habermas plea for a constitutionalization of international law

8/22/2019 Habermas Plea for a Constitutionalization of International Law

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Plea for a constitutionalization of international law

By Jrgen Habermas

Our section is announced under the venerable title Cosmopolitanism. I am the last

person who would feel uneasy addressing this topic. But let me explain why I prefer

to focus on the more specific and demanding perspective of a constitutionalization ofinternational law. The concept of cosmopolitanism leads us to continue a train of

thought that bypasses the major problem of how to tame, channel, and civilize

political power in legal terms even beyond the nation state. Cosmopolitanism remainsa somewhat loose conception unless it confronts the issue of a transnationalization of

the achievements of the constitutional state. For the process of extending democracyand the rule of law beyond national borders German public lawyers have developed

the concept of a constitutionalization of international law. Let me first explain this

concept (I) and then, in a second part, use some aspects of the present European crisis

as an example for identifying one major obstacle on the road that eventually may lead

us to a political constitution for a world society without a world government (II).

I. Neither Government nor Governance

If we consider the constitutional state from a historical perspective, then what strikes

us as its major achievement is how it contained despotism. Two aspects of that

process of taming the violence of brute political power can be distinguishedthecivilizational achievement of the legal institutionalization of equal freedoms for every

citizen, on the one hand, and the increase in the effectiveness of the modern

administrative state, on the other. I propose to conceive of boththe advance in

civilization brought about by law and the organizational rationalization of the state

apparatusin terms of a transformation of the substance of state power, i.e. the mode

of exercise of political authority. From this point of view, the juridification ofinternational relations, which began after the end of the Second World War with thetransition from coordinatingto cooperative international law, then also turns out to

be a kind of continuation of this process. Since the foundation of the United Nations,

of the three major global economic organizations (World Bank, IMF, and WTO), and

of informal negotiation systems such as the G8 and the G20, even the rudiments of a


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constitutionalization of international law have taken shape.

1

The changes ininternational law correspond to a transformation of international relations: the

constitutionalization of international law is bound up with a supplementation of thepowers of national governments by a growing web of international organizations that

make governance beyond the nation state possible.

What I conceive as a dissolution of the decisionistic substance of the power

involved in the exercise of political authority from the perspective of political science

appears from the perspective of legal theory as a transformation in the composition of

the medium of law. For the time being, however, these two trends are associated with

a democratic deficit that could be counterbalanced only through atransnationalization of democracy. Before I take up this major issue I would first like

to say something about the two long-term trends that we discover when we take a

selective look back on modern European history: (1) the constellation of law and

political poweris changing in tandem with (2) the change in the substance of state

power.2

(1) The change in the medium of law is reflected in a shift in the relative weights

of the two components out of which modern law is composed. In order to perceive

the shift that has occurred in international law, we must call to mind the conventional

concept of state law. The constitutional state which enjoys a monopoly on thelegitimate use of force endows valid legal norms simultaneously with a legitimate

and a coercive character, which is why Kant speaks in terms of coercive laws of

freedom. Law which is at once legitimate and coercive presents the citizens with a

choice between following valid norms either from personal self-interest in the

expectation of sanctions or out of respect for the law in the light of the procedure of

democratic lawmaking.

1 On this schematization of the evolution of international law, see Anne Peters, Vlkerrecht(Zurich:

Schulthess, 2006), 11ff.2 Legal pluralist approaches have analyzed these changes in terms of displacements in relations ofpower between the public authority of the state and the private economic power of globallyoperating corporations and made the over-hasty diagnosis that the legislative authority of the stateis becoming diffused as public-private partnerships have increased. The disenchanting effect of thebanking crisis was not the first phenomenon that prompted a reassessment of the role of publicauthority in international relations in the discussion over international law. See Armin vonBogdandy, Philipp Dann, and Matthias Goldmann, Developing the Publicness of PublicInternational Law, in German Law Journal9/11 (2008): 1375-1400. On the public turn in general,see Nico Kirsch, Global governance as public authority, in International Journal of ConstitutionalLaw10/4 (Oct. 2012): 976-87.


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If one proceeds from the customary premise that a world state enjoying amonopoly over the legitimate use of force is neither possible nor desirable, a dualistic

conception of an international legal system comprising both the law of peoples andthe law of states seems unavoidable. On this conventional conception, the obligatory

law of states which is implemented through the sanctioning power of the state and by

courts and administrations has a different mode of validity and a higher level of

effectiveness than international law, which lacks the backing of the sanctioning

power of the state. Thus the conventional conception holds that international law

bases its authority on customs, international treaties, and universally recognized legal

principles alone, that is, on the unenforced consensus among the states.This conclusion is unavoidable, of course, only as long as we assume that

recognition of the legitimacy of a legal system cannot guarantee an average level of

obedience to the law unless it is backed up by the threat of coercion by the state.

Today this assumption no longer holds universally. Existing European law provides

the most advanced example of the shift in the balance between the two componentsof the enforceability of the law, on the one hand, and the recognition of its legitimacy

and average compliance with the law, on the other. In the European Union,

supranational law, insofar as it is not rejected by national constitutional courts in

eligible exceptional cases, enjoys priority over the national law of the member states,

even though the latter continue to exercise a monopoly over the means of thelegitimate use of force. Evidently, in European law, which has become differentiated

as an independent level of regulation, the relative weights have shifted between the

two components of the legal medium in favor of a recognition of the legitimacy of

supranational authority (of the Council and Parliament, the European Court of

Justice, and the Commission).

Since the founding of the United Nations, the increase in the number of

international courts, the strengthening of international criminal law, and, above all,the rapid proliferation of international organizations in almost every possible policy

field, we are also observing at least weak indicators of a similar shift between thesanctioning and legitimation components in international law. As a result, the gap

between the sanction-backed mode of validity of state law and the soft mode of

validity of international law is beginning to close. Reality seems to be approachingKelsens unitary conception of international law, albeit at a snails pace. This trend

becomes apparent, of course, only when we recognize that not only the contents of

legal systems, but also the medium of law itself, is changing. Once we modify the

rigid concept of modern law accordingly, it also seems less improbable that one day it


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could become a routine matter to use the state monopolists over legitimate force toimplement the impartial and juridically monitorable decisions of a reformed UN

Security Council.

(2) Today at the international level a corresponding change in the substance of

state power is going hand-in-hand with this change in the composition of the legal

medium. The concept of state sovereignty in classical international law still

presupposes a realist concept of state authority. Political power is supposed to be

exhibited in the instrumental rationality of the self-assertion of a state that is assumed

to act autonomously. On this traditional conception, each sovereign state pursues itsnational interests on the international stage of competing co-players without having

its scope for action normatively restricted in any way by deference to the

international community as a whole. This policy model of safeguarding and

optimizing national power in the international arena finds its legal expression in the

famousjus ad bellum, the discretionary right to wage wars without having to justifyoneself. As Carl Schmitt correctly recognized, the abolition of this right represented a

sea change in the history of international law. The fact that, in our post-heroic era,

war is neither a legal nor a preferred means for solving international conflicts,

however, is only the most visible sign of a change in the mode of exercising political

authority .The dense network of international organizations deprives classical

international law of its assumed power basis. In a highly interdependent world

society, even superpowers are losing their functional autonomy in important policy

fields. In view of the growing number of problems that can be solved only through

joint political action, all states are finding themselves forced to cooperate. This

explains why the number of international organizations with far-reaching regional or

even global competences is increasing at an accelerating pace. Corresponding to thisis the progressive assimilation of classical foreign policy to forms of domestic

politics. Thus the decisionistic core of political power is being broken down in thecrucible of the flows of communication of transnational negotiations and discourses.

States can no longer regard themselves exclusively as sovereign, contracting subjects;

today already they even operate on occasion as members of the internationalcommunity.


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(3) However, there is a reverse side to the two trends mentioned, and a rather darkonea growing democratic deficit that is increasing in tandem with them.3

The

changes in the composition of the legal medium and of the exercise of political powercan be explained in terms of the intrusion of deliberative elements into the power-

steered international relations of a world society that is undergoing economic

globalization and systemic integration in general. Yet the inclusion of the citizens in

supranational decision-making processes is not keeping pace with the legal

domestication of the intensified cooperation among the states. On the contrary, for

the present the price for effective governance beyond the nation state is an

uncompensated erosion of the legitimation processes at the level of the nation state.The improvement in the organizational functions that is being achieved at the

supranational level through cooperation between states might be described as a trend

towards rationalizingthe exercise of political power in the international arena; but we

cannot qualify this trend as a civilizing process as long as international organizations

only exercise their mandates on the basis of international treaties, hence in forms oflaw, but not yet in conformity with democratically generatedlawthat is,

legitimately. Global governance is a euphemistic term for the undemocratic character

of the institutionalization of international relations that we have witnessed to date.

For even if all members of a specific international organization were

unimpeachable democracies, the kind of legitimation that the individual memberstates bring with them from home, as it were, is increasingly insufficient to justify

decisions of the organization as a wholeand all the less so the closer the

cooperation and the greater the invasiveness and relevance of thejointly concluded

policies. From the perspective of the citizens of each of the national member states,

there is an asymmetry between the limited authorization of their own national

delegates and the scope of the compromises carried by all delegates in concert; for

these joint decisions impinge on the citizens of all of the member statesindiscriminately. To this is added another deficit. In contrast to the decisions of

national cabinets that cover all policy fields, the agenda of functionally specializedorganizations is confined to particular areas of responsibility in such a way that this

narrow focus does not allow the undesirable external effects of decisions to be taken

into account. For both of these reasons, a certain paternalism is built into the legalform of this kind of organized cooperation, a paternalism that would not be rectified

3 With reference to international jurisdiction, see Armin von Bogdandy and Ingo Venzke, ZurHerrschaft Internationaler Gerichte, in Zeitschrift fr auslndisches ffentliches Recht undVlkerrecht70 (2010): 1-49.


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even if, as has been proposed, international organizations could be obligated to abideby certain human rights standards.4

(4) I regard the fact that powerless international negotiation systems like the G8 or

the G20 are created at all as a symptom that the steering capacity of existing

institutions is being overtaxed by the pressing global challenges of climate change,

global economic crises and imbalances, the worldwide risks of large-scale

technology, and so forth. The systemic constraints that are penetrating national

boundaries (today, above all, those of the unbridled global banking sector) are quasi-

natural social and economic forces that must be domesticated. A multiplication of thefamiliar kind of international organizations capable of coping with the increased need

for regulation would merely aggravate the aforementioned legitimacy deficit.

Technocratic regimes will continue to proliferate under the innocent title of

governance as long as sources of democratic legitimation are not tapped for

supranational authorities as well. A transnationalization of democracy is overdue.The democratic legitimation process will be able to extend across national

boundaries to a political community beyond the nation state (such as the European

Union, for example) only when it becomes possible to combine in a different way the

three building blocks that are constitutive for every democratic system within a

supranational multilevel system.5 The three building blocks in question are thepeople as the bearer of political will-formation, the state as that organization

which enables the citizens to act collectively, and the legally constituted community

of citizens as a voluntary association of free and equal individuals. Only within the

nation state are these three building blocks aligned in social space. Elsewhere I have

developed the idea that two constitution-building subjects could participate on an

equal footing in constituting a supranational democracy, namely, the citizens in their

role as members of the future union and these same citizens in their role as membersof the already constituted states out of which the union would be composed. This idea

4Christina Lafont, Alternative visions of a new global order: What should cosmopol itans hopefor? in Ethics & Global Politics (2008): 1, 1-2, 1-20. This proposal does not provide a substitute forthe democratic legislator and the local courts which can only decide on and control the appropriateapplication and sufficient exhaustion of abstract human rights standards; cf. Klaus Gnther,Liberale und diskurstheoretische Deutung der Menschenrechte, in W. Brunner, U. Neumann,and S. Kirste (eds), Rechtsphilosophie im 21. Jahrhundert(Frankfurt am Main: Suhrkamp, 2008),338-59.5 See my reflections in the title essay ofThe Crisis of the European Union: A Response(Cambridge: Polity, 2012).


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provides the impetus for reflecting on a variable geometry of the aforementionedbuilding blocks. Whereas within the framework of federal states the subnational units

(such as states, cantons, or Lnder) feature only as the constitutedcomponents(constituted, that is, by an undivided sovereign, the people), the member states of a

supranational democracy would play the role of a constitutingpower from the outset

(and as a result would retain comparatively stronger competences within the

constituted political community).

II. The trend towards technocracy and the lack of solidarity

Rather than spinning out the idea of a political constitution for a world society

without a world government further,6 I would like to use the example of the EU crisis

to show how rocky the road leading to such a constitution is. I am interested in the

stumbling block posed by the lack of political solidarity, hence the narrow horizon

within which, for the present, citizens can be required to take the perspectives of theirfellow citizens into consideration as well.

Let me proceed without further explanation from the premise that the structural

imbalances between the national economies of the euro zone are forcing the member

states of the European Monetary Union to take further steps toward political

integration. The crisis has taught us that the European Monetary Union cannot bestabilized in the medium term without a joint fiscal and economic policy that would

extend to other policy fields such as taxation and social policy. In the long run it will

not be sufficient to provide loans to the over-indebted states so that each of them can

improve its competitiveness on its own. However, a deepening of institutionalized

cooperation would demand more democracy in Europe and a corresponding change

in the Treaties. In fact, we are witnessing a development that is stoking the conflicts

between the peoples. Europe is being drawn into the slipstream of a form oftechnocracy that is tailoring the individual member states without the involvement of

their populations to the format of consolidated democracies, that is, of democraciesadjusted to uncontrolled markets.

Under the leadership of the German government, the European Council is

adhering to a crisis agenda that insists on the priority of each individual statebalancing its national budget on its own. In the crisis-stricken countries, this policy is

6Habermas, A Political Constitution for the Pluralist World Society?, in Between Naturalism andReligion: Philosophical Essays (Cambridge; Polity, 2008) , pp. 312-52; See also Habermas, Crisisof the European Union, 53-70.


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adversely affecting the social security systems, public services, and collective goods,which means that it is being implemented at the expense of the strata of the

population that are disadvantaged in any case. Changing this requires breaking withthe political self-interpretation of nation states according to which each member state

is formally sovereign and takes decisions in questions of budgetary, social, and

economic policy without regard for their side effects on other member states, hence,

exclusively from a national perspective. With this fiction of national sovereignty, the

governments of the so-called donor countries above all are avoiding requiring their

electorates to exhibit the requisite degree of political solidarity. A cooperative project

undertaken from a joint European perspective to promote growth and competitivenessin the euro zone as a whole would require these countries to accept, in their longer-

term self-interest, redistribution effects that would be to their disadvantage in the

short and medium terms. Political parties avoid the issue of the reasonableness of

requiring political solidarity. I take this as a sign of political timidity, if not of sheer

opportunism, in the face of a challenge of historical dimensions. Perhaps even a dryphilosophical analysis of the concept of solidarity can contribute something to

clarifying what is at stake.

In order to exonerate appeals to solidarity of accusations of moral stuffiness, of

misplaced good intentions, and of being unpoliticalaccusations that the realists

are wont to level against themI would first like to distinguish obligations to showsolidarity from moral and legal duties. Showing solidarity is a political act that by no

means calls for a form of moral selflessness that would be misplaced in political

contexts. Kostas Simitis, Prime Minister of Greece at the time of its accession to the

EU, wrote in theFrankfurter Allegmeine Zeitungon 28 December 2012: Solidarity

is a concept that certain countries in the Union are not comfortable with. Even

though Simitis is sitting in a glass house, his understanding of solidarity may

nevertheless be correct. Thus: What is meant by solidarity?Solidarity is not synonymous with justice either in the moral or the legal

sense of the term. We call moral and legal norms just when they regulate practicesthat are in the equal interest of all those affected. Just norms secure equal freedoms

for all and equal respect for everyone. Of course, there are also special duties.

Relatives, neighbors, or colleagues can in certain situations expect more, or adifferent kind of help from each other than from strangers. The extent of these

positive duties is often indeterminate; but, as such, they are nevertheless strictly

binding: parents violate their duty of care, for example, when they neglect the health

of their children. But compare this with the case of a distant relative who enters into


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contact with his surprised cousin again after decades and confronts her with a requestfor a larger financial contribution because he is facing an emergency situation. He

can hardly appeal to a moral obligation but at most to a tie of an ethical kindfounded on family relations (in Hegels terminology, one rooted in Sittlichkeit or

ethical life). There is a special feature whereby such an ethical obligation is

distinguished from a proper moral one. Belonging to an extended family justifies an

obligation only if the actual relation between those concerned generates the

expectation that the cousin can count on the support of her relative in turn in a similar

situation. It is the trust-founding Sittlichkeitof informal social relations that, under

the condition of predictable reciprocity, requires that the one individual vouchesfor the others.

Such ethical obligations rooted in ties ofan antecedently existing

community, typically family ties, exhibit three features. They ground exacting or

supererogatory claims that go beyond what an addressee would be obliged to do

either by law or morality. On the other hand, when it comes to the requiredmotivation, this kind of ethical claim is less exacting than the categorical force of a

moral duty; nor does it coincide with the kind of prudence or respect involved in

following coercive law.Moral commands should be obeyed out of respect for the

underlying norm itself without regard to the compliance of other persons, whereas the

citizens obedience to the law is conditional on the fact that the sanctioning power ofthe state ensures general compliance. Fulfilling an ethical obligation, by contrast,can

neither be enforced nor is it categorically required.It depends instead on the

expectations of reciprocal conductand on confidence in this reciprocity over time.

In this respect, and this is the important feature, unenforceable ethical behavior also

coincides with ones own medium- or long-term interest.

It is precisely this aspect that Sittlichkeitshares withsolidarity, though the

latter cannot rely on pre-political communities such as the family but only on politicalassociations or shared political interests. I repeat: What differentiates both ethical

expectations and appeals to solidarity from law and morality is the peculiar referenceto a joint involvement in a network of social relations. That involvement grounds

both another persons demanding expectations that might even go beyond what law

and morality commands, and ones own trust in the reciprocal conduct of the other ifneed be in the future.7 Whereas morality and law refer to the equal freedoms of

7Andreas Wildt, Solidaritt: Begriffsgeschichte und Definition, in Kurt Bayertz (ed.), Solidaritt:Begriff und Problem (Frankfurt am Main: Suhrkamp, 1998), 202-17, especially 210ff.


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autonomous individuals, ethical expectations and appeals to solidarity refer to aninterest in the integrity of a shared form of life that includes ones own well-being.8

We should note, however, that the concept of solidarity, even though it derivesthese semantic connotations from the memory of quasi-natural communities such as

families or corporations, marks a change in the semantics of ethical life proper in two

respects. Conduct based on solidarity presupposespoliticalcontexts of life, hence

contexts that are legally organized and in this sense artificial, not ones that have

evolved organically. The customary talk of civic solidarity already presupposes

the legally constituted environment of a political community, normally a nation state.

Solidarity is always political solidarity. We should bear in mind that nationalismobscures this difference between civic solidarity and prepolitical Sittlichkeit.

Nationalism appeals without any justification to the concept of solidarity when it

champions national solidarity and thereby assimilates the solidarity of the citizen to

the cohesion among those who are born into the same collectivity.9

At any rate, the

credit of trust that is presupposed by conduct founded on solidarity is less robust thanin the case of ethical conduct because this credit is not secured through the mere

existence of a quasi-naturalcommunity. The ascriptive moment of inherited ties in

antecedently existing ethical relations is missing in the case of solidarity.

What lends solidarity a special character is, moreover, second, the offensive

characterof striving or even struggling to discharge the promise which is invested inthe legitimacy claim of any political order. This forward-looking character becomes

particularly clear when solidarity is required in the course of social and economic

modernization. Sometimes appeals to solidarity are appropriate in situations when

citizens face the challenge of adjusting the overstretched capacities of an existing, but

eroding political framework to the indirect force of encompassingsystemic

interdependencies which connect the fates of citizens of different political

communities behind their backs, as it were. Such interdependences are felt as mereconstraints on what actuallyshouldbe within the reach of the political control of

8 In earlier publications, I connected moral justice too closely with solidarity/ethical life. SeeHabermas, Justice and Solidarity: On the Discussion Concerning Stage 6 (1984), in Thomas E.Wren (ed.), The Moral Domain: Essays in the Ongoing Discussion between Philosophy and theSocial Sciences (Cambridge, MA: MIT Press, 1990), 224-50. I no longer uphold the assertion thatJustice conceived deontologically requires solidarity as its reverse side (p. 244) because it leadsto a moralization and depoliticization of the concept of solidarity. See also my commentary onMaria Herrera Lima in Habermas, Nachmetaphysisches Denken II(Berlin: Suhrkamp, 2012),127ff., here 131-3.9Habermas, On the Relation between the Nation, the Rule of Law, and Democracy, in TheInclusion of the Other: Studies in Political Theory(Cambridge, MA: MIT Press, 1998), 129-53.


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democratic citizens. I think that this description fits the present situation of citizens inthe core European countries who must push for further political integration in order to

extend their control over quasi-natural economics forces and recover a democraticbalance between politics and the market.

habermas plea for a constitutionalization of international law

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