPLES OF JUSTICE

3.1 A TRANSCENDENTAL GRAMMAR

The original political contract has so far been defined only in procedural terms as a transcendental exchange; we must now explicate its content. To begin, one of the advantages of the original legal contract must be asserted: it is that from which people as such benefit and which only occurs reciprocally. If thereby the hypothesis of a normative modernisation is indeed confirmed, a two-stage response must then be examined: this basic benefit of the law is followed by the full development of a ‘modern’ form of the law in the normative sense. The corresponding principles of justice bear on the basic order of a society, and not on the tenor of a person. They are not concerned with personal but with social (and more specifically political) justice, even though a community is not established until the second, original state contract. The first principle of justice demands that society be set up based on the rule of law, while the two subsequent principles require a just structure of society. The former represents law-constituting justice, the latter law-standardising justice. Let us start with the law itself. According to Hobbes, Bentham, and Austin and their theory of imperatives, which long dominated legal theory, law consists of commands from a superior power. This claim is challenged by the existence of customary law, by the fact that the commanding body, the legislature, is itself subjected to the law, and by the fact that there is a difference between law and (organised) crime (Höffe 1995a, ch. 6; Hobbes, Leviathan, ch. 26; also Höffe 1996a). The law is more appropriately seen as an embodiment of social rules that provides all participants, including members of the legislature, with a strict standard. Free of the divergent interests and opinions of individuals, it works against the human tendency to be the judge of one’s own cause and to resolve conflicts according to one’s own personal interests, opinions and power (‘private force’). Notwithstanding the fact that the rules are collective in nature, they are not based on some hypostatised notion of community or society, on an entity that would exist independent of, and prior to, individuals. Rather, conditions of reciprocity exist that can be compared with the basic structure of language: its grammar. Just as grammar does not actually fetter language in chains but merely provides the framework for its correct usage, rules too, do not necessarily lead to curtailments but provide order and structure instead. As a grammar of communal life it provides the framework within which all actions performed by individuals, clubs, associations and institutions are socially permissible. Just as the normative rules applicable to a particular language are comprised not only of conscious but also of unconscious building principles, 35

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social grammar too, is not limited only to those obligations that are spelled out or written down. This includes common law and it’s opposite, well-defined rules, as well as legal principles such as good faith and common decency, and lastly, ‘soft law’. Since the corresponding set of rules is prevalent nearly everywhere, it represents a universally valid social grammar. Of course, no particular law is universally applicable, only the legal form of communal life is. This comprises the conditions that enable communal life in the first place, the functional conditions of reciprocity that have the rank of a transcendental (social) grammar. These are the conditions at which the original legal contract is directed. The distributive–collective advantage of the purported benefits of social rules needs to be questioned. Why do we need an ‘authority of rules’? After all, as a social grammar the law does not yield to power pedantry or rule-fetishism. Rather, it raises a caveat to a crude Social Darwinism, against the ‘right of might’. Individual arbitrariness, which includes passions such as envy, jealousy, vindictiveness and even malice, as well as individual force, be it of physical, emotional or intellectual nature, are to be replaced by the strict common ground that unites every majority with every minority: rules. Neutral with respect to both majorities and minorities, rules are, simply, an impartial third party and hence the embodiment of justice. One might however object that there also exists a form of crime, which organises itself according to rules but which should not be called just or lawful, despite its rulebased order. On the contrary, so the objection continues, organised crime commits injustice on a grand scale. The objection seems to call for an additional provision. Accordingly, it is not rule-based order itself that defines justice and law, but qualified rules that serve a particular purpose. Indeed, just like representatives of a legal order, such as inland revenue officers, criminals too, abide by the same meta-rule: “he who does not pay will be ‘pun-ished’”. In this respect the law sets itself apart by means of an additional double condition, a procedural and a substantive one. Technically, a law must be authorised: a revenue officer’s request for payment is authorised by the tax law, which, in turn, owes its existence to its legislative mandate. In terms of content, the set of rules must be of benefit to all who are directly implicated. Taxes pay for a polity’s undertakings, which exist not because of the payment request but independently of it. Even if a benevolent Mafioso puts his extortion money now and then to charitable uses, the money eventually lands in the pockets of the organisation that collects it and serves its diverse private interests – whether they be egoistic or altruistic in nature. Also, the victims have an interest in escaping the threatened reprisals, not independently of the threats but simply because of them. Thanks to these two additional conditions, the law does not seem to consist of just any rules but only of qualified ones, rules that have been authorised and are directed at the overall welfare. However, these additions are not actually required. Organised crime, in the act of organising the crime, fulfils only one half of the requirement of equal treatment, which is an indispensable condition for rule-based order. The rulebased order does not serve to transform crime into law but only to improve the

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effectiveness and efficiency of crime. The other factually predominant half infringes upon equal treatment. The revenue officer too, is subjected to the tax law and thus confirms, en passant, that the law is not comprised of power-based commands but of social rules. The Mafioso, by contrast, extorts money only from others, not from himself; and it is this, the structural violation of the requirement of equal treatment and the rule-based order, which makes his behaviour a crime. One can even imagine an improvement on the benevolent Mafioso, a Robin Hood, who distributes his bounty not now and then but systematically to the poor. He too nevertheless impinges on the strict rule-based order and fails to create an alternative law, a counter-law, for this very reason. For he inflicts on the bereft party that which he would not want to inflict either on himself if the bounty is not yet shared, nor on the poor once they have received the bounty. This follows because if they – first Robin Hood, later the poor – are also robbed, Robin’s lifework is destroyed. Put more positively, a strictly undisputed redistribution of wealth is possible only if it is compliant with the law and a rule-based order. With this, we arrive at the first principle of justice. Prior to the common principles of justice, including Rawls’ principle of the greatest equal freedom, it stipulates the universal precept of the rule of law: As an embodiment of rules that are applicable strictly and in every respect, the law opposes personal arbitrariness and personal force and, for that very reason, is to reign among all human beings. The law itself boasts an emancipating power: it liberates from arbitrariness and violence. This emancipation may occur to a lesser or to a greater degree. This difference between a partial liberation, as opposed to one that is complete, confirms the hypothesis of the immanent completion: law consists of a rudimentary state free of arbitrariness and violent force, and these push for a continuation and eventual fulfilment that transforms the bare law into a law that is just. Thus, the demand for fulfilment is generated from the foundation of the qualified rule itself. This justice that succeeds in standardising the law brings to full fruition the ‘essence’ of elementary justice, that is the veto against arbitrariness and force. An objection against this justificatory step arises that has been known in philosophy since Plato’s arguments with the sophist Callicles (Gorgias, 482): why should the mighty also follow the rules? There are both empirical and pragmatic answers. First, even the consistently and overwhelmingly powerful, do not want to always be fighting, but wish, also, to reserve time and energy for other things in life. Second, no one is overwhelmingly powerful in all respects, always, and indefinitely. Those who are physically superior can be overpowered by strength of character, such as courage, determination and tenacity; of intellect, such as experience, reason, and judiciousness; or through sheer luck. What is more, even the mighty need to sleep, may become ill, succumb to an accident, or be defeated by the combined power of the weak. Above all, even the most powerful members grow old and are eventually overtaken by their offspring. For these reasons even the mightiest do not rely solely on their present superiority but try to maintain it over time, which requires rules, among other things. Ideally, they have others authorise them to set the rules, in which case they do prefer the rule of law.

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3.2 HUMAN RIGHTS

A consent from the mightiest that is motivated purely by facts and empirical pragmatism does not yet, however, substantiate an ought: neither the mandate to establish the law nor the duty to submit to its rule is sufficient. This ought is only justified by the reciprocity of the transcendental exchange, which is as such universal. Hobbes sees universal advantage established by a dominant interest. Understood positively as the greatest good, it is the natural right to life (Leviathan, ch. 14); understood negatively as the greatest evil, it is the fear of a violent death (ch. 13). The political situation of that epoch, however, contradicted this assessment. The civil wars at that time clearly demonstrated what later conflicts have confirmed: that to some freedom of religion is more important than their own survival, while to others political freedom is, and to others still linguistic and cultural identity is paramount. This ‘refutation’ is characterised by a dual qualification. On the one hand, not one undisputedly better alternative is mentioned. Instead, there are various very plausible options, more options than those already mentioned, for example reputation, wealth and power. On the other hand, survival does indeed lose its status as the exclusive goal, but remains nevertheless one of the candidates. Hobbes was therefore wrong not only about the content, survival, but also in the assumption that a single dominant interest exists – that is, a highest good that is shared equally by all human beings. The alternative consists in interests of a higher order, in the conditions of the capacity to act that were mentioned earlier. These lead to rights that are based solely on the fact that one is human, that is to human rights. From the fact that human rights already have their legitimatory place in the original legal contract, certain particularities follow that are worth drawing out first (see Höffe 1996, chs. 3 and 4; 1979; 1995a, ch. 12.3; for the recent debates on human rights see Gosepath and Lohmann 1998; Perry 1998; on the trisection see Jellinek 1914; more recently Marshall 1950). (1) As moral claims within the realms of coerced morality and justice, human rights avoid the simplified antithesis of representing exclusively either moral or positive legal authority. As legal–moral claims, the disavowal of which would be disqualified as unjust by any positive legal order, they encompass two modes of existence that are factually complementary but methodologically very distinct. Within legal morality they are ‘only human rights’, that is to say über-positive claims that, once acknowledged as positive law, become ‘human rights as basic rights’ of a positive community nonetheless. (2) The fact that human rights are derived already from the primary contract, from the original legal contract that the state contract presupposes, has ramifications that are ignored in many theories: human rights exist prior to any state, they are rights that individuals have to grant one another as legal subjects. Even a democracy is only in a secondary sense responsible for legitimacy, in that it helps überpositive rights to attain a positive reality. It cannot originally grant these rights but can guarantee them in a subsidiary manner. Hence, the original legal contract substantiates only the reciprocal (legal) obligation not to violate another’s possessions, such as life and limb. The justification of the requirement to protect

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these goods through the rule of law and, for example, to provide police protection when one’s life or limb is threatened, does not occur until the original state contract is concluded (ch. 4.1). (3) The law consists of a core of justice, which manifests itself in distributivecollective advantages, such as the protection of legal goods, for example, life, health, or property. These legal goods enjoy the status of human rights, so that certain human rights are part of law-constituting, rather than law-standardising justice. Enter normative modernisation once again: while the optimum is not reached until the stage of the just law, a minimum of human rights is simply indispensable for the law itself. (4) Many controversies surround the detailed determination of the contents of human rights. These do not apply to the core however, for which subtle deliberations are not required: all it requires are the truisms known to us from traditional anthropological thought. Philosophical anthropology has known since its Greek origins that each human creature’s capacity to act distinguishes itself in three ways: (a) unlike pure rational beings, deities or angels, it involves a zoˆon or animal, that is a living organism. (b) In contrast to the animals commonly known to us, it involves a zoˆon logon echon or animal rationale: a creature capable of reason and speech. (c) Not least does it involve a zoˆon politikon, both in the unspecified sense of an ens sociale, which is inclined towards a community, and in the specific sense of an ens politicum, which is inclined towards a polis. Socio-transcendental interests are to be expected in all three areas. As such, three groups of human rights can be distinguished: the rights of living creatures; the rights of creatures that speak and reason; and the rights of social as well as political creatures. A further distinction emerges when the nature of the transcendental exchange is more closely examined. There is a negative reciprocity, an exchange of renunciations, which leads to negative rights to freedom, and a positive reciprocity, an exchange of services and provisions, which establishes the positive rights to freedom, that is social rights. Finally, there is the reciprocity of political authorisation that manifests itself in the democratic rights to participation. Yet, while the first two groups of rights are already part of the original legal contract, the third group is not established until the conclusion of the original state contract. Without pretending to be comprehensive in any way or form, we shall only deal with human rights that are as such essentially uncontested. By appealing to transcendental and anthropological interests as well as to an inherent reciprocity, we avoid conceptions of humanity that are culture-relative, so that the corresponding rights can bear out their claim to intercultural validity. Incidentally, the counterassertion that rights are valid only relative to cultures is sometimes only used for strategic purposes: governments that are authoritarian or semi-authoritarian want to thus escape criticism. But even if the counter-claim is not purely strategic in nature, its substantiation, which is based on ostensibly competing Asian or African values, can usually be rebutted from within that culture. For example, it is claimed that Confucianism does not contain an abstract notion of ‘human being’ but only the disparity of roles and tasks, so that it fails

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to identify human beings as bearers of human rights. However, as is postulated by Confucianism’s second most important classic, Mencius (about 400 BC), “each and every human” possesses an innate dignity (On Becoming Human, 95). Since dignity is derived from the moral nature that people are awarded from ‘heaven’, rulers can neither accord nor withhold it. Legitimate rule, by contrast, is bound to respect this dignity. Hence, Mencius not only establishes a normatively demanding foundation of human rights, he also clearly distinguishes heaven’s original granting of human dignity from a mere subsidiary granting through human rule. Neither can the idea of human rights be relativised through African culture. Some African or European intellectuals worry that Africa’s characteristic emphasis on solidarity undermines the basis of human rights, that is, the individual personality of human beings (Höffe 1999a, 43). The African social ethicist Bujo (1993) however, emphatically rejects this interpretation. Already the naming of many African tribes, so Bujo tells us, reflects an appreciation of individuality: the usual western family name that is handed down from father to son – or more generally, from parents to children – is dropped. Instead, each child has only one individual name, which is determined by the circumstances under which the child is born, and thus designates “the historically irreproducible singularity of each individual”. Such examples allow us to reject the popular but unjustified assumption that the Western hemisphere is the only trustee of human rights (Rouland 1994). At any rate, this assumption is inconsistent with criminal law, which protects in nearly all cultures particular rights to human dignity, namely the right to life and health, to property and to a good name. Further building blocks of human rights can be discovered in the critique of unjust rule that reaches back into early history. In the epic of Gilgamesh (approx. 2,000 BC in its oldest version) for example, the protagonist, the great king of Uruk, is summoned to not abuse his position of power and to treat his servants justly. In the sixteenth century BC national Indian epic Mahabharata, rulers are required to protect their people by all means possible. Particularly impressive are the tribes of the Mohawk Indians which, already in the fifteenth century and, hence, three hundred years before the first Western declaration of human rights, announced that all members of their tribes should be personally free and equal in their privileges and rights (Morgan 1851). Also, against the danger of religious intolerance, Islam should be reminded of Sura 2:257: “there is no compulsion in religion”. In the face of such overwhelming evidence it is possible to make a generalisation that includes at least the rudiments of human rights in the common heritage of human justice. However, whoever follows Renteln’s (1990) attempt at substantiating human rights solely on the grounds of a factual value consensus between cultures runs the risk of reducing the argument too much (for a substantive defence of Western universalism, see Tönnies 1997). The arrogance of the West, which claims that human rights were created in the western hemisphere, is unjustified. But the exact opposite is just as wrong, that is the self-criticism that sees human rights challenged by pathologies that allegedly only occur in the West. Without a doubt, human rights declarations are often born out of necessity. However, poverty, massive injustices such as slavery, colonialism, religious and other suppression, can also be found outside the Western hemisphere and its modernity.

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3.3 NEGATIVE RIGHTS TO FREEDOM

Let us begin with negative exchange, the reciprocity of basic renunciations. 3.3.1 Integrity of Life and Limb A clear example of a transcendental interest is the integrity of life and limb. Of course, extreme situations illustrate that, contrary to Hobbes’ assumption, this is no dominant interest. One can indeed, as a religious or political martyr, sacrifice one’s life or one can terminate it out of weariness. Even so, life is special in that without it one is neither able to have any desires at all nor to fulfil them. Both, the martyr and the suicide confirm that here lies an uncompromising condition, that one be able to act freely. Martyrs wish to decide on their own why, suicidal individuals, in addition, wish to decide when and how their respective lives are to end; otherwise they are simply killed. Two general empirical conditions place every human being in danger of falling prey to the physical force used by others. On the one hand, in a world where space and resources are limited, one cannot forever avoid conflict with others. Likewise, during conflict human beings may use violence against, and be injured by, others. As such, there exists a basic equality or equal distribution: human beings are potential victims as well as potential perpetrators. Since it is not bound to particular cultures and eras, the danger of physical force and violence is part of the conditio humana socialis which, contrary to the ‘utopian’ assumptions of some social theorists, cannot be genuinely overcome. In view of the general danger of physical violence the question arises whether one prefers to maintain one’s full freedom to act and thereby be both the perpetrator and the victim, or rather to relinquish the right to full (private) force and, consequently avoid being either the victim or the perpetrator. According to the first principle of justice, the qualified rule-based order, the question is addressed with the help of a rule, that is with a rule-based ‘both . . . and’ or a rule-based ‘neither . . . nor’. Although both options are characterised by reciprocity, because of their transcendental interest in life and limb, everybody prefers the ‘neither . . . nor’ over the ‘both . . . and’ reciprocity. One thus abandons the full – or better, wild – freedom to act so as to obtain in return a conditional freedom to act, as well as protection of life and limb. Here the transcendental exchange manifests itself as a transcendental exchange of freedom. Freedom is constrained for the sake of freedom, and from an unbound freedom (licentia), and its threat of cruelty, evolves a freedom that is bound and secured at the same time (libertas). As argued earlier, not every exchange is just; rather, only those exchanges in which no one is being cheated because (subjectively) they have agreed to it and (objectively) goods of roughly equal worth are exchanged (ch. 2.5). In the case of the transcendental exchange of freedom both criteria are met, so that no one can reasonably fail to agree to the conditions set to one’s capacity to act. What is more, because everyone renounces the same (wild freedom) and, in exchange, gains the same (freedom that is bound but also secured), that which is exchanged is roughly of equal worth and, consequently just.

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Doubts may arise however, because whenever men use physical force and are violent against one another, the ‘both . . . and’ rule has clearly been preferred to the ‘neither . . . nor’ rule. It could therefore be asserted that the transcendental exchange is thus invalidated. This objection misses the point that a choice has to be made between (alternative) rules. The act of violence already presupposes a capacity to act which, in turn, is owed to the neither-victim-nor-perpetrator situation. Only those who have initially not fallen prey to physical violence develop the capacity to act that allows them the infrequent violation. The violation thus deviates from a presupposed rule and contradicts the first principle of justice, rule-based order. Hohfeld (1966, 35) distinguishes between four categories of rights: the first category is composed of claims and liberties; the second category consists in powers, which allow one to alter claims and liberties (for example by giving them away), as in immunities, that is, protection from another’s claims and liberties. Our first human right combines three of these rights; it consists in the claim to have one’s freedom (to act) protected from alien force and violence (including cruelty). In line with the character of the transcendental, however, the claim cannot be relinquished so that the third type of right, the power to alter claims, is dropped. Still, even an indispensable interest does not yet justify a claim. For according to the ‘is-ought’ fallacy’s formal logic, a mere interest does not substantiate the right to have it acknowledged. Rather, the missing legitimacy consists in the minimal morality of reciprocity. It assumes that only where others accept the obligation to abstain from force and violence does the subjective right to life and limb actually exist. A claim to a provision is generally valid when, from the outset, the provision is offered subject to a return provision. Claims are substantiated in reciprocity, and universal claims are substantiated through the universal reciprocity that is characteristic of humans simply because they are human. Whenever an indispensable interest can be realised only in reciprocity, the indispensability is transferred to the reciprocity, and the corresponding exchange – which in the case of life and limb consists of the renouncement of violent force – is in itself indispensable. Lévinas (1987, 173–87) seeks to explain human rights from the perspective of the Other. Whenever the Other turns an open and defenceless face towards us, so Lévinas asserts, it is to signify: ‘you will not kill me’. This line of argument is – if it is more than an intuition – excessively abridged. For, indeed, when faced with another’s countenance, this other’s dignity can manifest itself rather palpably. The possibility is only realised, however, if there exists a willingness to recognise that dignity in the first place. Conversely, this readiness represents a moral deed that Lévinas ignores. He is similarly oblivious to the question of why one should be allowed to demand such moral provision at all, which is what the concept of the legal claim implies. Not simply because every human has a higher-order interest in life and limb does the corresponding human right exist, but because this interest can be realised only in reciprocity: within a ‘system of reciprocity’ everyone enjoys that provision of others (renouncing force and violence) which is only given subject to the return provision of one’s own renouncing force and violence. Since that which is exchanged is of

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equal worth, the exchange follows the principle of just exchange and is, consequently, fundamentally just. In keeping with the argument of the transcendental exchange, human rights and human obligations do not fall out of the blue, nor do they then compel us to recognise them reciprocally. Neither is it the case that they are valid for the mere reason that they comprise the basic consensus of liberal democracies, or that they prove to be the solution to the problems of pre-liberal polities. Rather, in a way that everyone should be able to approve they succeed in overcoming the conditio humana socialis mentioned earlier, that is, the possibility of being both the victim and the perpetrator. A second content of the original legal contract has thus been found: the law-constituting content, the qualified rule-based order, is now succeeded by a lawstandardising content. In its preliminary wording, the second principle of justice demands that, if threatened, the protection of life and limb be assured through a reciprocal abandonment of force and violence. 3.3.2 Freedom of Speech and Religion ‘Actions’ is the name given to processes that are neither reflexive nor instinctive but voluntary in nature and dependent upon the capacity to reason and speak. Even were we to discover a non-human species capable of ‘acting’, it would still require the capacity to reason and speak. An assessment analogous to the first human right applies to this second (transcendental–)anthropological definition. The capacity to reason and speak is, for the essentially practical purpose here, understood in the wider sense: that common interests are not merely given but that they are nurtured predominantly through reflection and by way of thinking and communicating with each other. This reflexive and communicative (and in the case of debates on core issues even discursive) approach allows humans to sharpen their understanding of the goals of their desires as well as the means to their realisation, but also of the corresponding opinions about themselves, the social and the natural world. Within the limits of the capacity to reason and speak, even religions and, in a different way, the media have a role to play. Objectives and means may turn out to diverge significantly from each other but since they presuppose the capacity to reason and speak, there is a transcendental interest of a higher order above them. Everyone has an interest to reason and to speak with one another so as to develop action-related opinions in a way that enables us to cultivate and pursue our interests. In order to do so, a fully developed capacity to reason and speak is apparently not necessary, though a minimum capacity undoubtedly is. The negative transcendental exchange that it requires further expands the abandonment of force and violence. The right to freedom of expression (including the freedom of conscience, science, religion, arts and media) is only made possible when everyone refrains from hindering other people’s opinions (including their religious convictions). It is this right that enables the flourishing, if not the existence, of the intentional nature of the human capacity to act. In analogy to the integrity of life and limb, this state of affairs is best referred to as the protection of the capacity to reason and speak, and as a logical

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and communicative protection one can distinguish it from the common biological and physical integrity. The human right to freedom from the physical force and violence of others corresponds, once again, to the human obligation to refrain from using force on one’s own part. From this renunciation a positive provision also arises, the logical and communicative integrity without which one would have no interest in the exchange. Finally, everyone obtains and gives equally so that the exchange is once again fundamentally just. Expounding transcendental interests by means of the life and limb example has been contested by advocates of Apel’s discourse theory on the grounds that priority should be given to another interest: that of understanding (Kettner 1997). However, this priority of interests can be refuted inasmuch as the capacity to act cannot dispense with the attribute of bodily existence, speech or reason. The philosophical tradition quite rightly combines both designations, speaking of a zôon logon echon or animal rationale (rational animal): human bodily existence is endowed with the capacity to speak, and the capacity to speak is, in turn, dependent upon the bodily existence of human beings. Since both are interlocked – that is, human action is both bodily in nature and proceeds as language – it does not make much sense to try to determine which feature is prior to which. If anything, it is life and bodily existence that would be of primary concern since a poor capacity to speak can be made up and compensated for later, whereas a life once destroyed, remains irrevocably extinguished. 3.3.3 The Criterion of Freedom Rights The criterion is traced back to Kant’s The Doctrine of Right, to § B in his ‘Introduction to the Doctrine of Right’ (for an interpretation see Höffe 1999b, ch. 3) and to the section entitled ‘There is only one innate right’. Aimed against lawless freedom, it demands the greatest amount of freedom to act that complies with a universal law but is also compatible with the same amount of freedom for all others. This represents the extended second principle of justice, the principle of the greatest equal negative freedom: through the reciprocal abandonment of freedom rights, each subject acquires that same maximum amount of freedom to act which, according to the first principle of justice, is feasible with universally valid rules. This principle allows us to delineate the first group of human rights. They are defensive in nature, though not as understood by conventional state theory. They curtail private, not public violence, which does not yet exist in the original legal contract. Human beings themselves grant one another human rights and recognise each other as free and equal subjects. After all, they owe their status as legal subjects not to governments, courts, bureaucracies, and not even to parliaments, but only to themselves. They mutually constitute one another as legal subjects, whereby author and addressee form the same basic unit. In keeping with the correlation between human rights and human obligations, humans grant one another freedom rights by reciprocally relinquishing wild freedom. Seen from a theoretical legitimatory perspective, a state is capable of no more than guaranteeing the rights to freedom (see ch. 4.3).

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The elementary conditions of the capacity to act can be further spelled out. We thereby obtain a more or less comprehensive list, a catalogue of freedom rights. Only a portion of that list will be explicitly mentioned here – namely, those rights to freedom that, as far as property and the economy are concerned, play a dominant role in the globalisation process (see ch. 15). The criterion remains the second principle of justice: as far as the economic order is concerned, human rights especially disallow slavery, including serfdom and forced labour. They allow one, conversely, to obtain and use goods at one’s own discretion, in other words: the right to private property. No precise property order can, however, be obtained from the concept of human rights. Nevertheless, as a condition of the capacity to act, the concept does demand that property be allowed and protected and that theft, robbery, and arbitrary dispossession without compensation be prohibited. The second and factual part of the property law, the prohibition of theft, can be explicated once more with the example of a Robin Hood who, in order to comply with the strict rule-based order of the law, assumes the role of legislator and establishes a law that is kind to the poor. To start with, he will have to recognise the first part of the property law: the right to property. He can then help the poor gain access to property, either directly or through better education, and raise taxes to finance a system of social security. Yet, since the law that he creates entails not power-based commands but social rules that apply to all, no matter whether rich or poor, he can tolerate neither theft nor robbery. Some of the rights elucidated in detail here are dependent on history and culture. Still, they do not constitute a valid endorsement of a radical criticism of the Enlightenment (MacIntyre 1985, ch. 5) or a radical cultural relativism that encompasses even human rights, as advocated by Herskovits (1947) and Rorty (1993, 116). The assumption that rights apply to humans as such but that they are valid only within the realm of certain cultures may, on the face of it, appear paradoxical. The incongruity is dissolved however, if the discourse on culture-relative human rights is understood as an abbreviation for the fact that a universal human right can indeed have a specific culture-dependent area of application. For in the case of human rights one needs to distinguish between the descriptive conditions of application and the normative legal concept and, within the conditions of application, between a core that is valid independent of culture and the particularities that are culture-dependent. Culture-dependent human rights particularise universal human rights, namely the two basic freedoms of physical as well as logical and communicative integrity that, in turn, are to be applied culture-specifically. For instance, the freedom of the press presupposes, rather trivially, a press, which, in turn, assumes the corresponding technical and social provisions. The protection of data presumes the existence of data files. There exists a culture-independent ‘superior right’ (Oberrecht) as well as precursors for both rights. The freedom of the press, for example, specifies something that has been in existence for a long time: a freedom of speech that includes the right to criticise rulers. Other cases are more difficult to assess from a legitimatory perspective. The Western understanding of human dignity, for example, does not tolerate polygamy,

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because it violates, as polygyny, the dignity of woman and, as polyandry, that of men. In fact, an entirely fair and equal treatment transpires only in monogamy. Situations may exist, however, where the insistence on monogamy may curtail one’s dignity even more, for example if divorcing a woman violates her self-respect more than accepting a second woman in the household would. Worse, the divorced woman may even see herself forced into prostitution (Bujo 1998, 39). Not insisting on monogamy does not necessarily lead to doubts about its status as a human right. Rather, a difficult weighing of goods aims to identify the lesser interference with human rights – and reserves the freedom to demand the improved situations that occasion no curtailment of human dignity. 3.4 POSITIVE RIGHTS TO FREEDOM: SOCIAL RIGHTS

Renouncing violent force alone does not make possible the capacity to act. In order to live and to develop the capacity to speak and reason, positive provisions are required, which consist partly of goods and services, partly of offices and opportunities. Due to their social nature, people are capable of, and in need of, these positive provisions. As a demarcation from the capacity to endanger one another, it is more accurately referred to as a positive (or cooperative) social nature and is distinct from a destructive (or adversarial, violent) social nature. Both the quantity and quality of the testimony in favour of a positive social nature is overwhelming: without parental cooperation, one is neither conceived nor born. As a newborn, one needs considerable help and cannot survive without the help of one’s parents. This remains the case long after an animal would have learned to cater to its needs on its own. As one grows up to become an individual responsible for oneself, one settles down within a particular society and its respective traditions and values. Yet, one also needs to be recognised by one’s equals, recognition the latter of which is so precious a good that it has to be fought for throughout one’s life. Alleviating the burden of work through the division of labour is also part of the social nature, as well as friendship and love, as elements, leading to higher levels of human self-realisation. Last but not least, in old age, one is usually once again in need of help and becomes dependent on the young. Some treat the demands aimed at this multifaceted social nature rather generously. Without any prior conceptual demarcation, they formulate extensive lists of social rights from obligations of solidarity and philanthropy or even a subsequent assessment of their legitimatory basis. This lack of a proper basis cannot be solved by the frequent, even inflationary appeal to social justice in politics. For unlike other concepts of justice – such as justice in exchange, distributive justice, compensatory justice, or procedural justice – social justice is a rather recent term that has yet to develop a convincing justification. Due to its origin in Christian social ethics, the term runs the risk anyhow of being stretched too far towards some notion of Christian charity, or at least towards a solidarity inspired by Christian thought. Even the maxim of an equal right to communicative freedom that has recently been put forward is nothing more than a declaration of intent in political philosophy that

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still requires a legal–ethical justification. A similar assessment applies to Habermas who, in Between Facts and Norms (ch. III 3), speaks of communicative freedom and attaches to it an obligation, but fails to specify either its grounds or its scope. The yet unspecified justification for social rights can be derived from their significance for the capacity to act. For this very reason social rights follow almost seamlessly upon negative freedom rights (I hereby proceed beyond an earlier attempt; see Höffe 1996, ch. 9). Social rights have, as far as they are relevant to the function of freedom, no lesser importance from a human rights perspective than negative freedom rights. They appear to have priority because they are relevant even to ‘subjects resistant to cooperation’, such as the austere hermit. For even those who reject all forms of cooperation want to be safe from the force and violence of others. Negative freedom rights are, as such, indifferent to cooperation; positive freedom rights, by contrast, are dependent on cooperation. However, a behaviour resistant to cooperation is available only to those who have already benefited for some time from elementary social rights, such as the right to food, clothing and education. If people are to have dignity within a general framework of social rights, they must be legitimised as part of the original legal contract, before the political community, the polity, is created. Once more, legal subjects have to grant these rights to one another; the community accepts responsibility only secondarily and subsidiarily. Of course, the label ‘positive’ freedom rights already indicates that they are fundamentally different from ‘negative’ freedom rights in another respect: first, what matters is no longer negative provisions or giving something up but, rather, positive provisions that make food, clothing, shelter, health and education available, to mention but a few particulars. Of course, people’s desires extend beyond these provisions, including recognition and protection. Yet, these are difficult to satisfy through enforceable rights. As rights of provision, positive freedom rights are subjected to a problem that defensive rights do not have: scarcity. Contrarily to what is said by Rawls (1971, § 22) and Hume (to whom Rawls refers), scarcity is not a condition of application of justice. This first disparity leads to a second: while negative freedom rights can be claimed in all circumstances, even in situations of scarcity, this is not possible for social rights. With the exception of self-defence, it is always the case that those who kill violate a human right. By contrast, letting somebody starve or freeze to death because the necessary food or clothing cannot be provided does not necessarily constitute a violation of a human right. The second difference indicates a third. Positive provisions are essentially comparative in nature: they exist ‘more-or-less’, the further specification of which has to be guided by a society’s necessities and its available resources. Social rights are dependent on culture as well as resources. In cold geographical areas, for instance, the need for warm clothing and shelter is greater than in warm areas. Similarly, what human rights may stipulate as a requirement for physically or intellectually demanding work – for instance the “the right to rest and leisure, including [. . .] periodic holidays with pay” as stipulated in Article 24 of the Universal Declaration of Human Rights – is hardly called for in a line of work that already contains elements of rest and leisure. In the same vein, in cultures that lack a written language, or in those where one has

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just appeared, the requirement for writing skills is non-existent or minimal, so that alphabetisation cannot constitute a culture-independent metric that would indicate the extent to which human rights are recognised. In highly specialised and complex societies, by contrast, much more than the basic writing and reading skills are required: instead, a long and specialised education is indispensable for adequate opportunities in life. All of these areas – from food and clothing to health, work and education – are characterised by a continuum that is, at one end, delimited by plain survival and, at the other, by a thoroughly good and enjoyable life. Due to this relative nature there are plenty of shades of grey in between, where the transition from (mere) existence to the good life is rather fluid. Social rights are therefore not as well differentiated as the rights related to the use of violent force. Positive rights to freedom leave some scope and leeway, which polities may fill out to varying degrees as partial substantiation of the ‘right to be different’ (see chs. 4.4 and 10.1). Some polities may settle for provisions that allow for nothing more than mere existence, while others embrace much more of the good life. Justice does not set a clear limit, but opening up too much towards the good life means that the area of that which is owed is gradually left behind in favour of solidarity or even benevolence and philanthropy. What is more, some facets of the social are completely beyond the reach of moral claims: no one has a claim to friendship, even under a generous interpretation of the meaning of social morality. There is no such thing as an owed obligation to be someone’s friend, and neither does the community have either the duty to assign a friend or the right to redistribute from those that are rich in friends to those that lack them. As indicated earlier, in certain societal circumstances the right to education can have the rank of a human right. Also, where the means to subsistence have to be secured through labour, which also determines the degree of self-esteem and recognition and contributes to one’s personal development, a right to work is not farfetched. However, it may collide with a negative freedom right, that of the freedom to choose one’s profession and career. There also remains the problem of resource scarcity: jobs can become scarce for cyclical or even structural reasons. Last but not least there are also personal preconditions, such as qualification requirements and the willingness to work and cooperate. Personal preconditions are significant in other areas as well: talents and effort are important for education, just as the willingness to save (i.e. to refrain from consumption) may be for material resources. Which leads to a fourth distinction: positive rights to freedom are more than just ‘pipe-dreams’ or ‘cheerful promises’, but they are less than enforceable individual rights. They are more akin to programmatic goals, the implementation of which in societal reality requires some complex assessments. In addition, these may be highly contested in the political realm either because of the considerable interpretative scope of social rights or because of different assessments that are made about the economic laws and their respective constraints (see chs. 3.4 and 3.6). There is a fifth particularity: the provisions mentioned do not have to be provided by all human beings. As soon as one individual refuses to refrain from force and violence against another, life and limb of the latter are eo ipso put into question.

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By no means must the renouncement of violence be confined to ‘friends and family’. When someone refuses to provide the mentioned provisions, by contrast, others can usually contribute. It does not follow, however, that, as is sometimes feared, social rights are obscure or that they represent nothing more than rhetorical manifest-rights. Since the provisions do not have to be made by everyone, the follow-up question arises as to who should bear the obligation to make them. This can be answered, as the sixth distinction, by reference to ‘natural providers’ (natürliche Leistungserbringer). For only if one helps the needy without being to blame for their misery does one act out of charity. If one is partially to blame for the misery, however, one bears a responsibility to provide compensatory (corrective) justice. Parents, for instance, are primarily responsible for their children because they brought them into this world as needy beings and without their consent (for further aspects of corrective justice, see ch. 5). Despite their many differences, positive and negative freedom rights agree with respect to their legitimating pattern, the transcendental exchange. Certain provisions are so elementary that they are indispensable, partly for bare survival, partly for one’s capacity to act. As the provisions are supplied asymmetrically from those able to help to those that are in need of help, the principle of reciprocity seems to be missing. This changes, however, once phase-delays are taken into account: children can ‘make up for’ the help they receive through the help they afford, at the appropriate time, to their then older and possibly frail parents. The fact that some human beings, such as the mentally incapacitated, are not capable of compensating in such a way will be addressed at a later stage (ch. 3.4, also, 4.4). Although positive freedom rights rely on exchange theory, it is itself an insufficient legitimation. Even as far as legitimation is concerned, positive freedom rights turn out to be more complex than negative rights, a fact that helps to elucidate the lack of proper justification. The provisions that are to be exchanged have a prerequisite that is due neither to an exchange nor to any other human provision. The ultimate origin of all labour that in itself is no product of any prior effort is simply given: our planet, together with its natural resources, plants, animals, sky, soil and water. Now, both territory and resources are scarce, which results in a primordial responsibility for distribution that calls for a third type of justice: justice in exchange and compensatory justice is now supplemented by distributive justice. In passing, let it be noted that for a just property order, all three types of justice have a role to play and that justice in exchange entails both negative and positive freedom. All theories of property are therefore inadmissibly simplistic if they fail to consider at least four principles of justice: the negative and the positive right to property, the obligation to compensate for past wrongs, and a primordial distributive justice. The third law-standardising principle of justice, the principle of comparative positive freedom, evades a simple definition. It reads: (a) Through reciprocal positive provisions each legal subject is to obtain an elementary positive capacity to act, which can be presented as certain positive rights to freedom.

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(b) In so doing, the rule-based order as the first principle of justice is acknowledged: only those positive rights to freedom are just that can be realised according to universally valid rules. (c) The second principle has priority over the third: only those positive rights to freedom are just that are compatible with the principle of the greatest equal negative liberty. (d) The provisions of positive rights to freedom are dependent upon culture and resources and are comparative in nature. (e) The third principle of justice is not substantiated via a justification that is exclusively based either on exchange, corrective justice, or distributive justice. For the positive freedom rights too, the factual responsibility lies with the individuals affected, the legal subjects, while the community bears responsibility only in a subsidiary manner. The community will require those primarily responsible, the natural providers, to supply necessary provisions and only when this is not possible will the community itself provide those necessities. If, however, the polity becomes immediately active, then the rights and duties of both those directly responsible and those not responsible, are violated. Because of the very fact that they are not responsible, the latter are in no way obliged to adhere to principles of justice. The question as to whether collective social rights, too, can exist will be dealt with later (ch. 14.2). 3.5 PROTO-JUSTICE

The law is not a natural phenomenon but has to be created. This happens, so the original legal contract shows, through the mutual advantage of which everyone has made use when exercising their capacity to act. The fact that the law is one form of the shared life that everyone reasonably desires can undoubtedly be considered a justification. Before a universal moral precept of the rule of law can be considered justified, however, two further questions need to be addressed: first, who will be part of the group of ‘equals’, that is of those whose consent and advantage matters; and second, why should there be a capacity to act in coexistence (with this dual question I go beyond previous deliberations). The first question deals with the important matter of who should have the right to become a partner in the legal contract. Since the ‘original’ legal contract has to legitimise the law from scratch, no pre-selection must take place that would allow some people but disallow others. Rather, everyone is to be accepted provided two conditions relevant to the original legal contract are met: the capacity to act and a threat to it from others. It is also possible to directly refer to the legal act itself, in which case everyone who is capable and in need of a legal act matters. So, it follows, one has legal capacity if one is able to provide the negative and positive rights to freedom, and, one has legal need if one is dependent on the corresponding provisions made by others. The question as to whom this twin condition should apply is relevant in two ways: do non-human animals matter? Furthermore, do all human beings matter? According to Rorty’s (1993, 116) radical cultural relativism, humans and animals are not distinct

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from each other in principle but solely on the grounds of contingent cultural facts. In this view, even animals are to be included as contractual parties; and where this is not the case, it would be necessary to claim that a type of racism, ‘speciesism’, is being committed. Truthfully, however, as far as both the mutual renunciations of force and violence as well as the reciprocal provisions are concerned, there is more than a mere cultural difference. An animal may become a victim of violence and may be able to either supply or deny certain provisions. However, refraining from violence and positive provisions are not products of the animal’s capacity to act or to enter a legal transaction. Rather, they occur either instinctively, through training, because of an emotional attachment, or because of a combination of these factors. For all we currently know, animals lack the capacity to be the explicit initiators of their own actions, a trait that would allow us to consider them accountable. This fundamental accountability, however, is where the legally relevant capacity to act, legal–practical subjectivity, rests. This accountability is at best rudimentary in animals. One can be subjected to rules only if one is accountable and can be held responsible for their violation, both to oneself, in the form of remorse and developed (i.e. not merely rudimentary) feelings of shame and guilt, and to others in the form of blame and, possibly, contempt and retribution. Then again, if animals are found that indeed claim more than a merely rudimentary accountability, then they ought, of course, to be considered legal subjects. When significant elements of accountability are present, it is advisable to consider granting them some rudimentary legal status. What is by all means inadmissible, however, is a species-egoism, one defined according to purely biological attributes. It is the legally relevant attribute of accountability that matters, and not simply the attributes of a biological species. From a lack of accountability does not follow, however, that animals are outside of the law and at the mercy of a legitimate human arbitrariness. In fact, justice-based arguments even suggest that the protection of animals is morally required (see Höffe 42000, ch. 13). The criterion of accountability can be challenged on the grounds that it is unduly harsh because it also excludes infants and the mentally incapacitated from the group of legal subjects. However, children lack accountability only temporarily, not indefinitely, which is accounted for in the phase-delayed exchange mentioned earlier. The assessment is different for the mentally incapacitated who will, even with the greatest amount of help, never become accountable. If the fundamental lack of accountability had the final say, then the disabled would still be no more deprived of legal protection than animals. However, the difference between animals and humans would then not have been taken into account, and the legal protection of the disabled would have no more significance than that granted to animals. It seems quite rightly implausible, if not morally repugnant, to us that the disabled receive no better protection than animals. The reason, however, is not to be found in some sort of species-based arrogance, as Singer (1995, ch. 3) expeditiously claims. The notion of compensatory justice that was appealed to earlier already suggested an argument that operates independently of species-egoism: because children are born into this world with our full knowledge of their neediness and without their consent,

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they hold a claim for assistance that is usually temporary but which may be prolonged in the case of the disabled. Should the assistance exceed the abilities of the parents then the duty of solidarity comes into force for the larger group. A violation of the duty to help the mentally disabled may be forgivable in cases of extreme scarcity, but it would remain a violation nonetheless of not only a meritorious supererogation, compassion or philanthropy, but against the morality we owe to one another and, as such, against justice. Even in the ‘normal case’ of persons who are accountable, accountability as such is not a sufficient precondition. This follows because the capacity has not only to be formed, but must also be realised in practical action. The realisation, on the other hand, cannot be achieved by others in one’s stead. The legal subject in question must do it: a genuinely personal provision is required. Mental disability aside, two types of obstacles arise that correspond to two stages of accountability: on the one hand, accountability can exist in principle but may be realisable only in part due to the effects of anger, drunkenness or drugs. In extreme cases it may not be realisable at all. As a counterweight to such subject-internal obstacles, some well-known character dispositions are required: self-control, or better, prudence, can overcome the internal, passion-fuelled threats to one’s accountability. The subject-internal impediments exist within the framework of already established legal relations, and differ from the task of realising accountability even where the original constitution of legal relations is most essential. The personal provision required in the original contract is therefore more fundamental than self-control or prudence, and even more fundamental than the (mutual) provisions in the original legal contract; it constitutes an advance provision. The advance provision, however, is jeopardised by social obstacles that are external to the subject: by the possibility that others might refuse to acknowledge someone as a legal subject. In such cases, one asserts oneself as a potential legal subject by in turn opposing that opposition. It is also possible, of course, to capitulate to that opposition, which is a likely scenario whenever human beings would otherwise endanger their own lives, be it a life of bare survival or the pleasant and good life. If the intention is to assert oneself even in circumstances such as these, a much more stringent self-control is required: one has to master not only one’s passions but also one’s natural interest in life, including the good and pleasant life. The established theories of law and justice ignore the need for such an advance provision. One exception is Kant whose remark in The Doctrine of Right (VI 236/392; on the elementary duties in Roman law see ch. 7.2) is, nonetheless, rather short, if not cryptic. Since even scholars with Kantian leanings (see, for example, Kersting 1993, ch. A.V; Pippin 1999) have not yet sufficiently elucidated its systematic content, a detour into Kantian thought that admittedly goes beyond mere textual exegesis seems here in order. Already in early modernity the idea of self-assertion played a prominent role. It is, however, usually defined in empirical and pragmatic terms: content-wise as the assertion of oneself as a being, that is as physical self-preservation, and, in respect of the type of claim, as the (natural) law (for example Hobbes, Leviathan, ch. 14;

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Pufendorf, On the Law of Nature and Nations, 1672, § 7). Kant sets himself apart from both sides. As part of an original interpretation of the (pseudo-)Ulpian legal maxim of honeste vive (‘be a lawful person’), he introduces a new type of self-assertion that is no longer physical but legal–moral in nature. This is not to be understood as a natural law but as a legal–moral obligation, so that the second question, which is about the capacity to act in coexistence, has an impact on the first, which asks who should be an ‘equal’ (for an interpretation of all three legal maxims, see also ch. 7.2). The legal honourableness (honestas iuridica) of the honeste vive is usually understood as legal integrity: legally, one has done nothing wrong. In contrast to this, Kant points to a more profound element, one that has the rank of an original legal honourableness. Not content with the mere abandonment of violations against the law, it demands more than conformity with the law or juridical legality. This extra facet, however, is not to be confused with the move from (juridical) legality to (juridical) morality usually known from Kant’s work. Rather, a third aspect, which is usually not recognised in Kant’s moral philosophy and thus easily overlooked by Kantian scholars, is what is of paramount importance. In a primordial sense, one is legally honourable if one constitutes oneself as a legal subject in the first place. To do so one has to reject any attempt by others to degrade one to a mere means, that is to something that others manipulate as they see fit. One has to object to such degradation and reification by others not only verbally but also actively. An objection alone, however, is insufficient, for subjects too can reify and degrade themselves by denying that they are the authors of their own actions. In order to become a legal subject, one not only needs to be recognised by others as such, but also by oneself. One needs to stand by one’s legally good (lawful) as well as bad (unlawful) actions to be able to assign accountability to oneself – not only verbally but also through the way one leads one’s life. Only if one accepts the fundamental alternative to act either against or in accordance with the law, does one fulfil the necessary condition for becoming a legal subject who can be held legally responsible for everything one does. Hence, the original legal contract requires two advance provisions: an original legal honourableness that is directed towards others and an equally original accountability that is directed towards oneself as legal subject. Both provisions taken together constitute the original legal self-assertion. Even Kant acknowledged the significance of legal honourableness rather late in his work. In his “Preparations for the Doctrine of Virtue” (XXIII 386) and in his lectures on the metaphysics of morals in the winter of 1793/94 (postscript Vigilantius) – hence, only three years before the publication of The Doctrine of Right and nearly a decade after the Grounding for the Metaphysics of Morals – he still considers the honeste vive maxim to constitute ‘the principle of morals’ that contains all ethical duties and “is, consequently, separate from legal duties” (XXVII 527). This categorisation not to legal ethics but to virtue ethics is later corrected in The Doctrine of Right, though not with a complete reversal but rather with a differentiation: here, Kant distinguished the honestas interna (VI 420/545) from the honestas iuridica and assigned virtue ethics to the former and legal ethics to the latter (VI 236/392). According to the first, ethical honourableness, one must as a person not act against

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humanity or be reified into a mere means; in contrast, according to the second, legal honourableness, self-degradation and reification are prohibited only in relation to others (VI 236/392). Although Kant does not give any examples of a legally relevant self-reification, it can be assumed that the original legal honourableness is violated if one resigns to a state of lawlessness such as slavery and serfdom. The original willingness to be accountable, by contrast, is violated if one surrenders to an attitude of passivity, which corresponds to a desire for an all-encompassing welfare and reminds us of the ‘all victims, no perpetrators’ idiom, or if one severely constrains one’s capacity to act through addiction. Slavery is, from the perspective of honourableness, objectionable not due to some interest (one does not want to become a slave, a serf or an addict) but because of a duty (one must not allow oneself to be made a slave). This is, of course, a peculiar, morally unusual duty. The usual legal obligations are both external and are duties towards others. Legal self-assertion, in turn, is internally required and is also a duty to oneself, so it appears to belong more in virtue ethics. However, it actually belongs in the law, but not as a part of it, but as a law-constituting advance provision. Only for that reason can it unsystematically be counted among the usual legal duties, a singular phenomenon that exists both against itself and as an inner duty. One’s duty to recognise oneself as a legal subject constitutes the beginning of legal ethics in two respects: in the sense of a legal honourableness against others and in the sense of original accountability to oneself. This dual self-recognition in itself, however, is not the end of the story. Legal subjectivity needs to be supplemented by subjectivity between legal subjects; original self-recognition needs to be supplemented by the original recognition of others. Everyone must recognise everyone else as a contractual partner, a subject in the original contract and who gives consent and allows for reciprocal provisions. What is more, because everyone has to provide equally, reciprocity is once more essential. Without the additional recognition by others, one’s self-recognition stumbles upon the other’s resistance, which leads to an incongruous alternative: one can either stay true to one’s legal self-assertion and refuse to be degraded to a mere means and, in the case of fierce resistance, risk one’s own life; or one opts for life and does so at the cost of one’s legal self-assertion. In the latter case, one directly renounces one’s status as a legal subject (of equal status), whereas in the former this happens indirectly, for those who lose their lives in the process of self-assertion were only potential legal subjects. In practice, they cease to be legal subjects, or do not enter into a life of equality at all. However, subjectivity between legal subjects alone is just as insufficient. Those who are only recognised by others as legal subjects, without recognising themselves as such, undoubtedly have rights, but are not accountable initiators of their actions (Taten) nor culpable perpetrators of their wrongs (Untaten), which is part of what being a legal subject is. Kant at least hints at recognition by others. According to his (once again original) interpretation of the Ulpian maxim neminem laede, no one must be harmed, even if this requires giving up relationships with everyone else (The Doctrine of Right, VI

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236/392). The reference to recognition by others is discernible in so far as Kant here interprets unlawfulness as violating the law or impeding freedom according to universal laws (§ D, VI 231/387). Along with the strict prohibition of any wrongdoing, Kant also demands strict adherence to the law. Yet, the law is recognised only where everyone’s liberty is treated according to universal laws, as equal legal subjects. The question might be asked whether the two advance provisions fulfil, or instead abrogate our criterion of the distributive–collective advantage. Legal self-assertion is certainly advantageous and those who refuse it harm themselves. Yet, advantage and harm are not measured according to the usual pragmatic–empirical criterion. The question of why one should be lawful and be duty-bound to recognise both oneself and others is not adequately answered if this is done independently of legal morality by referring only to pragmatic–empirical advantages. It is true that those who legally assert themselves are better off, yet it is not only their situations that are improved. Rather, the benefit consists in a better self, an improvement in their ‘ontological’ status: out of a natural self emerges in addition a legal–moral self. The ‘in addition’ is important here because one can remain one’s natural self, which is attached to mere survival and, beyond that, to a secure and good life. However, one pursues such interests neither purely instinctively nor according to pleasant or unpleasant sentiments but as accountable subjects in opposition to other accountable subjects while recognising their accountability. The ‘as’ is precisely what constitutes the legally decisive capacity to act. The answer to the first question is: apart from the empirical–practical advantages, the capacity to act must subsist in coexistence because both people and their coexistence attain the ontologically higher rank of accountability. With both advance provisions, the original recognition by oneself and the one provided by others, we have identified the final two conditions of the capacity to act in social perspective. They have the status of an additional, factually prior principle of justice, a principle of proto-justice through which the natural human being becomes a person: All members of the species of accountable beings recognise each other as legal subjects, through an original recognition by oneself as well as by others. Since both advance provisions are moral in nature, they challenge the attempt to legitimise the law through merely practical and empirical arguments. A further challenge is directed at the contemporary verdict against metaphysics. Let us limit the scope here to legal self-assertion: it is based on a conflict that is immanent to the individual and, as such, prior and external to the social. The self that is subjected to a desire for survival competes with the self that insists on its purposeful character. The natural self and legal–moral self oppose one another. The legal–moral self is obtained by qualifying the natural self. In so doing one enters a dimension beyond ‘natural nature’, one which is literally metaphysical. Of course, what matters is not a theoretical but rather a twofold practical metaphysics: on the one hand, what matters are conditions not of understanding (Erkenntnis) but of praxis, and more specifically: of the law. On the other hand, the condition does not simply exist but is brought into the world by a double provision. When everyone treats themselves and

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everyone else merely as means and no one practices legal recognition of oneself and by others, there is no law and, for lack of law, no legal metaphysics either. Everyone who wants to be a legal subject in the emphatic (or modestly emphatic) sense has to make these provisions. For that reason Kant’s (IV, 389/520) assertion that one must have a metaphysics is provocative but nonetheless conceivable. For it does not primarily depend on a (contested) theoretical position of understanding but on a legal–moral advance provision. Only secondarily and subsidiarily does Kant claim that the provision is conceivable only as metaphysics and that it fulfils the epistemological prerequisite, the synthetic a priori. Even this claim, however, is not entirely implausible. As a condition that is prior to even the original legal contract itself, it does in fact resemble an a priori. Also, should it seem impossible to deduce the condition from either the idea of the capacity to act or from the coexistence of accountable beings, nevertheless its synthetic character can hardly be disputed. One might with (ostensible) modesty wish to do without the metaphysical demand, but the legal–moral prerequisite for the justification of the law cannot be relinquished. A first list of principles of justice. The principle of proto-justice: All members of the species of accountable beings recognise each other as legal subjects, through an original recognition by oneself as well as by others. The first, law-constituting principle, the universal precept of the rule of law: As embodiment of rules that are strictly applicable and in every respect, the law opposes personal arbitrariness and personal force and violence and, for that very reason, is to reign among all human beings. The second, law-standardising principle, the principle of the greatest equal freedom: Through the reciprocal abandonment of freedom rights, each subject acquires that same maximum amount of freedom to act which, according to the first principle of justice, is feasible with universally valid rules. Third, again law-standardising principle, the principle of comparative positive freedom: (a) Through reciprocal positive provisions each legal subject is to obtain an elementary positive capacity to act, which can be presented as certain positive rights to freedom. (b) In so doing, the rule-based order as the first principle of justice is recognised: only those positive rights to freedom are just that can be realised according to universally valid rules. (c) The second principle has priority over the third: only those positive rights to freedom are just that are compatible with the principle of the greatest equal negative liberty. (d) The provisions of positive rights to freedom are dependent on culture and resources and are comparative in nature. (e) The third principle of justice is not substantiated via a justification that is exclusively based either on exchange, or on corrective justice, or on distributive justice. (Four additional principles of justice are drawn out in chs. 4.1, 4.2, 4.3 and 5.2.)

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3.6 SOLIDARITY

The morality that applies to life with and against each other, social morality, is not encompassed by justice alone. Rather, the morality of human charity requires us to add the spice of love to the mixture of justice and, out of compassion for someone else’s hardship, to be benevolent, helpful, even generous. Benevolence however, is not owed. As a meritorious supplement, it does belong to the polity, of course, for it contributes to the latter’s well-being (see ch. 7.5). Yet, being a purely voluntary provision, it cannot be imposed. Assessing solidarity, on the other hand, is more difficult. Akin to owed morality (justice) as well as voluntary morality (charity), its normative halfway position leaves political legitimation at a loss: its kinship to the owed morality assigns it a legitimate place within the realm of the authority to compel, which is, however, contested because of its kinship with voluntary morality. This concept must consequently be more clearly drawn out (see Scheler 1998, 106, 114, 135; Scheler 1973, part II; Hartmann 1967, 293, 314, 332; more recently Bayertz 1999; Hondrich and Koch-Arzberger 1992; Isensee 1998; Rorty 1989, ch. 9). The concept of solidarity, nowadays a rather inflated term, represented originally, in Roman law, a particular form of liability, the obligatio in solidum: each member of a community, usually a family, bore the sum of all existing liabilities and, vice versa, the community bore the liabilities of each individual. Hence, solidarity occurred in both directions: it offered help to the community on the part of the individual and to the individual on part of the community. The related motto ‘one for all, all for one’ can be found in an article of 1773 in the Encyclopédie. Until today the term ‘joint obligation’ (Solidarobligation) signifies the unlimited liability of every debtor for the total debt, which expires for all if it is paid by one. The strict interpretation of the concept of debt is extended to non-legal affairs only very late, and not before the end of the eighteenth century. The conceptual core however, remains the same: solidarity denotes (1) a liability, in the sense of a reciprocal obligation to vouch for one another. The obligation applies (2) to situations of danger and emergencies and (3) within groups that may be closely tied together either involuntarily (as in the case of siblings), freely (members of an excursion), or due to a chance happening. Communities of solidarity are communities of danger and emergency, to which the proverb ‘we are all in the same boat’ applies. Their members develop (4) emotional relations to one another the strength of which increases with the empathetic nature of the community of fate. In communities of interest, such as insurance clubs and professional associations, they are insignificant ‘by nature’. With these four elements alone, however, solidarity remains rather undetermined, because it is not actually called for in all types of emergencies. If the suffering is caused by others, then those others are obliged to assist for reasons of justice alone. If the suffering is self-inflicted, then help is required by charity. Solidarity, in turn, is required whenever suffering is neither self-inflicted nor caused by others, when one must speak of fate. If, for example, a group’s situation has (temporarily or indefinitely) changed to such an extent that the normal human capacity to provide for

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oneself is exceeded, then all sit ‘in the same boat’ of fate, and the reciprocal help characteristic of emergency situations, namely solidarity, is what is called for. Based on the type of fate that is mutually shared, it is possible to distinguish three types of solidarity: (1) Cooperative solidarity aims to as a group overcome individual risks, even though each risk is predictable, because only the type of risk (illness, accident, unemployment) is predictable, and not who and how strongly each individual is affected. A collective solution is even more necessary when the risk to an individual also represents a threat to the community, as is the case with epidemics. (2) An antagonistic solidarity pursues common interests against competing communities, such as defending against enemies or self-assertion vis-à-vis adversaries. (3) Contingent solidarity helps deal with unforeseeable but collective misfortunes, such as natural catastrophes. The model for the first type of solidarity is a system of social security; for the second it is a combat unit against enemy groups; and for the third it is a community of fate that forms ad hoc and that dissolves once the disaster is over. As help in reciprocity, solidarity means a brotherhood or sisterhood that does not follow an asymmetric pattern according to which the older siblings help the younger ones. It is true that help may turn out to be of a different character: parents, for example, have other responsibilities besides children and these are not necessarily carried out simultaneously. Some may be impacted more than others, and some may, luckily, not be affected at all. Despite differences in content, phase-delays and contingent circumstances, the primary pattern is nonetheless one of symmetry and reciprocity among equals. The underlying idea of mutual help therefore raises concerns about the common usage of the term solidarity in actual life, where it is applied to situations where the strong have to stand in for the weak without themselves ever benefiting from any reciprocal assistance. In these instances solidarity is stretched or even overstretched, taking on the meaning of charity. The force of the obligation is weakened when the concept is extended beyond a mere legal obligation, even when the conceptual extension is, in fact, resisted and a reciprocal character maintained. There is scope for interpretation and discretion as to the reach of that expansion. There are also certain conventions that determine the extent to which provisions of solidarity are still required. As to the type of obligation, often nothing more than a ‘moral’ or ‘political’ obligation remains: mutual assistance may be enforced through informal sanctions such as reproaches or condemnations, but usually lacks legal enforceability. Only if, despite this weakening of the concept, its central meaning (i.e. mutual assistance within a community of fate) is maintained does solidarity rid itself of being a convenient but vague and overly malleable principle. It represents a moral attitude that falls between voluntary charity and a strictly owed justice: as with justice, reciprocity is what matters, but it is, in contrast to justice, not a claim that is owed all around. Since solidarity is not strictly owed, it is, similar to charity, unilateral help that is offered without expecting it to be reciprocated even if such a need should arise. Assistance given out of charity is a gift, an altruistic act. Assistance given out of solidarity follows the demands of reciprocity, which allows for a benefit

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to be received in return: a provision is made in exchange for a return provision of which it is not yet known whether it will ever be due. The institution of legal obligation has both advantages and disadvantages which are rather obvious and these remain once the interpretation of the concept is extended. An advantage constitutes the fact that the obligation is borne by many, which allows both the debtors and the creditors to incur risks that would otherwise be too hazardous. The disadvantage is that it can thereby consist of nothing more than a pro forma reciprocity: if it is always the same members that become liable and have to stand by the same other members, then solidarity’s normative core, reciprocity, vanishes. In the case of the weakened obligation, it is supplemented by the danger that, firstly, the effort that is required through solidarity depends on the needs and capabilities of those affected as well as the particular circumstances; and that, secondly, in making use of the interpretative flexibility the debtor often demands too much and the creditor is not willing to give enough. And even more often, solidarity is demanded, but not offered in return. If necessary, the mere verbal, euphemistical ‘moral’ assistance is preferred to the actual effort. In a case of emergency, when the expected return provision turns out to be rather high, prevarications are especially likely to occur: solidarity is abandoned even though it provided benefits in the past. The danger of free-riding on a community increases with a decline of both the impact of the counter measures and informal sanctions as well as the emotional attachment to it. Within a family or as part of a friendship one can count on solidarity much more than in a state or as part of overall humanity. One can generally expect it to occur more in personal than in anonymous relations, and again, more in relatively static than in modern, dynamic societies. As Scheler (1960, 516) rightly says, “no solidarity whatsoever” is found at the “social level of the masses”. Earlier communities of solidarity such as guilds thwarted the menace of free-riding by establishing clear rules on rights and duties and by imposing sanctions in cases of transgressions. For a modern society to be able to remain a community of solidarity, the “solidarity among aliens” (Brunkhorst 1997) must, despite its size, complexity and anonymity, develop the elements of both rules and sanctions. In this sense, social security schemes go back to the original legal meaning of solidarity: their claims are enforceable, the contributions are obligatory, and supplements to insufficient payments can be required. Yet, the new anonymous community of solidarity has a flaw in the weave: although everything human is threatened by pleonexia, by bursting covetousness, the traditional communities of solidarity, ‘specific’ and easily overlooked as they are, manage the situation without major problems. The ‘objective’ worry for the needy and the weak, corresponds to a ‘subjective’ attitude, an ethos of reciprocal consideration and control, which confronts both sides of the pleonexia: the refusal to grant solidarity as well as its misuse and extensive utilisation. In so doing, the ethos provides a guarantee for its existence. However, in the modern, abstract and impersonal community of solidarity, those counter forces of pleonexia are lost. A maximisation strategy proliferates that is characteristic of private goods and the market, and it does

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so not out of malice but systemically. For instance, in the health system all participants – doctors, hospitals, and the vested industry – strive for their personal advantage. The result is clear: where pleonexia is allowed to proliferate, flaws in rationality and incentives to defect emerge that overwhelm the financial structure. Without being overly dramatic one could say that, although they are not acting in concert, all sides are together looting the public coffers. (On the topic of resource scarcity in the health system, see Höffe 2001b.) Let us finally ask what significance solidarity should have within a coercive and authoritative social order, in other words, within the law. Without a doubt, not all of the obligations of solidarity are entitled to the authority to compel. An obvious counter example is friendship: if the solidarity owed among friends is violated, no law has the authority to intervene. Let us call this freely-given solidarity, as opposed to a coerced solidarity. Communities of solidarity occupy an intermediate position and are formed voluntarily but also in accordance with the law. The legal order should obviously allow for such agreements to be reached. Communities of solidarity that coerce individuals to become members are only permissible if membership is required for reasons of justice. When considering the three types of solidarity identified earlier, it becomes clear that as far as cooperative solidarity is concerned, that coerced membership can be justified by the claim that, in the case of an emergency such as an illness for which one was not financially prepared, the non-members constitute a burden to the group. The group is allowed to protect itself against this prospectively, which amounts to an authorised and compulsory responsibility for social security policies against, for example, illness, accidents and unemployment. No compulsory insurance scheme is required; an obligation to be insured is sufficient. The issue is different, however, in the case of public health. In order to prevent and combat epidemics, certain immunisations, and in the wider sense, care provided to schools and mothers, remain a communal ‘public’ responsibility, so that the difference between compulsory insurance and the obligation to be insured becomes obsolete. The assessment for antagonistic solidarity is similar. As long as one is a member of a particular collective one benefits from collective self-protection. Since freeloading contradicts the idea of justice, a contribution to the provisions required for the collective self-protection is required for reasons of justice. In the case of contingent solidarity an analogous argument favours coerced contributions. However, coerced solidarity remains an exception that always requires a legitimation and also carries the burden of proof. The broad arguments supplied above are necessary, but not sufficient. In each particular case both the right to coerce membership and the scope of that right must be established.

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Society disposes of a minimum of three types of control: (1) the market, as a spontaneous and anonymous control; (2) the state in a wider sense, as a political structure with the power to rule, and (3) (freely given) solidarity, a cooperation based upon affective relations. Put in simple terms, the market controls through money, but in areas such as science and culture it also uses reputation (‘prestige’); the state controls via the legal authority to coerce; and solidarity controls through corresponding expectations. Political legitimation is aware of all three of these types but has set its eye firmly on the second type of control, because it is to some extent the ultima ratio: when the market fails and solidarity is unreliable, society is, if it still wishes to govern itself, in need of the state. In its wider sense, one which reaches over all eras, the state is comprised of seven elements that can be grouped into three dimensions. In the first internal-vertical dimension the state (1) is a public power, political rule (‘state authority’); (2) is expected to endure; and (3) its structure is based on the rule of law. In the second internal-horizontal dimension the rule extends to (4) an association of individuals spread across generations, the nation, which allows the state to develop into a cooperative association. (5) Usually, the state extends across a confined area (‘state territory’). (6) Early societies like hunters and gatherers aside, the state develops out of several social institutions, which makes it a second-order institution. Finally, in its third external-horizontal dimension, its relation to other states, the state is (7) autonomous from an international legal (not necessary factual) viewpoint (‘external sovereignty’). (Jellinek 1914 continues to be worthwhile reading on state theory; more recently, also Breuer 1998.) The entire phenomenon is not in need of legitimation, primarily at least neither the internal horizontal, the cooperative association, nor the external horizontal of international law. In the case of the internal vertical, on the other hand, the citizens’ subordination to state power is what matters, because the legal system itself is already legitimised in the legal contract. The question of legitimation applies to all polities, even to those (‘acephalous’) societies of hunters, fishermen, and gatherers that have no sovereigns. For although they almost entirely lack authoritative rule, they are certainly not free of all rule, as suggested by Rousseau, Clastres (1987), Sigrist (1967), and Taylor (1982, ch. 15). Acephalous societies too, know rules, such as the prohibition of incest, the killing of group members and theft, as well as rules to mediate in conflicts over women or quarry. Although no political offices exist, there are nonetheless persons with greater authority, such as successful hunters, who have, as already noted by Adam Smith (Lectures on Jurisprudence 1766, 404, see 401), a prominent influence on 61

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decision-making. Since authority remains so rudimentary, Max Weber (Economy and Society, 1978, 1133) is correct in calling it a ‘regulated anarchy’. As the individuals are not explicitly elected, they can always be dethroned, if not expelled from the group. Moreover, decisions are made only when all consent, and rules are not too strictly applied. Finally, sanctions that go beyond mere reparation are rare (for an introduction, see Wesel 1997, part I; Ingold, Riches and Woodburn 1991). In the case of the state in the narrow sense, that of European modernity, the curtailments to freedoms brought about by government and its financing (through ‘taxes’) turn out to be much more significant. It is true that, in an epochal sense, the modern state itself adheres to the rule of law and even subjects this law to fundamental principles of legal–moral dignity, that is human rights. Yet, it disposes of (public) powers and demands the monopoly of coercive power (as well as a large portion of the gross domestic product), so that the question of legitimation is ever more pressing: why are some people allowed to have authority over other people? 4.1 THE TASK OF IMPLEMENTING THE LAW

Given that the original legal contract is of benefit to all, it could bring itself into historical existence on its own without requiring more than a secondary state of nature, that is, a pre-state, natural and law-based society. In reality, however, three obstacles present themselves. These do not result from contingent circumstances, which would have allowed us to hope for an application of the law that didn’t require governance if only the constraints were less rigid. Unlike this utopian hope of social theory, it is the market that puts up three barriers for the law to deal with. This threefold structural market failure – or expressed positively: this threefold implementation task (Realisierungsaufgabe) – justifies the existence of a state. The first two tasks result from vagueness in the shared understanding of the law. However, only a well-defined law is a real law: first, the original legal contract aims only at second-order rules (principles), the precise subject matter of which, the distributive–collective advantage, has yet to be delineated. Second, even precisely defined rules, the first-order rules, do not yet ensure an application that is appropriate to the situation at hand (“What exactly does the rule stipulate in this situation?”). Due to these two real shortfalls, a merely natural society risks conflict when interpreting the definitions and applications of both the law and the rules. Without a common ground, everyone resolves disputes at their own discretion, a fact that stands in stark contrast to the conceptual intention of the law. Despite a universal advantage, then, the original legal contract is not automatically enforced. From the viewpoint of legal theory, its arrangements require a concretisation (Positivierung) whereby moral human rights have to develop into well-defined positive basic rights that, in turn, necessitate an authoritative interpretation. It calls for a common, ‘public’ establishment of precise rules through the legislature, as well as a common interpretation through the judiciary. The third and most significant implementation task follows from the difference between the authority to compel and the capacity to compel: wherever the accords are fulfilled in phase-delays, one side has to supply an

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advance provision knowing well that the other side may not produce the return provision. Such non-compliance may stand in stark contrast to the principles of justice; however, without a common rule and authority, the natural legal community is incapable of resolving this contradiction. As Hobbes already noted, “the force of words is too weak to bridle men’s ambition, avarice, anger and other passions” (Leviathan, ch. 14). However, creating a common rule to resolve the contradiction is an approach that has been known to the human race well before Hobbes made use of it, at least since the archaic Greeks: in Aeschylus’ Oresteia Athena asks “Which man who fears no more remains just?” (The Eumenides, v. 699). Since the advance provision is produced in reciprocity, not producing the return provision amounts to free-riding, if not fraud. And, indeed, fraud is what is committed by pragmatic–rational and prudent beings: those who have already enjoyed the advance provision can save themselves the trouble of providing something in return without being disadvantaged. If the fraud committed by others is then anticipated, one refrains from providing anything in advance, and both parties return to the primary stateless and lawless state of nature they initially sought to overcome because of the disadvantages it had for all sides. A failure of reason or a recognition dilemma emerges here: due to the uncertainty of the agreement, this very agreement is not actually recognised, and turns out to be nothing but hollow words. The way out is a common and ‘public’ enforcement by an executive power. As is well known, the prisoner’s dilemma is the game theoretical equivalent of this recognition dilemma. If the original legal contract is concluded between two parties A and B, two alternative routes of actions for phase-delayed reciprocity are available to each of them: honouring the contract or cheating. Their benefit thus depends on what the other does, so that there are four alternatives: (1) if both are truthful and honour the contract they are both better off than (2) if both cheat and make no provision. (3) Even better than mutual honesty, however, is to unilaterally cheat, as long as the other doesn’t; then, one obtains the other’s provision without having to reciprocate and offer a return provision. (4) But providing yourself, without a provision in return, is even worse than if both of you had cheated. The cheater is best off; the scenario of two honest parties is the second best; the two cheaters end up third, and the honest person who is deceived fares worst. Now, the best solution for all, mutual honesty, does not occur spontaneously because the honest person, for fear of encountering a cheater, prefers to cheat instead, which when reciprocated results in the third best solution. Here too, the way out is a common, ‘public’ power. Whereas the argument of reality deficits is of legal–moral nature, game theory argues pragmatically, calculating individual benefits. The justification of the state can thus follow two legitimation strategies that are distinct from a legitimatory point of view but lead to the same result nonetheless. However, the coincidental overlap of the cost–benefit and legal–moral legitimation applies only to the third task. None of the three tasks depends on the particularities of a given culture or epoch. Not even tied to the extraordinary biological make-up of human beings, the legitimation of the state is valid not only interculturally but also on an interplanetary level, that is for any

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rational beings from other planets. The only question that remains open is: does the legitimation task apply merely to such crooked beings as humans or to pure rational beings such as angels as well? The answer is typically affirmative: “If men were angels, no government would be necessary” (Madison in: Federalist Papers, no. 51). A nation of humans, even a nation of devils, so the argument goes, can use a state, provided its members are rational; however, this should not be the case for a nation of angels. We respond by establishing, in what follows, a distinction between the moral and the epistemic character of angels. Morally, angels are essentially benevolent spirits. Due to a lawful disposition unclouded by passion, they recognise the principles of justice as such. Moral angels are characterised by a judicial morality. This feature does not evade the fact that one can differ in the precise determination of both the rules and their application to particular situations. Purely moral angels are thus not immune against either the discretion of, or the conflict between, interpretations, so that they too, require public powers to deal with legal indeterminateness. Only those who are angels in both a moral and an epistemic sense, that is pure moral beings that possess perfect knowledge, are left untouched by the first two reality deficits. By contrast, only epistemic but not moral angels are untroubled by the legal indeterminateness, though they still face the recognition dilemma and therefore require an appropriate public power. This does also apply to humans, of course, because “the passions of men will not conform to the dictates of reason and justice without constraints” (Hamilton in: Federalist Papers, no. 15). So, only for angels in the complete sense can the original state contract be dropped; and only beings that are rational in both the moral and the epistemic senses can be satisfied with the spontaneous order of the original legal contract. The usual description of spontaneous order, the so-called state of nature, depicts it as a state of war. This can be contested on three grounds, which could all have implications for the justification of the state. According to the first objection, human beings are not in a permanent state of conflict with one another. Even in the animal world a fight is avoided whenever possible, and cooperation or indifference reigns instead. Only for the defence of territory and offspring, is struggle considered to be the preferable alternative. In fact, even humans do not constantly jab or lash out at each other. Even in the secondary, lawful but stateless state of nature, war is merely latent, although the danger of conflict nonetheless persists. This follows because the lack of public powers lets everyone impose a personal verdict about their affairs through individual force. Also, because it is individual force that matters, everyone endeavours to be as strong as possible, or at least stronger than one’s opponent. Insofar Hobbes (Leviathan, ch. 13) is right in asserting that everyone must strive for ever more power. The third of Hobbes’ three causes of dispute (competition, diffidence and glory) does not apply to rational actors, but the other two do: since in a competitive setting (Hobbes’ first factor) the weak are vulnerable to being exploited by the mighty, there is an objective obligation to constantly strive for more power, even if one has no intention to attack. This follows from diffidence as the second factor: the absence of

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a public rule of law leaves one in doubt whether others will refrain from force as well. Seen from the viewpoint of the subjects, there is a competition of fear that, in terms of the degree of self-defence achieved, corresponds to the security dilemma known from game theory. Even so, the threat of force is not the decisive issue. Rather, in the primary state of nature there is no law at all; and although in the secondary state of nature (just) legal rules do exist, they are short of a guarantee that they be as such applied and enforced. Without this guarantee, the curious paradox arises that the law, although in existence, does not actually exist. Individual justice reigns in its place, although this is what needed to be overcome: personal discretion continues to be decisive as a private interpretation of the legal principles, as individually interpreted justice. Also, personal power of enforcement remains a dominant factor: the private enforcement of justice that puts in force one’s private discretion. The second objection to the depiction of the state of nature as a state of war accepts that there are fights but asserts that not everyone strives to emerge from them as the victor. As Albert Camus (The First Man, 121f.) correctly says in his autobiography: during a ritual childhood fight, when little Jacques inflicts a black eye on a classmate, he sees his opponent’s bewildered expression and is filled with sombre sadness, “and so he knew that war is no good, because vanquishing a man is as bitter as being vanquished”. It is true that, at the end of the day, not all human beings want to win; but neither are they eager to undergo constant humiliation and offer themselves as willing victims. There is, consequently, no other way to overcome the not so popular winner/loser alternative (or master/slave, as Hegel would say) than through public powers. A third objection derives from a reiterated prisoner’s dilemma. If the scenario is made dynamic and the decision whether or not the agreement should be honoured is not made after one move, then computer simulation shows that the most successful strategy is that which begins with an advance provision but sticks thereafter to a strict reciprocity (Axelrod 1984, ch. 7.6: summary, 5; for a critique of Axelrod see Höffe 2002, ch. 10): if the advance provision is responded to through a return provision then the cooperation is continued; otherwise one aborts the cooperation, only to reinstate it as soon as the opponent indicates a willingness to cooperate. Such a tit-for-tat approach suggests that cooperation is a self-benefiting strategy and that refusing to cooperate is self-punishing. The state, if understood as an embodiment of powers that enable cooperation, seems therefore redundant. However, when examined more closely this fine image of cooperation without rule or authority quickly becomes murky. Computer simulations operate with considerable simplifications, which political legitimation will have to reject: Firstly, the computer simulation presumes that the lack of cooperation is so widely known that it is punished ‘by life itself’. Secondly, interpretation issues ignored by the computer simulation, as well as the recognition dilemma, must be addressed. Thirdly, cooperation is worthwhile only if the risk of unreturned advance provisions is reduced through a policy of small steps, where only small provisions are made in advance and long-lasting relationships are assumed. All of this is threatened in real

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life, because one may be violently expelled from, or even killed by, a group. Finally, the computer game presupposes a strict balance of power that ‘defines away’ the issue of the second private execution of discretionary justice, that is: the danger that the mighty violate the rights of the weak without suffering punishment. Since the reiterated prisoner’s dilemma operates with substantial simplifications, the following assessment remains valid: that which is agreed to in the legal contract does not come into existence on its own but requires collective powers. Further, only if these are long-lasting, institutionalised and practiced effectively will the barbarian way of conflict resolution, war, yield to the civil and just approach of litigating before a neutral third party. Part of the corresponding reality of justice, the executio iusti, is the monopoly of coercive power (see Max Weber, Economy and Society, 1978, 882): legal subjects have to be disarmed and all types of arbitrary law – private legislation, private execution, and private jurisprudence – have to be abolished. The powers of the state, conversely, have to establish themselves as guarantors of justice and the rule of law. By no means do they possess a full discretionary power. As in the original legal contract, the state-legitimising contract comes with a limitation. Public powers are legitimate only secondarily and subordinately to the reality deficits. According to one of Hegel’s famous theses, it is the highest duty of an individual to be a citizen of the state (The Philosophy of Right, § 258). This superlative declaration, which made Hegel vulnerable to the critique of idolising the state (see Marx 1843, introduction to A contribution to the Critique of Hegel’s Philosophy of right), is not shared by the ethics of law and state, but its general positive inclination is. For real justice to be achieved, legal subjects must convert the natural or private state of the law into a public one. The fourth principle of justice, the universal precept of creating a legal order and a state goes as follows: In order to realise justice, a state under the rule of law, as the embodiment of public powers, must be established. Public powers must make provisions not only for positive but also for negative rights to freedom. For this reason the difference in the legal contract between negative or positive rights is not lost at the level of the state contract, though its differentiating force is weakened. Both types of rights require positive state provisions that, in turn, compete with health services, the police and social welfare for scarce resources. The state’s aim to establish justice brings about a second amendment to the interpretation that freedom rights are defensive rights against the state. In the original legal contract freedom rights are defensive rights of citizens against each other, which are guaranteed, as the original state contract stipulates, by the public powers. Their principal objective is thus the protection of rights to freedom; and only secondarily do they acquire the common characteristic of defensive rights against the state, since those powers that protect rights can also jeopardise them. However, the legitimatorily secondary protection from the state must neither replace nor weaken the legitimatorily primary protection by the state. According to its own legal–moral conceptualisation, the state is not free to curtail its task of providing legal security.

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The obligation to justice overcomes a conflict between two opposing contract theorists. Hobbes sees a lack of authority as the principal enemy of a proper social order (Leviathan, ch. 13), whereas to Rousseau it is rather a lack of freedom (Social Contract, I 1). The original state contract is consistent with Hobbes insofar as it overcomes a vacuum of authority but is, following Rousseau as well as Kant, legitimate only insofar as the authority fulfils the conditions of justice (the ‘sword of justice’). At the same time the polity becomes a ‘true state’, as Fichte put it (The Vocation of Man, book 3, II). The state is no longer a ‘state of bandits’ where the ‘ruling clans’ conduct themselves internally, as Augustine famously phrased it in The City of God (IV 4), in the same way as the state does externally: insatiably striving after ever more privileges. As to the judiciary and legal administration, the criterion for a ‘true state’ is obvious: each case and each person impacted by a rule (the legal norm) is to be treated equally according to that rule. The law-realising justice that was transferred to public powers corresponds to the first principle of justice – a qualified rule-based order. It demands that the requirement of equal treatment as well as its negative formulation – that is, the requirement of impartiality and the prohibition of arbitrariness – be both recognised. Even though this precept has been known since Antiquity, it continues to be threatened again and again. In early times conflicting parties would grace the judge with presents, which could be considered precursors to modern court fees but, depending on their magnitude, also influenced the judge’s decision. Adam Smith’s assessment of Europe’s early monarchies may well apply in general: that “the administration of justice appears for a long time to have been extremely corrupt” (The Wealth of Nations, 1779, book V, ch. I 2). For the purpose of subsidiary enforcement, justice amounts to behavioural rules, and in practice, to an imperfect procedural justice. For even their painstakingly precise application cannot guarantee a just result. During a lawsuit rules such as ‘no man is to be judge in his own cause’ or ‘both parties are to be heard’ apply. In criminal law, on the other hand, the predominant rules are the presumption of innocence and the principle that no punishment may be imposed without a (previously applicable) law. With regard to legislation, the same task presents itself for the second-order rules, the principles of justice: due to the impartiality of a higher order, each common rule is to be treated equally according to that higher-order rule. Public powers that satisfy these requirements become the general will, in the sense of a volonté générale that, as enforceable will, acquires the rank of a volonté générale capable à la réalisation. It consists of two elements – the procedural principles that satisfy the meta principle of impartiality as well as the substantive principles such as human rights – and thus represents the legal–moral legitimation of the state. 4.2 SEPARATION OF POWERS

Of course, in a real state the sword of justice is not held by justice itself but by normal, imperfect human beings. A gap thus opens up between the ideal of justice and concrete reality: the sword is held by normal people and made vulnerable by

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their passions and interests. In order to reduce that gap and bring the real state as close as possible to the ideal, some preventive measures are required such as a separation of powers that initially proceeds horizontally and functionally (on the vertical separation of powers, that is federalism, see ch. 5.3; on preventive measures of a subsidiary-theoretical nature, see ch. 4.1). The various implementation tasks are assigned to autonomous entities – in a positive sense in order to advance justice, and in a negative sense in order to prevent the proliferation and misuse of state power. According to this argument the separation of powers is of subsidiary significance: it serves the mutual limitation and control of state powers. In the history of ideas the separation of powers is commonly traced back to Milton (Geisst 1984), Locke (The Second Treatise of Government, §§ 107, 138, 143, 149), Montesquieu (“il faut que . . . le pouvoir arrête le pouvoir”: The Spirit of the Laws, XI, ch. 4), Hume (Of the Origin of Government, in: Essays, 40), the Federalist Papers (for example, no. 47: Madison), as well as to Kant (Perpetual Peace, sec. 2, art. 2; The Doctrine of Right § 45). There were predecessors, however, such as Donato Gianotti in the sixteenth century, the last eminent political thinker of the Florentine republic (see Riklin 1992). More importantly, the idea itself goes back to the beginnings of the legal and political philosophy of the West: already Plato (for example, The Statesman 293e7–297b4 and The Laws 713e3–714b2) demanded that power be tamed by the law; and following Aristotle’s Politics (IV 14, 1297b35), there are three elements in each polity that correspond to the powers of the modern era: while the deliberative power (bouleuomenon) is responsible for common affairs (koina) and is a predecessor to the modern legislature, the (2) executive (peri tas archas) and (3) magistrate (dikazon) powers correspond to our executive and judiciary respectively. The list of offices in Plato’s late political philosophy (The Laws, book VI) contains a trinity of powers as well, albeit not nearly as developed. Aristotle’s indication that the three powers exist in all polities, even in the ideal state, implies that the separation of powers is of more than mere subsidiary importance. This is justified by three distinctive reality deficits and three equally distinctive implementation tasks. Systematically speaking, there is originally no unique power that later needs to be divided to avoid misuse. Rather, an original diversity follows from the fact that principles are indeterminate in three ways: it is one task to determine a principle’s content and scope with a more precise rule, but it is a second task to apply the more precise rule to particular situations, and yet a third to produce an authoritative decision in the face of controversies over the rule’s application. When the powers are contaminated, one can speak of despotism, even if the powers are not misused and the citizens’ freedoms are respected. This would be a formal despotism, in contrast to the ‘common’ and substantial despotism that disregards freedom and human rights. This formal despotism can be found in Kant who calls some governments despotic even though they do legislate (The Doctrine of Right § 49; earlier, see Montesquieu, The Spirit of the Laws XI 6). Let us recapitulate the precept of the separation of powers and develop once more a law-realising fifth principle of justice: Public powers are to be separated.

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The analysis of the processes of public powers – that is to say their structural dynamics – reveals first of all a linear process: the laws as determined by the legislature enter into the reality of life through the executive and the judiciary. Yet, when the judiciary uses all the possible powers vested in it so as to verify that new legislation does conform to the constitution, the process becomes self-referential. This circularity allows the law to control itself and take on a reflexive quality. At the same time, the powers not only have to confront each other but are also subject to one another: the legislative eventually decides the responsibilities and organisation of the executive, the administration as well as the judiciary, all of which implement laws in different ways. However, the laws endow the executive with considerable creative scope. In some instances the executive is permitted to dissolve parliament and schedule elections and thus checks the legislature. The judiciary, on the other hand, controls the administration, the government, and, in societies with a constitutional judiciary, even the legislature. 4.3 DEMOCRACY

The precise meaning of the zoˆon politikon is exemplified by the public powers: people are in need of authority, one which need not result in the enslavement of the subjugated, but which can be a voluntary self-organisation of the concerned parties. Under its Greek designation, democracy, the rule of the people has become the key conception of the modern theory of the state. The concept is ambivalent on the whole however, due to the ambiguity of its two constituting components, ‘people’ and ‘rule’. Hence, the question as to whether democracy has to be legitimised interculturally cannot be answered across-the-board but only after assessing its different meanings. Each brings a different alternative to democracy, and the currently popular antithesis of the ‘liberal’ and ‘republican’ models will turn out to be an overly simplistic reduction. A thorough investigation uncovers nine elements or conceptions of democracy, which can be grouped into three dimensions. (For the now endless debate on the topic of democracy, see for example: Schumpeter 1984; Dahl 1997 and 1989; Burdeau 1956; Downs 1957; Forsthoff 1964; Friedrich 1966; Kielmansegg 1977; more recently Brunkhorst 1998; Manin 1997; March and Olsen 1995; Mueller 1996; F. Müller 1997; and Weidenfeld 1996). 4.3.1 Rule-Legitimising Democracy The conceptions that are most elementary from a legitimatory viewpoint can be summarised in the first dimension, rule-legitimising democracy: (1) according to the rule-establishing conception, political rule originates in all affected legal subjects, in other words: in the people (‘government of the people’). Even though sovereignty rests with the state from the standpoint of international law, in terms of legitimation it is actually vested in the people. The legitimatory power of legal subjects is tied to their fundamental equality. This follows because the same applies to the original legal contract as to the refusal to use individual force to enforce the agreements of the original legal contract: in order to honour the principle volenti

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non fit iniuria, everyone, both individually (singuli) and together (omnes), has to agree. At the legitimatory source, and only there, the ruler and the ruled are identical. By contrast, a flat Rousseauism that also interprets identity in an empiric– organisational way soon becomes totalitarian. (On the experience with the French Revolution, see Gauchet 1989.) That originator and addressee are one and the same might induce one to believe that coercion might cancel itself out; and that, following Plato (The Republic 558c) though in a positive way, democracy is to be understood as free of rule (anarchos). However, the public powers remain. Rule and authority are not lacking; instead, a self-imposed and voluntary rule subsists. We thus come, e contrario, to the opposite of the first conception of democracy, foreign rule or heteronomy: despotism and tyranny in the procedural sense, rule as subjugation to a superior power. (2) Public powers are worthy of consent according to the same criterion as the law: because of a distributive–collective advantage that, in turn, aligns with the threefold implementation task. Since human rights are of benefit to all but are guaranteed only through public powers, the positivisation itself is beneficial to everyone. According to this second intentional or rule-standardising conception, democracy serves the people (‘government for the people’). Despotism or tyranny in the substantial sense is the counter-notion to this conception of democracy: it is the oppression and exploitation of the citizens. Incidentally, both conception and counter-conception have a visible manifestation: the (more or less) legitimate ruler can afford to reside in a publicly accessible residence or palace, whereas the tyrant has to construct his residence as a fortress. The first two phases together constitute a fundamental democracy that limits the adjudicative scope of public power, including that of a democratic majority. Because they are guaranteed but not granted by the state, human rights do not allow for a majority decision but only for reflexive affirmation and consent. The self-determination that they grant to each human being cannot be outweighed by any majority, however important it may be. As a result, the (legitimatory) fundamental democracy stands in stark contrast to that (organisational) total democracy which refuses to defer to principles of human rights in advance and is willing instead to accept majority decisions for everything, including human rights. Fundamental democracy, however, must not be equated with a mere liberal democracy reduced to negative rights to freedom. As the third principle of justice stipulates, positive rights to freedom – that is to say, social rights – are an integral part of it. Even if it is impossible for the people themselves to rule, this authority must nevertheless be borne at least ‘in the name of the people’ and ‘for the benefit of the people’. In line with the legitimatory criterion of the distributive–collective advantage, a potential monarchy or aristocracy is valid only if its rule is exercised in trusteeship for the people and if human rights are recognised as elementary principles of justice. If this is the case, it is appropriate to speak of a ‘monarchy for the people’ or ‘aristocracy for the people’; or, more pointedly, of a ‘monarchic democracy’ or ‘aristocratic democracy’. Either way, fundamental democracy stipulates an indispensable minimal democracy that must never be deferred until a later modernisation.

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The sixth, once more law-realising principle of justice, the universal precept of fundamental democracy, therefore reads as follows: Every rule is to be exercised in the name of the people and for the benefit of the people. A rule in trusteeship is justified only where citizens lack the maturity necessary for a governing democracy. Since the danger of abuse is considerable, prudence is required when establishing such a diagnosis. Yet, democratic maturity is not a characteristic innate to humans. It is only the predisposition to democratic maturity that is intrinsic, that capacity to reason and to speak that enables men to govern themselves and to take their future into their own hands. Due to this universal human rationality, a democracy does not require a political or moral elite. Rather, the common citizen can be democratically mature. Yet, deficits may get in the way of a full development of this universal human predisposition to a real democratic maturity, such as a significant lack of understanding for the rule of law (see ch. 7.2; according to Kant, a people is “fit to legislate itself” not before it is in a position to be “susceptible to the influence of the mere idea of the authority of the law (just as if it posessed physical power)”; Perpetual Peace, app. I: VIII 372/340). Moreover, the sense of justice (see ch. 7.3) may be so weakly developed that human rights are significantly jeopardised. In such cases, trusteeship has to fill the gap and enforce, for example, religious tolerance even on a predominantly intolerant citizenry. Further, there may also be an absence of political readiness and practice, or deficiencies in economic, social and cultural preconditions. 4.3.2 Rule-Exercising Democracy Rule-legitimising democracy is linked to aspects of explicit self-government, which together comprise the second dimension, a rule-exercising democracy (‘government by the people’). (3) The first, organisational aspect, that of democracy as opposed to aristocracy and monarchy, fits the common understanding: democratic politics as a debate about things and people; priorities in foreign and interior affairs; their enactment in laws; the periodic election of office holders; and the alternation between government and opposition. The essential ingredients are the democratic rights to participation, above all the right to vote and be elected, as well as the right to instantiate mediating layers such as political parties and a political public. Quite a few theorists view the organisational form of democracy as the core of democracy as such, although this is correct only for the second legitimatory dimension, the exercise of rule, and it is reasonable only if people are mature enough for democracy. The prerequisite of democratic maturity does not lessen the intercultural validity of rule-exercising democracy. It is tied neither to the values nor to the living conditions of European modernity. In any case, this type of democracy existed well before the modern era. The people’s assembly in Athens, for example, recognised the isêgoria, the right of each citizen to speak and submit motions, so that all matters were not only freely argued before, but also by the people (Bleicken 1994, 292–298; Hansen 1995, 73–86). Normative modernisation argues in favour of rule-exercising

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democracy: because the disposition for democratic maturity is common to all human beings of all cultures and because it also is a positive disposition – that is, an opportunity – polities that embrace this opportunity may well be considered superior to those that forgo it. Let us call it the seventh, again law-realising principle of justice, the universal precept of a rule-exercising democracy: In order to achieve law-realising justice, rule must be exercised by the people themselves. That democracy is not a culture-specific type of rule can be corroborated by sociohistorical analysis. Although the term, as so much of the vocabulary that is used in the theoretical discourse on the state and the law, was coined by the Greeks, and because that culture boasted a particularly rich experience in both the theory and the practice of democracy (for an overview, see Barker 1967; Meier 1990), despite all this Derrida (1992, 52) nevertheless stands to be corrected: democracy does not have an exclusively European heritage. Two impressive counter examples have already been mentioned: the self-organising communities of hunters and gatherers, which are weakly ruled and based on the consent of all concerned; as well as the palaver, the century-old tradition of the African assembly. According to Jacobsen (1943), pre-historical Mesopotamia too, knew of a ‘primitive democracy’: although the rule was exercised by a council of elders, ultimate sovereignty rested with an assembly of the people, that of all free men. Also, the Teutonic ‘Thing’ or ‘Ding’ is known to have been a similar arrangement. The declaration of the alliance of the Mohawk Indians stipulated that all members enjoyed equal rights and privileges, were free in person and were free of dominance from their rulers (Morgan 1851). Rule-exercising democracy requires a decision-making process, and its criterion, majority rule, is again subject to the principle of equality: one person, one vote. As a democratic principle, the majority rule only applies now, in the legitimatorily secondary rule-exercising democracy. Although no polity can function without a decision-making process, the very decision to establish majority rule as the decisionmaking process (and to impose majority decisions if necessary with force) cannot itself be justified because it is not a majority decision. Rather, such a logically higher-order resolution requires the unanimity that can be expected only from the universal consent of a distributive–collective advantage. The principle of equality underlying majority decisions is not self-evident. There are at least three objections demanding that the principle be constrained either principally and indefinitely, or functionally and temporarily. The fundamental objection is made in the case of a merely prudential social contract: when rationality alone matters then some individuals, such as the disabled, find themselves in a weaker bargaining position. In order to still bring about the agreement of the original legal contract – and weaker individuals too, are emphatically interested in human rights – these weaker individuals content themselves, so Gauthier (1988) asserts, with a diminished right to vote. This argument can be contested, however, because cases of weak bargaining positions require that one consent to weaker human rights not only in a procedural but also in a substantive way. Not only does the intuitiveness of human rights (that they are granted to human beings as such) speak against such

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purely prudential legitimation, but so too does the argument of compensatory justice (ch. 3.4). The first alleged refutation of rule-exercising equality is, then, in actual fact only an argument against a merely prudential social contract. Compensatory justice could, furthermore, furnish its own, opposite refutation of democratic equality: in order for the concerns of neglected groups, such as AfricanAmericans in the USA, to finally be recognised, they deserve, so Guinier (1994) argues, greater voting rights. This argument is democracy-advancing and is viable only as long as neglect actually occurs. To counter it, however, one need not introduce disproportionate voting rights. Insofar as rule-exercising democracy complies with the demands of fundamental democracy – that is, the positive and negative rights to freedom – a greater voting right as compensation is superfluous. The third, again democracy-advancing counter-argument presupposes a comparative understanding of democratic maturity: for the sake of the legislation’s quality in a legal–technical and legal–moral sense, better citizens could be granted more extensive voting rights. Such aristocratic privileges do not cater to vested interests but, rather, represent a form of trusteeship. There is a problem with Mill’s well-known suggestion – that better educated citizens should be given more weight (Representative Government, ch. 8; also: Rawls 1971, § 37) – in that (secondary or higher) education may be conducive to attaining democratic maturity, but it is no reliable criterion. Neither are all those thus educated more democratically mature or willing to refrain from using their privileges to promote their special interests, nor are all others less democratically mature. In addition, if informed participation in elections supposes a certain level of education, it would then be advised to make such an education available to all citizens. Educational policies that foster democracy are the democratic alternative to aristocratic voting rights determined by educational attainment. (4) Even the first three conceptions taken together, the “government of the people, by the people, for the people” from Abraham Lincoln’s famous Gettysburg address, do not yet exhaust all normative content of the concept of democracy. In the early history of the law, the unity of virtue, custom and the law – what the Greeks call nomos – was not disputed. If the nomos was to be advanced then the new was advertised as already old. Such a principle is, for example, the basis for the introduction to the oldest and most influential legal document of medieval Germany, the Sachsenspiegel (1984, 14): “This law I have not created myself / It has been bestowed on us throughout history / By our good forefathers”. Neither is rule-exercising democracy meant to be master of the nomos: in order to ensure, for example, that office holders adhere to the constraints set by the nomos they have to give regular periodic account to the people’s assembly and their activities, moreover, are overseen by other office holders. Democracy espouses a law-safeguarding function here. Its rationale is also applicable across cultures and results from the scepticism towards the alternative of relying on people’s character, such as the moral and intellectual superiority of Plato’s philosopher king (The Republic 473c–d). This scepticism is warranted for at least four reasons: firstly, such superior persons are not always available; secondly, even

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if they are, they are not easy to find; thirdly, they are, once identified, not always ready for office; and fourthly, they may, once in office, become corrupted by the power it bestows. It is therefore advisable to avoid individual personalities and rely on institutions instead. Avoiding them entirely is, however, not advisable either. Without revisiting Plato’s alternative – a Politeia with good rulers, rather than good institutions – a personal extension is still required, in the form of a professional ethos for office holders (the ethics of which are as of yet only a philosophical desideratum; for rudiments see Benjamin 1990; Kirch and Mackenscheidt 1985; Rinderle 2003) as well as specific attitudes for citizens, which we shall elucidate as civic virtues later (ch. 7). The conceptions opposed to law-safeguarding democracy are the law-violating forms of rule such as dictatorship and the totalitarian state. Democracy alone, of course, cannot guarantee the law. Modern theorists of democracy (Tocqueville, Democracy in America 1835–41; Ozouf 1998) quite rightly espouse Aristotle’s scepticism (Politics IV 4) regarding a possible tyranny of the majority. The link to the first three dimensions enables a law-safeguarding democracy to become a modern constitutional state under the rule of law. Yet, even the state’s institutions cannot safeguard against abuses of power, when the law is bent or broken, or when corruption is for one’s own benefit or that of parties and associations. The democratic struggle of interests affects holders of all offices, including those of the highest courts, and thus compromises their neutrality at least to some degree. (5) The accountability of office holders and the supervising of other office holders points to the next rule-sharing conception of democracy. Knowing that democracy as such is no remedy against all injustices, the people agree to another self-constraint, exercising direct powers only partially. In matters of adjudication in particular, the democratic state forbids all interference by the people. The opposite conception is a direct democracy that, as pure or comprehensive democracy, reserves even adjudication as a responsibility for the people. The participation of lay judges and juries is accepted, of course, because trials require not only professional competence but also the universally human conception of legality; (populist) courts or party-dependent people’s courts, however, are strongly rejected. The power-sharing democracy was already known in Antiquity and consists of the ‘political polis’ – that is, the politeia or politie that Aristotle believed to be the best polity (Politics IV 8–9). From its Latin variant then emerges what in modern times is called the republic, which Kant characterises with an unusual pathos: “without a republic there is no salvation” (Reflections, no. 807b; on the history of the term republic, see Mager 1984). (6) The legislative character of democracy that is so well known to us today is a rather recent conception. In fact, as long as customary law was applied, the principle was “the law is trumped by long-established tradition” (Deutsches Rechtswörterbuch 1939, 814). In medieval times, Gratian advocated the legal notion “that good law is old (and old law is good)” (Otte 1974, 617). Interestingly enough the phrase “I will abolish the old laws and issue new ones” is spoken by the Antichrist (deponam vetera, nova iura dictabo: Tegernsee, Ludus de Antichristo V 185). The situation

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changed radically during modernity. Positive law was then ‘created’, and Hobbes’ famous formula auctoritas, non veritas facit legem (Leviathan, ch. 26, also: Höffe 1997) became the criterion by which democratic legality was assessed. As a clear contradiction to the earlier meta-rule, the stipulation became “the new law trumps the old”. There is, of course, a heavy counterweight to the danger of legal arbitrariness that would follow from that clause. Some legal sociologists, such as Luhmann (2004), ignore the corrective element, emphasise exclusively the autopoieses of the legal system, and therefore distort legal reality. The counterweight in Antiquity was the aischynê, the dishonour that resulted from a violation of the unwritten law (see Thucydides, The Peloponnesian War II 37). If this (archaic) morality of disrepute and its positive complement, the morality of shame (aidôs), become more or less powerless, then institutional requirements are needed – such as human rights, a (functional) separation of powers, and a political public sphere that can enforce something similar to archaic morality by forcing politicians who have “lost face” to resign. The legislative conception of democracy could be thought to unite and realise the first four conceptions because citizens demand authority over all laws they are henceforth subjected to. In actual fact, however, another, genuinely modern and not simply intercultural conception exists instead, which is an inevitable consequence of modernisation: the characteristic dynamism of societies of the European modernity requires an ever increasing number of controls that need continuous legislation, which in turn provides legislative democracy with a wide field of activity. Incidentally, there is no name for the opposite of legislative democracy: factually it is pre-modern democracy, insofar as it conceives the law as a given and, by and large, refrains from engaging in legislative activities. Legislative democracy, as a result, has a considerable problem: legislative proliferation (Verrechtlichung), which has three dimensions. The first dimension, a continuous increase in functions, represents the creative answer to certain unprecedented challenges (ch. 6.1). Due to changes in living conditions and an increased awareness of its responsibility, the legislature deals with a variety of matters such as education, science, culture, health, social affairs, the work environment, and environmental protection. Regulations are also constantly refined and consolidated, which leads to the second dimension of legislative proliferation: the ‘synchronous flood of norms’. Because some laws are enacted too speedily, or because ancillary constraints have changed, there is also, thirdly, a ‘diachronic flood of norms’, in other words: a continuous modification of the law. The proliferation of the law may become counterproductive in a fourth regard: in the propensity to produce a ‘state of magistrates’. What was meant to channel the dynamism of modern societies within legal corridors has come to have a paralysing impact on that very dynamism. There is also a proclivity towards a ‘legislative paternalism’ of the welfare state. The accrual of power of the constitutional judiciary is not merely an accomplishment of the rule of law but is also the extension of the authoritarian state by new juridical means (Höffe 1996, ch. 12; extended as Höffe 2003).

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The flood of norms has three consequences that have not so far been sufficiently addressed. First, the diachronic flood of norms amounts to a legal instability that undermines the fundamental purpose of the law: to provide legal certainty. It is no longer possible to take for granted that what is lawful today will still be lawful tomorrow. Of at least equal magnitude is the consequence of the synchronous flood of norms: the density of laws and regulations restricts the freedom of action to a degree that lets it occasionally, though not always, run counter to the law’s objective of providing freedom. Finally, the flood of norms has the anti-democratic corollary that the common citizen is no longer able to rely on his or her own legal expertise. Whereas one was formerly able to rely on a ‘natural legal conscience’ that was extended by only limited elementary knowledge of jurisprudence, one now depends more and more on the legal competency of others. The curtailment of legal autonomy flourishes paradoxically in that type of rule that is meant to serve its citizens: democracy. The proper functioning of democracy certainly requires opposing this development and reinstating the legal competence of citizens, who are the real sovereign of democracy. 4.3.3 Participatory Democracy (7) Participatory democracy can be said to be the perfect form of rule-exercising democracy (Lindner 1990; Klein and Schmalz-Bruns 1997). One of its preconditions is the political public (Plessner 1960; Habermas 1991; Rawls 1993, lect. VI; also Kant, Perpetual Peace, add. 2 and app. II). On account of such a public, the people constitute not merely a temporary electorate, possibly supplemented by continuous opinion polling, but are bearers of politics, even if they do not decide on everything directly. For direct democracy is neither the only nor the legitimatorily superior model (Böckenförde 1982; Gauchet 1995; also: Mill, Considerations on Representative Government, ch. 3). As part of a participatory democracy, the public has to fulfil many functions. In the corresponding venues – including pub discussions, the print media, radio, television, as well as science, conferences, academies and grass-root initiatives – the public sphere is not only a forum where interests and opinions meet but also an arena where parties fight over influence and power. It is also a critical forum to which the entire body politic, including the (constitutional) judiciary, is accountable. During the preparation for parliamentary debates, for example, the public aids in lifting them to a higher level of expertise, and posterior checks of political decisions may cause added revisions. Finally, an operational public facilitates the maintenance of inner peace as it allows the opposition to raise their concerns as well. The participatory democracies of the present day are the outcome of a long-lasting development, that is a process of political civilisation, sustained by cooperative institutions (such as enlightened bodies and constitutions), and supported by accommodating civic virtues. In an ideal world, democracy becomes a plebiscite that is reiterated on a daily basis. The opposite idea is the ‘not me’ attitude. The perils must not be underestimated, of course, particularly the loss of ‘civic democracy’: in contemporary democracies the part-time (or even honorary) practising of political

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office is giving more and more way to professional politicians. Ever so early in their lives do these politicians have to make the corresponding career decisions so as to enter ‘politics as a profession’ and associate themselves with established political parties. The limitation to legal autonomy is here supplemented by a second constraint: the political autonomy of citizens. Yet, wherever citizens do not leave their affairs to professional politicians, only a small fraction of the citizenry is actually willing to engage in these affairs. Democracy acquires an aristocratic facet, and the corresponding groups end up with a disproportionate weight in the process. Occasionally, participatory democracy is seen as an alternative to the constitutional type that complies with principles of justice in advance. A ‘radical-participatory’ democracy corresponds to the opposite of the fundamental democracy already mentioned: a ‘total democracy’. It is occasionally (and wrongly) termed republican, is contrasted with liberal democracy, and entails a preference for the sovereignty of the people over human rights (Barber 1994). The less radical variant suggested by Habermas (1996, III.III), which postulates that both human rights and people’s sovereignty share the same naturalness (on the relation between Habermas and Höffe see Pinzani 1999, particularly chs. 1 and 4), is also to be rejected with the argument from fundamental democracy: because no rule is legitimate without recognising human rights, rule-exercising democracy must also commit itself in advance to human rights. Not before its exacting determination does (legislative) democracy have any right. In view of ever-changing conditions, its task is to determine anew the detailed content of human rights so that they maintain their normative validity within constantly changing empirical constraints. (8) With regard to the personal and institutional preconditions of the political public, democracy is more than a type of rule. In its existential conception it is also a way of life or societal praxis where, contrary to a mere procedural democracy, real implementation is what actually matters: all citizens exercise their political and social rights and participate in decisions about expanding them. For our purpose we concentrate on only one of those preconditions: If the rule by the economically destitute and politically incompetent masses – a threat feared by Plato (The Republic 555b) as well as Aristotle (Politics 1279b) – is to be avoided, then better conditions need to be provided. The social conception of democracy applicable here gives social rights once more a functional role, and the freedom-advancing legitimation is supplemented by a democracy-advancing legitimation: in order to allow as many citizens as possible to fulfil the conditions of the fourth conception, democratic maturity, and since Mill’s objection that voting rights should depend on education has proved misplaced, empirical preconditions need to be met, namely improving educational levels. Aristotle thought a broad and reasonably well-endowed middle class was the required stabilising factor in an ideal polity. Even today, introducing democracy as a constitutional rule without at the same time providing the required social and economic conditions is rather imprudent. Moreover, economic improvements do not eo ipso result in greater democratic maturity. They may, in fact, do no more than raise the capacity to consume and, at the same time, reduce interest in public welfare.

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The demand for ever-increasing living standards, at least, cannot be justified from a democracy-advancing viewpoint. Politically mature citizens do not require much by way of material goods. (9) A further aspect of democracy is concerned with the third dimension, that of foreign policy: democracy is capable of promoting not only internal but also external peace. This is a point to which I will return later (ch. 9.3). Let us sum up our discussion so far. As with public powers, the concept of the people has to be distinguished into the legal–moral idea of a general will on the one hand, and a people in the empirical sense on the other. The idea of a general will corresponds to the first two aspects of democracy discussed so far, which are therefore granted legitimatory priority. As the embodiment of law-legitimising justice, they constitute the first legitimatory dimension, that of rule-legitimising democracy. The six subsequent conceptions, all aspects of rule-exercising democracy, lodge this thought into empirical reality and bring it to a certain level of completeness. Polities that recognise the elements of the second dimension only rudimentarily constitute “developing countries in qualified democracy”, but may be called “emerging countries in qualified democracy” if that recognition is sustained and advanced. The elements are thereby in part independent from each other: while in classical Athens slavery and the unequal treatment of women, both blatant violations of human rights, were accepted, it practiced the rule-exercising democracy even more so than modernity. Vice versa, there are states that outlaw slavery, grant equal rights to women, and recognise rights to freedom, but are not organised in a democratic way at all. 4.4 THE RIGHT TO BE DIFFERENT

When the conceptions of the rule-exercising and rule-legitimising democracy merge, the political ideals of the Enlightenment are realised: the citizens are free in a generally wholesome way; the force of the authority is contained, the authoritarian state is overcome; and a mature citizenry governs itself. In order to ensure that selfgovernance is more than just a verbal commitment, the citizenry must have room to manoeuvre and the right to roam within the state as it pleases. Citizenry must be more than the mere executive body of universal principles of justice; instead, it needs the right to be different. Such a right is required because of the indeterminateness of universal principles. Consider a thought experiment with an ideal legislator, an ideal Solon or an ideal parliament. Unlike an actual one, the ideal legislator disposes of all relevant knowledge and is thus omniscient. In a normative sense he is, unclouded by particular interests or passions, guided exclusively by principles of justice. He is therefore also universally just. Such a ‘super-legislator’ comes to mind on two levels. An ideal legislator of the first order knows of the specific constraints, therefore refrains from formulating abstract–ideal laws, and establishes ideal laws instead that are applicable to his particular polity, such as, say, sixth century Athens. Transferring these laws to another

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society constitutes an injustice inflicted on that society and betrays the objective of concrete–ideal legislation. The principles of justice derived from the original political contract, by contrast, require an ideal legislation of the second order. The abstract–ideal legislature in charge refuses to devise the same concrete–ideal laws for each polity. Since the legislator thus disregards the particularities of specific societies he does indeed set constraints, but nonetheless leaves the laws indeterminate. Even as one could never build a chair taking only comfort and durability into account, just so universal principles of justice cannot yield a concrete legal norm. Seen from the position of the philosophy of science, principles of justice are nothing more than a normative sketch that, if not supplemented with a wealth of additional elements, constitutes neither a specific institution nor a well-defined legal norm. Some of those elements depend on actual limitations, such as those imposed by the economy and its empirical constraints. These are rarely interpreted in only one way, which is one of many reasons why cultural particularities such as preferences, customs and emphases matter. Hence, no concrete law can be justified by philosophical means alone, and equivalent principles may result in different arrangements, if not different laws, between cultures. Even the ideal legislator is in no position to override these differences, and neither does he want to. Thanks to his omniscience he is aware of them, and because he is universally just he strives to offer them an equal-handed justice. From this follows a separate, eighth principle of justice: the polity’s right to be different. The result appears paradoxical at first: interculturally justifiable principles of justice are culturally open, whereas universal principles are concretely implemented. This culturally open universalism, or ‘modest universality’, is a limit for both the ideal Solon as well as the ideal parliament. It is only because of this limit that participatory democracy gains significant scope for action. Mathematics is a different case – an ideal Pythagoras is not subjected to the same constraints as an ideal Solon, because the difference between abstract–ideal and concrete–ideal laws is irrelevant in his case. If democratic discourse endeavours more than to reconstruct human rights that are universally and eternally true, and if it faces the challenges of concrete implementations and political choices, then it must accept the right to be different and use, at its own specific discretion, the scope made available through the principles of justice. From the indeterminateness of universal principles arises a right to make those principles concrete, and only because of this right does participatory democracy gain a significant scope for action. Since universalistic theories are inclined to understand universality as uniformity, and since their antipode, communitarian theories, link their objection to uniformity to an objection to universality, both overlook the following connection: the more rights we would like participatory democracy to have, the greater must be both the indeterminateness of the universal principles and the right to be different. It is, vice versa, impossible to strengthen participatory democracy without simultaneously reinforcing the right to be different. Otherwise democracy would be reduced to the mere executioner of an ideal legislature.

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The right to be different nullifies the now infertile antithesis between universalistic and communitarian theories (see chs. 10.1 and 10.2). Freedom of religion is a good example. As a principle of human rights it demands religious tolerance, so that no polity is considered legitimate that prohibits the practice of a religion (including atheism), persecutes members of other religions or those wishing to leave its own religion. Beyond this minimum of an individual right to negative freedom of religion, there is also the minimal demand of a positive right to freedom of religion, which allows for one’s corporative and institutional association with a church. The double demand that is already incorporated in article 18 of the Universal Declaration of Human Rights leaves ample scope for more precise determinations: freedom of religion as a principle of human rights does not preclude a polity from perceiving itself as Christian, Muslim, Jewish, or Shintoist. A strictly atheist or secular organisation of the constitutional and legal system is not required from a human rights perspective. Freedom of religion accepts freedom as a conceptual framework that can be filled out in various ways depending on a society’s history and political will: France’s laicism, for example, is perfectly acceptable; it overcame the persecution of the Huguenots through a strict separation of Church and State, but departs from this precept in the region of Alsace-Lorraine. The USA, founded as a refuge for persecuted religious groups, pursues the path of ‘benevolent neutrality’. Germany as well as Austria and part of Switzerland allow an institutional linkage between Church and State, but explicitly rule it out in their political and constitutional core: while a state church as a legal form is outlawed, the major churches are allowed to operate as public corporations and be “bearers of public competencies and rights” (Decision of the German Constitutional Court 19, 129 [133]). On the other hand, Scandinavian countries, and in a different way Great Britain as well, allow their reformed churches to take on the character of a state church. In addition, Israel accords Christians, Druses and Muslims full freedom of religion, grants them their own jurisdiction over such legal matters as marital and family law, but affords Judaism far-reaching privileges nonetheless. For example, one third of cultural expenses are borne by the state and two-thirds are borne by the communities (for an overview, see Hollerbach 1989). Due to the indeterminateness, or positively, the openness of the principle of religious freedom, polities may also solve the question of schooling in different ways: some may establish schools that are arranged along religious lines, others may allow (or exclude) religious education. Similar concerns apply to cultural policy. Whether a polity should actively promote or even direct music, theatre, museums and a society’s other artistic activities, or whether that should be left to private interests; whether only the fine arts should be supported or the art-related interests of the broad masses as well; whether state subsidies should be dispersed centrally or in a federal manner; and whether the support of culture should remain within the domain of interior policy alone or whether it should become part of foreign policy as well: all these questions may be answered in a discursive way. Yet, the responses depend upon a polity’s specific constraints, its particular history, and the (perhaps changing) conception it has of

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itself, so that there is again a right to be different. Part of this right is that a multicultural state such as Malaysia may sanction a complex coexistence of three forms of legal organisation: autochthon custom law, Islamic Scharia, and colonial British customary law (see Suffian 1992). The exacting determination of universal principles aside, there is the additional responsibility of weighing the various rights that polities, due to their openness, may carry out in different ways. Weighing freedom of speech and freedom of the press is a topical example: should the exercise of these rights allow that violations of the law such as robbery, kidnapping, possibly even murder and genocide be filmed for TV instead of actively intervening to prevent them? Is it permissible to lower, or even violate, the privacy threshold for so-called public figures? In the USA, the core of freedom of speech is next to inviolable, so that even right-wing extremists enjoy the full protection of that right as long as they operate without using violent force. This does not prevent them, of course, from being completely sidelined by political competition. What is more, in Denmark, denying the Holocaust is not even punishable by law. A further weighing of goods is required as to the question of what types of evidence should be admissible in criminal trials. Here, the human rights precept of the protection of one’s privacy has to be weighed against the objective of combating crime, which is also required from a human rights perspective. What is more, for the positive rights to freedom, a choice has to be made as to how scarce resources are to be distributed to competing ends, such as education and health. Since the protection of freedom rights is also dependent on resources – how much policing is required for the protection of the law? – positive and negative rights must even be weighed against each other. The economic system is another example where distinctions between human rights are legitimate (for a detailed discussion, see Homann 1994–98; Koslowski 1997; Lenk and Maring 1992; Rich 2004; Sen 1987). Certainly, the concept of human rights requires a right to private property, free competition, and a minimum level of social and ecological standards, so that a social and ecological market economy attains the rank of a human right. A relatively wide spectrum of legitimate possibilities nonetheless remains, such as the question of the extent of the right to private property. Does it apply exclusively to consumer goods or also to the means of production? In the latter case, does that apply to nearly all or only to some? And how far is competition allowed to go? Should it extend to education and health also? And if so, does it apply to their basic structure only or also to individual institutions such as schools, universities and hospitals? There exists, third, some legitimate scope as to the determination of social standards and the trade-off between them and incentives for self-initiative and responsibility. Two ideal models can be differentiated that set different priorities within the overarching model of the social market economy. Both models can claim democratic legitimacy and demonstrate that the empirical and the normative aspects of the economic order can be weighed in different ways: content with relatively few social entitlements, the ‘American model’ relies more heavily on the market, entrepreneurship

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and competition, and thus experiences not only a higher degree of innovation and generous patronage but also increasing gaps in income and wealth. Putting a stronger emphasis on the social, the ‘Continental European model’ combines much higher social demands with significantly less leeway for competition and entrepreneurship. The result is smaller gaps in income and wealth but also (at least presently) a slower rate of innovation, higher unemployment and weaker levels of patronage. Social– economic mobility too is much less pronounced than in the USA. It appears that this indeterminateness of universalistic principles has some far-reaching implications. It grants polities a universal claim to particularity and is roughly comparable with the right to individuality that accrues to humans, not despite but because of universalistic morality.

CHAPTER 5

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The original political contract is directed only at the basic model of a community, its legal form and the nature of its rule. In the course of history, however, polities have adopted complex structures, the assessment of which is best carried out according to two well-proven principles, namely those of federalism and, more recently but still controversially, subsidiarity. These principles do not compete with the contractarian idea because they remain attached to legitimatory individualism. However, the focus of these principles is less legitimation itself, but the two resulting questions as to a polity’s competence (subsidiarity) and its organisation (federalism). 5.1 TRADITIONAL SUBSIDIARITY

Subsidiarity as a concept is known from Christian social ethics, where it is concerned with people’s predicaments. It requires that individuals help themselves first, and that, if outside help is required, non-state communities that are ‘smaller’ and nearby have precedence over ‘larger’ ones, in particular the state community itself. This notion seems plausible but, nevertheless, raises some concerns as far as the theory of the state is concerned. The objections begin by pointing to subsidiarity’s origin in Christian social ethics, which, so it is feared, raises questions as to the universal applicability of state theory. However, the idea of subsidiarity is not inspired by authentically Christian ideas, but by a philosophical social theory. Given that this theory predates early modernity (Althusius, Politics, 1614; also: Ludolph Hugo, De Statu Regionum Germaniae, 1661) and the Middle Ages (Thomas Aquinas, Commentary on Aristotle’s Nicomachean Ethics XI 1, 6) up to Antiquity, and to Aristotle in particular, the idea is seen as being dependent upon an outdated notion of social philosophy and, consequently, its universal validity is put into question yet again. However, the tradition-based elements can be filtered out, so that a modern concept of subsidiarity remains. Because of the idea’s potential universal applicability, a third objection, the suspicion of ideology, is rebutted en passant. The fourth objection is etymological. The Latin term subsidium originates from military terminology and does not refer to any kind of assistance, but to a reserve force; expressed in economic terms it is an emergency provision, which under favourable conditions is not needed at all. Our understanding of Christian social ethics thus overlaps with the original meaning of subsidiarity as a second-order assistance that is required only when the primary assistance – self-help and the help of neighbouring groups – proves insufficient. With such an interpretation of a (cooperative) emergency provision, the state would not be necessary in principle, but 83

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only in times of emergency. The three implementation tasks identified in the original state contract are at odds with this understanding. However, they amount to a subsidiary legitimation of the state that not only confirms the principle of subsidiarity but also makes it fundamentally important. According to the argument from realisation deficits, in a pre-state, purely natural legal community self-help fails and renders the assistance of others necessary: although public powers are fundamentally required, they are not an end in themselves but serve the reality of just law. According to a fifth objection, there is no place for subsidiarity, at least not within the framework of the modern state, and in particular as concerns its authority to make decisions regarding all affairs and responsibilities, the so-called ‘responsibility to allocate responsibilities’ (Kompetenzkompetenz). However, this objection only applies to a state positivism that uncouples the legitimation of the state from its limitation, that is, a state absolutism that contradicts not only the theory developed here, but also of the reality of the democratic state. Bound to the substantial principles of a written or unwritten constitution, its responsibilities are limited from the outset. A final pragmatic objection refers to the coordination problems and frictional losses that result from subdivided responsibilities in a society based on the principle of subsidiarity. However, such difficulties are not specific to subsidiarity. No society of conventional size can function without subdivisions. What is more, the difficulties can be addressed by assigning clear responsibilities. Now that these objections have been countered, we can proceed with a constructive discussion and explore the state-theoretical opportunities of subsidiarity (for a seventh objection see point 5 below). We begin with the traditional concept of subsidiarity and develop a modern version thereafter. We must probably credit the German bishop Ketteler (1977 [1862], 244–247) with the introduction of the principle of subsidiarity into Catholic social theory, where it has settled ever since the first social encyclical, Pope Leo XIII’s Rerum Novarum (1891). One could even refer to a much older text, a passage from the book Exodus (18, 18–22). There, Moses receives advice from his father-in-law Jethro (18, 13–27) that he should save his energy by subdividing the people and establishing rulers (judges) to oversee 1000, 100, 50 and 10 people each, so that they settle all minor matters. Yet, this suggestion is not driven by concerns for subsidiarity, because the relief of the pressures on the system proceeds top-down, not bottom-up, and is not brought about for the greater well-being of individuals. The classic definition emerges in Pope Pius XI’s social encyclical Quadragesimo Anno (1931). The relevant section ‘The new social order’ (sections 76–80) begins systematically with the social pathologies of the time, though less so with the immediate problems of the economic crisis that began in 1929, the bloody rule of socialism in the Soviet Union, and the beginnings of Italian fascism or German national socialism. Rather, the diagnosis refers, almost ignoring the times, to an impoverishment of social structures that has left only two actors: individuals and the state (singulares homines et res publica). The excessive demands that are then directed at the state are kept at bay by the principle of subsidiarity as the “most weighty principle” of social philosophy: every activity of society, so it is claimed, is subsidiary

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by virtue of its strength and nature; it must support the constituents of the social entity but must never usurp or destroy them. In the end the state will not lose its power, but will fulfil the tasks it is responsible for “more freely, powerfully, and effectively”. (Further Höffe 1996, ch. 10; Höffe 1997a; in addition to literature cited in these texts, see Cattacin and Kissling-Näf 1997; Dichmann 1994; Isensee 1988; Pieper 1994; Richli 1998; Waschkuhn 1995.) Responsible for the legitimate responsibilities of institutions, the principle of subsidiarity ‘disenchants’ even more than the disrespectful diagnosis of system theorists (see ch. 6.1). It recognises the fact that the state is neither exclusively nor primarily responsible, that it overestimates its abilities at any rate, and criticises it for transgressing its authority. While the former relates to the limits of what the state is able to do, the latter refers to the limits of what the state is allowed to do. Understood as a state-ethical principle, subsidiarity grants the state a fundamental legitimacy but strongly constrains its responsibilities in favour of non-governmental institutions. In its original (not only state-ethical) meaning, the principle is concerned with all aspects of the social. Its content is thereby doubled. ‘Constructive subsidiarity’ arranges for the entire social sphere, including the state, to be of service to others, for which the ‘critical subsidiarity’ represents an absolute limit: destroying the constituents of the social entity, or merely depriving them of their independence, is never permitted. On closer inspection, seven aspects are of importance; they are all free of any elements of specifically Christian or genuinely religious nature: 1. Subsidiarity contradicts all definitions of the social that focus only on its functional, organic, collectivist or utilitarian character, as well as any hypostatisation of the community. Following legitimatory individualism, it postulates the individual as the deciding reference point and normative standard (Christian social philosophy speaks of a ‘principle of personality’). 2. In their more recent assessment of the subsidiarity idea, social and political scientists are inclined to equate the principle with delegation and decentralisation. As Jethro advised Moses, when one delegates one surrenders responsibilities that may demand too much but to which one is nonetheless in principle entitled. The principle of subsidiarity proceeds in the opposite direction and establishes all of its justifications from below, from the individual, for whom it postulates simultaneously a ‘right of competence’ and a ‘prohibition of denying that competence’: what individuals can perform based on their own initiative and resources, may not be taken away from them and reassigned to the community. Individuals have therefore a right as well as a duty to be autonomous and responsible for themselves. A superior authority that violates this right, for instance by expanding the state into a comprehensive Welfare state, acts not only imprudently (because it demands too much of itself) but also illegitimately (because it is guilty of arrogating responsibilities to itself). Recent political science turns out to be too much based in tradition, despite its criticism of the traditional understanding of the state. It presupposes that the state has responsibilities, a ‘statist’ and anti-subsidiary stance. The subsidiary legitimation approach does not stipulate that lower-level units, such as families, welfare associations

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and communities, are made to serve those above, possibly because the latter may no longer be able to get by on their own. Rather, in accordance with legitimatory individualism, the units above have to justify their responsibility to those below. Excessive responsibilities are not delegated but returned to the lawful proprietor as arrogated responsibilities. The flipside of the prohibition of denying competencies is the precept of a return transfer. The fact that, with the corresponding loss of power, the authorities above fulfil their remaining, legitimate responsibilities so much better is gratifying; yet this is not the actual purpose of subsidiarity, merely a welcome side effect. 3. The idea of subsidiarity postulates an empirical presupposition that is compatible with contract theory but is not the focus of its attention. The presupposition can be justified by connecting an anthropological examination with elementary social theory: even if society represents for Humankind nothing but an emergency stock, it is nevertheless of fundamental necessity. This necessity consists of a hierarchical order of smaller communities closer to the individual as well as larger ones that are more remote. The basic idea can be traced back to Plato’s thesis that individuals cannot live alone (ouk autarkês) but are in need of many companions (pollôn endeês: The Republic II 369b). According to Aristotle’s more prolific idea, man and woman get together for the purpose of reproduction, and master and servant (or more neutrally: individuals with different levels of economic attainment) do so for their personal survival. These two relations, complemented by the third between parents and children, constitute the basic social structure, the household (oikos). And because adult children in turn establish households on their own, a larger unit forms, that of the village community or clan (kômê), whose common bond is nurtured by the knowledge of common forefathers (homogalaktai, ‘milk comrades’: Politics I 2, 1252b18). According to this ‘typical subsidiary’ legitimation, there are not first communities that are latter approached for help. Rather, help is at the root of their existence: communities are established precisely because of individuals’ need for help (and because both the need for help and the help itself occur mutually, elementary communities turn out to be communities of solidarity that provide reciprocal assistance, or ‘help in reciprocity’; see ch. 3.6). Larger, more comprehensive and thus ‘higher order’ communities establish themselves as well when the capacities of the hitherto existing forms prove no longer sufficient. In the course of the social genesis described by Aristotle, the biological aspects that prevailed initially retreat into the background: thanks to a community of the good and the just, which owes its existence to its capacity to reason and to speak, Humankind creates for itself a higher and now artificial unit: the political community that is the state. However, the socio-theoretical basis remains the same: cooperation, not conflict (on the interpretation of Aristotle, see Höffe 2003, ch. 15). Thanks to the great Aristotelian of the Middle Ages, Thomas Aquinas, this social anthropology remained influential well into modernity. It greatly influenced the reformed federal theology of the seventeenth century and is reflected to this day in the communal autonomy of Calvinist canon law. In the seventeenth century, it made

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its way into the political work of the Calvin-inspired state theorist Althusius (Politics II 37) and his tiered, multi-levelled organisation of symbiotic consociations (consociationes symbioticae). These ascend from the private natural community, the family, via private-civic professional associations to public communities, municipalities and provinces, and end with the imperial federation. 4. Normatively, the principle of subsidiarity can be broken down into two criteria: positive and negative subsidiarity. ‘Positive subsidiarity’ is concerned with the precept of assistance (“constituent members are to be supported”), while ‘negative subsidiarity’ is a reinforcement of the prohibition of denying competences: the prohibition of destruction (“never destroy or usurp”). Each criterion contains two parts: initially, the precept of assistance puts the social at the service of the individual (and since service is to occur by way of reciprocal assistance, Christian social theory speaks of a third principle: the personality and subsidiarity of solidarity). Only in the second part does the principle of subsidiarity postulate what is mainly expected of it: that within the framework of a hierarchy of communities it is first and foremost the smaller and subordinated communities that be called upon. However, if one takes seriously the primary element, the precedence of the individual, then no absolute priority is owed to the lower social units. Here, the usual understanding needs to be corrected: in conflicts of responsibility it is not the fundamentally smaller and more familiar community that is to be strengthened, but rather the one that best serves the individual. Now, clans may be able to support and sustain an individual, but they also come with tight fetters. If the person wants to be free from them and use this greater independence for a greater capacity to self-help, and if moreover this person wants to take pleasure in the cultural achievements of an urban civilisation, then lower units will be inevitably weakened. The continued existence of strong clans is neither an intrinsic good nor required from the viewpoint of the theory of subsidiarity. However, it can prove necessary under certain conditions for the survival of minorities such as the Roma (the self-given name of some Gypsies that literally means ‘person’). A second argument speaks in favour of correcting the standard version. Yerushalmi’s (1995) point about the Jews can be generalised: minorities can benefit from a strong central authority because it can guarantee the protection of the law in a way local or regional authorities are often unable to. This is why in the Middle Ages independence from intermediate (feudal) authorities was a sought-after privilege. At any rate, the principle of subsidiarity does not require state responsibilities to be limited as far as possible, but only as far as this is beneficial to individuals. Contrary to the general precept of the demise of state power, it is a ‘precept of adhering to the level of the individual’. 5. The other, negative side postulates that the required responsibilities not be made any greater than necessary. According to this ‘precept of limited responsibilities’, the community must not take over what individuals are capable of doing on their own, and must make no demand against the larger community for what the smaller unit is already capable of – provided it serves the individual best. Long before Quadragesimo anno, but not before its inspirational fountain, the encyclical

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Rerum Novarum (1891), the state theorist Jellinek (1914, 258) wrote along these lines: “only as far as free individual or communal action is unable to achieve the stated purpose can and must the state take over”. A distinction needs therefore to be made between those responsibilities of the state that are caused by the three reality deficits and are therefore compulsory, and those that are optional. While the state may not exempt itself from its duties as regards the former, for the latter it has to consider, in areas such as educational, cultural and economic policy, what is to be left to, or better yet, not to be taken from lower units, voluntary self-help groups and individuals. The belief that in today’s highly technocratic society the larger unit is better able to fulfil all essential responsibilities (Bull 1995) underestimates the problem-solving capacity of smaller units. 6. In order not to expose the individual to a single, possibly over-powering social unit (of which also too much is expected), the principle of subsidiarity extends the negative prohibition of destruction to a constructive ‘precept of intervention’. It demands that intermediate social structures be strengthened where they already exist and be established anew where they are absent. Seen from the viewpoint of state legitimation, this precept complements certain precautions, such as the separation of powers with which the gap between the real and the ideal state is reduced (see ch. 4.2). Subsidiarity raises an objection against the danger of the state accumulating excessive power while the pre-state society loses its influence. 7. The last aspect, the specific type of obligation, also does not consist of specifically Christian notions, such as the cheerful morality of benevolence we are familiar with, which is known in its secularised form as compassion and philanthropy. The encyclical speaks of injustice, e contrario of that culturally universal and modest morality that is also the basis of the legitimation of the state. Moreover, it draws attention to a collective self-inflicted damage. Seen normatively, subsidiarity is primarily a precept of justice, secondarily one of public welfare. The notion of subsidiarity is related to the recent socio-theoretical movement of communitarianism and its advocacy of small and established social units (see ch. 10.1). However, communitarianism contains an aspect that is alien to subsidiarity: a precedence of the social form ‘community’ with its personal network of relationships and communal bonding, at the expense of ‘society’ as an impersonal and purposeful association. As Tönnies has shown in his classic treatise ‘Community and Society’ (2002, 3), there exists both a functional difference between the two social forms and also a socio-theoretical complementarity. For “all familiar, discrete and exclusive co-existence [. . .] is understood as a life in community. Society is the general public, the world. From birth, we exist alongside our compatriots in a community, to which we are bound in good and bad times. We enter society in the same way as we go abroad for the very first time. It comprises a community of language, customs and beliefs, but it is a society of appropriation, voyage and science”. Subsidiarity opposes the risk communitarianism incurs of doubly exaggerating the significance of communities. Against a glorification of intermediary communities that subscribes to the notion of ‘small is beautiful’, the principle of subsidiarity grants a right to superior legal and governmental structures, even to an extension of

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the social hierarchy that goes beyond individual states towards a general, initially large-scale regional (for example, the European Union) and later a global social unit. On the other hand, it opposes hypostasizing the social and sees the individual as the determining standard. Communities have no end in themselves, but rather serve their members, and foster their independence and their ability to help themselves. What is more, the anti-universalistic, even anti-enlightenment pinnacle of some communitarians (for example, MacIntyre 1985 and 1988) is alien to the notion of subsidiarity. Ockham developed the ontological scientific principle of parsimony. According to ‘Ockham’s razor’, philosophy and science should get by with as few theoretical entities as possible (entia non sunt multiplicanda praeter necessitatem). Analogously, subsidiarity can be interpreted as a social and political principle of parsimony that appears in two phases. It requires in the first phase that only those social or political institutions are created that are required by individuals. In line with the second phase, the social and political institutions, if indeed required, receive only responsibilities that are necessary. 5.2 MODERNISATIONS

While it is not expected that an ecclesiastical encyclical provide philosophical explanations, one counts on a convincing viewpoint. This certainly applies to various aspects of the subsidiarity idea, such as the legitimatory precedence of the individual over the community, its lack of autarky, the plea for a structurally rich social world, and, not least, the emphasis on justice. Other aspects, for their part, depend on a now outdated tradition. In order to be universally applicable, one must free oneself from it and pursue a number of normative modernisations: Due to the prohibition of destroying the constituent elements of a social entity, solidarity may demand that those communities that have become obsolete be reconstructed, such as the clan or the larger family. Unlike this ‘anti-modernism’, a first form of modernisation insists upon generally strengthening intermediary authorities, but leaves their detailed design to the respective epoch and culture. A second form of modernisation avoids exaggerating individual states’ potential for autarky, something that has dominated the western theory of the state since Plato and Aristotle. Individuals’ lack of autarky is eliminated only with larger units, and eventually with a union of the entire human race. Here, the standard understanding of subsidiarity has to be corrected a second time. In line with the first correction, subsidiarity can also demand that intermediary communities be weakened, though admittedly not the entire intermediary domain; according to the second correction, the social order is to be extended beyond the individual state, traditionally the highest unit. In the third form of modernisation, the traditional social order is qualified in an even more drastic fashion. While the two first stages of modernisation remain faithful to a vertical and linear organisation of larger social units, the third stage introduces a horizontal dimension. The vertical dimension, which is comprised of the sequence of families, welfare associations, local authorities, districts, regional entities,

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federal states etc., is supplemented by a horizontal variety: a pluralism of religions and additional social groups and political powers (see ch. 6.3.2). The right to have their own interests, convictions, values and their own particular way of life is thereby afforded to an ever-greater number of groups. This leads to an enhancement, but also to an endangering of the intermediary space that subsidiarity requires. Both are suppressed in the traditional understanding of subsidiarity. In so far as a given complex of interests, convictions, values and behaviours can be called a culture, society becomes multi-cultural. Exceptions like Malaysia aside (see ch. 4.4), the core of its social grammar, the legal system, remains of course mono-cultural. Pluralism features an aspect that does not necessarily object to traditional subsidiarity, but that is at odds with the underlying social anthropology of cooperation: the behaviour of pluralist groups towards each other is primarily characterised not by reciprocal assistance through solidarity, but by rivalry and conflict. The recognition of this fact constitutes the fourth form of modernisation and also represents an extension of the pre-existing similarity with the legitimation of the state. As long as traditional subsidiarity underestimates conflict, it displaces the responsibility of justifying the authority to compel. The principle of subsidiarity modernises itself once it faces this responsibility and provides answers through the various features of democracy: in line with rule-establishing democracy, authority originates from all those concerned, the people. According to rule-standardising democracy, the approval is tied to the acknowledgement of principles of justice in general, and of human rights in particular. As such, the injustice that has been tolerated by traditional subsidiarity, such as slavery and the unequal treatment of women, is rejected. Also, according to rule-exercising democracy, the people govern themselves and, of course, acknowledge these demands as well as those postulated by participation and the separation of powers (see ch. 4.3). Due to this far-reaching concurrence, the principle of subsidiarity appears to be superfluous for the modern state. However, the danger of the state accumulating too much power, which subsidiarity opposes, already speaks against this idea. Furthermore, according to the second modernisation, there are to be additional political units above the level of the state, which raises questions about the division of responsibilities. In both areas, the relation between pre-state and extra-state linkages as well as within a federal state of either individual or global scale, subsidiarity acts as a principle of ‘burden of proof’ that deserves to be of constitutional rank. Put simply, the first, rule-establishing concept of democracy denominates the origin of all state power: basic and human rights determine their legitimate contents; and democracy as an organisational structure (including participation and the division of powers) in conjunction with federalism (see ch. 5.3) establishes those powers. However, since all four principles formulate only basic conditions and constraints, not concrete policies, considerable room remains for the exercise of rule. The current theory of the state lacks a criterion for the distribution of responsibilities. The principle of subsidiarity fills this gap and thereby enhances the constitutional terms of reference for a democracy. In the case of a federally structured state, it protects local authorities against regions, regions against the state, and the state against

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a higher entity such as the European Union or a global political order. Finally, it protects individuals and their pre-state and extra-state relationships (‘society’) against any of these public powers by assigning responsibilities to the lower level – of course, only in so far as it serves the individual. A principle such as this that assigns responsibilities to the lowest level possible does not take away from higher authorities the greatest degree of responsibility possible. It is not necessary to be continually decreasing responsibilities. Still, the higher units should focus on their original responsibilities and leave to the lower units what the latter are able to perform for themselves. The motto of subsidiarity reads: in dubio per individuo vel minore (‘when in doubt, give preference to the individual or the lower unit’). The principle of subsidiarity criticises in two ways the tendency of modern states to appropriate, in the name of sovereignty, an ever increasing number of responsibilities – since political order proceeds from below, it opposes a growing centralism and favours instead communalism, regionalism and federalism. Since social responsibilities are to be carried out as far as possible from below, the principle of subsidiarity is also responsible for the state’s social component. As is well known, in continental Europe in particular the Welfare state has taken over functions that reach beyond its original responsibilities, such as social security, social assistance and public health, and now extend to large sections of the health service, secondary and higher education, cultural policy, the labour market, economic policy as well as the promotion of technology. Two arguments in favour of such an expansion have already been mentioned: the democracy-enhancing and freedom-promoting function of certain social rights (see chs. 3.3 and 4.3.3). It is, thirdly, possible to appeal to certain social-historical developments, in particular the undermining of the influence of primary communities of solidarity, such as families, clans, professional associations and local authorities. In so far as the political community, the polity, does not only coordinate these communities but also constrains them in their rights and status and, moreover, “squeezes” them financially through the imposition of taxes, corrective justice requires some sort of reparation: not a wholesale takeover of responsibility, but one that is proportional to the authority that has been undermined. The argument from corrective justice also applies to special risks that arise in the course of structural transformations of society. According to these three arguments, the legitimatory core of the Welfare state is not to be found in an original community of solidarity, and only narrowly so in a community of distributive justice. The link between the notion of social rights that promote freedom and democracy with that of corrective justice is more important. A state, which, whilst undertaking its duty to compensate and its responsibility to assist commits to the corresponding tasks of solidarity, grows to be a community of solidarity itself; but seen from a legitimation-theoretical viewpoint, this occurs only in a secondary sense. Original tasks of solidarity may, of course, come to that: where the state’s policy transforms the living conditions of its citizens directly – most markedly so during a war – it is responsible for the results. The principle of subsidiarity is pertinent with respect to two elements of the Welfare state: the extent of its responsibility and the way by which that responsibility

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is exercised. It stipulates that self-help has precedence over assistance from others, and that for the latter pre-state assistance has priority over that provided by the state. A state monopoly for welfare cannot be justified. Further, it remains to be verified whether the undermining of the power of primary communities of solidarity that has been pursued over time is so unmistakably advantageous for individuals that their partial re-instatement is not allowed. At any rate, indirect assistance, that is enabling individuals to self-help, is to be preferred to direct help. Rather than having a state that feeds its people, it is better to provide them with opportunities to work. Rather than increasing the role of the public sector in the state’s economic output and creating work only in the public sector, it is advisable to also provide the right conditions for economic activity that will eventually lead to additional employment. Also, by virtue of its dependence on resources, the Welfare state is constantly subjected to the proviso that it be capable of operating at maximum levels of efficiency, a fact that tends to be forgotten in times of economic growth. Its job cannot and must not be to ‘unconditionally’ preserve the living standards that have been achieved. In any case, the idea of subsidiarity throws into doubt the ever-greater expansion of the state into a comprehensive Welfare state and demands that it limits its responsibilities to core activities. Although subsidiarity is primarily understood as a normative concept, it can also be interpreted empirically and ask whether social reality follows from it. Cultural anthropology answers in the positive and thus contests any misgivings that subsidiarity may be out-of-touch with the real world. When structuring the relationship between small and large groups, even cultures that are very different from each other all abide by the same principle: “as much central state as necessary, as little central state as possible” (Giordano 1994). Responsibilities can usually be defined in both generous and narrow ways. Within the general definitional scope available, the principle of subsidiarity assumes a second responsibility which constitutes the rule with respect to the way responsibilities are to be exercised. It emerges once more as a principle of “burden of proof”, which can be specified according to three criteria: the requirement clause insists that a higher authority actually be required for that particular purpose; the ‘better’-clause insists that it must do so more competently than the lower authorities are able to; and according to the precept of proportionality the encroachment of the higher authority is to be limited to (a) the required magnitude, (b) the necessary depth of the regulations and provisions, and (c) the required intensity of the regulations. For both functions, the distribution of responsibilities and the way they are exercised, scrupulous care must be taken not to interpret subsidiarity wrongly, neither as a precise decision rule nor, conversely, as functionally incompetent. It ranks as a principle, not as a decisive criterion or a book of prescriptions that gives concrete political instructions, and not even as a ‘scaling device’ that would measure political alternatives as more or less compliant with the principle of subsidiarity. Given that it depends on additional considerations about material requirements and side constraints, the principle of subsidiarity does not set out any precise recommendation as to how to proceed. It is an open and supple principle that limits itself to

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providing two sets of directions: as soon as a higher state unit endangers a lower unit’s capacity to perform, it must limit its activity – unless it thus serves the individual as a determinant factor. Where a self-restriction imposed after the event no longer suffices because the lower units’ capacity to self-help has atrophied, the higher authorities have a duty to regenerate the lower units. For reasons of compensatory justice, they help foster self-help and arrange for the provision of those (financial, organisational or other) means that will enable the lower units to help themselves. For part of the principle of subsidiarity is the so-called ‘precept of return transfer’: individuals or lower units that have become capable of self-help again must be re-awarded the corresponding responsibilities. Let us establish the subsidiarity that emerges in these forms of modernisation as another principle of justice. The ninth, again rule-exercising principle of justice, the universal precept of subsidiarity: State responsibilities are legitimate only in so far as individuals and pre-state social units require assistance. As part of a multi-levelled statehood, responsibilities are to be granted as far down as it is of benefit to the legitimatorily final authority, the individuals. A complete list of principles of justice. The principles of justice in their entirety can be classified along three dimensions; because of its objective rank, we begin with the principle of proto-justice. I. Law-constituting justice The principle of proto-justice: All members of the species of accountable beings recognise each other as legal subjects, through an original recognition by oneself as well as by others. (1) The universal precept of the rule of law: As the embodiment of rules that are strictly applicable in every respect, the law opposes personal arbitrariness and personal force and, for that very reason, is to prevail among all human beings. II. Law-standardising justice (2) The principle of greatest equal negative freedom: Through the reciprocal abandonment of rights to freedom, each subject acquires that same maximum amount of freedom to act, which, according to the first principle of justice, is feasible with universally valid rules. (3) The principle of comparative positive freedom: (a) Through reciprocal positive provisions each legal subject is to obtain an elementary positive capacity to act, which can be presented as certain positive rights to freedom. (b) In so doing, the rule-based order as the first principle of justice is acknowledged: only those positive rights to freedom that can be realised according to universally valid rules are just. (c) The second principle has priority over the third: only those positive rights to freedom are just that are compatible with the principle of the greatest equal negative liberty.

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(d) The provisions of positive rights to freedom are dependent on culture and resources and are comparative in nature. (e) The third principle of justice is not substantiated via a justification that is exclusively based either on exchange, corrective justice, or distributive justice. III. Law-realising justice (4) The universal precept of creating a legal order and a state: In order to realise justice, a state under the rule of law, as the embodiment of public powers, has to be established. (5) The principle of the separation of powers: Public powers are to be separated. (6) The universal precept of democracy: Every rule is to be exercised in the name of the people and for the benefit of the people. (7) The universal precept of a rule-exercising democracy: In order to achieve law-realising justice, the rule is to be exercised by the people. (8) The principle of difference: Communities have a right to be different. (9) The principle of subsidiarity: State responsibilities are legitimate only in so far as individuals and prestate social units require assistance. Also, as part of a multi-levelled statehood, responsibilities are to be granted as far down as it is of benefit to the legitimatorily final authority, the individuals. 5.3 FEDERALISM

The West has been familiar with federalism for a very long time, at least since the ritual and religious associations of the Greeks, the Amphictyonic leagues, and later the Aitonic alliances of central Greece and the Aitolic alliances of the Peloponnese. Federalism was already known to biblical Israel from the period of the Judges (2 Sam 5, 1–3; 1 Sam 10, 20). Today it forms the basis of European as well as nonEuropean states, and its attractiveness continues to grow: the ‘classic’ cases of Germany, Canada, Switzerland and the USA aside, only three federal states existed at the beginning of the twentieth century: Argentina, Brazil and Mexico. By the end of the century, however, 52 percent of global territory and 40 percent of the world’s population boasted a federal organisation (Fraenkel 1984, 134). In spite of this political success, there is a rich literature on federalism from a constitutional viewpoint (for example, Deuerlein 1972, Maier 1990, Reuter 1991, Scharpf 1994, Stewart 1984, Usteri 1954 and 1977, Wheare 1963), but barely anything is said from the viewpoint of the philosophy of the state. Two paradigms reign: the selfsufficient city republic of the Greeks and, later, the centralised Roman Empire. It is true that in modern times we read in Montesquieu a passage about the république fédérative, with Germany, Holland and Switzerland mentioned as examples (On the Spirit of

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the Laws IX 1–3), which Louis de Jaucourt reiterates almost verbatim in the Encyclopédie in an article of the same name (Koselleck 1972, no. 285). Montesquieu is influenced by reformed federal theology, in particular by Althusius’ notion (Politics, IX 9–12) that, as Johann von Müller translates it (Koselleck 1972, 637 no. 285), the ‘federal republic’ obviates two dangers: internal corruption and inadequate power, both of which threaten the existence of large and small states respectively. However, federalism does not attain a weight comparable with core concepts in the philosophy of the state, such as democracy, human rights or the division of powers. This assessment remained unchanged even with the publication of the Federalist Papers by Tocqueville; the thoughts of Sieyès before that (Hafen 1994, 259–261); later Proudhon’s contributions (On the Federative Principle, [1863] 1979; The Federation and Unity in Italy 1862; see Hahn 1975), Otto von Gierke (Community in historical perspective, 1868), Konstantin Frantz (Federalism as a leading principle for the social, statist and international organisation, 1879) or the rich debate surrounding the concept of the union with its two main options, the federation and the federal state (on the union, see Koselleck 1972). According to Althusius, Proudhon and Frantz, federalism is a general principle of society. To Frantz, all social life is federalist in nature, be it a marriage or a league of nations. Also, according to Proudhon’s socialist-syndicalist variant, federalism enables the development of a society that is founded on the notion of justice, equality and solidarity, and as a consequence does away with all rule and authority. However, if federalism is understood, more narrowly and precisely, as a principle of political order, then it maintains the internal self-restriction of democracy. Even if federalism has, as is the case in Germany, a monarchical background (the Federal Act of 1815 stipulates in article 1 that “the sovereign princes and free cities of Germany” are uniting), it strengthens democracy as soon as it is adopted. The Latin expression foedus, contract, evokes associations with ‘agreement’, ‘alliance’ and ‘union’. Translations of Pufendorf’s influential writings ‘germanised’ foedus and established it as ‘union’ (Bund), which, in turn, is connected to the notions of unity, commitment, agreement, peace and friendship. Also, part of both expressions, foedus and union (Bund), is the notion of fides: loyalty and trust. By virtue of its core interpretation as ‘contract’ and its associated semantic field, federalism blends in with contractarian thought in philosophy: seen from the viewpoint of the philosophy of the state, the polity arises from a free consensus that then emphatically opposes any notion of imperialism. Rather than originating from a conquest and the asymmetry of rulers and ruled, polity arises out of a bond between juridical equals. The medieval university, which arose from the union of autonomous and equal faculties, represents a good example. To this day, the universities of Cambridge and Oxford are a union of colleges, that each maintain great financial and legal independence. Both concepts, subsidiarity and federalism, are essentially interconnected. Within a multi-levelled statehood – and even small states like Luxembourg and Liechtenstein are further divided – the principle of subsidiarity demands something that is less of a problem for states with a federalist tradition: that, as part of the

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structure of the state, the smaller units not be merely administrative entities (departments or provinces, for example), but relatively autonomous political units. Also, in relation to the overall state, constituent states (federal states or cantons) have the right to sort out their problems independently. They may claim assistance, however, when they are incapable of carrying out the functions on their own. With respect to statehood, then, the principle of subsidiarity advocates a vertical supplement to the well-known horizontal division of powers, one that has significant advantages, such as greater transparency and proximity to citizens, a superior ability to learn from experience, greater efficiency and better control. Subsidiarity advocates a vertical structure of multi-levelled statehood, whereby responsibilities remain as far as possible with the lower authorities. Federalism, by contrast, is demanded by subsidiarity because it contents itself as far as possible with smaller polities. Also, if and when larger polities become expedient, possibly in order to take a stand against powerful neighbours, these new polities do not originate from above, by submitting to a hegemon, but through a union from below. Federalism is a principle of state organisation that rejects imperialism as much as it rejects the unitary and central state. Whether it takes the form of a more relaxed union – for example the kind of confederation constituted by the Greek alliances, the German union (between 1815 and 1860), the precursor of the USA (between 1783 and 1788) – or of a tighter union, the federation – such as the Federal Republic of Germany, Austria, Switzerland or the USA: in such cases state-like units unite and, consequently, surrender only parts of their autonomy. In the case of the USA, this arrangement is manifest in the denomination ‘United States of . . .’. Other federal states too, attach great value to this notion. Until 1999, the federal constitution of Switzerland mentioned in its first article the “sovereign cantons” whose people (Völkerschaften) have united into the “present alliance” (articles 3 and 5). In Germany, the constitution of 1949 refers in its preamble to “the German nation as constituted in the states”. Also, according to article 2 of the Austrian constitution of 1929, the federal state of Austria is formed “from independent states” that are, according to article 6, comprised of their own “state citizenry”. Indeed, within the union, existing states become constituent states, but they do not give up their independence. A uniform statehood that is only delegated top-down does not arise. Although the weaker union, the confederation, enjoys no common public powers, in the case of the federal state, the constituent states surrender significant functions to them. The constituent states generally forgo their role in foreign affairs (although the German basic law says in article 32.3: “as far as the German states are responsible for particular legislation, they can, with approval of the Federal Government, enter into contracts with foreign states”). Furthermore, the union takes over the responsibility for territorial defence, the currency, postal and telecommunication services, as well as criminal and civil law (in the USA criminal and civil law are predominantly a matter for the individual states). Also, the members of the union submit to majority rule and establish a common legislature as well as a federal court with a federal executive. In the federal state, the Bodin–Hobbesian notion of undivided sovereignty is abandoned in favour of multi-levelled statehood and shared sovereignty. Only a centralist

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reading of sovereignty makes the thought of a shared sovereignty appear like a blunt sword, while neither the theory nor the practical execution of federalism have any difficulties with it. The Swiss federal constitution awards sovereignty explicitly to the constituent states (cantons). As with the Austrian and American conception of the state, in Germany both the federal union and its members have a state-like quality (see Maunz 1990, nos. 1–8). Also, where the federal state is democratically constituted, the overall democracy is based on smaller partial democracies, whereby statehood is of democratic quality (1) within the units, (2) between the units, and finally (3) in the whole federation. Influenced by Tocqueville’s interpretation of the American constitution, the historian Georg Waitz (1862, 43) rightly explains: “A people organizes itself into a state in two ways, on the one hand as a whole, and on the other as independent parts”. In a federal state, sovereignty is shared between the union and the constituent states. Both federalism as well as its opposite, unitarism, allow for many levels. Seven grades of increasing centralisation can be distinguished schematically: (1) in the case of extreme particularism or extreme decentralisation, states are entirely independent from one another. (2) In the case of the federation, they come together to as an initial and very minimalist unit. Given the right contracts, common actions are pursued, but only following unanimous decisions. (3) The next layer is an in-between arrangement. The European Union, for instance, and before it the Holy Roman Empire of German Nations, are both more than a federation and at the same time less than a federal state, because elementary conditions of statehood such as territorial jurisdiction and decisive functions such as foreign policy or territorial defence remain, at best, rudimentary. With the adoption of a common currency, a common police (albeit one with limited powers) as well as a common (European) court of law, gradual progress is made towards a federal state: (4) in its more particularist variant, for example, Switzerland, the union assumes less responsibility than (5) in a more centralist federal state such as Germany or the United States of America. Further, for both variants of federal statehood a ‘dividing principle’ can be distinguished from a ‘unifying’ one. In the case of dual federalism (the dividing principle), as for instance in the USA, the union and the constituent states execute their (legislative, fiscal and administrative) functions independently of each other, while in the case of cooperative federalism (the unifying principle), such as is practised in Germany, the legislatively dominant union is dependent both on the approval of the second chamber as well as the member states executing the laws. (6) Among the centralist or unitarian states, some, such as France, are willing to allow a certain degree of decentralisation, while (7) the exact opposite of extreme particularism – the pure centralist or unitary state – rejects any form of decentralisation. An important state-theoretical aspect of federalism is the question of which units should enter the union. In the course of the debate over the unified German state in the nineteenth century, two directions emerged. The liberal–constitutional view favoured a dual union, according to which a union of the people should supplement the union of the princes. According to the republican–democratic view, in turn, only a union of the people was necessary (Huber 1986, 104–119). As the debate went on,

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two disparate questions about state theory were intermixed. Since the holy authority and the divine right of the princes (Gottesgnadentum) still prevailed, the argument raised questions on the one hand about the legitimatory basis of state power, that is to say it came down to a choice between democracy and the divine right of the princes. On the other hand, the union of previously independent states had to be decided upon. This was, regardless of the question of the democratic legitimation of the state, not left to the individual legal subjects, but to those existing state entities that were ready to form a union but intended to keep the rank of constituent states inside it. Two phases must therefore be distinguished: the decision about the union and the decisions within the union. If we acknowledge the basic democratic axiom that all power is derived from the people, all previously independent states directly enter the federal contract. However, since states are for their part democratically legitimised, they owe their existence to the basic foundation of democracy, the will of the people, so that all legal subjects enter the federal contract indirectly. Also, it remains up to individual states to decide whether the decision to unite should be made representatively in parliament or, given the far-reaching implications of such a decision, as a plebiscite. In contrast to the decentralisation of an existing central state, a federal contract does not structure an existing state anew but creates a new statehood with a new demos in a legal–constitutional sense, that is a new nation. It is therefore advisable to grant the new people, the totality of the legal subjects of the union, a right to codetermination. However, the previously independent peoples, the primary demoi, must not be coerced into the union against their will through majority rule. Legitimatory priority rests with the previously independent states. Although these can make state-internal decisions with a (qualified) majority, between states it is unanimity that is required: every state has the right to reject the union. The decision processes alter however after the federal contract has been agreed upon. Since states have surrendered only part of their independence, a shared democratic legitimation rules: the legitimation of the whole of the primary demoi, the democratically created constituent states, is complemented by the legitimation of the newly created demos, the people of the union of states. Due to its fundamental importance, this dual dimensionality makes it into the constitution of federal states. While the basic axiom of democracy (‘all power is derived from the people’) applies within the constituent states, it assumes a more complex form in the aggregated federal state: “all power is derived from the people and from the totality of the constituent states”. As a result, the legislature consists of two chambers, but not of an Upper House and a House of Commons (in this sense Great Britain is not a federal, but a central state). Rather, there is a ‘people’s chamber’ (the Bundestag, House of Representatives, National Assembly) and a ‘state chamber’ (the Bundesrat, Senate, Upper Chamber). If the state chamber were abolished without replacing it with an equivalent institution, much of a state’s federal nature would be lost. There may be differences in the way the second chamber is set up. In the USA and Switzerland, all constituent states, large or small, are represented by the same number of votes, an arrangement that is considered ‘unjust’ by Germany, Canada

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and the European Union. In some states (for example the USA and Switzerland), the members of the second chamber are elected directly by the people, in others by the parliaments of those states (for example Austria), in others again they are appointed by the federal government (for example Canada). Further, most federal states have a free mandate, while only Germany has an imperative one. Representative democracies maintain reservations about an imperative mandate, which is why the latter solution could be considered superior. In truth, however, both solutions have typical disadvantages. It is political parties that tend to cogovern in a union characterised by a free mandate, while in the case of the imperative mandate it is the states’ leaders that do so. Although these leaders represent no more than a majority rule, it is at least a majority of their states. By contrast, political parties are inclined to assess problems against the interests of the entire federal state. The self-interests of the constituent states, and federalism as a whole, may therefore be better catered to in settings with an imperative mandate. The free mandate, in turn, has a unitary tendency. The bicameral system permits something with which some theorists of democracy take issue: a minority population is capable of preventing the policies of the majority population when decisions are made only from a majority of the second chamber. However, federalism does not thereby emerge as more undemocratic than a unitary state. Dahl (1983, 107) speaks quite wrongly of an anomaly of federal systems. Since states are equal when the decision to create the union is made, smaller states have the right to protect themselves against a constant marginalisation by larger states, and to demand for themselves a representation in the second chamber that is greater than the population figures would allow. On the other hand, the minority population must for its part not marginalise the majority, by stipulating that decisions be made only by the second chamber. The principle of dual majority confronts both of these dangers of marginalisation: for certain decisions the majority of the national chamber as well as that of the second chamber is required. The subsidiarity principle is a useful tool when making decisions about the detailed design of the union: constituent states should surrender only the type and level of responsibilities that they cannot exercise better themselves. Above all, the legitimatory basis must be preserved: if a unitary state agrees to decentralisation and regionalisation, the possible structures available to lower units are determined from above; with federalism, responsibilities are granted to higher instances by lower ones, to which they remain anchored. This difference is hardly ever limited to the constitution. Unitary central states can dissolve or destroy local and regional units more easily and create new artificial units instead. History tells us that they often use this power. By contrast, federalism is inclined to preserve the specific features of ‘natural units’. Regional reorganisations are subject to approval and are, if at all, only pursued with great care. The agreement to mutually recognise one another’s identity and importance is characteristic of the corresponding union. According to Tocqueville (Democracy in America 1835–41, part 1, ch. I 8) it is due to federalism that, on the whole and despite its size, the USA preserves the political freedom of a small state.

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Since federalism preserves the rights of natural units, it allows for a considerable degree of independence and freedom in ethnic, linguistic, religious and cultural realms, which in turn helps it to defuse corresponding (ethnic, linguistic, religious . . .) conflicts. Hence, it is not only subsidiarity and (participatory) democracy that speak in favour of federalism, but also freedom itself. However, regional freedom can come into conflict with the liberty of the individual: during the early years of the USA, for example, the union granted Whites in Southern states the right to uphold slavery. Federalism also alters the relative weights of the three main means of control available to society: (democratic) rule, the market and solidarity (see ch. 4.0). Whereas the central state tends to lean more towards democratic rule, federalism promotes solidarity, because smaller units facilitate the required affective relationships. More importantly, federalism permits the development of economic, cultural and political competition between constituent states and consequently makes room for the third form of control, the market. In contrast to a single overpowering core, federalism allows a great number of centres; and regions are always more than mere ‘provinces’. Chomsky (1996) opposes federalism on the grounds that decision makers in small political units can be more easily influenced by large corporate entities. Yet, as the example of Switzerland demonstrates, even small states can fight this influence with suitable precautions. Competition between constituent states also helps to explain the great differences between the larger world regions. It is no accident that Europe has experienced such unusual development since the (late) Middle Ages and that it has, for instance, outperformed China, a country that was originally more developed in both science and engineering. This can be explained primarily as the result of the competition that existed among European states, while China remained a centralist state. Of course, in some places competition is curtailed or, worse still, discredited as ‘competitive federalism’ (for a comparison of varieties of federalism, see Villiers 1994). Article 72.2 of the German constitution, for instance, postulates ‘equivalent life conditions’ (Herstellung gleichwertiger Lebensverhältnisse), a precept foreign to, say, Switzerland. This precept was hardly ever an issue in its original conception – that of providing equal opportunities and procedures. This has changed since the original stipulations increasingly were interpreted as the attainment of equal results, which brings about, either in an institutionalised form or concealed by social security contributions, an extensive redistribution of income between constituent states. Redistribution of this kind reduces the incentive to strive for a stronger economy and higher tax revenues and instead increases the incentive to accrue ever-higher levels of public debt. These two incentives are further reinforced because of the interweaving and overlapping financial responsibilities granted to the federal state, the constituent member states and local authorities. Where there is no single administrative responsibility, structural irresponsibility will loom: so as to ‘exploit’ the other side, each side accrues too much debt, and in the end all are worse off. The result is an insistence on a ‘unitary federal state’ (Hesse 1962), which tends to coerce smaller and financially weaker constituent states to merge, although Switzerland

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shows that small cantons (for example, Zug and Schwyz) can be economically superior to larger ones. At any rate, what remains suppressed by the precept of equality is the fact that only a few factors can actually be levelled out, while housing standards, recreational opportunities, ways of life, climate and even maintenance costs remain different. In order to reinforce the variety and competition inherent in federalism, it may well be advisable to roll back excessive levelling, to reduce the demand for uniformity, and to relieve smaller constituent states of the pressure to merge. The most decisive parameter in the theory and praxis of constituent states is their statehood, which they maintain and which is institutionalised in the form of proper public powers, with their own constitutions, codes of law, parliaments, governments and legal bodies, as well as their own financial autonomy and authority. Hence, both state powers and state responsibilities are shared, and statehood as well as state responsibilities originally lie with the constituent states themselves. This follows because responsibilities that were never surrendered in the federal contract are not derived from the overall federal state. In this sense, the constitutions of federal states like Germany and Switzerland presuppose that legislation remains a fundamental responsibility of the constituent states (articles 30, 70 I, and 72 of the German Basic Law; article 3 of the Swiss federal constitution). There is a danger, however, that the federal state uses its powers of legislation so excessively that it quickly assumes the position of a dominant legislature. In Germany this threat is further enhanced by the fact that the Federal Constitutional Court (BVerfGE 1,14; BVerfGE 3, 407; BVerfG, 1BvR 2306/96) does not consider itself able to litigate over the corresponding requirement clause in the constitution (article 72(2)): “The federal union assumes for this area (sc. for the competing legislation) the right to legislate, if and when [. . .] a federal rule is required”. The implication is clear and amounts to a change of the constitution that has, moreover, never been decided upon: due to the lack of forceful opposition, the federal state has appropriated the entire domain of competing legislation, and the autonomy of the constituent states is increasingly curtailed. A critical remark may be permitted about this constitutional-juridical development: the Constitutional Court’s opinion means that it is the political judgement of only one political entity, the union, that matters, which in turn results in a decision in favour of the union and at the expense of federalism. This constitutes a creeping change of the given constitution and, at the same time, a (possibly inadvertent) transgression by the Federal Constitutional Court of its function, because it has only the power to interpret the constitution, not to alter it. If, as is the case in Germany, the legislature reduces constituent states to an administrative–executive function not only in municipal affairs, policing, and law and order, but also in development planning and cultural policy, then it is pursuing a progressive ‘unitarisation’. This represents a drastic change from the original federal contract; it should not be allowed to occur in such a creeping way, but should be permitted only after a public debate and a vote about the basic principles of the union. The fact that neither have taken place and that other unions find themselves in a similar situation is the real anomaly of federal democracies. Worse still, the process is strictly speaking illegal: these democracies allow a gradual (but still

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significant) power shift away from constituent states and towards the union, without subjecting these to their own requirements of legitimacy, a democratic decision-making process (on the USA, see ch. 11.1). While in a federation common organs take on common responsibilities, in a union the organs of the federal state and those of the constituent states work together. Hence, a vertical division of power complements the better-known horizontal separation of powers between the legislature, the executive and the judiciary. Even the ‘federal supplement’ itself is two-dimensional. The vertical dimension with decision centres in both the union and the states aside, there is a second horizontal dimension: the cooperation of the states in establishing the union’s aggregate will, which manifests itself in the legislature’s second chamber. The self-coordination of the constituent states is a third horizontal dimension, for example a permanent conference of the secretaries of education, culture or finance. To summarise, three aspects should be emphasised: from a constitutional–theoretical viewpoint, federalism is a ‘complex interplay of centripetal and centrifugal forces’ (Maier 1990, 229). As constitutional practise teaches us, the balance between these forces is put into question by tendencies towards unitarism (for Switzerland see Fraenkel 1986, 175–178; for the USA, see Friedrich 1968, 17–24). If these are confronted early enough, federalism has the advantage of preserving the rights of natural units and promoting social and cultural diversity.

CHAPTER 6

THE DEMISE OF THE STATE?

Over time the state has taken on more and more responsibilities and, in many respects, has become more powerful as a result. According to many the opposite is true today: the state is being dismantled. As long as the state is seen as an authority, such a loss of power is probably welcome (and is consistent with the principle of subsidiarity). Yet, depending on the nature and magnitude of the loss, the original and subsidiary state responsibilities may be jeopardised, and with this, the political project of modernity: the democratic self-organisation of society. While there is general agreement that this loss of power is per se a good thing, exactly how it takes place remains contentious. Depending on how various critics dramatise the issue, (1) the most modest diagnosis asserts that the state has become inefficient (Günther 1990); (2) a more critical viewpoint claims that the ability to govern has been compromised (Grimm 1990); and (3) the more pessimistic verdicts point to the failure of the state or of modern politics in general (Decker 1993, Kreuzer 1986). The strongest verdict (4) posits a disenchanting of the state (Willke 1983) and a loss of its legitimacy (Dogan 1988). There is, last but not least, (5) the contention that the state has forfeited its sovereignty on a massive scale and the suggestion that, worse still, sovereignty, the key concept of the theory of the state, no longer has any significance in the real world (Czempiel 1969). The more dramatic diagnoses are similar to the thesis – ascribed to Marx – of the demise of the state (The Communist Manifesto) and Carl Schmitt’s assertion (1973, 376) that the era of statehood is coming to an end. They are, however, also reminiscent of the modern predilection for apocalyptic utopias. Nietzsche’s dictum that “God is dead!” (The Gay Science, vol. 3, no. 125) is now replaced by the claim that the (modern) state is dead. However, in Nietzsche there is an awareness of an important prerequisite: “God remains dead! And we killed him”. This applies to the state as well: akin to religious decisions, political outcomes do not come about through evolution alone, but through human action. In the case of the state in general, and democracy in particular, this might not come to pass. More plausible than the ‘death’ of the state are considerable structural transformations, the “metamorphoses of the state” (Luhmann 1995, 101). Any potential transformation can be assessed along either of two dimensions: changes from within (6.1) or from the outside (6.2). There is also the subsequent issue of the postulated end of the nation state as the prevailing model around the world (6.3). All three questions are of interest to us, especially if we are mindful of the implications they may have for a qualified democracy: does its state-like character make it more prone to loosing its power? 103

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As citizens perceive it, state power presents itself not in the absolute, but as a variable with three parameters: the responsibilities that the state has assumed, the levels of fulfilment expected, and what it has then achieved. A state that fulfils the few responsibilities expected of it appears mightier than a state that achieves much but falls short of even higher expectations, that is, the power that is objectively granted power may not be consistent with that power as it is subjectively perceived. In order to avoid illusions due to perspective, arising partly from distorted perceptions or judgments, partly from selective retention (on the appropriate social psychology, see Bierbrauer 1996, chs. 2.1, 2.3, 4.1 and 6.3), we will first outline the development of a state’s responsibilities and then discuss whether the transformations amount not only to an occasional or partial, but to a fundamental loss of power. 6.1.1 Against a False Glorification of the State There is a particular circularity to be found in some of the claims that support the argument that the state is losing power. When the state, it’s politics and its laws, are said to constitute the centre of society (that is to say its sole, comprehensively responsible and, moreover, broadly successful hub of control) it is not at all surprising that some subsequently claim that “the state has been destroyed” (Willke 1983) – an assertion that has supposedly become a “common property in both theory and praxis” (Willke 1997, 7). A “state that is enchanted to begin with” is easily disenchanted afterwards. However, if the first step, namely the prior enchantment, is avoided then the second step, disenchantment, becomes superfluous. Willke’s project of a “post-heroic state” is based on the counter-image of a society that is structured in a linear–hierarchical way and presided over by the state as the “hero of society”, as the “guarantor of public welfare”, “benefactor of society” and as “control hub” (supra 347). However, even the absolutist state does not live up to such glorification. For on the one hand, the absolutist state, in spite of being to some extent amalgamated with the church, the economy, science and culture, did not constitute their control hub, and said spheres were far more than simply its periphery. Even for the ‘old’ European state, the diagnosis of a linear–hierarchical structure is only partly accurate. On the other hand, the absolutist state guaranteed neither primary public well-being – basic rights and human rights – nor secondary public well-being – reduced to welfare and substantive provision. The great number of refugees and emigrants that leave their land in times of absolutism because of either poverty or religious and political persecution are clear evidence to the contrary. Also, of those who remain at home, few are in a position to enjoy either freedom or well-being. Most constitutions are circumspect enough to dispense with well-being as an objective of the state (for an argument to the contrary, see Isensee 1988). Also, when the concept emerges in a constitution, that goal is, as in Bavaria (article 3.1), not guaranteed, but only supported. At any rate, a self-confident citizenry, particularly that of a democracy, denies the state any monopolistic claim to providing for public

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well-being (see ch. 7.5). For the citizenry knows that the state can never become the benefactor of society through means other than a prior appropriation of the resources it needs to do so, resources which up to that point are owned by the citizens. An excessive and therefore unjustified glorification of the state does not preclude holding it in moderate esteem. The most succinct expression, the image of the ‘mortal God’, grants the state some power and dignity, akin to a ‘state devoutness’ or arrogant absolutism. The origin of the image too, raises doubts, as it resembles the theocratic tradition in the political philosophy of Antiquity (The Statesman 303b), as later confirmed by the ostensibly absolutist theorist Hobbes. In truth, however, two arguments from democracy and ethics speak in favour of a restrained glorification of the state: on the one hand, due to its legitimatory nature it guarantees justice and, in so far as it fulfils its task, deserves to be treated with dignity or, in referring to Kant and the process of legislation, ‘majesty’ (Critique of Practical Reason, preface A, n.). On the other hand, the state earns the degree of, not absolute, but relative omnipotence that it requires for justice, and that allows it to become a ‘mortal God’. Dissolution of the state is therefore only necessary when these are rejected: the rationality of state power, its obligation to justice, and the qualification that the state can only be responsible for the public’s well-being up to a certain level. 6.1.2 A Look at History If the totalitarian state, the most extreme abuse of statehood (and the very opposite of qualified democracy) is put aside, then the development of the modern state reads like a drama in five acts, where each act, each development phase, corresponds to a particular type of state (the following reflections extend and differentiate Höffe 1996, ch. 8). With the exception of the third, all five conceptions correspond to levels of growing state responsibilities and thereby confirm the ‘law of increasing state activity’ established by Wagner (1901, 949). In each phase, the responsibilities of the previous phase are preserved and complemented by additional responsibilities, a process which eventually amounts to an increase in power. Although their causal relationships are different (in absolutism it is power that increases first, in the Welfare state it is responsibility), the other side tends to increase as well. This follows because the expanded power can continue to maintain its position only by increasing its responsibilities; conversely, however, without more (executive, financial and regulatory) power greater responsibilities cannot be fulfilled: (1) The basic form of the modern state, the state under the rule of law, has its beginnings long before modernity. With its complicated feudal arrangements, the medieval state was already a modern state and also aimed to preserve justice and peace (iustitia et pax). Its responsibility for the law as well as for internal and external security date back to the Roman Empire, the Germanic Kingdoms, the Greek city republics, and the Ancient Orient, while the rudimentary state forms disappeared in the darkness of early history and prehistory. (2) Construed initially within the theory of the state by, among others, Jean Bodin and Thomas Hobbes, the absolutist authoritarian state emerges, especially on the European mainland. Centralist France represents the paradigmatic case, although approximations

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are also found under the Great Electors (Große Kurfürsten) of Prussia and under August I of Saxony (also called ‘August the Mighty’). By following the principle of “L’état c’est moi”, the overbearing and greatly simplifying statement ascribed to Louis XIV, the absolutist state distinguishes itself through six elements. It (a) wants to be the gravitational centre of political power, (b) is presided over by the monarch, and (c) presents itself internally and externally as a fully sovereign unit of agency. It strives to be (d) at the top of the (feudal or fiefdom-based) hierarchy of society, to fulfil its responsibilities of control top-down and in a linear fashion, and to thereby (e) promote commerce, craft (‘mercantilism’), science and the arts. Finally, (f) due to all these responsibilities, particularly sustaining a standing army and a bureaucracy, the state develops an evergreater financial need. (3) In the eighteenth century liberal democracy gradually surfaces, and only on the continent does it so in opposition to absolutism. (3.1) Its first phase, the ‘civic state based on justice and the rule of law’ (the Rechtsstaat), explicitly rejects the literal meaning of absolutism, legibus solutus (‘exempt from all laws’). As a constitutional state, it is tied to a law of the second phase of its emergence: a (usually written) constitution. That constitution comprises not only internal and external security but also the protection of human and basic rights, particularly those of negative freedom. (3.2) Sometimes simultaneously, sometimes at a later phase, the other half of the antiabsolutist notion claims that all state power is derived from the individuals affected, the people, and that the people are the bearers of state power: the simple constitutional state becomes the democratic constitutional state. (4) During the age of industrialisation and urbanisation a complex set of problems emerges – public welfare – which the state addresses with new responsibilities. (4.1) First, as an elementary Welfare state, it concentrated upon crisis management. Here too, the state does not surrender any instruments of power, but expands the rudimentary provisions that already exist into public health, social welfare, social assistance and a state-run social security system. (4.2) Initially hesitant, the state later commits ever more extensively to two primary responsibilities: a not only juridical but also social peace that is not only juridical but also social in nature, and the possibility for all (for the sake of liberty and political participation) of living humane lives. In this freedom-advancing and democracy-advancing Welfare state a joint responsibility for equal opportunities arises, which establishes new responsibilities for the state’s policies on education, science and culture. (4.3) Not content with what has been achieved so far, a comprehensive Welfare state makes further provisions to ensure individuals’ continued existence (Forsthoff 1938; 1971) and now also pursues economic policies, labour market policies, regional and urban planning as well as the promotion of technology. As noted before (chs. 4.3 and 5.2), this expansion is required partially for reasons of compensatory justice; yet, to a certain extent it is also based on a ‘Welfare state utopia’ that guarantees every person a safe and comfortable life. (5) Finally, the ecological state takes on responsibilities for environmental protection, which are, incidentally, not entirely new. The danger of overusing the land, to which Rousseau drew attention in The Second Discourse (I 2), is addressed as

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early as the Carolingian era, with the introduction of three-field crop rotation. If more recent research is to be believed, even the oldest sabbatical commandments – neither to plough or harvest (Ex 34, 21) nor to make a fire (Ex 35, 3) – were motivated less by the desire for a break from labour than a concern for the environment, an assessment that also applies to the Sabbath year that recurs every seventh year (Gese 1981, 79 and 86; Steck 1975, 189). Further, the precautions taken by mountain farmers to ensure ecological balance go back as least as far as the late Middle Ages (Bätzing 1984). The growth of power and responsibility in these five developmental stages does not proceed in a linear fashion, of course. After the great expansion from the first to the second phase, the state’s power is restricted again in the third phase. Whereas absolutism embraces legitimation without limitation, which is to say a full discretionary power of the sovereign monarch, the ‘anti-absolutist revolution’ brings about the only counter-approach seen as legitimate from a state-ethical perspective: legitimiation and limitation. The corresponding loss of power goes hand-in-hand with a loss of responsibilities, because censorship or state-imposed religion could potentially be seen as a positive sign – as the state’s commitment to scientific and religious truth. Even in the unlikely event that the state ever held such responsibilities legitimately, it now surrenders them entirely. The result is visible in principles such as freedom of science, technology, medicine and research, religion, artistic expression as well as the ban on censorship, all of which are adhered to by a qualified democracy. Even then the state remains at the top of the social hierarchy, institutionalised as the legislature and the judiciary. Yet, it has no claim to exclusivity: complex societies have various hierarchical heads, and the state is only one of them. The anti-absolutist revolution has a second characteristic, democratisation, which does away with the linear hierarchy and the corresponding image of a social hierarchy that is topped by a single leader. Even if understood as nothing but a federation, the state is organised not in a top-down, but in a circular fashion: all power originates from below, from the citizens, and in turn affects these citizens through elected representatives, parliament, government, state agencies and jurisdiction. Political parties and the general public play an important (and ever more powerful) mediating role in this process, so that two variants of democracy, the ruling federation and the cooperative, approximate each other. Only if the state is reduced to a vertical federation can this recent amalgamation of the state and society be said to constitute a dismantling of state power. In reality, however, it is simply the structure and the quality of this power that are changed. The state is no longer simply accepted because of a claim to divine appointment or a superior power, but it must now justify itself to the concerned individuals: formally by being approved, materially by putting forward the benefits it has to offer. The direction changes when phases four and five are reached. The prior decline of state responsibilities is succeeded by an expansion and its loss of power by a gain, as evidenced by the new realms of legal jurisdiction. The traditional law pertaining to civil and criminal affairs is supplemented, initially by administrative law, then by

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labour and welfare law, later by educational and university law, and finally by environmental and data protection law. In so doing, the state extensively affects areas such as the economy, science, art and religion that are in principle autonomous. Either directly (through financial subsidies and job creation measures) or indirectly (through tax write-offs) the state becomes the benefactor of these areas and defines, through taxation, regulation and planning requirements, the framework that either curtails their activities or allows them to blossom. One might think the state is hereby taking on more responsibilities without obtaining the corresponding power to implement them. However, the scope and density of regulation that applies to new legal areas shows that the opposite is true, that the state is expanding its power. The increase is visible in new state-run facilities, ministries, offices and courts, and through the increase of both the budget and the number of people employed in the public sector. It is obviously difficult to ascertain the exact magnitude of state activities; nevertheless, a glance at the statistics is instructive, and those for the Federal Republic of Germany provide a useful example (Hesse and Zöpel 1990, 197): in the period from 1960 to 1988 the number of civil servants employed in the public sector doubled. Since the mid 1970s, public debts have grown considerably, too. While these debts remained at approximately 20% of Gross Domestic Product from 1950 to 1974, they more than doubled during the subsequent twelve-year period (from 19.6% in 1974 to 41.6% in 1986) and tripled in the period after that (to 61% in 1996; Statistisches Jahrbuch 1998, 505 and 654). The link between growing personnel costs and increased interest repayments drastically constrains future investment potential. In addition, it places the burden of debt and interest repayment on future generations, while the growing debts accruing over time will cause a rise in future interest rates. If power is understood not as the right to make decisions, but as the ability to manoeuvre, then the power of the state has indeed been diminished. Both legally and financially restricted, the state’s capacity to act is almost non-existent in some places. What is more, our children’s and grandchildren’s right to justice is violated as well. Restoring fiscal competence is therefore one of the most important and legitimatorily indispensable tasks of a state as it endeavours to equip itself for the future. 6.1.3 A Weakened State? In the mid-seventies the public budget admittedly shrank – first its growth rate, then growth itself – and some opposing tendencies did surface. However, the apparent diagnosis that the state has lost power should be viewed with scepticism for several reasons. (1) The perspectives we take on the phenomenon’s historical development can be misleading. While it is true that the state sometimes withdraws from some interventions, which is often unsoundly referred to as ‘deregulation’, it never actually gives up these areas of responsibility, whether for the environment, data protection, its shared responsibility for equal opportunity, or for public health, social assistance or the social security system. The retreat of the state from its classical areas of responsibility (security, the environment and health), the ‘radical deregulation’ demanded

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by old-style liberal authors, has not taken place, and in so far as responsibilities for justice are concerned, quite rightly so. The assessment is different in the case of a careful deregulation. Where the state reverses regulation that is too detailed and restrictive, it performs a long-overdue correction of the ‘regulatory frenzy’. Furthermore, the increased complexity of society exerts additional pressure on the state to turn away from details and to limit its activity to basic regulations and frameworks. (2) Provided the principle of subsidiarity is recognised, some loss of power may turn out to be a withdrawal from presumptuous responsibilities. Where the state has already weakened self-reliance – be it that of individuals, families, charity associations or of subsystems such as the economy, science, technology, music, literature or the arts – it has transgressed its legitimate area of responsibility and, according to the precept of return transfer, deserves to be reined in again. (3) More often than not, certain expectations need to be amended. In the welfare state this is certainly the case for the rather fanciful promise of guaranteeing everyone an ever more secure and better way of life. Seen from the viewpoint of the theory of the state, such a promise amounts to the state making excessive demands on itself, from the viewpoint of the theory of subsidiarity it looks like a presumptuous task, the state having overstepped its responsibilities. Those who mourn the absolutist state and consider the state to be omnipotent because it supposedly respects neither the financial nor the structural limits of power, limit their analysis to the welfare state; they deplore that the utopian vision has remained unfulfilled, instead of appreciating the considerable tasks that have actually been accomplished. A sober diagnosis, by contrast, concludes that state power has neither been dismantled, nor even limited, but only that excessive expectations have been disappointed. Given that it stops the state from becoming too powerful, such disappointment should be welcome; it is a sign that the lengthy expansion of imperialistic state powers has finally come to a halt. Those who are in favour of the expansive Welfare state must not forget that it is dependent on resources. The might of the Welfare state does not grow with an increase in the number of goods available to be redistributed, but with the state’s share in the underlying resources. According to this criterion, and given the percentage of public expenditure as a proportion of Gross Domestic Product, it is in fact impossible to attest to a demise of state power. (4) That conventional direct intervention is being replaced with new mixed public– private initiatives is said to be another example of the weakening of the state. Of course, the fact that the state contracts services out to private organisations and other collective actors makes the line between public and private sectors more permeable. However, the phenomenon concerns few areas and restricted sectors, above all public enterprises such as transportation, utilities and public planning (Ossenbühl 1971). Traditional instruments remain largely intact: juridical orders and bans enforced by civil and criminal law; procedures and planning regulations; and the right to impose taxes and military service. At any rate, such surrendering of state responsibilities occurs only in the field of public administration and management, not in the legislative and the judiciary. Not even the territorial realm of the administration is affected,

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even though it could be quickly and easily limited. Also, since the three traditional powers of the legislative, the executive and the judiciary continue to prove effective, it is reasonable to hold on to the concept of the state, and not dismiss it in favour of a ‘political system’. Turning away from the traditional exercise of power is, if done in a constrained way, legitimate from the viewpoint of both the theory of democracy and the theory of subsidiarity: on the one hand, direct intervention is the ultima ratio that the state employs only if ‘softer instruments’ fail. The state, on the other hand, gives as much precedence as possible to sub-state actors or, indeed, cooperates with them. In so doing it assumes the role of mediator in a dual sense: firstly, as an authority that moderates its own excessive claims and secondly as one that brings together the various actors involved. The ability to develop and plan new patterns for additional areas of responsibility testifies to the state’s creativity. A second increase in power thereby emerges: the expansion of responsibilities is followed by an increase in the instruments the state uses to facilitate them. In addition to traditional direct intervention, it engages in cooperation and the exertion of a second-degree influence: ‘the external governance of self-governance’ (Aussensteuerung von Selbststeuerung). The phenomenon is commonly referred to as decentralised governance, or as control of control. This designation, however, is not quite correct, because the specific laws of economy, science, technology, etc. are not directly modified, only some of their basic conditions and their framework are influenced. In the case of science and research, for example, the state can either practice censorship or guarantee their freedom; it can allow the development of research institutes, actively promote them, or, thirdly, establish them in public ownership. However, the state cannot itself carry out the research. It cannot row the boat; it can merely sit at its helm, and even then only according to a form of control of the second type, a control of self-control. Yet, this type of control allows the state to exert influence where it is neither responsible for, nor capable of, direct influence; as a result it once again assumes more power. As it expands the number of tools at its disposal, the state gains new and positive qualities. Its responsiveness, for example, increases with its enhanced capacity to respond to needs and interests more quickly and resolutely. Given suitable flexibility and a capacity to learn, it may even become a ‘reflective state’. Administration may look at citizens no longer as subjects, but as recipients of public services, thereby allowing the establishment of a long-overdue democratisation. Also, with the external control of self-control, the state complies with the principle of subsidiarity. (5) This is contrasted with the fact that the state requires scientific expertise. The scientific consultation that takes place during policy initiatives (Höffe 1985), with its numerous expert opinions, hearings and advisory boards, has become essential for the proper fulfilment of state responsibilities and demonstrates the fundamental limits of the power of the state; this, however does not amount to a dismantling of this power. External expertise has always been necessary, be it on questions of external security (the military) or public hygiene, and only the variety and density of this expertise is unprecedented.

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(6) Although the responsibilities of the state have grown consistently, they remain on the whole fulfilled, an assessment that applies not only to traditional responsibilities such as internal security, but also to welfare, education, science, regional development, and monetary policy. In all these spheres the state is of course not omnipotent, but still highly successful. There is no evidence of an erosion of the state, nor of its delegitimation. There is evidence of shortcomings in both efficiency and effectiveness, of course, but the causes of these shortcomings are by no means a direct result of the expansion of state responsibilities. Only childish ideas of omnipotence can ignore the inevitable side effects of such an expansion, seven of which we highlight here: (a) As the number of tasks for which the state is responsible grows, the likelihood of conflict between the various objectives increases. (b) The number of tasks requiring coordination can exceed the capacities of the state to organise effectively. (c) Augmented rights to codetermination slow down decisions, and once these are made, the right to veto further hinders their implementation. (d) Pleonexia, the insatiable greed of citizens as well as politicians, means that the expectations of households for education, health, work and welfare are potentially boundless. Since each sector would like to claim the public purse for itself, no state can ever fully accomplish its additional tasks. (e) Elsewhere, the state is held responsible for outcomes such as unemployment, although the autonomy of the sphere to which it relates, the economy, allows the state to exert only a limited influence. (f) Consideration for their heterogeneous constituents induces politicians to take particular benefits into consideration, rather than weighing the greater public good that is encompassed, resulting in less than optimal solutions. (g) A further illusion of perspective looms when analysing shortcomings in efficiency and effectiveness. It is caused by the general phenomenon of discounting reliable and stable provisions: because we take for granted the value of goods that automatically come to us, the provisions that the state continues to provide do not encounter the same subjective appreciation that their objective worth commands. As is evident from our reaction to an interruption in the flow of such goods, we respect them subjectively less than we objectively require them. (7) The matter becomes more complex for civic (or civil) society in general, and for the increasing importance of regional and national citizen’s initiatives in particular (transnational alliances are discussed in ch. 6.2 below). Interests and responsibilities surface through these initiatives that are neglected in ‘traditional politics’, which testifies to the political creativity of ‘society’ and its capacity to confront the well-known pathologies of restriction, incrustation, and the structural nepotism displayed by the governing classes. These new developments strengthen the backward linkages from politics to those affected by it; they oppose both the immobility of state institutions and the proliferation of the public’s unwillingness to engage with the state; they extend participation; and they stimulate and amplify debates, which further increases the reflexive and discursive character of society. Finally, as we will show in chapter 7.5, an active sense of community among citizens weakens the institutional separation of state and society.

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Although this development does not constitute an erosion of state power, the second part of the anti-absolutist revolution, namely democratisation, does indeed continue. This is a positive development but should be treated with caution, because the following phenomenon is only too well known to democracy: particular interests, or particular interpretations of public interests, attempt to influence the public agenda. In the first case groups such as these enter into a legitimate rivalry with the political parties, while in the second case they do so, just as legitimately, with the established federations. However, as a matter of principle they have no greater claim to legitimacy. Instead, established forces threaten the fundamental democratic principle of ‘one person, one vote’ and certain groups obtain a disproportionate weight in the decision making process. Let us draw a conclusion from the internal metamorphoses; it is six fold. First, with the exception of the totalitarian state, the power and responsibilities of the state are always limited. Second, statehood was democratised during modernity, which resulted not in a reduction, but in an increase in legitimacy. Third, the responsibilities of the state expanded considerably. As far as this occurs to facilitate freedom and democracy, a further increase in legitimation can be attested. Along with this comes an increase in power through which the state, by and large, fulfils its extended responsibilities. The qualification ‘by and large’ implies the fourth aspect: the failings in efficiency and effectiveness, as inevitable side effects of democratisation. Fifth, to overcome these weaknesses and to prepare for the future, the state must renew itself – content-wise by renouncing its universal responsibility, and concentrating on basic responsibilities, and restoring its fiscal capacity to act; method-wise by decentralising its activities (i.e. subsidiarity) and as much as possible exercising external control of self-controlling processes. The outcome is not a weak state, but one that is reduced to its essentials. However, to do so it must, sixth, learn to correct the excessive expectations of ‘society’, or better still: not make excessive promises in the first place. Above all, with respect to the distributive democratic struggle, the overflowing river of demands, the state has to prioritise the satisfaction of these wishes within the limits of available resources. Fortunately, however, these deficits do not yet amount to an internal erosion of the state or a demise of democracy. 6.2 EROSION FROM OUTSIDE

A different story needs to be told with respect to the power losses originating from the outside. Since these losses extend to the central responsibilities of the state and cannot be unmasked as mere illusions of perspective, a certain amount of erosion certainly occurs. However, the type and magnitude of this erosion have yet to be determined. An exact diagnosis resists the tendency to equate a loss of power with a loss of sovereignty. In fact, the former represents only a small part of the latter. Power is already lost when the state loses its room to manoeuvre, while sovereignty is only lost when, irrespective of the magnitude of that loss, the right to make the final decision is curtailed. Sovereignty is not a substantive capacity to act and rule, but merely an entitlement, sometimes only a formal one, to do so. By definition, great

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powers dispose of far more might than small states, but even the latter are considered sovereign. The concept of sovereignty originates in international law and indicates a sovereignty association that enjoys within its realm the highest and unconstrained right to make decisions. It represents the uppermost independent power, without obligations to any other authority. According to Emer de Vattel’s classical wording, a nation is sovereign if it governs itself in whatever form, without being dependent on the outside (“qui se gouverne elle-même sous quelque forme que ce soit sans dépendance d’aucun étranger”; The Law of Nations, 1758; on sovereignty see also ch. 14.1). This independence does not have to be comprehensive. The interpretation of sovereignty, prepared in Bodin’s and Hobbes’ theories of the state and affirmed in praxis by the Westphalian peace accord of 1648, never precluded economic, cultural or even political dependence. What mattered was not economic, cultural or political autarky, but that a state’s public powers not be subjected to other, foreign powers. This being the case, a state is sovereign if its legislature is subjected to no other legislature, if its government depends on no external government, and if its judiciary answers to no higher judiciary. The past 350 years or so have seen considerable changes caused by the growing interconnectedness and economic interdependence of states. On closer examination, however, interdependence of this kind turns out to be not radical enough to justify abandoning the concept of sovereignty. The example of Switzerland sheds light on the difference between power and sovereignty: neither substantial dependence on exports and imports nor cultural ties to her neighbours constrain her sovereignty; yet, the fact that the country submits to foreign judges, such as the European Court of Human Rights, certainly does. Three ways in which sovereignty might be lost are particularly relevant: (1) international legal treaties such as the European and international conventions on human rights are binding for the state’s legislature, just as the (European and international) courts of law bind the state’s judiciary. (2) Membership of international organisations such as the United Nations brings about a partial surrendering of sovereignty, a phenomenon that is even more pronounced upon entry into communities such as the European Union. (3) A considerable renunciation of sovereignty comes about with membership of international military alliances like NATO, the former Warsaw Pact or the OSCE, because a major part of the central responsibility of sovereignty, the competence to make decisions on questions of external security, is handed over to supranational organisations. In all three cases sovereignty was rarely lost because of an external imposition, such as peace being dictated, but through membership in organisations or the recognition of treaties and, consequently, as an act of free consent. In this respect even the renunciation of sovereignty itself constitutes an act of sovereignty. This act should not be understood as mere renunciation. Just as human rights do not just limit the ruling order, but afford it the positive shape of a qualified democracy, acknowledging international treaties on human rights and responsible courts of law also does not constitute a renunciation of sovereignty. Rather, the characteristic understanding of the state, that is to say: a commitment to pre- and über-positive principles like human

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rights is confirmed and it is accepted that any violation of these principles – if perpetrated by a state – amounts to a contravention best assessed by an external, impartial third party. Even taken as a totality, the different ways in which sovereignty is renounced only amount to a small fraction of the external weakening experienced by states today. Voluntary renunciation of power, by reducing one’s sovereignty must be conceptually distinguished from the related phenomenon of weakening caused by developments and forces from the outside. However, the loss of sovereignty at the heart of modern globalisation is neither a function of self-limitation nor of imposition from the outside, but is due to a third factor: unintentionally renouncing one’s own power. A good example for this significant intermediate stage is economic globalisation. In so far as it is an outcome of international contracts (see ch. 1.1.2), it is obvious that the weakening is self-inflicted. However, an unintentional loss of power is occasioned by side effects such as the political and economic collapse of certain states, the vast migrations prompted by the attractiveness of some wealthy democracies, and the resulting problems these have caused for both the migrants and their ‘hosts’. Furthermore, the provision of welfare that has up till now been the responsibility of the economic and social policies of individual states, is in danger of collapsing, and even modest social and environmental criteria are difficult to assert. Also, although the increasingly international activities of corporations, banks, brokers and insurance companies are brought about by corresponding international agreements on liberalisation, their effects amount to an unintentional renunciation of power. We will deal with these changes later (especially in chs. 13 and 15). Of sole interest here is the question of whether the weakening of states is so far-reaching that these states can be said to have been reduced to mere instruments of economic constraints, and whether as a consequence the end of individual statehood looms. Let us examine some of the state’s areas of responsibility and disregard changes that are caused by large-scale regional alliances: military alliances like NATO and the former Warsaw Pact give testimony to the observation that for quite some time now external security, as the primary and classical responsibility of the state, is no longer accomplished by states acting in isolation. Similarly, international crime, drug trafficking and terrorism, as well as the cross-national effects of pollution, indicate that the second classical responsibility of the state, internal security, can no longer be ensured by individual states either. To a certain degree, this assessment applies also to the third task of foreign policy. International and transnational actors such as corporations, churches, and, possibly, trade unions, political parties and employer associations may barely be able to pursue foreign policies in the sense of international law, but in effect they certainly do. Compared with states, however, they have much narrower responsibilities, an assessment that applies to science and culture as well. Also, because of global communication even collective identity is influenced. The power of individual states is further limited by international non-governmental organisations, such as Amnesty International, Greenpeace and Human Rights Watch. Moreover, states in the developing world depend on international intergovernmental organisations like the so-called World Bank, the International Monetary Fund and the

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development agencies of the United Nations. These only grant financial assistance if states comply with far-reaching economic and socio-political conditions. Considerable losses of power are also found in the realm of taxation, because the global transfer of capital complicates the imposition of taxes, and corporate headquarters tend to migrate to countries with advantageous tax laws. Further, workplaces are ‘exported’, reducing tax proceeds and burdening the public purse with the task of dispensing higher unemployment benefits. Last but not least, corporations exert pressure on governments to lower corporate tax rates, a phenomenon that has altered the previous ratio of tax revenues to favour corporations and at the expense of salaried employees. Global forces also affect the provisions of the Welfare state, not only through economic and financial factors, but also through the worldwide migration of people to prosperous states, where social assistance systems, the job market, urban development and schools, as well as the rule of law, are all (usually negatively) affected. The losses of power bear upon virtually all of the areas of the state, and in aggregate these losses are far from insignificant. Even so, states are neither reduced to institutions of economic implementation, nor is the end of individual statehood imminent. Four reasons of a partly empirical, partly legitimatory nature can be advanced to resist ‘sentencing the individual state to death’. Still, the need for global action qualifies its importance and calls for giving organs beyond individual states the capacity to act (see ch. 10). From an empirical viewpoint, it is true that states must share certain functions with non-state actors. Yet, the loss of power that states experience remains limited because they do not completely surrender their responsibilities. There is no comprehensive crumbling of state power. As long as states do not voluntarily renounce their responsibilities and unite to form new political units such as the European Union – and even then preserve important responsibilities – they remain at least partially responsible for external and internal security, legislation and jurisdiction, education, health and welfare. An examination of the usage of tax revenues and the extent to which national legislation is overshadowed by European or international law reveals that individual states are, indeed, undermined, though they retain a very considerable weight. Even in the case of the European Union the individual state turns out to be the primary guarantor of order and the rule of law. (2) The next counter-argument submits to an empirical review the single most powerful factor supposed to be contributing to the loss of power: that international corporations are seen as the gravediggers of national economic policy. Our experience of reality confirms that most international enterprises are active only in a small number of countries or, at most, within a particular economic bloc of states. The relatively few multinational corporations may potentially be able to undermine the economic policies of governments, but in reality they are more likely to adapt to them. Although they constantly threaten to turn their backs on their home countries, in practice they are very reluctant to ever break their connection. For it is in their respective home markets that they find their trading partners and suppliers, where they are not exposed to currency risks, and where they can establish their reputation

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as a ‘national corporation’. Unless basic structural counter-impulses emerge, it is difficult and costly to leave home markets – economic difficulties or political impositions are not a sufficient factor (Hirst and Thompson 1998, 99). However, other means of influence should not be underestimated, for instance the pressure to lower corporate tax rates or to exempt firms from planning requirements. Also, it must not be forgotten that, for areas such as the economy, states carry only a partial responsibility. What they have supposedly lost through globalisation was actually never theirs to own in the first place: the sovereign capacity to regulate the economy (Hirst and Thompson 1996, 144). (3) According to a first legitimatory counter-argument, the achievement of political modernisation – that is to say: qualified democracy – is attributable to individual states, not to competing non-governmental organisations of international legal stature. Certainly, voluntary membership ensures a certain level of legitimacy comparable to the democratic legitimacy to rule, because one can join the organisation, resign from it, and either support special activities or refuse them. However, the organisations do not (yet?) allow their operations to be controlled through either elected representatives or constitutional-juridical norms. Above all, one cannot direct any subjective claims at non-governmental organisations. Amnesty International or Greenpeace may be able to make governments aware of public opinion, but they are unable to help individuals or groups achieve their rights. As far as these organisations channel collective interests and energies that would otherwise be ignored, they can be understood as a ‘continuation of qualified democracy through other means’. Also, as far as they appear as the ‘gadflies of oligarchic tendencies’, which proliferate even in mature democracies, they have, even without democratic legitimacy, a democratising effect. However, often they achieve nothing more than some ‘symbolic stage magic’. Thanks to the mass media, this may even expand to a mass protest, but because they concentrate on single issues, an important and difficult task of democracy is neglected: the challenging problem of weighing competing values. (4) Following a second legitimatory counter-argument, the individual state constitutes, especially with regard to its responsibilities for welfare and as a historical community (‘the community of fate’), a federal association: a unified community of solidarity in the sense of the Rütli-oath in Schiller’s Wilhelm Tell (II 2): “We want to be one nation of brothers, and not separate in either danger or distress”. Now, solidarity across generations presumes a continuous sequence of generations, clearly discernable in responsibilities as varied as the correction of past wrongs and the conceptualisation of social security as a generational contract. Intergenerational reciprocity appears also in the interplay of factors that constitute national economies even in times of globalisation, such as the state’s currency, its taxation system, and those juridical, social, and cultural phenomena that compete with one another as ‘locational factors’. The following interim conclusion is therefore suggested: although states have neither an exclusive right to the rank of international actor, nor are governments the only representatives of a state, a resignation of states from the political stage is far

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from imminent. The end of statehood is neither empirically called for nor legitimatorily desirable. The actual development consists of a qualification that occurs as an ideal type in the three forms already mentioned: the voluntary renunciation of power, the loss of power forced from outside, and the unintentional renunciation of power. However, for the majority of these occurrences disempowerment is only part of the truth. Indeed, in the case of the three explicit renunciations of sovereignty – international treaties, international organisations or security alliances – the qualification occurs as a deliberate self-restriction, as a sovereign limitation of sovereignty. However, where this restriction occurs not blindly or frivolously but is carefully considered, it is actually conducive to the self-interest of states, and to three purposes in particular: either an already weakened capacity to act (possibly caused by a military threat) is strengthened; or the forces of economic and cultural globalisation are unleashed deliberately in the hope that they will result in greater economic and cultural prosperity; or it concerns issues such as human rights, the pre-state and über-state character of which is confirmed by recognising an external authority. The first two purposes amount undoubtedly to the opposite of disempowerment, namely an increase in power that is attained only through cooperation. The third purpose too can be understood in this sense, because the corresponding agreements strengthen the power of those who are important to a democracy: the individual but not isolated people. However, the power that states will preserve in the future barely suffices in the face of the need for more complete global action. A global political order above the level of the state becomes necessary, not as a replacement of individual states, but as their supplement.

6.3 AN ENLIGHTENED NATION STATE

6.3.1 A Neutral Concept Strangely enough, today’s global discourse is dominated by a model of political order that is, due to global changes, said to be exposed to even stronger justification pressures than the individual state (e.g. see Albrow 1996, 266): the fusion of the nation with the territorial state to create the nation state known predominantly in Europe and paradigmatically realised in France. Yet, since comparable developments are found elsewhere, for example in Japan and China, neither the achievements nor the dangers nor the recent trend towards compromised power should be viewed only through a European lens. Furthermore, instances can be found in Antiquity, long before the advent of modernity. Whether in China, Japan or Europe, the creation of nation states was contingent upon their coming into being under special constraints. In the case of modern Europe they emerged predominantly from the feudal associations of the Middle Ages. On the continent, particularly in France, but also in a different way in Spain, this occurred through a threefold dismantling of the Holy Roman Empire: the loss of power of the Emperor at the top, of the lower nobility, and of the peripheries gave rise to new, intermediate-level territorial units with central powers. Only after protracted,

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internal war-like disputes were they able to claim to other nation states that they constituted autonomous political entities. The homogenisation of the population is even more slowly accomplished. Important roles are played in this process by the legal and constitutional order, language, culture, education, and in many places also by the army, religion and later the media. Compression and homogenisation in conjunction with (often aggressive) outward-oriented delineation created a national society, in short: a nation. In contrast to the expectations raised by Marx and Engels, the nation has so far survived both the “creation of the bourgeoisie, with free trade, the global market, the uniformity of industrial production (and today of services; O. H.), and their respective ways of life” as well as the “rule of the proletariat” or, expressed more neutrally, the emancipation of the workforce. Also, the dissolution of “the opposition between the classes of a nation” will also bring about the dissolution “of the hostile stand-off between states” (The Communist Manifesto, MEW IV 479) is to be expected at best from the democratisation of states (see ch. 9.3). However, in a limited sense Marx and Engels were not wrong. The rise of the ‘national society’ to exclusive power is prevented by counterweights such as economic liberalism and the free trade it allows; by the international labour movement; and, within Christianity, by a Catholicism that negates any claim made by a national church. Philosophy, science, technology, medicine, and the arts are equally reluctant to commit to national borders. In the course of its development, the nation state has achieved much that is of indirect or direct benefit to qualified democracy. For this reason only, and in spite of some disastrous perversions, the nation state could grow to become an ideal model. Its achievements include the separation of state and society, which results in individuals’ multi-facetted autonomy in religious, economic and cultural affairs. Economic autonomy, in turn, contributes to substantive prosperity. Conversely, a modern economy is unthinkable without an integration of communication that only the nation state succeeds in fostering, an assessment that applies equally to modern administration. The advanced civilisation – bureaucracy, communication, specialisation and occupational mobility – that is required for both an industrial society and a state based on the rule of law develops within the overarching framework of a common, ‘national’ living space, which these phenomena strengthen even further (Gellner 1983). The nation state also assumes responsibility for the ensuing burdens of economic development. Through social security arrangements it converts itself into a community of solidarity; and through social assistance it provides even more than is required from it. Such achievements produce a foundation of trust, solidarity and a willingness to cooperate, and they compel even post-nationalists such as Habermas to admit that it is only the national consciousness that lets subjects become citizens who feel responsible for one another. Even more achievements of civilisation have their roots in the nation state: the renewal of European education and science, the development of linguistics and the study of literature, the introduction of compulsory schooling for all citizens, and a general elevation of the educational attainment of its citizens. Above all, the nation state makes room for the notion of basic and human rights as it abandons feudal

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bondages, privileges based on class and blood, and the unequal treatment of women under the law. If all these achievements are taken together, one may be inclined to claim that the nation state indeed comes to represent the model of a modern state in the form of a liberal and social democracy. Yet, one must not ignore the violence that accompanies the creation of nation states, through xenophobia, war, imperialism and even ethnic, or at least linguistic, purges. Furthermore, events take place in centralist nation states that federal states are equipped to prevent, namely the suppression of previously independent regions (a distinction not made by Anderson 1996). Not required for the future, but important for an assessment of its origin is the realisation of the “two faces of the state, which promise participation on the one hand while being willing to use force on the other” (Langewiesche 1995, 192). Even if the nation state is considered to be an overall achievement, it is difficult to claim that the state is historically necessary. In fact, for the original home of the human race, that is for the majority of Africa and its tribal structure, the state proves detrimental to the present day (Davidson 1992). Further, even where it may eventually be considered successful, the existence of the nation state did not usually arrive as the result of a rational calculation of interests. Even if important interests speak in its favour – for instance on the question as to whether the USA should become a federal state or a union of states (Federalist Papers no. 15) – geographic, social and political contingencies play a role as well. So, if the origin of the nation state can only be justified with reservations, then the legitimation of its continued existence could become even more difficult. Indeed, in the Discourse on the Origin of Inequality (122), Rousseau praises the few great cosmopolitan souls that cross the imagined borders that separate nations and embrace “. . . the whole human race in their goodwill”. In Émile (8), however, he warns of the cosmopolitans, who seek duties abroad, but fail to fulfil them at home: “. . . some philosophers love the Tartars, so that they do not need to love their neighbours”. He makes similar points in the draft of the Social Contract (III 287), and according to his Treatise on Political Economy, it is difficult to extend the humanitarian sentiment to the whole planet (15). Rousseau comes to a similar conclusion with regard to attachment to one’s own state: patriotism, so he argues, is not compatible with an attachment to the entire human race, a notion that is also shared by Sidgwick (The Elements of Politics 1908, ch. XIV, § 1). Criticism of its potential for aggression aside, the idea of the nation state can be opposed on the basis of at least four additional objections. First, it is claimed that the state’s central responsibilities, such as upholding the rule of law and the democratic balancing of citizens’ interests, do not depend on being grounded in the idea of a ‘nation’. Second, the nation state is said to be historically outdated, on account of changed constraints and circumstances, in particular those brought about by the various forms of globalisation. Third, because the concept of universal human rights is generally recognised, the state is, and has in principle always been, illegitimate. Finally, a conceptual distinction is demanded between the individual state and its national character: one should not overestimate the contribution the national character makes to a state’s achievements (as mentioned above).

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At least the last counter-argument is warranted from the outset. Developments that facilitate the creation of a qualified democracy, such as the Reformation and the Enlightenment, cross-national borders. The same applies to the growth of the state’s responsibilities and instruments as we outlined them above (ch. 6.1), so that the individual state, even if it survives its own dismantling, does not have to continue in the guise of the nation state. If the argument over the nation state is not to be prejudged on semantic grounds, the national element must indeed be distinguished from that of the individual state, and this national element should be defined in a way that does not make it historically necessary or outdated nor normatively legitimate or illegitimate. An effort is required to establish at least a neutral, possibly even a normatively modern concept. Since neither the English- nor the French-speaking world has problems with this, Germany should not embark on a special semantic path that equates the nation with its exaggerated variant, nationalism, with criminal evils such as ‘ethnic purges’, with generally aggressive policies that violate human rights, or even with totalitarianism. The danger of cutting oneself off from the outside and indulging in collective egoism and xenophobia is not a phenomenon specific to the nation state. Non-nation states too, are threatened by this, as is the present world population vis-à-vis future generations. Furthermore, following the argument of ‘speciesism’, humanity may behave in a collectively selfish way even against non-human nature. Finally, one must not overlook the fact that criminal violence originates not only from nation states, but also from other entities such as religious or linguistic communities. A positive attitude towards the nation state is traditionally called patriotism (literally: the love of one’s country) and consists of an esteem, without the exaggeration of that esteem into nationalism or, worse still, a national mania. Those who find it difficult to make the conceptual distinction between esteem for one’s own polity and its (possibly aggressive) superlative may renounce the term patriotism in favour of a bond to ‘their own’ state. The core of this bond can most certainly form the basis of a constitution, such as that of a liberal democracy, which speaks against MacIntyre’s thesis (1984) that patriotism and liberal morality are irreconcilable. However, a purely constitutional patriotism (Sternberger 1982) connects the citizen with a certain type of state, rather than with its institutionalisation in an individual polity. As long as a state is not actualised, constitutional patriotism remains abstract. In the absence of concrete connections one enters only a potential, not a real bond, and there is in effect, therefore, no bond at all. Hence, a constitutional patriotism may represent the core, but is still only a minimum of that which is required to form a bond with a particular state. An earlier theorist of constitutional patriotism, Adam Smith, is quite right in speaking of patriotism not in its abstract but in its concrete form, as the love of ‘our’ people and ‘our’ country (Theory of the Moral Sentiments, part 6, sec. II, ch. 2). Its first principle consists of the ‘respect’ and ‘reverence’ of the constitution or form of government, which Smith supplements with an element of individualisation: it must ‘actually’ exist. Those who are not inclined to respect the rule of law and to obey the civic magistrate are not citizens (in the sense that they do not fulfil even the minimum

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conditions of citizenship). However, overstating the first principle leads to a tendency to submit to authority – which today would be called ‘constitutional positivism’ – against which Smith puts forward, as we shall see, a second individualising principle (on constitutional patriotism see also ch. 7.2). When recent history is compromised, the objective distance required for a neutral concept is best maintained through cultural comparisons and a glance at periods further back in history. Herodotus (Schuster 1996, 82–86) argued that the collective identity of the Greeks was determined by six factors: (1) descent, (2) language, (3) religion, (4) way of life, (5) territory and (6) political unity. It is not difficult to recognise in these factors the building blocks of a concept of the nation state. While they may not all be necessary, the majority of these are indispensable for the statehood of a nation. Some scepticism about this account, however, is in order when the ancient story of the servant Sinuhe is considered (the oldest transcripts of this story date back to the eighteenth century B.C.) who, on hearing of the murder of Amenemhet I, flees the country and crosses the border into Syria-Palestine, but subsequently returns to Egypt. For, consistent with Schuster (1996, 82–86), the factors named by Herodotus may indeed contribute to a collective identity, but almost none of them represent a determining focus. The first five factors are, even if considered in combination, not sufficiently weighty to compel Sinuhe to return. The sixth factor is more important, but even in the strictest sense it is not decisive. Let us spell out Herodotus’ criteria: (1) In Sinuhe’s case, descent is of no great importance; (2) the dialects, which are, incidentally, not reflected in written form, are established so strongly that they at least complicate communication between regions; (3) there are distinctive regionalisms of religion, despite the Pharaoh-oriented state religion; (4) only the higher classes share a common way of life; (5) although the distinctive physiognomy of the fertile land surrounding the Egyptian river creates a strong sense of belonging, that bond is still limited because of the contrasting landscapes within this region. (6) Political affiliation as the sixth factor is more important, because Sinuhe is summoned back by a letter from the Pharaoh. Nevertheless, it is not the king who determines his love for his homeland, rather a new factor, namely (7) the grave: “The story of Sinuhe makes the reader realise that one may be willing to live abroad, but under no circumstances is one ready to die abroad. Only the thought of his death makes Sinuhe become fearful of being abroad” (Schuster 1996, 87). 6.3.2 Five Modernisations Neither the Greek city republics, nor their union, Hellas, nor ancient Egypt are precursors of the modern nation state. However, they raise concerns against Gellner’s (1983, ch. 1; 1988) suggestion that history should be divided, in relation to modern nationalism, into only three epochs: the time of the hordes and tribes of hunter-gatherers; the time of the agrarian societies with stable hierarchies and a multitude of peoples; and the time of industrial societies based on the nation state. The Greek poleis are neither simple agrarian societies, nor are they states that contain multiple peoples; Egypt has already separated itself in the era of the Thinites

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(2850–2650 B.C.) from other peoples and objected to external influence. Neither does Ancient Israel comply with Gellner’s division; and China and Japan lost their poly-ethnic character long before industrialisation. Examining Hellas and Egypt does not only cause us to reject historical simplifications; it also suggests the existence of the building blocks of the modern nation state, and it does so not in a historic but in a normative sense. Greece and Egypt differ substantially in terms of content and collective (or ‘national’) identity. Yet, the statement, “under no circumstances” (should one die abroad), testifies to the formal equivalence that one never looses one’s collective identity: wherever one lives, that identity is maintained throughout life. Some remain forever Greek, others forever Egyptian. In the normative sense, the modern nation state weakens this phenomenon in three ways. Together with two further, no less important modernisations they no longer lead to a nationalistic, but to an ‘enlightened’ nation state: According to the first modernisation, the ‘nation’ signifies primarily the civitas, the citizenry, not the gens, the progeny of common forefathers. The nation defined by citizenship has precedence over the nation defined by descent. The nationalistic version is of no concern at all. On the contrary, all citizens are recognised as equals, irrespective of their ethnic origin. (According to the complex conceptual genealogy of ‘people’ and ‘nation’, the nation defined by citizenship has always been present and has often taken precedence over the ethnic variant; see Koselleck et al. 1992.) Criticism of nationalism is directed at its roots, being based on (admittedly historically dubious) myths of ethnic origin, the political archetype we know from Virgil’s Aeneid: by establishing a fictitious temporal connection between Roman history and Greek mythology – it is said that after the destruction of Troy Aeneas and his companions left for Latium – the Roman claim to world power is brilliantly vindicated. In the first modernisation, the nation state takes a distant stance to a super-elevation of one’s own polity and the devaluation of, or even aggressive fight against, other communities. A nationalistic sense of citizenship gives way to its enlightened variant (see ch. 7.4). The second modernisation dispenses with antique exclusivity – the notion that one remains forever Greek or Egyptian. A personal change of nationality is not excluded, nor is a regrouping of states into smaller or larger units. Those who accept nation states do not necessarily have to consider one’s nationality of origin or a historically accidental (collective) formation of states to be sacrosanct. Under certain conditions even a dual nationality is conceivable, though these cases remain special and at times difficult. Tied to one’s nationality are important provisions citizens demand of the state, such as protection from the laws of other states, as well as reciprocal duties that citizens have towards the state, such as military service. Further, citizens demand rights to political participation and, in some places, the right to acquire ‘politically sensitive property’ such as real estate and pieces of art. Dual nationality has advantages for both these reasons, because it goes against the notion of equality underlying the precept of democracy and the rule of law, thereby substantiating its special character. There is first the advantage of the right to participate in both countries and then the privilege of a dual citizenship status that is advantageous in the acquisition

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of property. Last but not least, since an individual can only serve one state at a time, the states must share this individual’s time (e.g. for military service) between themselves, whereas each state must provide a full range of services (such as the protection of the law) to this individual. In positive law, the acquisition of a citizenship can follow different principles. Countries with significant levels of immigration prefer the jus soli, the right of the territory, whereas countries where tradition has remained more continuous give priority to the jus sanguinis, the right of blood. Different principles are bound to result in cases of dual nationality: a child of German parents that is born in the United States becomes a German citizen in keeping with the principle of descent, but American according to the principle of territory. Further, since Persia (Iran) does not allow its citizens to be relieved of their Persian nationality, a Persian can become naturalised in another nation only by having dual nationality. Dual citizenship is especially problematic if one state protects human rights while the other clearly violates them in some areas. The fact that some citizens may jeopardise this legitimatorily decisive difference by carrying out their military duty in the rights-violating state rather than in the other is not without consequences. Also, the fact that they may even personally participate in abuses of rights is entirely irreconcilable with the general obligation to comply with human rights that their other citizenship requires of them. For these reasons – the (unjust) privilege and the potential frictions and conflicts – it is understandable that dual citizenship is not internationally desirable and is, according to an international agreement of 1963, to be reduced, not expanded. Even so, in exceptional and well-reasoned cases a modern state may behave generously. The second modernisation began to qualify the ‘state defined by the right of blood’ but did not remain content with the state of affairs as thus described. Rather, the entire area of individual and national statehood must be further qualified: that which states have never actually been, because of the counterbalances mentioned earlier, applies even less in the age of globalisation. There are no self-sufficient communities that exist like monads entirely independent from each other. In line with the third modernisation, the nation state reacts in a constructive manner and remains open for large-scale polities like the European Union, even for a global system of government. The state therefore fulfils its ‘regional’ political responsibility within the larger scale of a regional or even global political framework. When necessary, the state qualifies the nationalistic motto “compatriots take priority” (Shue 1980, 132). According to the fourth modernisation the nation state acknowledges the universal principles of justice and therefore refutes an important argument against it: the nation state’s apparent incompatibility with human rights. The modern nation state in the normative sense is proud of its recognition of human rights, including the protection of minorities. It confirms the precedence of the nation of citizens, by including in its ‘way of life’ a tolerance towards minorities and towards differences. The enlightened nation state has no fundamental issues with a poly-ethnic nation. Nor does it consider itself a compact and closed unit that is discreetly removed from

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all other states. Globalisation inevitably brings about certain tendencies towards change anyways. Furthermore, there are also distinctions that do not abide by ‘national’ but by transnational factors, such as language, religion, age, gender, occupation, settlement patterns, climate and geography. These ‘cross-state similarities’ expose the conceptual vulnerability of state borders and demonstrate that a homogeneous nation defined by descent, language, religion, customs and way of life is hardly anywhere to be found. Even if it were to exist, a homogenous nation could not be considered an ideal, because it is the ‘differences’ that bring to life the wealth of human possibilities. In addition, a national consciousness can dissolve barriers like religion and social origin and, thus, manage to bring different people together. It is not only common characteristics but also differences that shape and indicate an identity. A Look at Greece and Egypt suggests not only the first three modernisations, but also a linguistic innovation: these are, indeed, a group of factors that can be designated by a neutral term; yet, as the new concept of burial that goes beyond Herodotus’ ideas shows, that group is never complete. In addition, the factors are weighted differently: what may define the collective identity of one state can be entirely missing in another. Consequently, the national element cannot be determined in the traditional manner by genus or specific difference, but by ‘family similarities’ in Wittgenstein’s sense (Philosophical Investigations § 66). On this account, there is no common core, not even an ideal or a prototype that may be approximated to a greater or lesser extent. Not even Habermas’ (1986, chs. 4 and 5) simple alternative of an ethnic or a republican nation of citizens can therefore be accurate. Rather, a group of potential criteria and variants (which can hardly be enumerated) needs to be reckoned with: the ‘national’ aspect of the concept of the nation state consists of different combinations of elements that do not necessarily have to apply in their entirety (on the recent debate, apart from the authors already cited, see Blomert 1993; Hobsbawm 1990 and the special issue of Philosophical Forum 1996/97). States with a high ethnic homogeneity do exist, of course. The Japanese population does not trace its roots back to the same set of forefathers and they are therefore not ‘manger fellows’ in Aristotle’s sense (Politics I 2, 1252b18). However, despite owing its origins to Mongolian and Malay immigrants, the Japanese population is ‘racially’ and culturally exceptionally uniform. It arose from a long process of fusion undisturbed from the outside since the fifth century. Similarly homogenous are the countries of China (with 92% Han Chinese) and Korea, as well as Scandinavia, in particular Sweden (where more than 95% belong to the North Germanic people of the Swedes). Iceland, which is even more homogeneous, was settled by the Vikings almost a thousand years ago, has remained unspoilt by outsiders ever since, and is now comprised almost exclusively of Icelanders in the ethnic sense. Nevertheless, it is difficult to claim that Iceland, Japan or Sweden represent ‘high-national’ or even ideal nation states and to declare, by contrast, that the USA, for which ethnic difference is one of its defining factors, constitutes nothing more than a ‘weak’ national state. Since other factors contributed to the formation of the USA, in particular the constitution and

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the rule of law, they represent a historically successful example of the (normative) precedence of a nation defined by citizenship. On the other hand, the USA cannot be reduced to constitutional patriotism either. Other important factors reinforce the country’s sense of its own statehood: a common language, a sense of mission (‘God’s own country’), country-specific sports like Baseball and Football, common experiences conquering and cultivating the land, as well as the potentially vague, but vivid anticipation of the future, the ‘American dream’. Also, two centuries after its birth, a colourful set of common characteristics has to be added, which are related to tradition, history, the way of life, and to the country’s sense of pride in its manifold achievements. The fact that, law and constitution aside, language plays a special role is not only contingent, but is linked to statehood itself and is further confirmed by qualified democracy. This applies in general and can be identified as the fifth modernisation: as far as the modern nation state goes beyond constitutional patriotism, it consists primarily of elements that serve the nation. These elements are conducive to the nation defined by citizenship, which confirms the latter’s precedence over the nation defined by descent. As particulars that are helpful, if not indispensable, for every nation that defines itself through citizenship, these elements qualify mere family resemblances and become particular universalisms. The elements are universal because they are needed by every society and every nation defined by citizenship; and they are particular because they manifest themselves – more or less – in a peculiar fashion. The normatively modern nation state links universal universalisms with particular universalisms. These facilitate the transformation from an abstract nation defined by citizenship into a concrete nation, which gives rise to the latter’s right to political self-determination. The particular universalisms can be used to refute the first two arguments against the nation state: as long as there are particular universalisms attached to a concrete state, the nation state is indeed qualified, but should not be considered entirely outdated. There is an alternative to outdated nationalism other than the post-national: it is called ‘enlightened nationalism’. Just as in private life universalistic morality does not cancel individuality, universal principles of justice do not proscribe every form of collective individuality either. The right to be different is promoted by the fact that these principles are nothing more than a blueprint for a concrete society, and not the society itself (see ch. 4.4). What is more, in the course of globalisation a collective global interest develops in the preservation of the social and cultural wealth of the human race, as opposed to decaying into a homogenous society that is bound to lead to one culture taking over, thus establishing its hegemony. In any case, a normatively modernised nation state can be considered legitimate and equipped for the future. The prime mover in the universe of particular universalisms – language – is eminently important for the nation defined by citizenship, which is why one may not disavow it as a natural criterion: whether written or unwritten, legal obligations are formulated in a given language, and are administered and laid out in that language. There exist well-defined bureaucratic and judicial languages, which, in a qualified democracy (and its participatory variant in particular), are supplemented by a

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continuous democratic debate encompassing the exchange of arguments, visions and experiences. The obligations are pre-assessed and commented on by political parties and the general public and eventually discussed and decided upon at the legislative level of government. In all these processes, language emerges as a constitutive element of democracy, as important to it as water for fish and air for birds (Isensee 1955). As a discursive community in particular, democracy is also a linguistic community. Language may thereby not necessarily emerge in the singular. A multilingual system that is well thought-through creates a linguistic community as well, although one of a secondary nature. The medium for disputes, competition, as well as the processes of accommodation and agreement are exactly the languages chosen, and none other. The narrow link between democracy and language is often contested by reference to the multilingual nature of some states and the fact that often borders of states do not coincide with those of languages. German, for instance, is spoken not only in Germany, but also in Austria, sections of Switzerland, even Italy, and, as a MoselleFranconian dialect, also in Luxembourg and parts of Belgium. Yet, Belgium, Finland and Canada can, despite their bilingual nature, still be categorised as democratic nation states, and so can Switzerland and India (with Hindi, English and other bureaucratic languages that prevail in some of its states), regardless of their tri- or quattro-lingual character respectively. On the contrary, the multilingual character contributes to their special profile, without falsifying the following statement: no matter whether in the singular or the well-defined plural, language plays a special role for qualified democracy. It is the primary factor in the individualisation of this type of constitution. Akin to other factors of individualisation, the prevailing language is indeed a historically developed communality, but must still be politically confirmed. This circumstance speaks against an objective-substantialist understanding that seeks to disconnect the individual state from any deliberate act and base it merely on sociocultural criteria, such as ethnic origin, language, religion, tradition and so on. Instead, a subjective-voluntarist element is indispensable: a will to unity and collective identity that must originate in the citizenry and that confirms the preference for the nation defined by citizenship. This will is to be confirmed and replenished continuously and, according to Ernest Renan’s (1882) famous lecture Qu’est-ce qu’une nation?, may even have to be renewed through a daily plebiscite. However, the will may also dwindle or face an opposing will. Still, it is unlikely that there exists a single polity that is capable of an all-inclusive, undifferentiated multilingual system that remains open to all languages of this world without committing to at least one of them. Every state, even the USA in its beginnings, is built upon an already established foundation of historically grown facts and circumstances. However, the state must help them attain political importance, a task that lies in the realm of political will. Hence, the nation state is falsely defined as an ethnic nation, not only when it is not ethnically homogenous, but also when it is ethnically homogeneous. This follows

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because the element of the ‘nation based on will’ may be developed to different degrees, but it must still be clearly pronounced in all cases. Hence, every nation is to be defined primarily through constitutional law, as a group (i.e. as a community or society) that has the will as well as the capacity to live together in recognition of a common constitution. The founding principles and circumstances on which individual states are based are not the same. In Poland, Catholic religion plays as important a role as language does; in Belgium the same religion unites the linguistically and culturally different nations of the Flemish and Walloons; Germany, in turn, takes account of religious differences in its development; and in the USA, the (even greater) religious differences create a consensus over the need for active religious tolerance. While liberal democracies grant the freedom to worship, a factor which over time tends to weaken the consensus of religious communality, the Welfare State is, apart from the field of human rights and language, of eminent importance to a nation that is defined by citizenship. It allows the basic nation defined by citizenship to progress towards a community of solidarity. The latter’s solidarity may then certainly expand to encompass assistance for neighbouring countries, development aid for countries further away, or support for the entire human race when natural disasters strike. However, a state-based community of solidarity is comprised of institutions (such as social security) and factors (such as responsibility for its own history and future) that are limited by territory and population. As Habermas (2001, 59) argues, the solidarity-enhancing force does not necessarily depend on a “pre-political basis of trust of a ‘grown’ community”. Particularly in Europe, the case discussed by Habermas, it is facilitated by such a community, which is, of course, not only defined in national terms. Nevertheless, due to its numerous common characteristics, including negative experiences such as wars waged against each other, Europe distinguishes itself as a ‘genuinely developed’ community on a higher level. Yet, there is another, more important argument to support the link between solidarity and national statehood: conceptually, communities of solidarity are ‘communities in reciprocity’ (see ch. 3.4) that, because the reciprocity is usually deferred, require a certain continuity and duration. Whether ‘traditional-national’ or, in the future, ‘European-national’: a nation defined by citizenship is a community of fate that confronts its various challenges by securing its political and economic survival in the form of assistance in reciprocity. As such, individual statehood is a priori not outmoded or illegitimate. Adam Smith quite rightly refers here to the second principle of patriotism as the “serious desire to make living conditions of our fellow citizens as secure, decent and happy as possible”. While obedience to the law and constitutional patriotism are constitutive only of the simple citizen, “he who does not long to promote with all available forces the well-being of the community of all his fellow citizens is no good citizen at all”. The well-being demanded by the citizens, then, only extends beyond a first dimension of substantive solidarity, and may also call for political innovations if so required.

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Part of the second dimension – the political, or more precisely: democratic, community of solidarity – is the willingness of the minority to submit to the majority, an objective much more attainable within a common ‘national’ framework. After all, we are reliant in our own community for the protection of the law as well as a rich social, cultural and political infrastructure. We expect assistance first and foremost from our own community and only secondarily and subsidiarily so from others. It may be recalled that out of the overall reconstruction costs for West Germany after World War II, the system of financial compensation for losses suffered during the war (the Lastenausgleich) alone amounted to DM 127bn (Caesar 1987, 845) and represented, thus, only a small portion of the overall costs. By contrast, the ‘Marshall Plan’ – which was by no means established for completely unselfish reasons as it was meant to restore Europe as a trading partner, prevent a crisis of overproduction in America, hinder further Soviet expansion, and increase America’s political influence in Europe – amounted to DM 13.37bn. More than half of this sum went to Great Britain, France and Italy, while Germany received only DM 1.39bn (i.e. 10%) of the Lastenausgleich (Loth 1987, 1024). There is at least one other element that promotes the development of the nation defined by citizenship: on account of their history and experience, individual states develop over time a shared and symbolically represented world of cultural truisms. That world assumes aspects of what Husserl (1970) as well as Schütz (Schütz and Luckmann 1989) call a life-world (Lebenswelt). Beyond a particular, yet not abstractly determinable density, it leads to a distinctive individuality of the state and, because it is based on reciprocity, may be called the third dimension: the cultural community of solidarity. It may be left to the respective state to create its world of social and cultural truisms, provided that it remains within the realm of universalistic principles of justice. Certainly, political and religious preferences must remain with the individual as much as predilections for either Bach and Beethoven or Jazz; for Bayern Munich or the New York Knicks; for German literature or American crime novels; and for mountaineering and tidal walks or deep sea diving. Whether most of the communalities belong to the private sphere is not debatable, but only whether they all do, and moreover, do so for reasons of justice. Some scepticism is indeed warranted against such a claim. A political community may subsidise both ‘high culture’ as well as folk culture. However, it is also legitimate for the state to refrain from subsidies for culture altogether and concentrate instead on its core responsibilities for upholding the rule of law, justice and peace. Once a nation state submits to this fivefold modernisation, the results are no different than for an individual state: neither empirical nor legitimatory reasons make the nation state appear anachronistic and therefore suggest its dissolution. The forces of globalisation do not wash the nation state away, nor does it entirely loose its legitimacy because of the need for global action. Yet, in both cases the nation state is qualified. Contemporary societies may perceive themselves as ‘postnational’, subject to one further inquiry: Where, other than in Germany, does it happen that one is, not only recently but even in Kant’s time, “not passionately attached to [one’s] native country” (Anthropology, ‘On the Character of Nations’

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VII 317)? At any rate, there is no moral obligation to adopt a post-national selfimage, and an ‘enlightened national’ identity remains a legitimate alternative. However, that alternative is not morally required either: it is not a moral duty to establish justice and the rule of law in the form of enlightened nation states – likewise, there is no moral right to impose this form of political self-organisation upon other cultures.

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7.1 CIVIC VIRTUES

During modernity the philosophy of the state and the law concentrated upon institutions and laws. By contrast, Antiquity emphasised a different aspect, one that seems more like an anomaly in a purely institutional theory, namely personal requirements, either as a substitute for institutions, as portrayed in Plato’s Republic, or in addition to them, as laid out in his Laws (731c, 687b–688b; 689a–c) or in Aristotle’s Politics (III 4, 1276b27–34; Hansen 1995, 311). Also, for the corresponding history of Rome one is best referred to Cicero’s On Duties (I.XVI 50) or the historians Sallustius, Livius and Tacitus. In early modernity, writings continued to be published on the ideal ruler, such as Machiavelli’s The Prince (1513), Fénélon’s Télemaque (1699) and Anti-Machiavel by Friedrich II (1739). Machiavelli also reflects on civic virtues (see Discourses, vol. I, ch. 16). The Scottish moral philosopher Ferguson even traces the wealth, expansion and power of nations back to such virtues (An Essay on the History of Civil Society, 1767) although he is concerned less with those of political citizens than with those of economic citizens. Adam Smith, in turn, thinks very highly of two civic virtues: justice and, within the scope of beneficence, patriotism, which he believes includes both steps of constitutional patriotism and solidarity (The Theory of Moral Sentiments, sec. 6, para. 2.2). Montesquieu also refers to civic virtues when he asserts that a democracy requires greater virtues on the part of its citizens than does an aristocracy or, even more so, a monarchy (The Spirit of the Laws, vol. III, chs. 3–5). Hence, the concept of virtue did not completely disappear in the political philosophy of modernity. Yet, decisive texts such as Hobbes’ Leviathan, Locke’s Second Treatise on Government, Rousseau’s Social Contract, Kant’s Doctrine of Right and Mill’s treatise On Liberty make no mention of the virtues of either the ruler or the citizen. At most, some occasional remarks can be found in Hobbes on moral virtue (e.g., Leviathan, chs. 15 and 27) and in Kant on the three fundamental legal maxims (ch. 3.5). What is often lacking in modernity is explained later by American President Madison in his Federalist Papers (no. 10), which reads like a critical comment on Plato’s remarks about the philosopher king (The Republic V 473c–d): rulers with the necessary virtues of rulers, so-called “enlightened statesmen”, “will not always be at the helm”. Also, with regard to citizens he adds: “if the impulse and the opportunity coincide unhindered, we well know that neither moral nor religious motives can be relied on as an adequate control”. On both sides, then, the vagaries of individual 131

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morality are to be reckoned with. According to Plato and Aristotle, however, the virtues of both the rulers and the ruled are necessary conditions for the creation, if not the continued preservation and well-being, of just political systems. If the virtues are absent and egoism rules instead, so Aristotle claims, then monarchy descends into tyranny, aristocracy into the rule of the wealthy, and the politie, as the form of government that most resembles the future constitutional democracy, degenerates into a society being ruled by the poor, if not by the mob (Politics 1280a2). The virtue that matters in Antiquity is the specific personality trait of being willing to distance oneself voluntarily, and in varying contexts, from an unchecked realisation of one’s impulses and desires. Seen this way, however, nothing more than a preliminary, watered-down or passive virtue exists to cause us to abstain from wrong. Those who dispose of the stronger, active virtue, however, also do the right and the good. Yet, they may actually be motivated in the long term by their own welfare, so that their virtue is little more than something pragmatic, prudent or guided by reason. Only rising further to the most demanding, genuinely moral concept of virtue leads to positions that are valuable in themselves, such as the understanding of a good and successful life from Antiquity, or the modern Kantian sense of morality that does what is morally right for its own sake. For according to Kant, this virtue is “the moral strength of a human being’s will in fulfilling his duty” (Doctrine of Virtue Intro XIII: VI 405/533). In addition, with regard to the political system, three levels of virtue can be distinguished: civic virtues and the virtues of rulers understood in the weak and passive sense, simply avoid the wrong; those in the medium, active, but modest sense, do the right and the good; and the virtues in the most demanding sense, are fulfilled for their own sake. The two basic approaches of institutional and personal interpretations of the state can be understood as opposing poles, so that moral demands imposed on the polity can be directed either exclusively at institutions or at persons. Those who only rely on individual morality, hope for a better, possibly new human being, free of any self-interest. Political liberalism sees here an unrealistic and excessive demand, and for this reason alone it identifies contract theory as an alternative to virtue ethics. In addition, it understands civic virtues as particularist elements that are not compatible with universal principles. Moreover, states that are governed by people rather than laws are in danger of descending into dictatorships, which is why it is preferable to rely on just laws and institutions. Just institutions relieve individuals of their personal morality, so that, as Madison states, the existence and security of the government is secured “even in the absence of political virtue” (The Federalist Papers, no. 10). The critics of a purely institutional theory of the state do not defend the opposite viewpoint, for example an anti-liberal and anti-universalistic communitarianism. They affirm the value of institutions as well as the validity of universalistic principles, but doubt that they are sufficient (Dagger 1997). In a world without personal morality, where there is only rivalry between selfish interests, so the critics suppose, no state can be created. As in Plato’s Laws or Aristotle’s Politics, personal requirements do not replace institutions, but are a helpful if not necessary supplement

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to them, so that the otherwise likely personalisation and moralisation of the law, of the state and of politics can be avoided. A purely institutional theory of the state relies on a simple division of labour: reasonable institutions are created so that citizens can be unreasonable and can follow their interests and passions. However, a ‘with-virtue-theory’ asks how reasonable institutions are first to be created, then, to be infused with life, and ultimately, to be constantly renewed along these lines. It is precisely here where personal morality offers itself as a supplement. Virtues are thereby not required in full, neither in the totality of their contents nor in their normatively most elevated stage. We can learn from Antiquity, for instance from Aristotle, that the danger of over-moralisation can be overcome with the help of a three-fold modesty. A distinction must be made between a civic virtue of citizenship that refers to politics on the one hand, and to the thematically more comprehensive and normatively more demanding virtue of the good person (or ‘man’ according to Aristotle) on the other (Politics III 4). It is not only civic virtue that is required but also civic friendship (politikê philia), which is morally relevant but less demanding than justice (Politics III 9, 1280b35–39; Nicomachean Ethics 1155a26–28; see Plato’s Laws V 738e1). Finally, and again according to Aristotle (Politics III 11, 1281b25–28, 1282b1–6), one should rely primarily not on people’s good attitudes, but on reciprocal interaction. That way, civic virtues are strengthened by obliging institutions and by the law, upon which the strain is eased, and the quality of which is improved by civic virtues. According to a widespread objection, the need for a personal state-morality follows from the peculiarities of Antiquity, such as the period’s political phenomena and moral views, and is therefore now outdated. In truth, however, even the modern polity must be based on non-institutional requirements. They are obviously visible in the modern equivalent to the antique ruler, that is the holders of public offices: judges, administrative officials and even politicians are exposed to moral demands that are not, as the moral sceptic Luhmann (2004) asserts, functionally non-specific and irrelevant to the office held. Rather, all three public powers require a functionally non-specific integrity. Judges and administrative officials have to be impartial and incorruptible. Even for the herald of the market economy, Adam Smith, an incorruptible judiciary is indispensable (The Wealth of Nations, vol. V, ch. 1.2). Politicians must also, as a minimum standard, make use of a willingness to respect the integrity of democratic institutions and to serve not their own welfare or that of their clientele, but that of the polity (Thompson 1987). The following discussion is concerned with the other and more controversial side of the debate: the morality of citizens. We therefore deliberately refer to civic virtues (Bürgertugenden) and not merely to virtues of state citizenship (Staatsbürgertugenden), since it is an expansive community spirit, an expansive sense of community, that is here required. This is not the place to treat the topic in a comprehensive manner, a treatment that would have to include the possibility of institutional reform. Yet, as it is linked to the theory of democracy, and because it also affects the global perspective, the following question cannot be avoided: does the qualified democracy get by with only the self-interest of its citizens, or does it

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need civic virtues too? The question is no longer directed at the legitimation and limitation of the polity, but on its creation, preservation and advancement. The moral requirements that emerge do not contradict legitimatory individualism (see ch. 2.3). This follows because for the interests of the second step to come to fruition at all, a particular qualification in the first step turns out to be indispensable: a renunciation of self-interest out of self-interest. We are not concerned with the moral justification of civic virtues, nor, therefore, with the thesis that there exists a natural duty to legal obedience, individual justice and tolerance. Neither do we deal with Böckenförde’s (1991, 112) often repeated but rarely thoroughly developed assertion that the liberal, secularised state is based on conditions that it cannot actually secure. We are content with the preliminary question of whether the ‘objective’ institutions of a qualified democracy require a ‘subjective’ equivalent in the form of civic virtues. Every civic virtue deserves closer investigation. However, a glance at the rich spectrum of these virtues is sufficient to complete the model of a qualified democracy. Consistent with the four dimensions of being civic (Bürgersein), four progressively more demanding virtues present themselves: the legal subjects within (by and large) just institutions and laws require a legal consciousness, or sense of law (Rechtssinn), the superlative of which consists of a habitual and lawful disposition (Rechtsgesinnung) and of civil courage, that is the willingness to stand up for one’s beliefs (7.2). The further advancement of just institutions and laws, and already the creation of these institutions, necessitates a sense of justice and, given the condition of pluralism prevailing today, also of tolerance (7.3). Just as a civic sense for one’s own state is needed (7.4), a sense of community relative to one’s own society is also required (7.5). There are also, fifthly, standards that are generally required, but that assume a special shape in extremely complicated and dynamic polities: deliberation, calmness and prudence (7.6). The scope of this topic is not to be belittled: where civic virtues are nurtured, polities are no longer the mere suppliers of resources to which citizens help themselves in order to fulfil their private interests, or which provide a framework, such as legal stability, for their fulfilment. These individuals are willing to make voluntary provisions and, as citizens in the emphatic sense, may therefore call themselves active cocreators. By contrast, those individuals who comply in the strictest way with the limits of what is enforceable conceive of public powers as no more than authorities and of themselves as their subjects. Civic virtues oppose such a reduction and allow people, who were only citizens in a constitutional sense, but still subjects in a political–social sense, to become citizens to the fullest degree. Obviously, this achievement has implications for the design of the polity, as civic virtues deny political institutions any right to exclusivity. Neither public powers nor the professional representatives of the state have a monopoly over the political sphere. Where the holders of an office share the political arena with citizens, the state is not actually weakened, but what remains of authoritarian statehood is erased, while the separation of state and society is qualified. The result may be called ‘civil society’ (Zivilgesellschaft) in the sense of a political system, although it more

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accurately constitutes a ‘civic society’ (Bürgergesellschaft). In civic society the polity no longer constitutes a unit of office holders and their subjects, but rather a unit of free and equal participants. To a limited extent, citizens even have at their disposal the dual capability (Doppelkompetenz) of the ancient citizen: the capacity to govern as well as to be governed by others (Aristotle, Politics III 4, 1277b13–16). 7.2 CIVIC COURAGE AND THE SENSE OF LAW

The first civic virtue can be explained with the help of the three elementary legal duties, which are known from Roman law and apply to the private legal subject, not to the government (Digesta 1, 1, 10 § 1; also Cicero, On Duties I § 16; The Laws I § 15). Legal duties begin with the demand honeste vive, literally ‘live honourably’, so that one may have a good name, a reputation established through word and deed. Society can certainly demand more than that, such as significant achievements or, at least, prudence, bravery and generosity. However, for the rule of law, the acknowledgement of laws and legally bound customs is sufficient. The first legal duty merely requires citizens not to transgress the law; with deliberately modest expectations it is content with juridical integrity (for an interpretation as proto-justice, see ch. 3.5). The other two legal duties of citizens clarify the first. The maxim neminem laede (‘injure nobody’) forbids not only physical injuries, but also insults and, generally, any encroachment on the rights of others. The fact that nobody is to be wronged corresponds to the negative side of integrity and good reputation. Also, the third maxim suum cuique relinque seu tribue (‘render unto everyone that which belongs to them’) concerns the positive side. Again, the decisive expression suum is juridical, and the responsible subject is not to be understood as the government. What matters is not distributive justice with the difficult ensuing question of what is to be distributed. Rather, each legal subject is required to leave to others what they are entitled to, and agreements must be fulfilled. These three legal duties are not of the same status as conventional legal norms. As second-order precepts of the rule of law, they leave open the content of the norms of the first step yet call for their fulfilment. In all three variants they contain a general demand for juridical legality. Those who adopt it and accept objective legal duty as a subjective principle, dispose of the essentially first civic virtue: the inner willingness to live within the law. Since this virtue refers only to the law, and because it avoids the underlying political system, it does not yet represent an authentic ‘political’ obligation, and is therefore not a civic virtue of citizenship (Staatsbürgertugend), but only a civic virtue of lawfulness (Rechtsbürgertugend). This virtue is both an acknowledgement and an honouring of the law, but is now incorporated in the individual as a character trait. In the case of legal allegiance, the first two of the three virtues collapse into one: those who abstain entirely from any form of legal transgression and follow both the precepts as well as the prohibitions (the first step) simultaneously fulfil all the requirements of the law (the second step). Yet, a further improvement is still conceivable. Those who live within the law because they only want to live more conveniently, easily and

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successfully – in short, more happily – act out of a higher-order self-interest: out of interest for their own happiness. This represents not a genuinely moral, but only a pragmatic or prudential virtue. Those who live within the law only because they are fearful of ‘being caught’ and getting punished, do indeed act out of fear, and therefore by choice, but still not freely in an emphatic sense. Even if following the law has become second nature to them, even when not possessing a genuinely lawful disposition, they content themselves with what precedes true allegiance to the law, namely a simple understanding of the rule of law. Only a legal allegiance of a higher order is willing to acknowledge the law in a ‘deep’ sense, because the law is applicable and valid, and not merely because its violation will be punished. However, willingness alone does not yet strengthen moral character. Not all laws that are applicable deserve legal obedience. Quite the contrary, there are extremely unfair laws. Cicero sees it as the greatest folly to believe that everything that is enacted through the institutions or the laws of nations is just; for there are, after all, also tyrants (The Laws I § 15). An unconditional legal loyalty amounts to the morally questionable attitude of a legalism that simply trusts authority. A greater virtue than a mere virtue of subjects, that is, a real civic virtue, is only achieved where loyalty is given to a, by and large, just legal system and, in full knowledge of its moral status, this legal system is accepted as it is, without need of any further motivation. Here, the simple sense of law, that is unconditional legal allegiance, grows to become a full and authentic sense of law: a lawful disposition, that is juridical morality. The energy required for this is motivated by moral esteem for oneself and others. If conformity with the law is directed at the positive law of the second order, the constitution, this conformity amounts to so-called constitutional patriotism (see ch. 7.3). This type of patriotism, too, has two levels. Simple constitutional patriotism, simple allegiance to the constitution, consists of an unconditional conformity with the law; a respect for the constitution for its moral standing is constitutional morality. It is also underpinned by a moral esteem for oneself and others. The morally more demanding legal allegiance refuses to commit unconditionally to any effective law. As a ‘sense of law subject to elementary justice’ it contrasts with an ‘authority-trusting sense of law’ and may be called an ‘enlightened sense of law’. It opposes the institutions and laws of qualified democracy by affording them trust in advance. With it rests the burden of proof that a policy or a law is massively unfair, particularly where its current interests are compromised and where it may thus be biased. At any rate, it deems massive injustice as a possible scenario not only in individual instances, in which case the usual legal resources are available, but even at the level of the law itself. Only in this scenario, when lawful means of opposition are exhausted, and even then only under strictest provisos, does it reserve the right to civil disobedience (on the wider debate, see Bedau 1969 and 1991, Rawls 1971, §§ 53–59, Höffe 1981, ch. 8, Glotz 1983). Once one goes the way of civil disobedience and raises objections to the prevailing majority, another civic virtue is required: civil courage as the willingness to stand up for one’s beliefs. In the authoritarian state this is invoked as ‘courage before the

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royal throne’. In a qualified democracy it does not have the same emotive overtones. At times when civil disobedience is too hastily invoked, civil courage may even be required on the opposite side, in order to resist the frivolous assertion of a supposedly massive injustice. For civil disobedience is a sort of ‘borderline virtue’. It by no means consists of that fashionable ‘culture of opposition’, which blurs the distinction between resistance under a dictatorship and it, and which suppresses the special character of civil disobedience and its strictest provisos. A genuine lawful disposition is not required for the preservation of the political system; simple legal allegiance suffices. Even so, not all citizens need to dispose of this limited virtue, because public powers take into account the fact that laws might be broken. The capacities of law enforcement reach their limits, however, when the majority generally fails to live in conformity with the law. Even if more people and more money are made available to uphold the rule of law, not only are resources diverted away from other useful purposes, the increase in resources to uphold the law also encounters limits and constrains the liberty of everyday life. Lack of selfrestraint on the part of citizens reduces their legal security and neither the courts nor the penal system are able to accomplish their jobs properly. (Legal security is, of course, a relative concept: whereas a woman walking in a park at night may be seen as close to suicidal in many American cities, it is an entirely normal behaviour in Japanese cities.) As a simply pragmatic legal virtue, an enlightened sense of law has nothing to do with solidarity, and even less with altruism. Rather, at its foundation is a simple consciousness of right and wrong: within the scope of a legal system that is on the whole just, citizens lead their lives in conformity with the law, free from the weighing of short-term or long-term interests. 7.3 TOLERANCE AND THE SENSE OF JUSTICE

1. In a democracy, a citizen is not merely a subject of the law, but also its authority. He is not only subjected to the law, but is also, directly or indirectly, a member of the authority that drafts and legislates the law, the legislature. This is to enable justice to become reality, in accordance with its moral purpose. The determinant factor in real politics, however, is power, understood, for example, as the ability to play off other interests against one another, or to control the media politically, intellectually or emotionally. Although power may serve the interest of a particular interpretation of justice, more often that not it represents only particular interests. This is opposed by a sense of justice. Laissez-faire liberalism suppresses the problem, because it, firstly, deems every interest to be organisable and, secondly, assumes that the competition of organised interests leads to a balance of power that cannot be assessed by an independent metric of justice. As a result, the state can, thirdly, limit itself to the role of umpire. In reality, certain groups that share interests and convictions are better at organising themselves into associations, becoming effective as lobbyists and presenting themselves in the media. These interests then become relatively too powerful. And thus a

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phenomenon is brought to life that, in contrast with the usual quantitative variant, may be called a qualitative majority and qualitative minority. A group is a qualitative majority if it is, relative to its membership, afforded excessively disproportionate consideration in the media, in politics or with regard to state subsidies, possibly even in all three areas at the same time. By contrast, a qualitative minority exists when this consideration falls far short of what the group’s numerical membership would warrant. Such imbalances are of particular concern when thematically similar groups are compared with each other, for instance if a comparison of religions or industry sectors reveals (very) significant differences within each domain, rather than between them or when compared to, say, sports clubs. According to the logic of collective action, there are not only contingent but also structural reasons for qualitative majorities and minorities (see Olson 1965). The interests of children and families with children, for instance, tend to get a raw deal in politics. Also, in situations of financial scarcity governments tend to cut back much less on present-day ‘consumptive’ expenditures such as legal security, social assistance, health care, pensions and debt repayments, and prefer to curtail ‘investive’ future-oriented expenditures instead, such as research, infrastructure and protection of the environment. There is therefore the risk of favouring the present and of violating justice with respect to future generations (Barry 1977, Leist 1991, also Höffe 42000, ch. 11). In addition, a dangerous fearful competitiveness spreads among groups and associations during this distributive struggle, the basic pattern of which we are familiar with since Hobbes (Leviathan, ch. 13): due to the danger of becoming the weaker party and falling prey to more powerful actors, competition compels individuals to strive for ever more power. In a democracy characterised by associations and the media, the ever-louder cry for more and more occurs not only for reasons of greed and envy. Because of an objectively justified fear of otherwise losing out in the distributive struggle, neither individuals nor associations can afford to practice unilateral renunciation. On the contrary, they have to make excessive demands. The link between the competition driven by fear and the varying abilities to lobby for resources produces distortions that blatantly contradict the basic principle of democracy that “each citizen has equal weight”. There are, of course, institutional countermeasures. Yet, because these alone are not sufficient, a personal amendment is also required: a sense of justice. It is primarily called for by associations that enjoy preferential treatment for structural reasons or because of special circumstances. To balance things out, they would have to restrain themselves. In so far as this demand remains a devout wish, a sense of justice is then required of the media, so that they stay clear of affording excessive consideration to certain interests while insufficient attention is given to others. Above all, however, a sense of justice is required from politicians. We object to, and even reject judges who deal with private interests, on the grounds of conflicting interests. Yet, although members of parliament are representatives of the people and are, thus, supposed to serve no interests in particular, they are not rejected when they promote certain group interests rather than public welfare. In fact, more often than not they obtain votes and approval for that very reason. On material

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issues they serve their clientele, their respective groups of voters, while for matters of personnel they hire their followers (‘deserving party comrades’). A glance at the seamy side of reality reveals increasingly that the assignment of attractive posts – on the boards of public broadcasting corporations, in the high courts, etc. – are not only negotiated between the parties, but are actually awarded to persons close to them. Of further concern is the fact that social reality is not even remotely reflected in the composition of parliament: lawyers, teachers and association officials are grossly overrepresented. Undoubtedly, members of parliament do follow procedural rules and, in happier times, may even engage in debates that resemble to some degree proper discourse. Yet, since they too, serve interests, a sense of justice is required from those that constitute said clientele in the end: the citizens. Justice is already of concern at the level of the individual. It consists of the ability and willingness to grant equal consideration to the different interests and phases of one’s own life. However, such ‘self-reflexive justice’ does not, as a union of individual prudence and cleverness, really constitute justice according to its usual understanding as a duty towards others. Yet, it may still be relevant for the community: citizens who are aware of the fact that their interests extend significantly beyond a particular association or a certain phase of their lives will oppose an excessive focus on one particular group. They allow ‘their group’ neither an exclusive right to insist on narrow interests, nor an overpowering status once groups and associations join forces. During elections and referenda, these citizens may even succeed in granting importance to more than just their current interests. However, such behaviour extends only as far as the citizens’ own long-term interests. A demanding, authentic sense of justice is required in at least three fields of activity. First, it is needed in creating a community that is generally just. To do so, privileges must be abolished and all citizens must be recognised as free and equal. In order to prevent violence, the privileged themselves have to make compromises. Directed towards just constitutional principles, the presumed sense of justice is a sense of constitutional justice. Where violent revolutions occur, one should not only admire the courage of the insurgents, but also deplore the lack of a sense of constitutional justice on the part of the rulers. Second, a sense of justice is required within a generally just community, for the continued development of its institutions, for the legislation that helps the constitutional principles become a concrete reality under changing circumstances, and above all, for the distribution of public expenditures. These respective dispositions may be called, pars pro toto, the legislative sense of justice. Even if no pure instance of justice can be expected in a lawful, but empirical self-organised society, particular interests should not get out of control (von Arnim 1977). To achieve this, a measure of legislative sense of justice is essential. It is required primarily for the members of parliament, including their organisational structure as parties and factions. However, since politicians have been known to be concerned more about power, power preservation and re-election, a sense of legislative justice is required from citizens and the media as well. Finally, a sense of applicable justice is called for, so that justice and the law can be applied to specific cases. For in the private and economic sphere a sense of law

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alone is not enough to stop people from exploiting all the available loopholes in a currently operative law. Such behaviour discriminates against citizens who cannot afford professional legal advice (although legal insurance would keep this inequality at bay). In these cases an applicable sense of justice prevents a situation from arising where some might gain an excessive advantage. If this occurs for reasons of reputation only, the sense of applicable justice would remain on a mere pragmatic level. By contrast, a genuine sense of applicable justice is willing to make compromises even when no advantage whatsoever is to be expected. The motivation is to be found once more in moral self-esteem. Since a society with a competitive nature cannot rely on moral self-esteem, it is in its collective interest to organise itself so that a simple and pragmatic sense of justice will suffice. While there are no clever prescriptions available for this type of selforganisation, two central tasks present themselves that require appropriate institutional reforms: institutions have to counteract their tendency towards anonymity, so as to retain a certain ‘personal touch’, and also create an ethos that not only provides a fertile soil for a pragmatic sense of justice, but also rewards it with the appropriate reputation. Further, the courts must have leeway to interpret the law, in the name of higher-order legal concepts such as fairness and common decency, in order to prevent the exploitation of legal loopholes (for Germany, see § 138 BGB; for Austria, see § 879 ABGB). The courts must especially nurture this sense of applicable justice and then must avoid engaging in politics. 2. Contemporary societies distinguish themselves by a set of sometimes conflicting options. Recognising them as equally significant requires a specific type of sense of justice: tolerance. Pluralism, the necessary condition of tolerance, has many parents: the division into various religions was followed by an interest in commerce and crafts, which in turn was succeeded by the philosophical conception of tolerance. The civil and industrial revolutions were also important, as were, at least in Germany, refuge, expulsion and, more recently again, mass-migration. These factors produced a diversity, which in itself is also varied. It is a plurality not only of religions (religious pluralism), but also of social groups and life styles (social pluralism) as well as underlying values (value pluralism). Above all, there are plenty of forces influencing politics (political pluralism). By contrast, the additional pluralism that may exist in scientific analysis and the philosophy of science is largely irrelevant here (William James 1908; Max Scheler 1960, 25; for the discussion on pluralism, see Frenkel 1979; Kelso 1978; Nuscheler and Steffani 1972; Oberreuter 1980; Schwan 1981). The link between pluralism and tolerance was not a product of European modernity, but was already known from Antiquity. Pre-Christian Rome, for instance, allowed its vanquished opponents to exercise and even extend their own cults. Also, prior to that, in Alexander’s Empire, a great many religions and denominations by and large coexisted peacefully. As an American, Rorty (1988, 90) can pride himself with the fact that one of the founding fathers of his political culture, Thomas Jefferson, deemed the issues of the Holy Trinity and trans-substantiation as politically irrelevant. However, the political neutralisation of religious controversies is

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neither unique nor tied to a post-conventional Enlightenment. In line with the biblical principle “Render to Caesar that which belongs to Caesar, and to God that which belongs to God” (Mt 22, 21), religion and politics can coexist without conflict. Only when religion makes political claims or when politics makes religious claims is conflict inevitable. The religious and political diversity prevailing today is not only an empirical characteristic, but has an obvious value too: pluralism offers a greater wealth of human opportunities than individuals and homogeneous groups may be able to. Pluralism need not descend into relativism in the process, by claiming that every way of life should have an equal opportunity of human self-realisation. However, since humans are recognised as responsible persons and mature citizens, pluralism rejects any institution that has the authority to compel people into a particular way of life. It grants to very different people the freedom to live in accordance with their own way of life and, because this liberty is granted to everyone, links it to the notion of justice. While it has no value in itself, and is no end in itself, pluralism justifies itself through the equal right to freedom it grants to everyone. Since its principles do not only protect human rights and freedom but also curtail them, pluralism is of only limited use and represents a one-sided, non-dialectic concept: it emphasises freedom without the normal limits, diversity without an overall framework, and competition without the various forms of cooperation. The societies of (Western) Europe have very slowly come to terms with pluralist coexistence, but they are still not immune to repercussions. In fact, they see themselves confronted today with an aggravation of the problem, which is widely debated under the heading of ‘multiculturalism’. As their reactions to these repercussions demonstrate, however, they certainly seem to have learned the basic lessons: functioning constitutional states interpret violations of the right to equal freedom as a legal transgression of equal severity. Pluralism as an elixir for freedom and justice is only part of the story. Currently, the pluralism that allows some to go to a Catholic church, others to a Protestant church, a third to a synagogue, and a fourth to a mosque no longer requires extraordinary abilities to get along together. Qualified democracy provides its general framework, and the civic virtues that fill this framework with life represent a simple of form of tolerance: simply allowing and accepting other ways of life. It is a passive tolerance. Its historical beginning is owed to pragmatic reasons of both a collective and personal nature. The toll of lives during the religious civil wars was huge; it was beneficial to the prosperity of destitute states to accept Huguenots because they revitalised commerce and craft. Further, countries such as the USA have the deliberate and expressed goal of offering refuge to minorities that are pursued on religious grounds; and since there are differences amongst people with respect to their needs, interests and talents, and because nobody is immune from mistakes or prejudices, passive tolerance is a precondition of being a civilised companion for others. “Tolerance”, so Goethe writes, “should be only a passing disposition: it has to lead to acknowledgement. Tolerating means insulting” (Maxims and Reflexions; for Goethe on tolerance see Letter from the Pastor of *** to the new Pastor of *** 1773).

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Goethe demands quite rightly more than mere toleration. However, that ‘more’ may still be called ‘tolerance’, but then characterises the concept’s more demanding, active and creative variant. Active tolerance does not allow ‘the other’ to exist, which is already required by law. Rather, according to one’s own free will, active tolerance affirms the other’s right to life, freedom and will to self-development. Yet, this tolerance assumes what in some places is lost: a personal profile of convictions and way of life. Active tolerance is no fig leaf behind which one hides one’s moral indifference and intellectual weakness. It is not a tolerance ‘without a standpoint’, but ‘authentic tolerance’ (for the discussion on tolerance see Bobbio 1996; Becker 1996; Heitmeyer 1996; Fetscher 1990; Lutz 1977; Püttner 1977; Rahner 1977; Schultz 1974; Walzer 1997; Thierrey 1997; Wolf, Marcuse and Moore 1969; also Höffe 1988, 113–124). An active and authentic tolerance is based on an awareness of one’s own value, of self-esteem or self-respect. It relies on one’s own strength and that of the group, while of course renouncing any inclination towards superiority. Grounded in the dignity and freedom afforded to every individual, it links one’s ability to differ with an acknowledgement of the other’s equal status. The tolerant person disposes of internal freedom and no longer seeks a life that is focused on violent conversion or the overcoming of an opponent but rather a form of community based on equality and comprehension. For that, more than intellectual curiosity about the other is required; a capacity to empathise with alien peculiarities, convictions and life styles is needed. As tolerance is no end in itself, it ceases as soon as its justificatory basis – the freedom and dignity of the person as expressed through human rights – is violated. There are two reasons why tolerance might not be afforded: there are still groups that combine the belief in an ultimate truth with aggressive attempts to convert and a willingness to use force. The fact that the political spectrum is characterised not only by a centre but also by a left and a right, and that the religious spectrum consists not only of liberal and orthodox proponents, poses no serious difficulties; but that a group, of whatever conviction, grants to itself the privilege to use physical force certainly does. Fortunately, these religious or political ‘fundamentalists’ have become virtually extinct in European Christianity, although they persist in a few other religions as well as in the political sphere. These groups are more accurately described as ‘willing to use force’ rather than ‘fundamentalist’, and their renunciation of force cannot only be reasonably expected, but can also be demanded. More often than not, liberal societies are tolerant even of non-liberal groups; what they do not tolerate, however, is violence. The sense of justice referred to here takes on the enemies of qualified democracy and, analogous to the enlightened sense of law, results in a tolerance conditional upon the absence of a desire to convert with force. Let us refer to it as ‘enlightened tolerance’. Other groups are intolerant not because they have forceful missionary practices, but because they lack strong self-esteem. At this juncture one should not engage in moral indignation, but oppose the causes of the lack of self-esteem. What may happen then is what happens with most of us today: tolerance grows ‘on its own’.

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In his second seminal work, Political Liberalism (1993, lect. VI, § 2), Rawls draws our attention to what he calls the ‘duty of civility’, which is an even more fundamental obligation from the point of view of the theory of the state: the task of arriving at common policy and legislation despite totally different world views. In so far as it also depends on the right to live in accordance with another world view, Rawls’ duty contains an element of civic tolerance. It can be justified with the following reflection: In recognition of every citizen’s right to develop his or her own convictions, with knowledge of the danger that in so doing one may be taken in by prejudices or mistakes, and knowing that one must eventually come to a communal and binding decision in spite of competing initial convictions, every citizen should be capable and willing to make those convictions open to debate and compromise. Of course, not all convictions are of importance in this realm, only those that are relevant to the common legal system. Where this willingness hardens into a general disposition, a civic virtue is established, namely civic tolerance. If this virtue is developed merely on strategic or pragmatic grounds, for example out of the self-interest of not wanting to be seen as an opponent of democracy, it leaves democracy in limbo precisely when it is most in need of the citizen’s tolerance: in times of growing disillusionment with democracy. Hence, a more than merely pragmatic basis is required. The corresponding civic tolerance forms one of the conditions that allow the existence of pluralist democracy. For a more accurate conceptualisation, three distinctions need to be made: At the bottom level, the legalistic capacity consists of the ability and willingness to comply with the currently operative and valid laws of the pluralist democracy. It corresponds to the first civic virtue, the sense of law. The second level, deliberative competence, is able and willing to distance itself from inner convictions and to engage in debates at that distance. The third and highest level, the dispositive capacity, is even willing to compromise on the corresponding convictions and, if required, to change them on account of well-considered arguments. Of course, the ideal citizen of a pluralist democracy is found on the third level and, consequently, practices full civic tolerance. However, this third level must never be called upon. Unlike an authoritarian state, a qualified democracy does not require its citizens to compromise on the innermost core of their convictions – after all, these represent the content of their consciences. Qualified democracy does not even demand the second level of civic tolerance: for everyone to be able to discuss openly his or her most inner convictions. At most, it is directed at a weak deliberative capacity: for everyone to be willing to engage in a debate with oneself and with good friends. However, even this may not be forced or required, yet it is certainly hoped for. What may be required, however, is to not present in public any convictions that are in breach of the basis of a qualified democracy, nor to call for force. One not only may, but must resist such radical opponents of qualified democracy. Pluralist societies struggle with a difficulty that is even more prevalent: that some groups seek influence by attracting media attention, seeking codetermination in politics, and obtaining subsidies from the state. Since all three dimensions are

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characterised by scarcity, each group fights for as large a share as possible, which gives rise to the problem of qualitative majorities and minorities mentioned earlier, and which then asks for a corrective sense of justice. Pluralist societies require not only tolerance and an ability to compromise, but – as with the fight against economic oligopolies and cartels – the ability to constrain in the name of justice the power and influence of some groups and to strengthen that of others. 7.4 THE SENSE OF STATE CITIZENSHIP

The civic virtues mentioned so far are of concern only to qualified democracy as a general type, not to an individual example of it. However, there is no democracy other than in a concrete substantiation. Its viability depends on another civic virtue, a civic sense, which induces individuals to get involved with the well-being and the continued existence of their own community, their own democracy. The genuinely political aspect of this virtue is best described as a sense of state citizenship, its societal and society-strengthening aspect as sense of community. Both aspects together amount more or less to the French understanding of citoyenneté: the affiliation to a community that includes the willingness to accept responsibility. According to a widespread prejudice, a civic sense that is directed at one’s own community contradicts universalistic morality. In reality, the obligation is applicable to everyone, universally, without constraints or reservations, but does not exclude the setting of priorities. Various universalistic criteria can be applied: the first criterion assumes that no single individual can rectify all of the world’s misery. The duty is therefore a structurally imperfect one: everyone must help to put misery right, but no one must rectify the misery of everyone. However, we are in the habit of having certain responsibilities directed at important recipients, such as our husbands or wives, children, and parents, as well as those who are close to us in our professional lives. Those who bring children into the world and accept no greater responsibility for them than for the other children of the world, may not appeal to the universal duty of assistance to justify their (in)action. According to a second consideration, the recipients of the duty of assistance and the providers of that assistance form a community of solidarity. The obligations towards them take priority because the provider does not only give, but at other times also receives such assistance. Those who do not help when it is their turn to do so are free riders in a community of solidarity. Of course, a third consideration also points to the magnitude of misery, which requires a trade-off between the lesser misery of those close to us and the greater misery of those who are far from us. Fourth, other moral duties are to be respected also: in the name of the willingness to assist, which is a meritorious supplement, no one may violate (owed) legal duties, and especially not kill anyone. A similar assessment can be made with respect to a citizens’ sense of state citizenship. As with the greater responsibility one has for one’s family compared to the family of a stranger, one’s society is more important than a foreign one, because a society also constitutes a community that gives and takes; it is a community of

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solidarity (see ch. 6.3). No foreign laws, of course, may be violated for the sake of one’s community. However, a disposition that is sufficient for this condition can indeed be made universal. Languages that still associate a neutral meaning with the term ‘patriotism’, as a commitment to one’s own community, may call it a ‘patriotism that can be universalised’. According to different perspectives on liberal democracy, this patriotism occurs in different forms: The first form is obvious. To get a democracy off the ground at all, the citizenry, as sovereign, must dispose of a sense of citizenship in a procedural and minimal sense and must be willing to engage in elementary participation, which in a representative democracy amounts to taking part in elections and referenda. The second form takes seriously both the idea of subsidiarity and the difference between the modern citizen and his predecessors in Antiquity. According to the norms of the noble society in Ancient Greece, the Greek citizen was first and foremost a landowner, a warrior and, in the case of democracy, involved in the political issues of the day. He was disinterested in, even hostile to, the sphere of labour. He left the working of the land to slaves, whereas crafts and commerce were conducted by non-citizens, such as resident foreigners and, again, slaves. This kind of extensive personal separation of state and society contrasts with the institutional separation and personal unity prevalent in modernity. Unlike the ancient citizen, the modern counterpart must usually be simultaneously a working subject, or an economic citizen (bourgeois in a wider sense so as to include employees and workers), and a citizen of the state (citoyen). However, this unity is undermined by excessive bureaucracy and administration and by the professionalisation of politics – which is a salaried occupation one has to embark on ever earlier in professional life – as well as the growing influence of political parties. A participatory sense of state citizenship opposes this type of development. A person’s sense of state citizenship is not necessarily limited to an inward-looking perspective. It may, third, be outward looking also and contribute to one’s esteem for one’s own community, a fact that can be illustrated through a community’s selfimage and the images it has of other communities. A nationalistic sense of state citizenship applies a strategy of dual partiality, which combines an inappropriate level of self-praise, a super-elevation of one’s own community, with the devaluation of, or even aggression against, other communities. A notion of moral superiority over one’s neighbour develops out of an accentuation of the other’s weaknesses, and can lead to viewing this neighbour as an enemy. With regard to history there is also a tendency to emphasise one’s own proud achievements in the past and to carefully conceal the less impressive aspects, while the achievements of others are depicted in the opposite way. Worse still, past wrongs may actually be interpreted as positive achievements. An enlightened sense of state citizenship, by contrast, renounces any sense of superiority when developing a degree of esteem for one’s own community. It thus ensures that the same metric is applied to both self-perception and to perception by others. It does not tolerate that the wrongs committed by one’s own community are ignored while those of others are emphasised or that, vice versa, one’s own achievements are highlighted while those of others are ignored.

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Civic virtue is undoubtedly not indispensable. A democracy with only a procedural-democratic rather than participatory sense of state citizenship can survive without problems. In such a case, however, a relatively small group of professional politicians – were its membership extensive, the group would have to be called a ‘caste’ – removes itself from the masses of voting citizens. A citizenry that demands for itself more institutional opportunities for participation opposes this oligarchic democracy. Participation in ecclesiastical and political academies, voluntary posts in the social sector, jury duty, or a presence in the various media (literature, print, radio and television) can also all attain the character of political participation. The various levels of political engagement – local, state and federal – and many other areas of democratic self-organisation must not be forgotten either. The administration of universities, for instance, provides an extensive field in which to apply one’s participatory civic sense. A participatory sense of state citizenship demands what it cannot enforce: for citizens to invest time and set appropriate priorities in their ways of life. Perfectly honourable reasons may exist that induce the individual to opt for other alternatives, such as great social, scientific or artistic commitment. On the other hand, there can be no participatory democracy unless a considerable number of citizens assume a participatory sense of state citizenship. As this sense is not developed by all citizens equally, but tends to be limited to relatively few individuals, it may still oppose a professionalisation and oligarchisation, but can only tone down, not prevent the ‘aristocratic’ element in democracy. There is a well-known remedy against the danger of an aristocratisation of participatory democracy: direct participation of the people in the decision-making processes of the state, such as the right to conduct plebiscites and referenda, which are based on both a right to initiate such proceedings and a right to the proceedings themselves. There is no need to argue with Marsilius of Padua, because no one will deliberately cause damage to oneself; the people will legislate only those laws that are of benefit to all (Marsilius of Padua, Defensor Pacis I.12.5; similarly: Rousseau, The Contract Social IV 1). Similarly unconvincing is the popular counter-argument that a referendum on specific topics would result in the introduction of controversial proposals such as capital punishment (Troitzsch 1979, 37–40; Luthardt 1994). However, direct democracy does not necessarily have to replace its representative counterpart. The latter may even have some legitimatory precedence. Yet, as long as citizens’ participatory equality is limited to elections, and their participation on substantive matters is dependent on access to the opinion-forming sections of society – in particular to political parties and associations – an aristocratic element edges its way into democracy; thus, institutional countermeasures are required. The fact that these measures would limit the ever-growing power of political parties is bound to complicate the introduction of even the tiniest elements of direct democracy. After all, who would voluntarily undermine his own power and status? Yet, this dominant power of political parties is simply another argument for direct participation. Furthermore, experience shows that plebiscites help to solve enormous social conflicts, such as the right to divorce (Ireland), the construction of nuclear power

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stations (Austria) or the processes of integration into large-scale regional units (Denmark, Great Britain and Spain with regard to entry into the European Union). Finally, plebiscites tend to foster a better informed and politically more involved population. Of secondary importance is the question of how a community should best embark on the journey towards direct democracy: through the right to demand a plebiscite (Initiativerecht) or the right to have a referendum about decisions that parliament has already decided on (Referendumsrecht), as well as the question of whether the matters subjected to popular vote should include those related to the constitution, to normal legislation and to regulations. The general direction is clear enough though: ‘to risk more democracy’, by introducing more decision-making procedures such as plebiscites (on the – often passionate – controversy regarding direct democracy, see Pateman 1970; Fishkin 1991; Klein and Schmalz-Bruns 1997; Cronin 1989). 7.5 THE SENSE OF COMMUNITY

A lively democracy becomes emaciated not only because of the increased significance of professional party politics. Where the state penetrates an ever-growing number of societal spheres and where its presence is amplified through growing bureaucratisation, the direct responsibility of citizens and their freedom to manoeuvre is severely restricted. The state produces ever-increasing numbers of specialists and incurs ever-higher costs in order to carry out its tasks. A civic sense that opposes this state-oriented transformation of society does not mean to abolish bureaucratisation per se, but to constrain its expansion. As it takes over responsibilities of a benevolent nature, the resulting phenomenon may be called a benevolent civic sense or a sense of community. A sense of community induces individuals to get involved, not because of a legal duty to do so, but voluntarily and with (practically) no financial reimbursement. They do so by taking care of asylum-seekers, foreign students or the elderly, or by taking part in self-help groups, volunteering as firemen or helping with clubs engaged in other aspects of society. Critics often assert that liberal democracy reduces human beings to their individual interests, and therefore turns them into atomised individuals (e.g., Taylor 1989). Real life, with its countless associations, clubs, and civic initiatives, as well as the voluntary generosity or even magnanimity upon which these activities are based, indicates that the opposite is true (on magnanimity, megaloprepeia, as a superlative of generosity, eleutheriotês, see Aristotle’s Nicomachean Ethics IV 4–6). The fact that a sense of self-responsibility induces the citizenry to be devoted to benevolent purposes is more significant from a state-theoretical and state-practical point of view than the low level of public attention to this benevolence would suggest – the obvious commemoration speeches aside. It counters the institutional separation of state and society, and it rebuts the popular socio-historical thesis surrounding the ostensible increase in individualisation. In real life both occur at the same time and, possibly, in the same person: those with a strong individual profile see societal commitment as an integral part of their personal character.

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A sense of community opposes the increase in bureaucratisation and specialisation of the community, constrains the financial burden on its citizens, and is therefore relevant to the theory of subsidiarity. A further advantageous side effect is the fact that, unlike state-owned or local offices, assistance is provided in person. This facilitates the development of non-institutional relationships and promotes friendship, both of which, so Aristotle claimed, are even more important than the virtue of justice (Nicomachean Ethics VIII 1, 1155a22–30). This virtue is not to be understood merely as a romantic congeniality of spirit, but as a wealth of other personal relations, which include, but are not restricted to, comradeship, hospitality, clubs, as well as relations with family and neighbours. All these relationships succeed in matters that institutions will never achieve: a mutual interlinking and networking of individuals, and a concern for cohesion and unity rather than discord and force. Also, once more, the individual contributes to public welfare, to the ‘common good’. We must not forget that, when provisions are demanded of it, the state is actually not able to make them in a genuine way. Rather, it requires its citizens to make advance provisions first, especially to pay taxes to finance the Welfare state. Taxes serve common projects, and are therefore a real-life expression of a sense of community. However, paying taxes does not constitute a virtue, because it is a coerced and bureaucratically administered activity. The acknowledgement of welfarist legislation in an election is the only instance of voluntary behaviour that taxation may give rise to. However, even this does not necessarily constitute a free sense of community, for it may simply be a strong preference for security that induces individuals to commit to a comprehensive Welfare state and to submit to an imposed civic sense. At any rate, everyone hopes to become a net beneficiary of the system. Once the prescribed sense of community expands too widely, it is bound to suppress an alternative variant: the free sense of community, or generosity as a personal disposition. The Greek language is quite illuminating here, as it calls generosity eleutheriotês, understood as a disposition that is characteristic of the free person: the individual who does not depend on substantive goods alone, remains independent from them and is therefore happy to share them with others when appropriate. Generosity is, similar to active tolerance, based on internal freedom, yet not in terms of the way of life, but in terms of external goods. We should not forget that the freely-born Teutons fulfilled their commitments to the community solely by means of a voluntary service of allegiance (Tacitus, Germania, chs. 11–15). External security was afforded by their own services, if necessary maintained with their own weapons and at the risk of their own lives. Already the Bible refers to a tenth of the earnings that had to be given to the rulers (Gen 28, 22; Num 18, 21; 1 Sam 8, 15), and even in the 1950s, when Germany was still busy resurrecting its destroyed cities and integrating millions of refugees and former prisoners of war, the tax rate was as high as 30%. Today, with citizens being well-off for quite some time now, the tax rate is one and a half times that; ignoring the specific tax that was imposed to help finance the reunification of Germany, the rate is currently set at 45% (in total about 50%). Of course, past forms of solidarity provided by the family or the group should not be renewed exclusively.

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Good reasons can be put forward to justify the existence of the Welfare state (see chs. 3.4, 3.6 and 4.3.3). Today’s modern society therefore requires both, that is to say the prescribed as well as the free civic sense. Only the magnitude of the two variants is in contention, and at times it is right to suspect that the balance has shifted at the expense of the free sense of community. What is more, a developed Welfare state is another way to refute the suggestion that there is a morally indifferent liberal citizen who is, allegedly, interested in nothing but his personal economic well-being: through debates, votes and elections, citizens voluntarily agree to a high measure of a prescribed sense of community. There is a second, cultural sense of community, directed at common (but not necessarily exclusive) elements such as language, literature, music, the arts and architecture. If the responsibility for future generations is taken seriously, caution is required when reference is made to Germany as a ‘nation of culture’ or as a ‘nation of poets and thinkers’. The subject matter itself, however, is taken seriously indeed, as the language and culture of one’s own community is actively promoted. Once they are linked to a sense of justice, a language and culture are preserved for future generations that are at least as rich as that which had been initially inherited. If the President of a North American university is to be believed, a cultural and future-oriented civic sense was nurtured by the Humboldtian reform of the universities because it produced precisely the type of university that the modern industrial age required. Architecture and town planning can be assessed in a similar way. Even if citizens on their own are incapable of pursuing politics in the fields of culture, language, town planning or higher education, they nevertheless have specific needs, wishes and expectations. A corresponding commitment can help fulfil and realise them in real life. Both the social as well as the cultural sense of community counter two potential threats: the degeneration of the Welfare state into a state of comprehensive care, and the retreat of individuals to selfishness and egoism. A spirit of belonging encourages and inspires civic sense. Those who are proud of their schools and universities, of their towns and countries, are happy to get involved in a generous way – and are proud of their generosity. Conversely, the underlying motivations have to be nurtured if this success is desired. If the spirit of belonging is neglected, it should not come as much of a surprise that a sense of community is missing. Patrons and foundations committed to public welfare in particular nurture a high degree of cultural or social sense of community (Seifart 1987; for a legal assessment of Germany, see Rawert 1990). No matter whether they promote the arts and culture, science and research, or social activities like assistance for the young or the elderly (matters are different for family foundations): they tend to do it extensively. Where statism rather than subsidiarity prevails, patronage appears to be nothing more than a second-best solution, a surrogate and gap filler for state activity. As politicians tend to stonewall for power-political reasons, rather than engaging in a constructive manner, or because the room to manoeuvre in the state budget has narrowed, citizens will assume the responsibilities of the state. Since the nineteenth century, foundations have been created according to what is called the theory of fiction

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(Fiktionstheorie). Defended by individuals as influential as the legal scholar Friedrich Carl von Savigny (System des heutigen römischen Rechts, 1840, II 244, 262–278), the foundation was conceived not as a group of individuals, but as a legal entity in its own right. Yet, since its establishment “reaches beyond the limits usually applied to private autonomy” (Mugdan 1899, I 658), its control through the state has been seen to be indispensable by the German legislature, which has left almost all other legal entities untouched. Foundations are subject to a system of concession, so that they have to be authorised by the state before coming into existence, are therefore dependent on the state’s judgement, and their approval is often subject to negotiation and horse-trading. A law that regulates foundations in such a comprehensive way cannot deny its origin in the authoritarian state, which claims to have a monopoly on public welfare. Worse still, as Wieacker (1967, 463) asserts, the German law on foundations has “characteristics of a police-state”. A qualified democracy proceeds in a different way, and patrons in particular substitute the hierarchical approach for subsidiarity: free citizens intervene not because the state puts too much financial pressure on itself and ends up broke despite a 50% tax rate. Rather, they deny the state its claim to a monopoly on public welfare and declare themselves jointly responsible for the conceptualisation as well as the realisation of the state. The state should support this process as a legislature, however, because this type of civic virtue too, requires a binding legal framework. The legislature can encourage the creation of foundations through tax incentives (so that, for instance, donating money through a foundation is more economical than bequeathing it to one’s heirs); through laws that allow foundations to build up generous reserves so that their endowments remain active and grow to be ‘monuments to the civic sense’ long after the initial patron has died (it is not accidental that authoritarian states are hostile to foundations); by abandoning the requirement that state approval must first be obtained, which is a residue of the authoritarian state, and by replacing it with the simpler requirement that foundations be listed with an endowment register that, similar to all other legal entities (clubs, corporations, etc.) merely states their purpose and the composition of their governing bodies (and is therefore a normative, rather than a concession-based system). After all, benefactors and patrons contribute to liberal-democratic culture, as their civic sense helps society gain more freedom vis-à-vis the state and allows the state to concentrate on its own responsibilities. 7.6 PRUDENCE, COMPOSURE, WISDOM

Many of modern societies’ difficulties are not modern in principle; rather it is their concrete guise that is modern. For instance Pleonexia, the urge to want ever more from life, continues to be characteristic of human beings. Never really content, neither individuals nor societies are ever rich enough to make all their wishes come true. The human race has even succumbed to overburdening the environment, and has been doing so for quite some time now. It is the extent and the depth of the

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ecological harm that is modern. Certainly, the levels of lead in Greenland’s icebergs and widespread man-made desertification prove that nature’s capacity for regeneration was stretched beyond its limits long before modernity. Yet, it is only since the required technology has become available, since the human population has exploded, and economic forces have been allowed to operate without limits, that the exploitation of nature has proceeded on so systematic and global a scale. Insatiability is kept at bay through the disposition of prudence (sôphrosynê, temperantia). It is required in all spheres of life because pleonexia endangers all of them. Natural ecological prudence begins where it hurts everyone: with our daily patterns of consumption. Whether so-called consumerism helps to achieve the good life or whether, as Aristotle asserts regarding the life of luxury, individuals become enslaved to their respective wants (Nicomachean Ethics I 3, 1095b19), is a question that may be decided personally. Yet, as soon as consumerism is practiced collectively and results in collective harm, society must react. Democracies react very slowly and too feebly, which is why some have a high regard for ecological dictatorship as the preferred political system (Mohrs 1995, 384). Since some of the environmental problems we face can only be solved globally, so some argue, one would even have to establish a world dictatorship. Yet how is it possible to ensure that any measures that may be introduced are of benefit to the natural environment, rather than serving the interests and vanity of ecological dictators and cementing their prejudices? After all, as history teaches us, authoritarian states, including those of socialist provenance, cause even greater environmental damage than democracies. Secondly, why should an ecological dictatorship be competent and responsible for many other problems, such as education, culture, health, the economy, the labour market, social policy, foreign affairs and defence policy? Thirdly, why should the ecological improvement that is so urgently required allow the suppression of freedom and political participation, that is a dictatorship? Another threat to modern societies, already mentioned, is the fact that communities of solidarity – partly for reasons of anonymity, partly because of the need for comprehensive security in even the wealthiest societies – tend to burden themselves with excessive demands. Prudence is also undermined if the community subsidises industry sectors that are no longer viable, and consequently deprives domains such as education and town planning of urgently needed money. The extensive but not boundless power of human beings creates another set of problems. The Greeks call it hubris, meaning an outrageous arrogance. This phenomenon too, has been threatening humanity for quite some time. However, in modern times such arrogance, now manifesting itself as a belief in omnipotence, has become a widespread and common disposition. Medicine, for instance, is one field where illusionary expectations are nurtured, by both patients and researchers. Technology, the environment, education and welfare are other such areas. An outright rejection of progress in medicine, engineering or social reform will not remedy unrealistic expectations. However, scepticism against hyperactivity is indeed required, as is the willingness to recognise the limits of man-made creations and the merits of such a banal ability as patience. An overall disposition is required that

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succumbs neither to the feeling of omnipotence nor to that of powerlessness in the face of superior might. It therefore safeguards against both illusory hope and principled fear (Angst). It is a disposition of composure. There is a third set of issues: if foreign workers are invited into a country one must accept the consequence that other people and families will follow. Inversely, those who are eager to work in another country must be ready to adapt to its culture, law, language and social life (no cultural assimilation is required in the process; the acceptance of the given culture by immigrants must not necessarily be seen as a submission to that culture, as it may also represent a creative change). Even so, this dual responsibility is often neglected. Similar situations are witnessed in technology, in the transformations encountered in professional life, or in European or global politics: the innovations that modernity produces are virtually always accompanied by darker shadows, that is, problematic consequences, which are preferably suppressed even when they have been foreseen. The legislature determines the framework for solutions to these problems. The speed and magnitude of innovation requires an extensive problem-solving capacity. Although such capacity is in the common interest, it does not arise from competition among particular interests alone. It must therefore enter the disposition of citizens, the civic virtues, in the form of abilities such as sensitivity, curiosity and the willingness to learn, as well as the courage to resist both lobbying and mainstream thought. Above all, it requires political wisdom: the ability to assess pending policy decisions according to general standards (rightly so: Barber 1989). This requires a higher-order wisdom, an intellectual civic sense: the ability to balance competing requirements (e.g., job creation on the one hand vis-à-vis environmental protection and the Welfare state on the other). A culture of timeliness is also needed: if the heraldic bird of wisdom, the Athenian owl, spreads its wings only with twilight falling, why not with the twilight the evening before? (on the issues raised in section 7.6, see in more detail: Höffe 1995, parts II and III). Starting with its citizens, modern society must re-learn dispositions that it thought were no longer needed: namely the virtues of prudence, composure and wisdom. Let us draw a preliminary conclusion: 1. A basic sketch of civic virtues results in a rather long list. The qualities of the people required to form a qualified democracy are astoundingly varied and complicated. Enlightened individuals alone, who are also loyal and mature citizens, are not enough. Even Rawls’ virtues of fair cooperation – politeness, tolerance, reason and a sense of fairness – are not enough. 2. None of the personal conditions are related to the great philosophical questions. Civic virtues do not compete with the responsibilities that religion or Rawls (1993, I § 2) are committed to, nor do they depend on demanding conceptions of the good life. They are, therefore, not in need of legitimation, to which a qualified democracy is not entitled anyway. This constitutes an initial unburdening of the state: potential difficulties do not, as critics of modernity claim, arise from modern secularisation. Civic virtues cannot exist without at least some conception of the good life, of course, however, they are content with a minimum, that is the good life as a democratic

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self-organisation of coexistence based on justice and a sense of community (rudiments can be found in Durkheim 1978; also Macedo 1990). 3. Civic virtues are not ideals that only exceptional individuals, ‘heroes and saints’, are able to fulfil, an observation that brings about another unburdening of the state. These civic virtues escape the two threats that traditional liberalism has identified as reasons to reject virtues in general: they do not direct excessive demands at common legal subjects nor require them to become fundamentally new people, nor do they invalidate their interests, nor their reflections on them. Here too, however, the burden is not completely relieved, and so orthodox liberalism is in need of a correction: democracy requires a certain personal ideal, but again only a minimum ideal that corresponds to the personal minimum required for a good life. This is the integrity of the citizen of a qualified democracy; let us call it ‘democratic civic integrity’. A qualified democracy makes greater claims than a liberal democracy, which is why ‘liberal integrity’, in particular tolerance towards other ideals of life, is not sufficient. Part of democratic civic integrity is the unity of the private individual and the state citizen, as well as the private and publicly obliging conceptions of the good life, both of which are admittedly not comprehensive, but still important. The structural deficit of a solely institutional theory of democracy can only be overcome by the (partial) unity of private welfare and state welfare. Civic virtues resist both the danger of an overpowering state and the concurrent loss of power of the prestate society. Better still: where civic virtues blossom, institutions can constrain the authority with which they are entitled to compel their subjects and democracy becomes, in an emphatic sense, a free self-organisation of citizens. 4. Civic virtues are partly elements, partly conditions of democratic integrity. This observation helps to answer the question as to which dispositions and attitudes should form its constituent parts: (a) it concerns responsibilities that cannot be accomplished by democratic institutions alone; it relates to civic provisions that partly complement, partly strengthen, but sometimes also correct the work done by institutions. (b) In order to accomplish these respective tasks, citizens must contribute, not necessarily all citizens, but at least a large proportion of them. What may be enough for the arts and science, the exceptional achievement of a few, is not sufficient here. (c) Furthermore, the provisions must be produced not occasionally, but regularly and quite reliably; hence, the willingness to do so must become second nature. Once it becomes a person’s character trait, it assumes the rank of a virtue. (d) The more elementary a virtue is, the more citizens need to possess it. A state whose citizens too often run afoul of the law will collapse, which is why the first civic virtue, the sense of law, is essentially the most important one from both a quantitative and qualitative point of view. Unlike the sense of state citizenship and the sense of community, it must exist in a prevailing number of citizens. (e) Civic virtues are therefore part of democratic integrity, because they produce a correspondence between expectation and personal contribution. Knowing that self-organisation of society is achieved only if the ‘self’, the citizenry organises it, citizens align the demands they make on their community with what they themselves contribute to it. 5. Life experience tells us what the reiterated prisoner’s dilemma confirms (see ch. 4.1): cooperation is advantageous. Since civic virtues are conducive to cooperation,

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a certain degree of cooperation is beneficial to our self-interest. A ‘reverse induction’, however, raises some doubts: since in the final ‘game’ cooperation is no longer beneficial, one will prefer to behave selfishly; thus, those who are anxious about their own welfare will not even try to cooperate. Since one must also expect this selfishness from one’s opponent, one is better-off behaving selfishly in the next-to-last game. This, in turn, induces the opponent to be selfish in the game before that, and so on. On the other hand, those who assume early on that their opponent will be selfish, give up opportunities to derive benefit from cooperation. As a way out, an individual may begin with minimum stakes, which, if affirmed by the other, may then gradually grow into an intensive cooperation, a growing cycle of collaboration and trust. Yet, the situation is not secure. Societies whose members are punctilious will have problems; timidity and a strong sense of security are also obstructive. The solution for society consists in permanently institutionalising (Verstetigung) its self-organisation, so that appropriate institutions might offer a measure of reliability – a third unburdening of the state. As a result, individuals incur no fundamental risks when they engage in cooperation. 6. The primary civic virtues – the sense of law, the sense of justice as well as tolerance – bear only upon the form of a community, namely qualified democracy, so that these virtues appear universally valid. A participatory civic sense and a cultural and social sense of community, however, bear upon one’s own, as opposed to a foreign democracy. Nevertheless, this particularistic component is called for in any democracy, which is why it can be taken as a particular universal. And since a qualified democracy binds this component to universalistic principles, it thereby strengthens its universalistic character. 7. In line with their normative status, civic virtues assume a position between the second, purely prudential, and the third, purely authentic, ranks of moral virtue (see ch. 7.1). Civic virtues are more than merely pragmatic virtues that serve the individual’s own long-term welfare; at the same time, however, they are less than moral virtues in the full sense of (intrinsic or perfectionist) dispositions that are valuable on their own. At times, a merely pragmatic virtue may be enough. Often, however, it requires slightly more than that. If authentic morality were always required, either in the ancient Aristotelian or in the modern Kantian sense, the survival prospects of the civic virtues would look rather grim. However, the reason for this would not be the ostensible hostility of modern communities to morality, but the generally very high demands of authentic morality: Aristotle’s challenging concept of the good life, and Kant’s demand that, when faced with a conflict between duty and inclination, it is always the former that should be chosen. Both may be important for an individual’s life; yet in the case of the community or society, it is powerlessness that is more likely to reign. It would be fanciful and totalitarian to attempt to build upon these conditions a community with the authority to compel. In a democracy, too, a heroic superlative may exist whereby citizens, if confronted with the existential decision “duty or inclination”, choose duty. The civic virtues themselves – the fourth unburdening of the state – do not require the heroism of a strict Kantian morality. They adopt the Aristotelian differentiation between the good person and the good citizen and are content with the virtue of the good citizen. Those who nurture them, may not usually

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expect them to benefit their careers, but may still obtain something that serves their interests: an enhanced reputation, more often than not a little more influence, and, consequently, more power. 8. No community and no democracy can be certain of maintaining its civic virtues at all times. Where private welfare is so strongly put into question that the competition between civic virtue and private welfare becomes an either/or of “duty or inclination”, one may hope that civic virtues will help, but one cannot count on them. Radical liberalism’s diagnosis is undoubtedly wrong: the basis of qualified democracy, liberal democracy, does not deny the possibility of civic virtues (e.g. Taylor 1992/93), nor is the individual an atomised self. Less dramatically, however, the more precise diagnosis exposes a fragility: whether admitted or not, civic virtues are usually nurtured conditionally; they may therefore collapse if excessive demands are placed on them, but are neither absent nor condemned to a miserable existence. Rather, they exist under a proviso that may disappear entirely when an individual is influenced by especially strong social affiliations. Even if the development of affiliations and successful traditions are examined from a sceptical point of view, it cannot be denied that they provide a more fertile soil for the development of the personal requirements for democratic institutions.

PART TWO

A SUBSIDIARY AND FEDERAL WORLD REPUBLIC

The human race tends to solve conflicts not according to personal opinion or force, but according to rules that abide by principles of justice. These principles, in turn, are implemented by impartial third parties, the ‘public powers’; yet, they are also brought to life by the principles themselves. Reflections on the ethics of the state and the law show that this approach is right. Those who recognise the precept of the state and the rule of law help bring elementary justice to life. Also, those who also commit themselves to human rights and democracy help advance justice to (relative) perfection during the process of normative modernisation. While the legal form and even the principles of justice are largely undisputed, controversy exists about their reach: should that which is already present in one’s immediate surrounding, the family, and in the mid-range, the communities, also apply to the whole of the human race, or even to coexisting non-human beings with a legal capacity? Obviously, the viewpoint of justice allows nothing but a positive answer. For individual force to be broken everywhere, even between states, the law, justice and democracy must no longer apply in a territorially restricted way. A ‘realistic’ glance at the world could dismiss as ‘idealistic’ the reply that justice has a universal claim. However, a ‘realistic’ argument too, can be put forward in favour of a global legal order: the global need for action (see ch. 1.1), linked to the state’s erosion from outside (see ch. 6.2). ‘Idealistic’ justice can coincide with ‘realistic’ interests as follows: if the hitherto dominant collective subjects, the states, want to retain their capacity to act, rather than renouncing it to the economic or political global market, they have to get involved in political innovations. The most important one is a global political system that is based on the rule of law and is democratic in nature. In order to achieve a collective legal capacity, a democratic world state is required: a world republic. Of course, the innovation is so radical that one is inclined to stay away from it and to suggest alternatives instead. Is a just world order not conceivable without a world state? As a strategic world order, as governance without a government or a state, as the democratisation of the world’s states (ch. 9)? The answer to all three alternatives is negative, which is why the world republic remains necessary; in line with the principle of subsidiarity, however, not as a substitute to individual states, but as their supplement (ch. 10). Even a complementary, that is, subsidiary and federal world republic has to protect itself thoroughly against the danger of becoming a global Leviathan (ch. 11). As with the individual state, additional personal dispositions are required: global civic virtues (ch. 12). We begin with a look at history, not merely for purely historical, but also for systematic reasons (ch. 8). 157

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A LOOK AT HISTORY

If early communities and family clans are, in a modernised way, also called ‘states’, then the beginnings of an inter-state law can be traced back far into the past, even to the beginnings of law itself. Even old epics such as the Iliad, the Nibelungenlied or the Mahabharata, are all reminiscent of ‘inter-state’ obligations that shift the law of the clan or family (which includes customs and the code of honour) to external relations. In some places the obligations are weakened in the process (since the time of the exile, slavery has been prohibited in Israel, although this does not apply to foreigners: Lev 25, 44–46). An authentic element of international law is added very early on, something that “all nations dispose of, even the prisoner-cannibalising Mohawk Indians: they send and receive envoys” (Montesquieu, The Spirit of the Laws I 3). There exist two areas of responsibility, which can be called the two fundamental dimensions of international law: whereas inter-social relations (economy, marriage, culture, etc.) are regulated by international civil law, inter-state relations are governed by international public law, that is, international law in its traditional sense. The latter can be separated into two components: the law of peace allows for a conflict to be resolved without violent force, even preventing such conflicts, whereas martial law ensures that any potential force or violence is subjected to restrictions and is tamed at least to some extent. One may expect philosophy to turn to these tasks. Since Plato and Aristotle the discipline has been intensively concerned with the law, the state and politics, and part of these are inter-state matters as well. Nevertheless, philosophy managed only very late to develop a theory of a global order based on peace and the rule of law. Instead, a rather strange differentiation and dichotomy took place initially: political thinking blossomed with Plato and Aristotle, but without any international or cosmopolitan aspirations; the Stoa, in turn, upheld cosmopolitanism but in a predominantly apolitical way (sec. 8.1). Certainly, taken as a central task, universal peace, the notion of a perpetual peace on the global level, has been considered ever since Augustine. However, a second differentiation emerges here: perpetual peace is interpreted primarily in an eschatological sense and has hardly any impact on the social order on earth. The two questions related to perpetual peace and a global order based on the rule of law clearly interlock. However, in order to facilitate the structuring of a rather complicated history, we treat them separately (chs. 8.1 and 8.2). Furthermore, factors external to philosophy have so strong a bearing on both questions that we must extend our analysis beyond mere philosophy and open ourselves to the wider history of concepts and ideas. Such a widened perspective offers greater systematic potential 159

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as well, as it reveals some models for a global order that are relevant to the present day and help us understand why both differentiations were overcome so late in history. Kant was the first to succeed in bringing together the different strands of the history of ideas and to develop a theory that is to the present day the most influential in specifying an order of law and peace that is boundless in both a spatial and temporal dimension (ch. 8.3). Whether critical or supportive, almost all later reflections refer back to Kant (ch. 8.4).

8.1 CITIZEN OR WORLD CITIZEN

8.1.1 Antiquity International law is undoubtedly an existential task for the human race; the fact that it is nonetheless absent in the work of both Plato and Aristotle, the ‘Church Fathers’ of philosophy, is astounding because it had a significant influence on their respective experiences. Although in his Politics Aristotle is concerned with relations between nations, namely those between the Greek city republics, between them and other entities, and with the alliances between the Etruscans and Carthage, he nevertheless foresees no pan-hellenic institutions, not even in the ideal polis he outlines in volumes VII and VIII, not to mention legal relations with the outside, with Carthage or Persia, or those between foreign communities. This absence is even more surprising by virtue of the fact that the relation with the Persians was not only characterised by war, but also by the eventual signing of a peace treaty; and even other intellectuals, in particular Xenophon (Cyropaedia, Anabasis) and Aeschylus (The Persians, approx. 475), had been concerned with the Persians for a very long time. Plato is the only one who takes a look at international relations when, in his late dialogue The Laws (III 684a–b), he refers to the contract of mutual assistance between three kings and their peoples. Also, when he discusses the warfare between Hellenic and barbarian states in The Republic, he introduces three elementary principles of international law that remain applicable to the present day (V 471b–c): guilty individuals are to be distinguished from innocent ones that also suffer, and the latter may urge the former to provide compensation. The behaviour towards foreigners is similar to that displayed by Greeks among themselves. The possibility of treating foreigners worse than fellow citizens is therefore rejected, and a principle of equality is demanded instead. Finally, specific war practices are absolutely prohibited, such as devastating land and burning towns and villages. The notion of an international legal order, however, is yet to emerge. One could profess some type of legal–theoretical materialism that would explain this absence of awareness for international law and statehood by pointing to missing ‘material’ conditions, such as a common language, a common culture, a common religion, diplomacy, global media and a global public. Apart from the fact that philosophy can be ahead of its time and, as we will see with Zenon, may ‘dream up’ an ideal, both Plato and Aristotle lack a theory of even that modest international legal order for which common characteristics did already exist: a theory of the relations between Greece’s

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city republics. Moreover, the example of the rhetor Isocrates, the teacher of numerous statesmen, shows that intellectuals at the time were indeed able to hold a different view: in Panegyricus (approx. 380), Isocrates calls on the Greeks to form a koinê patris under the leadership of Athens, a common fatherland that would bring about Greece’s internal peace (§ 81, §§ 34–37; On the Peace §§ 49). The question of why Plato and Aristotle failed to address even this modest international perspective is not easily answered. Transferring the pertinent concepts, such as justice and welfare (eudaimonia) in Aristotle’s Politics, to an international level seems almost unavoidable. The absence could be explained by Aristotle’s ideal of the polis: stable and mostly self-sufficient communities that seek for this very reason as few outside relations as possible. This proposal we present as the first model of an international legal order. It consists of an international communitarianism that is free of international law and comprised of communities that are largely self-sufficient and, given their extensive autarky, renounce international law. Political reality at the time looked rather different, of course. The Greek city republics were not even close to being self-sufficient or independent from each other. The cult of Delphi is an indicative example of how relations to the outside may be minimised, but cannot be completely avoided. This case demonstrates how political practice may have advanced more than political theory; for cult has the character of international law. Its members pledge a ceremonious oath “not to destroy utterly any city of the Amphictyonic league, not to let them starve to death, or to cut off their water, even in time of war; and punish anyone who violated this law” (according to Ehrenberg 1965, 135). There is even an ‘international organisation’, a council that also functions as a court of law. Two stages can be systematically distinguished here. The lower, ‘pre-Delphi’ stage represents the second model: an ‘international law’ that remains restricted, the acknowledgement of which is subject to the goodwill of states. A secondary state of nature is established this way, an international law without supranational statehood. This ‘international law free of states’ is likely to be violated without shame or pangs of conscience for even the smallest advantage and as a result of even the smallest provocation (Adam Smith, The Theory of Moral Sentiments, part VI, ch. II 2). Stateless international law is overcome in the subsequent model, which for systematic reasons (see below) is already the fourth model: the ‘Delphi stage’, the minimal supranational state. By linking it to an ‘international organisation’, international law is no longer conditional upon only the goodwill of the relevant parties. Yet, its predominant task, replacing force and violence with the rule of law, is not even remotely accomplished: cease-fires prevail at best temporarily during a divine truce (see ch. 8.2.3). As Aristotle acknowledges (e.g. Politics III 9, 1280a34–40), Greece is also characterised by protective and commercial alliances, so that the question of their ordering becomes obvious. However, he does not establish a ‘political’ term for it. He sees, quite rightly, no evidence of a polis. Still, such reasoning disregards the ‘intermediate stage’ that is essential for international law: the fact that the development of a common view on what constitutes right and wrong is indispensable for a

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polis (Politics I 2, 1253a1–18), but that a limited number of common characteristics may already be sufficient. The conceptual reason for the absence of international law might then be that Aristotle conceived the law as either ‘national’ or non-existent, and that if the community is not an individual state, it is no community at all. It is on account of these prior assumptions and not, as today’s communitarians assume (e.g. MacIntyre 1984, ch. 12), because of his concepts of virtue and friendship, that Aristotle’s practical philosophy contains a communitarian element. For these concepts are universalistic in nature (Höffe 1997 and 1998). The reason for the deficit may be found elsewhere still, for example, in the fact that the Greeks (despite Herodotus, Histories II 2–5) are not yet aware of a universal history. However, a universal perspective is required not only for the further evolution of international law into a universal phenomenon, but for the law’s beginning stages that already existed at the time but that are missing in Aristotle’s work. According to yet another supposition, the absence can be explained through the link between law and religion and the fact that divinities at that time were recognised only in particular geographical areas. As we will see later, the Middle Ages had this problem. Also, if followers of ‘fundamentalist’ religion wanted to justify every law on religious grounds, a rather impregnable barrier would emerge for international law. However, this is an invalid supposition in the case of the Greeks, for they did not only share a common language, a common culture and their sense of morality, but also a common constellation of Gods and the institution responsible for them, the cult of Delphi. While it is true that the priesthood of Delphi did not possess any real power, it did have a very substantial authority, which let statesmen of the entire world, including King Croesus of Lydia and King Tarquinius of Rome, make pilgrimages to Delphi for advice on questions of war, state contracts and colonial affairs. Furthermore, as soon as people in Antiquity made contact with other nations, they attempted to equate the divinities of the latter with their own, such as Isis with Artemis or Hermes with Mercury, a re-interpretation that defuses the particularity of their own Gods. Rudiments of cosmopolitanism certainly existed in Greek culture, but were found outside Plato and Aristotle, the dominant philosophers of the time. More than a generation before Plato, Democritus anticipated globalisation, understood as the awareness of a common world: “To a wise man the whole earth is his home; the universe is the native country of the good soul” (andri sophô pâsa gê batê; psychês even agathês patris ho sympas kosmos, Diels and Kranz 68B247). This sentence may be understood as the exact opposite of the earlier communitarian model and may also have produced a separate model, that of a global order of states that was based on the rule of law. Yet, no indication to that effect can be detected. Similar to other philosophers prior to Socrates, Democritus too criticises the particularism of the Greeks: he criticises Heraclitus in the name of a common world order (Barnes 203), sophists like Antiphon with reference to biological similarities (Greeks as well as barbarians breathe through the mouth and nose, and eat with their hands, Barnes 449), and Democritus because of the ability of humans to be at home everywhere on earth. Yet, they do not propose to organise the global home as a state that is based on the rule of law.

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After the decline of the Greek city states, cosmopolitanism became an essential feature of that era, even a principle of political reality during Alexander’s ‘global empire’. While the theory is content with a philosophical cosmopolitanism and a philosophical ideal of humanity, the practical reality, which was marked by daring emperors and statesmen, strove for a world state. Of course, it is the hegemonic variant of a homogenous, state-based world monarchy; systematically, it represents the seventh model. The core concept of philosophical cosmopolitanism, the expression kosmou politês (‘world citizen’), may go back as far as Socrates (Cicero, Questions debated at Tusculum V 8). However, unambiguous testimony can be found only with his pupil Diogenes, the Cynic philosopher of Sinope. To the question of where he was from, he is reported to have responded that he was a ‘world citizen’ banned from his native country (Diogenes Laërtius VI 63). However, he attached no legal obligations or state institutions to this status. In Diogenes’ cosmopolitanism the focus is on the universe, not the polis. It is apolitical, which is why Epictetus’ expression kosmios (Diatribes 1, 9, 1) as “belonging to the universe” is more accurate. Besides, Diogenes did indeed leave his home country, but not his linguistic–cultural home, the world of the Greeks. The view that the universe is the common polis of all people as well as of the Gods surfaces only with the second founder of the Stoa, Chrysippus (Stoicorum Veterum Fragmenta II 32; 328; already Krates: Diogenes Laërtius VI 98, and later Cicero, On the Nature of the Gods II 133). For Seneca, too, the “great and communal” state encompasses both “gods and people” (On Leisure 3 IV 1; Epistles 28, 4). However, in both, Chrysippus and Seneca, the polis or res republica is not yet the perfect example of a community ordered by law; it is more of an open living space that is not further specified. Globally responsible cosmopolitan institutions are not mentioned, neither are those shared understandings of right and wrong that Aristotle saw as indispensable elements of a polis. The Stoic Arius Didymus too, followed the tradition of a cosmopolitanism that is apolitical, or ‘weakly political’ at best. He considered the world as the home for gods and people, where the gods were the rulers and the people were their subjects. However, the reason for this is not to be found in a common law, but in a unique and shared ability to reason, an element to which Democritus had alluded (Stoicorum Veterum Fragmenta II 528). The Stoa had a high regard for the internal peace of the soul, dispassion (apatheia), which more or less corresponds to Epicurus’ ataraxia, the imperturbability of the soul. It usually amounted to a retreat from politics, but not so for the philosopher on the Emperor’s throne, Marcus Aurelius. Common reason (nous), which implies a kinship of all humans, lead him to a cosmopolitan ideal, to a unity of humanity that crossed borders between all states and peoples. The fifth model, a political world order in stages, emerges in the process. At the highest stage, the global polis, the regular poleis “are preserved as homes” (Meditations 3, 11, 2). Even Marcus Aurelius, however, refers only to a duty of political involvement; this element of individual ethics was not complemented by a theory of equal status on the issue of political institutions, as is the case in the political philosophy of Plato and Aristotle. In Stoic cosmopolitanism after Chrysippus something happens that Nussbaum (1997) ignores: as with Epicurus and his followers, the theory of the state

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and the law loses out to personal ethics. Compared to the zenith that occurred during Plato and Aristotle’s era, it appears atrophied (on the limited political theory of the Stoa, see Schofield 1991). Things looked different, of course, for the first founder of the Stoa. Zenon of Citium outlines a cosmopolis in the form of a homogeneous world state in his criticism of individual communities each with their own laws. In so doing, the sixth model emerges: in line with the Stoa’s general cosmopolitanism, all people are to be seen as fellow citizens. Contrary to a cosmopolitanism that is usually apolitical, there is to be a single way of life and order, such that the people resemble a herd that does not only live together, but shares a common nature as well as a common law (Stoicorum Veterum Fragmenta I 54, 60, 133, 262; for a criticism of the image of a herd see Kant, Anthropology VII, 330/190). The cosmopolitanism that has so far been only philosophical in nature, now evolves into a political cosmopolitanism as well. It is because of Zenon in particular, but also because of Marcus Aurelius, that the Stoa does not appear as entirely apolitical or, at best, slightly political. One of the oldest official documents shares the same basic idea as Zenon, a remarkable fact that brings together one of the greatest philosophers with one of the most famous statesmen. In a letter to Alexander the Great, Aristotle advises his former pupil on behaviour towards subjects, on the formation of the Greek city republics, and on the question as to whether the Persian nobility should be made to resettle (Fragm. 656–662). Our sixth model represents the pinnacle of this advice: the vision of a world state, a cosmopolis, with a constitution, a government and without war (Stern 1968). However, the text has come down to us in Arabic, not in Greek, and is therefore unlikely to have flowed from Aristotle’s pen. Zenon describes the cosmopolis as a ‘dreamed-up ideal’ (Diogenes Laërtius VII, 84). Although Alexander’s Empire may have come closer to the ideal, the notion of globally applicable laws appears ‘utopian’ and ‘fanciful’. However, a generation later, in Chrysippus’ era, Rome witnessed a second and more concerted approximation to this ‘utopia’: the ius gentium, which regulated the relations between the people of different nations, rather than merely the relations between the nations themselves (see Kaser 1993, also Höffe 1999a, sec. 3). This is of particular concern to the second dimension of international law, international civic law. In a systematic sense, it constitutes the third model: Developed from the trade customs of the international market in Rome, it allows for the resolution of legal conflicts that cross-state borders, but that do not fall into the realm of traditional international law, that is, of international public law. It did not take long for this model to attain considerable importance in world history. While the influence of Stoic cosmopolitanism is confined to the history of philosophy (despite its being influential in shaping Kant’s cosmopolitanism), the Roman ius gentium has had a much wider impact on the world history of law. Five elements are important for our purposes: the ius gentium does not represent an überpositive natural law, but a law that applies in a positive sense and is specified in great detail. This law applies beyond state borders, if not to the world as a whole. It is concerned not with ethnic or religious affiliations, but with people as legal subjects;

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hence, it implements a rigorous equality for the way these subjects are treated. It is backed up by a public power, which is no international authority or agency, of course, but a component of the national legal system: in Rome, it is a person, the Praetor, the official responsible for trials among strangers or between strangers and the citizens of Rome. The Roman ius gentium can therefore be said to represent a ‘national international law’. The practical reality of both the law and the state is evidence that Rome was capable of a level of creativity that is notably absent in its philosophy: we may expect from Cicero, as a renovator of state theory who was close to the Stoa, that he overcome the largely apolitical cosmopolitanism the Stoa had relied on since Chrysippus. It is true that he adopts the notion of a reason common to all humanity (On Duties I.XVII 53) and an equally common (juridical) natural law (On the Laws I.XV 43). From these he draws only general moral consequences, however, and none of them result in specific implications for the law and the state. He does not demand that slavery be abolished (another Stoic, Seneca, goes further and claims that it is justified; On Clemence I. 16.2; On Benefits II. 18.3), that women be treated equal to men, or that foreign nations be recognised as having equal status. Cicero did not evolve into a theorist of international law in the sense of a ius inter gentes, nor was he concerned with international institutions that would see Rome not as a hegemon, but as one among equals; although in principle, the Italic military cooperative represents one such organisation. As a result, the “moral community that originates from the humanity of all people” should not be viewed as “far more radical” than the suggestion of a world state (Nussbaum 1997). On the contrary, given that the required elements of the state and the law as well as the authority to compel are all missing, the suggestion remains much less reliable. 8.1.2 Seven Models Taking provisional stock of the international ethics of the state and the law in Antiquity produces a mixed conclusion, which must incorporate two things: in political philosophy, the widespread absence of international or supranational elements in theory; and in political reality, an astoundingly rich tableau of models of how to conceive an international legal order. Since political reality is obviously further advanced, the absence of international or supranational elements in political philosophy may indeed be interpreted as a deficit. On the one hand, the philosophy of Antiquity operates (not always but usually) with too simple an alternative: either particular polis or apolitical cosmopolitanism. Plato and Aristotle shun international law and global civic law, whereas it is the state, politics and often the law that is absent in the work of the Stoa. Furthermore, since a link between them is required, a synthesis of the law and the state with a cosmopolitan outlook, the Stoa’s contribution to a universal ethics of the state and the law is rather limited. It neither replaces nor complements the real (but only particular) citizen with the universal citizen of humanity, that is, the world citizen. Rather, it contrasts the particular ‘being a citizen’ (Bürgersein) with a universal ‘being human’ (Menschsein) that has lost its sense of Bürgersein. As a result, graduating this citizenship into stages,

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which the theory of subsidiarity suggests, is not a possible option. It is only Seneca who indicates a world order that is multi-levelled in line with political criteria, so that an individual can be primarily Athenian, secondarily Greek and thirdly a world citizen. Indeed, one of Plato’s followers from the Alexandrine school, Hierocles, refers to a row of concentric circles that extends from the individual to the family and extended family, the neighbourhood, the city, the country and, eventually, to the whole of humanity. However, here too the elements of the state and the law are missing (Hierocles of Alexandria, On Providence, approx. 412 A.D.). If, on the other hand, our assessment of Antiquity is extended beyond philosophy, a colourful set of options presents itself. Organised from the bottom (a pure world of states) to the top (the homogeneous world state), this array commences with (1) The ‘communitarian model’, the coexistence of largely self-sufficient communities without any international law. (2) The first and more realistic model establishes an international law without any supranational statehood: an international secondary state of nature. Seen systematically, the next step represents (3) A national international law, in the sense of an international civic law conceived along the lines of the Roman ius gentium. The implementation of such a law is, incidentally, easier than that of international public law, because private individuals are used to having to submit to the law. Also, the economy, by virtue of its interest in a legal framework, has no fundamental issues with a lawful, but nationally rooted power. (4) An ‘international’ international law, with an international organisation conceived along the lines of the cult of Delphi, regulates the relations between states of equal status. On closer examination, this model of a minimal supranational state turns out to be astonishingly modern – for it is democratic in that, by principle, it treats its constituent members as equals, no matter what size they may be. Secondly, in so far as the members are democracies, a democratic coexistence of democracies, in short: a democracy of democracies is the result. Since, however, a cult-based community might also consist of non-democracies, states will encounter one another that are constitutionally different, democracies as well as non-democratic states. An interstate democracy does not presuppose state-internal democracy. Fourthly, the international organisation is only responsible for a state’s secondary and subsidiary responsibilities. (5) A separate model surfaces with the last issue: a statehood that has gradations and that follows the Athens–Greece–World Community pattern, and whose rudiments are outlined by Seneca. (6) In Zenon’s model of a cosmopolis there is a world state that abolishes all national borders, so that only one single homogeneous state remains. Although Zenon does not directly say so, the consequence of his thought is that all individual states would lose their statehood and retain nothing but their status as provinces, to which a process of decentralisation may then subsequently grant certain rights ‘top-down’. (7) The homogeneous world state knows a hegemonic variant which produces its own model: the domination of the world by an individual state, the realisation of which

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was begun in Alexander’s Empire and, clearer still, in Rome, and which Cicero elevated to a patrocinium orbis, a protectorate over the entire world (On Duties I 34–36, II 26–27). At the time of its greatest expansion, under the emperor Trajan, the Roman Empire encompassed all the countries of the greater Mediterranean region, spreading far beyond the European continent, including England (but not Scotland), and extending East towards the Persian Gulf and the Caspian Sea. 8.1.3 Modernity Our purpose here does not require a detailed description of our subject, so we will jump over the Middle Ages and concentrate upon a few phases in the development that ensued: a fundamentally new element is introduced into international law with late Spanish scholasticism. The history of modern theory of the state and the law tends to ignore it, because it is not based on contract-theoretical legitimation. Yet, modernisation that is relevant for the law and the state has many facets. Its usual model, Thomas Hobbes, contributes only to one side, legitimatory modernisation. By contrast, he is traditional, if not reactionary, about the extent of that modernisation, for he limits the responsibility for legitimation to the individual state. Although Hobbes is aware of the fact that “in all times kings and persons of sovereign authority . . . have their weapons pointing on one another” (Leviathan, ch. 13), he does not conclude that there is a physical state to be overcome, which is what one would expect from his contract theory. He refers instead to a war-like disposition that promotes the diligence of the subjects. He equates international law with a natural law (ch. 30) that, like the natural law of individuals (ch. 14), entitles every sovereign to ensure the security of his people. Hobbes understands (international) natural law not in an objective sense, as a perfect example of rules that are valid between states, but in a subjective sense, as a claim of each nation to its own security. Let us first reiterate the three different concepts of international law: (1) according to the oldest Roman concept, international law consists of an objective international civic law that, by today’s standards, would not be regarded as genuine. Associated with the naturally applicable law, natural law, it is the embodiment of the rules of law that apply to all peoples, internationally, but that are monitored nationally by a particular state. (2) According to Hobbes’ subjective concept, international law describes the authority of peoples over their own respective security; it amounts to rules of prudence for ‘national’ survival and state-internal peace. (3) The late Spanish scholasticism and the Dutchman Grotius complement both these concepts with the hitherto prevailing concept of an international law in the objective and genuine sense, that is, the rules of law that apply between peoples. Scholars of international law do not accept a supreme central authority, since such a world state, so Grotius says, is like a ship that cannot be steered: it is ungovernable (The Rights of War and Peace II 22, § 13; see Bodin, The Six Books of a Commonwealth I 10 and V 1). International law in modernity is initially content with our second, pre-state model, and will continue to be so for the foreseeable future. The theologians and philosophers Vitoria, Vasquez and Suárez, as well as the Dominican priest Las Casas were the first to develop a genuine theory of international

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law, motivated by the same political problems that existed in Hobbes’ Great Britain, namely the discovery and colonisation of South America and the frequent enslavement of the native Indians. This theory consists of a universal natural law that is responsible for the relations between all peoples, including those between Christian and non-Christian nations. Its applicability independent of religion has an important political impact: Suárez rejects a religious crusade against the (non-Christian) Turks (On Charity, Disp. XIII: On War 1621). Grotius, too, sees no stipulation in natural law that limits peace to Christianity (The Rights of War and Peace II 20, §§ 44–50, II 15, §§ 8–12). The important aspect about the theory is that it differentiates between a primary, natural international law and a secondary, human or positive international law, a delineation originally introduced by Vázquez de Menchaga (Controversiae Illustres 1564, 2, 51, §§ 31). Also, Suarez reserves the expression ius gentium for the second, positive stage (De Legibus ac Deo Legislatore 1602). However, the legitimatory precedence is founded in natural law, which is understood as a law applicable to all human beings. A legal positivist could take issue with this and claim that the process of making positive international law independent is not seen through to the end. However, two arguments speak in favour of Suarez: with regard to the legal-positive aspect, it must not be forgotten that international law at the time knew of no authority analogous to the national legislature, that is, a supranational legislature, so that the usual source of positive law was absent and had to be substituted with international customary law, but also with legal–moral considerations based on natural law or reason. When seen from a legitimatory viewpoint, a law devised on legal–moral grounds demands precedence over a merely positive law. Within the scope of the new objective international law, Vitoria provides the first legal form for the Stoic notion of the world citizen. He feels compelled to introduce a new subjective law, a global civic law: since there exists no common positive law between Spaniards and Indians, an innovation in international law is required that will cover their legal relationship. Vitoria assumes a pre-positive and über-positive authority, a ius communicationis et societatis humanae, and in so doing establishes, for the first time in the history of legal theory, the concept of an international law between peoples, with which he opposes Hobbes’ law of self-security (On the American Indians 1539, III 2): “Quod naturalis ratio inter omnes gentes constituit, vocatur ius gentium”. This follows because the new law demands from native peoples that they allow the Spaniards to enter the “new territories”, to engage in commerce, get married and govern themselves, that is to say: to establish colonies. Kant will later confirm Vitoria’s innovation of global civic law, but will make a distinction between the right to be a guest and the right to be a visitor and will subsume only the former under the law with an authority to compel, while the latter is characterised by voluntary philanthropy. This differentiation helps him to vehemently reject virtually any colonisation of a region that is already populated. Even in the period that follows Hobbes, the great British theorists of the state fail to develop a theory of international law. Of course, Locke thinks that “all of the world’s

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princes and rulers of autonomous governments find themselves in a state of nature” (Of Government § 14), which suggests that it needs to be overcome by establishing a state of lawfulness. However, a state of lawfulness cannot be brought about through wars of aggression, because according to Hobbes no lawful claim to rule follows from conquest (§ 196). Hume, on the other hand, deems the forces that ensure laws between states are followed to be weaker than those between individuals. The politics between states, he thinks, aim for a balance of power based on ‘common sense’ (Of the Balance of Power 261). In so doing Hume bases his thought on the ‘Westphalian model’ that has dominated Europe since the peace accord in 1648 of the same name: the balance of European powers. (On the conceptual history of ‘international law’, see Steiger 1992; on the origin of modern international law, see Kimminich 1985a.)

8.2 ON PERPETUAL PEACE

8.2.1 Plato and Aristotle As far as peace, the core of an international legal order, is concerned, the philosophy of Antiquity again lacks a theory; and once again we may refer to this as a deficit. Aristotle asserts that war is waged for the sake of peace (Politics VII 14, 1333a35; 15, 1334a15), so one might have expected from him a closer investigation of that issue. Though Aristotle does not pursue it, attempts are found in Plato: Certainly, in The Laws, one of the interlocutors (Cleinias) rails against the “irrationality of the majority of people”, “who do not want to see that the war of all states against all will never end” (I 625e–626a). Here, then, Plato defends the contrasting opposite to a perpetual peace: the notion of an everlasting war. However, in The Republic he outlines a comprehensive peace, although he does not use the relevant term: within the scope of the systematic (not historical) genesis of the polis, the people, so Plato argues, initially live inside the healthy polis in peace with one another, with their neighbours, and with the Gods (The Republic II 369b–372c). The reason is to be found in an elementary frugality, a pre-reflexive and purely natural contentment. Not too dissimilar to other animals, people have a relatively well-defined list of basic needs (The Republic VIII 558d and IX 581e), and they spontaneously settle down once these are satisfied. Hence, external peace between people comes about through internal peace. If this model – external peace by virtue of internal peace – is transferred to the international sphere, a variant of the first model arises that is void of international law: peace between states prevails not on account of some autarky of individual communities, and thus because of an absence of relations, but on account of their state-internal peace. The reason, then, is their internal contentment, which is of course not subjective but objective in nature, as well as the well-ordered character of each community. If, in contrast to Plato, state-internal orderliness is then defined in democratic terms, the model is reminiscent of the so-called ‘Democratic Peace’ thesis according to which global peace can be brought about through global democratisation (see ch. 9.3).

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However, The Republic makes no explicit mention of this international perspective. The first explicit theory of peace emerges in late Antiquity, in Augustine, and is much more theological than philosophical in nature. Also, even after that era, peace continues to be denied the status of a fundamental concept of philosophy akin to law, justice, state, happiness, freedom or progress. Also, one should add, surprisingly so, because peace is a good of high existential value. Given that Augustine develops his peace theory from a predominantly theological perspective, Kant represents the only significant exception. 8.2.2 A Positive or Negative Concept? As the concept of peace is largely unknown to classical Greek philosophy, we direct our attention to the sphere outside philosophy, which will have a significant influence on Augustine as the first great theorist of peace: While in modern times we tend to begin with the more modest, negative concept – the absence of force, violence and war – the opposite was true in earlier times. This is true of very different cultures: in ancient Israel as well as in Greece, and later with the Romans and Teutons, precedence was given to the more demanding, positive concept. Peace represents a coexistence that is comprehensively successful, possibly because the focus is exclusively on one’s own community, and thus on domestic politics. If this interpretation is extrapolated to the inter-state sphere, peace is in danger of degenerating into an irrelevant and unrealistic utopia. One of the preconditions of a conception of international peace is therefore the ability to cut back on the ‘qualitative’ demands when a ‘quantitative’ spatial expansion is pursued: if it is global peace that is desired, one should be content with a less demanding concept as to what that peace should entail. Israel interprets peace (shalom) not merely as the opposite to external and internal evil, to war and conflict (1 Ki 20, 18; Is 27, 4; Jer 9, 7) or fear, fright and sin (Ez 7, 25; Jer 29, 11 and 30, 5; Ps 38, 4). Israel also allows for the dream of humanity – that man may become tired of war and that peace may finally prevail – to become enshrined in a prophetic image: “they shall beat their swords into ploughshares, and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war anymore” (Is 2, 4; Mic 4, 1–3). If those famous verses are added, according to which the lamb is the wolf’s guest, calf and lion graze together and the child plays with the viper (Is 11, 1–6) – so that peace prevails in nature and joins all of the blessings (Is 9, 1–6; 58, 8; Ps 72, 7 and 16) – then that peace constitutes a superlative in both a quantitative as well as a qualitative sense. In a way characteristic of a culture of shepherds and peasants, as opposed to the city culture of the Greeks, this view encompasses quantitatively not only the people, but the whole universe. Qualitatively it represents a state of well-being and orderliness that can no longer be superseded. Of course, one must not overlook the fact that Isaiah foresees this state for “the end of days” (2, 2): the most demanding peace is “not from this world”, but is to be understood in an eschatological sense. For the Greeks too, the original meaning of ‘peace’ (eirênê) encompasses far more than merely a lasting end of violence. Rather, it entails the prosperity and well-being

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of a community, although, according to Plato’s Laws, peace is connected to friendship (I 628b) and justice (I 630c). Yet, peace is initially interpreted only ‘internally’; from about 400 B.C., probably due to the Peloponnesian war, ‘external’ relations are then recognised as a condition of internal well-being. In his speech before the plenary assembly of Athens, Andocides, Athens’ envoy to the peace negotiations with Sparta, envisions an everlasting and general peace (Speech on the peace with Sparta, 392 B.C.). There are agreements on a general peace (koinê eirênê) that actually come about in Greece. These agreements anticipate important fundamental rules that will much later influence the creation of the League of Nations and the United Nations: these agreements are concerned with internal and external freedom, the withdrawal of occupation forces, the guarantee of territorial integrity, and sanctions against violators of the peace. In order to ensure that the agreements remain not only verbal in nature, the Corinthian alliance, for example, envisaged an executive: a Senate that meets on a regular basis, has the authority of arbitration, takes actions against violators of the peace, and can avert war for a 15-year period. Of course, that ‘League of Nations’ remains limited to Greece. In a narrow perspective common at that time, a peace that applied to the whole of Greece was deemed to be of universal scope. Even philosophers did not contemplate a peace order that would have extended beyond Hellas. Greece knew of an institution that linked both dimensions, the state-internal and the inter-state peace, in a temporary manner: during the ritual festivities that were dedicated to Zeus, the Olympic Games, a peace of the god prevailed that offered protection for highwaymen and thieves and interrupted any war-like activities. At the same time, an agonal element emerged, a competition without war, initially only in sports, but today also in the economy, science and culture (on the notion of peace in Antiquity, see Nestle 1938; later Dinkler 1973). The Romans were very similar to the Greeks, in that for them too, internal peace was determined by the positive conception of peace, while external peace was expressed through the negative conception: domestically, peace (pax) consisted of internal unity (concordia) of the citizenry, which in turn ensured happiness (felicitas). Since the symbol of concordia is comprised of intertwined hands, it seems to approximate to the more recent interpretation of solidarity. However, the Roman pax refers predominantly to the securitas publica, to public security, which entails the prevalence of the law and the protection of property, including the safeguarding of public religions and the tradition of one’s forefathers (mos maiorum). Even in the fourteenth century, in the famous fresco of Siena Il buon governo (‘The Good Government’), the concordia links together two ropes of justice, distributive justice and justice in exchange, without additional solidarity (Skinner 1986). Pax is derived from pacisci: to concur, to agree. The juridical grading indicated by this term directs our attention to the fact that peace is neither naturally existent, nor does it come about through mere evolution; rather, it requires negotiations, agreements and contracts. In terms of external relations, it demands more than a momentary silence of weapons, armistice. Instead, it represents a lasting end to war that encompasses protection from future wars, much in line with Cicero’s saying that “the word

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peace has a sweet sound, and the thing itself is salutary” (nomen pacis dulce est et ipse res salutaris, Philippica II 113). According to Andocides, whom we quoted earlier, a war is just if it is waged because of the wrongs one has experienced oneself, or to help other members of the league that are threatened. Rome accepted two further reasons that were, moreover, interpreted ‘generously’ and that discredit the notion of a just war: pro salute, for the territorial integrity of the Roman Empire, and de imperio, to secure one’s own claims to exclusive authority and rule. In line with the seventh, hegemonic model, Rome, which was so exemplary in its legal thinking, could imagine the world state not as coexistence among equals, but only under its own leadership. The Roman peace (Pax Romana) is based on the overwhelming power of the mightiest. Also, should he succeed in achieving a global hegemony, Isaiah’s programme could be implemented in a secularised form: in that world-internal sense, which Emperor Probus invokes in late Antiquity, when he dared predict that in the not too distant future soldiers will no longer be necessary, because both Roman laws and Roman governors were nearly everywhere in place and were secure in their respective authorities. For this reason, so he continued, military pay, levies and weapon production would no longer be required. Instead, soldiers would be active as peasants, traders and scientists (Scriptores Historiae Augustae, Vita Probi 20, 5; 23, 1–5). The original meaning of the German expression Friede (‘peace’; old High German: Fride) also entails orderliness and well-being. Related to the words frei (‘free’), freien (‘to court’) and Freund (‘friend’), it refers to coexistence in love and mutual sparing and protection, although “the emphasis is more on reciprocal assistance than on emotional relations of affection” (Jansen 1975, 543). However, in so far as it focuses on the ‘mutual sparing’ of others, this interpretation approximates the negative concept, which is more easily transferable to the relations between states: whether it be the peace of God or that of the house, the castle, the city, or the country – it is about either periods or places free of violence. 8.2.3 Augustine The first great theorist of peace is a Christian theologian of renowned importance: Augustine. In his early phase, possibly influenced by Varro’s lost work On Philosophy, he follows the Stoic ideal of the wise man and understands peace as an internal state, a state free of emotional reactions (Commentary on the Lord’s Sermon on the Mount I 2.9). He later undertakes three modifications in this concept that might be attractive on their own, but that are provocative, if not counterproductive, for an ethics of the law and the state (Retractions I 19.2). The changes determine the contents of volume XIX of The City of God (see Geerlings 1997), for centuries the most important Western work on the theory of peace. Their source of inspiration lies clearly outside the domain of philosophy: the Old and New Testaments referred to by Augustine himself. Even though volume XIX affords no particular importance to the work of the prophet Isaiah, it provides a useful backdrop to comprehend Augustine’s three modifications. According to the first change, peace remains a leitmotiv for human

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beings, but is unattainable in this life. The decisive, ‘true’ peace is of an eschatological nature. With a clear opposition to the view prevalent in the philosophy of Antiquity that individuals and communities attain fulfilment on their own, when it comes to peace, human beings are, secondly, left at the mercy of God. Hence, peace is no longer the destination towards which a person could work. The fulfilment of active striving produces something that is to be regarded as utopian and fanciful from a world-internal point of view: the fulfilment of human desire. For eventually, peace is to rule not only among people, but in the whole universe. Augustine’s threefold modification is attractive because it awards peace a conceptual abundance and reach that is difficult to surpass. It produces the full actualisation of the potential for hope that the positive concept of peace entails, rather than prematurely ending that process in the name of some ostensible realism. The corresponding methodical clarification is also attractive: the eschatological perspective stipulates that in earthly life the potential for hope is never fully realisable. Augustine relieves us of all fantasy, which seeks in this life that which remains accessible only in the kingdom-come. Although the threat that earthly peace may become overloaded when secularising this eschatology is certainly real, Augustine cannot be blamed for it. The problematic issue is that the earthly, temporal peace that is brought about by humans is devalued to an imperfect image of an everlasting, ecclesiastical peace that depends on divine mercy. That image – here Augustine is a ‘Christian zealot’ – can even be described as a bad and wrong peace (so XIX 12; in the thirteenth century, Berthold von Regensburg continues in the same vein and refers to a valsche friede (‘wrong peace’), Von dem Fride, Predigten I 238; and in the fifteenth century Nicholas of Cusa speaks of a schmutzigen Frieden (‘dirty peace’): Predigt am Tag der Geburt des Herrn § 11). All three of Augustine’s modifications are provocative: the kingdom-come character of peace, its dependence on an extraterrestrial authority, and the qualification of peace as a matter for the law and the state. These provocations contain a counterproductive element in that they distract from the peace that is attainable by human beings. The theological concept of an everlasting peace, a religious–moral pax aeterna that is relieved of any temporal constraints, should, at least in respect of an ethics of the state and the law, be substituted for a peace that is perpetual in a social and political sense: the pax sempiterna that exists in this world and between people and that is universal in the sense that it applies to the relations between all people and not only to those of a select few. Peace can be universal in four senses, all of which are independent of one another: in a legitimatory sense, peace is universal if the basis for its justification does not depend on cultural convictions. Even though a philosophical legitimation may not rest upon a decidedly universal religion such as Christianity, which is not limited along ethnic lines and is particular from a socio-historical point of view, it may well be inspired by it. A peace that is universal in reach and that encompasses the whole universe, including the non-human world, is desirable, but need not be of primary concern for an ethics of the state and the law, whose responsibilities lie elsewhere.

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These ethics cannot dispense a universal peace in the legal–moral sense, a global peace that entails all human beings, all states, and possibly non-human legal subjects as well. Neither can it renounce a universal peace that is boundless in a temporal sense. As is well known, The City of God is written against the background of a paramount event in the history of the state: the fall of Rome to the Visigoths (410). Still, the work develops no peace order or legal system that would overcome this shock. Augustine is aware of a temporal–political peace. However, seen as a peace in Babylon “for both good and bad persons” (XIX 26), it is not merely qualified, but is also disavowed: Augustine basically retreats to an ‘eschatological theory of the state’ (Höffe 1997). He is concerned (almost) exclusively with the eschatological perspective, with a ‘comprehensive peace’, peace in the whole universe, and particularly with a ‘peace with God’ (XIX 27). He does so despite the fact that even in the sphere of the earthly and transient nothing is more ardently desired than the common good of peace (XIX 11) because it promises earthly advantages (XIX 17); that human beings strive for a peace with all people (XIX 12); and despite the fact that peace is the natural way of coexistence, for a comprehensive peace is possible without war, but there can be no war without at least some element of peace (XIX 13). The Doctor of the Church is not so naïve as to immediately postulate a cosmic peace. It represents only the peak of a hierarchy of peace in eight stages (XIX 13), the precise definition of which Augustine, as a neo-Platonist, bases narrowly on Plato and Plotinus: starting from the peace of the body, understood as an ordered consent by one’s body parts (health and harmony), through the peace of the unreasonable to the reasonable soul, and then, the peace of body and soul, the text proceeds towards the first climax: the peace of the mortal being with God, which consists of a belief-based and ordered compliance with the everlasting law. That peace, which no longer prevails inside human beings but between them, does not appear before the sixth and subsequent stages. Defined as an ordered unity with regard to command and obedience, that stage begins with the family and proceeds to the earthly state. With a concept that is so thematically rich, it is of particular significance that Augustine neglects to mention an inter-state peace. He is aware of the responsibility to establish “a peace with all humans” (XIX 12). He also knows about the threefold distinction of human community into house, city or state, and world (XIX 7). However, due to the eschatological qualification of everything earthly, the order of the global (but still earthly) peace comes off badly indeed. As a counter-image to the Roman Empire, the fourth volume of The City of God (ch. 15) develops a vision of a community of states where the earthly empires live in a “neighbourly unity” that is comparable “to the houses of a city”. Yet, even this peace is said to be attainable only at the end of history, in God’s everlasting Empire. As global peace is itself a separate stage, even Augustine’s demanding concept of peace can be outdone. In The City of God, the state-internal peace is immediately succeeded by the peace of the heavenly state at the seventh stage: a “comprehensively ordered and united community of God’s pleasure and the reciprocal pleasure in God”

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(XIX 17). At any rate, as a qualitative superlative it can only be increased in a quantitative sense. In the extension into the eighth and cosmic stage, a comprehensive peace of all things, the desired order is eventually established. In line with Plato’s notion of justice, according to which everyone should make his own contribution (The Republic IV 433a, 435b) and every thing assumes its appropriate place in a hierarchically structured world order. Whether Augustine’s concept is convincing from a religious point of view is a question best left to theology. However, an ethics of the law and the state notices the absence of the ability to think along two different lines. To do so, one may appeal to the authority of the New Testament and adapt one of its famous sayings (Mt 22, 17; Mk 12, 17; Lk 20, 25) : render to this life the things that are this life’s, and to the kingdom-come the things that are the kingdom-come’s. In any case, the suppression of the inter-state stage, which is politically so decisive, is a result, not of the lessons learned from the two kingdoms, but of the excessive devaluation of the kingdom on earth compared to that in heaven. The importance of the Doctor of the Church for the wider debate on peace is so overriding that from late Antiquity to the Middle Ages, and at times even in modernity, Western thought on the subject of political peace is essentially Augustinian. Considerable shifts in emphasis, even metamorphoses, are required if its disinterest in an international peace order is to be overcome, and five of them are of particular importance: both the intrinsic value of the worldly sphere and the ability of human beings to achieve a certain self-realisation are to be strengthened, because it is in this earthly life and by human beings that peace is brought about. Thirdly, the peace in this earthly life relies equally on all people and all peoples, Christians as much as non-Christians. The legitimation of the corresponding universal peace is, fourthly, not based on personal, but on legal morality, which, fifthly, avoids religious arguments so that it can be applied to all human beings. Each of these changes is radical. The first one requires nothing less than a de-spiritualisation, or de-eschatologisation, and de-politicisation of the theory of peace. In the second transformation, human beings require greater self-authority and self-responsibility once their religious power is taken away, for they are now dependent on mercy. Thirdly, some re-humanisation must go hand-in-hand with the globalisation of validity, one that does not consider the human sphere as an absolute in the universe, but one that grants it a predominant status. Only the fourth change may be easier, for it pursues a certain demoralisation of personal requirements; instead of a meritorious morality, only an owed morality is required. The fifth alteration may be difficult again: legislation through a Christian God must be substituted for a human-legislation through reason. As such, Christian theonomy must be replaced by secular autonomy. 8.2.4 The Middle Ages Towards the middle of the twelfth century, the philosopher John of Salisbury continued to be committed to Augustine’s tradition, for he dismissed the pax regnante Augusto, the peace under a worldly authority, as a false peace (Policraticus, 1159, 9.8.18). Yet, his contemporary Rufinus had already contradicted this claim. In his

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treatise De Bono Pacis (‘On the Good of the Peace’, Patrologia Latina, vol. 150, 1611), Rufinus introduces an additional stage ahead of Augustine’s two social stages of the peaces of Babylon and Jerusalem: the Pax Aegypti, the peace of a country that enslaved Israel with its consent. Since this stage attracts all negative depictions – namely the three vices of superbia (arrogance), impunitas (impunity, in the sense of lack of restraint) and pertinacia (headiness) – the next stage, Augustine’s peace of Babylon, can be upgraded to a peace of intrinsic value. In his treatise On Secular Authority (1523), Luther will delineate the legal peace from the ecclesiastical one; yet he too, will no longer consider the former to be an imperfect image of the latter. Rufinus’ concept of worldly peace is marked by three virtues that oppose the vices mentioned above: iustitia (justice), humanitas (humanity) and prudentia (prudence, in the sense of a moral capacity of judgement). Of course, these could still be surpassed by the three ecclesiastical virtues of pietas (fear of God), caritas (charity) and humilitas (humility). Similar to the corresponding peace of Jerusalem, however, the religious virtues remained reserved for the ecclesiastical community. By virtue of both, the moral appreciation of the second stage of a social peace as well as the limitation placed on the applicability of the third stage, the Christianity of the Middle Ages managed to think in two stages. While the world-internal peace constitutes the final purpose from a world-internal point of view, it is only the community directed at God, the church, that sees it as a temporary, but morally still valuable purpose. Two generations later, in Thomas Aquinas, peace even grows to be the social-ethical Leitbegriff, the highest good (On the Rule of the Princes I 5, I 2). Two other tasks to overcome political Augustinism were yet to be tackled by Rufinus. He does not lift the limits imposed on the territorial reach of worldly peace, nor does he demand a peace between all peoples. Whereas the personal requirements are not trimmed down either, the institutional ones are actually raised. The peace of Babylon is defined not by institutions, but by virtues. Political reality, however, paints an entirely different picture. Unlike the blood-feud between medieval knights, the structural element that characterised medieval order, from the eleventh century onwards first the idea, but later also the practice, proliferates of protecting certain individuals (priests, traders, peasants) as well as locations (churches, churchyards, . . .) and making the violation of this pax Dei subject to religious and worldly punishments. The previously neglected thought of a global legal community appears at a prominent place in the high Middle Ages, although neither in the work of Thomas Aquinas nor any other great theologian. Interestingly enough, it is again a lay-philosopher, Dante, who revives the cosmopolitanism of Democritus, Diogenes and Zenon. His writings (which originated between 1308 and 1317) state that humanity is comprised not only of Christian peoples, but also of Muslims, Jews and Gentiles. Dante also draws the consequence from the upgrading, and eventual independence, of worldly peace, in that he declares the emperor, not the pope, as the only responsible institution. Still, his argument is not based on a genuine ethics of the state and the law; this happens only in the work of the other important peace theorist of the high Middle Ages, Marsilius of Padua (Defensor Pacis, approx. 1324). Like Democritus, although also influenced by Averroes (I 3.9), Dante proceeds epistemologically:

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according to his Monarchia (I 3, 3–4), a person can attain reason not in individuality, but only as part of wider humanity. His notion that peace is a condition of the full development of humanity seems to anticipate Kant (see ch. 8.3). Unlike Kant, however, Dante establishes not a legal legitimation, but an epistemological one. To him, it is not the rule of law that matters, but the development of the human aptitude for reasoning. On the other hand, Dante emphasises the importance of justice and the law; for instance, in his Divine Comedy he places the emperor Justinian in heaven, because Justinian allowed the applicable law of that time to be recorded in the Corpus Iuris (Paradise VI). As if it were the most natural thing to do, Dante models the ideal of a global order on imperial (not republican) Rome. He favours not a world republic, but a universal monarchy, one that has nothing in common with a homogeneous world state, of course. Although the top of the monarchy is granted the authority to compel in order to protect the peace, the usual regents, the kings, are actually preserved, which is why Dante advocates our fifth model, a layered world state. However, despite having the name of a universal monarchy and despite reason common to all people, this world state is not universal in the strictest sense. Similar to how the general peace of the Greeks stops at the borders of their country, Dante’s universal monarchy and universal peace (Universal Peace I 4.2; I 16, 2) come to a halt at the borders of Christianity (III 9, 5–7; 17–19). As an extrapolation of the special peace at that time – which entailed an increased protection of the law in the respective geographic area, as a peace of the house, the castle, the city, the land, the king and God – Dante undoubtedly does away with the regional constraints of the peace. Yet, similar to his contemporary Pierre Dubois, the Bohemian King George of Podebrady (Tractatus Pacis Toto Christianitati Fiendae, 1462–1464), and later still in article 1 of the Westphalian Peace, the peace remains a Pax Christiana Universalis Perpetua: a universal and everlasting, but still only Christian, peace. Of course, this medieval limitation does not mean to suggest that hostility must prevail between Christians, Jews and Muslims: there is a weaker variant, a secondclass peace in the form of a unity: concordia (Thomas Aquinas, Summa Theologiae II-II, q. 29, art. 1: pax includit concordiam et aliquid addit). However, when the French historian Flodoard of Reims (894–966) describes the relation between Christians and Pagans as a concordia (Annals III 372), he refers not to the classical Roman interpretation, the cohesion of the citizenry, but merely to a legal unity. That unity may be seen as trend-setting, almost modern. It signifies a coexistence free of violent force, without a demanding community of justice or law that would owe its existence to some religious or metaphysical unity. Although Christianity has disposed of an ‘ideological’ basis since its beginnings – the reference from the letter to the Romans (2, 12–15) that the law is also of intrinsic value to the Pagans – and although both Doctors of the Church, Augustine (e.g., On the Trinity XIV 15, 21) and Thomas Aquinas (Summa Theologiae I–II 91, 2) confirm this reference, the concept of a peace that is worldview-neutral, the concordia, never becomes a decisive concept of Christian peace theory.

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8.2.5 Modernity The era of the Renaissance, the Reformation and the religious civil wars produced numerous peace treaties (von Raumer 1953). However, they were not based on Marsilius’ considerations on the theory of the state and the law. With the exception of Erasmus’ Quaerela Pacis Undique Gentium eiactae Proligataeque (‘Complaint of Peace’ 1518), they were not drawn up by philosophers. Even the argument forwarded by Erasmus is a theological one; he appeals to the New Testament, as does Sebastian Franck in Des Krieg Büchlin des Frides (1539). The peace treaties in the seventeenth century were not written by philosophers either – neither the Grand Dessin (‘The Great Plan’), which the Duke of Sully developed during the Thirty Years’ War (1635), nor the Angelus Pacis (‘Angel of Peace’ 1667), which the Bohemian Bishop Comenius submitted to the “English and Dutch Peace envoys” that were gathered in Breda, nor the Essay Towards the Present and Future Peace in Europe (1693), which was written by William Penn, himself a Quaker and the founder of Pennsylvania. In the eighteenth century, the secretary of the French envoy to the peace congress in Utrecht, the priest Castel de Saint Pierre, presented A lasting peace through the federation of Europe (I–II: 1713, III: 1717). The plan suggests a European federation that is voluntarily and unanimously entered and that is endowed with the authority to compel. Although Saint Pierre deems the federation to be an indispensable requirement of a (global-pragmatic) reason that inquires about the conditions for the self-preservation of a multitude of individual states, he is not at all concerned with a global perspective. Already a century earlier, Émeric Crucé described in his The new Cineas (1613) an international organisation of states that included non-Christian members. Yet, Saint Pierre is content with a peace alliance of the “twenty-four Christian states of Europe” and generously adds that the “Muslim Princes may also join”. Other parts of the world are not mentioned at all and may have been considered to be no more than potential colonies for Europe. However, Saint Pierre suggests at least restrictions for weapons, economic cooperation and reciprocal guarantees. His verbose, but not particularly original text (more positively: Asbach and Hüning 1998) attained prominence only later, through Rousseau’s enthusiastic excerpts. While Leibniz reviewed the work in a positive light (Observations on the Abbé’s Project for a Perpetual Peace 1756), Voltaire ridicules it as fanciful and illusory (De la paix perpétuelle 1769). In so doing he does not take issue with the vision of peace itself, but with the hope of implementing it through a political institution, an international federation. Yet, Voltaire’s alternative of a trust in progressive Enlightenment, is undoubtedly even ‘more illusory’. Growing tolerance and the pressure of public opinion may be indispensable preconditions for the willingness to establish international organisations, but they are no substitutes for them. Surprisingly, in his Social Contract, Rousseau makes no mention of Saint Pierre’s thoughts, although he backed them up at first. Beginning with the Second Discourse he is clearly aware of the horrors of the international state of war, such as violent battles between nations and gruesome prejudices (III 220); yet, in the Contract he

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ignores the subject completely. One of the reasons may be his rigorous concept of sovereignty in general and its indivisibility in particular (II 2). It is for this reason that Rousseau deems a supranational organisation, be it a world state or a league of nations, as utopian in the world of real states (because they do not surrender their sovereignty anyway), and as neither desirable nor necessary in the world of ideal states. The corresponding renunciation of sovereignty is not desirable because the respective volonté générale is interested only in its own community (Social Contract I 6). Moreover, the renunciation is superfluous, because ideal states already live in peace with each other for they are small, modest by principle, and purely defensive in nature. The era of the Enlightenment tended to view tolerance and free trade as conducive to peace. Rousseau, by contrast, anticipates trade wars. In anticipation of Fichte’s Geschlossener Handelstaat (‘Closed Trading State’ 1800), he supported economic autarky (Constitutional Project for Corsica 1765, not published until 1861 and hence unknown to Fichte). Rousseau was generally pessimistic about the prospects of a perpetual peace. Although he saw it as a responsibility of morality and politics, he did not believe that it could be accomplished, neither politically through the creation of suitable institutions, nor evolutionarily through historical progress (on Rousseau, see Asbach 1999). 8.3 KANT

Only two of the dominant thinkers of the West granted peace more than a merely peripheral importance: Augustine at the beginning of Christian theology, and Kant at the zenith of enlightened philosophy. Only Kant succeeded in merging the determining thought motives that had previously existed either side-by-side or in contradiction to each other. Kant combined the thinking on the state and the law that had developed since Antiquity, the largely apolitical cosmopolitanism of the Stoa and the international law of modernity, with the notion of a perpetual peace. That peace, however, was not limited to the kingdom-come alone; rather, its moral conception was realised in this life through the law. Kant’s main text, the treatise Perpetual Peace – A Philosophical Sketch (1795), was probably inspired by the Basle Peace Treaty signed at the time between France and Prussia. Of course, it was much more than a work of political opportunism. As a purely philosophical draft free of religious motives and political interests, it contains the outlines of a comprehensive philosophy of the state and the law and furnishes the principles to convert them into actual politics. Yet, Perpetual Peace is not the only work that is important for this subject; many of his other texts and passages are significiant also, such as his Idea for a Universal History from a Cosmopolitan Point of View (1784), On the Common Saying (1793, part III), Doctrine of Law (1797, §§ 53–62 and Conclusion) and The Conflict of the Faculties (1798, sec. 2). His Verkündigung eines Traktats zum ewigen Frieden in der Philosophie (1787) shows that Kant saw perpetual peace as a general objective that was to be pursued in theoretical philosophy as well; and he did so with a level of innovation that is astonishing for Western peace theory. Theoretical philosophy is the

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place where the war of the theories, the ‘battlefield metaphysics’ (Verkündigung des nahen Abschlusses eines ewigen Friedens in der Philosophie 1796) is to be overcome. So, where other philosophers in modernity remain silent, Kant sees peace as the fundamental motif not only of political thought, but of thought in general. For our purpose it suffices to concentrate on Perpetual Peace, a work that is, despite its brevity, remarkably rich in subject matter (Höffe 1995 and 2006, part III). We begin with a clarification of the term ‘perpetual’ in Kant’s title, which means sempiterna (forever) rather than aeterna (only in eternity). It refers neither to a world in the kingdom-come, nor to a retreat to inwardness, but to a quality of this life: that unconditional peace which owes itself to a categorical proscription of war as well as violence and force. Many of the peace plans that existed prior to Kant were heavily influenced by the notion of a (European) balance of power. The more ingenious among them, such as Sully’s Mémoires des Sages et Royales (1635), conceal their interest in hegemony under some ostensible responsibility for this balance of power. With his peace order as a legal system, Kant overcomes the notions of both hegemony and balance of power, and counters them with a moral precept for peace that is unconditionally valid: the categorical imperative for peace. (1) Those who outlaw war in principle are usually not content to simply reform it. Given that wars remain a feature of international relations, Kant, by contrast, asks how they can be changed in such a way that peace can remain the main objective. A transformation of war for the sake of peace – this thought too, had no predecessor: In order to bring about peace, the respective temporary stipulations (the ‘provisional articles’) list violations of the law that are to be outlawed, either immediately (‘strong prohibition laws’) or as soon as possible. This includes the precept of gradual disarmament, a prohibition of intervention, and a ban on all hostility that “renders impossible mutual trust in a future peace”. (2) The final regulations (the ‘definitive articles’) outline a complete legal–moral theory of public law: the law of the state deals with the relations of individuals and groups, international law with the relation between states, and world citizenship law with the relation of private individuals and groups to foreign states and that between states. According to the “positive idea”, and consistent with the model of a state-internal protection of peace, the global community of peace requires a world republic (Perpetual Peace VIII 357/328). However, Kant is happy with a league of nations as a “negative surrogate” and second-best solution, based on his partly ‘realistic’, partly legal–moral argument that by virtue of the fact that they “already have a rightful constitution internally”, states “have outgrown the constraint of others to bring them under a more extended law-governed constitution” (355/327; see 357/328). He sees a league as an association from which states can abrogate at any time, and that is formed with the aim of “maintaining themselves in peace, among themselves and collectively towards other states” (383/348). Kant’s league of nations is no federal state, but a federation that can be left at any time. (3) Public law attains its fulfilment in a global civic law that does not replace but complements ‘national’ civic law. In Kant’s complementary global civic law, the

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Stoic notion of the world citizen assumes a legal form for the second time. In contrast to philanthropy, the global civic law consists not in voluntary provisions, but in the imposed and subjective right to “offer oneself to others in exchange”. Hence, it is about a qualified right to cooperation: the trader may offer his goods, the researcher his knowledge, and the missionary may even offer his religion, without recourse to force or violence. Provided the offer is made on foreign territory, the killing, enslavement or predation of new arrivals is as much prohibited as the opposite case of the exploitation or enslavement of local subjects. As part of his notion of world citizenship, Kant sharply criticises the colonialism of that time, because “the inhabitants [counted] as nothing” (358/329). With regard to foreign states, the global civic law entails a right to be a visitor, not a right to be a guest. Whether it is about individuals, groups, corporations, people or states, or about economic, cultural or tourist interests: everyone may knock at someone else’s door, but has no right to enter. As in Bacon’s New Atlantis, a community may certainly combine its generosity towards strangers with a ban on immigration. It may also prohibit certain types of products and services, even commerce as a whole. From a legal–moral perspective, so Kant argues, the attempt to follow Fichte (Der geschlossene Handelsstaat 1800, I 7), Rousseau (Constitutional Project for Corsica), or later Friedrich List (The national system of political economy 1841, ch. 36) by demanding economic autarky is as legitimate as a system of customs and levies that protects the domestic economy against unpleasant competition. While there may be economic doubts that warn of long-term harm, there can be no reason to oppose such measures. Above all, legal morality is not paternalistic, for it allows giving away advantages and even inflicting damage on oneself. (4) In his first definitive article, Kant defends a dual politico-sociological thesis according to which the global alliance of peace is promoted negatively through the experience of the human misery brought about by war, and positively through a republican political order. A republic, which by and large corresponds to a constitutional democracy, is not, so Kant argues, comprised of citizens that are morally superior; rather, the republic releases the citizenry’s self-interest and is for that reason less inclined to wage aggressive wars (see also ch. 9.3). (5) The first supplement (‘On the Guarantee of Perpetual Peace’) outlines a social history of the human race that is determined solely by nature, in particular by the discord of people, but that is nonetheless characterised by peace as the final objective. One is reminded here of Heraclitus’ fragment, according to which war, understood in the wider sense as tension and conflict, is the father of all (Barnes 37). Unlike Heraclitus, however, Kant links discord only to the human being and sees it as the determining factor of cultural development: discord results in the settlement of even the “most inhospitable regions” (363/332); it contributes to culture (Faculty of Judgment § 83) and serves morality in so far as it promotes an altruism that benefits the respective community. Most importantly, the war compells people “to enter into more or less lawful relations” (Perpetual Peace VIII 363/333). Here, war turns out to be a cunning plot by nature, a means of bringing about its abolition. Nevertheless, no social entropy or death of world society is to be expected; for commercial

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competition and the variety of (and rivalry between) languages is preserved in a state-based legal order. To protect the peace, Kant’s work develops a total of four elements that build upon each other: over time, humans prefer peace in a negative sense because of the “hardships of war” (350/323) and in a positive sense due to their interest in commerce, “which cannot coexist with war and which sooner or later takes hold of every nation” (368/336). Where the constitution is a republican one, the inclination to peace can, thirdly, assert itself so that, fourthly, the republics unite in a league of nations as a “league that averts war” (357/328). Since the interest in commerce brings about prosperity, negative peace (the absence of war) begins to approximate positive peace, the well-being of people that is known from the Hebrew shalom, the Greek eirene, the Roman pax and the Old High German fride. (6) The second supplement is about the relation between philosophy and political power. The ‘confidential article on perpetual peace’ demands with fine irony nothing but to avoid any form of secrecy and to conduct instead a free and public discussion about “the general maxims of warfare and the establishment of peace”. Kant opposes the secret diplomacy prevalent at the time with a principle of publicity and demands that all constitutional and international legal maxims be checked for their internal sincerity. Legal morality prohibits anything that can prosper only in secrecy. At the same time, the Platonic notion of the Philosopher King is democratically re-interpreted. Kant favours a division of power between politics and philosophy; yet he does not appeal to any special responsibilities the latter may have, but only to the “free judgment of reason” that is accessible to all human beings (369/338). (7) Finally, the two-part supplement ‘Morality and Politics’ demonstrates that philosophers, who allegedly – and in agreement with Zenon (see ch. 8.1.1) – only dream a “sweet dream”, get by with statesmen who boast about their knowledge of the world (343/317). On the one hand, Kant rebuts the reproach that a perpetual peace is not feasible and insists that it is “no empty idea” (386). By virtue of their legal–moral character, on the other hand, the principles of philosophy command absolute precedence over other considerations. Yet, given that principles do not constitute political prescriptions, they require political prudence for their concrete realisation. This is the responsibility not of philosophers, but of politicians, advisers and lawyers. While his precursors tended to think only of Europe and its Christian states, Kant’s seven-part theory of peace commits itself to a peace that is universal in time and space and independent of religious affiliations. This true globality, in conjunction with the republic as the most significant political innovation of the time, produces a rather politically dangerous plan. The fact that this plan does not degenerate into a ‘Magic Flute of World Peace’ is owed to modesty in three ways. While in Plato’s simple polis (The Republic II 369b–372d) the people live in peace not only with their compatriots, but also with themselves and with the gods, possibly even with nature, and while Augustine is mostly concerned with cosmic peace and peace with God, Kant concentrates upon the social dimension and disregards all

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other aspects. Furthermore, he defines social peace in rather modest ways – as the cessation of violent force and protection of the law while remaining open for economic prosperity. The concept of the law brings to the limelight a third aspect that is conducive to implementation: an abandonment of the idyllic view that conflict is non-existent. Kant locates peace not within an eschatological hope, an earthly ‘Nowhere’ characterised by “sweetness and light”, but admits conflicts as a basic element of the political sphere. Even the “great artist nature” herself uses conflict to let “concord arise . . . even against their will” (Perpetual Peace VIII 360/330): it is for absolutely egoistic motives that human beings unite to establish individual states, which initially wage war against each other, but eventually live in peace, out of their interest in commerce and prosperity and, consequently, once more out of self interest. A potentially irritating element can be found outside Kant’s Perpetual Peace: the peace theorist Kant follows the tradition of Rousseau, the Encyclopedists (see the article ‘Guerre’), Adam Smith, as well as Latin (e.g. Tacitus, Germania, ch. 7; K. E. Müller 1997, 419) and Greek Antiquity (e.g. Aristotle, Politics VII 15, 1334a26) in regarding war as having a moral advantage also, namely an opportunity for the regeneration of morality. These scholars do not praise war itself, but the virtues that are called for while engaging in it. The praise of war is a by-product of the praise of bravery. Without legitimising war as result, Smith, for instance, sees in war the best opportunity to practise the “powerful discipline of self-control”. By contrast, the “gentle virtue of humanity” blossoms best in the mild sunshine of undisturbed tranquillity (Theory of Moral Sentiments 1759, part 3, ch. 3). Kant’s “respect for the warrior” is tied to a demand that is only indirectly hinted at in Smith: “that one additionally demands from him to uphold the virtues of peace, gentleness and compassion”. Only under the additional condition that war “be waged with order and respect for civil rights” does Kant see in it something “elated” (Critique of Judgment § 28). 8.4 AFTER KANT

At the eve of the nineteenth century, Kant’s Perpetual Peace triggers an intensive debate on the topic of peace in Germany, during which scholars such as Fichte, Schlegel, the young Görres and Gentz attempt to draw out new features on the topic (Dietze and Dietze 1989). Fichte (1795/1966, 221) emphasises more clearly than Kant that a league of nations can only be an intermediary stage (Mittelzustand) towards the ultimate goal of a world state. Schlegel (1796/1966, 13) considers Kant’s definitions of legal freedom and justice to be nothing more than a ‘minimum’ and contrasts it with an – admittedly infeasible – maximum that “puts an end to all authority and dependence”. Görres, in turn, provides a utilitarian variant by insisting that the purpose of peace is the happiness of peoples. This utilitarian turn could be traced back to Bentham, apart from Kant the only other significant philosopher in the Enlightenment to produce a theory of international law and universal peace. However, his text, A Plan for an Universal and Perpetual Peace (1786) is published, as Principles of International Law, not until the year 1843.

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Prior to Kant’s Perpetual Peace, but not before his treatise On the Common Saying, Herder composed his Letters for the advancement of humanity (1793–1797), which culminates in a great peace programme. After Herder reports in his 118th letter the astounding peace project pursued by a native Indian tribe in North America (On perpetual peace. A Mohawk institution), the 119th letter sets out his own peace programme. It is called ‘general fairness, humanity, active reason’ and consists of seven dispositions, including the rejection of war, the reduced respect for heroism, and the notion of fairness towards other nations. Other intellectuals at the time, such as Schelling and Wilhelm von Humboldt, are unperturbed by the notion of an international legal system and order of peace. Goethe too, does not take part in the peace debate, probably because for him the determining peace is not of a political nature. Instead, as outlined in his Wandrers Nachtlied, peace consists of either a Stoic–Epicurian state of spiritual and mental withdrawal from the sphere of the passions or, as outlined in his Novella, in an eschatological reconciliation of the entire Creation: “may lions become sheep . . . shining sword congeal in the stroke”. In Hegel we find an appreciation of war that goes even beyond the thoughts of Adam Smith and Kant. From his early work The scientific ways of treating natural law (part II 2) until his Elements of the Philosophy of Right (§ 324, note VII) he considers war to be “necessary for the moral health of peoples”. Just as “the gusts of wind protect the sea from the rottenness it would have to endure in conditions of permanent calmness”, peoples would experience the same during perpetual peace. The indirect hint of a “praise of war” is only slightly weakened in paragraph 338 of his Philosophy of Right. Furthermore, paragraphs 334–335 allow for the legitimation of any type of war, an observation that will later be taken up by such dubious writings as Lasson’s Das Culturideal und der Krieg (‘The Cultural Idea and War’ 1868). The notion of a global peace order soon loses its prominence, initially because of Hegel’s contempt, but later also because philosophy loses the theory of the state and the law as its discursive link. Only scholars of international law such as Georg Jellinek (1914, 378) continue to refer to the concept. It is also Jellinek who specifies that international law may, in a material sense, extend beyond the individual state, but that “procedurally, it remains subject to the will of the individual states”. For they alone have to recognise the laws in the first place. As long as this is the case and no hegemonic power rules, so Jellinek continues, the community of states is “purely anarchic in nature” and international law is therefore “to be understood as a law of anarchy” (ibid). Even the two world wars do not provoke any response with regard to a global order of peace, with the exception of Karl Vorländer’s edition of Kant’s Perpetual Peace (1914, see also Kayser 1916), some contributions to that edition (Klemme 1992) as well as some occasional philosophical writings, such as those of Ebbinghaus (1929 and 1957) and Kelsen (1944 and 1944a). Two other authors have a greater significance (on a third author, Carl Schmitt, see ch. 10.1): at the outset of the First World War in Vienna, Gomperz gives ‘Eight Public Lectures’ on The Philosophy of War (1915). Although the title page cites Luther in saying that the “the office of

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war . . . is in itself heavenly and as necessary for the world as food and water”, Gomperz offers a more rounded assessment of the topic. In using his immense knowledge in the history of ideas, he deals not only with “the blessing of war”, but also with such topics as “war and peace”, “war and morality” and “war and law”. According to the last lecture, entitled ‘world citizenship and war’, human beings have a dual obligation. As state citizens they must advance the victory of their own country, whereas as world citizens they must promote the good (245–252). In his writings on war produced in 1915 and 1916, Max Scheler is initially convinced of the necessity for war, because “it is grounded in the conflict of power and will between the collective entities that we call states” (1915a, 10; 1916a). Yet, in the lectures he gave in 1927 on ‘The idea of perpetual peace and pacifism’ (Über die Idee des ewigen Friedens und den Pazifismus 1931, 19) he denies the view that war is an intrinsic element of human nature. Akin to Kant, he now sees perpetual peace as being of unconditionally positive value, as an ideal ‘ought’ that can be implemented in the history of humanity by virtue of three changes in the human desire for power: the rule of individuals is more and more transformed to a rule over material things; the biological and spiritual techniques of Asia will be comparable to Europe’s production technology; finally, the desire for power will become increasingly spiritual in nature, because the right of might will become the might of the law, and the authoritarian state will evolve into a Welfare state (1931, 25–27). Sigmund Freud, by contrast, will remain loyal to the notion of an inherent and non-eradicable human desire for aggression and destruction (Civilization and its Discontents 1953, 123). These few examples should not distract us from the fact that the legal–philosophical output in the twentieth century is not concerned with the issue of global peace. If at all, they are only concerned with international law, such as Radbruch’s Rechtshilosophie (1932, § 28) and Kelsen’s Pure Theory of Law (2003, ch. VII). Even writers with utilitarian credentials such as Hart (The Concept of Law 1961, ch. X) do not advance the peace theory that had initially been formulated by Jeremy Bentham, the founder of utilitarianism. Surprisingly, the same deficit is found in a theory that explicitly claims to release utopian energies: whether we read Bloch, Marcuse, Horkheimer, Adorno, or even Habermas’ theory of law (1996; differently only 1995) – in the century marked by two world wars and countless regional conflicts, Critical Theory is silent on the subject of a global peace. Certainly, in a prominent place, in the Minima Moralia, Adorno mentions in the last sentences of the second part (section 100), that “none of the abstract concepts is closer to the full utopia than that of perpetual peace”. However, the elucidation turns out to be entirely apolitical: “to lie on the water and gaze peacefully at the sky, to be, nothing more, without further destiny or fulfilment”. As the deficit also applies to Rawls’ Theory of Justice (1971), even to his ‘sequel’ Political Liberalism (1993), Hegel’s saying that the Owl of Minerva spreads its wings only with twilight falling is confirmed in a trivial sense: as far as philosophy

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is concerned with justice and the law at all, it tends to discuss topics – such as democracy, human rights and welfare – that are already accepted. Only very recently has it faced up to the urgent, real-life responsibility of a global order based on peace and the rule of law – more than three generations after the First World War and nearly two generations after World War Two.

CHAPTER 9

A WORLD ORDER WITHOUT A WORLD STATE?

The three stages of political justice appear to be universally valid. Whether as individuals, groups, institutions or individual states: wherever human beings encounter each other, violent force and arbitrariness are to be replaced by rules (‘the universal precept of the rule of law’); responsibility for rules is to be transferred to public powers; and these powers are to be constituted as a qualified democracy (‘universal precept of democracy’). The individual state already assumes this threefold responsibility for individuals, groups and institutions. Yet, because the state exists in plural and is eroded from outside (see ch. 6.2), an extrapolation is required. A democratically constituted world order, a global democracy or world republic, is needed as a supplement, or possibly substitute, for individual democracies. Although an extrapolation seems compelling from a legal–ethical point of view, it represents so radical a break with political reality that a plethora of doubts and objections of both a pragmatic and fundamental nature arise. Legitimation must carefully analyse these protestations. If the sceptical arguments cannot be refuted, the concepts of the law and the state are, at least at the global level, to be regarded as outdated, as a ‘conceptual iron cage’ from which a political theory in an era of globalisation needs to escape. We will address a total of six sceptical objections. According to the first objection, a world order can be realised without a world state. The alternative appears in three variants, which correspond to three divergent schools of thought in international relations. However, they have precursors in classical philosophy and, in the case of the second direction, are supported by developments in international law. These are: a strategic world order (ch. 9.1), governance without government or the state (ch. 9.2), and a democratisation of the world of states (ch. 9.3). The first case is concerned with the international relations of states, the second case with international institutions, and the third case with social forces and types of government. 9.1 A STRATEGIC WORLD ORDER

Political neo-realilsm is the main advocate of a strategic world order. Developed predominantly in the United States of America in the post-war period, it owes its existence to an analysis of the crisis of the 1920s (Carr 1946) as well as to the situation after the war (Morgenthau 1948; later Waltz 1979). One of the older sources is Niebuhr’s theological sketch on ethics and politics entitled Moral Man and Immoral Society ([1932], 1947). During the Kissinger years it becomes the dominant doctrine in American foreign policy (Kissinger 1994). 187

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Strictly speaking there are three overlapping views or directions that need to be distinguished. While critics discredit power politics in the national interest as mean and, possibly, even cynical, it is for purely moral reasons that normative realism wants to keep morality separate from foreign affairs: were foreign policy allowed to be influenced by morality, including prescriptions regarding human rights, states’ willingness to compromise would be diminished, their rivalry would be even more tenacious, and the most important (moral) responsibility of foreign policy, the protection of the peace, would be undermined. Explanatory realism holds that states are predominantly concerned with their own security and that the values they are said to uphold are irrelevant when explaining their external behaviour. A discussion about a global legal order is vitally determined by the third view, a variant of explanatory realism that is sceptical towards international organisations and tends therefore to be referred to as state-centric realism. It postulates that the international organisations that were founded in the post-war period, such as the United Nations, the OEEC (later OECD) or NATO, are nothing more than tools in the diplomatic machinery employed by individual states and that they have no real political power. Neither the erosion of states from outside, nor the need for global action, nor the rapid increase in international rules and organisations can correct its fundamental premise that on the international stage only states matter, and that they fight each other for power and resources (on Huntington’s variant, see ch. 1.3). (State-centric) realism is based on four basic assumptions. Firstly, the relevant actors in international politics are neither individuals, groups, social forces or systems such as the economy, nor international institutions, but exclusively the traditional political unit: the states. The determining feature for international politics is, secondly, not the internal constitution of states, but foreign affairs’ traditional feature: state sovereignty. As sovereignty is defined in a traditional way as well, as an absence of superior power, the world is, thirdly, characterised by conditions of anarchy in a state of nature. Since anarchy produces insecurity, states are, fourthly, eager to gain as much power as possible to ensure their survival. Now, what some may win in the struggle for power is ipso facto a loss of power for all others for according to Max Weber’s (1976, 53) famous definition, power is a relational phenomenon: “that opportunity existing within a social relationship which permits one to carry out one’s own will even against resistance”. If opportunities increase for one, they decrease for the others for that very reason; and they do so in reverse proportion to it. Expressed in terms of game theory, it is a zero-sum game: what is won by some is lost by others. State-centric realism sees the world of states as a ‘system’ of self-help between sovereign states – possibly comprising allied states also – that are governed by strategic thinking: in the end, the only thing that matters are power shifts immanent to the system, so that the ideals of justice and the rule of law have no more than an instrumental role to play. An appeal to human rights is made if and when advantages are to be gained; where this is not so, their claims are pushed aside. A global order that allows human rights to be acknowledged impartially and worldwide is not desired and, consequently, not achievable by peaceful means.

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Clearly, this type of realism is inspired by Hobbes’ Leviathan, but only by the work’s first part, the state of nature, not by its overcoming through the institution of the state. Hobbes’ famous saying that ‘man is wolf to man’ (homo homini lupus) is not to mean that our species is aggressive and malicious. Individuals as well as neighbouring states with those characteristics do indeed exist, and although they remain the exception, one should be prepared to deal with them. However, much more dangerous is the structural problem known from the third implementation deficit (see ch. 4.1). As far as the subjects are concerned, the problem is a competition of fear; as far as the result in terms of self-defence is concerned, it is a security dilemma. Realism maintains that this problem recurs in the interstate rivalry for power. In a situation of rivalry the weaker is in danger of falling prey to the mightier, which is why even those who have no intention whatsoever to attack find themselves in an objective position of having to seek ever-more power. Given that there exists no public legal order, one cannot be certain that others have given up aggression and one is, thus, quite rightly distrustful. This lack of trust creates a situation where even defensive precautions undertaken by one’s adversary are interpreted as offensive preparations to attack, which creates an arms race that, in turn, increases the propensity to, and danger of, war. The international struggle for power is characterised by the maxim si vis pacem, para bellum: if you wish for peace, prepare for war, for no one provokes, nor dares to offend, those who they know to be superior in battle. Hence, seeking power and procuring armaments is a result not of stupidity or overanxiousness, but of the quite reasonable concern of otherwise losing out and being vulnerable to extortion. However, the desire for peace alone does not bring about the excessive arms race the world experienced during the Cold War. This follows because, in a variation on Hegel’s famous chapter ‘Lordship and Bondage’ in his Phenomenology of Spirit, even the latent struggle of life and death implicit in the arms race ends as soon as one of the opposing sides deems survival to be the highest good and, consequently, yields and submits to the other. However, if such behaviour, in Hegel’s words the ‘attitude of bondage’, is rejected and if the will for peace is combined with a will for self-assertion, then the first strategic response to the security dilemma cannot be avoided: deterrence. Deterrence consists of the ability to convince any potential attacker that one’s own military might is so great that the retaliatory destruction will be so great that they had better avoid attacking in the first place. Modern nuclear weapons worsen the situation to such an extent that it actually improves: the means of destruction are so massive that even a surprise attack must reckon with a counter-attack of such magnitude that the weapons must not be used in the first place. In this sense, nuclear weapons include an inherent ‘compulsion to coexist’, but only as long as the ability remains to retaliate and strike a second blow. Consequently, there is a solution to this security dilemma, one that Hobbes had overlooked: a peace order already extent in the state of nature. Within a purely pre-legal framework, without either agreements or alliances for peace, only a negative peace in the form of avoiding a nuclear war can exist. However, such a peace exists not because war itself is rejected, but out of an enlightened

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self-interest: everyone knows that even an aggressor who struck by surprise would in return suffer too much damage. Yet, even for the modest purpose of securing only negative peace, deterrence remains a precarious device. It depends on the contingent circumstances of a balance of power and the mutual capacity to retaliate with a second blow. Moreover, peace remains restricted to a regional level. Rather than being effective globally, peace is denied to all those states that are incapable of deterrence on their own or as part of a military alliance. Even this contingent and regionally restricted peace comes at a high price, in that, in order to uphold an effective deterrence, one is forced to constantly adapt to the technical progress of the adversary’s weaponry. For what is desired is not peace itself; it is but the fortunate consequence of the rather happenchance ability of both sides to strike a second blow. There is also the additional danger that one side might wage an aggressive conventional war, one which the other side is incapable of parrying with conventional weapons and unwilling to repulse with nuclear weapons, a scenario that is even more likely were a military ally to intervene. Such a ‘calculated violation of the peace’ is a danger in the nuclear age too, particularly since a potential nuclear war puts military alliances under heavy strain. Thirdly, when it comes to self-interest, one must heavily rely on the fact that it is ‘enlightened’ selfinterest. However, individuals in charge are always human beings who are, at least in principle, not immune to the irrationality of passion. At any rate, a widespread and excessive arms race can create a climate of hysteria that might be too immature for ‘enlightenment’. Controlled disarmament is one way out of this dilemma. However, given the agreements that are required for it, the austere pre-legal sphere must be left behind so as to enter the sphere of the law. At first as a supplement to deterrence, but later as its alternative, the potential for conflict is gradually defused and common interests and responsibilities are developed. This second response to the security dilemma, the security partnership, may also arise out of a purely strategic calculation, namely the assessment that, due to the magnitude of the weapons of mass destruction available, a war is no longer beneficial; that an arms race is an unnecessary drain on personnel and financial resources; that despite all strategic calculations a war may still break out; and that a calculated violation of the peace may be miscalculated so that a conventional war could turn into a nuclear one. We are familiar with the (relative) balance of power required for mutual deterrence not only from the era of the Cold War between the West and the East (from 1949 to 1989). A balance of power was already the basis of the ‘Concert of Europe’, that ‘system’ of five major states, the pentarchy of France, Great Britain, AustriaHungary, Prussia and Russia, which was temporarily disturbed by Napoleon’s plans for supremacy, but which was subsequently renewed at the Congress of Vienna in 1815. Plans drawn up by the British statesman William Pitt the Younger (War Speeches) even foresaw a system organised as a universal and coercible system of public law, a notion that functioned as ‘thematically’ restricted crisis management at best, for example, at the Congo conference in 1884/85. Given that in the early twentieth century the ‘system’ degenerated more and more into a confrontation between

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the powers, Kant turns out to have been a shrewd observer: “for, an enduring universal peace by means of the so-called balance of power in Europe is a mere fantasy, like Swift’s house that the builder had constructed in such perfect accord with all the laws of equilibrium that it collapsed as soon as a sparrow alighted upon it” (On the Common Saying, VIII 312/309). Only the third strategic answer to the security dilemma, hegemony, overcomes this fragile balance. According to Kant this is why everybody must have the desire “to attain a lasting condition of peace in this way, by ruling the whole world where possible” (Perpetual Peace, 1st sup., VI 367/336). Faced with the security dilemma, every state has a ‘natural’ interest in striving for hegemony. Hegemony as a political concept makes a contention about the nature of power relations and bargaining power. It is based above all on a military, economic, and at times even cultural superiority that allows a single state, or a combination of several states, to shape the international world of states in accordance with the strength of that hegemony. A conception of the law, which would comprise mutually agreed upon prerogatives and privileges, is non-existent. Clearly, the exercise of hegemony may serve certain conditions of legal reason, so that an overpowering state may slip into the role of a ‘part-time Leviathan’ and provide legal security by virtue of its greater power. Some even believe that a legal security that is constituted in hegemonic terms is less dangerous, institutionally simpler and cheaper than that of a world state. Hegemonic relationships have been known since Antiquity. In the Concert of the Greek city states, for example, it was Athens, Sparta Thebes, and later, Macedonia, that assumed the leading roles. The Roman Empire, by contrast, was focused on submission, while the medieval Emperors rarely achieved hegemonic power. Not until the emergence of the European state system was the notion revived again: Spain (between 1519 and 1648) was the first state to exercise hegemonic rule, later it was France (1648 to 1715) and, from the eighteenth century until 1914, it was Britain in the form of a naval supremacy. Since the end of the Cold War, however, the only remaining world power has been the USA, which has been consequently awarded an undisputed hegemony. Yet, this status of supremacy will not remain forever: of the four factors that constitute the basis of that supremacy – global military capabilities, economic might, competitive advantage in key technologies, and the attraction of North American youth culture (Brzezinski 1997) – the second and third may dissolve and the other two could lose their importance. Hence, the future could bring a new balance of power, or a general qualification in strategic thinking. Hegemony contributes to political order in so far as it stabilises an existing world of states. Provided they represent satellites of a hegemon, small and medium states can therefore be protected against infringement by rival states. However, this supremacy may also be abused in the form of suppression or exploitation. Even if hegemony does not degenerate into despotism, the danger of partiality remains acute: why should an indisputably supreme power bow to the law, or even apply it sine ira et studio? At any rate, hegemony lacks the basic condition of justice and law: free mutual consent, agreement. It is therefore not surprising that in political reality

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the USA, as the only contemporary ‘superpower’, is only in rare constellations able to secure a worldwide allegiance of followers. It assumes the role of ‘world leader’ only temporarily and for very specific tasks; the political arena tends instead to be characterised by a balance of power. Seen normatively, a hegemonic world order remains at the discretion of a superior power and, consequently, a private, rather than public, authority. It is a special case of individual justice. A balance of power, by contrast, represents progress in that it eliminates individual force in favour of a negative common characteristic: a complicated and multilateral deterrence. However, that elimination lacks stability, for both the coming about of balance as well as its continuity depend on an accidental political constellation. Moreover, the balance of power tends to apply only to the relation between the stronger states (‘powers’) or groups of states (‘power blocks’), while weaker states are subjected to the goodwill (and often strategic imperatives) of the mightier ones. We can now draw a preliminary conclusion: peace is possible in a world of states that is governed by nothing but strategic rationality. Yet, since it is only power that matters, peace is accomplished only by counter-power and, consequently, by deterrence, a balance of power or by hegemony. None of these scenarios creates a stable situation: both the power and the counter-power, and consequently peace itself, are fragile. Of course, fragility invalidates neither political realism, nor realist strategic thinking. On the contrary, it may even justify the self-given name, confirming its closeness to reality and help achieve its final aim of providing international politics with a scientific foundation. Even if ethics is not primarily concerned with matching reality, a reality-check can nevertheless prove useful. A preliminary methodological remark is in order here: a social–scientific theory certainly has the right to initially develop an elementary model. The deliberate simplifications built into such models are often criticized on the grounds that they are abstractions or idealisations that describe a wished-for ideal rather than the far more complicated reality. Yet, the paragons of scientific theory, the models used in the natural sciences, are particularly successful in employing idealisations, provided one is willing and the simplifications notwithstanding, to engage in the details of the subject matter. It is true in this sense that the physical theory of an ideal gas describes the mutual dependence of pressure p, volume v and temperature T only incompletely; even so, it does so to a large extent correctly. The equation of the state for an ideal gas – p v = R T, whereby R is the constant of gas – only ignores the fact that, in contrast to ideal gases, real gases can be brought into states – below a critical temperature or during liquefaction – in which they lose the properties they otherwise possess. The economic concept of the homo œconomicus, the completely rational person, is another example: it describes economic activity in a market that is absolutely free, but it does so correctly only for that type of market. Even in this modest sense, realism in political science turns out to be non-realistic. In its explanatory variant, which includes the state-centric version, it pursues a fourfold objective: it wants to select the relevant facts in international politics (selection), elucidate the past (explanation), make careful statements about the future

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(prediction) and facilitate policy recommendations (prescription). Since the last three purposes depend on the accuracy of the first, political realism is only realistic if it actually succeeds in selecting those facts that are decisive in international politics. If political realism were to be believed, sovereign states would have to be the (almost) exclusive determining actors on the global stage. They would also need to have a relatively clear definition of ‘national interest’ that would allow for the formulation of a peace policy largely independent of domestic politics in general and forms of government in particular. All three points are theoretical presuppositions for the first objective and reflect political reality at best very narrowly. The second presupposition is contradicted by the danger that national interests be reduced to narrowly strategic questions, which may even result in political misjudgements such as the Vietnam War (MacNamara 1995). The third presupposition is at loggerheads with the – admittedly contestable – thesis that democracies are peaceful (see ch. 9.3). The first presupposition, the state-centric conception of world affairs, is the one most removed from reality. Modern states, with their power eroded from outside, are interwoven with each other in various ways. Moreover, the world-political stage is increasingly characterised by international organisations, a great many of which operate independently of governments. Further, there is also international law and a plethora of multilateral contracts and agreements, some of which are valid (almost) worldwide, as well as other global obligations, all of which represent a long-term limitation on the capacity of states to act; they are not, as realism assumes, mere crystallisations of a given power distribution that easily changes once shifts in that power distribution occur. The United Nations’ Declaration of Human Rights and its various appendices in particular are virtually irrevocable and lend more than merely instrumental importance to international law. Taken together, realism’s presuppositions deviate so much from reality that it is difficult appreciating it as a theory that is sufficiently true to reality, one that is ‘realistic’. 9.2 GOVERNANCE WITHOUT A STATE

There are, then, two lines of argument that speak against realism: its remoteness from reality and its normative weakness that accepts only the first half of Hobbes’ work on international affairs, namely his theorem of an (international) state of nature, but rejects the other half, his theorem of abandoning it by establishing a state and the law. A second school of thought in political science takes issue with this remoteness from reality and hopes to be more truthful by granting a considerably lower importance to traditional political units, the states, but granting a greater, if not decisive, importance to new political actors. Referred to as ‘new institutionalism’, this theory places trust in international organisations and rules (Keohane 1989; March and Olsen 1989; Rittberger 1993; Hasencelver et al. 1996; critically also Grieco 1990; Link 1998). Methodologically, this alternative to realism owes its existence to a careful extrapolation of current developments. Considerable weight in international relations is

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given to non-state actors, their effectiveness is analysed, and an even more effective and denser net of international organisations and rules is advocated as a means to achieve a stable world order (on the theory of international organisations, see Giesen 1992; Groom and Light 1994; Jacobson 1984; Nardin et al. 1992; Rittberger et al. 2006). As regards content, the institutionalist alternative consists of a middle-way between an international state of nature and abandoning it and creating a world state. Since rules are established and followed, coexistence is quick to assume the character of law. Also, since responsibility for the rules is not given to any one of the parties involved, but to a third party that is in principle impartial, this coexistence even assumes a state-like character. However, the law-like character is only partially developed, and the state-like character only in a very weak form, a constellation we are already familiar with from antique organisations like the cult of Delphi. New institutionalism is certainly justified as a counterpoint to realism, for it recognises the recent powerful reality of non-state actors. Further legal developments could be cited in its favour: a highly specified and globalised substantive law has emerged in sports law, trade law and labour law, all of which are established neither by states nor the United Nations. However, when legal sociologists refer to this phenomenon as private sets of rules (‘systems of regulation’: Teubner 1998, 241; Teubner 1997), they still think in the classical legal dichotomy of ‘private vs. public’ law. As these sets of rules tend to be backed and maintained by international organisations, such as the International Labour Organisation or international sports federations, it actually represents a contribution to the middle or third way of the new institutionalism. However, its claim to better approximate reality than political realism is at odds with the considerable importance that individual states continue to command even after their power has been eroded. In spite of conceiving itself as an empirical science, new institutionalism follows the principle of hope: not really freed from wishful thinking, it tends to overestimate the influence of rules and international organisations. An integral theory that includes both components of political reality, individual states as well as international organisations, is still pending. New institutionalism raises four objections in particular against a world state (for example, Rittberger et al. 2006, 213): firstly, it supposes that a world state is to be founded through a single ceremonial act, and regards this assumption to be unrealistic: it is to be neither expected today nor anticipated in the future that all states voluntarily agree to such a process. Secondly, so the argument continues, it is difficult to justify the military force that would be required to sanction ‘recalcitrant’ states, on account of the immense potential for violence, damages and casualties that its usage would entail. Thirdly, given experiences in the era since World War Two, with its numerous wars between and within states, it is to be doubted that a world state will ever bring lasting peace to the world. Finally, there are not even rough plans that lay down how a functioning world state could be established. The uncoerced formation of a world state cannot be expected; a coerced formation is not normatively justifiable; even if established, the world state would not be sufficiently efficient; and, finally, we are nowhere close to knowing how such a state would look or how it would function.

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Quite clearly, these objections stab each other in the back. As soon as the fourth objection would be met and a functioning world state is developed, the third objection would be ipso facto weakened for a world state could be said to be functioning only when it succeeds in pacifying at least the world of states. An effective global peace order is one of the indispensable minimum responsibilities of a world state worthy to be acknowledged as such. The second objection, in turn, is refuted by the observation that the tremendous number of victims and harm that previous wars have caused is the very reason why a functioning world state is required in the first place. Its creation, however, must not necessarily occur in a single and universal foundational act, nor must it be done in haste. As is usually the case with the institutionalist paradigm, the international organisation, the process begins with a core group that, if successful, develops centripetal forces and brings about a gradual enlargement. The contention that the demand for a world state is unrealistic can be countered by referring to the great moralist Jean-Jacques Rousseau: “What difference do humanity’s mistakes make to truth, or its barbarity to justice? Let us not seek what was, but what is to be done”. An uncompromising ought such as justice – provided the world state has this rank – is indeed not clouded by a ‘bad reality’. On the contrary, reality must justify itself before the ought, not the ought before reality. However, the sober moralist Kant would ask whether the precept of creating a world republic might not be a chimera, a figment of our imagination (see ch. 16). In any case, a good argument speaks in favour of a political science based on experience: if a world state is “hopelessly utopian” at the present point in time, one should look for an alternative that is closer to reality. That alternative may even have the rank of a necessary intermediate stage on the way to the final destination. International organisations are undoubtedly not only closer to reality, but they are already real. However, they cannot indiscriminately be regarded as ideals. Some of them, such as the International Olympic Committee, are clearly autocratic organisations that merge the three classical powers of legislature, executive and judiciary into a single entity: its oligarchic ruling elite is recruited in a coopted procedure certainly worthy of criticism; and their work takes place excluding the general public, with a degree of secrecy that even corporate enterprises no longer dare exhibit (Rittberger et al. 2006). Some authors see in the middle way between a strategic and a state-based world order, some ‘governance without government’ or ‘governance without a state’ (Rosenau 1992, 5 and Rittberger et al. 2006, 209–215). The name is reminiscent of the social model of those acephalous family communities that live without a sovereign but know how to organise themselves notwithstanding. Yet, there are still rules, customs and taboos, the acknowledgement of which is not subject to personal discretion, so that the largely non-personal rule is, at least in legal–ethical terms, a functional equivalent to a state. International organisations and regimes regulate inter-state relations in a similar way, without a central authority. A global legislature that would define and enact the rules is missing, as well as a global executive that would implement and enforce them through a global police force, and a global judiciary that would authoritatively settle disputes. Still, even here the differences with

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statehood must not be exaggerated: unlike pure anarchy in the state of nature, there exist rules as well as a common third party, and thus the rudiments of public powers. International institutions do not yet amount to a minimal global state, but certainly to an ultra-minimal global state: a global order with rudimentary attempts at statehood. Political realism sees international organisations as nothing more than an arena for the struggles over power, influence and resources. The new institutionalism, by contrast, with its greater proximity to reality, sees them also as a forum for inter-state politics: they can set the agenda and may induce other states to participate in negotiations even against their wishes. In happier cases still, they anticipate a world republic and assume the role of an impartial arbiter: states make use of them when they deem the ‘costs’ too high of solving conflicts either militarily or through other efforts of their own. A similar assessment applies to those international organisations that function as a place of supranational coordination and that assist member states in articulating and executing (up to a certain degree) their national interests. However, these legal–moral achievements have a serious weakness. As a rule, international organisations dispose but marginally of the most important characteristic of public powers: impartiality. Never insensitive to a given power constellation, they succeed in overcoming the strategic world order only to a limited degree: when the more powerful states are unable to use international organisations as instruments of their own interests, they tend to avoid them and operate directly. Smaller states, on the other hand, can use their cumulative majority and form an alliance against the major powers when they act unlawfully. The assessment is more upbeat with regard to trust, which has, in the unstable world of international politics, an important role to play. Generally pessimistic towards foreign states, political realism tends to find grounds for mistrust everywhere, and promotes it for that very reason. New institutionalism quite rightly states that collaboration within international organisations offers the opportunity for counter-measures insofar as successful cooperation builds trust. Moreover, the basic willingness to do so is rational. The reiterated prisoner’s dilemma demonstrates that willingness to cooperate will pay off, so that all sides have an interest in being willing to establish peace and the rule of law by means of a policy of small, but reliable steps, and testing them when disagreements arise. International organisations make an important contribution to this process: their experience with confidence-building measures enhances mutual trust. A similar assessment applies to international law. As a juridical system that is only modestly developed in conceptual and dogmatic terms, international law aims to protect trust: expectations towards a legal partner resulting from one’s own behaviour are protected (Müller 1971). Such ‘legitimate expectations’ are created through cooperation in international organisations: controversial questions on the authority of international law are increasingly addressed, independent views and legal claims are more frequently presented, and the legal interpretation and assertiveness of others is opposed. In so doing, the reference point for the protection of trust, a logical behaviour pattern, attains a qualified meaning. The peace-supporting and

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law-promoting impact of international organisations is disparaged, of course, when their impartiality is noticeably violated; partiality fosters mistrust. International institutions do not only foster a mutual stabilisation of behavioural expectations, they achieve two further tasks: they reduce asymmetries of information and decrease transaction costs. Last but not least, a collective subject emerges: the rules, to which states submit, constitute a rudimentary legislature, just as a common ‘office’ or ‘secretariat’ constitutes a rudimentary executive branch – particularly when the cost-intensiveness of the programme results in a transfer of considerable responsibility to that office. Where the cooperative and collective character is strongly developed, individual states surrender – until revoked – parts of their sovereignty and elevate the international organisation to an intermediate stage of a global legal order. Hence, the supposed ‘governance without a state’ comes about ‘not entirely without the state’. Inside international institutions, world society and the world of states leave international anarchy behind and involve themselves in a first stage towards a world state. Speaking of a first stage implies that a second stage might also be required. This is suggested by the impartiality deficit we mentioned earlier: rules tend to be bent in one’s favour, sometimes they are even broken, or the membership fee (the counterpart of the tax burden) is not paid. More importantly, international organisations stand accused of a lack of effectiveness. Clearly, they help negatively by diffusing military conflicts and overcoming obstacles of cooperation, and positively by creating, condensing and maintaining cooperation between states. However, those achievements should not distract us from recognising their obvious limits: neither the United Nations nor other international organisations have been able to protect that elementary responsibility for the law and for justice which even new institutionalism deems indispensable: maintaining peace between all states. When peace prevails nonetheless, for example during the Cold War era between the East and West, it occurs in too modest a form, merely preventing a third world war. Even that is a result of other factors that are not institutional but strategic in nature: mutual deterrence, a balance of power, and certain hegemonic constellations. Finally, many international organisations lack democratic control. It is also for this reason – so as to not sacrifice the achievement of political modernity, qualified democracy, on the altar of globalisation – that a global political order is required that extends beyond international organisations. 9.3 DEMOCRATISATION OF THE WORLD OF STATES

Despite the differences between political realism and new institutionalism, their similarities should not be overlooked: both ignore the issue of forms of government, in particular the contrast between democratic and authoritarian or totalitarian states. The dogma of a politics of peace indifferent to forms of government is rebutted by the third variant of a world order without a world state: the thesis of democratic pacifism. Inspired by Kant’s thesis that republics are peaceful (Perpetual Peace, 1st definitive article), it stipulates a convergence between forms of government (i.e. domestic

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politics) and foreign policy. Given that republics are equated with democracies, a global peace is expected once all states have been democratised (Singer and Small 1972; Doyle 1983, more carefully 1995; for an overview, see Maôz and Russett 1993; Brown, Lynn-Jones and Miller 1996; also important much earlier: Schumpeter 1919). In so far as states remain recognised as the decisive actors, the third variant represents a continuation of political realism. Of course, once Kant’s additional thesis – that republics or democracies unite to form a peace alliance – is accepted new institutionalism is not far away. 9.3.1 Pro Arguments Aristotle saw the peacefulness of states converge with their internal constitutions. Yet, he reversed the line of argument that will prevail later on: that the need to defeat foreign states tends to produce tyranny at home (Politics VII 14, 1333b29). Hence, a policy of conquest undermines a just constitution aimed at the welfare of its citizens. Moreover, it endangers the preservation of one’s community, because those who are in the habit of waging war lose their ability to live in peace. According to Aristotle, then, a democratic constitution inflicts harm on itself if it pursues an imperialistic foreign policy. Four reasons for democratic peacefulness are available: economic liberalism claims that democracies themselves are not peaceful, but that they have ‘something better’ in mind: they prefer to engage in business and trade because it creates jobs and prosperity, both of which are destroyed during war. Political liberalism holds that democracy is peaceful because it transfers its domestic method of conflict resolution to foreign affairs: the internal ‘mechanism’ of conflict resolution without violent force, so the claim goes, is ‘externalised’. While it is true that a third argument denies the existence of authentic peacefulness, the complex decision-making procedures in democracies are said to make them insufficiently competent for war: they have trouble deciding to go to war in the first place or concentrating all their forces on war if one is started. Out of fear of losing a war they thus prefer not to get involved in the first place. Finally, a fourth (and so far barely developed) argument states that democracies are peaceful because their citizens are: the internal integrity of democratic citizens, their democratic integrity, does not allow them to wage war for reasons other than self-defence. The first argument – commerce instead of war – is based on enlightened self-interest. Yet, that interest is not peaceful in principle: given suitable adjacent considerations – such as military supremacy, a surprise attack, or the potential for economic profit from the exploitation of natural resources – a war may actually be a worthwhile endeavour. On the other hand, commerce has the potential for peace whether or not democracy is the form of government: in a globalised economy, modern states can fulfil their shared responsibility for welfare only in the realm of the world economy, in the form of cooperation and competition. The degree of success in the global market determines the degree of prosperity and substantive welfare. Hence, it is advisable for reasons of competition alone not to curtail one’s economic power through excessive military expenditures. Moreover, economic success brings about political power, which further strengthens one’s willingness to keep the peace.

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The second argument performs an extrapolation. On account of their political liberalism, democracies are accustomed to tolerate the ‘Other’ internally and to settle conflict, should it ever erupt, in accordance with the law and, consequently, peacefully. However, the social-psychological expectation that a practice pursued internally will also be practiced externally is invalidated somewhat by experience: history, the social sciences, as well as everyday experience reveal that the external behaviour of a group can significantly deviate from its internal behaviour. Furthermore, internal peacefulness and outside hostility may even be mutually dependent. The third argument asserts that democracies are never able to wage wars with the same doggedness and concentration of forces that dictatorships can command. However, the civil armies in post-revolutionary France turned out to be superior in both numbers of soldiers and motivation: they had the larger and more dangerous armies in the field. In the later stages of World War Two, both Great Britain and the United States reached at least the same degree of economic mobilisation as Nazi Germany. Finally, the fourth argument presupposes a democratic citizenry that would reject violence that was not for self-defence, by virtue of its developed sense of justice and the law. Morally, such a citizenry is certainly desirable (see chs. 7.2–7.3); in real democracies, however, it is rarely found to a reliable degree. In Plato’s Republic (II 369–372), though admittedly only at the first stage of the polis, the citizens lack pleonexia, the urge to want ever more from life, which is why they are immediately peaceful. Kant does not assume that democracies dispose of such a genuine peacefulness – neither their citizens nor their political parties and institutions. Nor does he appeal to democratic integrity. Instead, he is content with the ability of democracies to allow citizens to develop their self-interest. Whereas in non-democracies, those people decide on the question of war that least suffer from it, the requirement of a democracy to “let the citizens of the state determine” (Perpetual Peace, 1st definitive article) means that the future casualties of a war decide upon it. According to his Doctrine of Right (§ 55), general approval is not sufficient. Instead, every declaration of war is a matter for parliament. With the knowledge that the citizenry would have to risk their lives, carry the financial burden, and endure the destruction of their cities and possessions, parliament will vote against the war. Kant’s complicated line of argument links the normative principle of self-interest with the constitutional–juridical requirement that self-interest is also in a position to assert itself, through the consent of the citizens and the empirical knowledge that a war means nothing but harm to them. Further, Kant tacitly supposes that citizens’ self-interest is not distorted, for example, by powerful interest groups or the media. Finally, his fifth preliminary article hints at another condition, the requirement of a basic level of trust on the international level. 9.3.2 Contra Arguments Unlike Kant, pure democracy is today held to be peaceful. If dictatorships and totalitarian regimes were transformed into liberal democracies, something that is necessary from a legal and state-ethical point of view, wars would cease to exist. Yet, there are

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three lines of argument that speak against this thesis of ‘global peace through global democratisation’: experience, statistics, and the non-applicability of important prerequisites. History is first to remind us to be sceptical. The young French Republic spread war throughout Europe and pursued hegemonic, if not imperialistic interests. Even the United States of America, according to Schumpeter the democracy with the weakest imperialistic trend (1951, 94), expanded towards the West with minimal regard for the native population. Furthermore, it annexed Texas and, after a war with Mexico, incorporated Nevada, Utah, California and New Mexico. Nor did the development of a democratic form of government hinder Great Britain in pursuing its own plans for world domination. An assessment of even earlier periods, the Middle Ages and Antiquity, raises doubts as well. Clearly, England was about to recognise rights to freedom and the separation of powers as early as the thirteenth century; however, it subjugated both Wales and (temporarily) Scotland; and with its claim to the French crown it also attempted to expand its rule to the European mainland. Finally, the ancient model of democracy, Athens, waged wars on numerous fronts (Bachteler 1997): it coerced Sparta’s ally Agina to join the naval alliance of Attica; it suppressed its members – which by the year 425 comprised more than 400 city states – to become its subjects; it punished members that left the alliance, such as the islands of Lesbos; and, as the leading power of that alliance, it waged war against Sparta, not in order to overthrow Sparta’s oligarchy, but for reasons of power politics only. Hence, it is not without reason that Thucydides (The History of the Peloponnesian War V, 85–113) blames theses excesses not on a government that was too far removed from its people, but on the democratic masses. These counter-examples do not, in fact, meet our modern demands, for the nations concerned are neither liberal nor qualified democracies. Still, the recent modesty that attributes peacefulness only to liberal democracies is not sufficient to weaken the counter-argument: the consent of the citizenry, which is so decisive an element for Kant and modern democratic theory, was most probably a given. Even if there was no explicit parliamentary decision, the wars enjoyed such wide popular support that even democracies with greater democratic credentials would have agreed to wage them (a fact that is overlooked by Czempiel 1995). Even if slavery would have been abolished and equal treatment been introduced, the assumption that Athens or the early USA would have displayed a fundamental willingness to establish peace, is difficult to uphold. One may at most assert, or maybe only hope, that a mature democracy used to critical thinking would acknowledge the dubious moral justification of the respective wars. History is unable to weaken either the normative principle of self-interest or the assumption that this interest will assert itself by means of democratic consent. Yet, it teaches us that war does not contradict citizens’ self-interest and that this contradiction is not always sufficiently evident. Another thesis, which is inspired by Montesquieu, appears therefore more accurate: a democracy may have an inclination towards peace, but the counter-inclination of the ‘conquering democracy’ exists as well. The democratic imperialism that conflicts with democratic pacifism owes its

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existence to several factors: the quest for glory, the search for trade and employment, the striving for hegemony, and last but not least, a sense of mission to convert other peoples into democracies. At times, the second or third reasons impose themselves in the name of the fourth: democracy is preached, but economic or political interests are the real motivation. Kant’s assumption of a natural interest in hegemony (see ch. 9.2) indicates a general argument in favour of imperialism. Strangely, though, Kant fails to contemplate whether this may weaken the peacefulness of republics. The Count Alexis de Tocqueville, according to Dilthey (1958) “the greatest analyst of the political world since Aristotle and Machiavelli” recognises Kant’s thesis but not its reasoning. As a member of the aristocracy, he knows that his peers do indeed get involved in war voluntarily. In circles where training with weapons is customary, one’s self-interest does not speak against war. In order to explain democracies’ inclination towards peace, Tocqueville therefore furnishes another explanation, one that is both economic and socio-psychological in character, and adds a pinch of brotherliness: “the ever increasing numbers of men of property who are lovers of peace, the growth of personal wealth which war so rapidly consumes, the mildness of manners, the gentleness of heart, those tendencies of compassion which are produced by the equality of conditions, that coolness of understanding which renders men comparatively insensible to the violent and poetical excitement of arms, all these causes concur to quench the military spirit” (Democracy in America, vol. II, ch. III 22). What is more, the growth of industry and commerce means that their interests are so mixed and entangled with one another, so Tocqueville continues, “that no nation can inflict evils on other nations without those evils falling back upon itself” (ch. III 26). Tocqueville modifies the thesis of democratic pacifism in a further sense: should countries, despite their interwoven interests in commerce, ever wage war, the fields of battle are bound to expand, because “it is almost impossible that any two of them should go to war without embroiling the rest”. Unlike aristocracies, democratic nations “are desirous of enrolling the whole male population in the ranks of the army”. The consequence is that “in democratic ages armies seem to grow larger in proportion as the love of war declines”. Further, democracies are far from ineffective in warfare, for they “easily bring their whole disposable force into the field”. As Montesquieu had already observed, when a nation is wealthy and populous “it soon becomes victorious”. Last but not least, Tocqueville attributes the inclination to peace not only to the “permanent cause” of a people’s democratic character, but he points out several other accidental factors of great weight: “and I may mention, before all the rest, the extreme lassitude that the wars of the Revolution and the Empire have left behind them”. Strangely enough, all the ambitious spirits of a democratic army are ardently desirous of war, “because war makes vacancies and warrants the violation of that law of seniority which is the sole privilege natural to democracy” (ch. III 22). As to one of Tocqueville’s arguments, that of economic interdependence, history advises us once more to be cautious. Despite the fact that between the years 1900 and 1914 economic indicators pointed to peace – Germany’s trade with Great Britain

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rose by 100 percent, that with Russia by 121 percent, and that with France by 137 percent (Mitchell 1992, 593) – and although the world best-seller of the time, Norman Angell’s The Great Illusion (1910), declares war as harmful once and for all, World War One happened anyway. Even today’s degree of global economic interdependence does not warrant the forecast of a great era of peace, particularly as global commerce before World War One was more or less at the same level as today (see ch. 1.1.4). It does not follow from the economic futility of wars that we will no longer have to endure them. Subjective historical knowledge is confirmed by scientific research (Wright 1971). Clearly, a precise assessment depends on how war is actually defined: that is does it include even the smallest type of armed dispute? Or does it depend on the scale of the conflict, expressed in terms of a threshold of casualties? Does the war of secession between the Union and the Confederate States of America (1861–1865) not count because the Union considered itself to be a democracy, and regarded the war as a civil war? Or is the occupation of the Ruhr valley in 1923 not to be labelled an inter-democratic war, given the fact that it was a military action sanctioned by two democracies, France and Belgium, against the democratic Weimar Republic? In any case, in the long run democracies turn out to be no less prone to war than non-democracies. In fact, the statistics since 1945 put Great Britain, France and the United States at the top of the list (Gantzel 1995; for the period between 1816 and 1980, the ranking lists France, England, Russia and Turkey, followed by Italy and China: Singer and Small 1982, 294). In order to exonerate these embarrassing findings, the Kantian thesis has to be considerably weakened so as to say that democracies would not be peaceful per se, but only in relation to their democratic peers. Even for this weaker claim – allegedly a law in political science, but in reality at best an empirical finding – numerous counter-examples can be furnished: in the aftermath of the French Revolution, the (relatively) democratic Great Britain provided financial support to not so democratic Prussia, against democratic France. Incidentally, Kant was so infuriated about it that he forever turned his back on Great Britain, the country he had admired for so long (Refl. 8077: XIX 665). Further, between 1812 and 1814 the (relatively) democratic Great Britain waged war against the (relatively) democratic USA, which, in turn, waged war in order to prevent the secession of the Southern states. The rivalry between Germany and Britain in the nineteenth century too, is not the result of their different forms of government, but of a rivalry of interests indifferent to democracy. In 1914, France and Great Britain did not enter into an alliance with Russia because they considered the Czar’s Empire to be more democratic than the German Empire. In Antiquity, democratic Athens did not only wage war against those democracies that broke away from the naval alliance of Attica, but also sent a fleet against democratic Syracuse: interest in naval supremacy over the Mediterranean Sea outweighed any opposing willingness to establish peace. The arms race between two relatively democratic states, India and Pakistan, raises similar concerns. Even the peacefulness between democracies that we observe since 1945 is not necessarily a product of their democratic constitution. According to the alternative explanation, alliances arise from a convergence of

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military and economic interests for which democratic government is of secondary importance at most (Layne 1994). A no less serious objection is offered by a second line of reasoning, which begins with an argument from small numbers: it acknowledges the “statistical peacefulness” among liberal democracies themselves, but doubts the meaningfulness of such statistics. If the democracies that are in their formative stages and not yet sufficiently liberal are disregarded, and if the emphasis is placed upon the period between 1945 and 1990, then the group of democracies under consideration encompasses not more than two dozen members. Furthermore, only a small portion has democratic neighbours, although neighbours are the usual opponents in a war. Hence, democracies have considerably fewer opportunities to wage war against other democracies than against non-democracies. For the 156 states that existed in 1980, so Spiro’s (1994) calculation reveals, there were a total of 11,310 opportunities for war between two non-democracies, but only 780 such opportunities, 7 percent, between two democracies. Finally, there are two rather trite reasons: akin to what Tocqueville diagnosed for his own time, nations were simply too exhausted after World War Two; and Western democracies were united because of the menace of the Soviet Union. According to a third line of argument, Kant’s thesis is either not persuasive or its prerequisites are not fulfilled: firstly, a war does not have to be waged along state borders, which means that citizens experience much less hardship, particularly if the war is directed against a much weaker enemy. Secondly, a war distracts from other domestic problems. There are also mass psychoses, possibly induced by the media. Fourthly, war can be economically beneficial. Of course, recent experience teaches us that the attacker rarely ever wins and that even in the case of a victory, a net loss must be endured. Yet, one can make one’s allies reimburse, even over-reimburse those costs; and the intangible increase in prestige and power must also not be forgotten. Fifthly and most importantly, one state can benefit from a war between two other states. The fact that even the oldest democracies are engaged in a burgeoning arms trade and intervene only when the arms are directed against the ‘wrong’ people, or that a certain Middle Eastern power expresses outrage at the (unlawful) supply of arms, but then delivers weapons itself into war zones – all this would have made Kant sceptical as to democracies’ inclination to peace. Finally, there is another cause independent of democracy: the development of weapons. Reversing the thesis that democracies do not go to war against each other, one would certainly expect war between democracies and non-democracies. The fact that the Great War between the (predominantly) democratic states of NATO and the authoritarian states of the Warsaw Pact did not occur follows, assuming a degree of selfinterest, from the disastrous consequences that would result from a retaliatory blow (see ch. 9.2): in a nuclear war there are only losers. To the extent that inter-democratic peacefulness can indeed be confirmed, an explanation is still required as to why the security dilemma is overcome. To do so, Risse-Kappen (1994) has presented a ‘theory of perception’: democracies perceive other democracies as equals and extrapolate their external conflict behaviour from their internal behaviour. Democracies interpret each other as non-menacing.

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By contrast, they perceive authoritarian states as menacing, which is why they have few inhibitions to become aggressive towards them if required. The willingness of democracies to establish peace goes hand-in-hand with a willingness to be aggressive towards non-democracies. 9.3.3 Summary Neither experience with democracies nor the arguments furnished so far allow us to expect global peace by global democratisation alone. However, if, following Kant’s criterion of the ‘consent of the citizenry’, an explicit approval based on internal conviction is required (see Grimm, Deutsches Wörterbuch I 1398); if the prerequisites for that approval, such as the general public control of foreign policy, are fulfilled; if precautions are introduced to prevent vested interests and the media from distorting politics (by way of free and public elections, competition for political office, freedom of the press, an unchecked opposition, an ‘emancipated press’. . .); and if the economic benefits of arms trade are forgone (which, however, requires a legal–moral disposition) – if all these conditions are met then the probability of an inter-democratic peace rises considerably. Yet, even modern democracies satisfy these conditions only to a limited degree. Chances increase if those responsible for foreign policy – ministers, the general public and the electorate – show a capacity for strategic thinking. Yet another opportunity for such an increase is the inner integrity of democratic citizens. Civic virtues such as a sense for the rule of law and a sense of justice, promote peacefulness (see chs. 7.2 and 7.3). The chances for peace grow, again, when globalisation brings about interdependence between national economies, science, technology and culture. However, even with a considerable democratic willingness to establish peace, there are three further arguments in support of a world republic with international organisations as an interim solution: firstly, the need for global action does not only apply to the protection of peace. The huge number of international organisations required for it raises the question as to who should settle potential disputes between them, and do so in accordance with the law rather than a given power constellation. Secondly, a democratic willingness to peace does is not a reliable protection of the peace. On the contrary, the convergence thesis calls for the institutionalisation of the global political order based on the rule of law: a focus on the internal peacefulness of democracies should not distract from the fact that this peacefulness comes about by virtue of the law. If a corresponding peacefulness is to be ascertained in external behaviour, then this sphere too, will have to be ruled by the law and public powers, that is, by a global state. Thirdly, the willingness to establish peace may decrease with an increase in the number of democracies. Today democracies are already marked by a potential for conflict over issues such as trade and the environment. Warships were sent by the democracies of Spain and Canada in their conflict over fishing rights and quotas. Similar to how the former colonial powers had difficulties in recognising even those colonies ‘as their equals’ who had managed to establish a democratic order, there is danger that, in a world full of democracies, not all would regard the others ‘as their

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equals’. When all are the same, the sense of belonging to a ‘we’ seeks a new criterion through which to define that ‘we’. In cases of serious economic and social problems, the potential for inter-democratic conflict is bound to expand even further. At this stage at the latest, the otherwise valid legal–moral principle is required, which is indispensable for a global political order based on the rule of law: that states too, have a claim to conflict regulation that is determined by law, not by power. 9.4 FIRST CONSTRUCTIVE VETOES

The three previous attempts to argue for a world order without a world state give rise to reservations, but not to objections that are sufficiently forceful to deal a deathblow to the notion of a world republic. At any rate, no normative counter-argument is to be expected from an empirically oriented political science. Applying the concepts of the law and the state on a global level does not imply that one is irrevocably tied to the empirical framework handed down from the past. Nevertheless, for a conception of the world republic that is sufficiently close to reality, three considerations do amount to a veto that may not be absolute, but is certainly relative and constructive in nature: Instead of dissolving individual states, one is best advised to follow realism and recognise their continued importance, although in contrast to realism, that significance is considerably weakened. The world state is not to be established as a homogeneous entity, as a unitary central state, but as an alliance of states that has itself the character of a state and, thus, that of a federal state. The first constructive veto is directed against a global unitary state and, in accordance with the principle of federalism, demands a multi-levelled world state, a federal world state. A world republic becomes a multinational federal state, provided that, analogous to the terms ‘international law’ and ‘national sovereignty’, ‘nations’ are not understood as gentes, as groups of identical origin, but as civitates, as citizenries of individual states. The special status granted to states is justified for at least three different methodological reasons: in international relations, states are de facto important. They are still the internationally decisive actors, in spite of the erosion of power inflicted upon them by globalisation. Furthermore, they have special weight in positive international law. The majority of international organisations are established, maintained and financed by states. International law is itself an extension of agreements between states: while it was for a long time no more than international customary law, the explicit legal institutionalisation by the community of states has now grown considerably. Only the third aspect has legal–moral precedence: the states that commit themselves to human rights and national sovereignty have a legal–moral legitimacy that most others lack – not only multinational or transnational corporations, but also non-governmental organisations. The second constructive veto opposes attempts to establish a federal world republic in an aggressive surprise coup. The present world society behaves like a ship that is being altered not in the safety of a dock, but in high seas. Hence, the transformations require maximum care and circumspection. The reorganisation of

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world society must not threaten already existing advantages – that a great many lands are already, fortunately, ruled peacefully and democratically – nor must the ship be put at risk of sinking. Hence, the burden of proof remains with those demanding alterations. Only that is to be changed which clearly improves upon an already given situation. It is also recommended we proceed one step at a time, so that experience can be gathered, institutions can compete with one another, and corrections be made when required. New institutionalism is to be followed, transitional phases are to be seen through, and international organisations and regulations are to be allowed as a necessary preliminary step – provided they fulfil the minimum conditions of democracy. They retain their rights even after a world republic is established. The multi-levelled world order, which is already required by the above constructive veto, calls now for a further level: the world order consists of (1) individual states, and (2) international organisations that still resemble a rag rug, but may soon structure themselves into a (thematic) polytheism. The highest level consists of a world republic, but one that is at first conceived in modest terms as (3a) a global alliance of states (a confederation) and only later develops into (3b) a federal world state (a federation). As to the allocation of duties within this multi-levelled world order, the third constructive veto recommends the principle of subsidiarity: after their democratisation in particular, individual states remain responsible for the tasks that they are able to handle themselves. A world state remains a subsidiary and federal world republic, for it is responsible in only those areas where individual democracies do not succeed alone. These three vetoes have different normative implications. The principles of federalism and subsidiarity are not valid for pragmatic reasons alone, as a way of accommodating a recalcitrant reality, which weakens the normative claim to the establishment of a world republic. On the contrary, they oppose a legitimatory fallacy that concludes that what is to be established is a global homogeneity of states, and they specify the normative ideal. However, that concretisation has the welcome side effect that the normative ideal of a subsidiary and federal world republic is shown to be a feasible and implementable ideal as well. In so far as they fulfil the precept of the state, qualified democracies have a dual right: a right to resistance according to the principle of federalism, and a right to self-responsibility according to the principle of subsidiarity. Individual democracies have to embrace a world republic only when their capacity to protect justice and the law fails them. The third principle, the transitional phase, makes the world republic a ‘permissive law’: the establishment of the world republic may be postponed, but it must be recognised nonetheless as the final destination towards which one’s continued efforts are directed. In order to achieve this, one could follow the sequence of models we gave in the previous chapter but would go only so far as model 5 (ch. 8.1.2). The beginning of this development will probably be marked by the ratification of treaties on trade and military protection, agreements on disarmament, a ban on atomic, biological and chemical weapons, the outlawing of land mines, and much later a general ban on war. Apart from such ‘negative’ agreements there will also be

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‘positive’ ones, in particular declarations on human rights. These are supplemented by further alliances of either supra-regional or worldwide scale and bring about common rules, an organisation and, consequently, stability. No courts of arbitration would be foreseen at the outset, but would be established later and then converted to regular courts. However, by virtue of the precepts of the law and the state, all these stages, even an ultra-minimal global state, a world federation, are only a transitional phase towards the real task, the world republic. For a law without powers to execute the law is nothing but a word. Humanity follows the modest, law-defining conception of justice only when it refuses act at its own discretion and gives up violent force, outlaws war as means of conflict resolution, and hands over legal disputes to an impartial third party, to public powers with global jurisdiction. Humanity cultivates the more demanding, law-standardising meaning of justice if it commits the public powers – a global legislature, a global executive and a global judiciary – to human rights and national sovereignty, and if it expands the (legally and morally required) world state into a constitutional democracy, a world republic.

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10.1 A WORLD REPUBLIC RESPECTFUL OF DIFFERENCES

A multi-levelled world republic meets opposition in two ways. We are familiar with the basic idea from our examination of history and the first and sixth models as identified earlier (ch. 8.1.2): for state-theoretical communitarianism, so the fourth objection stipulates, any world statehood goes too far; while, according to the fifth objection, state-theoretical globalism deems a multi-levelled world statehood to not be far-reaching enough. These mutually disparate objections can now be rebutted by applying a political variant of Ockham’s razor, that two-stage principle of parsimony, which arises from the principle of subsidiarity: According to the first stage of political parsimony, no political unit should exist unless it is indispensabe to the final purpose of all political elements: the natural subjects. Communitarianism is rebutted by this criterion because a world state is indispensable to achieve comprehensive and universal protection of the law. According to the second stage of political parsimony, new political units receive no more responsibilities than are needed by the natural subjects, provided they are needed at all. The homogeneous world state advocated by globalists absorbs all individual states, which is the very reason why it contradicts the second stage: it demands too much statehood. Let us begin with the first stage, too little statehood. Communitarianism represents an expansive school of thought encompassing viewpoints that belong partly to moral philosophy and the theory of modernity, partly to social philosophy and political science, but also to social policy (see Forst 2002; Höffe 1996, ch. 7; Honneth 1993). They share the conviction that individuals need affiliations and deep relations, that people therefore depend on communities, and that they, in turn, live in accordance with shared values and, thus, with a particularised, rather than a universal morality. Constituents of the extended family with state-theoretical credentials, such as MacIntyre (1984) and Walzer (1983a, 105), see the individual state as the highest social unit where shared values are still upheld and where, consequently, moral and political concepts have sense and meaning. They therefore vehemently oppose its dissolution. In order to give morality a chance even in an age of globalisation, so they argue, the integrity of existing communities is to be protected in general, and that of the political community, the individual state, in particular. State-theoretical communitarianism advocates “good fences” (Walzer 1983, 319) and, thus, partitioning and ‘national’ segmentation. According to the fourth objection raised by communitarians, the world state stands accused of strengthening the forces of standardisation that already proliferate through globalisation, whereas what is really 209

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called for are counter-forces and a strengthening of specific features and idiosyncrasies, so that the social and cultural wealth of humanity, and above all the identity of individuals attached to that wealth, are preserved. State-theoretical communitarianism could appeal to further arguments still, for example to the danger that a world state may not provide a real solution for existing conflicts, such as territorial disputes and claims to self-determination, but merely transforms them from inter-state to state-internal conflicts. Where the conflicts are pursued by force, peace will not be fostered; instead, the character of the war merely changes to that of a civil war. A further danger thereby arises: an important sociopsychological inhibition – state borders – vanishes, so that it becomes much easier to resort to violent means of resolving conflicts. An increased threat of conflict can also be noted: the multi-dimensional pluralism of humanity, the abundance of languages, cultures and religions, and ethnic and regional interests, has remained thus far distributed among different states and is therefore easy to control. In the case of a world state, however, the responsibility for that pluralism is transferred to a single community; this increases the potential for conflict in the world state while posing excessive demands on its capacity to resolve those conflicts. Further, the human right to emigrate from an individual state, which has been in force since the Enlightenment, is no longer applicable in a global state (see Boxill 1987). Normally, where this right is denied, one can at least try to flee. But in a world state both the right to emigrate and the possibility of escape are without object. These objections certainly have some merit, but neither individually nor in combination do they constitute a serious counter-argument. The fourth constructive veto that is called for here agrees with communitarianism, but only up to one third of it: it is true that a state lives in accordance with shared values and that the dissolution of states threatens the diversity of human ways of life in the short term, and considerably weakens it in the medium term. What is more, the identity of all those individuals is endangered for whom the affiliation to ‘their’ state is something they treasure. Further, one of the most important sources of the human willingness to help, solidarity, may not be in danger of drying up, but is certainly weakened. Provided they submit to the conditions of a qualified democracy to begin with, states have above all the right to be different (see ch. 4.4). They are morally entitled to have their own history and tradition, their own language and culture, as well as a common conception of the good – although not of the comprehensive good, of course, but merely of the good community. States not only promote differences in ways of life, but they also strengthen concrete political responsibilities and, by virtue of their relative proximity to the citizenry, they secure the reality of democratic legitimation. Finally, the variety of states allows for the development of different political alternatives. In this way too, the states’ right to be different serves the ultimate basis of state legitimation: the freedom of the individual. Still, according to the second third of the constructive veto, states are neither selfsufficient communities that exist independently of each other, nor are they an end in themselves that would merit their uncompromised protection. Communitarians tend to grant too high an ontological status to states and consider them as ends in themselves.

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On the one hand, real life is characterised by the interconnectedness of communities, of which states are one example. On the other hand, only statehood, understood as the embodiment of public powers that serve justice and the law, deserves uncompromising protection. Concrete states, however, are political entities that may be dissolved by the citizenry, formed anew, or transferred into smaller or bigger units – provided the citizens have good grounds and decide to do so. The final third, the universal precept of the rule of law and the state, demands a global political and legal order. However, on account of the right to be different and the partial acknowledgement of communitarian interests, that order is to be established not as an alternative, but as a supplement to individual states. The constructive veto against the fourth, communitarian objection confirms the subsidiary and federal world republic. The world state is no homogeneous unit that embraces decentralisation for pragmatic reasons only. The ‘heroic concept of the world state’, according to which the entire global society is controlled hierarchically from one centre, is rejected. In accordance with the right to individual statehood, the various parts of the world republic do not merely constitute provinces that are awarded their right to self-government from above, but they are states with a genuine right to selfdetermination. While they unite for those tasks that they cannot accomplish on their own, they retain their responsibility for all other tasks. As a result of this strong autonomy, individual states can preserve their own values and ways of life, the identity of individuals can preserve a state-related component, the barriers of state borders do not vanish (but admittedly become weaker), and the responsibility for the pluralism of humanity is not transferred to one single community (and given the fact that the Westphalian peace created a similar situation for the relation between the German Empire and its sovereign constituent states, Schmidt (1999, 454) speaks quite rightly of a “complementary imperial state” and regards it as a historical alternative to the “nation state based on power”). The communitarian objection against the world state may even be qualified using communitarianism itself, for the question as to which community is determinant can only be answered in the plural, not in the singular. There are good reasons why human beings tend to belong to many communities at the same time – not only in their possibly different self-stylisation, but in their real-world pursuits of life. These may include such important communities as families, town districts, cities or states; ethnic, religious and linguistic communities, as well as affiliations based on occupation, university, orchestra, sports or other civic interests. Given that what matters to communities are preferences as well as ways of life, all these communities represent legitimate candidates for human affiliation. At the same time, the rights of the candidate communities are qualified: none of them deserves the rank of the exclusively important, all determining community. This qualification is not limited to only those candidates that have so far been mentioned. Rather, the list can be extended towards the top so as to include: regions as large as Europe; the community of humankind as a whole; the community not only of humans, but of all subjects with a legal capacity; or, finally, the community of all beings with the capacity to suffer, even if they have no legal capacity.

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Communitarianism would object to such an extension on the grounds that it requires something that does not actually exist: a sense of justice and the rule of law that is shared by all, which in the case of a world republic amounts to a sense of global justice. That this communality is indeed absent in the Western world can be illustrated by two examples: in criminal law by the differences in the type of evidence that is allowed before the court, and in civil law by the amounts of compensation awarded, which in the USA can be up to a hundred or thousand times higher than in Europe. Even greater differences manifest themselves in the attitudes towards capital punishment, corporal punishments in some Islamic states, or in the treatment of dissidents in China, Cuba and North Korea. Yet, there also exists a rich set of common characteristics: clearly, communitarians generally tend to regard as utopian the universalistic notion of a community of humankind that transcends state borders. In real life, however, the rudiments of similarities have existed for a long time, and they have been considerably strengthened in the era of a multi-dimensional globalisation. By no means are these limited to the sphere of law and justice: even if science and philosophy blossom in some cultures more than in others, they owe their existence to the general human capacity to reason and to speak, as well as the general human thirst for knowledge. A similar assessment applies to the economy, to trade, technology and medicine. Even the superlative of justice, the meritorious morality of compassion and charity, spreads well beyond the Judeo-Christian cultural sphere (for ancient Egypt, see Höffe 1998a, nos. 4 and 5, for China no. 31). It is by virtue of this additional similarity that a total of three moral resources are available for the third dimension of the world society, the community of pain and grief: justice, solidarity and charity (see ch. 15, esp. 15.5). Of course, the common characteristics must not distract from the dissimilarities: they become apparent, as shown above, in the precise definitions of what the concepts of justice and the law should entail. Above all, there is insufficient willingness to institutionalise the similarities in an impartial and effective way. The interim balance is therefore simple, almost banal: the development of a sense of global justice and the law still needs time, but the existing similarities are sufficiently strong to enable the implementation of global courts of law, such as the International Court of Justice, the International Tribunal for the Law of the Sea, the International War Crimes Tribunal, and the International Criminal Court. Important elements that are interculturally valid are, for example, the Golden Rule; the precept of equality (‘like cases are to be treated alike’); the precept of impartiality; procedural rules (‘no man is to be judge in his own cause’, ‘the other side is to be heard as well’, and ‘the presumption of innocence’); and the acknowledgement of legally protected rights related to one’s body and life, property, and good name (‘honour’). Moreover, the United Nations Declaration on Human Rights extends the common characteristics even further, and therefore rebuts the thesis forwarded by MacIntyre (1988, ch. 20) that conceptions of justice are dependent on culture, language and other particularist criteria. Walzer (1996, 12), by contrast, is circumspect enough to have recently qualified his criticism of a universal justification of morality,

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by recognising not only a ‘thick and particularist’ morality, but also one that is ‘universal and thin’. State-theoretical communitarianism fares just as poorly when scrutinised against the structure and shape of human affiliations, which clearly do not respect state boundaries. They often are the most important features that nourish the identities of individuals, the ultimate authority as concerns a state’s legitimacy. The situation is characterised once more by plurality, not exclusivity. ‘Affiliations across borders’ are established, for example, by religion, language, occupation, demanding hobbies (music, theatre, arts, sports. . .) and those socio-political interests that are represented by organisations like Amnesty International, Doctors without Borders, or Greenpeace. Similarly significant are Diasporas such as those of the Irish, the Jews and the Kurds (according to Kotkin 1993, there are even “tribes of power”: cosmopolitan groups that create a feeling of belonging, superiority and ‘being chosen’, including a gift and talent for supranational adaptation). All these cross-state affiliations qualify the individual state’s ability to itself create a sense of affiliation. They gradually embrace a world community (which is admittedly ‘segmented’ and therefore still vague) and strengthen the demand that the world community be ordered as other communities are – as a state and according to the rule of law. A variant of the communitarian criticism of the world state has already been put forward by Carl Schmitt. He too, considers states to be communities whose members share values, goods, ways of life and living spaces with each other. Of special importance to him is an element that is equally treasured by communitarians like MacIntyre (1984): defending common characteristics against external enemies, if necessary at the risk of one’s own life. Carl Schmitt sees in the resulting concept of the ‘political’ an argument against any type of world statehood. He intensifies Max Scheler’s “conflict of the will of states” (see ch. 8.4) into a “differentiation of friend and foe” (1931/1932, 26) and deduces from it a necessary “pluralism of the world of states”. Schmitt does not deny the global trends of standardisation, which he believes can be explained on economic and technological grounds. Yet, he distinguishes these types of unity from the ‘political’ unity that is defined by the differentiation between friend and foe. A world state is impossible, so he continues, because political unity presupposes the possibility of a real enemy and, thus, of another political unit. Hence, for a state to exist at all on earth, there must always be more than one, and the political world is always a “pluriverse, not a universe” (54). Carl Schmitt is not wrong in assuming that individual states obtain parts of their identity by demarcating themselves from the outside and through their willingness to defend themselves against enemies. What is more, states can be said to constitute communities in another sense, namely in that they defend their goods, values, living spaces and ways of life against attackers at the risk of their own existence, if so required. Inasmuch as it is a state without a foreign policy, a world state differs indeed from the type of state that has prevailed throughout most of history. However, the reason for all this is not the nature of the state itself, which can be defined with Aristotle as a community of the good and the just (Politics I 2, 1253a37–39), or with Kant as the embodiment of public powers that serve the law. The real reason is the

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historical fact that states have always had neighbours, and by virtue of the absence of an international law that had an authority to compel, these neighbours represented a danger. By contrast, a world state that overcomes the international state of nature by means of public powers is left not only with state-specific, but also with fundamental legal–moral responsibilities: It is incumbent upon every state to defend and protect the rights of its citizens, so they no longer have to do it individually. The same happens at the level of the world state. No matter whether individuals, groups or individual states – they all have, firstly, rights to their goods, values, living spaces and ways of life and, secondly, the right that these common rights be protected without having to fall back to individual justice. The state takes over this protection and thereby ensures that common rights are no longer defended by private, but by public powers; thus, the friend–foe relationship gives way to a legal relationship. Clearly, it may still be argued that responsible beings of sound mind could exist beyond our planet, so that ‘our world state’ might then stand in a friend–foe relationship to their states. Yet, such an interplanetary or even interstellar relationship would have, once again, the character of a state of nature. It would have to be overcome by a public state of law that would, in turn, assume the character of a state. In that case, however, it would be not only ‘our’ terrestrial world state but a comprehensive and real ‘interplanetary world state’ or even an ‘interstellar world state’. Once again, public powers would replace individual justice. Carl Schmitt’s objection to a world state could have merit only in a very weakened form, according to which it is important for many people that they be able to demarcate themselves from an ‘outside’. However, this need for demarcation – if it exists at all – does not contradict the idea of a world state, but speaks in favour of that strong internal differentiation which belongs to the core subsidiary and federal world republic. It unites relatively weak similarities at the global level with clear differences at the regional and local level. 10.2 GLOBALITY INSTEAD OF GLOBALISM

Representatives of the position opposed to communitarianism – globalists such as Beitz (1979), Nielsen (1988) and Horn (1996) – assume quite rightly a global state of nature, which is also to be abandoned globally. In fact, according to the universal precept of the rule of law, a globality that is universal in a spatial as well as a temporal dimension is already a given. However, state-theoretical globalism makes the further demand that the universal precept of the rule of law is to be realised directly ‘in one go’. This additional demand, a world state instead of all individual states, represents the fourth objection. It amounts to a ‘simplistic’ or ‘undifferentiated cosmopolitanism’, the homogeneous world state that was indicated by the Stoic Zenon. The globalisation of the precept of the rule of law is supported by the analogy of the state and the individual, an analogy that has been known to political philosophy from time immemorial. Suffice to mention two examples: in Plato’s Republic

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(II 368d-e, IV 434d) it is a central construct (on its interpretation, see Höffe 1997b). According to Augustine, there are two ways of life available to individuals as well as states: the first one is modest, but also satisfied and respectable in nature; in short: it guarantees happiness. The second one is rich, but also acquisitive in nature: it threatens happiness (City of God IV 3). However, the analogy has limits in that only individuals are subjects that are homogeneous and primordial in a legal sense. Of course, it is possible to adopt Plato’s position (for example, Republic IV 440e) and compare the disputes within an individual to those within a state, and to refer to them as a state of war within the individual (Phaedrus 246a). Still, the state is, in structural terms, more than an individual ‘written large’, because its ultimately decisive components have a rank that the conflict-capable components of an individual do not. Neither need nor interest, passion or reason, are beings in their own right; only individuals are accountable subjects with inalienable human rights. The globalist view that individual states are of “merely derivative significance” (Beitz 1979, 181) is undoubtedly correct. Yet, that significance does not have the discriminatory force it is claimed to possess. The fact that no state has the legalmoral rank of an individual is a qualification not only of individual states, but also of the world state. Neither of the two – nor even religion or tradition – is an end in itself; instead, they serve the only being empirically known as having intrinsic moral value: the individual (but not isolated) human being. A public law is necessary in order for one to maintain one’s special value when living together among equals. Any statehood is therefore subsidiary in nature and has, as long as it is of benefit to the individual, legal–moral rank. This rank is due not only to the world state, but to every individual state that submits to the precept of the rule of law, internally as a qualified democracy and externally as an openness to a complementary world republic, the universal legal order. Globalists fear that the universal claim of legal morality will be lost, or at least weakened, should individual states not be dissolved. In fact, however, this universal claim is preserved, though it is tied to the understanding that morally legitimate states cannot give rise to a comprehensive state of nature. Just like individuals, states can have disputes between one other, as can citizens of different states. For in the absence of a valid legal system, the relation between states on the one hand and citizens on the other is characterised by lawlessness. Yet, as the fifth constructive veto stipulates, that lawlessness is not the condition within states and is therefore no more than a residual state of nature. The state of nature has two dimensions: the relation between states is characterised by the inter-state (or international) state of nature; and the relation of citizens of foreign states (both between citizens themselves and between them and other states) is characterised by the global-civic state of nature. In any case, individual states do not need to be dissolved, because they have already overcome the internal state of nature. They only need to overcome the two-dimensional residual state of nature and embrace only the complementary, not the alternative, world republic. Federalism can be differentiated into two models: dual federalism and cooperative federalism. In dual federalism, the federal state and its constituent members take on

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their (legislative, fiscal and administrative) responsibilities independently of each other. Such is the case in the USA, where the federal government is constrained at the ‘national’ federal level, and the constituent states have, within their remit, an immediate impact on the affairs of individual citizens. In the case of cooperative federalism, by contrast, the responsibility for legislation remains largely with the federal government, but some of the legislative measures passed by the federal parliament require the approval of the executives of the constituent member states in order for them to be enacted (which in Germany are represented in the second chamber, the Bundesrat). Furthermore, laws are implemented in cooperation with the administrative powers of the member states. Given that the world republic is merely a complementary state, only the first model seems appropriate for it: the constituent states have a right to their own (and extensive) legislature, independent of the world republic, and their own administration and judiciary. It is through these institutions that individual states have a direct impact on their citizenries, without mediation or interference from the world republic. The same directness applies, vice versa, for processes by which states are controlled and appointed by the citizenries, again without interference from the world republic. 10.3 A CONTINENTAL LEVEL

A two-part sixth objection is raised by no less significant a figure than Kant. The first part – according to which a world state is ungovernable on account of its sheer size (The Doctrine of Right § 61) – could indicate that Kant’s objection is only of a pragmatic nature. The pragmatic argument is not unprecedented, for Bodin and Grotius are also both known to have put it forward (see ch. 8.1.3). Kant, however, differs from them in that for him the ungovernability of the world state, or less dramatically, its chronic inefficiency, is a (necessary) preparation for the second, genuinely legalmoral objection. The objection is not a new argument in itself, but it clarifies the scope of the ungovernability: that it becomes impossible to protect “each of the parts”. The geographic extension of the state means that it becomes more and more difficult to enforce the laws (Perpetual Peace VIII 367/336), so that the primary task and legitimatory basis, legal protection, is lost. Seen in this light, globalising statehood appears to be counter-productive, if not pointless. Instead of helping the protection of the law to reach universal applicability, the world state actually destroys the already existing regional protection of the law, so that the world regresses into anarchy (ibid. Z. 17). However, before we give up on the world state, let us answer objection with a question: is a global state truly ungovernable and is, consequently, a global legal order bound to fail? A mini state such as Liechtenstein with its 28,500 inhabitants must perceive a state-like Switzerland with its 6,5 million residents as oversized and the USA with 250 millions as a monster, to say nothing of India with 850 million and China with 1.3 billion inhabitants. If, however, a community like the USA, at nearly ten-thousand times the size of Liechtenstein and still forty times the size of Switzerland, can be governed, then the sixth objection cannot completely discredit the world state.

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It amounts only to a relative, constructive veto, suggesting that the world republic be set up in a way that allows it to be governed, despite its size and the heterogeneity of its constituent parts. To do so, a political innovation is required: a world republic does not necessarily have to follow the pattern of the United Nations and link large states such as the USA, India and China directly with mini-states like Andorra, Liechtenstein and the Bahamas. Instead, an additional level with political units of continental or sub-continental size may be inserted between them. In line with the pattern of the European Union, these units would have to take care of most of their problems ‘at home’ and assign to the world republic only the few remaining problems. Hence, the sixth constructive veto demands that large-scale regional, continental or sub-continental units be inserted between the existing individual states on the one hand and the pending world republic on the other hand. The thought of transnational, non-global units already appears in Kant, who contemplates the desirability of a “multitude” of such international “corporations” (The Doctrine of Right, § 61). However, he discusses them, not as an intermediate stage on the path to a world republic, but as an alternative to it. He therefore has to reject them with the argument that a state of war would then rule between them. Yet, this argument does not apply to the multi-levelled statehood suggested here. In accordance with the principle of subsidiarity, an intermediary statehood, comprised primarily of individual states and larger regional units, is inserted between the individual and the world state. Another five reasons can be advanced in favour of the new units and transnational organisation: given the transnational level is closer to the units of collective identity, it faces fewer difficulties catering to the specific needs of these units. Given most tasks are already neighbourhood issues, the removed entities are better not dragged into them. Transnational units share a greater cultural, social and legal similarity, a fact that greatly facilitates solving problems and endows the regional union with a greater sense of inclusion. Further, the subsidiary and federal quality of the global legal system is strengthened and the danger of centralisation is countered. The regional political units significantly relieve the strain on the world republic, so that the republic is bestowed with only three sets of responsibilities: responsibilities that reach beyond the regions’ borders; those that are of concern to the entire world; and those resulting from the fact that, under well-defined conditions, the world republic can be appealed to when region-internal disputes arise. A vitally important issue from a political and legal viewpoint (but of only secondary importance in a systematic regard) is the question as to whether the geographical responsibility of the intermediate level that now sits between the existing states and the new world republic, is to be demarcated by the planet’s five continents of Europe, Africa, Asia, the Pacific Rim, and North America and South America; whether the number of the ‘continental organisations promoting law and peace’ will be extended; or whether the borders will be drawn in an entirely different way. Of much more than secondary importance, however, is the fact that there are two basic models availlable for large-scale regional organisations. If Europe is taken as an example, there is the European Union as an ‘organisation of choice’; the

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Organisation for Security and Cooperation in Europe (OSCE) as an ‘organisation of duty’, as well as the European Commission on Human Rights and the European Court for Human Rights (Höffe 1996, ch. 11.2). A ‘Europe of duty’ (and analogously an Africa of duty, an America of duty. . .) concentrates on the compulsory legal–moral responsibilities, particularly those related to internal and external collective security, the protection of human rights, and the regulation of environmental pollution across borders. A Europe (Africa, America. . .) of choice, by contrast, reaches deliberately beyond that which human beings owe to other human beings or states. They are, for example, concerned with expanding internal markets as a means to augmenting their commercial influence and political weight in the world. 10.4 THE DUAL GLOBAL SOCIAL CONTRACT

The two dimensions of the international state of nature create a complexity known from the principle of federalism, but that is non-existent in the traditional theorem of the state of nature: that complexity renders a dual global social contract necessary. The agreement that overcomes the international state of nature, the ‘international-law social contract’, is the means by which the world republic justifies itself to the states of the world; the agreement that overcomes the global-civic state of nature, the ‘global-civic social contract’, is the means by which the world republic justifies itself before the citizens of the world, the individuals themselves. In both cases a universal capacity to consent and a distributive–collective advantage are crucially important. Another complication in the global social contract – the distinction between the original global legal contract and the original global state contract – is already known from the traditional theorem (see ch. 2.4). This complication is best explained with international law: in the global legal contract, states submit to rules and, in so doing, they replace primal, state of nature ‘international law’ with common law, an international law. In so far as the implementation of this law depends only on the parties affected, the individual states, it represents an anarchic law in the literal sense: a law free of rule. This law suffers from the same three reality deficits that constitute the legitimation of the individual state (see ch. 4.1): the parties concerned decide as to whether the international law is violated, how violations are to be treated, and how disputes are to be resolved. Given there exists a triple (now international) individual justice, pure international law is only half of the legal solution. The other half, common public powers, is missing. Their embodiment, the world state, arises from the second stage of the global-civic social contract: In the global state contract, the states agree to settle their differences, including the application of international law to specific cases, “by the mode of a civil process, and not by the barbarous means of war” (Kant, Doctrine of Right, § 61). The juridical civility relevant here frees itself of any arbitrariness and violent force by the litigants and assigns the responsibility for international law to public powers, to a world state, or more precisely: to a subsidiary and federal world republic. The world republic can be legitimised using three different strategies: according to the (exclusively) civic legitimation, a world state arises from the will of the entire global population,

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the ‘global nation’ (globales Staatsvolk). According to the (exclusively) state legitimation, the will of all of the individual states is the decisive factor. The combined dual legitimation, in turn, depends on a dual will: the will of all states and the will of the global nation. Individuals are the ultimate legitimatory authority, which is why the first legitimation strategy seems adequate and why Ockham’s razor provides the justification to eliminate individual states as an additional legitimating authority. However, such a move can be questioned on the grounds that individual states have rights and that the interests of collectives cannot be reduced to the sum of the interests of their members (on this problematic question, see ch. 14.2). Individual states represent both the interests of citizens as well as possible collective interests of the citizenries, which is why Ockham’s razor could also be applied in the opposite direction, so as to eliminate the first legitimation and to concentrate upon the second strategy. However, this move too, can be rebutted with a world citizenship that complements the individual state and the affiliations across states as described earlier. Neither exclusive strategy is therefore an appropriate way to proceed, and the third legitimation strategy remains the only option suitable for the task: the world republic attains its democratic legitimation through a combination of both civic legitimation and state legitimation. This conclusion introduces to the discussion the more complicated concept of national sovereignty, known from the principle of federalism: all the power of the world republic is derived from a double ‘nation’: from the community of all human beings and from the community of all states. Both renounce parts of their sovereignty voluntarily, in an effort to secure their rights in return. In so doing, the task of proto-justice is repeated: the individuals affected by the public powers must assert themselves “not merely as means, but also as ends in themselves” (Kant, Doctrine of Right, § 55, VI 345/484; see ch. 3.5), and they must do so in two ways: formally, as part of the global nation, from which all power is derived, and substantively, as part of those whose advantage is to be procured. The contract for a dual global state results in a bicameral division of the federal legislature. As with the traditional federal state, the uppermost body of the federal world state – the (global) legislature – also disposes of two chambers: the world parliament is comprised of a representation of the states, the World Senate, and a representation of the citizens, the World Congress, or Lower House. The first chamber, the state chamber or ‘parliament of world states’, is comparable to the German Bundesrat or the North American Senate, while the second chamber, the world citizens’ chamber or ‘parliament of world citizens’, is akin to the German Bundestag or the North American Congress. The cooperation and interaction between both chambers obviously gives rise to a great many specific questions, which we can address only briefly here. For instance, it needs to be clarified whether the right to legislative initiative is granted to both chambers or only to one; which chamber is first to make a decision; and what procedure is to be invoked in case the two chambers arrive at different conclusions. The different bases of legitimation for both chambers suggest that their predominant

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responsibilities should be divided, so that the state chamber is responsible primarily for tasks related to international law, in particular interstate security and interstate peace, whereas the civic chamber is responsible for global societal tasks, in particular the global social and ecological market. Another question is how to elect parliamentarians: for example, should members of the world state chamber be chosen by the citizens directly (such as the members of the North American Senate or the members of the Swiss Upper Chamber) or indirectly through the national parliaments (such as the members of the Austrian Bundesrat), or should they be sent by the national governments (such as the members of the German Bundesrat or the Commission of the European Union) or be appointed by the world government and recruited from within the individual states (such as the Canadian Senators)? The subsidiary character of the world republic speaks against the Canadian model and in favour of an election by the states. In order to ensure that all of their citizens and not only their governments are represented, a direct mode of election is advisable. However, as the American model teaches us, this mode comes at a great price, in that the state chamber may be determined more by the interests of the political parties than those of the states, and that federalism may be undermined by the state parties (Parteienstaat). Another question concerns the mandate: do the representatives of the states have a free mandate or one that is bound and imperative, as is the case in the German Bundesrat and in the European Council of Ministers? Democratic representatives are not usually bound by instructions. If, however, the interests of the parties have precedence over those of the states, some imperative mandate and terms of reference would be a sensible approach. These few indications confirm a general rule: the normative aspects of philosophy permit at best a negative, but not a positive selection. Instead, considerable room is left for experience, including its scientific assessment. The creation of a world republic represents an unprecedented task, which is why the ‘research laboratory world republic’ calls for considerable political imagination, the capacity to judge and gauge situations, as well as an incremental progress that incorporates both positive and negative experiences. The composition of the World Congress poses particular problems: consistent with the basic principle of democracy, ‘one man, one vote’, small states such as Andorra, Monaco or island states in the Pacific (‘Oceania’) could appeal to the General Assembly of the United Nations as a model and demand their votes carry as much weight as large states such as the USA, India or China. However, the ‘population principle’ makes it unlikely that large states, which would experience a disproportionate loss of power, would ever give their consent, so that the world republic might never come into being at all. Further obstacles to implementation arise with regard to largescale regional unions: while they are advisable from a state-ethical point of view (see ch. 11.3), the population principle actually creates an incentive to not unite. This follows because one would otherwise be represented in Congress with only one vote, and hence with only a fraction of the previous number of votes. There is, even more importantly, an incentive to dissipate and fragment: in order to increase their power

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in the World Congress, federal states would fare better if they dissolved into mere confederations, so that the previous constituent states obtained their own vote respectively and the confederation therefore obtained more votes in aggregate. The population principle has to be rejected not only for pragmatic reasons, but also because of considerations derived from the theory of subsidiarity: given that the legitimacy of political authority is ultimately derived from the individual, it is difficult to justify that the citizens of small states benefit from disproportionate advantages. After all, 0.5 percent of the current world population commands more than 25 percent of the votes in the UN General Assembly, so that, in terms of their populations, the states concerned are over-represented by a factor of 50. The principle of ‘one state, one vote’ is to be surrendered, not because there are powerful states in economic or military terms that would refuse their consent for reasons of national egoism and hegemonic arrogance, but because the world is marked by small, medium-sized and large states, in terms of their population. If, by contrast, population is taken as the relevant metric, then four states – China, India, the former Soviet Union and the United States – would command an almost absolute majority. Neither of the two solutions is persuasive, because two equally legitimate viewpoints are in conflict: whereas a ‘radical federalism’ grants every state an identical weight, the element of subsidiarity mentioned earlier uses population size as a criterion. A compromise is therefore needed, one that offers neither a voting weight that is proportional to the population (for this neglects the independence of small states) nor a weight that follows the principle of ‘one state, one vote’ (for this forgets that the analogy between states and individuals is only partly valid). The solution is a system of graded voting. According to the pattern of the German Bundesrat or the Commission of the European Union, small states are to be given less votes, and large states are to be given more votes, yet not in exact proportion to their respective population sizes. Thomas Pogge proposes the application of the principle of square roots: the quantity of inhabitants of each state is established in millions, the square root of which then determines the number of seats that is to be granted to each state. In so doing, three seats would be reserved for Switzerland and Austria, four for the Netherlands, seven for Great Britain and France, nine for Germany, 16 for the USA, and 33 for China. In order to avoid that states with less than one million inhabitants receive a seat only after they unite with other states, the threshold for one seat could be lowered to, say, 250,000 inhabitants. Of course, the principle of square roots does not eliminate entirely the incentive for dissipation and fragmentation, but this assessment changes once the composition of the world republic is no longer based on individual states, but on large-scale regional unions. The problem of an appropriate representation returns in the case of the World Congress. Assuming a world population of 6 billion inhabitants and a parliament of 600 representatives, every member of the Congress would represent 10 million citizens and would, consequently, remain extremely distant from citizens’ concerns. Even if the composition of the citizens’ chamber is doubled, each of the 1,200 members would still represent five million citizens, a number that would rise to six or eight million once the future growth of world population is taken into account.

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Hence, citizenries the size of Switzerland or Austria would have to be content with a single representative, while many small states would be left without any representative at all. However, if the principle of square roots is once again introduced, then the citizenries of larger states are once again under-represented. However, it is not clear why state borders should be used at all as a criterion for the composition of the World Congress. Even if a citizenry possesses its own civil representative, the question arises as to how this person would look after the competing interests of his or her heterogeneous electorate. The state representative has an easier task, in that he answers to collective and, thus, rather homogeneous interests. As a way out of this dilemma, civil representatives should identify not with the state from which they originate, but with certain interests or points of view, without degenerating to being lobbyists for vested interests, of course. But even then it remains difficult to conceive of interests common to five or ten million people that would be sufficiently homogeneous to be represented by a single parliamentarian. Enlarging the civic chamber to several thousand members, on the other hand, would create not only financial or organisational problems, but would also endanger the archetypal responsibility of a parliament: that decisions be made by the plenary session, not by small committees. Yet, these difficulties are not insurmountable, because committees and other instruments within representative institutional organs can be democratically developed. Furthermore, the world parliament’s burden is alleviated by the fact that it is only responsible for subsidiary tasks, many other responsibilities falling to the large-scale regional unions beneath it. The question remains, however, as to how the chamber that represents the states should be constituted. Should it be based on individual states, larger regions at the secondary layer or on both? Without anticipating political developments, the third, mixed solution recommends itself. In order to uphold the strictly federalist character and to protect their rights, individual states should be represented directly at the global level as well. For tasks that interfere only slightly with the right to be different, they can leave the relevant competencies to the intermediate layer of regional organisations, but claim a right to codetermination for all other tasks.

CHAPTER 11

AGAINST A GLOBAL LEVIATHAN

Having addressed the first objection – that the world state is superfluous by virtue of the fact that the world can also be ordered without a state – we are lead to a model that stands the test of three further objections. A world republic that is complementary, subsidiary and federal in nature withstands criticisms from democratic pacifism, communitarianism, globalism as well as the claim that it is ungovernable. Yet, before we can claim our model is altogether acceptable and feasible, another three important criticisms must be scrutinised: that the world state endangers freedom; that it threatens the competition that is required to enhance collective well-being; and that a necessary condition for the world state, namely a global public, is non-existent. When taken together, these three objections can be condensed to one question: does the world state in actuality not amount to a global Leviathan? In the Old Testament, Leviathan is the term used to refer to a beast – a crocodile, a snake or a dragon of overwhelming power (Ps 74, 15; 104, 26; Is 27, 1; Job 3, 8; 40, 25). It is certainly disturbing that the father of the modern philosophy of the state, Thomas Hobbes, chose to compare the state and its representative, the Prince, to a monster. On the famous cover page of the work of the same title, however, this Leviathan assumes a human guise and resides over a landscape radiating both peacefulness and prosperity (see Bredekamp 1999). Leviathan should not engender fear or any fundamental objections when it is thus directed at the service of human ends; again, it should require only specific corrections. As with the individual state, the world republic too, must become a phenomenal power if it is to secure peace and the rule of law. However, it should not be powerful in all areas, but only for its narrowly defined responsibilities. Unlike Hobbes’ Leviathan, the world republic does not rule over ecclesiastical affairs; and even in the worldly sphere the world republic must, in so far as the state is called for at all, share its state responsibilities with others. Above all, its power is to be organised in such a way that abuse becomes virtually impossible. Apart from the principles already mentioned – global subsidiarity, global federalism, and the intermediate level of continental regions – the necessary precautions are: safeguards to prevent unrestrained interpretations of the world state’s responsibilities (11.1); a functioning global public (11.2); and the rights of states (11.3). For comparative purposes we will examine the United Nations as a global organisation whose constitution significantly contributes to a global legal order, albeit more in theory than in fact (11.4).

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11.1 ‘SOULLESS DESPOTISM’

The seventh objection to a world state forwards an argument that is diametrically opposed to the argument that it would be ungovernable. It foresees a bloating of government and bureaucracy, one which would render a democratic world state not only inflexible and removed from citizens’ concerns but would undermine its very existence. This red tape, it is argued, interferes with the freedom of citizens to the point that protecting their rights must come at the price of restricting the scope of those very rights. The objection that a world state curtails citizens’ freedoms comes in at least two guises: The general objection originates with Kant. As an “amalgamation” of all states, a world state gives rise to fears about a “soulless despotism” and a “gaveyard of freedom” (Perpetual Peace, 1st suppl., VIII 367/336). Vladimir Soloviev’s A Short Story of the Antichrist shares this unease. The Russian philosopher does not deny that the “inconquerable, all surmountable power” (Soloviev 1915, 198) created by the Anticchrist lends international law the power to sanction, so that the world state – in Soloviev’s case the Emperor of the global Kingdom – appears benevolent at first: the state brings about peace and then prosperity, for “peace is joyful only through prosperity” (Soloviev 1915, 199). However, the centralised power, which came into being initially through acclamation, owes its continued existence to usurpation: Soloviev fears that the global peace and the global legal order will turn into a global dictatorship. Jaspers (1983, 147) too, predicts that, by virtue of its centralised police powers, a world state “is bound to bring about despotism at some point, namely by those who hold the power in their hands”. Kant, Soloviev and Jaspers obviously presuppose a globalistic world state and do not take into account an alternative, that is, a subsidiary and federal world republic. The republic can refute the objection raised by these critics because it preserves rather than amalgamates the states. Furthermore, the world state must share its powers with the constituent states, subject itself to the terms of a qualified democracy, and make protecting freedom one of its guiding principles. The second argument of the seventh objection affirms that a world state puts one of the great achievements of civilisation at risk, namely human rights and civil rights, for up to now, only the individual state has succeeded in guaranteeing such rights. This argument is correct not only in its underlying normative prerequisite – the obligation of every state to uphold human rights and civil rights – but also in its empirical assertion. However, only one third of the claim is true: Without a doubt, it is predominantly states in the Western World that protect human rights and civil rights (although in the case of Europe the European Convention on Human Rights, the European Court of Human Rights, and the European Commission on Human Rights must also be taken into account). When citizens’ rights are only protected by international organisations, they tend to fare badly to an embarrassing degree. However, the second third of the truth is that Western states have actually threatened these rights in the past: France pursued the Huguenots; the USA was founded by religious refugees who escaped the intolerance prevailing in Great Britain at the time, and the USA itself permitted slavery well into

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the middle of the nineteenth century. The last third of the truth consists in the principle of subsidiarity: where human rights and civil rights are already protected – either state-internally or through human rights conventions established by larger regional units – the world republic can and should stay in the background. Yet, in cases of massive human rights violations or genocide, such restraint is only warranted if the (‘humanitarian’) intervention creates even more evil; a principled restraint, however, is not justifiable (see ch. 14.3). Hence, even the seventh objection does not have the force of an absolute veto, but certainly that of a constructive veto. The protest confirms the principles of federalism and subsidiarity: the primary protection of the law remains the responsibility of the individual states, which is why they deserve the status of primary states. Such a status entails an original (not a derived) authority to legislate as well as an original responsibility for finances. The world republic is only a complementary state, a secondary state; and, in cases where a regional intermediate level is introduced as well, it is more modestly yet, a tertiary state. At any rate, the republic is not a single, unitary state that extends across the entire globe, but a state of states: a state of multiple nations. According to the principle of global subsidiarity, the world republic is not legitimised from above, but democratically, through the citizens and individual states. Yet, it assumes only those responsibilities that the primary republics and larger regional units alone cannot master, either at all or not nearly as well. In the first case, the world republic has a compulsory responsibility; in the second case it has an optional responsibility. Added to that, a ‘principle of care and circumspection’ applies: these responsibilities must never endanger the degree of qualified democracy that individual states and larger regions have already attained. In his philosophy of history, more particularly in the seventh sentence of his Idea for a Universal History from a Cosmopolitan Point of View, Kant puts forward still another (pragmatic) doubt, the eighth objection: a world state that fulfils its responsibility to establish, and reliably preserve, a global legal order impairs competition among human beings to such an extent that the creative forces of humanity might slumber. In order to prevent this from happening, Kant favours a global order that is “not without all danger” (VIII 26) and therefore fragile. Today, the thesis of the beneficial effects of competition within states and between them constitutes the core of the ‘New Economic History’. It is a scientific hypothesis that uses historical case studies to confirm certain claims about the rise and fall of states. The examples of Greece, Sumer, Phoenicia, the Netherlands and England during the industrial revolution demonstrate that competition brings about modernisation, growth and, eventually, prosperity, whereas striving for security undermines them (see Bernholz, Streit and Vaubel 1998). Yet, the indisputable advantages of competition do not by themselves render a fragile global order legitimate. Instability endangers the most basic task of a world state: protecting individual states from external violence, the “public security of the state” that Kant (VIII 26) deems indispensable. The notion of a fragile global statehood is contradictory in itself, because it entails a task, protecting the individual states, which becomes infeasible due to this very fragility. Hence, Kant’s legitimate interest in preventing human energies from slumbering has to be pursued by other

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means, namely by limiting the state’s responsibilities and establishing a multi-levelled, and decidedly non-centralised world state. Both are required by the principles of subsidiarity and federalism inherent to global statehood: since the world republic is structured with several levels and the highest level of the world republic is accorded only limited responsibilities, enough room remains for (peaceful) competition within and between constituent states, and in global society in general. In addition, this competition is not limited to the “spirit of commerce”, which, according to Kant, tends to degrade “a nation’s way of thinking” (Perpetual Peace, VIII 368/336). Competition rules not only in the economic sphere, but also in those of science, technology, arts, culture (which includes social and political culture) and languages. The subsidiary and federal world republic is threatened by a trait common to (almost) all federal states: while the primary task in the early phases is to prevent the federal government from excessively undermining the powers of the previously independent constituent states, later phases bring an ever greater expansion of federal responsibilities. Reversing this trend and reassigning responsibilities to the constituent states, however, rarely happens. In the history of the United States of America, for instance, the federal government has interpreted the concept of ‘interstate commerce’ in evermore expansive terms; and the introduction, and subsequent expansion, of a federal income tax has given government the financial leverage to compel ‘insubordinate’ constituent states to comply with its demands by threatening to cut federal funding. In other federal republics, too, only a small fraction of the expanding federal responsibilities results from constituent states freely renouncing their responsibilities or on newly established agreements between state and federal authorities. Rather, the expansion tends to be the result of a self-authorisation that is dubious both from a legal–moral as well as a constitutional–juridical viewpoint: federal responsibilities are interpreted by federal authorities in their own favour. Effectively preventing such a development is one of the most crucial tasks when delineating the world republic in detail. The standard principle ‘federal law trumps constituent state law’ must not lead to a gradual demise of the constituent states. The general danger that established institutions gradually expand their responsibilities is particularly pertinent in the case of a global organisation that, by virtue of its position at the top of the spectrum, is kept in check by no other entity. This assessment applies not only to the global legislature, but also to the global executive and the global judiciary. For example, we know from the European Court of Justice that it sees itself as the engine of European unification, that it therefore interprets the responsibilities of the European community rather expansively, and that, in disputes between individual states and the European Union over their respective responsibilities, it tends to decide in favour of a “strengthening of the community” (for evidence, see Bruha 1989; for a criticism of this development, see Kirchhof 1992, 878). A global court of law might interpret its responsibilities in similarly expansive terms. The question of how best to counter these threats does not fall into the purview of philosophy. Yet, the discipline derives three criteria from the principle of subsidiarity (see ch. 5.2) that also function at a global level, as principles of burden of proof: the

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requirement clause, the ‘better’ clause and the precept of proportionality. The world republic may become active only where, first, the state is required at all and, second, where the global state will succeed in accomplishing the goals better than the individual states, alone or through coordinated groups (for example, by creating a continental level of governance). In addition, the world republic is to become involved only as much as necessary. The principle of care and circumspection is also relevant, in that global statehood must be developed by starting with modest solutions that can be subsequently improved, based on accumulated experience. The measure of law and justice some groups have attained must never be jeopardised by the world state. Shedding responsibilities without being certain that they will thereafter be tended to is not only unintelligent, but legally and ethically wrong. This follows because the universal precept of democracy and law prohibits that the current levels of justice or law be reduced or jeopardised. 11.2 A GLOBAL PUBLIC

A politically engaged public is an indispensable institution of a functioning community (see ch. 4.3.3), a requirement that gives rise to well known problems at the level of large-scale regional unions such as the European Union. These difficulties are further exacerbated in the case of a world state, a fact that allows us to advance the ninth and last objection: a world state without a global public is unreasonable. Fortunately, the beginnings of a global politically engaged public can already be attested. It is found, for instance, in media reports on violations of rights all over the world, which induce reactions by the ‘general public’ virtually everywhere. Kant was able to state for his own time that “a violation of right in one place of the earth is felt in all” (Perpetual Peace, 3rd definitive article, VIII 360/330). Yet, he pays attention neither to the danger of a selective, biased perception of the rights violations, nor to whether opposing voices can also be heard, that is collective prejudices, national superciliousness and even appeals to break the law and violate the peace. Moreover, an effective global public has far more tasks to perform than merely function as a medium for the outrage of rights violations: According to the three stages of the principle of the ‘public’ (see ch. 4.3), global politics are, firstly, to happen in a public manner, enabling all citizens to engage in it. Secondly, every citizen must be eligible to vote and must be able to run for office in the ultimately decisive institution, the legislature. Thirdly, the citizenry is to be no temporary electorate, possibly complemented by permanent public opinion polling; rather, politics should somehow be exercised by all citizens, even if in effect only a few professionals represent the entire population in parliament. In a participatory democracy, the general public is a critical institution to which the entire political sphere must answer – not only the executive branch, but also parliament, the judiciary and the constitutional court. Let us focus on the legislature as an example: like the individual state, the world state needs a variety of public debates to initiate, prepare and accompany parliamentary discussions and decisions, and later trigger further amendments if so required.

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In order to ensure that these debates actually take place, numerous transnational and supranational institutions are required. Undoubtedly, a great many international nongovernmental organisations already exist, some of which even have considerable influence. They are in a position to convince (in democracies even to coerce) governments, corporations and other institutions to enter into dialogue with the general public and to accept minimum requirements of both a formal and substantial nature. At times, they even manage to organise civil protest across borders. Nevertheless, most of these institutions – the media; political, cultural and ecclesiastical institutions; grass-roots movements; parties and associations – are, so far, mostly organised ‘nationally’, within the confines of a particular state. At the global level, by contrast, a considerable deficit must be recognised. In the process of overcoming this deficit and in establishing an effective global public, it is important that all the various interests, voices and languages command roughly the same level of attention. The legal requirements are generally known and uncontested: a global public needs freedom of the press, freedom of speech, and freedom of assembly. These negative freedoms are to be complemented by a positive freedom (of the press), for instance in the form of anti-trust laws for the media. Such measures facilitate the creation of a multitude of competing media, political academies and grass-roots initiatives. A ban on monopolies, oligopolies and cartels in other spheres is justifiable only on competitive grounds (see ch. 15.1). In the sphere of the political public, by contrast, additional democracy-promoting reasons can be found: a positive freedom of the press is indispensable for a functioning participatory democracy. A sufficient level of educational attainment is, for the same reason, also required, so as to establish at least a minimum level of literacy among citizens. For cultures that do not rely on written texts, alphabetisation is no legal–moral precept per se, but in a world society in which the media play such an influential role it is necessary. Yet, even when the negative and positive freedoms of the press are secured, the various interests do not even remotely command the same level of public attention. Apart from the dangers already mentioned in chapter 4.3, a further hazard surfaces in the scenario of a world republic: the hegemony of a particular language. This follows because a living language is not merely an interest-neutral means of communication. The media of the hegemonic language find a far greater resonance, so that the pictures, symbols, myths and interests of the accompanying culture occupy a privileged position. Moreover, cultures that are based on written texts receive much greater weight than those of oral provenance. In individual states, the public is an institutionally varied, if not vague phenomenon: it occurs on many levels, possesses no sharp boundaries, and covers all shades of expertise and impact, from professional academic discourse at one end of the spectrum to the tabloid press at the other. Since the public uses different media and institutions to address and make sense of different subject matter, it exists not in the singular but in the plural, as a colourful bouquet of overlapping publics. Many of them have an aristocratic tendency, in that professional politicians as well as particular media and associations command an overwhelming influence.

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World society is, by virtue of its greater size and heterogeneity, greatly marked by these phenomena. A global public is relatively well developed nevertheless, particularly in areas such as human rights. There is a global discourse on human rights that is conducted by a heterogeneous intellectual ‘community’ comprising individual scientists, philosophers, media commentators, human rights organisations, professional associations, the media and public opinion in important states, as well as relevant conferences and publications. Of similar great significance is the interaction between the high courts. Even states themselves must not be neglected, because within the United Nations and other international organisations they are the entities that ratify human rights conventions and, in so doing, enable the legislative evolution of human rights on a global level. No matter how optimistic or pessimistic one is with regard to the development of a global public, a ninth and last constructive veto suggests itself in the form of a dependency: as long as there is no effective global public, it is irresponsible to establish a subsidiary and federal world republic. A global public is indispensable for yet another task: the development of a common political identity that encompasses a consciousness of world citizenship and a critical world memory (see ch. 12.2). The consciousness of world citizenship, in turn, is a prerequisite for global plebiscites. Provided that the notion of worldwide plebiscites and referenda is generally accepted, it is defensible only if the politically engaged public is conscious of its world citizenship and if there exists a public sphere within which relevant issues can be discussed in a thorough and fair manner. Here too, a threat emerges that requires countermeasures: to prevent that the six to eight most populous states override the interests of all others, the example of Switzerland may be followed and a dual majority be required: global plebiscites would require a majority by both the states and the world population. 11.3 STATE RIGHTS

As long as citizenries insist on, and make use of, their individual statehood, the analogy between individuals and states gives rise to a new human right. The contents of this right are not new, of course, but the entities entitled to claiming it certainly are. It is a ‘human’ right of states and is within inverted commas by virtue of the restricted applicability of the underlying analogy. In order to avoid misconceptions, it is best referred to as a state right, in that states are seen as legal entities and citizenries are thus protected as collectives. There are also conditions to the capacity to act that apply to the state as a legal entity and to the citizenry as a collective. These can only be met in reciprocity, a reciprocity that now occurs at the international level. As with the individuals’ negative rights to freedom, three fundamental or relatively transcendental interests emerge, which depend on reciprocity, that is a (relative) transcendental exchange; they thus have the status of a state right: Firstly, states have, like individuals, a right to body and limb, for the lives of citizens are to be protected not only internally in a distributive sense, as a reciprocal right

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between citizens, but also collectively to the outside, as a right of the citizenry against infringements by other states. Secondly, there exists a collective right to property: a right of each citizenry to the territorial integrity of their state against encroachment from outside. Thirdly, as with the right to personal self-determination, there exists a right to collective and, consequently, political and cultural self-determination. These negative rights of states are, fourthly, complemented by a second-order claim according to which states should be able to enjoy these rights without having to revert to violence and individual justice; this is a claim to peace and lawfulness between states. As with individuals, there is, fifthly, a right to democratic participation: within the scope of a global order of peace and the rule of law, every state has the right to be not only a (passive) object, but also an (active) subject. Each state has a right to equal participation in the world republic. The question as to whether there are, additionally, positive rights to freedom, that is social rights, is an issue deferred to a later chapter (ch.15). An objection against the ‘personal rights’ of states suggests itself: that they contradict legitimatory individualism as the moral basis of any form of rule. This follows because the state is interpreted in a ‘holistic–metaphysical’ sense: as a wholeness (holos, therefore: holistic) that is said to be an end in itself and that some philosophers regard as a metaphysical concept. The objection, however, is only valid if directed at the assumption that there are ‘human’ rights of states without quotation marks. However, the rights of states are not unconditional rights, but are, unlike genuine human rights, valid only under the condition that the universal precept of democracy and law are recognised both internally and externally. Even under these conditions, the intrinsic value of states remains relational and subsidiary: the ‘human’ rights of states serve the citizenry, because citizens do not have a moral duty to keep their community alive. Incidentally, here too, an analogy between individuals and states is possible, because individuals have a legal–moral duty to stay alive. Yet, the rights of states forbid any compulsion from outside. The citizenry has to see to it that the degree of legal morality already achieved is not jeopardised by the formation of either the intermediate continental level or, for that matter, the world republic itself.

11.4 A GLANCE AT THE UNITED NATIONS

11.4.1 No Rudimentary World Republic In the existing network of international institutions, the United Nations plays an important legal–moral role. The organisation’s aim and programme approximates the ideal of a global order, particularly that of a subsidiary and federal world republic. Not only does it take on the main task of forming a global order of peace and the rule of law, but its detailed principles are also consistent with the corresponding normative principles. The similarity between the United Nations and a global republic begins with the reason for its founding: given the obvious failure of The League of Nations to prevent the Second World War, a new world peace organisation was required “to save

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succeeding generations from the scourge of war” (Preamble to the United Nations Charter; see articles 1.1; 2, 3–4). The similarity increases when considering the incredibly extensive recognition the United Nations has received around the world: after North and South Korea and Switzerland decided to join, all sovereign states are now members – apart from some extremely small countries such as Kiribati, Monaco and San Marino. Above all, the Charter of the United Nations amounts to nothing less than the constitution of a global political order; it is a world constitution that formulates appropriate legal–moral principles in a juridical way. The Charter obliges all states to respect human rights, the dignity and value of human beings, the equal rights of men and women, and the equal sovereignty of all states, whether they are large or small (Preamble; articles 1.2; 2,1 a.o.). As regards the main goal, that of establishing world peace and international security, members commit to “settle their international disputes by peaceful means” (article 2.3) and “refrain from the threat or use of force” (article 2.4). The institution is, thus, content with nothing less than the proscription of war, so that the core of the fourth right of states is recognised. Given that the prohibition of force applies to the “territorial integrity” and “political independence of any state”, the first three rights of states are also recognised, provided that territorial integrity includes the integrity of the population as well. In granting states an equal right to participate, at least in the UN’s General Assembly, the fifth (and last) right of states is also recognised. The United Nations was founded by sovereign states who renounced part of their sovereignty when ratifying the Charter and have embarked on the path towards a federal world republic: Recognising human rights amounts to a self-restriction of internal sovereignty. Internally, states commit themselves to a high standard of qualified democracy. When violent force is renounced (including threats of violent force), external sovereignty is also thereby restricted. Furthermore, chapter VII of the Charter authorises the Security Council to undertake political, economic and military measures against members who endanger the peace or act aggressively. Article 25, in turn, obliges members to participate in the corresponding measures, while article 43 allows the Security Council to request armed forces when required. However, this monopoly on coercive power does not, as is sometimes maintained, befit the United Nations. In accordance with our model of multi-levelled sovereignty, the strongest element of sovereignty remains with the states. The United Nations resembles a world republic for other reasons; its bodies correspond to the powers of a state and the organisation submits, at least rudimentarily, to the principle of the separation of powers, that is the General Assembly represents a legislature to some degree. However, it is not a real global legislature in that it can only make recommendations – its resolutions may be politically binding, but are certainly not legally binding. The Secretary General, in turn, possesses some limited executive power, which is superseded by that of the General Assembly and, further still, by that of the Security Council which is the only body with all the characteristics of a (public) power. Given the fact that the Security Council is itself the body to decide on the conditions that must precede its activities – that a menace to peace, a violation thereof, or an attack is imminent – it attains not only executive but also

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legislative powers. The Council is thus in great danger of serving the particular interests of its permanent members, to discipline members that are insubordinate to them, and to ‘generously’ overlook possible rights violations of their own. The far-reaching powers of the Security Council stand in obvious contradiction to the principle of the separation of powers. The privileges of the five permanent members are even more at odds with the conceptual bases of a global democracy. The decisive preparatory conference between the USA, Great Britain and the Soviet Union, as well as the separate conference between the two Western powers and China, both held in Dumbarton Oaks in summer 1944, had the explicit aim of establishing a collective hegemony of the powerful states of the time. The later inclusion of France aside, only a restricted participation by other allied states was foreseen (see Hilderbrand 1990). The outcome, the Charter of the United Nations, unites two contradictory approaches: the universalistic legal ethics of human rights and lawful resolution of conflicts on the one hand, with the particularised power politics of the Security Council on the other. Article 12(1) of the Charter declares that the Council has precedence in the decision-making process, which is why the following conclusion applies not only to the constitutional reality but also to the constitution itself: within the United Nations, power has precedence over the rule of law. As far as the third power of the global judiciary is concerned, there are a variety of international institutions: the International Court of Justice, the International Tribunal for the Law of the Sea, the International War Crimes Tribunal, the International Criminal Court (which is not yet ratified by the United States of America) and a multitude of further tribunals responsible for specific issues. However, none of these courts has the authority to enforce their verdicts. In fact, the acceptance of the verdicts is based on voluntary submission. All attempts to establish an obligatory judiciary failed during the era of the League of Nations. The authority to object to law-violating actions, a power we are familiar with from statebased judiciaries, does not exist in the United Nations. Member states have no legal means of challenging decisions made by the General Assembly and, above all, by the Security Council. Of further concern is the fact that the party that becomes entitled as a result of a decision may turn to the Security Council, so that enforcement is incumbent upon a political rather than a judiciary body. So, in further violation of the separation principle, the Security Council has influence even on the third, judiciary power. The final constitutive element of the national judiciary that is absent on the global level is the opportunity of appeal: verdicts of the International Court of Justice are final, only interpretive clarifications may be requested, and a retrial may be demanded only if new facts come to light. Only one of the United Nations’ bodies is a (public) power in the full sense, which is why the organisation assumes an intermediate status of statehood, somewhere between an ultra-minimal and a real world state. Even if this statehood is further strengthened, the United Nations would not assume the rank of a rudimentary world republic, for the special privileges of the Security Council’s five permanent members contradict the principle of democracy and lend the organisation an extremely oligarchic character. Only in the General Assembly are all states of equal rank.

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However, even this body’s democratic structure is doubtful, by virtue of the fact that all members have only one vote, which means, for example, that the few thousand inhabitants of a minute state in the Pacific Islands command equal weight as India’s population of 950 million. This global organisation deviates from the ideal of a world republic in yet another respect. In line with its name of the United Nations, it has only a state chamber, the General Assembly; a complementary civic chamber is missing. There is, of course, an Economic and Social Council (chapter X of the Charter). Yet, given that its members are nominated by the General Assembly and the constituent states, the body lacks the autonomy and independence essential to a second chamber. Of the dual global legal contract, it is therefore only the international-law dimension (the interstate contract) that is recognised, not the civic dimension (the civic contract). This approach may have been appropriate during the beginning stages of the organisation because what mattered then were responsibilities related to international law, namely the creation of peace and security. At any rate, the only international actors active at the time were states. Establishing a requirement to set up a civic chamber would have made a world organisation virtually impossible, because the electoral rules would have been decided upon only after impossibly lengthy negotiations. Many places would not have experienced a democratic election at all. Also, the prerequisite for the election of a global civic parliament, a consciousness of world citizenship that is directed at global issues, was absent almost everywhere at the time. Nor were there any of the non-governmental organisations that are so essential for a chamber of world citizens. Even so, over time a civic chamber could indeed have been established, particularly because the Charter does not only refer to the goals of international law, but also to goals of a global civic nature. Mention is made as early as article 1(3) of the need for international cooperation in the economic, social, cultural and humanitarian spheres; and chapter IX (articles 55–60) is dedicated entirely to economic and social cooperation on an international level. 11.4.2 ‘Glory and Misery’ In spite of its partial compliance with legal–moral principles, the United Nations does not succeed in what Kant refers to as moral politics in the supplement to his Perpetual Peace. Instead of delivering more than a verbal “condemnation of war as a procedure for determining rights” (VIII 356/327), the Security Council tolerates countless wars. The Council cannot be blamed for the fact that wars continue to erupt, but it stands accused of not intervening once they occur in the way required by its Charter. The United Nations allows almost as a rule what no individual state can afford to: it verbally reacts and then idly watches while the most audacious violations of the law are perpetrated, the verbal replies themselves being often biased. When economic or military measures are actually taken, they rarely fulfil the requirements of international law and human rights, such as the protection of the civil population. Instead of staying true to the principle of impartiality, the Security Council perceives wars in a selective, and therefore biased, manner. The fact that its actions are determined by national, regional as well as financial interests may be beneficial

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from a pragmatic point of view, but it contradicts the most elementary precept of the rule of law. This world of states sometimes seems stuck in the Middle Ages, when feudal rulers were often mightier than the centralised authority. However, today’s feudal rulers, the members of the Security Council, are part of the centralised authority. It is therefore not the case that the institution is too weak to engage in moral politics; it is simply not willing to do so. If a public power of an individual state is systematically biased, it is labelled as corrupt. Is it possible to save the Security Council from accusations of systematic corruption? After all, the rather nice constitution of the United Nations seems to contain dry, at times even cynical, assurances at best. The prohibition of violence is not enforced, nor is a collective security order established. The political background is well known: the post-war consensus to which the United Nations owes its creation vanished quickly. The East–West conflict aside, the ‘geopolitical revolution’ of decolonisation was a major factor in this process. It multiplied the membership of the United Nations, created a voting majority for developing countries in the institution’s committees, and made the United Nations not only slower and less predictable, but also caused a major shift in the organisation’s primary goal. The original purpose, the protection of peace, was superseded by the economic development of the developing world, as a means of compensating for prior colonial exploitation. The most important issues for the United Nations are no longer those of peace and freedom, but development aid and a (new) international economic order (NIEO), which has been supplemented more recently by environmental protection. In truth, the United Nations does not operate without successes. A fair assessment must point to at least three achievements that are sometimes more, sometimes less complete: the institution’s contribution to the advancement, evolution and codification of international law is noteworthy. These developments can in part be attributed to the United Nations itself: with the Universal Declaration of Human Rights and the international covenants on basic rights, the United Nations manages to create a globally valid (but admittedly not globally applied) interpretation of human rights. Of course, regarding economic, social and cultural rights, and more recently with collective rights, the UN proceeds with a generosity that is neither legitimately nor politically uncontested (see chs. 14 and 15). As a global forum for negotiations, the United Nations also manages to civilise international relations (Rittberger et al. 1997). However, although much praised, this contribution remains quite meagre. The main purpose of the United Nations, the prevention of war, is a long way from being achieved; instead, the “free relations of nations” are marked by that “malevolence of human nature” (Kant, Perpetual Peace, 2nd definitive article, VII 355/326) that gives power precedence over justice and the rule of law. The United Nations continues to serve particular interests: the Security Council has become, as a result of its special privileges, the instrument of hegemonic powers, while the General Assembly has become, as a result of the voting majority, a tool of the developing world. The organisation does not fare much better in its second most important task: the promotion of human rights. The origins of international agreements on the rights of

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children, human trafficking and forced labour go back to the first three decades of the twentieth century. Therefore no one can be proud of their existence today, and it is at most their enforcement that may be applauded. Yet, the United Nations does not take effective action against violations of those agreements or, for that matter, of its own human rights conventions. Furthermore, the Office of the High Commissioner for Human Rights was not established until 1993, once the East–West conflict had come to an end. Prior to this, only ‘surrogates’ existed, that is the meritorious, nongovernmental organisation ‘Amnesty International’. When faced with these great shortcomings, any form of ‘UN romanticism’ is obviously inappropriate. The United Nations can be appreciated only if the usual criteria are abandoned and we remain very modest: constitutional reality fails to keep up with global developments pertaining to either protecting peace or guaranteeing human rights. This serious deficit persists despite the fact that the global organisation is by no means a utopian political ideal. The great vision of a world state that was contemplated during the planning phase – with direct representation of the peoples in a world assembly and with an armed international police force – was discredited as unrealistic. However, even the reduced plan, considered to be more realistic, soon became a premature hope. 11.4.3 Eight Proposals for Reform Various changes become apparent for the improvement of the present world organisation, in particular regarding the goal to achieve a greater level of democracy and a stricter separation of powers. The following suggestions are not modelled on a new institution, such as the federal world republic outlined earlier, but remain within the limits set by the United Nations: they comply with the precept set out in the UN’s Charter, which stipulates that it is to be governed by justice and the rule of law rather than power and might. Consistent with the original intention advanced in Dumbarton Oaks, this precept can be revealed, of course, to be a ‘mask’ for the collective hegemony of the five great powers: the precedence of the rule of law over power is permitted only in so far as it suits the power politics of the five permanent members. This club – it is feared – will veto unanimously the abolition of its veto privileges (on the legal situation of the Charter, see Simma 1995; on the debate for reform, see Barnaby 1991; Bienen, Rittberger and Wagner 1998; Childers and Urquhart 1994; Czempiel 1994; for a more sceptical assessment, see Link 1998). Provided the United Nations recognises the primary goals set out in the preamble and chapter I (‘Purposes and Principles’) of the Charter, at least eight reforms are indispensable. Most concern the Security Council with its overwhelming power, its lack of control by other public powers, and its oligarchic nature. First, the Security Council is so far accountable to the General Assembly only after it has reached its decisions, which are usually revealed in annual and special reports (article 24.3 of the Charter). Even after the decisions are made, however, the plenary body has no means of rejecting or sanctioning them. The Security Council cannot be called to account for failing to file a report, for an insufficient report or, for that matter, for the decisions themselves. The reform in question here is as clearly required from a legal–moral viewpoint,

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as it is difficult to implement from a legal–practical viewpoint: what is required is to strengthen the powers of the (rudimentary) legislature, the General Assembly. Second, article 24.2 of the Charter requires the Security Council to “act in accordance with the purposes and principles of the United Nations”. Individual states have their High Courts verify whether such demands are actually met. In the case of the United Nations this is not so. Although the International Court of Justice does not only have the right, but also the duty to interpret the United Nations Charter (see Mosler 1991, 933), it has never submitted a Security Council measure for judicial review. This time it is the responsibilities of the International Court of Justice that must be increased, and as a preliminary stage, the Security Council needs to accept the Court as its legal adviser. Third, the International Court of Justice is a component of the Charter by virtue of its statute and, consequently, is ratified by most of the world’s states. Nevertheless, it is not automatically responsible for all interstate disputes, but rather, the conflicting parties themselves must recognise the Court’s authority. Once that recognition is given, however, the verdicts are binding and can be enforced by the Security Council, if so required. Even so, the five members of the Council with veto rights can use vetoes to suspend the enforcement. Two improvements are required here: the International Court of Justice must become a compulsory and not simply optional judiciary (see Mosler 1991, 934), and the special privileges granted to the five permanent members must be abolished. The fourth proposal for reform, the creation of an International Criminal Court that has the authority to punish at least some of the more serious crimes, has already been decided, albeit against the vote of the actual hegemonic power, the USA (for further details on this court, see ch. 13.5). Fifth, since the ultimate reference point for all rights is the natural individual, the ‘one state, one vote’ principle is to be abandoned, at least for the representation of states. The fact that citizens of small states are extremely over-represented and those of large states are extremely under-represented is legally and morally unjustifiable. Clearly, different criteria could be applied to the weighing of votes, such as economic or military power or the amount of membership fees paid. Yet, the only criterion legitimate from a legal–moral viewpoint is population, possibly conceived as a graded system (see ch. 10.4). Sixth, a second chamber of the world parliament, a World Congress as the global representation of citizens, is to be established. Its responsibilities are already listed as part of the purposes and principles of the United Nations. As was the case in the initial stages of the European parliament, the representatives could, in the interim, be elected by the national parliaments. Non-governmental organisations should also be represented, although an oligarchy of their richer, well-organised entities must be avoided. In the long run, the civic chamber should be directly elected by the global citizenry. Seventh, the continental level should be taken into account. Progress is to be expected from sub-global (but still large-scale regional) organisations for the very reason that the UN has failed to achieve its original aims and is blocked over fundamental reforms of the Security Council and the International Courts.

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Eighth, were the global organisation to embrace the moral precept of global statehood, it would have to proceed beyond the more immanent reforms and transform its bodies from international to supranational powers. Provided that a global political organisation adheres to its subsidiary responsibilities and federal structure, and that adherence is made credible by having deeds follow words, the bodies should be developed into a full legislature, a full executive and a full judiciary. In so doing, the United Nations would need to obtain the authority to coordinate and sanction, which is to be exercised by means of military, civil or police measures as required for individual cases. The path to even the first improvements will be rather long, as a glance at the UN’s origins confirms: of the many initiatives that were developed in the run-up to the Charter, no reference is made to the memorandum from two hundred North American lawyers titled ‘Postulates, Principles and Proposals for the International Law of the Future’ (in: Friedenswarte 1944, 123–140). It contains very valid suggestions, for instance that a conflicting party’s right to vote in the Security Council should be temporarily suspended; that there be a mandatory arbitration of disputes; and the General Assembly is to be authorised, with a two-thirds majority and with approval of the executive council, to change the general rules of international law and to establish new ones. Without such reforms, however, the United Nations will lose further its – already limited – credibility.

CHAPTER 12

GLOBAL CIVIC VIRTUES

12.1 COMPLEMENTARY WORLD CITIZENS

The counterpoint to a purely institutional theory of democracy, a theory of civic virtues, is known from Antiquity. Yet, it was developed only for individual states; the equivalent for a world republic is missing. While Plato and Aristotle do not even consider the idea, the Stoa does incorporate at least a degree of cosmopolitanism, but one scarcely concerned with juridical and political institutions. In addition, global civic virtues in the political sense are completely absent (see ch. 8.1). Even in Kant’s Perpetual Peace, they surface only sporadically and in a rather generalised manner. This follows because, for Kant, the everlasting peace is to be guaranteed primarily by the mechanisms of human inclination and self-interest. Kant refers only in a complementary way to an obligation that is part of the initial sense of global justice and the global rule of law, namely the duty to work towards a perpetual peace (Perpetual Peace, VIII, 368/336). Even the more recent debate about a global order, conducted by disciplines that tend to be concerned with institutional and legal implications, does not consider the corresponding personal traits. Global civic virtues are indispensable nonetheless: they are required to create and maintain the necessary institutions and to advance existing ones. They are not substitutes for institutions, of course, but only complements to them. Global civic virtues work against the tendency to overestimate (global) institutions. No world republic can be established or maintained without a global civic motivation being integrated into customs and character traits. As did the Stoa, the world citizen today is often understood in a pre-legal and prepolitical sense. Individuals are considered world citizens, cosmopolites, if they think beyond national borders and feel at home (more or less) everywhere in the world. However, in so far as they take their language, culture and customs with them and stick to the lingua franca – which in Antiquity was Greek and today is English, they are no more than cosmopolites of the first stage: globetrotters who do not shed their native and national ways even when abroad. The more ambitious world citizen, the cosmopolite of the second stage, has a much more open attitude towards the world and is willing to appreciate foreign ways and accept they have equal value. World citizens in a still stronger sense are those who bring their own culture with them to another country, but also embrace the new culture and do not jettison that influence once they have returned to their home country. A case in point, is Eugen Herrigel (1948), a German lecturer in philosophy who taught Greek and German philosophy in Japan, who learned the high arts of archery from a Zen Master during his stay, and 239

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continued to nurture his interest when back in Germany. Yet, even a cosmopolite of the third stage remains a world citizen in a pre-political sense. In contrast, the world citizen in the political sense is a constituent element of a community. That community encompasses all the individuals in the world who possess legal capacity. Two conceptions must here be distinguished: an exclusive and a complementary interpretation of world citizenship. An exclusive world citizenship is suggested by the humanist Erasmus, who rejects the civil right of the city of Zurich offered him by Zwingli with the argument that he was “a citizen of the whole world” (civis totius mundi, quoted in: Grimm, Deutsches Wörterbuch, IVX, 1557). However, given that there was no global community at the time, Erasmus’ attitude sits somewhere between a pre-political intellectual ideal and a counterfactual political presumption. Herder, in turn, grants exclusive cosmopolitanism only ironic praise (This too a philosophy of history for the formation of humanity, 2002, 329), and Hegel will criticise it on the grounds that “it is locked in opposition to concrete statehood” (Philosophy of Right § 209). Exclusive cosmopolitans tend to think of themselves as morally superior; they dissociate themselves from their communities, and no longer regard themselves as German, French or Swiss, but exclusively as citizens of the world. Exclusive world citizenship is based on a world state that corresponds to a ‘globalistic’ understanding of the concept, one where individual states are replaced by a homogeneous world republic. In the globalistic world state, ‘national’ civil rights are replaced by global civil rights. The individual is a world citizen instead of a national citizen. Similar to how the federal world republic avoids the choice between a statebased or a cosmopolitan structure, world-federal civil rights do not replace national civil rights, they complement them. So, multi-levelled statehood is complemented by multi-levelled citizenship. While the world citizen in the exclusive and globalistic sense is in danger of feeling partly at home everywhere, but entirely so nowhere, the world citizen in the complementary and federal sense is at home in both, his or her own country and the world. When the intermediate continental level is added, the individual can, in the case of Europe, be primarily German, French or Swiss, secondarily a citizen of Europe, and thirdly a citizen of the world: a ‘citizen of the federal world republic’. World citizens play two roles: as citizens of the world, they participate in the rights and political processes of the world republic; as citizens of global society they indirectly or directly enter into cooperative relations with the whole world. Unlike the former, the citizen of global society is not constrained by geographic hierarchies. The sequence (1) municipal or local, (2) regional, (3) state-based or national, (4) continental and global is transcended by the individual’s cross-national interests and obligations. Citizens in a qualified democracy are not only objects, they are also subjects, of the law and the state. In the federal world republic, too, they are not subjects of a strange power, but creators as well as beneficiaries of that power. However, the dual global state contract produces a structural complication. Natural subjects are the only immediate ends of the global legal order and the only world citizens in the proper understanding of the concept. In an indirect and analogous sense, however,

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states are subjects also: indirectly, because they exist in subsidiarity to natural world citizens, and analogously, because states are, by virtue of their right to be different, autonomous members of the world republic. The universal precept of the rule of law becomes reality only in the world republic, which is why neither individuals nor states have the right to be content with individual statehood alone: the transition from citizenship to world citizenship is legally and morally required. However, in order to ensure the path is embarked and walked upon in a way that allows the world republic to endure, world citizens must refrain from always following their immediate self-interest. Like the individual state, the world republic too requires dispositions of moral value. These do not have to be virtues in the demanding sense of a moral character, which when faced with a conflict between duty and inclination always chooses the former and requires no other reason than that is what duty calls for. Like the national citizen, the world citizen too is content with virtues in the modest sense. Of course, states only have virtues in an analogous way. Yet, as political units with the capacity to act, even states can develop reliable behaviours and customs – internally as legislatures and externally by negotiating treaties. In so far as these are customs of a moral nature they may well be referred to as ‘virtues’, as virtues in quotation marks. In the individual state, the civic virtues define the homo politicus, in contrast to the homo oeconomicus and the subject. Those who practice civic virtues, citizens in an emphatic sense, are not content to engage only in work and leisure and to leave the remainder to authorities who are democratically but contingently elected. Rather, they get involved in both, the democratic state as well as society, insofar as it differs from the state. The global civic virtues define the homo cosmo-politicus, in contrast to the subject of the world state and the homo oeconomicus of global society. World citizens extend their political commitment beyond their own state to the world republic, just as the citizens of global society do not stop their social and cultural activities at the borders of their own societies. Four virtues in particular are important at the global level, and they follow those that apply to the individual state. They correspond to four kinds of world citizens: the morally modest world citizen, the constituent member of a positive world legal order, is content with a sense of the global rule of law, with faithfulness and submission to a global legal order. The morally more exacting world citizen, the constituent member of a global legal order justified from a legal–moral point of view, uses a sense of global justice to advance global justice as part of the positive world order. The next two virtues confirm what we know from the individual state: that ‘civic virtues’ criticise excessive emphasis on institutions and in so doing point simultaneously in two directions: at the global level, the objection is directed, firstly, against ‘subjecting of world society to state control’ – expanding the world state’s responsibilities at the expense of world society – and, secondly, against the opposite development, ‘socialising the world state’, which suppresses the genuine responsibilities of the world republic because it (justifiably) highly values a global civic society. In the former case, it is the virtue of the citizen of the participatory global society that is called upon; in the latter it is that of the citizen of the participatory

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world state. The citizens of the participatory world state are involved in the participatory global democracy and, by virtue of their sense of global community, completely fulfil the role of world citizens. Vice versa, the citizens of a participatory world-society possess a sense of global community and engage in cultural, social and humanitarian responsibilities without constantly shunting them off to either an individual state or the world state. Consistent with the two parts of the world republic, all four of the global civic virtues come in two guises: that related to international law and that related to world citizenship. In the case of natural subjects, we speak of a sense of the cosmopolitan rule of law and a sense of cosmopolitan justice, a sense of cosmopolitan community, and a cosmopolitan civic sense. In the case of the constituent states we refer to the virtues as a sense of the world-federal rule of law and a sense of world-federal justice, a sense of world-federal community and a world-federal civic sense. In so far as both, the cosmopolitan and the world-federal are referred to simultaneously, we speak of a sense of the global rule of law, a sense of global justice, and so on. All four forms of the global civic virtues are at odds with the principle upheld by nationalism and strict communitarianism, that one’s own community and state should always come first (“compatriots always take priority”). Of course, complementary cosmopolitanism does not demand that everyone be equally responsible for everyone else in the world. The responsibility is graduated, beginning with one’s own family and subsequently extending to one’s close communities. However, it does not stop there; those communities have only a relative, not an absolute priority. Complications undoubtedly increase when civic virtues are raised to a global level. A quantitative extrapolation is not enough where, the increase in complexity is not simply confined to the size of the population or the territory, but where a variety of languages and cultures flourish as well; where, consequently, differences increase while commonalities diminish; and where no demarcation from the outside exists. These are the underlying causes why scepticism against a world republic can be so fruitfully nurtured. The reason is to be found in a pragmatic circle, one where civic virtues flourish so that institutions can surrender some of their authority, because the citizens are, consistent with the Platonic conception of justice, “their own guardians” (The Republic 410d–411a). When virtues are only weakly developed, institutions must be strengthened. Hence, as long as a sense of a global bond (Zugehörigkeit) and the corresponding dispositions are only weakly developed, more powerful institutions are required. The willingness to create them, however, is stifled by the inadequately developed sense of a global bond. This is a vicious circle: while an insufficiently developed sense of a global bond demands strong global institutions, these institutions are not established due to the absence of a sense of this bond. The first way out of the circle is to call attention to our existing human similarities: universal human reason, humanity’s heritage of justice and the rule of law, and our common appreciation of philosophy, science, medicine and technology. Above all, it helps to recognise that we have a strong common interest: our world’s need for action calls forth the sense of a global bond, for not only are common problems recognised, but we acknowledge they can only be overcome with common effort.

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Where the global need for action results in increasingly global solutions, mutual trust will gradually evolve, the willingness to establish global institutions will grow, and the sense of global belonging will simultaneously widen and deepen. The appropriate strategy to break out of the circle is therefore one of ‘interest and success’. Where common interests coincide with an experience of successful cooperation, common institutions will be created; and because global civic virtues are growing, global institutions need not be overly powerful. In a world shaped by parties, federations and organisations, it would be naïve, of course, to rely on individual willingness alone. In order to ensure that the global civic virtues have some bearing in the real world, it is advisable to support global society with (usually non-governmental) organisations. Their legitimacy is not based on a multi-levelled statehood. It is impossible, of course, to establish one institution for all global civic virtues; rather, different tasks require different organisations, all of which may cooperate with one another. Civic virtues on the global level, as in the individual state, require a prior selfassertiveness from the citizens. Within the individual state, people object to being treated merely as means to an end. In the world republic a different type of selfassertiveness emerges, one that is pursued by the immediate actors on the international level. Both states (“world-federal self-assertion”) and world citizens as well as their non-governmental organisations (“cosmopolitan self-assertion”) have the (legal) duty to let themselves be treated by others not only as means, but also as ends. The states, social organisations, and federations must not submit to others nor allow themselves to be exploited by them. On the contrary, as the world republic is created they must assert themselves as equal legal subjects. 12.2 A SENSE FOR GLOBAL RULE OF LAW AND JUSTICE

1. The elementary global civic virtue, sense for the global rule of law, demands only the recognition of legal obligations, without requiring enforcement by the world republic. The sense for the global rule of law is compliance with the law, it is freely entered and is, on the global level, content with voluntarily engaging in that which is required, and with voluntarily refraining from that which is prohibited. Global legislation is, as international law, concerned with relations between constituent states; as global civic law, it is concerned with the citizens of the world – albeit usually not directly, but with constituent states acting as intermediaries. The balance seems to shift here. Whereas the law of individual states is concerned with the lawful behaviour of the natural subjects, global legislation is more concerned with the lawfulness of states. Indeed, the global sense of law is prima facie required from individual states, because the states must incorporate the legislation of both international law and global civic law into their legal systems. Furthermore, states must enforce these laws by judicial and administrative means. The corresponding sense for the global rule of law, however, need not be lacking to such an extent that states and political elites are induced to seek special privileges without the citizenry asking them to do so. On the contrary, the citizenry often expects office holders to

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implement global legislation and enforcement only selectively, namely only where it serves their (collective) self-interest and where not too great a sacrifice is required of them. In this respect the shift in emphasis is rather limited: the sense of the global rule of law, of which individual states must dispose directly and their citizenries indirectly, comes in two stages: the legislative sense of the global rule of law enacts laws of an international and world-republican nature, while the applied sense of the global rule of law puts them into practice in applicable cases. For both the world republic and its individual states the implication is clear: if the vast majority of constituent states don’t comply voluntarily with global legislation (both in legislation and in the application of the law), then the world republic’s ability to enforce the law is quickly runs up against a wall. Legal protection is not usually affected by such a scenario, because individual states are responsible for it. Yet, there exists a danger of free-riding, which we are familiar with from the United Nations: some enjoy the benefits without shouldering the burden of membership payments or participation in world-republican deployments. More importantly, a number of responsibilities of the world state are jeopardised: those that, because of the erosion occurring in individual states, are undermining their legal protection. Where the sense for the global rule of law is absent, international organised crime, international terrorism and global environmental pollution cannot be effectively fought. The (current) two-stage sense of the global rule of law assumes that the law applies to relations between states, and this presupposes peaceful coexistence free of violent force. The corresponding general willingness to establish peace and the rule of law indicates a further (in a systematic way, primary) stage: until a prevailing number of individual states possess a general willingness for peace and the rule of law, the world republic will not come to be. The stage that precedes the legislative and applied sense of the global rule of law is, then, the initiating sense of the global rule of law, that is the willingness to work towards a global order based on peace and the rule of law. This stage is required especially from the more powerful states. In the case of smaller states it converges with their immediate self-interest; as a rule, small states have an inherent interest to protect themselves against powerful states. What assessment can be made at the global level for the ‘marginal virtue’ of civil disobedience? Just as in the individual democratic state, civil disobedience is allowed in a global democracy, where it surfaces as world-federal disobedience, as disobedience of a state or a group of states to the world republic. Nevertheless, disobedience remains the ultima ratio and must be willing to accept disadvantages if the action is to be taken seriously at all. Even at the global level one should not speak of a general ‘culture of opposition’, for it blurs the differences between opposition against an unlawful and a possibly evil regime on the one hand, and lawful opposition against a (now global) democracy on the other. As with individual states, disobedience at the global level is prone to considerable abuse, for the effect of disobedience – to raise the financial and social costs of an unpopular policy and to advance one’s alternative policy at the same time – amounts to an exceptional advantage that is only justified where no particular interest is pursued, but where elementary

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injustice is prevented. Hence, world-federal disobedience is not illegitimate by principle, but is justified only under extremely strict conditions. One would expect that individual democratic states would contribute to a sense of the global rule of law. Accustomed to conflict resolution within the state that is free of force and operates under the rule of law, one would expect that a democracy would emulate this behaviour in its external affairs. Yet, there are two reasons why such expectations should be regarded with scepticism (see ch. 9.3.2). On the one hand, social psychology informs us of the differences between internal and external behaviour: that which a group upholds internally is not automatically transferred to its external relations. On the other hand, a democracy represents not only a constitutional state that protects universal legal goods, it is also an arena where particular interests fight for supremacy. When the agonal aspects are so overriding, one should not rely exclusively on the sense of the global rule of law: an ingenious citizenry will try to secure special advantages for itself, if necessary under the cloak of worldfederal disobedience. 2. In a further analogy to individual democracy, the people in the world republic are not merely subjects of the law. Where people participate in the legislative process – directly or through the media, political parties and associations – the same structural problems that emerged for the individual state surface again. These complications require not only institutional countermeasures but also a sense of justice. Consistent with the dual global legal contract, a sense of justice is required for the two constituent elements of the world republic. With regard to the legislative chamber, a cosmopolitan sense of justice is required for the world citizen parliament, the Global Congress, while a world-federal sense of justice is required for the Global Council. Yet, a sense of global justice is also needed for the media, associations, non-governmental organisations and the various holders of political office. The global sense of justice can be countered with the fourth objection (see ch. 10.1), which claims that the notion of justice presupposes communality, a global understanding of what justice entails that does not actually exist in reality. Yet, this communality actually does exist: in a legal–moral way as an intercultural discourse that offers the basis for universal human rights and the right to be different, and in a legal–practical regard as a common declarations of human rights, for example those initiated by the United Nations (see also ch. 13.3). An individual state requires a sense of justice for three of its responsibilities: for establishing democracy, for its institutional and legislative advancement, and for behaviour displayed within the respective institutions and laws. All three responsibilities re-emerge in the world republic, and what is required in each instance is not only a synchronous but also a diachronic type of justice, a justice towards future generations. The first stage coincides with the initiating sense of law: the initiating sense of global justice promotes the advancement of a global legal order and the eventual creation of a federal world republic. In so doing, all individuals (so the sense of cosmopolitan justice demands) and all states (so the sense of world-federal justice demands) must recognise each other as equals. They must neither suppress others

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nor exploit them, nor should they demand privileges for themselves. Of course, a democracy is no static institution. Once established, its structure and laws do not remain unchanged and are not eternally valid. The federal world republic is a permanent construction site, partly because of newly arising demands and side constraints, partly because of experience with the strengths and weaknesses of the existing organisation. A legislative sense of global justice is required to prevent the world republic from being shaped by the current distribution of power. Finally, an applied sense of global justice is necessary so that injustice and oppression are recognised, assessed and adjudicated to the same standards all over the world. Furthermore, one must not take advantage of every loophole that may, indeed, be legal, but which goes against the spirit of the law. If the sense of global justice wants to establish an organisation that allows it to become effective, then this entity cannot consist of a federation of global justice. For a responsibility such as justice, which is so comprehensive in scope and so much in need of specification, a federation is simply not suitable. The case is different for specific duties towards justice, such as safeguarding human rights and protecting the environment. Organisations undertaking these responsibilities may certainly count as an expression of a sense of global justice and, moreover, as representatives of a global civic society. Of course, they are not exclusive representatives, if only for the fact that they tend to be focussed on relatively narrow subjects and, consequently, fail to accomplish three responsibilities of justice: they do not balance the various justice-internal goods to which the specific responsibilities of justice give rise; they do not introduce corrections when interests are either over-represented or under-represented; and they do not rectify situations where a wrong is underestimated or simply ignored. However, in so far as various organisations cooperate with one another and evaluate their respective objectives and interests, they may to some extent address these responsibilities. The organisations concerned do not equally represent a sense of global justice. It is the organisations’ precise purpose and the quality of their work that matters. If human rights violations are traced impartially throughout the world, if meticulous reports on them are produced, and if the United Nations acts as a complainant in possible court cases, then the sense of global justice is better served than by organisations that proceed selectively and are more interested in media attention. However, even in the ‘better’ organisations, the three deficits mentioned earlier should not be ignored, nor should two further limitations be ignored: a lack of democratic control and the fact that the organisations, which are not equipped with the authority to compel, are unable to help anyone receive justice. A sense of justice is usually accompanied by tolerance. Tolerance supports the right to be different at the global level and allows states to nurture their linguistic, religious, social, legal and political characteristics, provided they act within the scope of a universal legal morality. In their ambitious manifestations, global tolerance and the sense of global justice evolve into that feeling of fairness towards other nations which Herder demands in his Letters for the Advancement of Humanity (119th letter: 1991, 404): that each

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nation “is to put herself in the place of every other” and that she is to “hate the impudent transgressor of foreign laws as much as the impudent offender of foreign customs and opinions and the ostentatious imposer who coerces other nations against their will into adapting his own preferences”. A sense of global justice is also required for the ‘critical world memory’: out of fairness for the victims, global society must not content itself with the recollection of some particularly heinous crimes against humanity, nor, for that matter, must it recognise them selectively. The fact that certain genocides are buried deeply in world memory, while others are rarely mentioned or are completely ignored, is an elementary ‘anamnetic injustice’. This injustice can be rectified by a world memory that does not forget the many acts of violence. 12.3 A GLOBAL CIVIC SENSE AND A GLOBAL SENSE OF COMMUNITY

1. In the case of the third civic virtue, the global stage differs substantially from the stage of individual states. This is because one of the conditions of application, the commitment to one’s community rather than to that of others, has vanished. The difference between inside and outside is nullified in both international law and global society. There remains, of course, a difference between generations. However, the sense of global justice forbids today’s generation from living at the expense of tomorrow’s. Hence, although the difference between the inside and the outside vanishes at the global level, the commitment to one’s own (now global) community does not become superfluous. A global civic sense remains sensible on both levels: A formal-democratic global civic sense is willing to participate only in some of the more elementary democratic institutions of the world republic, namely elections and referenda. A participatory global civic sense, in contrast, prevents professional global politicians from taking over all aspects of global politics. It tries to engage in intensive political participation, although at the global level this is, when compared to the level of the individual state, far more difficult to accomplish. But a participatory global civic sense will likely remain an exception among individual citizens. Furthermore, the aristocratic element (as seen in individual democracies), manifests itself even more strongly at the global level, for very few prominent individuals are able to exert personal influence. However, non-governmental global organisations demonstrate that individuals can organise into groups, which can, in turn, practise participatory global civic sense in a way similar to communal or regional grass-roots movements. 2. The rule of law and states, including their authority to compel, are not the end of the story at the global level. Global coexistence is open for more than that which is owed; it also requires compassion and goodwill, generosity and amicable relations. The fourth global civic virtue responsible for this may be called a sense of global community. Two of its responsibilities in particular are worth mentioning (see also ch. 15.5): A social sense of global community opposes the increasing bureaucratisation of, and state influence on, societal responsibilities and embraces the notion of voluntary social

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engagement. Thus, we see charitable activities, such as international student exchanges, partnerships between towns, development aid, disaster relief and assistance to transitional democracies in the creation of bureaucratic and juridical institutions. Organisations are indeed indispensable in coping with the usually immense tasks involved in such efforts; yet, they remain independent, non-governmental entities. Three examples illustrate they dispose of financial and personnel resources comparable to those of multinational corporations: the two charitable organisations of the Catholic Church in Germany have spent more than DM 5.2bn (£ 1.3bn, $ 2.8bn) on international projects over a period of twenty years (from 1964 to 1984). The organisation ‘Doctors without Borders’ (Médecins sans Frontières) spent $ 252 million in the year 1996 alone. Amnesty International had, in 1997, more than one million members in over 160 countries, made up of over 4,300 local groups and 3,400 student groups (Amnesty International Report 1997, 394). A second requirement is a cultural sense of global community. In spite of it lying primarily within the purview of the individual state, the promotion of a language, literature, music, arts and architecture does has a global aspect to it, and should therefore not be handled only by the world republic. A sense of community requires an objective common ground, something that exists among all human beings, communitarian doubts notwithstanding. Global society has a substantial potential for community, one that is promoted in particular by two factors. The prerequisite of a global democracy, a global demos, is strengthened not only by philosophical Enlightenment, that is, by a regard for common human reason, but also by the various economic and non-economic dimensions of globalisation. This global common ground is much less pronounced than the subglobal one, and the global demos is more heterogeneous than the population of even the most pluralistic individual society, facts that confirm the subsidiary nature of the world republic: so as not to overburden at first the global civic sense and the sense of global community and then to deplore their failures; individual societies and their civic virtues should continue doing that which they already can do. As with the complementary world republic, global civic virtues are content with complementary global responsibilities.

PART THREE

INSTITUTIONS AND RESPONSIBILITIES

The most important responsibilities of the world republic arise from the implementation of human rights that are universally valid. The protection of these rights is primarily incumbent upon individual states. However, states find themselves, for both contemporary as well as more fundamental reasons, in situations they cannot always appropriately master. Accordingly, the world republic has two types of responsibilities: on a basic level, its task is to protect international peace and to uphold global civic law as well as the law between states (ch. 13). Given the reality of the global market, however, the world republic is de facto also responsible for the juridical, social and ecological constraints of that market (ch. 15). There is also the rather difficult responsibility of subsidiarity, namely that relating to the self-determination of nations, the secession from a federation, and humanitarian intervention (ch. 14). The final chapter outlines a world order and the long road we must follow to establish it (ch. 16). Of course, philosophy cannot deal with the finer details, as it does not master the necessary specifics, neither those particular to the economic and other social sciences, nor those concerning the ever changing historical factors involved. Still, philosophy can develop a normative framework, or at least discuss some of its structural elements.

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13.1 PROTECTION OF INTERNATIONAL LAW

The unprecedented nature of other tasks must not divert us from the most fundamental responsibility, the protection of international peace and international law. The world republic must secure the legal protection of all nations and all citizens of the world. We begin with the core of the first dimension: security between states. Only the West Europeans, spoilt by the prevalence of peace in their region, can overlook the fact that there continue to be many military conflicts. In fact, their number has constantly increased since 1960 and the slight decline the world has witnessed since 1992 has not yet stabilised to an extent that would indicate a reversal of the trend. In 1994, there were 41 wars worldwide, over half of which have been lingering on for over a decade (see Stiftung Entwicklung und Frieden 1995, 361). The grief and harm caused in the process, the shocking social, economic and ecological costs involved and, above all, the injustice suffered: these all demand sustained improvement. In what follows we highlight two issues in particular. In order to apply the law based on the principle of justice – that is to say: to be impartial – violent force and injustice must both be opposed, irrespective of the prevalent political, economic or military power, or of the media’s influence on the global public. The world republic must by no means continue the current practise of world organisations to selectively fight injustice and violence. Difficult questions regarding the weighing of competing goods may surface in the process, above all in the transition phase during which the world republic has not yet been fully established: it is not acceptable to take action without considering the considerable moral costs in human life or cultural autonomy. The world republic must also oppose all violent force equally, not leniently in some cases, and strictly in others. Closely related to this is the precept of proportionality: the counter-measures used to prevent violence must never exceed what is absolutely necessary. Finally, the struggle against injustice must never lead to even more injustice. Collective punishment, for instance, is as inadmissible as military action against civilians. Only these conditions prevent global statehood from assuming the shape of a Pax Romana, an order of peace defined by a (singular or allied) hegemonic power. The protection of international peace must never evolve into a mere fig leaf behind which particular interests with hegemonic aspirations unite and where power has precedence over law. Like the individual state, the world republic too requires the means to be effectively impartial. Above all, in a legal–constitutional sense, it requires a monopoly on interstate force and the administrative body to impose such powers. If individual 251

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states continued to have weapons and armies, a world republic would have to have a global army and arsenal of weapons that would be superior to those of the states. Apart from the fact that this is a dangerous as well as an unfeasible prospect, a military is, in a narrow sense, not a juridical, but a political instrument, which is bound to few rules of international law and typically defers to the mightier. Upholding the rule of law is the responsibility not of the military, but of an institution that is part of a rigid legal system, namely the police. This follows because a lawful peace owes its existence not to the mightiest military power, but to the combination of a radical disarmament and the establishment of a worldwide police, a global police force. (It goes without saying that, as long as full disarmament is pending, intermediate steps are necessary, in particular the elimination of especially dangerous weapons that, by virtue of their imprecision, inflict harm on innocent non-combatants, such as sea and land mines, biological and chemical weapons and, above all, nuclear weapons). There is the organisational question of whether the world republic should have a standing global police force at its disposal, or whether these forces should be assembled ad hoc when required. The more demanding option can be opposed on grounds of the dangers of an overly powerful world state and its commitment to impartiality. If that commitment were to be honoured in the case of a permanent army, then all constituent states would have to be excluded that are involved in conflicts, are allies or adversaries of states that are involved in conflicts, or that have economic, political or cultural interests. In the case of the more modest option of an ad hoc police force, in contrast, there is a danger that it will be assembled too slowly and intervene too late. Should the world republic make use of the police forces of individual states, however, it would become dependent on the approval of those states, which would contradict the statehood of the world republic, namely its (selectively limited) sovereignty. Therefore, a permanent global police force indeed seems necessary. Provided decision makers practice the global civic virtue responsible for the executive branch, namely the sense of the global rule of law, permanent troops would promote and facilitate compliance with the principle of impartiality (see ch. 12.2). The more strenuous sense of global justice is demanded only of those public powers that decide on operational aspects of rules and the interventions of the global police or that adjudicate the legality of interventions after they occur. In short: this virtue is demanded of the global legislature, the highest level of the executive branch, the world government, and the global judiciary. 13.2 THE PROTECTION OF WORLD CITIZENS

Current law grants foreigners fewer rights than citizens. Strict globalists such as Beitz (1989) demand this disparity be rectified. According to Habermas (1998), there is, when it comes to public law, no difference between the inside and the outside, between natives and strangers, because all human beings are natives and strangers to an equal degree. Both positions are valid, but they wrongfully generalise their respective arguments. According to our third way – that is qualified cosmopolitanism – each human being is entitled to a dual membership, a ‘national’ citizenship and a complementary world citizenship.

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A world citizenship meets the demands of the globalists to some degree, as it guarantees all human beings everywhere in the world the same protection of human rights. State institutions must neither passively tolerate nor actively engage in the robbery, arbitrary imprisonment or enslavement of peaceful foreigners at state borders, nor is it permissible to deprive them of the protections of civil and criminal law once they are in the country. In addition, where the protection of the law is deficient on the national level, one may take legal action against one’s own government, not only before the judiciary of the state, but also, through official state-internal channels, before the global court. (Such a court, however, must strictly keep to the remit of a judiciary and must refrain from politics by legal means.) On the other hand, the communitarian approach to limit, for example, the right of foreigners to purchase foreign real estate or works of art and to limit their right to democratic participation is also legitimate. Nor is there a legal–moral claim to the solidarity of foreign communities. Hence, there is no absolute difference between the ‘inside’ and the ‘outside’, but there is certainly a relative difference. Given that global civic law does not invalidate, but rather complements national civic law, the pure world citizen – one who is citizen of no particular state and is therefore a foreigner everywhere – is in a legal sense both discriminated against and privileged. Such people have, for instance, no right to participate in the affairs of a community, but nor do they have to submit to military or social service. It is another responsibility of the world republic to overcome this illegitimate state of affairs and to guarantee every person a citizenship somewhere in the world. The world republic has to insist on internal and interstate regulations that prevent what millions of people had to endure in the aftermath of the October Revolution and the two world wars: a stateless existence. In order to ensure that everyone has the right to have rights (see Arendt 1973, 290–302, 447) – or more precisely: to possess not only global civil rights, but also national civil rights – no child must come into this world without a national citizenship. Nor must anyone lose their national citizenship, especially against their will, without having or obtaining another one. Hence, global civic law commences systematically with a claim that is also in the UN’s Universal Declaration of Human Rights: “everyone has the right to a nationality” (Art. 15.1). That which Hegel deems the highest duty (Philosophy of Right, § 258) is also a basic right: to be a member of a public legal order, a state. The question as to whether individuals may renounce their citizenship is problematic, even if it is the only one they have. On the one hand, an individual should have the right to express political protest in this way, for example as an objection against a government’s foreign policy or its human rights violations. Anyone who concludes that, because all other means have failed, renouncing their citizenship is the only way to retain their moral integrity should be allowed to do so. On the other hand, renouncing citizenship is to some degree a pragmatic contradiction, because those who thus protest against their governments hope to exert influence on them. However, when renouncing their citizenship, they thereby give up their rights to participate in and influence the state. One may even point to a second pragmatic contradiction: those who protest against the politics of a government demand

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changes from that government and, thus, implicitly endorse the separation between the government and the community or the state. If, however, one protests by renouncing one’s citizenship, one thereby negates that very differentiation. The government is afforded a status that unjust governments in particular deserve the least, namely to equate the state with the community. Moreover, there is a danger that children born after the citizenship has been renounced will be without nationality, a scenario that impairs their rights and opportunities and is therefore in violation of parental responsibility. Hence, renouncing one’s sole citizenship without receiving another one can be legitimate only in exceptional circumstances and only as the ultima ratio. 13.2.1 Generosity The right to be different allows groups to retain their status as communities while enabling their members to assume special rights according to universal principles. Hence, global civic law does not grant unrestricted liberty. Of course, the home country must not deny its citizens the right to emigrate or to change their citizenship, for they have, according to a wider interpretation of religious freedom and freedom of conscience, the right to prefer the specific (social, political and cultural) features of another state. However, a claim to stay permanently in any state of the world, to participate on equal terms in the state’s development and to benefit from the blessing of its welfare arrangements – in short, a human right to immigration – does not exist. A universal right to immigration is denied by the principle ultra posse nemo obligatur (‘no one is bound beyond ability’), because the resources of even the most generous host country can easily be over-stretched. Imagine if the 12 million expellees after World War II, or the 15 million refugees the world witnessed at the turn of the twenty-first century, had all wanted to immigrate into a prosperous but small state such as Liechtenstein. It would have undoubtedly lost not only its characteristics as a state as well as its prosperity, but also the ability to survive as a state; the population of 28,500 would have increased by factor 400 or 500, and the 99 percent of immigrants would have faced less than one per mille of ‘autochthonous’ individuals. Of course, such a situation could be improved to lasting effect if the refugees were to be distributed among all wealthy nations. However, such a distribution would not be brought about by the refugees themselves, and would therefore constrain their liberty. The possibility of resource scarcities gives rise to a second counter-argument: the precept to assist is, in many cases, no legal–moral duty, but a matter of solidarity or charity. The type of help afforded remains open as well. Furthermore, given that refugees can rarely return to their native country, ‘assistance on site’ is often better than admitting refugees, for they typically remain permanently expelled, so that the injustice of the act of expulsion is actually rewarded. Finally, a third objection surfaces: with a critical mass of immigrants coupled with a certain type of behaviour, immigration may turn into colonisation. To be true, the influential teacher of natural law in the era of colonisation, Francisco de Vitoria (On the American Indians, II 1539), demands a universal freedom to settle in the name of ‘natural society and community’. However, the well-known result, Spanish and

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Portuguese rule over the indigenous populations of Central and South America, would not have been right even if colonisation had been more humane. Large-scale resettlements within states are also questionable. That Indonesia tries to diffuse the issue of overpopulation on the island of Java (where the number of inhabitants has grown from a mere 6 million to 107.5 million between the years 1900 and 1990) by resettling individuals to thinly populated offshore islands appears reasonable at first. Yet, a second look reveals that one religion is crowding out other religions and that one language is suppressing other languages. The Muslim-Malaysian Javanese are in the process of dominating the animistic Papuas and Christian Dajaks. Moreover, the economically more primitive sections of the population are overrun by the more developed ones. Given that immigration is not a human right, a state can decide – within limits – how many immigrants it wants to accept and on which terms it will do so, as well as require immigrants to display a minimum willingness to adopt the social and political culture of the host state. On this question too, there is a right to be different: typical immigration countries like the USA tend to combine a greater degree of cultural openness with a lower level of societal solidarity, which manifests itself in the form of a less developed Welfare state and greater disparities in income and assets. What reason should impede us from pursuing the alternative policy of more solidarity in combination with a greater degree of cultural homogeneity? A distinction needs to be made between a demanding form of generosity, the (supposed) human right to immigration, and a more modest form, the right to establish contact. According to global civic law, human beings have the right to knock at another’s door and to express their wishes, without having the right to be admitted, to live in or participate in the affairs of that state. Kant distinguishes clearly between the modest right to visit and the more demanding right to be a guest, and he sees only the first to be compulsory from a legal–moral viewpoint (Perpetual Peace, 3rd definitive article; The Doctrine of Right, § 62). By virtue of the fact that humanity is ‘originally’ (i.e. ‘by virtue of reason’, not ‘historically’) in possession of the entire earth, so Kant argues, every human being has the right to proceed peacefully to every place on earth and to offer to the existing population any form of cooperation, including trade in products and services, friendship and marriage, as well as scientific, artistic, religious and political exchange. However, the other side is not obliged to accept the offer, nor must it agree to commerce or political, religious or cultural conversion. A problem of a special kind emerges when the mere offer to cooperate endangers the survival of a culture. There are still large areas on this planet that have remained unspoilt by modern civilisation. Should the populations in areas of Tibet and in the tropical rain forests of Africa, Asia and South America not have the right to be protected from the ‘blessings of civilisation’? Cultures at the stage of the Stone Age are hardly in a position to evade the absorptive pressures of a late-industrial consumer society. Hence, not only are their social and cultural characteristics endangered, but their very physical survival as well. This fact violates the fundamental core of all law, namely the principle of reciprocity and its negative minimum, the prohibition of violent behaviour. (Of course, not all characteristics are worthy of protection,

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including cannibalism and human sacrifice. The question whether there is a right to intervene in such cases is a matter not of the right to immigration, but of humanitarian intervention, see ch. 14.3.) Incidentally, the world-wide web (the internet) gives the right to visit a new lease on life, for it allows an individual to make offers not only in a simpler, but in many respects, a safer manner. As long as (business-related, scientific, cultural . . .) relationships are limited to the internet, they do not require a stay or a settling on someone else’s territory, nor do they bring about a threat to life and limb. 13.2.2 Asylum The right to asylum should be distinguished from the issue of generosity. The right to asylum has come a long way from its humble origins and today assumes the status of a basic universal right. Initially conceived as a small step to avoid blood feuds, the right was restricted to only a few places (‘sanctuaries’) such as holy sites, later to the castles and palaces of the aristocracy and, later still, to the houses of citizens in a town. The form this right has taken in international law – namely the stipulation in Art. 14(1) of the Universal Declaration of Human Rights that “everyone has the right to seek and to enjoy in other countries asylum from persecution” – is rather modest. It contains neither a right of the individual to asylum, nor a duty of states to accept asylum seekers; instead, it merely stipulates that the granting of asylum constitutes neither a hostile act against the home state nor an impermissible interference in that country’s internal affairs. In fact, the principle of ‘non-refoulement’ proclaims that whoever is politically persecuted must not be deported back to the state where the persecution is taking place. Yet, those individuals enjoy no subjective right to asylum, meaning that a state may reject them and send them off to a safe third party state (see Hailbronner 1997, 257). The demanding variant of the right, that is a right to asylum that is suable by individuals, is recognised by very few states, Germany being one of them (Art. 16, 1 of the basic law). However, there is no reason to accuse all other states of cruelty or indifference towards human rights (see Beitz and Wollenschläger 1980/81; Kälin 1991; Kimminich 1983). The right to asylum can be justified with the Kantian argument mentioned earlier, according to which the earth was originally the property of all of humanity: if individuals are persecuted in their native communities without being guilty of an offence, they have the right to stay (and, in cases of continuing persecution, also to settle) in another part of the original common property. However, they have this subjective right not as a citizen within a particular state, but as a world citizen within the totality of all states. However, issues of resource scarcity emerge once more: imagine again, millions of legitimate asylum-seekers targeting a single prosperous, but tiny, state. The country in question would be overburdened not only in terms of its territorial size and financial capability, but also with respect to linguistic understanding and social integration. Once the right to asylum is recognised as a global civil right, the world republic must ensure that, by way of a just distribution of burdens, asylum-seekers initially receive immediate protection and subsequently find accommodation in the various

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states. It would be an exceptional scenario if one state were to carry, on behalf of all the other states, the sins of all of the world’s authoritarian regimes and violent nations; as with any privilege, this is something that cannot be justified on legal–moral grounds. In a constitutional state that recognises the right to asylum, it is similarly unjustifiable for a religious community to take the liberty to grant, against the decision of the state, its own asylum in the church. At most one might resort to civil disobedience. The moral achievement of the right to asylum is beyond question. It has saved the lives of countless people, and even more have seen considerable improvement in their lives. In practice, however, this right raises the difficult question as to what degree of persecution necessitates asylum. The right has not been created to improve just any situation. Does political or religious persecution (why asylum began) begin with simple harassment or only when there are serious death threats? Moreover, the right to asylum loses a significant reason for its existence – namely political or religious persecution – once all societies have become qualified democracies. 13.2.3

Crime

As with the lawful economy, crime too, has long crossed national borders. Crime is now organised into international enterprises, engaged in arms trade, drug trafficking, human trafficking (including economic refugees, cheap labour and prostitutes), child pornography, industrial espionage and money laundering. Neither is terrorism bound by state borders. Criminal cartels operate in evermore ingenious ways, particularly as concerns money laundering, and the ‘old’ cartels are under increasing pressure from ‘new’ entrants. It should therefore come as no surprise that profit generated by crime each year, the annual ‘Gross Criminal Product’, is estimated at around 500 billion US Dollars and is, as such, equivalent to nearly half of Germany’s Gross Domestic Product. The fight against crime is a matter of internal security and is, as such, the responsibility of individual states. However, given its international dimension, the problem cannot be solved only on a state-internal level. Even so, the required cooperation must not necessarily involve the world republic, because as with the case of Europe, certain tendencies are particularly imminent on a global scale: that collaboration takes place in a highly bureaucratic, inflexible and technically outdated fashion. Still, the corollary of global civil rights consists in a duty to cooperate: just as legal protection applies equally to foreigners and citizens, citizens are also entitled to legal protection against criminals operating in other countries. The states where criminals (whether they are foreigners or citizens) try to operate or hide in, therefore must cooperate in the fight against crime. The world republic, in contrast, is responsible only in a subsidiary manner, when the primary obligation of individual states is not fulfilled. The world republic is an authority of appeal, providing remedy where cooperation is missing, and is the entity that develops general guidelines for cooperation. Not only does globalisation allow traditional crime to expand; but the world-wide electronic web facilitates new forms of abuse and crime. The nearly perfect market the worldwide web creates undermines rights on both sides – businessmen, suppliers

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and governmental departments on the one hand, customers, employees, citizens and, in the health sector, patients on the other. Intellectual property rights are also now threatened because work can be digitally stored, copied and distributed without loss in quality, as well as altered and combined with other works. Hackers, spies, blackmailers and other ‘greedy data collectors’ (including governments), can misuse, manipulate and steal data, which is a danger to the right to data protection and, in cases of financial fraud, material property. Finally, finance ministers miss out on the collection of duties, excise and value added tax. The protection of the rule of law obviously required here is unprecedented and no longer bound by territorial borders; it is now international in nature. The world republic is responsible only in a subsidiary manner, but this responsibility is still compulsory. The responsibility is subsidiary because upholding the rule of law is the responsibility of individual states, and because international tasks can be accomplished with interstate agreements. However, there is a danger here similar to that of tax havens (see ch. 15.1): in order to reap certain advantages, a state will either not seriously try to enforce interstate agreements, or not join them in the first place. The world republic is not called for from the start, but only in a subsidiary way, when such problems occur. Given the digital world develops too quickly for governments to keep up, an optional twofold strategy is conceivable: a combination of (civic) self-protection and (corporate and governmental) self-control. On the one hand, citizens – as customers and inventors of intellectual property – protect themselves by using special applications (‘software’). Corporations and governmental departments, on the other hand, agree to a form of voluntary self-control and make only sparing use of personal data. Yet, given the electronic market offers vast potential for profit and that the world-wide web represents an almost inexhaustible source of data, desires are produced that make effective self-control or effective self-protection unlikely prospects. Furthermore, security experts can never count on winning the race against hackers. 13.3 GLOBAL COURTS OF LAW

Legal arbitration of disputes occurs through an impartial and authorised third party, a court of law. International disputes therefore require courts of law with international jurisdiction in two types of law: international law that applies to states, and global civic law that applies to world citizens. Global courts of international law are, in this framework, concerned with disputes between states, and between states and the world republic, whereas global courts of civic law become active where, for instance, states become guilty of discrimination based on race, gender or nationality. Both types of global courts must distinguish between a petition made to the court to challenge a national law because it is seen to violate individual rights (the Normenkontrollklage) and the challenge to individual legal verdicts given by national courts (the Einzelfallklage). International courts have long existed. The ‘Central Committee for Shipping Traffic on the Rhine River’ (Zentralkommission für die Rheinschiffahrt), a criminal

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and civil court of appeal, has existed since 1831, and its precursors date back to 1804. The main judicial body of the United Nations, the International Court of Justice in The Hague, has global jurisdiction. However, this jurisdiction is optional, not compulsory, and the expert opinions that the UN General Assembly or the Security Council may demand from it are not legally binding. This is also true of other examples of international jurisdiction, such as the International Tribunal for the Law of the Sea in Hamburg (an institution within the remit of the United Nations and therefore responsible for all member states of the UN) and the arbitration board of the International Chamber of Commerce in Paris (the only worldwide organisation of free enterprise, with national committees in about 60 states and individual members in about 150 states). No global courts in the fullest sense of the term presently exist, however. There is yet no court with jurisdiction that is obligatory, global in scope, legally binding, and that has the ultimate authority to make and enforce legal decisions. Philosophy does not involve itself with the detailed structure of the courts. However, global courts may refer back to the highly refined instruments presently available to national courts, and the experience with existing international courts. In what follows, however, certain issues are worth pointing out. 13.3.1 A Judicial Sense of Global Law An ideal legal verdict, that is to say: an impartial and objective verdict in the strict sense, must allow all who familiarise themselves with the facts of the case and the legal position to arrive at the same conclusion. Only then does a verdict fulfil its duty to be the voice of the law, rather than the decision of a power that has been authorised through the proper channels, but whose decisions are arbitrary as to their content. Only when this condition is fulfilled is true appeasement possible, so that the losing party does not feel victimised by an unfair authority (consistent with the expression that ‘at high sea and in court one’s fate is in God’s hands). Instead, the losing party may assume the position of a neutral observer, from where it may, even if reluctantly, accept the verdict. Seen from the viewpoint of the theory of agency, an ideal verdict of the court comes about through the combination of three factors, two of which are personal and subjective and one which is objective in nature. In terms of personal competencies, a judge must combine the cognitive capacity to interpret the facts of the case in light of the applicable law with the moral willingness to implement that interpretation sine ira et studio (‘without anger or bias’). The cognitive capacity, in turn, depends on legal education, the faculty of judgement, and professional experience in court; the moral willingness depends on a basic disposition that can be further strengthened through experience in court, but that is also endangered by (sometimes subtle) predispositions and, in the case of higher legal authorities, by awareness of the power that these bodies command. Both factors have a prerequisite. With regard to cognition, a common interpretation of the law is required; with regard to morality, a common understanding of justice is needed, which admittedly applies only to the application of the law, not to its creation. Only if both conditions are met does the board

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of judges dispose of the sense of the rule of law that is required to produce an ideal legal verdict. Universal principles of the rule of law, which are comprised of human rights and universal procedural principles, provide the normative basis for the sense of the rule of law required of ideal global courts. Given their indeterminateness, however, these principles are not sufficient (see ch. 4.4). Radbruch (1965, 206) remarks quite rightly that “a supranational legal order has to be embodied in a number of supranational human beings. There cannot be global judges without pre-existing world citizens”. Of course, a lawful disposition on a supranational or even global level is not enough. For example, the universal principle of criminal law, according to which a verdict must be based on conclusive evidence, leaves open the question as to what type of evidence is admissible. The answers to these (and other) questions are developed in international discourses on rights that take new problems and their solutions into account. Competing political assessments emerge in the process. States struggling with organised crime, for instance, may find it difficult to disavow certain types of wire-tapping evidence in the name of the protection of civil rights. The task of developing comprehensive common procedures is complicated by the fact they are bound to interfere with national legal systems. A national court, for instance, may find it difficult in the long run to reject a type of evidence that global courts deem admissible. There is also a danger that a particular legal consciousness will dominate the global realm, a scenario that would amount to a form of legal colonisation. The consequence is both serious and fatal. Legal judgement will be biased if the contingent composition of a global court or the balance of power in the global media allows for a particular (Anglo-American, continental-European, African...) legal tradition to assert itself. In such cases, power commands precedence over the law. Only a common understanding of global law and an equally common understanding of global justice – that is to say, a judicial sense of the global rule of law – can prevent such a scenario. 13.3.2 The State under the Rule of Law and the State under the Rule of Judges An impartial verdict requires not only the two personal conditions mentioned above, but also an objective prerequisite: a clear standard. For verdicts given in individual cases (the Einzelfallklage), that standard consists of well-defined rules or powerful preliminary decisions, while for the petition to challenge a national law (the Normenkontrollklage) it consists of well-defined standards of a higher order, such as constitutional norms. Global courts abide, in principle, by the same standards. However, (international) customary law, and its gradual evolution as expressed through court verdicts, plays a greater role in international law than in national law. Hence, an indispensable, but legally problematic law, the judge-made law, receives much greater weight in the international arena. Judge-made laws are those legal principles developed over time and based on case law, where judges interpret existing (or supplement non-existing) statutory provisions. They are indispensable because cases sometimes emerge for which no prior verdicts are available. For this reason the Swiss Civil Code (Art. 1, 2)

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quite rightly stipulates that “if there is no rule discernable from the code of law, the judge is to sentence in accordance with customary law and, where such law is absent, according to the rule that he himself would devise as a legislator”. Yet, the judge-made law is problematic because the role of the legislator is reserved for another authority with juridical priority: the legislature. An expanded judiciary therefore undermines the authority of the legislature and, thus, undermines the democratic separation of powers in favour of the former. In such cases, great care is required from the two parties: global courts have to show a considerable degree of judicial self-restraint, and the global legislature has to establish sufficiently precise laws. The rationalistic dream of a codification of the law that provides decision rules for all conceivable cases is of course a pipe-dream. Global legislation is unable to do justice to the complex reality of life without general clauses, judicial discretion, imprecise legal concepts and law determined by judges that fills in the remaining gaps. A dual strategy is required: in line with the principle of subsidiarity, as many verdicts as possible must be decided below the global level and, secondly, the global board of judges must possess a particularly well-developed sense of global law. 13.3.3 Global Courts of Arbitration? The usefulness of national jurisdictions should not distract us from their disadvantages: the lengthy lawsuits, the enormous financial and non-financial costs and the often unpleasant publicity. To avoid these negative consequences, courts of arbitration have developed on both the national and international levels. Majority decisions arrived at by these courts are legally binding for the parties concerned, and they usually preclude further legal remedies, such as appeals to courts of higher authority. Courts of arbitration are particularly prominent in international trade relations, to a degree that almost replaces the national jurisdiction of the respective states, with the consent of all concerned parties (Kreindler 1997). The resolution of conflicts by an impartial and ‘private’ (rather than state-based) third party, which has been prevalent in the economic sphere for quite some time, could, to a certain degree, be applied to interstate conflicts as well. This approach is an attractive option because of its flexibility and for the much less restrictive impact it has on the sovereignty of states: states have influence in determining the composition of the board of judges, on the scope of their jurisdiction, and on the bases of their verdicts. As the older form of international conflict resolution, international courts of arbitration have preceded the evolution of conventional international courts. In fact, due to various groundbreaking decisions made this way, arbitration has influenced the development of international law in a substantive manner. A subsidiary world republic is particularly eager to leave the resolution of conflicts, wherever possible, either to courts in individual states or to global courts of arbitration that are not state run. In addition, these two basic legal forms of dispute resolution may be complemented by intermediary forms. Permanent courts of arbitration could be established, they could be given specific jurisdictions and procedural rules, and their judges could be appointed for a specified term of office so that a convergence towards conventional courts could take place.

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13.4 A GLOBAL CRIMINAL LAW

The ultima ratio of the state’s authority to compel is the criminal law, the most intrusive area of the law. Criminal law too, knows a form of arbitration, although only in the form that preceded criminal law, namely the vendetta. The vendetta required a balancing between the culprits on the one hand and the victims or their families on the other. Assistance provided by a third party, an arbitrator, was allowed in the process. However, civilised nations have developed an ingenious type of criminal law – the responsibility for which they transferred to separate criminal judiciaries – to prevent vendettas from bringing about an uncontrollable proliferation of violence; to ensure that only real (rather than alleged) culprits are punished; to guarantee that punishment is effected not out of momentary fury or revenge, but consistent with the gravity of the violation; and finally, in order to assure everyone is subjected to the law, including the ‘rich and powerful’. A civilised global society would follow this model and establish a global criminal law. The international-law dimension of the global criminal law replaces war, as an interstate form of the vendetta, with peace. The civil-law dimension of the global criminal law, in turn, is concerned with three other issues: cooperation between states in fighting crime; a separate global criminal court of law responsible for special types of crime and that would function as a court of appeals; and certain minimum standards of criminal law that are to be recognised by every individual state. The legitimatory basis for criminal law consists subjectively in the authority to punish and objectively in the (multi-dimensional) criteria for punishability, namely the list of possible offences, the procedures of criminal trials and the principles of the criminal justice system. For global criminal law to be legitimate, all these aspects must be justified, either through an intercultural discourse on criminal law that mediates between the different legal cultures or, alternatively, through a transcultural discourse that spans across all those cultures. A quick glance at the historic and social reality of the world reveals many notable similarities in criminal law. Although the detailed characteristics are highly specific to individual societies with their respective traditions and values, the basics are recognised in virtually all legal cultures. As we shall see below, these commonalities include the authority of the state to punish, most types of punishable offences, and some of the more important procedural principles. Criminal law has from time immemorial concerned personal rights to one’s life and limb, reputation (‘honour’) and personal property, while public rights have concerned statements given under oath and counterfeiting as a threat to monetary security. These arrangements have also been known in written form for more than three and a half thousand years, since the Code of Hammurabi. The procedural principles for trials have also been recognised since time immemorial, either interculturally or transculturally. This is particularly true for the requirement that no charge be made without proof and that no verdict be delivered without grounds. The underlying principle, the presumption of innocence (in dubio per reo), is already affirmed in Aeschylus’ The Eumenides, when Athena is faced with an equality of votes (as many judges vote in favour of Orestes as against him) and decides in favour of the defendant. One and a

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half centuries later, in Aristotle’s time, the principle of the presumption of innocence is almost taken for granted (Constitution of Athens 61, 1). By virtue of these extensive similarities, cultures in Antiquity had no difficulty in treating strangers in accordance with the criminal law that applied to their own citizens. In his classic monograph ‘Roman Criminal Law’ (Römisches Strafrecht 1899, 118), Theodor Mommsen provides us with the legitimatory reason: “irrespective of whether the case is about murder, arson, theft or material damage – what matters is the ethical blame, not the personal status of the culprit”. This follows because “the concept of crime, both public and private, is directed not at the citizen but at the human being”. One can, of course, claim an authority to punish that would extend to all human beings only for those legal offences that are directed against humanity in general. Legal–moral legitimation is consequently not content with an intercultural or transcultural consensus. Legitimation proceeds instead from the basis of universally applicable human rights and justifies a global criminal law in subjective and objective as well as substantive and procedural senses. In so doing, the ‘legitimation as well as limitation’ line of argument remains valid: the criminal law of a world state can only be justified if it is restricted to the protection of human rights. Following the example of law pertaining to sexual offences – and namely its overhaul – other forms of deviant behaviour must also be excluded from criminal law. The liberalisation of the substance of criminal law is followed by a liberalisation of the procedures of criminal law. Global criminal law is committed to the distinction between an objective wrong on the one hand and personal (subjective) guilt on the other. It considers the possibility that an illegal act may be justifiable – for instance, homicide in self-defence – or that the outcome may be partially or even entirely excusable on the grounds that no subjective guilt can be found. By no means does global criminal law constitute an atavistic need for punishment or even an instinct for revenge on the part of global society. Rather, it is a constituent element of the protection of human rights and is a visible sign of the solidarity between world citizens and victims of human rights violations (see Höffe 1999a). We already know important building blocks necessary for the justification of human rights: according to the first justificatory stage, there exist logically higherorder interests that are transculturally valid. Interests such as the protection of one’s life and limb, property and good name are indispensable for any individual and can be realised only in reciprocity through a transcendental exchange (see ch. 3.2). The corresponding prohibitions (killing, stealing, offending . . .) are the conditions of possibility for one’s ability to act and to be legally accountable. Secondly, transcendental interests go hand-in-hand with reality deficits. Public powers are needed to define interests in more detail, to protect them against the dangers of free-riding on the legal system and, in cases of conflicts, to decide authoritatively between them (see ch. 4.1). Thirdly, within the scope of these reality deficits, criminal law helps to preclude free-riding. In order to prevent a scenario where some benefit from the public legal order without paying the corresponding price (by showing respect for the legally protected rights of others), the harm that is to be expected from a (known and

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deliberate) violation of the law – that is to say, the product of the expected punishment and the probability of getting caught and punished – has to be greater than the benefit derived from free-riding. Finally, strict procedural principles guarantee that a potential punishment is preceded by a thorough investigation into the circumstances of the case, that legal procedures are followed, and that the accused have the opportunity to defend themselves. Given that criminal law based on human rights is universally valid for all human beings with regard to both the authority to punish as well as the offences and procedures, it can be applied to any individual in any culture. The world republic will have, for the same reason, no difficulty establishing a federal structure of criminal law. The well-known requirement to employ ‘no foreign judges’ can be fulfilled by virtue of three complementary strategies. Firstly, the world republic allows each individual state to continue maintaining its own criminal court. Secondly, it has the subsidiary responsibility to ensure that individual states agree to work together in fighting international crime. Part of this responsibility involves a practise – the global administration of criminal justice – that states have increasingly come to prefer over the previous form of extradition: citizens who commit in another state a crime that is recognised by global criminal law, may be arrested in a third state and sentenced in a fourth, provided that these states follow the same basic criteria. Thirdly, the world republic must establish a global criminal court (the first Permanent Court of International Justice came into existence on 1 July 2002). This court is responsible for especially serious crimes and for all those crimes that exceed the responsibility of individual states. Furthermore, like other global courts, the global criminal court can act as the highest authority of appeal. However, the general interpretive flexibility of the principles of human rights could pose a danger to global criminal justice. A closer elucidation of what the human rights will entail is necessary in order to define criminal law with sufficient accuracy; however, this may occur in a very culture-specific manner, discriminating against members of other cultures and other legal traditions. To avoid sentencing individuals according to alien legal definitions, global criminal law must ensure that the law is well defined, either interculturally or transculturally, with regard for all of the following five aspects: (1) the authority to punish; (2) the substance of the criminal law, that is the offences; (3) the persons that are punishable; (4) the permissible types of punishment; (5) and finally, the legal procedures (the lawsuits) themselves. In what follows we further elaborate on these aspects. (1) The interculural or transcultural legitimation of criminal law is not sufficient grounds for transferring responsibility for criminal law to the world republic. The authority to punish remains, regardless of international cooperation, with the individual state. The global criminal court of law is responsible only if the criminal courts of individual states are either incapable or unwilling to prosecute serious criminal offences in an appropriate way. This first principle of the global criminal court – the formal responsibility – consists in the principle of subsidiarity. Unwillingness or inability are certainly difficult to determine in individual cases and are therefore subject to controversy. Yet, these preconditions are reasonably

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fulfilled when political and military leaders are concerned, because these are cases where individual states often lack the intention or the ability to prosecute. (Part of the reason why the international military tribunals in Nuremberg and Tokyo had no lasting deterrent effect is because those guilty had little to fear if the crimes they committed were ordered by their superiors or condoned by them.) In addition, since the fairness of prosecution and punishment is threatened in both directions, by harshness as well as leniency, it would be better to set up the global criminal court as an authority of appeal. Both the defendant as well as a state’s public prosecutor may appeal to it (although a special problem arises from the Anglo-American principle of ‘double jeopardy’ according to which the prosecution cannot appeal against an acquittal). The principle of subsidiarity aside, the uncontested principles of criminal jurisdiction remain valid. According to a second principle, the prosecutors of the global criminal court would be authorised to initiate investigations ex officio, on their own initiative without the approval of either the relevant state or the world republic. They do not then only act selectively (and therefore unfairly) but apply the same judgement to all cases. The global criminal court must reach beyond its precursors, the military tribunals in Nuremberg and Tokyo, to prosecute not only in the name of the winners against the defeated, but also against mighty but undefeated criminals. Judicial independence is a third principle: the court must be spared of any political influence on the part of the states or the world republic. Patronage, political favours and wider political circumstances must never prevent the court from judging everyone by the same standard. (2) Given the uncontested principle of nulla poena sine lege (‘no punishment without law’), the substantive responsibility of the global criminal court is in danger only if global criminal law is not codified on the level of the world state. For the precursors of the global criminal court – the international military tribunals mentioned earlier – that threat may have been real. Yet, the global criminal court would be in a position to refer to existing conventions on human rights and, more recently, the treatise on the International Criminal Court, as well as any future conventions that may be ratified. In any case, the responsibility of the global criminal court extends to any crime that fulfils all three of the following criteria: the crime is especially severe, is clearly universally punishable, and the need to punish it exceeds the confines of the individual state. The fourth principle stipulates that the global criminal court is limited only to core crimes that are universally applicable. These include the following five offences: (a) genocide; (b) crimes against humanity, which entail acts against conationals, random killings, torture and other inhumane treatment, slavery, and random arrest; (c) war crimes, which includes those committed during a civil war, mass executions of political adversaries, ethnic purges, and rape as a means of war; (d) the criminal decision to launch an aggressive war; (e) international terrorism, possibly even international organised crime (the trafficking of humans, drugs, and weapons). For all these actions, those concerned, in particular the military and political leaders, must be certain that all of humanity is in agreement on the nature of the crime, that they are willing

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to avenge the crimes and that the severity of the crimes prevents them from opting for either limitation or amnesty. (3) The third question is concerned with the issue of who may be punished, and whether this should include only natural subjects or collective subjects such as states as well. Global criminal law answers this question with the principle of the guilty party, a principle which is required by human rights and is now politically uncontested. According to the fifth principle, only subjects capable of pursuing deliberate and knowing actions directly (not through representatives), are punishable in a criminal sense. Such natural persons may only be punished consistent with the degree of their personal guilt. Only those deeds of which an individual can be accused are culpable; therefore, supposed collective guilt or collective punishment is to be ruled out. The most justifiable measures are those that are not related to criminal law, such as tort law and reparation (although hardly enforceable against children and grandchildren). Nevertheless, the world republic may, in analogy to individual rehabilitation, coerce a state into giving up its aggressive foreign policy in favour of a more peaceful one (Kant, The Doctrine of Right, § 60). (4) When punishing criminals, the global criminal court strongly renounces all forms of physical punishment in violation of human rights, as well as torture and any (possibly illegitimate) variants of capital punishment. According to a sixth principle, the global criminal court’s harshest punishment is imprisonment for life. (5) The seventh principle consists of a set of strict procedural principles that are universally valid. They include rules that guarantee a minimum degree of impartiality, which is indispensably required for criminal trials that typically display an imperfect degree of procedural justice. They include audiatur et altera pars (‘the other party is to be heard as well’), nemo sit iudex in sua causa (‘no man is to be judge in his own cause’) and, the most important rule, presumption of innocence: in dubio per reo. On the question of admissible evidence, the focus should be on those types of proof that are virtually uncontested. It is certainly inadmissible to obtain confessions by means of torture. The world republic must further guarantee that legal proceedings in general, and lawsuits in particular, are not abandoned because the states concerned fail to extradite the defendant to the global criminal court, or because they refuse to grant the prosecutor the access necessary to conduct investigations locally. With its responsibility for global civic law, the world republic will also oversee the criminal law of individual states. The world republic must ensure that in the following five areas, all practices that violate human rights are abandoned: summary courts and special courts are to be relieved of their responsibility and jurisdiction because they bypass the elementary requirements of criminal law. With respect to substantive criminal law, legitimate offences must not be ignored, nor must unjustified offences be maintained, such as laws pertaining to certain sexual practices or offences that arise only when a state is linked with a particular religion, ideology or party. With regard to the accused, the principle of the guilty party must not be surrendered, nor must collective punishment be introduced. In the realm of punishment, mutilating physical penalties are to be outlawed. Finally, rigorous procedural regulations must not be weakened.

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However, the primary responsibility for these tasks does not lie with the global judiciary, but with the global legislature and, under the legislature’s auspices, the global executive. What is essential is the effective implementation of these principles. Justice is to prevail everywhere, at all times, for both victims and criminals and, therefore, throughout the legal system in general. Even the radical critic of morality Friedrich Nietzsche calls this justice ‘the greatest achievement on Earth” (On the Genealogy of Morality, 1887, part 2, no. 11). 13.5

OPUS IUSTITIAE PAX

The fundamental legal–moral question of whether law and justice on the one hand or peace on the other should command precedence re-emerges at the global level: should the relations between states be characterised primarily by peace or by the rule of law? If it was only peace that mattered, then it may, as Kant (Perpetual Peace, VIII 343) remarked, consist of nothing but the deadly quiet peace of a graveyard. Clearly, in such a case, peace is the result of one side in a dispute renouncing their rights and bending to the terms of the other side. In the famous chapter ‘Lordship and Bondage’ in his Phenomenology of Spirit, Hegel describes how human self-confidence develops from a struggle for recognition, a fight over life and death at first, which ends when, for fear of death, one side surrenders. The price to be paid for this kind of peace is very high, of course; it consists of an extreme asymmetry of power between master and servant. This peace also depends upon one side deeming survival to be the highest good, for which it is willing to pay the price of slavery. All civil wars that are waged for religious or political freedom show that such willingness or ‘disposition to slavery’ is not a rule. Nor is there a legal–moral precept requiring that it be developed. However, when survival is rejected as the highest good and both sides fight to exhaustion, the peace that results is indeed not far from the deadly peace of a graveyard. A ‘peace under reservation’ is found in yet another regard: those in the weaker position may overcome their ‘slave’s consciousness’ and rebel against their masters, albeit at risk to their own lives. At any rate, a peace that is based on submission is fragile. Fragility is avoided only when arbitrariness and power are no longer the decisive factors but have been overcome – in other words: when the rule of law and justice are affirmed through public powers. The Roman military theorist Vegetius is credited with the much practiced idiom si vis pacem, para bellum (‘if you desire peace, prepare for war’). Given the fragility of a peace based on violence, an alternative suggests itself: si vis pacem, para iustitiam (‘if you desire peace, provide justice and the rule of law’). Where law and justice prevail, peace exists ipso facto, which is why Kant can write, following the New Testament (Mat 6, 33), “strive first and foremost for justice . . . your purpose (the everlasting peace) will come to you by itself” (Perpetual Peace, VIII 344). This notion was already stated in the antique proverb opus iustitiae pax: peace is the fruit of justice. If law and justice assert themselves, peace will reign; and not only in the narrow sense of coexistence without violence. Where rivalries are resolved peacefully and

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disputes are ended judicially (possibly through arbitration), human energies can constructively flourish. The economy, sciences and culture can then blossom, and this narrow freedom will develop into a more challenging understanding of peace, one known since Antiquity (see ch. 8.1): humanity will have opened itself up to a comprehensive well-being.

CHAPTER 14

SELF-DETERMINATION, SECESSION AND INTERVENTION

14.1 ABSOLUTE SOVEREIGNTY?

Who is to decide over a nation’s right to self-determination, the right to secession and the massive human rights violations that call for so-called humanitarian interventions? Are these internal problems of states in an absolute sense, so that the world republic may not interfere? Or are they only relatively internal, maybe even only supposedly internal matters, so that the world republic is responsible? The central concept of the modern theory of the state, sovereignty (Latin: majestas), seems to speak in favour of prohibiting any interference. It tends to be seen as the highest authority to rule, which is not derived from another authority and not subject to foreign obligation. However, even Jean Bodin, to whom the concept can be attributed, imposes considerable constraints. It is true that in the decisive chapter I 8 of The six books of a commonwealth (1583) he does not tire of stressing that the sovereign is relieved of all laws: “majestas est summa in cives ac subditos legibusque soluta potestas”. Nevertheless, Bodin subjects the sovereign to legalmoral precepts, namely to the divine commandments and natural law, as well as to positive law in the form of obligations of international law, obligations entered by predecessors, the contract with the subjects, particularly with reference to consensusbased taxation, and to the basic laws of authority, such as the Salic law about the line of royal succession. Unlike the prevailing positivistic interpretation (e.g., Kelsen 2003; Hart 1961; Höffe 1995a, chs. 4–6), the classical concept of sovereignty adheres to a strict legal–moral legitimacy of authority. By linking the legitimacy of state power to its limitation, Bodin opposes an unchecked sovereign authority. States are not seen as monads that thereby avoid reciprocal control. Interferences of the political, economic and cultural sorts (such as diplomatic interventions and the global mass media), are not contrary to the concept of sovereignty (on sovereignty, see also ch. 6.2). The conceptualisation of sovereignty in a relative (rather than absolute) manner is underpinned theoretically by recent developments in international law, particularly the contractual recognition of human rights, which makes it less unprecedented an occurrence than one might think. However, a popular route of escape has now been closed: the common attempt to argue that the content of divine law and natural law is hopelessly controversial is refuted now that this law is contained in international treaties on human rights and therefore has a legal-positive quality. Relieved of the ‘domaine réservé à la souveraineté’ through self-obligation, human rights, the core of legal morality, have put into question the assumption that all intervention should be prohibited. Victims of 269

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(massive) human rights violations may even, in the name of global civic law, plead for the right to legal protection and can oblige the world republic to guarantee that protection. The legal protection occurs ‘from outside’ only for the rights-violating government; from the viewpoint of global civic law, however, it proceeds ‘from inside’, namely from the universal community of all legal subjects. Massive violations of human rights are, in any case, only seemingly ‘internal problems’. However, Bodin’s precepts disappear in Emmerich de Vattel’s powerful wording. To be true, as a pupil of Christian Wolff, the teacher of rationalistic natural law and international law, he does not contest the prerogative of natural law (e.g., The Law of Nations, 1758, Intro., § 5). Yet, he maintains that the state is sovereign: “qui se gouverne elle-même sous quelque forme que ce soit sans dépendance d’aucun étranger” (ch. I.I, § 4). External sovereignty, understood as the independence of one state from the authority of another (‘legal independence’) and as the right to act directly at the level of international law (‘immediacy in international law’), has constituted the first principle of international law ever since (on the applicable international law, see Bernhardt 1981–1990; Vitzthum 1997; Randelzhofer 1995; Steiger 1992). While this first principle defines international legal subjects, the second principle stipulates the democratic criterion of ‘one person, one vote’ and establishes the sovereign equality of every state, irrespective of its size, power or political system. International law treats autocracies in the same way as democracies, and mini states such as the principality of Monaco in the same way as great powers such as India and China. International law is also democratic in that its origin is in the (silent or explicit) will of the peoples, understood here as that of the states. International law is based on the immediate consent of legal subjects, which so far is only given by the states, of course, not by world citizens. As far as states are concerned, the law is both democratically direct as well as communal in character. Rigorous legal equality implies legal immunity for states: since all states are of equal status and no one is of higher rank, no state can assume the position of an impartial third party that may adjudicate between other states; therefore, states are immune to the judgement of other states. Orthodox thought maintains that the second principle should violate its egalitarian fundaments and allow preferential treatments; but this is not convincing. As far as the privileges in the UN Security Council are concerned, international law follows, reluctantly, the prevailing distribution of power in the world. The evaluation is different for international organisations such as the (so-called) World Bank, which are, unlike the United Nations or global professional organisations such as the World Health Organisation, not of a purely public–legal nature. Such organisations as banks maintain a form of private international law and provide goods that exceed the principle of mere formal equality; because of this, the weighting of votes in accordance with one’s financial commitment is permissible. The third principle of international law, the prohibition of force as stipulated in article 2(4) of the UN Charter, does not only outlaw the use of force, but even condemns the mere threat of doing so “against the territorial integrity or political independence of any state”. The term ‘force’ is thereby meant in a narrow and strictly military sense, which is why non-military (e.g. economic) sanctions are permissible. Article 44 of the UN Charter explicitly refers to “armed forces”. The

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strongest forms of military interference in particular are forbidden: removing people from their native territory, dividing a state into separate units, and partially or completely annexing a territory. The only permissible ‘exception’ is to defend against an armed attack: the Charter recognises quite rightly “the inherent right of individual or collective self-defence”. Akin to the criminal law applicable within a state, selfdefence between states is not actually an exception to the prohibition of force, but its confirmation. Furthermore, those who exercise self-defence must justify their actions in court – in a global court – and prove that an armed attack occurred, as well as the appropriateness of the measures taken to contain it. The rather strict conception of sovereignty prevalent in positive international law could appeal to the analogy between individuals and states. Like individuals, states are also independent units that may determine themselves as long as they do not interfere with the rights of other states. However, there the analogy ends because the constituent parts of a state represent legal subjects, in the case of individuals even the primary legal subjects, while the parts of an individual’s body have no legal capacity. This distinction raises three issues: self-determination, secession and humanitarian intervention. 14.2 SELF-DETERMINATION AND SECESSION

Understood as the right to develop freely in a political, economic, social and cultural sense both internally and externally, the right to national self-determination is a component of international customary law. By virtue of article 1(1) of the two international human rights treaties (19 December 1966), and in the UN Charter (article 1.2), the right becomes a ‘principle’ by contract and, thus, part of compulsory law. More than a mere political programme, the right has the status of an applicable legal rule, which the International Criminal Court applies in its legal statements on Namibia (21 June 1971) and Western Sahara (1975). Yet, the right to self-determination is not uncontested, neither politically nor in international law (on the treatment of secession and self-determination in international law, see Cassese 1995; Frey 1994; Kimminich 1985; Murswiek 1984 and Tomuschat 1993; on the political difficulties see Buchheit 1978 and Fisch 1997; see also Oeter 1998). Different viewpoints exist on how to define the nation to whom this right should be conferred. Given that a clear bearer of rights does not exist, so Jennings and Watts argue (1992, § 33), the notion of self-determination is “ridiculous”. What the right consists of is also controversial: does it include the authority to form a state, or does it entitle to less than that? In elucidating these questions, we will specify the area in which a right to self-determination can be accepted. 14.2.1 Which Nation? With regard to the bearer of the right to self-determination, there are three interpretations that reflect the historical evolution of an increasingly progressive interpretation, one that some critics regard as increasingly illusionary, even dangerous: (a) Often, a ‘people’ or ‘nation’ is primarily defined by common descent. Indeed, at least etymologically, the term ‘nation’ refers to birth and origin. Nevertheless, the

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two terms refer – as counterparts in Greek (dêmos and ethnos) and Latin (populus, gens and natio) – to units of political action, to their self-organisation, to their selfperception as well as the corresponding image they portray to others, rather than to any common biological origin. They are genealogical concepts (see Koselleck et al. 1992; also ch. 6.3), which is why a narrow interpretation that equates the nation with the civitas, the citizenry of an existing state, is not entirely unfounded. However, when limited to those peoples who are already organised as states, the right to selfdetermination does no more than summarise the other principles of international law, namely the external sovereignty of states, their sovereign equality, and the prohibition of force. Although the narrow interpretation preserves the status quo of the geopolitical map, it is of considerable importance nonetheless: it brands the expulsion, deportation or eradication of a nation state, or a part thereof, as a flagrant violation of the right to self-determination. (b) In terms of language, culture and customs, the political unit (the nation) has always consisted of a multitude of different peoples. From Alexander’s Empire to its Hellenistic successors, the Roman Empire to its medieval continuation and, later, in the Ottoman, Habsburg and Russian Empires and in Prussia as well, the political conception diverges from the cultural or ethnic understanding. Even France was a polyethnic or polycultural territory well before the French Revolution; it was a multinational state. The situation that ensues when states of such linguistic and cultural heterogeneity disintegrate raises various questions concerning nationality. These questions have arisen since the nineteenth century and go beyond the narrow understanding of the right to self-determination as originally stipulated in positive international law. The extension can first be seen in Austria’s basic law of 1867. According to article 19, the Austrian nation is comprised of several tribes or peoples that differ in terms of customs, language and culture but that have equal legal status. Here, then, the right to self-determination becomes a right to autonomy that is limited by national law. Applicable only to the constituent members of a federation, autonomy amounts only to state-internal autonomy: the ‘nations’ may officially preserve their respective characteristics. (c) As we know, the different tribes of Austria were not content with this state of affairs and, after various bloody wars had been fought, decided to establish their own nation states. Soon after their founding, the United Nations defined the right to self-determination as the authority to establish a separate statehood. UN resolution 1514 on the fundamental independence (‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ of 14 December 1960) sees the right to self-determination as the central reason for decolonisation. Given that decolonisation contradicts the principle uti possidetis (‘as you possess’: the initial words of a legal doctrine to protect property rights in ancient Rome), and upholds the colonial borders, the bearer of the right is not a nation conceived as a state, but conceived in administrative terms. The result does not often correspond to the self-organisation and self-perception of those concerned, for instance to their tribal borders; this raises the potential for conflict and war. Such wars only appear as civil

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wars when viewing contingent state borders; from an autochthonous, ethnic perspective, however, they constitute inter-ethnical or international wars. They are wars between nations. According to the ‘Declaration on Friendly Relations’ (UN resolution 2625 – XXV – of 24 October 1970), the right to self-determination is not only available to colonies, but also to “any nation” that is exposed to “foreign subjugation, domination and exploitation”. Consistent with this more expansive understanding, even nations that are not yet constituted as states may determine whether they want to establish their own state or merge with another state: the right to self-determination has evolved into a right to redraw the map of states. This new, extensive interpretation is plausible and problematic at the same time. It is plausible because it refers to the ultimate legitimatory authority for all statehood: natural individuals. It is problematic because the right is bestowed on a group that has not always existed and that is not clearly delimited. The attributes that undoubtedly exist – social similarities such as language, culture and religion, a common history, social dispositions and formation of political will, as well as natural similarities such as a common territory and descent – often overlap and may even compete with one another. Furthermore, their relative significance shifts over time. Not all nations have a (relatively) enclosed area of settlement within which they can evolve over time into an emphatic nation in Herder’s sense (e.g. Outlines of a Philosophy of the History of Man 1784–1785, 2, 9, 4) – by developing a distinctive feature analogous to individuals: a collective individuality. That precise demarcation is difficult and that the concept of self-determination (which is unproblematic for individuals) cannot be easily transferred to collective entities such as nations is no grounds for resignation. In fact, a “complete and uncontested categorisation of humanity into nations” is “impossible” (Fisch 1997, 15). Yet, the right to self-determination is not contingent on the abstract definition of ‘nation’, but on which rights minorities may claim when their characteristics are not respected. Regarding the complex question about which characteristics are essential, the Permanent International Court of Justice has already forwarded a plausible suggestion. In the context of the rights that were to be granted to the Greeks in Bulgaria (1930), the Court required four objective criteria and one subjective criterion: (1) a particular isolatable territory; (2) separate racial (or, it could be added, ethnic), (3) religious (or ideological), (4) linguistic, or other cultural characteristics, and (5) a will to preserve these characteristics. A group of experts called upon by UNESCO added to the list (6) a common historical tradition and (7) a common economic system. They did not, however, require all these criteria to be fulfilled at the same time (see Frey 1994, 44). Several criteria grouped together represent a meta-criterion which helps to reduce political complexities: the greater the number of common characteristics, the greater is the group’s entitlement to define itself as a nation under international law, and to claim the right to self-determination. Clearly, the comparative element in the right to self-determination is incapable of settling all issues related to demarcation or competing rights to self-determination. However, these problems are certainly not

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unsolvable. Furthermore, political disputes do not tend to arise from the lack of clearly defined rights to self-determination, but because power is given preference over the law. 14.2.2 Which Self-Determination? The complexities of the right to self-determination are further reduced by the fact that this right can fulfilled in various ways and that forming a separate state is only the ultima ratio. I propose six basic models for the relationship between the nation and the state: (a) In the unitary model, the nation and the citizenry of a state are largely the same. Seen from an ideal–typical view, two sub-models can be discerned: in cases such as Iceland, Japan and Sweden, the peoples distinguish themselves through a high degree of linguistic, cultural and ethnic homogeneity. In the case of France, by contrast, other common characteristics play an important part, such as the (republican) form of government and (French) culture and language. However, the linguistic–cultural homogeneity of France goes back further than the French Revolution; it has been imposed, sometimes by force, by one dominant group on many other dialects (Patois) and above all against the dozen or so ‘divergent’ regional languages (see Ziebura 1993). (b) In the assimilation model, which is the path followed by classical immigration countries such as the USA and Australia, groups with common (linguistic, cultural, ethnic or religious) similarities preserve their right to maintain their unique characteristics. Yet, the importance of this right gives way to other issues relevant to the immigration country, such as the acceptance of a constitution, an official language, and the surrendering of claims to self-determination that may come into conflict with these issues. (c) The protection of minorities inside a federation of states concerns clearly distinguished groups who are in a subordinate position, either legally or effectively. It represents an additional area of concern (one that can appear in any of the models) only if enough important commonalities render the relevant group sufficiently cohesive to be regarded as a separate nation or, more modestly, a separate ethnic group. This protection of minorities applies primarily to groups who live in their traditional homelands, not to new immigrants. It is manifested in specific measures, such as the right to use minority languages when interacting with authorities, schools and universities, as well as through general rights to freedom that protect groups and their members, such as the freedom of religion and the freedom of speech. (d) The autonomy model grants a high degree of independence to clearly defined ethnic groups in a state. Such is the case for the inhabitants of Southern Tyrol in Italy, the Catalans in Spain and the native Eskimos and Indians in Canada and the USA. Typically, these groups are allowed to maintain their own official language and their own education system. Of course, their right to self-determination does not entail a right to independent statehood or the right to be united with another state.

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(e) The mixed model is known from Hellenistic Alexandria, Imperial Rome, and later from Prague, Vienna and Budapest. These instances demonstrate that this model is certainly viable, but also fragile. (f) The division and dissolution model is also fragile: a federation of states disintegrates into separate units that are defined by national criteria. In the process, the units may either form their own state or join an already existing one. Seen from a legal–moral point of view, none of the models can claim exclusive validity. None can even be deemed preferable. What matters instead are the side constraints and the political will of the parties concerned. If, for instance, the required homogeneity does not exist, then the first model, the unitary model, amounts to suppression of minorities and, in so doing, contradicts both the right to self-determination and the rights of minorities. The autonomy model, on the other hand, can be demanded by (relatively) autochthonous nations, yet not so by immigrants who arrive later in the process. Circumstances of mixed nations, in turn, would best be dealt with by nations finding a political model of mutual recognition, rather than allowing the group that dominates at any given moment to force other groups into submission, assimilation or expulsion from the state territory. 14.2.3 Collective Rights Legal and political difficulties aside, the fundamental legal–theoretical issue remains whether such groups or collectives have (subjective) rights. Do collective rights exist at all? According to a first objection, only natural subjects – that is, individual subjects who are legally accountable – can be bearers of subjective rights. In this case, collective rights would be either a façon de parler, a helpful but nonessential short form used to describe an accumulation of individual rights; or these rights wrongly conceive the collective as an entity in its own right, in which individuals are seen as dependent and constituent parts of a community or society that is the only independent entity. This is not, however, the only possible understanding, which is why it is harmless from a legal–theoretical viewpoint to award collective entities with both rights and duties. As we see below, this phenomenon is well known in positive law. In enterprises with limited liability, such as limited partnerships, rights and duties are granted exclusively to the firm’s associates, not the enterprise itself. Legal entities such as clubs, joint-stock companies, corporations of public law (such as Chambers of Commerce), or public institutions (such as state-owned utilities), prisons and national banks, as well as local and regional authorities, function differently. In all these cases, rights and duties are granted exclusively to the collective entity. Much of the recent (legal–)philosophical debate (e.g. Kymlicka 1995) overlooks the fact that in these cases collective rights are unproblematic. The fact that an issuing bank regulates the fluctuation of money, that a secondary school issues certificates to graduates, that a university awards academic degrees (such as Bachelor, Master or Doctoral degrees), and that all this is not effected by the individual members, but by the collective entities themselves, is not only harmless from

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a legal–theoretical point of view, but also sensible (on the private and public law of collective entities, see Wittmann 1980, Kimminich 1985; on the legal–philosophical debate, see French 1979, Held 1984, Hartney 1995). Unlike these uncontroversial collective rights, however, the right to national selfdetermination is required by groups whose juridical situation is unclear, but who are threatened minorities nonetheless and who therefore demand special status in public law. They are groups that can be demarcated by ethnic, linguistic and/or religious criteria, but that have not yet attained a legal status; they are therefore referred to as genuine collectives and their claims are genuine collective rights. Genuine collectives require a (public–)legal status that allows them to preserve and develop their specific characteristics. The first step of a genuine collective right affirms the right to assume a legal status; the second step comprises the right to national self-determination. Many critics believe that genuine collective rights are conceivable only under the absurd assumption that collectives represent ends in themselves and, therefore, that only groups need to be protected. However, this assumption – which is indeed absurd – is not necessary. Consistent with legitimatory individualism, and as a criticism of legitimatory collectivism, individuals represent the only legitimatory basis. However, certain rights may belong to individuals not individually, but as members of a collective. When goods themselves are collective in nature, then individual rights become rights that can be claimed only collectively. Genuine individual rights relate to one’s own goods such as life and limb or one’s property. Individuals can on their own take pleasure in their body, life and property, and can, as individuals, also be deprived of these pleasures by being killed or robbed. A genuine collective right, by contrast, refers to a good one can enjoy only in company of others: a language is acquired within a linguistic community, is practised within that linguistic community, and the wealth of experience one accumulates originates from that common practice. Individual rights do not differ from collective rights in terms of who the bearers of the rights are – in both cases these are ultimately the natural subjects themselves – but in terms of that to which they refer: the protected goods and individuals’ relationship to them. Political economy knows collective goods as public goods and refers to them as goods that cannot be divided and to which access cannot be restricted. Public goods are non-excludable and non-divisible or, formulated in positive terms, are collectively available in both regards. In the case of genuine public goods, such as a national currency or the environment, non-excludability and non-divisibility are not incidental, but essential. Everyone is affected by the value of a currency or the quality of a community’s drinking water. Many public goods are consumable, in that their value diminishes as they are being used or consumed: streets are gradually worn down, drinking water is used up and a nation’s welfare budget gets stretched thin. The right to national self-determination, by contrast, is a public, though not a consumable good. Given that they exist through cooperative communication, these goods are best referred to as goods of communication or, by virtue of the benefits that subjects enjoy when communicating, as goods of participation (on this last expression, see Réaume

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1988). Goods of communication or participation represent a special case of genuine collective goods. Goods of communication are more collective in nature than consumable goods. Seen from the viewpoint of the theory of agency, they are no longer poietic (‘productive’, ‘formative’), but genuine practical goods. They are first in line to be produced by collective action and their collective nature does not reduce, but rather increases, their value. Whereas the use of services and natural goods such as drinking water produces a situation of rivalry between ‘consumers’, in the case of practical goods those who use them are engaged in a cooperative venture that enhances the goods’ value. Yet, even in this case a condition of segregation prevails, in that there are both ‘insiders’ and ‘outsiders’. Unfortunately, where the appropriate boundary is set is an issue that is sometimes controversial and ambiguous. The boundaries might be drawn differently by groups than by individuals: some who consider themselves members of a given religion might not be accepted by other members, who in turn, might accept some who do not consider themselves to be part of this religion. Moreover, the memberships are usually not exclusive: one may belong to several linguistic communities at the same time, although this is not as simple as being a member of several sports clubs, of course. But other areas, such as religion, tend to be exclusive. Yet, the Japanese have no problem belonging to several religions at the same time, such as Shintoism and Buddhism and sometimes even Christianity. Still, even multilingual and multi-religious people face constraints: nobody can be a member of all of the world’s linguistic communities or all of the world’s religions. In the former case we are limited by our intellectual, social and emotional capacities, in the latter it is the prevalence of (competing) views and customs (even the Japanese cannot be both Catholic and Protestant or Jewish and Christian at the same time). Not all goods of communication deserve legal protection, of course. A friendship, for example, is certainly upheld collectively and will cool should the collective spirit be neglected. Even under a generous interpretation of social rights, however, no one has a right to friendship. Neither has an individual the duty to be my friend, nor does the state have the duty to allocate a friend to me or to redistribute friends from those who have plenty to those who do not. Orchestral music and soccer are also goods of communication, but do not thereby deserve legal protection. By contrast, an exclusive (or perhaps only primary) protection is appropriate for those goods that are as important and indispensable as one’s language and, in terms of the identity of the persons concerned, one’s religion. If we are to avoid arbitrary decisions, we require an objective measure to assess the (relative) importance of goods, for which four criteria can be suggested. The first two originate with individuals and are concerned with their contribution to an individual’s identity and self-esteem respectively. There is, further, the notion of equality or non-discrimination (that certain groups should not be disadvantaged) and the political criterion of peaceful coexistence. Clearly, the fourth criterion does not command the same respect as the other criteria. Peace is a highly valuable legal good, but it is dependent on the rights of the parties involved. If peace is endangered by the emergence of unjustified claims, for example, then peace is to be maintained by

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rejecting that injustice, not by recognising it. The third criterion, in contrast, is a legitimate and elementary principle of justice, but appropriate comparisons need to be made when applying the criterion: autochthonous individuals must not be treated in the same way as immigrants, although discrimination is prohibited in both cases. It is therefore illegitimate on the one hand to deny Indian tribes a right to national self-determination but on the other to grant certain immigrants the right to their own official language for educational and administrative purposes. The principle metric for measuring the importance of a good rests in the first two criteria. Given our basic concept of transcendental interest, of course, these criteria are to be combined and modified to attain some degree of objectivity: legitimatory individualism stipulates that the individual person is that which matters – not in a eudemonic, but in a freedom-advancing sense. Well-being in itself is not to be taken into account, but rather the fact that it is a precondition for building one’s capacity to act. Hence, language deserves special consideration as a right to self-determination not because of its contribution to well-being, but because it is a condition of the capacity to act. Collective rights resemble individual rights in so far as they both can be subject to abuse. Consider, for instance, a multilingual country that provides individual linguistic groups with a set share of administrative posts or social housing. If that group’s shares are exhausted for the foreseeable future, then younger generations will opt for other linguistic groups, even if such a decision contradicts their past way of life. However, this danger of abuse requires only protections against abuse, not the abolition of all (legitimate) uses. There is a second type of collective abuse. If a group claims rights but doesn’t respect the freedom rights of its constituent members, then these freedom rights must be required, rights to leave one’s (religious, linguistic, . . .) group without having to emigrate or face punishment for apostasy outside one’s own country. The right to freely choose a marriage partner while remaining a member of the group is to be recognised as well. One has also the right not to be forced to mutilate one’s own body or that of one’s children (female genital cutting is a case in point). Hence, collective rights must not be granted ‘for free’ or as a ‘right to pragmatic contradiction’; one must not claim the rights, without also in turn granting them (see Merle 2001). The right to national self-determination is a special type of genuine collective right in so far as the concept of the nation unites several common characteristics essential for the identity of its constituent members, in particular their ethnic origin, history, language, legal tradition, religion, traditional settlement patterns, and their solidarity. Ethnic origin or blood ties do not lend a special status to the right to self-determination, but rather the combination of all these characteristics combined with their importance for individuals does. The natural subject remains the ultimate legitimatory basis. 14.2.4 The Right to Secession The extended right to self-determination is only intended to be used defensively; it serves to protect of one’s property. When this proves impossible, a more active right to self-determination, a right to secession, can be called for, even though current

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international law has so far rejected this conception. The UN resolution of independence referred to earlier, prohibits (in article 6) secession because it destroys “the unity and territorial integrity” of a state. This rejection could be interpreted as a contradiction in international law, because recognising the right to self-determination should include an option for secession, provided all other options have failed. Alternatively, one could point to a fundamental mistake, one that is rooted in the first principle of international law, the principle of sovereignty: it declares states to be untouchable, despite the fact that they are historically accidental phenomena and that it is human beings who are in and of themselves worthy of protection. Indeed, a right to secession tends to collide with the claim to sovereignty of an existent state. Nevertheless, this reluctance cannot be simply deemed a mistake, because it is also a responsibility of international law to maintain peace. In order to maintain peace, something that should benefit people but not be used as means of perpetuating the borders of existing states, the applicable international law pushes the right to secession into the background. The law prefers the precept of an autonomy that is as extensive as possible, but that is nonetheless limited to the internal realm of the state: a nation (Volk) may decide on fundamental issues such as its official language, culture, educational system and religion. Yet, it must remain part of the overall state. The right to secession is replaced by this ‘internal selfdetermination’, which goes beyond the mere protection of minorities and demands a high degree of autonomy. According to the ‘UN Declaration on Friendly Relations’, the government of a state should represent all nations inhabiting its territory irrespective of race, religion or colour. If, despite extensive pressure, a legitimate autonomy remains unfulfilled, a renewed expansion of the right to self-determination suggests itself – a transition from a broad, but still defensive understanding, to an active one. This interpretation includes the right to secede from a state, if necessary even without approval of the central authority, and to combine this separation with a claim to a part of the territory (see Buchanan 1997; Chwaszcza 1997). Such a far-reaching right is naturally tied to rather strict conditions. Imagine a situation where in one of a state’s regions, an area that has so far been poor and that is supported by other regions, a precious raw material such as oil is discovered. If that region demanded secession for the mere purpose of retaining newly found wealth for itself, the separation would amount to an unfair rejection of a community of solidarity. The underlying principle – to remain a member as long as the membership is profitable, but to withdraw as soon as the benefit accrues to others – is evidently despicable from a lega–moral point of view. Furthermore, the concept of the nation in international law is compromised in the process: oil wells are not in the habit of appearing precisely in regions inhabited by groups that distinguish themselves by common historic, linguistic, religious and ethnic characteristics. If the defensive right to self-determination is systematically and repeatedly ignored, however, and if peaceful means including mediation have failed to resolve the conflict, to the point that the state’s rule is in reality a foreign rule, a right to

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cession can indeed be justified. As an ultima ratio and for the purpose of collective self-defence, the region concerned acquires the (legal–moral) right to part from the present federation and to establish a state of its own in part of the territory. The cue ultima ratio suggests two criteria: firstly, secession requires a special justification and those claiming it carry the burden of proof. Secondly, less drastic measures must have been first attempted (such as protecting minorities, federal coexistence, and so on), and must have finally failed. A third criterion is, e contrario, hinted at by the ‘oil discovery’ thought experiment: a community that has so far functioned well enough must not be divided by the one-sided advantage of those desiring secession. Two further criteria are obvious: fourthly, fundamental individual rights to freedom are to be recognised and, fifthly, those desiring secession must in turn allow claims to secession made from inside the new seceded community, if so required. The American Declaration of Independence is an example of a secession that is legitimate in principle: the “Thirteen United States” at the time justified their independence with three principles that are undisputed from a legal–moral viewpoint: inalienable (human) rights, the responsibility of a government to protect these rights and, following a long list of abuses and infringements, the right, even the duty, to appoint new guardians to secure this protection. From a legal–moral position, this example is significant in that it links parts of the third principle with the first principle – the obvious and rather striking violation of basic human rights. If members of the group in question are executed or incarcerated without trial for an indefinite period of time; if their families are torn apart and their religion and language are extremely discriminated against or even prohibited; if far-reaching expropriations below the group’s level of subsistence are carried out; if a group’s basic human rights are systematically ignored; if their right to political participation is violated; or if the group is exploited in an economic sense: in such a case secession is a legal–moral right to self-defence and therefore legitimate – and so is any assistance that is given to the seceding community. In terms of global civic law, secession is even required. In applying these criteria, the example of the United States is a legitimate secession, for it is a response to serious and continuously unjust rule. A second group of examples is similarly beyond question: secession as a response to a hostile appropriation by another community as in the liberation from a foreign rule that had begun through annexation or colonisation. The difficult question of scope arises here, in that it is unclear how far back into the past one is allowed to go. If the line is drawn too far back in history, situations of hostile annexation and colonisation can be found nearly everywhere. The question of scope is a complex one, which is why it invites arbitrariness and hypocrisy: in the case of some regions or some nations, the right to secession is said to have expired and be barred by statute only a few generations after the hostile appropriation occurred, while elsewhere secession is justified based on events that happened many centuries ago. A second problem surfaces with regard to the rights of future generations. If a group has cultivated and settled on a land that their ancestors unjustly appropriated, it would not be right to evict them. In such cases, newer and older rights must be balanced out and traded off against each other, and solutions for coexistence must be

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sought. In so doing, the security of the rival groups must be guaranteed, with particular emphasis put, firstly, on a distribution of (natural, economic, financial, . . .) resources that secures the existence of all involved and, secondly, on the possibly differing amounts of effort invested in cultivating the land. Furthermore, all sides must recognise everyone’s basic rights to freedom. The successful separation of the Czech and Slovak federal republic into two independent states demonstrates that secession can be legitimate not only as a response to an unjust rule or a hostile annexation but, thirdly, also as a right to political self-determination. Given that the right to secession produces difficult questions of demarcation and balancing, a sound assessment requires not only a great capacity for good judgement, but also well-defined rules. Such rules, however, must be so flexible and open that they allow the balancing of pros and cons in each case, so that existing conflicts are not further exacerbated or new ones created. Determining the rules, secession law in an objective sense, is the primary responsibility of the global legislature; the resolution of conflicts when interpreting the rules is the primary responsibility of the global judiciary. Should the parties concerned have difficulties concerning the impartial enforcement of rules, then the executive branch of the world republic is responsible in a subsidiary sense. 14.3 HUMANITARIAN INTERVENTION

An action is a humanitarian intervention if four criteria are fulfilled: it is interfering with the internal problems of a state that occurs by means of coercion, in particular by military force, without approval of the government, and it is an intervention directed against violations of human rights. ‘Phoney interventions’ do not fall into this category, neither do those interventions that are contractually agreed to, nor those that occur ‘by request’ or ‘with approval’ by a government that is, for instance, incapable of solving a famine crises in its territory (on the debate in international law and political science, see Bull 1986; Isensee 1995; Kimminich 1995; Kunig 1981; Lillich 1993 and Moore 1974; on the legal–moral debate, see also Fisch 1996; Forbes and Hoffmann 1993; Senghaas 1993; Tesón 1988; on the classical debate, see de Vitoria and Hugo Grotius, who support humanitarian intervention: The Rights of War and Peace, II 25, § VI, whereas Kant rejects it: Perpetual Peace 5, Preliminary Article; The Doctrine of Right, § 60, but he knows of an exception; see also Mill, A Few Words on Non-Intervention, 1859; for an essay on Kosovo, see Höffe 2000). The normative assessment of humanitarian intervention appears easy in the case of the fourth criterion, human rights: given that legal morality demands the law be protected, the protection of its most elementary and uncontested element, human rights, should be even more mandatory. According to the universal precept of the rule of law, humanitarian intervention is not only permissible, it is required; for if the enforcement of human rights were only optional, it would remain subject to the arbitrariness of the law. It would be justice à la carte, that is, dependent on political interests and power constellations. If the rule of law is to be upheld with the same

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earnestness we demand domestically, then intervention is required against any violation of human rights, irrespective of how serious the violation or who perpetrates it. As we will see in the following paragraph, however, the all-inclusive duty to intervene suggested by this deliberation faces serious doubts. Let us pick some examples and assess them using the 1948 UN Declaration of Human Rights: the first occasion that would have required an intervention was the erection of the Iron Curtain or, at the latest, the construction of the Berlin Wall. This follows because both cases constituted violations of article 13(2) of the Declaration, which stipulates that everyone has the right to leave their country. Secondly, one would have to intervene in all (Islamic) states that prohibit marriage with non-fellow believers, because article 16(1) grants all “men and women of full age, without any limitation due to race, nationality or religion, . . . the right to marry”. Thirdly, one would have to intervene against the violation of minimum social standards, even against states that fail to guarantee the right to “periodic holidays with pay” (articles 24 and 7 of the international pact on economic, social and cultural rights). Liberal democracies are not untouchable either, particularly if their high rates of unemployment violate every person’s right to work (articles 23; 6.1). In all these cases human rights are violated that are not only philosophically justified, but also binding under international law. Doubts remain, however, against the corresponding interventions: in the first example, a third world war would have been imminent, the innocent victims of which would have constituted a violation of human rights. Hence, a balancing of goods of equal standing needed to be carried out, which eventually favoured the decision not to intervene. The intervention in the second example could be opposed by reference to the right to be different. Yet, it presupposes the recognition of basic human rights, a requirement that is not fulfilled, so that in this case an intervention would indeed be called for. In the third and fourth examples, the question arises as to whether human rights constitute claims enforceable by individuals through lawsuits, or whether these rights are responsibilities for states that set a binding direction for policy, but have no say in how to achieve these goals, or whether they can be reached. If this is the case, intervention would hardly be justifiable. These examples offer three insights that are not related to the basic legitimation of the right to secession, but to its legitimate application. Firstly, we must not overlook the fact that some human rights rank higher than others: acknowledging the right to a vacation should not distract us from the far more important right to life and limb; and torture is far more serious than the dismissal of employees. Further, the fourth criterion must be indisputably fulfilled: if the problems of another state are meddled with by force, a violation of a human right has to have occurred beyond any doubt. In the cases of the right to vacation and the firing of employees, this is hardly the case (this does not though give free rein to states; see ch. 15.3). Secondly, the intervening force must be powerful enough to promise a successful intervention with as few victims as possible. Thirdly, interventions must also be undertaken against powerful states who should no longer, following current practice, escape legitimate sanctions. In order to fulfil the last two requirements, neither individual states nor alliances between them must be more powerful than the intervening force. That force must be

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so supremely powerful that its intervention results in a quick success with few side effects. For the sake of impartiality, the subjective right to intervene must be tied to an objective right to intervene, namely to rules based on generalisable principles; rules that clearly state which violations of human rights call for humanitarian interventions that are legitimate (or required), and which do not. Exactly who carries out the intervention is also important. There are three options: the particularist intervention undertaken by an individual state, international intervention by the United Nations, and intervention by the world republic. The first alternative is permissible only as a special right: as with domestic self-defence, one is allowed to assist a state that is entitled to self-defence within the scope of that state’s self-defence. Of course, this assistance may become biased – by domestic policy, economic interests or a sense of belonging on ethnic or religious grounds. Some groups may therefore be helped prematurely, while others are not helped at all. Therefore this type of intervention is problematic and must be dismissed in favour of a world-republican approach or, as a substitute, of an international approach. Humanitarian interventions are usually subject to at least three types of danger. First, the already existing proclivity to use violent force may increase further still. Second, intervention may be abused for power-political purposes, because it can be used as a cover for an aggressive war. Spain, for instance, referred to (allegedly tens of thousands of) Aztec human sacrifices to justify its military intervention in Mexico (see Fisch 1984, 221–258). The result was lasting rule and therefore conquest. ‘Good Samaritans’ can sometimes cause more damage than they prevent. Even though the Spanish at the time managed to prevent some human sacrifices, they violated the rights of even more innocent people. In the case of an intervention carried out by the world republic, all these dangers are either overcome or decisively minimised: the inclination to use force and violence is barely increased, because the respective monopoly of power rests with the world republic anyway. The danger of abuse is diminished because it is now possible to contest an intervention and other measures carried out by the world republic before a global court of law. Even reparations may be paid. In order to emphasise the extraordinary nature of every humanitarian intervention, and to hold the intervening force accountable, a compulsory judicial review is recommended. Such a review should apply to both the authorisation as well as the appropriateness of the means employed, so that the third danger is also avoided. The legitimacy of the right to intervene in the subjective sense, the authority to intervene, rests on the fact that limits the autonomy of a state: the constituent parts of a state are, unlike those of an individual, subjects with a legal capacity. Legal morality does not preclude anyone from mutilating themselves. Self-mutilation or even suicide may be a violation of a duty against oneself – according to Kant it is even the violation of a perfect duty (The Metaphysics of Morals, part 2, § 6) – but it cannot be objected to on legal–moral grounds. The assessment is different for states, however, by virtue of the legal capacity of their constituent parts. If a collective individual, a state, mutilates itself into parts, one cannot speak of collective selfmutilation or suicide; rather, one part of the state has injured or killed another. Given

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that a foreign infliction of harm is undoubtedly illegitimate, no global legal order could justify a principle that tolerated a domestic violation of human rights. Genocide is clearly an instance that creates an undisputed right to humanitarian intervention. Given its responsibility for global civic law, it is not only permitted but required that the world republic take strong action, if only against genocide. Admittedly, genocide is a particularly striking example in favour of a far-reaching authority. As mentioned before, that authority arises from the universal precept of the rule of law and from the legitimatory secondary nature of states: they do not grant human rights, but only guarantee them. If a state refuses to protect human rights not just occasionally but systematically, this state then loses that much of its legitimacy and activates the subsidiary responsibility of the world republic. Furthermore, since the establishment of the UN Charter, human rights violations against one’s own population are no longer an exclusively internal affair of a state; they are now subject to international law. Another argument speaks in favour of humanitarian intervention, one that is secondary from a legal–moral point of view: human rights violations can result in such massive streams of refugees that even benevolent neighbouring states may perceive them as ‘international invasions’ that threaten security and peace in the region. The requirements of subsidiary state activity remain applicable in each instance of a humanitarian intervention. Given that various competing goods must be weighed, harm to innocent victims, which can hardly be avoided with military action, must be taken into account for each intervention. No humanitarian intervention must cause more damage than it prevents. Furthermore, by no means must it endanger the global peace. This first precept indicates the second one: the proportionality of the means employed. Interventions by force are legitimate only as far as they are necessary for the protection of human rights. Gradation is recommended in the process: for example, ‘softer’ measures such as diplomacy (in the form of protests or formal condemnations) are appropriate for relatively low-level violations, while mid-range measures such as economic sanctions are suitable for stronger violations of human rights. After all, sizeable investments in a state will support its regime, whereas a drastic withdrawal weakens the executive and may eventually bring about its demise. In view of today’s tight economic interdependence, sanctions can bring down almost any state, provided the sanctions are supported by all states and enforced effectively. Military force is the ultima ratio and is legitimate only for the most serious violations of human rights. Here, a third precept must be taken into account: that the strength of the means employed must be increased gradually. The process should commence with softer measures and continue with more severe ones only after the preceding steps have failed. Military force must only be allowed if all other means have failed. Further precepts are, fourthly, the impartiality and indifference of the intervening power and, fifthly, the explicit approval of the beneficiaries. Several criteria exist to measure how severe a human rights violation is. The most important one pertains to how far-reaching that violation is: are the violated rights themselves necessary to the enjoyment of other (or possibly all other) rights? According to this standard, some rights are more important than others, whereby a

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violation of a (relatively) more important right is more serious than a violation of a (relatively) less important one. The worst violations after genocide include human sacrifice, slavery and large-scale expulsion; torture is a very serious violation. Less serious, but still significant are violations of the freedom of assembly, the freedom of speech and the freedom of the press (but not so for the broader interpretations of these liberties). Whether the human rights violations are perpetrated by an authoritarian state or a formally democratic one is immaterial; human rights are, by definition, valid irrespective of the interests of the (democratic) majority.

CHAPTER 15

A GLOBAL SOCIAL AND ECOLOGICAL MARKET

The purpose of the free market is to create greater collective prosperity through competition and by encouraging individual effort. Indeed, competition stimulates the forces of creativity, enterprise and effort, including a work ethic and saving. These forces not only augment the capacity and motivation for greater achievement, they also reduce (financial and non-financial) costs, ensure that the demand for goods and services is effectively met by supply, and reduce waste through higher prices. Nevertheless, the vision of the free market – its ‘utopia of prosperity’ – is not easily fulfilled; for the market is, on its own, not inherently free. Moreover, it produces considerable secondary costs. Hence, a free global market presents an adequate framework only if it is able to solve the challenges of national economies and manages, above all, to put the appropriate checks in place. Even on a global scale, competition must be regulated so as to guarantee a free market (ch. 15.1). There are market failures even on a global scale, which warrant a global economic policy (15.2) and market malfunctions that need to be addressed by principles of global justice (15.3). Further, in order to combat hunger, poverty and (under–)development, a meritorious supplement, a sense of global solidarity and philanthropy, is required (15.4). Finally, a global regulation of environmental protection is needed (ch. 15.5). A thorough treatment of these issues must be left to a separate analysis. Suffice it here to point to the world republic’s responsibility for both individual tasks and its overall Leitziel of guaranteeing a type of progress that is socially and environmentally acceptable to all people and states. The principle of subsidiarity remains applicable in this process, so that the competing community of states need not be converted, as is sometimes feared, into a fiscal and social community of action. We will formulate here, as far as possible, some normative principles, or at least state the tasks they require. In so doing, philosophy cannot completely ignore the sometimes bewildering wealth of experience that lies beneath it. 15.1 GLOBAL REGULATION OF COMPETITION

On an elementary level, a market functions with anonymous forces or, expressed in simple terms, according to the laws of supply and demand. Those who therefore reject any form of regulation ignore the fact that, more often than not, effort and enterprise must be wrung out of the inertia inherent in the human race. A ‘sophisticated sluggishness’ tries to attain its goal (prosperity) with as little enterprise and effort as possible and seeks to distort competition in its own favour. Hence, in a market that is empirically free, competitive distortions are virtually inevitable. Paradoxically, these 287

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distortions are demanded by economic rationality because they increase one’s efficiency, provided one is powerful enough to create them: either greater profits – and therefore greater prosperity – are achieved with the same amount of input or the same profits are achieved with less input. Let us refer to this as the (in this form unprecedented) law of rational anti-competitive behaviour: to homo oeconomicus, anti-competitive behaviour that furthers one’s selfish interest is rational behaviour. The starkest (even criminal) anti-competitive behaviour – fraud and violence – is already kept in check by conventional legal provisions. A market system opposes three further forms of anti-competitive behaviour: monopolies, oligopolies, cartels and unfair competition. Only when such distortions are prevented is a market free not only in the empirical, but also in the normative sense, which fosters competition and thereby increases collective prosperity. According to the law of rational anti-competitive behaviour, competition is not a spontaneous feature of the economy. Rather, it must be imposed from the outside, through global law, with the authority to compel and enforce rules. In this regard, something was overlooked when global markets were liberalised: although governments were busy dismantling state-imposed trade impediments (such as duties, volume caps, and regulations), they ignored the fact that private business was fostering the three types of distortions to trade mentioned above. In order to guarantee a free market, it would have been preferable to create from the start a global counterpart to the anti-trust law existent in individual states: a global anti-trust law, a global anti-trust regulatory authority and a global court of law responsible for competition, as a counterpoint to the General Agreement on Tariffs and Trade (GATT) and the World Trade Organisation (WTO). The process could start with a legislator providing a form of ‘judicial support’, allowing a foreign governments’ anti-trust agencies and foreign enterprises suffering from market restrictions, to raise complaints domestically. The better this judicial support operates and the more underlying international standards are harmonised, the more states could uphold their jealously protected sovereignty while relieving the world anti-trust authority of its corresponding duties. While the economic realm has quickly understood the importance and implications of globalisation, the political realm lags significantly behind in enacting laws that would protect competition. In the mean time, the situation has become even more dangerous. Given their responsibility for the welfare of their citizens and their dependence on tax revenue, job creation and, (in the case of democracies) approval by the citizenry, neither parliaments nor governments can abstain from trying to attract new businesses and to retain those already established. The law of rational anti-competitive behaviour thus also applies between states: there is international competition between geographic regions in which states attempt to outdo one another by offering better terms to potential investors. Two phases should thus be distinguished: legislation and application of the law. When applying the law, a state can bend or even bypass applicable regulations, for example by reducing taxes or waiving social and ecological requirements for important companies or industries, or by allowing ever-larger corporations to merge.

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Legally, such privileges are a violation of the principle of equality; economically, they represent unfair competition. In functioning democratic states, prosecutors and courts tend to intervene against such developments. However, even then the world republic is not superfluous because a common framework and guidelines are still required: a global legislator; a global judiciary as an authority of appeal that ensures international equality before the law; and a global anti-trust agency that would take over when national anti-trust authorities fail. These institutions need to be equipped with sufficient power for them to defy multi-national corporations, including strategic alliances between them, as well as the national interests of large (and even hegemonic) powers. After all, multi-national corporations are gigantic conglomerations, with revenues in the hundreds of billions of Euros, thereby exceeding the Gross National Product of states as rich as Switzerland. These corporate concentrations gain a degree of power that may leave global society at the mercy of a global economic oligarchy, the managers of which rule from an increasingly limited number of private power centres. Their power and sphere of influence is not limited to taxation and jobs alone; it also brings about the tendency to link the privatisation of profits to a partial ‘socialisation’ of corporate risk. Given that the bankruptcy of a large corporation endangers a great many jobs, a community has an interest to prevent such insolvencies. Alongside the standard distortion of competition that occurs when the law is applied, competition can also be distorted at the legislative level: states that distinguish themselves as so-called tax havens, by offering extraordinary tax advantages to corporate headquarters without making provisions for either the infrastructure or the staff of the company concerned, violate an elementary precept of justice. They are free riders of global society, and other states have the right to demand compensation for the infrastructure and provisions that tax havens have failed to supply. The intention here is not to undermine legitimate competition between the tax systems of individual states, but to insist either on a global harmonisation of taxes or on a form of compensation as conceived above. As in individual states, only a ‘central power’ is able to enforce such a system, and on a global level that power is the world republic. The ethics of global market regulation is associated with an interesting legal phenomenon: the development of a global commercial law (a lex mercatoria) that owes its existence neither to the usual creator of positive law, the state, nor to its substitute entities on the international level, such as the United Nations. However, the significance in legal-systematic terms of such a ‘global law without a state’ (Teubner 1997) must not be overestimated. Commercial law has been of a supra-state nature for a very long time; it also represents only a small part of the overall legal system. Furthermore, state-independent privileges with their own jurisprudence and jurisdiction are seen in religions, particularly in Judaism, Christianity and Islam. Further, global law has not only positive, but also negative aspects. As long as the law is created with the full approval of all concerned, it does indeed disburden the compulsory jurisdiction and reminds us of the fact that public powers are secondary when it comes to legitimation. They exist to mend legal deficits, a purpose that becomes superfluous when these deficits have been addressed at a private legal stage. However, these

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developments are a type of anonymous world-legislation that has not been democratically legitimised. A second level of democratic control is required here: the development of the lex mercatoria must be monitored and corrected should undesirable developments occur. To do so, Teubner’s suggestion that global law be re-politicised by way of sophisticated and isolated discourses is not enough. 15.2 A GLOBAL ECONOMIC AND FISCAL POLICY

The connection in economic and fiscal policy between the need for a given action on the one hand and the capacity to implement and carry out that action on the other has been broken. Although states have a responsibility to provide elementary levels of welfare, their ability to take action has been significantly weakened by the forces of economic globalisation (see ch. 6.2). Without getting involved in the theoretical debate between neoclassical Monetarists and Keynesians, it hardly seems sensible in this situation to not have a global economic and fiscal policy. Crises of the magnitude of the 1929 global economic depression are harmful to virtually everyone. The models of economic and fiscal policy range, through various intermediate steps, from the total non-intervention of radical economic liberalism to that radical socialism which transfers all responsibility to the state. However, political reality is no longer impressed by these two extreme positions, so that the only model that remains is a ‘middle way’: the social market economy. Yet, this model has been expressed in different ways, ranging from a minimum of social offerings to almost socialist economic orders. There are controversies both in economic theory and in social policy concerning, for example, the extent to which economic cycles should be stabilised through anti-cyclical economic policies or the extent to which wealth and income are to be adjusted and redistributed. Although some of these controversies can be settled discursively, the ethics of a global legal system is not the right place to do so. An ethical discourse will only touch upon some considerations: firstly, this discussion reminds us of federalism, the principle of subsidiarity, and the intermediate layer at the regional level. It is for these reasons that a global economic policy and, possibly, a global economic ministry, should be granted only limited responsibilities. Further, given that international competition between geographical areas is conducive to economic (as well as other forms of) prosperity, it would be counterproductive for states and regions to give up much of their economic sovereignty. At any rate, individual states must fulfil two preconditions: in the non-economic realm they must create a commercial law, establish an effective jurisprudence, and ensure that there is little if any corruption. The economic precondition, in turn, consists of sound economic and fiscal policy that recognises that even Keynesian policy should not incur so much debt, that servicing it would limit the government’s room to manoeuvre and the scope of its investments. Only if these conditions are fulfilled is a successful global economic policy conceivable. An economic policy must specifically address the following four tasks. The first problem concerns international financial markets, the size of which has now exceeded that of global trade and global production. The value of a currency

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depends on factors that are – like a country’s economic standing, monetary policy and public finances – positively influenced by competition. Hence, the market must be given leeway to operate. Just as controls are implemented in domestic economies, they are also advisable at a global level: in particular, through an institution that mirrors the functioning of national central banks. Should states decide not to unite into a global monetary union – a step that would be questionable on the grounds of political sovereignty and economic policy –, the institution then created would not be a world bank in the strict sense, that is, a global central bank that would sit above all national central banks. Rather, it would be a ‘subsidiary world bank’ and would have responsibilities, of course, different from those of the ‘International Bank for Reconstruction and Development (IBRD)’, which is also confusingly referred to as the World Bank, but which focuses on multilateral development aid. In an institutional sense, the ‘subsidiary world bank’ could be based on the ‘Bank for International Settlement’ in Basle, Switzerland. The bank is answerable to international law and is organised as a joint-stock corporation, 85 percent of which is held by national central banks. The bank administers approximately 10 percent of the world’s currency reserves. Furthermore, it provides the most important forum for international cooperation between central banks and the national supervisory authorities of banks. Yet the bank’s responsibilities and authority would have to be expanded, even though it is supported by central banks of large-scale regions, such as the European Central Bank. The possible instruments a subsidiary world bank could use, such as a tax on private short-term foreign exchange transactions (‘Tobin tax’) to discourage speculation by slowing the reaction time of global financial markets, are viewed with scepticism in economic theory. Three global measures for supervising banks are, however, commonly agreed upon: improved rules for the disclosure of reports on trade and investment; globally standardised supervisory rules; and a limit on high-risk transactions to a predefined equity ratio applicable to all financial institutions. Efficient sanction mechanisms are required to enforce such requirements: positive ones, such as more favourable terms of credit, and negative ones, such as deteriorating terms, including an eventual exclusion from financial markets. By carefully analysing countries’ economic and fiscal policies the bank could act as an early-warning system for looming crises. It could also function as an international forum to debate and resolve issues related to national currencies. A subsidiary world bank is part of the responsibility of the world republic, but not of the republic’s government. So far, experience offers at least three reasons for central banks to operate independently of government: according to the economic argument, states’ (usually insatiable) appetite and demand for credit needs to be kept in check. The political argument, in turn, demands that monetary policy remain unconstrained by the political requirements of the day; finally, the technical argument points to the need for quick decision-making procedures that allow rapid adjustments to fast-changing circumstances (see Payer 1982). Taken together, these arguments should weaken the following three objections to independent central banks: the priority argument stipulates that different priorities with respect to employment, economic growth and redistribution may be required at different times,

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a task that is the responsibility of the government. This view is questionable because, in the long run, monetary stability represents the best condition to cater to all sorts of changing priorities. The coordination argument claims that monetary policy is part of a general economic policy and its respective legislative procedures. However, the three arguments for independence speak against such an idea. Third, the democratic argument stipulates that a public institution not subjected to political control is alien to the democratic ideal. Yet, this argument is refuted by the fact that both the members of an independent central bank as well as the bank’s responsibilities are legitimised democratically. Moreover, the responsibilities are best carried out by a bank unconstrained, rather than bound by such instructions. It has been long demonstrated by institutions such as museums, theatres and universities that, despite the financial subsidies provided by the state, they fulfil their responsibilities towards democracy best when left to their own devices. A second task arises from the (relative) juxtaposition of enterprises that ‘think’ in the long term and capital that ‘thinks’ in the short term. This assessment applies not only to the ‘disreputable capital’ that is held in the hands of the few exceedingly rich, but also to capital held by institutional investors representing pension funds, life insurances, private universities, charitable endowments, as well as capital held by small stockholders. Irrespective of whether one uses capital gains to buy a luxury yacht, to support an elderly family member, or to run a university, one’s interest in as high and secure a yield as possible is self-evident. Since competition aggravates the pressure to achieve short-term success, counter-measures suggest themselves for which ethics offers no particular tools, but defines what must be done: given that an overly strong financial sphere ‘produces’ excessive short-term thinking, both internal and external economic counter-measures should be strengthened. The waves of mergers accompanying the process of globalisation demand not only anti-trust laws, but also, thirdly, a promotion of enterprise that counters the threat of an economic oligarchy by supporting small and mid-sized companies. These counter-forces are facilitated by an ‘explosion of individualism’: while ‘global consumers’ demanding the same goods all over the world (including hotels and restaurants) remain in the minority, regional and local differences have become ever more important. Even multinational corporations are forced to address different local preferences and, hence, to act multi-locally. Why should enterprises not remain largely differentiated across regions and locations? Rather than restricting its range of topics to the tasks of traditional economic theory, a global economic policy could be sensitised to a fourth, genuinely global task. That task arises from the regional idiosyncrasies of enterprises, for example from differences in management (with regard to commercial purposes, criteria of success and decision-making procedures), worker’s participation in decisions and style of cooperation. Globalisation is in danger of levelling differences, even in situations where purely economic criteria would not require it: a kind of colonisation of foreign economic cultures is taking place, one that requires counter-measures.

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15.3 GLOBAL JUSTICE

The regulation of global competition and global economic policy is concerned with moral correctives to the unfettered global market, that is, with global justice. We will concentrate on two of the many representative issues: common social standards and a global policy of development aid. 15.3.1 Social Standards Critics of the Welfare state tend to think it is in many places degenerating into an allinclusive Welfare state, one not only burdening the public coffers, but also sweepingly presuming that high-earners are unfairly enriching themselves. Regarding global social standards, such misgivings are out of place, because these standards merely establish minimum conditions. In order to make them applicable across cultures, these standards must be derived from the notion of human rights. To do so, we propose the following measures (see chs. 3.3 and 3.4). (1) The negative freedom right to “protection of life and limb” gives rise to minimum requirements for labour conditions. Labour that is detrimental to one’s health – because of, for instance, noise, low air quality, fumes or fatiguing and excessive (daily, weekly or annual) working hours – is illegitimate from a human rights perspective. This assessment applies, in a wider sense, also to the ban on child labour. (2) The right to personal property results in a ban on arbitrary expropriation, especially one that does not involve compensation. (3) The negative rights to freedom obviously prohibit slavery, bondage and forced labour. (4) Discrimination based on race, skin colour, gender, religion, political conviction or social origin is, of course, similarly illegitimate. Unequal pay between men and women, for instance, is unacceptable. (5) The elementary social right to subsistence entails minimum wages. These do not, of course, have to be identical across the globe but rather depend on regional factors such as costs and standards of living. They also depend on available resources: when a famine is occurring, demands for minimum wages are vain. (6) Elementary social rights also include social provisions concerning family status, ill health, accident, unemployment and old age. Regional differences must again be taken into account: where communities of solidarity such as families, clans or guilds still function, less should be demanded from the state, compared to places where the individualisation of life has weakened such ties. One should also not overlook the fact that social provisions do not only compensate for weakened communities of solidarity, but may actually contribute to such developments (see ch. 5.2). (7) The right to assembly and association requires that trade unions, professional associations and federations of industry be allowed. (8) Social standards also include responsibilities towards future generations, an obligation that should not be narrowed to ecological aspects alone, but must consider social and cultural resources as well. According to the principle of intergenerational justice, no generation should use more resources than it can produce by way of

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equivalents or substitutes. Furthermore, an end must be put to the excessive consumption of resources that are difficult or impossible to regenerate (see ch. 15.5). (9) The concept of social standards must be extended in yet another regard: as long as employment is the norm and required to sustain oneself and one’s family; as long as social standards provide important opportunities for self-fulfilment as well as respect for oneself and for others; and as long as the opportunity for employment depends inter alia on one’s education; as long as all this is the case, individuals need to be provided with adequate educational opportunities. As far as social standards are concerned, the world republic is only called for in a subsidiary manner, namely only when communities on their own do not recognise such standards. But why does the republic have any responsibility at all? States, indeed, do not want to be put at a competitive disadvantage by their greater welfare provisions and thereby loose jobs and tax revenues to non-social states. However, such self-interested behaviour does not yet justify a (world-republican) authority to compel. Rather, two other arguments speak in favour of it: A first argument from world citizenship is pertinent whenever the gains of nonsocial states benefit only a small upper class. In such cases, the disadvantaged may, in their role as world citizens, turn to the world republic and demand assistance in ensuring the minimum social standards. A second argument from international law presumes competition between national economies: because states try to attract investment and corporations by underbidding competitors on social and ecological criteria, these standards are bound to diminish in the process. Although the reduction does not serve the domestic population, the rivalry between economies makes it impossible to prevent through unilateral measures. Binding agreements are therefore required. The world republic is responsible for bringing these about, and in the present network of international organisations, the International Labour Organisation (ILO) is the most suitable candidate for the task. However, the tools it has at its disposal to bring about and enforce agreements need to be improved. As is the case within states, non-coercive measures are preferable. States that display a greater social responsibility may voluntarily establish fair trade zones accessible to only those competitors that fulfil certain minimum conditions. These could include the stipulation that no pittance wages are paid to workers; that employees are granted elementary welfare provisions regarding family status, illness, accidents, unemployment and old age; and that competitors comply with elementary environmental standards. Of course, fair trade is about more than social standards; it must also address commercial obstacles (of both a salary and non-salary nature) and the creation of export industries in poorer countries (for the bigger picture, see inter alia Brenton et al. 1997 and Spraos 1983). 15.3.2 Development The very name of this topic already creates problems because normatively and politically controversial issues come into play. While the former term ‘underdeveloped’ was condescending on the part of the richer countries (but also denoted the desire of the poor to develop and ‘catch up’ with them), the term ‘former colonies’ indicates

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one of its causes. Another problem is the precise criterion to use in measuring the phenomenon. Gross National Product per capita provides no information about the real distribution of income (a small layer of very rich inhabitants can distort the picture), about provisions made outside the market, such as unpaid housework, or about real domestic purchasing power. The core issue at stake remains nevertheless uncontested: the material poverty that does not even allow one to adequately satisfy one’s basic needs of food, clothing and shelter, and which is often combined with a low level of educational attainment and a lack of elementary health care and legal protection (on the extensive discussion of the topic, see Dürr 1991; Hauser 1990–1991; Menzel 1993; O’Neill 1986; Opitz 1991; Pogge 1989, sec. III; Sen 1981; Wagner et al. 1995; on statistics, see the Human Development Report 1998). Certainly, charity demands that one help the needy. However, the principle is not part of the legal obligations that are owed, but is a meritorious supplement. If the world republic is to be responsible for development, then justice is what is called for. According to a “dogma of the debate on justice” (Höffe 1996, 204), distributive justice is the exclusive core, and it does not concern itself with original conditions, but only with the results. The fact that there are rich and poor countries seems in such a case to be a sufficient justification for redistribution. However, the assumption that there is a given amount of resources, which should be as much as possible equally distributed among all states, ignores the fact that what is to be distributed usually must be extracted beforehand and that one is jointly responsible for the ensuing state of affairs. Ignoring this joint responsibility results in a ‘moral hazard’, a structural encouragement to misconduct or, possibly, free-riding (see, for example, Pogge 1989). What matters is not the present state of the distribution, but to link the original distribution with the individual contributions made since then, as well as to correct injustices. The ultimate source of all production – the planet with its natural resources, plants and animals – does indeed call for distributive justice. This justice is not, however, concerned with the current allocation, as the ‘philanthropic’ perspective tends to assume, but with the initial distribution, the traces of which disappear into the ‘darkness and mystery of prehistory’. As it happens, in the period since then nations have managed to adjust to their external environment and to secure for themselves – through their own efforts such as their work ethic and social principles, as well as their population policy – a tolerable and sustainable livelihood even under extreme natural circumstances. The notion of justice therefore suggests that we first of all hold individual communities responsible for their present livelihoods. There are indeed causes, such as policy failures, for which the respective countries are themselves responsible. These include neglecting rural development, favouring owners of large-scale land holdings at the expense of small farmers and merchants, ‘exploiting’ rural inhabitants in favour of urban dwellers, as well as promoting hard to justify prestige projects. Low levels of taxation on the income and wealth of the rich are also responsible, as are widespread ‘mismanagement and corruption’ and population growth. Lasting improvement in these areas can be expected only from internal reforms.

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However, it is not the population as a whole, but the ruling elites (who are more concerned with preservation of their power and self-enrichment than with public welfare) who are to be held responsible for many of these factors. The current global political order, and its interpretation of sovereignty, is responsible for this state of affairs. This is unqualified inasmuch as it allows states to determine the criteria by which their governments are determined. Any group that disposes of the most powerful means within a state can count on being recognised as the lawful government and on attaining two similarly unqualified privileges: the (unqualified) resource privilege gives control over the state’s raw materials, including the ability to lawfully transfer titles to them internationally. The (unqualified) credit privilege, in turn, entitles states to take out credit in the name of the state and to burden its future governments with the repayment of the debt. This twofold privilege obviously helps to stabilise the government in question. It also stimulates the appetite of other groups for power and money and therefore ensures a succession of corrupt governments. In any case, the chances of remedying the situation through democratisation and wideranging economic development are greatly diminished. Not all cases of human suffering call for assistance on the grounds of justice; but, and as a first reason, wherever the hardship has been, at least in part, caused by outside influences, the above assistance is called for to the degree of that joint responsibility. This necessitates a change in the present world order, a move towards a qualified understanding of sovereignty and no longer one that is exclusively based on power. In order to improve the development opportunities of poor countries, minimum conditions of substantive democracy or public welfare need to be fulfilled before a government is recognised in international law and its resource and credit privileges are recognised (on this subject, see Pogge 1998). Apart from the self-inflicted causes and those that are jointly caused by outside forces, a third group of factors can be responsible for a lack of development: massive externally inflicted injustice. In the case of colonisation, slavery and expulsion from native territories, corrective justice demands that reparation be awarded. Such compensation is called for also where, over an extended period, certain groups have been denied access to property, equal education and social upward mobility. The second reason for compulsory assistance based on justice, then, is compensating for past wrongs. Conflicts over goods may ensue in the process, because the compensation for past injustices, such as those inflicted on women, is at odds with the principle of equal treatment. Corrective justice does not designate groups that are universally entitled to a claim, nor does it name groups that are universally obliged to fulfil such a claim. Poor communities cannot vaguely appeal to past wrongs, nor do wealthy nations as a whole indistinctly owe compensation for past wrongs. Rather, according to the principle of causation, only those that are to blame are responsible. The legal–moral principle that forms the basis for Germany’s reparation payments for wrongs committed during the Nazi era can hardly be inappropriate for former colonial powers. At any rate, they, still today, enjoy considerable advantages, such as a lasting cultural influence and an extensive network of trade relations.

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It may be difficult to precisely assign responsibility in specific cases. Furthermore, there are also indirect beneficiaries; it is not easy to decide how many generations later one can claim compensation for an earlier wrong: do today’s inhabitants of the island of Samos have the right to demand reparation from Athens because the latter destroyed the former in the year 440 B.C.? What matters in such a case is whether the earlier wrong continues to significantly compromise the opportunities of those alive today. Given that nearly a hundred generations should have produced sufficient opportunities to reverse the situation in the above case, the answer must certainly be in the negative. Athens does not owe reparation to Samos, nor does Rome owe compensation to Carthage. Matters are different for the historical assessment of what Rome and Athens achieved, which should consider not only their glorious moments, but also the injustices they committed. The assessment is different in the case of the natives of North and South America. The widespread killing of their ruling elites and the damage, often even destruction, of the autochthonous social and political structures that the conquistadors and colonial rulers brought about, requires long-lasting processes of healing. Yet over many generations, these processes have not been properly initiated. Furthermore, the people of many regions and subcontinents were not able to emigrate, a measure that was widely available to citizens of smaller communities such as Samos, which benefited from the advantage of neighbouring states that shared the same language and culture. A similar assessment applies to the communities of Africa, which suffered from colonisation at first and then endured a difficult period of decolonisation. A similar analysis applies to African Americans. They are all entitled to long-lasting assistance on grounds of justice. Assistance for reasons of justice is supported by a further argument from corrective justice: the liberalisation of the global market has increased per capita income not only in the First World, it has also raised people out of poverty in the developing world. Still, the collective advantage of a global liberalised market is not of equal benefit to all groups and nations. As a result, both the groups as well as the communities, which largely shoulder – either temporarily or permanently – the risk of liberalisation, have a claim to be compensated for that special risk. The world republic is genuinely responsible for fulfilling this obligation, because this duty is based on justice and is collective in nature. 15.4 GLOBAL SOLIDARITY AND GLOBAL CHARITY

The realm of social morality extends beyond justice and encompasses the notions of solidarity and charity. Utilitarians in particular find it difficult to accept such a differentiated conception. Singer (1979, 168) states quite rightly that “if it is in our power to prevent something very bad happening, without thereby sacrificing anything of comparable moral significance, we ought to do it”. From this it follows that helping the poor is indeed obligatory, but not that this isn’t to be regarded as beneficent or generous. Genuine duties include both legal duties that are owed and the meritorious duties of virtue, as well as solidarity somewhere in between the two.

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The notion of human solidarity begins with the realisation that all people are vulnerable to suffering, and are also able to help one another. However, these two conditions are indifferent to the difference between solidarity and philanthropy. Solidarity is also marked by the fact that hardship cannot be easily categorised as being either self-inflicted or caused by outside factors. In the former case, charity is what is called for, while in the latter case it is justice. The supplementary condition that characterises solidarity – the existence of a global community of fate – is fulfilled when global conditions change to such a degree that the usual precautionary capacity of individuals is overtaxed. In principle, any group or state could be affected by such changes without being (mainly or partially) responsible for their occurrence. Hence, the entire human race sits in the same boat, and mutual assistance – solidarity – is what is here required. The solidarity between human beings need not be as strong as that between friends or members of a family, not even as strong as the solidarity among the citizens of a given state. Yet, even if it need not be intense, it remains a moral duty nonetheless. In order to ensure that this obligation is more than pleasant talk, a device that has proved viable inside states is advisable also for the relations between states: a global system of social security for global tasks where the human race as a whole constitutes a community of fate. In the case of provisions that are morally binding on the global level, but that are neither required for reasons of justice nor owed within functioning communities of solidarity, the world republic is not responsible. If the republic did nevertheless become involved, it would be overstepping its (legal–)moral authority to compel and would be committing a serious injustice. In this case, it is individuals and their prestate institutions, namely charitable organisations that are called for, not state facilities. These are the preferred option not only for moral, but also for pragmatic reasons: more often than not, charitable organisations have extensive experience and strong social networks in the area where assistance is needed. They manage to reduce psychological barriers amongst the needy and infringe much less upon their self-esteem. In the case of religious charities, belief is yet another characteristic that facilitates the development of trust between the needy and the helpers. Finally, the variety of regional and thematic specialisation amongst the charitable organisations allows them to more appropriately address the different kinds of hardship that may occur. Theorists reflecting upon and defining the appropriate types of assistance often set the overly optimistic goal of overcoming all forms of human grief. This superlative aim is utopian in a negative sense, because it exceeds both the responsibility and ability of charitable organisations. These institutions are, even with their best efforts, unable to prevent individuals from getting hurt in accidents, relatives or friends from dying, anyone from becoming old and frail, nor can they prevent a friendship or partnership from breaking apart. In such instances help is obviously desirable, but charitable organisations are not usually responsible for providing it. The widespread tendency to formulate such superlative goals conceals a needless illusion of omnipotence. The work to be done is demanding enough, without adding hopes that will necessarily be dashed.

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Given that providing concrete help depends on both the type of hardship suffered and the abilities of those helping, no universally valid suggestions can be provided here, only self-evident criteria. (1) Where the need for help exceeds the ability to help, the more significant hardship deserves precedence over the less significant one, and when there are equal hardships, those suffered by people nearby, deserve priority over those suffered by individuals more distant. (2) Experience shows that an embarrassingly large percentage of aid does not reach the intended recipients, something that can only be prevented through ever more clever and effective help. (3) In order to ensure sustained success and to strengthen the self-esteem of the needy, enabling self-help is preferable to direct assistance. (4) The likelihood of abuse (‘moral hazard’) increases when help is provided for any hardship irrespective of its causes: when I know the fire department will help even when I’ve been grossly negligent, and I will not held responsible afterwards, I become less vigilant, and am encouraged to act carelessly. There are at least five reasons that speak against a blank cheque for misconduct: it abuses people’s willingness to help; those who do act prudently end up looking like fools; those willing to help may cut back on their help for fear of being abused or looking foolish; it is unfair to those who suffer hardship through no fault of their own to use up most of the help elsewhere, for they then receive less help than they deserve; finally, hardship is perpetuated, or even provoked, rather than prevented. A twofold strategy can lessen the danger of abuse: first, provided hardships are of the same severity, those suffering from it without fault of their own deserve priority over others. Second, help is to be linked to strict conditions, for instance a change in behaviour on the part of the needy, that is then monitored. In cases of gross negligence, a partial reimbursement is also to be insisted upon. It is sometimes supposed that in life-threatening situations, assisting is not a matter of optional charity, but a legal duty, the omission of which can be punishable by law (O’Neill 1990, 229). A careful analysis, however, raises doubts about this position. In (German) civil law, omission is defined as the non-fulfilment of a legal duty that entitles the other to compensation, to withdraw from a contract, or to demand a penalty for breach of contract. In criminal law, the jurisdiction for the issue at hand, a criminal offence of omission is defined by two elements: the violation of a legally protected right and the omission of a legally binding action. According to the type of omitted action, either a ‘genuine’ or a ‘non-genuine’ criminal offence of omission (echte as opposed to unechte Unterlassungsstraftat) can be declared. In the former case, the culpable individual fails to perform an obligatory action, for example, failing to report a serious crime to the police (§ 258 German Penal Code STGB). In the latter case, harm is caused by failing to prevent the crime, when one had a legal duty to do so. For example, a mother violates her legal duty to care for her child if she causes its death by failing to feed it (§ 223 STGB). A passer-by who lets a severely injured person bleed to death violates the duty to assist (see § 323c STGB). Of course, a mother who finds herself in a situation unable to provide either milk or food is

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exonerated. Similarly, one who drives a severely injured person to the hospital should not stop for another severely injured person if doing so endangers the life of the first. The failure to report a crime to police is called a ‘genuine’ criminal offence of omission because a single, concrete and well-defined action is not undertaken. In contrast, causing a child’s death or letting an injured person bleed to death are ‘nongenuine’ offences because in each case there are numerous options for action between which the mother or passer-by may freely choose, one of which must however be chosen. Still, the two types of offences differ in two respects: a well-defined, individual culprit as well as a well-defined victim can be identified. In the case of the ‘non-genuine’ criminal offence, the victim is a natural person – the child or the injured person – while in the case of the ‘genuine’ offence, it is a juridical person, the justice system or public prosecution (on criminal law, see Gallas 1989; on the general distinction between action and omission, see Birnbacher 1995). In the case of life-threatening hardship, the first determining element – the violation of a legally protected right – is undoubtedly fulfilled. Homicide comes to mind here, but not in its most severe form (murder), because two criteria, intention and motive, are usually missing. The second element, however, does not apply. If the media informs us of life-threatening hardship elsewhere in the world, well-defined culprits or victims are not identified. Instead, the hardship of one group tends to collide with that of many other groups. Nobody, neither an individual nor a single charitable organisation, can address all life-threatening hardships in the world. In moral philosophy, the duty of assistance is therefore quite rightly regarded as an imperfect duty not owed in every single type of emergency. Moreover, individuals are not usually able to provide well-defined assistance. Cash donations, for instance, have to be converted into either personal or material help, and gifts in kind need to be distributed. Further, given that both tasks may face many obstacles, one can hardly be certain that it will actually help. Finally, we are dealing here with cumulative effects, which, unlike the case of the person lying injured at the side of the road, allow us to exonerate ourselves. A single individual’s assistance is nothing but a drop in the bucket that is easily replaced by other drops. Thus, an individual omission does not cause any death, and does not contribute to it in any well-defined manner. A certain joint culpability must be acknowledged; it is one of hard-heartedness, though, rather than homicide. In this respect, global assistance remains morally compulsory, but provided the hardship is not mutually caused, omitting to do so is not a violation of a duty of justice or the law, but of charity. 15.5 GLOBAL ENVIRONMENTAL PROTECTION

The fact that human beings are endangering the environment although they depend on it for their survival testifies to their folly, short-sighted insatiability and lack of insight into the ecological consequences of their actions. A structural market failure is, however, also to blame: as long as the advantages of ecologically damaging actions are of benefit to the agent performing them, and the disadvantages fall on the group, the community or society as a whole – in other words: as long as the distributive advantage and the collective harm do not fall together – polluting the environment remains in actual

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fact rational. Hence, environmental protection will not happen on its own, but requires legal regulation. As long as these rules are imposed only on a national level, corporations can relocate to states with low environmental standards, thereby endangering workplaces in ecologically stricter countries and indirectly lowering standards overall. The hope that proactive environmental protection would generate a competitive advantage (Jänicke 1992) has become true in only very few regards. Even a careful extrapolation of the present state of the environment into the future arrives at such gloomy conclusions that environmental protection deserves the same status within the global legal system as the protection of global social standards. Contrary to a widespread misconception, environmental protection in the developing world is not a luxury reserved for the rich, for it is predominantly there that the poor endure air pollution, unsafe drinking water and growing mountains of trash. No one – not individuals, not groups, not corporations – should be allowed to behave like locusts, invading a place, devouring it, only to move on. One could argue that the principle of national sovereignty stands against this global responsibility. However the environment is a public good that transcends national borders; it does not belong to individual states. Even the demand that on this issue states renounce their sovereignty is beside the point, because this assumes that states would be giving up a right they do not actually have. When environmental damage occurs across national borders, states are not called on to renounce their sovereignty but rather to respect the sovereignty of other states. A global legal system is needed even for problems between neighbours. It must determine the common criteria of a global environmental law and, if necessary, ensure that justice is served for states suffering from ecological harm. Of course, the principle of subsidiarity remains valid: the world republic must defer whenever local or national authorities prove successful (on the conflict resolution between nomad tribes in Eastern Africa, see Bächler 1997, 379–382). However, we should not assume that ‘local institutions are the best means’. Where sizeable advantages (in terms of workplaces, corporate taxes etc.) can be expected, those who are affected directly may be willing to take risks that those affected more indirectly quite rightly reject; and, without benefiting from the advantages, they will have to endure the disadvantages on their own. Our children and grandchildren are exposed to the same injustice. While the present generation as a collective represents the beneficiary and aggrieved party at the same time, future generations constitute the aggrieved party only. Hence, the social contract between generations must not be concerned exclusively with exchanging the usual provisions; the quality of the natural environment is at least as important. Environmental protection is concerned not with the notion of justice in exchange, but more importantly with corrective justice. Nature is created by no one, but is a fundamental given, which is why it is a common good for all humanity – the commons of our species – and why it entails the principle of equality. This encompasses the ecological principle of intergenerational global civic law and stipulates that nature is available equally to all generations and to all individuals within each generation. As a result, every generation and every individual who takes something away from the commons must give something equivalent back.

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If there were no technology available to provide alternatives, we would have to restrain our use of natural resources such that, for example in the case of fossil fuel, reserves could last for at least several dozen generations. Technology enables us to create adequate alternatives, whose equivalence, however, must be evaluated on more than technical grounds. Aesthetic deterioration is to be taken into account as much as new potential dangers, so that the leading principle of justice (the Leitgrundsatz) is as follows: the sum of natural and artificial (‘technical’) alternatives, that is the ecological balance, must never worsen. And what matters is not the absolute but the per capita value. A generation so bold to burden the environment with an ever growing population has the duty to increase the ecological balance by the degree with which it has burdened it. That leading principle can be further specified in a way consistent with the most important ecological perspectives: (1) The exploitation of renewable resources has to be kept in line with their rate of regeneration, if necessary taking into account any additional alternatives that may be produced in the process. (2) The exploitation of non-renewable resources must be kept in line with the rate of increase of the manufacture of alternatives. (3) The additional risks to life that come about during the manufacture of the alternatives must be balanced, at least, by a decrease of other life risks. A civilisation of scientific–technological–economic provenance has to ensure that the general balance for risk does not rise. (4) The emission of pollutants must not exceed the absorption capacity of nature (for the question of how to apply this criterion when assessing the potentially inevitable decay of the ozone layer, partly brought about by human activity, the answer must be to considerably slow down the decay). (5) The increase in the overall size of the population has to abide by principles 1 through 4. The best strategy against violations of justice – efficient sanctions – is naturally difficult to impose between generations. Yet, two possibilities are worth considering. On the one hand, intergenerational justice could be given a constitutional status, so as to make it a binding principle for normal legislation. On the other hand, the notion of ‘ecological balance pensions’ could be introduced, emulating retirement pensions: in cases where previous generations have acted unjustly, their pensions would be cut by subsequent generations. Yet, precautionary measures would be necessary to prevent arbitrary decisions and abuse on the part of subsequent generations: a court of law that would have to adjudicate not isolated cases, but a collective behaviour extending over many years. In addition, the problem of collective blame would need to be solved, because it contradicts the principle of legitimatory individualism. At any point in time, the present generation owes it to subsequent generations not to leave them a world that is poorer than the one it inherited. This principle applies not only to the natural environment, but also to cultural achievements such as language, literature, visual arts, music and architecture; to the infrastructures of civilisations, such as traffic networks, waterways, the educational system, the health service, the architectural quality of towns, and the recreational value of the countryside; to

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scientific, medical and technical knowledge (including procedures and devices); to legal and social institutions; to capital accumulation instead of growing public debt; and finally, to the environment and population size. In all these areas, a generation must not only consume, it must also develop and maintain the capability of a three-dimensional (and not purely economic) way of saving, one that we may call ‘preservative saving’. The term refers to the preservation of institutions and resources, an ‘investive saving’ (of capital, infrastructure, future technologies . . .), and a ‘preventive saving’ in the sense of preventing wars, ecological disasters, economic or social collapses. The reality of the world of states, however, shows the contrary, namely a preference for consumption. While the expenditures for the present – such as the costs for the health service, pension funds, the amortisation of national debts – has risen as a share in the Gross National Product, expenditures on the future, such as investments into education and other areas of the social and material infrastructure, has actually decreased. Yet, the fact that the consumptive share in the Gross National Product is expanding at the expense of the investive share represents an injustice towards future generations: the present generation is living at the expense of the future. Inasmuch as this is not only a regional but an interconnected global trend, a world republic is once again required.

CHAPTER 16

THE VIEW AHEAD

Let us draw some conclusions: what is a global society like that organises itself and subjects this self-organisation to moral-political claims? 16.1 A COMPLEX WORLD ORDER

In accordance with the universal precept of the rule of law, human relations are to be freed from arbitrariness and violent force and are to be subjected to a law based on justice. However, responsibility for this just law must not remain with the parties involved, but be transferred to common ‘public’ powers, to a state in the wider sense. Instead of dissolving individual states, maintaining a state must be a universal precept. As the universal precept of democracy stipulates, a government becomes just when it submits to the demands of qualified democracy, undertakes normative modernisation, and is committed to human rights, the sovereignty of the people and the separation of powers. These three precepts live up to their universality only when they are recognised on a global scale. Given that the entire human race, the global society, must: submit to the law, link the law to statehood, and tie statehood to the principle of qualified democracy, a democratic global legal system is required for all intents and purposes; a world republic represents the culmination of this process. Yet, the world republic must not assume the simple form of a homogeneous world state, of a possibly decentralised community, but one that is hierarchically structured top-down and that is responsible for all matters of importance. A complex world order is required not only because of a difficult history or for other pragmatic reasons, but also on the more principled grounds mentioned earlier in this book: the rights of substantive spheres such as the economy, science, technology and the arts, the principles of subsidiarity and federalism, and the right to be different. In contrast to a despotic world empire, a world republic makes neither a social nor a political claim of exclusivity. It is organised in a liberal-democratic, federal and subsidiary manner and explicitly recognises other powers beside it. According to a first complication, the world republic is a federal community created from two very different entities: individual states and world citizens as natural subjects. Secondly, as with any society, the global society is not only a legal society. Thus, the global order is much more than a global state system. Given that compassion and the willingness to help are required, the world republic as a global legal institution is not the only global umbrella organisation – the imposed institutions are accompanied by voluntary institutions. The obligatory world order is complemented 305

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by a voluntary world order, and the world state by a global society that exists prior to and outside of the state. Charitable organisations and their cooperative efforts, for example, contribute to a free world order. The sciences as well as the various domains of culture and sport organise themselves into their own institutions. The same applies to (global) religions and, despite governmental attempts at regulation and control, to commerce and the economy. In fact, global associations such as those of the sciences, the FIFA soccer federation, the International Olympic Committee, the (more or less ecumenical) World Council of Churches or the International Chamber of Commerce are all legally constituted; and they have no ‘license to corruption and crime’. That aside, however, they are beyond the responsibility and sphere of influence of the world republic. They develop inside their own worlds, follow their own codes and normative principles and blossom best when their independence is respected from the outside. Given that they have their own world of associations, federations and corporations and that they tend to constitute themselves from the bottom-up (even the archetype of a strictly hierarchical system, the Catholic Church, is based on rather autonomous local entities), they do apply principles of the world republic. They have been doing this since long before a global political organisation emerged, and they are proof that subsidiarity and federalism are universally valid social principles. A third complication arises from markets and the law, the two fundamental social structures that exist side by side but also in opposition, at times even interlocked. As a perfect example of the free but also agonal play of human forces, the market extends beyond the economy to encompass science, culture, sports and, through elections and voting, politics. Free competition may arise from people’s desire to distinguish themselves and be respected because of their extraordinary achievements; it may also be due to their attempts to derive benefits for themselves or to serve, either explicitly or implicitly, the public good. In any case, the market is not illegitimate. Even at the global level the question is not “either global market or global law”, but simply: “how much and what type of market?” and “how much and what type of law and state?” These guiding visions will only become reality if we find the right measure. Given that competition encourages personal energies, the market gives rise to a flourishing in the economic, scientific, cultural and political spheres. A just law opposes both violence and anti-competitive behaviour and protects structural losers of the competitive struggle; it therefore provides for a peaceful way of coexistence. Given that the law allows competition, together the two institutions prevent excessive moral demands from being placed on individuals. Neither need they suppress the forces of competition, nor foster mere altruism. It suffices that they transform destructiveaggressive forces into constructive competition that is in turn subject to the demands of justice and the rule of law. A fourth complication results from the fact that the law in its wider philosophical sense is not bound to statehood in the usual narrow sense. Certain realms can organise themselves in a legal manner without the world republic: when all the parties involved depend on special expertise, such as in commerce, science, culture and sport, and when

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speed, flexibility, cost savings and discretion are required, alternatives such as courts of arbitration are surely in order. If necessary, the world republic may be able to help in the process, by stipulating a legal framework or by providing a set of rules (see “Model Rules on Arbitral Procedure” by the UN General Assembly of 14 November 1958). The republic may even hold a list of adjudicators (see the Permanent Court of Arbitration in The Hague), but it does not dispose of the actual power to adjudicate. (Global) religions too, maintain a form of ‘alternative jurisdiction’ and reject even minimum assistance. Other instances of self-organisation are by and large relieved of any state control – such as the Chambers of Commerce or the Craft Guilds, which are themselves organised into international chambers. A fifth complication results from the fact that relatively autonomous domains such as financial markets can prove very sensitive. In this case, a subsidiary world bank is advisable in order to provide global supervision and (gentle) steerage; the bank would be anchored in the realm of the world republic but dispose of a high degree of independence, so as to be better able to solve the problems it faces. The sixth point is a bundle of complications arising from the principle of subsidiarity: the primary responsibility for a multitude of tasks – the legal protection of individuals and groups, the health service, education and social security, the promotion of the economy, science and culture – rests with the individual state. The world republic assumes a secondary and (in the literal sense) subsidiary and auxiliary responsibility at most, which is relieved further still when all states are democracies. However, the world republic is responsible in a genuine and original sense for other tasks, above all for the peace between states, the regulation of global markets, social and environmental standards, and the fight against organised crime on a global level. In other areas still, such as global economic policy, it has a discretionary responsibility. The subsidiary structure of these responsibilities, strengthened by the principles of democracy and federalism, produces a vertical separation of powers. The world republic is organised bottom-up, not vice versa, and distinguishes itself through a layered structure of statehood. In the case of federal states, this structure begins at the level of the federating states. Then come individual states, which may in turn follow the pattern of the European Union and unite to continental or sub-continental units. Hence, a world republic is necessary only for conflict resolution and cooperation between (sub-)continental unions. At the level of the world republic, in turn, various groupings play a role. Already today, the (currently 191) member states of the United Nations are supplemented by approximately 300 supra- and intergovernmental organisations, 10,000 non-governmental organisations, as well as a complex network of the general global public and global public powers. Some may be inclined to ask whether such a complex order follows a common pattern at all. Complex types of organisation are often referred to as ‘networks’, entities of equal status cooperating without hierarchical order. For systems without a centre, Deleuze and Guattari (1976; 1987) suggested the image of a rhizome that grows below the surface, or directly above it, with a greatly dispersed system of roots that also lack hierarchical order. Mathematicians and scientists, in turn, may refer to the theory of dynamic systems, the so-called chaos theory, which originated in

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meteorology and which examines the ‘chaotic’ consequences of small changes to initial conditions. The (normatively ideal) global order is, however, structured in a different way. This mandatory order has structure and a clear but also inverted hierarchy: individuals unite to form a state; states may unite to form a federal state; central and federal states may unite into a (sub-)continental union; and either the states themselves or the unions thus formed eventually establish the world republic. However, such an inverted hierarchy does not have only one summit, the global authorities of the state – but many at the same time – ultimately, even the totality of voting subjects, of natural individuals. The sphere of original responsibilities for the world state has, then, a rather traditional hierarchy, though one that is legitimised from below. Even this virtually hierarchical statehood, however, is only one part of the global order, which also includes the market in its various dimensions, voluntary charitable organisations and other non-governmental organisations. In this respect, the global order follows a pattern sui generis: there is both a mandatory and an optional global order; the former includes a variety of state and quasi-state authorities on different levels and for different purposes. 16.2 A THIRD DEMOCRATIC REVOLUTION

The federal world republic would be in two regards an ideal achievement. In the global edifice of law and democracy, it is the final building block, the crowning roof. When bricks are missing – that is in the case of serious deficits with regard to democracy and the rule of law – the world republic comes to the assistance of individual states. One should not, however, become impatient and expect immediate success. As private legal protection, the vendetta, was only gradually replaced by a public judiciary, so the globalisation of the precept of the rule of law should not be expected to come about by a wave of the hand. Given that more common characteristics are found on a continental or (sub-)continental than on a global level, and that the smaller the scope, the more feasible the task tends to be, intermediate (sub-)continental unions are, once more, advisable. Great care must be taken throughout the process to not put past achievements at risk. The democracy of an individual state must not be compromised when large-scale regional unions are formed, nor must the level of democracy it has attained be endangered when a world republic is created. The establishment of a global democratic order is to be carried out with even more caution than when renovating a ship at high sea. Just as the ship must always remain seaworthy, global society must never endanger its relative state of peace and rule of law. On the contrary, it must improve its seaworthiness and increase the degree of democracy and rule of law already achieved. Besides, global society must not forget that a collective improvement is not enough, because unlike a ship, each constituent part of the world republic – that is every natural person – has an intrinsic moral value that must not be put at risk when improving the global order. This is an essential requirement, which is why the principle of care and circumspection recommends initially making do with the intermediate step of a global

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federation: in order to gather experience over time and avoid setbacks in the degree of qualified democracy already achieved, the federal world republic should be preceded by a confederated world republic. Autocratic states and, worse still, despotic states represent a particular problem, as they massively violate human rights domestically, are often aggressive towards other states, and refuse to relinquish any sovereignty, even though it is in their cases that it is most vitally needed. They will therefore reject even a confederated precursor to the world republic. There is no other option, then, but to follow the appropriate preliminary steps towards a global legal order: to fight off external aggressions, global society must engage in a strategic world order and the defence measures required by it. Within states, it addresses massive human rights violations by secession and intervention. Further, a critical authority is to be created in the form of a powerful global public as well as a qualified democracy that is ‘tempting’ in both economic and political terms, and thus an attractive alternative model to autocracies. Provided actors behave rationally, even small groups will attract others interested in cooperation. In this sense, democracies tend to radiate possibilities that autocratic societies cannot resist forever. Democratic beginnings like that of the Germanic Thing can be found in many cultures, such as some medieval orders or the (East) African palaver. We know in early times only the Greeks who, as a large and socially differentiated community, democratically constituted themselves. The democracies they created may be regarded as the first democratic revolution. The Greek city-republics merged into Alexander’s Empire and those that followed it; republican Rome later disappeared in favour of an Empire; and the Italian citystates tended to resemble aristocratic republics and the German Hanseatic League commercial republics, rather than genuine democracies; the second major wave of democratisation therefore only occurred at the onset of modernity. The re-installation of democracy against partly feudal, partly absolutist regimes can be counted as the second democratic revolution. The formation of a democratic constitutional state on the global level – the subsidiary and federal world republic – will then constitute the third democratic revolution. Unlike the French Revolution, it does not take place as a sudden overthrow, the violence and guile of which creates injustice in so many ways. In order to avoid both the terror of the Jacobins as well as the violence of the October revolution, this revolution must come about by way of reforms. The danger that some states may be devoured by others and that hegemonic powers expand even further is diminished in the process, which is why there are not only legal–moral grounds that speak against establishing a world republic in a single legal act. Rationality and prudence too, suggest that it is better to take on the respective issue areas one step at a time, and to resolve them through enforceable legal measures. Quite possibly, the republican order between states that are themselves constituted as republics, the world republic, may temporarily represent nothing more than the incorporation of all these legal measures. In any case, the global legal order will continue to have the character of a research laboratory, where new approaches are tested and improved based on the experience previously acquired.

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16.3 A REALISTIC VISION

Whatever guise the world republic may assume, a standard reproach against it will always be that it is an unrealistic ideal. The sceptic sees the world republic as a possibly charming but ultimately romantic utopia, one that is quixotic and condemned to the powerlessness of the ought. Furthermore, fearing a transnational harmonisation that will go too far, some will wish to be world citizens without establishing a world state in the process. Before we discuss this scepticism, we should affirm an underlying normative claim: it is only in the notion of a world republic that the moral principle of the rule of law is truly fulfilled, the recognition of which humans owe to one another. The rule of law, justice and democracy at the global level – the subsidiary and federal world republic – is the measure against which the future world order must be assessed. Scepticism here appeals either to empirical, anthropological or ethical arguments. According to the empirical counter-argument, the formation of a world republic is not even remotely imminent. Worse still, our limited success in resolving conflicts, in ending wars both international and civil, and in protecting the global environment suggests quite the opposite; namely, that the increasing interconnectedness of the world reduces our capacity to solve problems through the rule of law. However, the remaining problems should not distract us from what we have achieved; this is overall progress rather than general backward movement. Although the United Nations, for instance, has failed to achieve its self-stated objective of establishing a global rule of law, it has clearly managed to do away with its opposite, a global state of nature. Although much remains at the stage of hollow assurances and the pseudo-realities of solemn manifestoes, it is difficult to deny that in many domains the state of nature between individual states is increasingly abandoned. The conflict-ridden coexistence between states has long since been transformed into a dense network of economic, scientific, cultural, political and at times even ecological collaboration. A majority of the respective contracts and institutions are politically insufficient; they correspond to an ultra-minimal state without enough executive power. The single, ultra-minimal state, has given way to a regionally and thematically complex multiplicity. Despite the fact that no common state power is imminent, some of the contracts are more than non-binding statements or loose alliances between individual states. Where international inspections are part of the agreement, we even witness the beginnings of a dismantling of state sovereignty, something which is necessary for a world republic. The dismantling is furthered whenever international courts of law are established. A global statehood is unmistakable once we see the decisions of these authorities become binding and enforceable, or other control measures and sanctions are foreseen. The centrifugal counter-forces that undoubtedly exist – such as growing regionalism or nationalism, racial conflicts and ideological disputes, including hegemonic states insisting on their privileges – should not be overestimated. After all, a large-scale regional organisation like the European Union is a powerful example, making such intermediate units highly attractive.

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What matters most is not the progress achieved in recent years, because reliable criteria and data are scarce. The historical development, however, does not support the empirical scepticism: the world republic does not appear as the quixotic utopia of Neverland, something for which its conceptual modesty is at least in part responsible. The world republic is not a perfect global order, attainable only at ‘the end of days’, in the kingdom-come. We are not falling for a personal or collective illusion, an illusion that distorts reality to fit its needs; nor has an allencompassing well-being been promised, that which religions call ‘salvation’ and, quite rightly, do not expect in this life. The subsidiary and federal world republic stipulated here is something else: it is the utopia of a ‘not yet’, an ideal which humanity has a legal–moral obligation to implement. Fortunately, humanity is already headed in this direction. The second, anthropological counter-argument is based on the classical (legal– moral) rule ultra posse nemo obligatur. It claims that a world republic principally exceeds the capabilities of individuals. A world republic is a justifiable idea only for ideal beings, but which expects too much from real individuals. This is not due to a lack of cognitive powers or organisational abilities, but rather to human motivation and, in the end, to excessive egoism. During the Enlightenment the opposite view was entertained; it was then hoped that a peaceful world order would come about on its own, when we weren’t watching. However, we cannot expect a world republic to develop as a result of the automatic progress of human nature, and in particular (selfish) commercialism. Some ‘moral’ efforts are required after all. However, the fact that these do not exceed a realistic measure can be shown with the Enlightenment’s beloved ‘devil’s test’ (The New Science, ch. II 7; David Hume, Essays: Moral, Political and Literary, no. III; Immanuel Kant, Peace, VIII 366/335): even devils, understood here as completely selfish but not spiteful beings, would be willing to take part in a global order guaranteeing peace and the rule of law – one that is, therefore, not only of a temporary but also of a peremptory nature – precisely because it brings about both a collective and a distributive advantage. According to the third, ethical counter-argument, the global legal order would not be desirable, even if it were feasible. According to an old topos, the declared opposite of the rule of law, war, is responsible not only for destruction and harm, but also for large-scale transformations that prevent history from stagnating. It is true that whenever radical innovations are held off, the world suffers lasting impoverishment. Yet, before we rehabilitate war in the name of historical openness, we should examine the empirical presuppositions: have really all, many, or at least the important innovations of humanity been the result of wars? Further, do extended eras of peace really indicate boredom within a civilisation? From the many counter-examples that could be cited to address the second question, three should suffice: during the peaceful years under Pericles, Athens benefited not only from prosperity, but flourished also in a cultural sense: the Acropolis was built, Sophocles wrote his tragedies, and philosophers such as Anaxagoras and Protagoras emerged. A similar assessment can be made of the peaceful era under

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Augustus. In Germany too, literature, music, architecture and philosophy did not prosper during the 30-year war, but only afterwards. The first question, in turn, can be addressed by referring to the radical religious renewal brought about by such people as Siddharta, also called Buddha, or Jesus, also called Christ. Religious claims to exclusivity and factors external to religion, such as the power interests of secular or ecclesiastical elites, may indeed pave the road to war. Yet, religious renewals themselves do not arise from war, but rather tend to oppose it emphatically. Cultural innovations follow the same pattern: the Chinese theatre, the Indian and Persian art of the narrative and the Attic tragedy; Greek philosophy and medicine and Roman law; the baroque fugue and the classical symphony; and the great scientific discoveries, including nuclear fission, are all developments that came about independent of wars. The same applies to inventions such as the printing press, the discovery of different cultures, or the introduction of universal schooling and higher education. They all call into question the topos mentioned above and are able to reassure a humanity worried over an uncertain future: the human potential for innovation is tremendous even without wars. Add to that the forces of innovation inherent to competition, which a subsidiary and federal world republic leaves explicitly untouched: the competition between languages, religions, economic areas and economic systems, the various forms of popular and high culture, as well as the competition between educational systems and research centres. In addition, the free realm of competitive forces prevents human willingness for peace and altruism from being overburdened. Just as a sword can be recast into a pruning knife, aggression can be turned into competition. Substantial innovations also arise from cooperation and creative imitation. Furthermore, change results in social and psychological burdens, at times even to high degree of alienation, which can also provoke social and psychological creativity. And there is yet another engine of historical progress: the struggle against nature’s diverse scarcities and its no less diverse overburdening. All three arguments, then, rebut the above scepticisms; and this is why the following normative claim can be reiterated: a diverse globalisation creates or intensifies the need for action, a fact that requires a framework of rules if the demands of justice, democracy and the rule of law are to be satisfied. That framework replaces violent force with the rule of law, commits the law to principles of justice, and transfers the responsibility for just law to a subsidiary and federal world republic.

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AUTHOR INDEX

Barber, B., 77, 152, 314 Barker, E., 72, 314 Barnaby, F., 235, 314 Barry, B., 138, 314 Bätzing, W., 107, 314 Bayertz, K., 57, 314, 325–326 Beck, U., 1, 5, 314, 317, 322, 328–329 Becker, W., 142 Bedau, H. A., 136, 314 Beethoven, L. v., 6, 128 Beitz, Ch. R., 214–215, 252, 314 Beitz, W. G., 256, 314 Benjamin, M., 74, 314 Bentham, J., 22–23, 27, 35, 183, 185, 314, 334 Bernhardt, H., 270, 314 Bernholz, P., 225, 314 Berthold von Regensburg, 173 Bienen, D., 235, 315 Bierbrauer, G., 104, 315 Birnbacher, D., 300, 315 Bleicken, J., 71, 315 Blomert, R., 124, 315 Boccacio, G., 8 Böckenförde, E.-W., 76, 134, 315 Bodin, J., 11, 96, 105, 113, 167, 216, 269–270, 315 Boxill, B., 210, 315 Brandt, R., 22–23, 315, 318 Bredekamp, H., 223, 315 Brenton, P., 294, 315 Breuer, S., 61, 315 Brown, M., 198, 315 Bruha, Th., 226, 315 Brunkhorst, H., 59, 69, 315 Brzezinski, Z., 191, 315 Buchanan, A., 279, 315 Buchanan, J. M., 31, 315 Buchheit, L. C., 271, 315 Bujo, B., 40, 46, 315

A Abubaker. see Ibn-Tufail Achenwall, G., 29, 313 Adorno, Th. W., 185 Aeneas, T., 122 Aeschylus, 63, 160, 262, 313 Albrow, M., 117, 313 Alexander the Great, 140, 163–164, 167, 272, 309 Althusius, J., 28–29, 83, 87, 95, 313, 320 Altvater, E., 2, 313 Anaxagoras, 311 Anderson, B. R., 119, 313 Andocides, 171–172 Angell, N., 202, 313 Antiphon, 162 Apel, K.-O., 44 Aquinas, Th., 83, 86, 176–177, 313 Arendt, H., 253, 313 Aristotle, 1–2, 6, 14, 25, 27–28, 68, 74, 77, 83, 86, 89, 124, 131–133, 135, 147–148, 151, 154, 159–165, 169, 183, 198, 201, 213, 239, 263, 313–314, 323, 333 Arnim, H. H. v., 139, 313, 333 Artemis, 162 Asbach, O., 178–179 Athena, 63, 262 Augustine, 27, 67, 159, 170, 172–177, 179, 182, 215, 313 Aurelius, Marcus, 163–164, 327 Austin, J., 27, 35 Averroes (Ibn Ruschd), 176 Axelrod, R., 65, 314 B Bach, J. S., 6, 128, 319 Bächler, G., 301, 314 Bachteler, T., 200, 314 Bacon, 181

335

336

AUTHOR INDEX

Bull, H., 281, 315 Bull, H.-P., 88, 315 Burdeau, G., 69, 316 Burke, E., 27, 314, 334 C Caesar, R., 128, 141, 316 Calvin, J., 88–89 Camus, A., 65, 316 Carr, E. H., 187, 316, 324 Cassese, A., 271, 316 Cattacin, S., 85, 316, 325 Cerny, Ph. G., 2, 316 Childers, E., 235, 316 Chomsky, N., 100, 316 Chrysippus, 163–165 Chwaszcza, Ch., 279, 316, 330 Cicero, M. T., 1, 131, 135–136, 163, 165, 167, 171, 316 Clastres, P., 61, 316 Comenius, J. A. (Bishop), 178, 316 Conrad, L. I., 25, 316 Croesus, King of Lydia, 162 Cronin, Th. E., 147, 316, 321 Crucé, E., 178, 316 Czempiel, E. O., 103, 200, 235, 317, 331, 334 D Dagger, R., 132, 317 Dahl, R. A., 69, 99, 317 Dante Alighieri, 176–177, 317 Davidson, B., 119, 317 Decker, F., 103, 317 Deleuze, G., 307, 317 Democritus, 7, 162–163, 176 Derrida, J., 72, 317, 335 Descartes, R., 2 Deuerlein, E., 95, 317 Dichmann, W., 85, 317 Didymus, Arius, 163 Dietze, A., 183 Dietze, W., 183 Dilthey, W., 201, 317 Dinkler, E. A., 171, 317 Diogenes Laërtius, 163–164, 176, 317 Diogenes of Sinope, 163, 183 Dogan, M., 103, 317

Downs, A., 69, 317 Doyle, M., 198, 317–318 Dubois, Pierre, 177, 318 Duns Scotus, J., 27, 318 Durkheim, E., 27, 153, 318 Dürr, E., 295, 318 Dworkin, R., 21, 318 E Ebbinghaus, J., 184, 318 Ehrenberg, V., 161, 318 Elster, J., 23, 318 Engels, F., 23, 118, 328 Epictetus, 163, 318 Epicurus, 27, 163, 318 Erasmus of Rotterdam, 178, 240, 318 Euclid, 28 F Fénélon, F. de, 131, 318 Ferguson, A., 131, 318 Fetscher, I., 142, 318, 326 Fichte, J. G., 67, 179, 181, 183, 318 Fisch, J., 271, 273, 281, 283, 318 Fishkin, J. S., 147, 318 Flodoard of Reims, 177 Fogel, R.W., 24, 318 Forbes, I., 281, 319 Forst, R., 209, 319 Forsthoff, E., 69, 106, 319 Fraenkel, E., 94, 102, 140 Franck, S., 178, 319 Frantz, C., 95, 319 Frederick II, King of Prussia, 131 French, P. A., 276 Frenkel, M., 319 Freud, S., 185, 319 Frey, D., 271, 273, 319 Friedrich, C. J., 69, 102, 150, 181, 267, 319, 332, 335 G Gallas, W., 300, 319 Gantzel, K. J., 202, 319 Gauchet, M., 70, 76, 319 Gauthier, D. P., 31, 72, 319, 324 Geerlings, W., 172, 319 Geisst, Ch. R., 68, 319

AUTHOR INDEX

Gellner, E., 118, 121–122, 319 Gentz, F., 183, 319 George of Podiebrad, 177 Gese, H., 107, 320 Gianotti, D., 68, 331 Gierke, O. v., 28, 95, 320 Giesen, K.-G., 194, 320 Giordano, Ch., 92, 320 Glotz, P., 136, 320 Goethe, J. W. v., 6, 141–142, 184, 320 Gomperz, H., 184–185, 320 Görres, J., 183, 320, 323 Gosepath, S., 38, 320, 334 Gratian, 74 Grieco, J. M., 193, 320 Griffin, J., 23, 320 Grimm, D., 103 Grimm, J., 204, 320 Grimm, W., 240 Groom, A. J. R., 194 Grotius, H., 11, 167–168, 216, 281, 320 Guattari, F., 307, 317 Guinier, L., 73, 320 Günther, K., 103, 320 H Habermas, J., 21, 25–26, 47, 76–77, 118, 124, 127, 185, 252, 320–321, 330 Hafen, Th., 95, 321 Hahn, K., 95, 321 Hailbronner, K., 256, 321 Hamilton, A., 64, 316, 321, 330 Hansen, M. H., 71, 131, 321 Hart, H. L. A., 185, 269, 314, 321 Hartmann, N., 57, 321 Hartney, M., 276, 321 Hasenclever, A., 321 Hauser, J. A., 295, 321 Häyry, M., 23, 321 Hayy ben Yaqdhan, 25, 324 Hegel, G. W. F., 2, 27–28, 65–66, 184–185, 189, 240, 253, 267, 314, 320–321, 327 Heidegger, M., 2 Heitmeyer, W., 142 Held, V., 276, 322 Heraclitus, 162, 181

Herder, J. G., 184, 240, 246, 273, 322 Hermes, 162 Hernandez, C., 16, 322 Herodotus, 121, 124, 162 Herrigel, E., 239, 322 Herskovits, M., 45, 322 Hesse, J. J., 108, 322 Hesse, K., 100, 322 Hierocles of Alexandria, 166 Hilderbrand, R. C., 232, 322 Hirst, P. Q., 8, 116, 322 Hobbes, Th., 2, 27–29, 35, 38, 41, 52, 63–64, 67, 75, 105, 113, 131, 138, 167–169, 189, 193, 223, 315, 322–323, 328 Hobsbawm, E. G., 124, 322 Höffe, O., 15–16, 19, 22, 24–25, 28, 33, 35, 38, 40, 44, 47, 51, 60, 65, 75, 77, 85–86, 105, 110, 136, 138, 142, 152, 162, 164, 174, 180, 209, 212, 215, 218, 263, 269, 281, 295, 315, 318, 321–323, 325, 329–330 Hohfeld, W. N., 42, 323 Hollerbach, A., 80, 323 Homann, K., 81, 323 Homer, 6 Hondrich, K. O., 57, 323 Honneth, A., 209, 323 Hood, Robin, 37, 45 Horkheimer, M., 185 Horn, Ch., 214, 319, 323 Huber, E. R., 97, 323 Hugo, L., 83, 281, 323 Humboldt, W. v., 184 Hume, D., 27, 47, 68, 169, 311, 324 Hüning, D., 178 Huntington, S. P., 12–14, 188, 324 Husserl, E., 128, 324 I Ibn Tufaïl, 25, 316 Ingold, T., 62, 324 Isaiah, 170, 172 Isensee, J., 57, 85, 104, 126, 281, 324, 326, 328 Isis, 162 Isocrates, 161

337

338

AUTHOR INDEX

J Jacobsen, T., 72, 324 Jacobson, H. K., 194, 324 James, W., 140, 324 Jänicke, M., 301, 324, 328 Jansen, W., 172, 324 Jaspers, K., 224, 324 Jaucourt, L. de, 95 Jefferson, Th., 140 Jellinek, G., 38, 61, 88, 184, 324 Jennings, R., 271, 324 Jethro, 84–85 Job, 223 John of Salisbury, 175 Justinianus, Emperor, 177 K Kaiser, M., 295, 324, 334 Kaler, E., 23, 324 Kälin, W., 256, 324 Kant, I., 2, 6, 8, 11, 26–29, 31, 44, 52–56, 67–68, 71, 74, 76, 105, 128, 131–132, 154, 160, 164, 168, 170, 177, 179–186, 197, 199–204, 213, 216–219, 224–227, 233–234, 239, 255, 266–267, 281, 283, 311, 313, 317–318, 321–326, 329–330 Kaser, M., 164, 325 Kelsen, H., 184–185, 269, 325 Kelso, W. A., 140, 325 Keohane, R. O., 193, 325 Kersting, W., 52, 315–316, 323, 325 Ketteler, Bishop W. E. v., 84, 325 Kettner, M., 44, 325 Kielmansegg, P. Graf, 69, 325 Kimminich, O., 169, 256, 271, 276, 281, 325–326 Kirchhof, P., 226, 324, 326, 328 Kissinger, H. A., 187, 326 Kissling-Näf, I., 85, 316, 325 Klein, A., 76, 147, 326 Klemme, H. F., 184 Koch-Arzberger, C., 57, 323 Koselleck, R., 95, 122, 272, 326, 333 Koslowski, P., 81, 326 Kotkin, J., 213, 326 Kramer, F., 30, 326 Kranz, W., 162, 317

Krasner, S. D., 9, 326, 334 Kreindler, R. H., 261, 326 Kreuzer, S., 103, 326 Küng, H., 14, 326 Kunig, Ph., 281, 326 Kymlicka, W., 275, 321, 326 L Langewiesche, D., 119, 326 Las Casas, B. de, 167 Lasson, A., 184, 326 Layne, C., 203, 326 Lee, E.-J., 16, 326 Leibniz, G. W., 178, 326 Leist, A., 131, 124, 138, 326 Lenk, H., 81, 326 Leo XIII, 84, 326 Lévinas, E., 42, 326 Lévi-Strauss, C., 30, 326 Light, M., 194, 320 Lillich, R. B., 281, 327 Lincoln, A., 73 Lindner, C., 76, 327 Link, W., 193, 235, 327 List, F., 181, 327 Livius, Titus, 131 Locke, J., 27–30, 68, 131, 168, 327 Lohmann, G., 38, 320 Loth, W., 128, 327 Louis XIV, 95, 106, 320 Luckmann, Th., 128, 332 Luhmann, N., 75, 103, 133, 327 Luthardt, W., 146, 327 Luther, M., 176, 184 Lutz, H., 142, 327, 329 Lykophron, 27 Lynn-Jones, S. M., 198, 315 M Macedo, S., 153, 327 Machiavelli, N., 131, 201, 319, 327 MacIntyre, A., 45, 89, 120, 162, 209, 212–213, 327 Mackenscheidt, K., 74, 326 MacNamara, R. S., 193, 327 Madison, J., 70, 74, 136, 327 Mager, W., 74, 327 Mahnkopf, B., 2, 313

AUTHOR INDEX

Maier, H., 94, 102, 327 Manin, B., 69, 327 Maôz, Z., 198, 327 March, J. G., 69, 193, 327 Marcuse, H., 142, 335 Marcuse, L., 185 Maring, M., 81, 326 Marshall, Th. H., 38, 327 Marsilius of Padua, 146, 176, 178, 372 Marx, K., 23, 66, 103, 118, 314, 327–328, 334 Maunz, Th., 97, 328 Mauss, M., 30, 328 Maxim, legal, 46, 135 Meier, Ch., 72, 328 Mencius, 40, 328 Menzel, U., 295, 328 Mill, J. S., 23–24, 76, 281, 328 Miller, S. E., 198, 314–315 Milton, J., 68, 319 Mitchell, B. R., 202, 328 Mohrs, Th., 151, 328 Mommsen, Th., 263, 328 Montesquieu, CH.-L. de, 68, 94–95, 131, 159, 200–201, 328 Moore, B., 142, 335 Moore, J.N., 281, 328 Morgan, L., 40, 72, 328 Morgenthau, H. J., 187, 328 Moses, 84–85 Mosler, M., 236, 328 Mozart, W. A., 6 Mueller, D. C., 69, 328 Mugdan, B., 150, 328 Müller, F., 69, 328, 331 Müller, J. P., 196, 328 Müller, J. v., 101 Müller, K. E., 95, 328 N Napoleon, I., 190 Nardin, T., 194, 328 Nederveen Pieterse, J. P., 4, 328 Needham, J., 4, 328–329 Nestle, W., 171, 329 Nicholas of Cusa, 173 Nida-Rümelin, J., 23, 316, 329 Niebuhr, R., 187, 329

Nielsen, K., 214, 329 Nietzsche, F., 2, 23, 27, 103, 267, 329 Nuscheler, F., 140, 329 Nussbaum, M. C., 163, 165, 329 O O’Neill, O., 28, 295, 299, 329 Oberreuter, H., 140, 329 Ockham, W. v., 89, 209, 219 Oeter, S., 271, 329 Olsen, J. P., 69, 193, 327 Olson, M., 138, 329 Opitz, P., 295, 329 Orest, 63, 262, 313 Ossenbühl, F., 109, 329 Otte, G., 74, 329 Ozouf, M., 74, 329 P Pateman, C., 147, 329 Payer, Ch., 291, 329 Penn, W., 178, 329 Pericles, 311 Perraton, J., 8, 329 Perry, M. J., 38, 329 Pieper, S. U., 85, 330 Pinzani, A., 77, 330 Pippin, R., 52, 330 Pitt, W. t. Y., 190, 330 Pius XI., Pope, 84, 330 Plato, 1–2, 6, 27, 68, 70, 77, 89, 132, 159–165, 169, 174, 239, 314, 321, 330 Plessner, H., 76, 330 Plotin, 174 Pogge, Th., 221, 295, 296, 330 Probus, Emperor, 172 Protagoras, 27, 311, 330 Proudhon, P.-J., 95, 321, 330 Pufendorf, S., 29, 53, 95, 330 Püttner, G., 142, 330 Pythagoras, 79 R Rabaté, J.-M., 30, 335 Radbruch, G., 185, 260, 330 Rahner, K., 142, 330 Randelzhofer, A., 270, 330

339

340

AUTHOR INDEX

Raumer, K. v., 178, 330 Rawert, P., 149, 330 Rawls, J., 21, 28, 37, 47, 73, 76, 136, 143, 152, 185, 330 Réaume, D., 276, 330 Renan, E., 126, 330 Renteln, A. D., 40, 330 Reuter, K., 94, 330 Rich, A., 81, 331 Riches, D., 62, 324 Richli, P., 30, 85, 331 Riklin, A., 68, 320, 331 Rinderle, P., 23, 74, 331 Risse-Kappen, Th., 203, 331 Rittberger, V., 193–195, 234–235, 315, 321, 331 Roemer, J. R., 23, 318 Rorty, R., 45, 50, 57, 140, 331 Rouland, N., 40, 331 Rousseau, J.-J., 27–29, 31, 61, 67, 107, 119, 131, 146, 178–179, 181, 183, 195, 331 Rufinus, T. v. Aquileja, 175–176 Russett, B. M., 198, 327, 331 S Saint Pierre, Abbé Castel de, 178, 316 Sallustius, Crispius, G., 131 Savigny, F. C. v., 150, 331 Scharpf, F. W., 94, 331 Scheler, M., 57, 59, 140, 185, 213, 331–332 Schelling, F. W. J. v., 184 Schmalz-Bruns, A., 76, 147, 326 Schmitt, C., 103, 184, 213–214, 332 Schofield, M., 164, 332 Schultz, U., 142, 332 Schumpeter, J. A., 69, 198, 200, 332 Schuster, M., 121, 324, 326, 332 Schütz, A., 128, 332 Schwan, A., 140, 332 Seifart, W., 149, 332 Sen, A. K., 81, 295, 332 Seneca, L. A., 163, 165–166, 332 Senghaas, D., 281, 314, 328, 332 Shakespeare, W., 6 Shue, H., 123, 332 Sidgwick, L. A., 119, 332

Siebert, H., 9, 332 Sieyès, E. J., 95, 321, 332 Sigrist, C., 61, 332 Sigrist, Ch., 30, 326 Simma, B., 235, 328, 332 Singer, D., 198, 202, 297, 333 Singer, P., 51, 333 Sinuhe of Egypt, 121 Skinner, Q., 171, 333 Small, M., 198, 202, 333 Smith, A., 24, 27, 61, 67, 120–121, 127, 131, 133, 161, 183–184, 325, 332–333 Solon, 27, 78–79, 333 Soloviev, W., 224, 333 Sophocles, 311 Spiro, D. E., 203, 333 Spraos, J., 294, 333 Steck, O. H., 107, 333 Steffani, W., 140, 329 Steiger, H., 169, 270, 333 Stern, S. M., 164, 333 Sternberger, D., 120, 333 Stewart, W. H., 94, 333 Stirner, M., 25, 333 Streit, M., 225, 314 Strindberg, A., 6, 333 Suárez, F., 167–168, 333 Suffian. T. S., 81, 333 Sully, M. de Béthune, Duke of, 178, 180 Swift, J., 191 T Tacitus, P. C., 131, 148, 183, 333 Tarquinius, King of Rome, 162 Taylor, Ch., 147, 155, 333 Taylor, M., 61, 333 Tesón, F. R., 281, 333 Teubner, G., 194, 289–290, 333 Thierrey, P., 142, 333 Thompson, D. F., 8, 116, 133, 334 Thomson, J. E., 8, 334 Thucydides, 75, 200, 334 Tocqueville, A., 74, 95, 97, 99, 201, 203, 334 Tomuschat, C., 271, 334 Tönnies, F., 88, 334 Tönnies, S., 45, 334 Trajan, Emperor of Rome, 167

AUTHOR INDEX

Troitzsch, K. G., 146, 334 Tugendthat, E., 29 U Ulpian, 53–54 Usteri, M., 94, 334 V Varro, M. T., 172 Varro, E. de, 119, 172 Vaubel, R., 225, 314 Vázquez de Menchaga, 168, 334 Vegetius, 267 Vico, G., 311 Vigilantius, J. F., 53 Villiers, B., 100, 334 Virgil Maro, P., 122 Vitoria, F. de, 167–168, 254, 281, 334 Vitzthum, W. Graf v., 270, 321, 334 Voltaire (F.-M. Arouet), 178, 319, 334 Vorländer, K., 184 W Wagner, A., 105, 235, 315, 324 Wagner, N., 295, 334 Wagner, W., 295, 334 Waitz, G., 97, 334 Waldron, J., 23, 314, 334 Walzer, M., 142, 209, 212, 334

Waschkuhn, A., 85, 334 Watts, A., 271, 324 Weber, M., 62, 66, 188, 335 Weidenfeld, W., 69, 335 Wesel, U., 62, 335 West, M. L., 335 Wetzel, M., 30, 335 Wheare, K., 94, 335 Wieacker, F., 150, 335 Willke, H., 103–104, 335 Wittgenstein, L., 2, 124, 316, 335 Wittmann, F., 276, 335 Wolf, R. P., 142, 270, 335 Wollenschläger, M., 256, 314 Woodburn, J., 62, 324 Wright, Q., 202, 335 X Xenophon, 160 Y Yerushalmi, Y. H., 87, 335 Z Zenon of Citium, 160, 164, 166, 176, 182, 214 Ziebura, G., 274, 335 Zöpel, Ch., 108, 322 Zwingli, U., 240

341

SUBJECT INDEX

Civic virtue, 74, 131–135, 136, 141, 143, 144, 146, 150, 152–155, 204, 239–248, 252 Civil disobedience, 136, 137, 244, 257 Civil rights. see Rights, civil Civil wars, 6, 38, 141, 178, 202, 210, 265, 267, 273 Civilisation, 9, 11, 12–16, 76, 87, 118, 224, 225, 302, 311 Collectivism legitimatory, 25, 276 Colonialism, 16, 40, 181 Common good, 148, 174, 301 Communication, 5, 9, 31, 114, 118, 121, 228, 276–277 Communitarianism, 88, 132, 161, 209–214, 223, 242 Community (polis), 11, 39, 160–164, 169 global legal, 11, 176 individual, 1, 3, 85, 164, 169, 295 of cooperation, 3–5, 11, 12, 21 of fate, 3, 5, 6, 57, 58, 116, 127, 298 of violence, 3, 11 pre-liberal, 43 sense of, 3, 112, 133, 134, 144, 147–150, 153, 154, 242, 247, 248 Compassion, 14, 30, 52, 57, 88, 183, 201, 212, 247 Confucianism, 39, 40 Consensus, 16, 25, 29, 40, 43, 95, 127, 234, 263 Contract global state, 218, 225, 240 original legal (pactum juris), 29, 35, 36, 38, 39, 43, 44, 47, 50, 52, 53, 56, 62–64, 66, 69, 72 original political, 27, 30, 35, 79, 83 original state, 29, 35, 39, 64, 66, 67, 84 theorists, 28, 29, 67

A Absolutism, 1, 84, 104–107 Accountability, individual, 51, 55, 74 Agency, theory of, 32, 259, 277 Amnesty International, 4, 114, 116, 213, 248 Anarchy, 62, 184, 188, 196, 197, 216 Anthropology, 32, 39 cultural, 92 philosophical, 7, 32, 39 social, 86, 90 transcendental, 32 Anti-competitive behaviour, 288, 306 Apostasy, 278 Asylum, 256, 257 Authority to compel, 21, 22, 24–26, 28, 32, 57, 60, 90, 141, 165, 168, 177, 178, 214, 246, 247, 262, 288, 294, 298 B Banks, supervision of, 291 Bretton Woods, 4 Buddhism, 8, 12, 13, 277 C Capacity legal, 50, 157, 211, 240, 271, 283 to act, 32, 38, 39, 41–47, 49–51, 53–56, 93, 108, 112, 113, 115, 117, 157, 229, 241, 278 to reason and to speak, 2, 4, 7, 71, 86, 212 Capital punishment, 146, 212, 266 Certainty, 76 China, 4, 8, 16, 100, 117, 122, 124, 202, 212, 216, 217, 220, 221, 232, 270 Christianity, 8, 13, 15, 118, 142, 168, 173, 176, 177, 277, 289 Civic law, 7, 164, 165, 167, 168, 180, 181, 243, 249, 253, 255, 258, 266, 270, 280, 284, 301 global. see Global civic law

343

344

SUBJECT INDEX

Contract (Continued) theory, 23, 27–30, 86, 132, 167 Corruption, 6, 74, 95, 234, 290, 295, 306 Cosmopolitanism, 159, 162–165, 176, 179, 214, 239, 240, 242, 252 Courts (of law) with global jurisdiction, 4, 207, 259 Crime, 3, 11, 35–37, 81, 114, 128, 212, 232, 236, 244, 247, 257, 258, 260, 262–266, 299, 300, 306 Cultural policy, 80, 91, 101 Cultural relativism, 32, 45, 50 Custom (Tradition), 4, 6, 7, 15, 73, 79, 81, 88, 124, 135, 159, 164, 181, 195, 239, 241, 247, 272, 277 D Data protection, 108, 258 Decency, common, 36, 140 Decentralisation, 85, 97–99, 166, 211 Decolonisation, 6, 234, 272, 297 Democracy, 4, 22 global. see Global democracy law-safeguarding, 73, 74 liberal, 1, 26, 43, 70, 77, 106, 120, 127, 145, 147, 150, 153, 155, 199, 200, 203, 282, 305 maturity for, 71, 73, 77 participatory, 76–79, 100, 146, 227, 228, 242 peacefulness of, 198, 200, 202–204 qualified, 4, 9, 12, 17, 19, 22, 24, 78, 103, 105, 107, 113, 116, 118, 120, 125, 126, 134, 136, 137, 141–144, 150, 152–155, 187, 197, 200, 206, 210, 215, 224, 225, 231, 240, 257, 305, 309 rule-exercising, 71–78, 90 rule-legitimising, 69–71, 78 social, 119 total, 70, 77 universal precept of, 9, 71, 72, 94, 187, 227, 230, 305 Democratisation, 12, 107, 110, 112, 157, 187, 197, 198, 206, 296, 309 global, 11, 19, 118, 169, 200, 204 Deregulation (of the markets for goods and financial services), 4, 108, 109

Despotism, 68, 70, 191, 224–227 Development aid, 127, 234, 248, 291, 293 Difference principle of, 94 right to, 12, 32, 78–82, 94, 125, 210, 211, 222, 241, 245, 246, 254, 255, 282, 305 Discrimination, 258, 277, 278, 293 Discursive community, 126 Dumbarton Oaks, Treaty of, 232, 235 E Economic crisis, 84 Economic growth, 92, 291 Economic liberalism, 118, 198, 290 Economic order, 45, 81, 290 Economic policy, 88, 91, 115, 290–293 Economic sanctions, 270, 284 Economism, 10 Economy, 2, 3, 5, 6, 8, 10, 12–14, 45, 79, 81, 100, 104, 108, 110, 111, 116, 118, 133, 166, 181, 198, 212, 257, 276, 288, 290, 305–307 Environment pollution of the, 3, 6, 114, 151, 218, 244, 301 protection of the, 1, 5, 11, 75, 106, 108, 138, 152, 234, 300–303 Equality (of status or treatment), 24, 25, 41, 69, 72, 73, 101, 142, 146, 165, 212, 270, 277, 289, 301 Ethics business, 287 individual, 163 legal, 47, 53, 54, 187, 195, 232 social, 40, 46, 83, 173, 176 virtue, 53, 54, 132 Eurocentrism, 14, 15 European Union, 6, 89, 91, 97, 99, 113, 115, 123, 147, 217, 220, 221, 226, 227, 307, 310 Exchange, 22, 29 economic, 30 justice in. see Justice in exchange negative, 41 transcendental, 30–33, 35, 38, 39, 41–43, 49, 229, 263

SUBJECT INDEX

Executive, 63, 68, 69, 96, 101, 102, 110, 171, 197, 207, 227, 231, 237, 281, 284, 310 global, 195, 207, 226, 252, 267 F Federalism, 19, 68, 83–102, 205, 206, 215–216, 218, 219–221, 223, 225, 226, 290, 306, 307 Force (violence), 3, 9, 10, 37, 41–43, 44, 46–48, 51, 56, 66, 81, 119, 139, 142, 159, 161, 170, 177, 180, 181, 183, 187, 194, 198, 199, 201, 207, 210, 218, 231, 234, 251, 283, 288, 305, 306, 309, 312 free of, 37, 172, 177, 244, 245 renunciation of, 51, 114, 117, 142 France, 8, 23, 80, 97, 105, 117, 128, 179, 190, 191, 199, 202, 221, 224, 232, 272, 274 Freedom negative, 30, 44, 47–49, 80, 93, 106, 228, 293 of assembly, 228, 285 of religion, 38, 43, 44, 80, 274 of speech, 26, 43–45, 81, 228, 274, 285 of the press, 45, 81, 204, 228, 285 positive, 46, 47, 49, 50, 56, 93, 228 rights. see Rights to freedom to act, 41, 44, 56, 93 Free-riding, 59, 63, 244, 263, 264, 295 Friendship, 7, 32, 46, 48, 59, 60, 95, 133, 148, 162, 171, 255, 277, 298 Fundamentalist political philosophy, 19 G Game theory, 63, 65, 188 GATT, 5, 288 Genocide, 81, 225, 247, 265, 284, 285 Germany, 9, 23, 73, 80, 94–99, 101, 108, 120, 126–128, 140, 148, 149, 183, 199, 201, 202, 221, 240, 248, 256, 257, 296, 312 Global civic law, 7, 165, 168, 180–181, 243, 249, 253–266, 270, 280, 284, 301 Global civic virtues, 239–248, 252 Global democracy, 11, 19, 187, 232, 242, 244, 248

345

Global legal order, 11, 157, 188, 197, 216, 223–225, 240, 241, 245, 309, 311 Global market / world trade, 5, 6, 8, 10, 118, 157, 198, 249, 287–289, 293, 297, 307 Global peace. see Peace, global order of Global players, 5, 10 Global police, 195, 252 Global public, 4, 160, 227–229, 251, 307, 309 Global rule of law sense of the, 243–247, 252, 260 Global society, 12, 211, 220, 226, 240, 241, 243, 247, 248, 262, 289, 305, 306, 308 Globalisation, 3–11, 13, 14, 19, 29, 32, 45, 114, 116, 117, 119, 123–125, 128, 162, 175, 187, 197, 204, 205, 209, 212, 214, 248, 288, 290, 292, 308, 312 Globalism theory of, 209, 214 Grammar, transcendental, 35–37 Great Britain, 8, 23, 80, 98, 128, 147, 168, 190, 199, 200–202, 221, 224 H Hegemony, 125, 172, 180, 191, 192, 201, 228, 232, 235 Hinduism, 12, 13 Human dignity, 40, 45, 46 Human obligations, 43, 44 Human rights. see Rights, human I Ideal, 11, 15, 19, 22, 24, 28, 67, 68, 76–79, 81, 88, 117, 124, 131, 143, 153, 160, 161, 163, 164, 172, 177, 179, 185, 188, 192, 206, 230, 233, 235, 240, 259, 260, 274, 292, 308, 310, 311 Imperatives, theory of, 35 Imperialism, 3, 15, 16, 95, 96, 119, 200, 201 India, 8, 16, 40, 126, 202, 216, 217, 220, 221, 233, 270 Individualism legitimatory, 25–27, 31, 85, 86, 134, 230, 276, 278, 302

346

SUBJECT INDEX

Integrity, legal (honourableness), 53 Internet. see Worldwide web, electronic Intervention, 88, 108–110, 180, 225, 252, 269–285, 309 Intolerance, 16, 40, 224 Islam, 8, 12, 13, 15, 16, 40, 289 Israel, 80, 94, 122, 159, 170, 176 J Japan, 9, 12, 13, 17, 117, 122, 124, 239, 274 Judaism, 8, 80, 289 Judiciary, 62, 67–69, 75, 76, 102, 107, 110, 113, 133, 216, 253, 261, 308 global, 195, 207, 226, 227, 232, 236, 237, 252, 267, 281, 289 Jurisdiction, 4, 80, 97, 107, 115, 261, 265, 266, 289, 299, 307 global, 207, 258, 259 Justice, 8–10, 16, 21–24, 27, 28, 35, 37, 264, 267, 273, 281, 295, 301, 305, 306, 310 anamnetic, 3, 247 compensatory, 46, 49, 51, 73, 93, 106 corrective, 49, 50, 56, 91, 94, 296, 297, 301 distributive, 30, 46, 49, 50, 56, 91, 94, 135, 171, 295 global, 11, 12, 212, 239, 241, 242, 245–247, 252, 260, 293, 297, 298, 300 in exchange, 46, 49, 171, 301 intergenerational, 293, 302 law-legitimising, 78 law-standardising, 35, 39, 49, 56, 93, 207 political, 35, 187 principles of, 19, 35–60, 63, 64, 67, 70, 77–79, 93, 123, 125, 128, 157, 312 procedural, 46, 67, 266 Proto-, 50, 55, 56, 93, 135, 219 sense of, 134, 137–144, 149, 154, 199, 204, 212, 245, 246 social, 46, see also Rights, social; Welfare state L Law, 62–67, 135–137, 243–247, 251 criminal, 16, 40, 67, 109, 212, 253, 262–271, 299, 300

customary, 35, 74, 81, 168, 205, 260, 261, 271 history of, 16, 164 intercultural criminal, 262–265 international, 2, 4, 7, 61, 69, 113–115, 159–162, 164–169, 179, 180, 183, 184, 187, 193, 196, 205, 218, 220, 224, 233, 237, 242, 243, 251, 252, 256, 258, 260, 262, 269–272, 279, 281, 282, 284, 291, 294, 296 international customary, 168, 205, 260, 271 interpretation of, 26, 259 legitimation of, 29, 264 natural. see Natural law precept of the rule of, 19, 37, 50, 56, 93, 187, 211, 214, 215, 234, 241, 281, 284, 308 rule of, 3, 9–11, 16, 19, 23, 35, 37, 56, 93, 106, 118, 119, 123, 125, 244, 251, 281, 282, 308 state under the rule of, 66, 74, 94, 105, 260 theory of, 185 willingness to establish the, 178, 200, 202, 204, 243, 244 League of nations, 95, 171, 179, 180, 182, 183, 230, 232 Legal morality. see Morality, legal Legislature, 35, 62, 68, 69, 75, 79, 96, 98, 101, 102, 107, 113, 137, 150, 152, 168, 195, 197, 216, 231, 237, 241, 252 global, 207, 219, 226, 227, 261, 267, 281 Liberalisation, economic, 4, 5, 8, 10, 118, 263, 297 Liberalism, 2, 28, 118, 132, 137, 143, 153, 155, 185, 198, 199, 290 Liechtenstein, 95, 216, 217, 254 M Mafia, 36, 37 Malaysia, 81, 90, 255 Market economy, 12, 81, 133, 290 Media, 5, 8, 43, 76, 116, 118, 137–139, 143, 146, 160, 199, 203, 204, 227–229, 245, 246, 260, 269, 300 Medicine, 4, 8, 9, 12–14, 107, 118, 151, 212, 242, 312

SUBJECT INDEX

Migration, 6, 16, 114, 115, 123, 140 Minimum social standards, 11, 282, 294 Minorities protection of, 123, 274, 279, 280 Modernisation, normative, 14, 15, 19, 35, 39, 71, 89, 157, 305 Mohawk Indians, 40, 72, 159 Morality, 23, 25, 28, 42, 52, 57, 75, 82, 88, 120, 125, 132, 133, 144, 154, 155, 162, 179, 183, 185, 188, 209, 212, 213, 259, 267 juridical, 53, 136 legal, 38, 55, 175, 181, 182, 215, 230, 246, 269, 281, 283 Metaphysics of, 53 social, 24, 48, 57, 297 N Nation state. see State Nationalism, 3, 120–122, 125, 242, 310 NATO, 113, 114, 188, 203 Natural law, 29, 52, 53, 164, 165, 167, 168, 184, 254, 269, 270 Neutrality of states, 117–121 Non-governmental organisation (NGO). see Organisation: non-governmental Norms, flood of, 75, 76 O OECD/OEEC, 5, 188 Order world, 11, 12, 157, 162, 163, 166, 187–207, 241, 249, 296, 305–311 Organisation international, 8, 113, 117, 161, 166, 178, 188, 193–197, 204–206, 224, 229, 270, 294 non-governmental, 4, 114, 116, 205, 233, 236, 243, 245, 307, 308 self-, 1, 19, 69, 103, 129, 146, 152–154, 272, 273, 307 OSCE, 113, 218 P Pacifism, 185, 197, 200, 201, 223 Parliamentarianism, 76, 79, 138, 200, 219, 220, 222 Paternalism, 26, 75

347

Patriotism, 6, 119, 145 constitutional, 120, 121, 125, 127, 131, 136 Peace, 9–11, 76, 78, 95, 105, 113, 128, 160, 161, 163, 167, 181, 188–190, 198, 200–204, 210–211, 217, 220, 223–224, 227, 231, 234–235, 244, 252, 262, 268, 277, 279, 284, 308, 311–312 between states, 169, 172, 230, 249, 251, 258, 267, 307 global order of, 1, 11, 159, 184, 186, 230, 244 perpetual, 159, 169–180, 182–185, 233, 239, 281 social, 106, 176, 183 Philanthropy, 11, 24, 46, 48, 52, 88, 168, 181, 287, 298 Philosopher King, 73, 131, 182 Philosophy, 4, 8, 17, 25, 27, 28, 33, 37, 79, 89, 94, 95, 118, 159, 160, 164, 166, 170, 172, 182, 187, 220, 212, 223, 226, 239, 240, 242, 249, 259, 312 moral, 53, 209, 300 of the state and the law, 1, 10, 15, 16, 24, 131, 165, 173, 178, 179, 184 political, 1–3, 19, 21, 24, 46, 68, 105, 131, 163, 165, 214 social, 83–85, 209 theoretical, 179 Plebiscite, 76, 98, 126, 146, 147, 229 Pleonexia, 59, 60, 111, 150, 151, 199 Political economy, 119, 181, 276 Power, 4, 23–27, 29, 30, 32, 35–37 abuse of, 22, 71, 74, 223, 283 balance of, 66, 137, 169, 180, 190–192, 197, 260 Power politics, 149, 188, 200, 232, 235, 283 Powers public, 9, 29, 61–82, 84, 91, 94, 96, 101, 113, 133, 134, 137, 157, 165, 187, 196, 204, 207, 211, 213, 214, 218, 219, 231, 232, 234, 235, 252, 263, 267, 289, 305, 307

348

SUBJECT INDEX

Powers (Continued) separation of, 16, 67, 68, 75, 88, 90, 94, 102, 200, 231, 232, 235, 261, 305, 307 Prisoner’s dilemma, 63, 65, 66, 154, 196 Property, 3, 26, 28, 30, 39, 40, 45, 49, 81, 104, 122, 123, 171, 201, 212, 230, 256, 258, 262, 263, 272, 276, 278, 293, 296 Prosperity / Wealth, 10, 117, 118, 141, 170, 182, 183, 198, 223–225, 254, 287, 288, 290, 311 Prudence, 52, 71, 139, 150–152, 167, 176, 182, 309 R Rationality, economic, 14, 71, 192, 288, 309 Reason (Rationality), 14, 15, 71, 105 Recognition by others, original, 54, 55 Regionalisation, 6, 13, 99 Religion, 5, 6, 8, 12–15, 38, 40, 43, 80, 90, 107, 108, 118, 121, 124, 126, 127, 138, 140–142, 152, 160, 162, 168, 171, 173, 181, 210, 213, 215, 255, 266, 273, 274, 277–280, 282, 289, 293, 306, 307, 311, 312 Responsibility intergenerational, 116, 293, 301 social and ecological, 1, 220, 249, 287 Rights, 25, 32, 36, 37 basic, 38, 62, 104, 106, 119, 234, 253, 256, 280–282 civil, 12, 183, 224, 225, 240, 253, 256, 257, 260 collective social, 50 defensive, 47, 66, 279 discourse on inter-/transnational, 17, 45 human, 1, 4, 6, 11, 16, 19, 23, 24, 26, 33, 38–40, 42–48, 62, 67, 68, 70–72, 75, 77–81, 90, 95, 104, 113, 114, 117, 119, 120, 123, 127, 141, 142, 157, 186, 188, 193, 205, 207, 210, 212, 215, 218, 224, 225, 229–235, 245, 246, 249, 253–256, 260, 263–266, 269–271, 280–285, 293, 305, 309 of states, 223, 229–231 social, 21, 39, 46–50, 70, 77, 91, 277, 293

to freedom, 26, 39, 41–50, 56, 66, 70, 73, 78, 80, 81, 93–94, 141, 200, 229, 230, 274, 281, 293 to negative freedom, 47, 80, 293 to positive freedom, 47, 49, 50 treaties on human, 113, 269 Universal Declaration of Human, 47, 80, 234, 253, 256 Roman Empire, 2, 94, 97, 105, 118, 167, 172, 174, 191, 272 Rule (authority), 21, 22, 24–28, 32, 36 democratic. see Democracy free of. see Anarchy legitimate, 40 tyrannic, 70, 74, 132, 198 Rule of law. see Law, rule of Rules qualified, 37, 41, 43, 67 S Scarcity, 47, 48, 52, 60, 138, 144, 256 of resources, 66, 81 Science, 4, 5, 8–12, 14, 25, 31, 32, 43, 44, 52–54, 61, 68, 75, 76, 79, 85, 88, 89, 100, 104, 106–111, 114, 118, 131, 140, 149, 153, 171, 192–195, 199, 202, 204, 205, 209, 212, 226, 242, 281, 305–307 policy on, 28 Scientific freedom, 25, 31, 43, 44, 68, 76, 100, 104, 106, 107, 110, 171, 204, 281 Secession, 202, 249, 269, 271, 278–282, 309 Security, 1, 22, 45, 58–60, 65, 66, 91, 100, 105, 106, 108, 109, 111, 113–118, 132, 137, 138, 148, 151, 154, 167, 168, 171, 188–191, 203, 218, 220, 225, 231–234, 251, 257, 258, 262, 281, 284, 298, 307 Self-assertion, legal, 53–55 Self-determination, 70, 125, 210, 230, 249, 269, 271–281 Self-organisation. see Organisation, selfSocial contract, 27, 28, 31, 72, 73, 119, 131, 178, 179, 218–222, 301 Social Darwinism, 36

SUBJECT INDEX

Social encyclical, 84 Social morality. see Morality, social Social state. see Welfare state Social theory, 21, 62, 83, 84, 86, 87 Socialism, 13, 84, 290 Sociology, 2 Solidarity, 6, 40, 46, 48, 52, 57, 59, 61, 86, 89–92, 95, 100, 116, 118, 127, 128, 131, 137, 144, 145, 148, 151, 171, 210, 212, 253–255, 263, 278, 279, 293 antagonistic, 58, 60 global, 11, 287, 297–300 Sovereignty, 16, 69, 72, 77, 91, 96, 97, 103, 112–114, 117, 179, 188, 197, 205, 207, 219, 231, 252, 261, 269–272, 279, 288, 290, 291, 296, 301, 305, 309, 310 Soviet Union, 84, 203, 221, 232 Speciesism, 51, 120 State demise of the individual, 1, 2, 87, 103–129 ecological, 106 history of the, 16 legitimation of the, 63, 67, 84, 88, 90, 98, 218, 219 positivism, 84 responsibilities of the, 88, 90, 93, 94, 101, 104, 105, 107, 110–112, 114, 115, 128, 173, 223, 226, 242, 244, 245, 282 rights. see Rights of states theory of the, 1, 15, 44, 61, 83, 98, 105, 109, 132, 133, 143, 163, 165, 269 State of nature, 29, 30, 62–65, 161, 166, 169, 188, 189, 193, 194, 196, 214, 215, 218, 310 State, welfare. see Welfare state Statehood precept of, 206, 237 Statism, 149 Subjectivity, legal, 54 Subsidiarity, 19, 99, 100, 145, 148–150, 166, 221, 241, 249, 261, 305, 306 constructive, 85 critical, 85 global, 223, 225, 310

349

principle of, 84, 85, 87, 88, 90–96, 109, 110, 157, 206, 209, 217, 225, 226, 261, 264, 265, 287, 290, 301, 307 traditional, 83–90 Switzerland, 80, 94, 96–102, 113, 126, 216, 221, 222, 229, 231, 289, 291 Systems theory, 10, 85 T Technology, 3, 4, 8, 9, 12–14, 91, 106, 107, 109, 110, 118, 151, 152, 185, 204, 212, 226, 242, 302, 305 Terrorism, 3, 11, 114, 244, 257, 265 Tobin tax, 291 Tolerance, 124, 134, 137–144, 148, 152–154, 178, 179, 246 religious, 16, 71, 80, 127 Torture, 266, 282, 285 Totalitarianism, 120 Transcendental interests, 32, 33, 39, 44, 229, 263 Tyranny. see Rule, tyrannic U Unemployment, 6, 58, 60, 82, 111, 115, 282, 293, 294 United Nations, 113, 115, 171, 188, 193, 194, 197, 212, 217, 220, 223, 229, 230, 234, 236, 237, 244–246, 272, 283, 289, 307, 310 Charter, 231–233, 235–237, 270–271, 284 Security Council, 231–237, 259, 270 United States of America, 9, 97, 187, 200, 216, 232 Declaration of Independence, 280 Utilitarianism, 22–26, 185 Utopia, 11, 106, 164, 170, 185, 287, 310, 311 W Welfare, 1, 3, 22–24, 31, 36, 54, 66, 77, 88, 89, 104, 108, 111, 114, 116, 132–133, 138, 150, 152–155, 161, 186, 198, 254, 276, 288, 290, 294, 296 Welfare state, 75, 85, 91, 92, 105, 106, 109, 115, 127, 148, 149, 152, 185, 255, 293 Work, 2, 10, 14, 25, 28, 33, 46–48, 53, 75, 87, 92, 102, 111, 143, 152, 153, 160,

350

SUBJECT INDEX

162, 165, 172–174, 176, 178–180, 182, 184, 193, 195, 223, 239, 241, 244, 246, 258, 264, 282, 287, 295, 298 World Bank, 4, 8, 115, 270,291, 307 World memory, 3, 4, 229, 247 World order, democratic, 11 World religions, 8 World republic, 11, 12, 157, 177, 180, 187, 195, 196, 204–207, 209, 211, 212, 214–221, 224–233, 235, 239–249, 251–253, 256–258, 261, 264–266, 269, 270, 281, 283, 284, 289, 291, 294, 295, 297, 298, 301, 303, 305–312

World state, 11, 157, 163, 165, 167, 172, 179, 183, 187, 191, 194, 195, 197, 205–207, 210, 211, 213, 215, 217–220, 224–227, 232, 235, 240–242, 244, 252, 263, 265, 306, 308, 310 homogeneous, 12, 164, 166, 177, 209, 214, 305 ungovernability of the, 216 World war, 3, 9, 128, 184–186, 194, 197, 199, 202, 203, 230, 253, 254, 282 Worldwide web, electronic, 5, 256, 257

Studies in Global Justice

1. A. Føllesdal and T.W. Pogge (eds.): Real World Justice. Grounds, Principles, Human Rights, and Social Institutions. 2005 ISBN 1-4020-3141-6 2. G. Brock and D. Moellendorf (eds.): Current Debates in Global Justice. 2005 ISBN 1-4020-3347-8 3. Otfried Höffe: Democracy in an Age of Globalisation

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