DEMOCRACY IN AN AGE OF GLOBALISATION

STUDIES IN GLOBAL JUSTICE

VOLUME 3

Series EditorsDarrel Moellendorf, San Diego State University, U.S.A.Thomas Pogge, Centre for Applied Philosophy and Public Ethics, AustralianNational University, Canberra, Australia, Columbia University, New York, U.S.A.,and University of Oslo, Norway

Editorial BoardGillian Brock, University of Auckland, New ZealandJon Mandle, SUNY, Albany, U.S.A.Kok-Chor Tan, University of Pennsylvania, U.S.A.Veronique Zanetti, University of Bielefeld, GermanyElizabeth 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, NorwaySanjay Reddy, Columbia University, Barnard College, U.S.A.

Aims and ScopeIn today’s world, national borders seem irrelevant when it comes to international crime andterrorism. Likewise, human rights, poverty, inequality, democracy, development, trade,bioethics, hunger, war and peace are all issues of global rather than national justice. The factthat mass demonstrations are organized whenever the world’s governments and politiciansgather to discuss such major international issues is testimony to a widespread appeal for jus-tice around the world.

Discussions of global justice are not limited to the fields of political philosophy and politicaltheory. In fact, research concerning global justice quite often requires an interdisciplinaryapproach. It involves aspects of ethics, law, human rights, international relations, sociology,economics, public health, and ecology. Springer’s new series Studies in Global Justice takesup that interdisciplinary perspective. The series brings together outstanding monographs andanthologies 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 contentof human rights, the aims and methods of development, global environmental justice, globalbioethics, 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, aswell as politicians, policy-makers and government officials.

Democracy in an Age of Globalisation

OTFRIED HÖFFEEberhard-Karls-Universität Tübingen, Germany

Translated by Dirk Haubrich with Michael Ludwig

A C.I.P. catalogue record for this book is available from the Library of Congress.

Published by Springer,P.O. Box 17, 3300 AA Dordrecht, The Netherlands

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Printed on acid-free paper

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ISBN: 978-1-4020-5660-4 (HB)ISBN: 978-1-4020-5662-8 (e-book)

TABLE OF CONTENTS

Preface ix

1 The challenges of our times 11.1 Complex globalisation 1

1.1.1 The demise of the individual state 11.1.2 The plurality of globalisation 21.1.3 Two qualifications 61.1.4 Only a trend 8

1.2 Two visions 91.3 Modernisations 121.4 Philosophy as the advocate of humankind 15

Part One: Qualified democracy 19

2 Consent out of advantage 212.1 The authority to compel 212.2 Welfare (utilitarianism) or justice? 222.3 Legitimatory individualism 242.4 The contract as a metaphor 272.5 A transcendental exchange 30

3 Principles of justice 353.1 A transcendental grammar 353.2 Human rights 383.3 Negative rights to freedom 41

3.3.1 Integrity of life and limb 413.3.2 Freedom of speech and religion 433.3.3 The criterion of freedom rights 44

3.4 Positive rights to freedom: social rights 463.5 Proto-justice 50

A first list of principles of justice 563.6 Solidarity 57

4 Public powers 614.1 The task of implementing the law 624.2 Separation of powers 67

v

4.3 Democracy 694.3.1 Rule-legitimising democracy 694.3.2 Rule-exercising democracy 714.3.3 Participatory democracy 76

4.4 The right to be different 78

5 Subsidiarity and federalism 835.1 Traditional subsidiarity 835.2 Modernisations 89

A complete list of principles of justice 935.3 Federalism 94

6 The demise of the state? 1036.1 Internal metamorphoses 104

6.1.1 Against a false glorification of the state 1046.1.2 A look at history 1056.1.3 A weakened state? 108

6.2 Erosion from outside 1126.3 An enlightened nation state 117

6.3.1 A neutral concept 1176.3.2 Five modernisations 121

7 From subject to citizen 1317.1 Civic virtues 1317.2 Civic courage and the sense of law 1357.3 Tolerance and the sense of justice 1377.4 The sense of state citizenship 1447.5 The sense of community 1477.6 Prudence, composure, wisdom 150

Part Two: A subsidiary and federal world republic 157

8 A look at history 1598.1 Citizen or world citizen 160

8.1.1 Antiquity 1608.1.2 Seven models 1658.1.3 Modernity 167

8.2 On perpetual peace 1698.2.1 Plato and Aristotle 1698.2.2 A positive or negative concept? 1708.2.3 Augustine 1728.2.4 The Middle Ages 1758.2.5 Modernity 178

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TABLE OF CONTENTS vii

8.3 Kant 1798.4 After Kant 183

9 A world order without a world state? 1879.1 A strategic world order 1879.2 Governance without a state 1939.3 Democratisation of the world of states 197

9.3.1 Pro arguments 1989.3.2 Contra arguments 1999.3.3 Summary 204

9.4 First constructive vetoes 205

10 The complementary world republic 20910.1 A world republic respectful of differences 20910.2 Globality instead of globalism 21410.3 A continental level 21610.4 The dual global social contract 218

11 Against a global Leviathan 22311.1 ‘Soulless despotism’ 22411.2 A global public 22711.3 State rights 22911.4 A glance at the United Nations 230

11.4.1 No rudimentary world republic 23011.4.2 ‘Glory and misery’ 23311.4.3 Eight proposals for reform 235

12 Global civic virtues 23912.1 Complementary world citizens 23912.2 A sense for global rule of law and justice 24312.3 A global civic sense and a global

sense of community 247

Part Three: Institutions and responsibilities 249

13 Peace and the rule of law 25113.1 Protection of international law 25113.2 The protection of world citizens 252

13.2.1 Generosity 25413.2.2 Asylum 25613.2.3 Crime 257

13.3 Global courts of law 25813.3.1 A judicial sense of global law 259

13.3.2 The state under the rule of law and the state under the rule of judges 260

13.3.3 Global courts of arbitration? 26113.4 A global criminal law 26213.5 Opus iustitiae pax 267

14 Self-determination, secession and intervention 26914.1 Absolute sovereignty? 26914.2 Self-determination and secession 271

14.2.1 Which nation? 27114.2.2 Which self-determination? 27414.2.3 Collective rights 27514.2.4 The right to secession 278

14.3 Humanitarian intervention 281

15 A global social and ecological market 28715.1 Global regulation of competition 28715.2 A global economic and fiscal policy 29015.3 Global justice 293

15.3.1 Social standards 29315.3.2 Development 294

15.4 Global solidarity and global charity 29715.5 Global environmental protection 300

16 The view ahead 30516.1 A complex world order 30516.2 A third democratic revolution 30816.3 A realistic vision 310

Bibliography 313

Author index 337

Subject index 345

viii TABLE OF CONTENTS

PREFACE

Individual societies tend to meet their collective need for action with principles ofstatehood and the rule of law, thus organising themselves as collective and alsoaccountable entities. These elements of self-organisation and accountability attaintheir perfect expression as a qualified democracy. Given that the collective subject islegitimised through natural individuals as legal subjects, self-organisation occurs ina deliberate manner; and given that the collective subject strives towards principlesof justice, its principle of accountability is exercised.

Social reality, however, extends considerably beyond individual democracies.Economic affairs, science, medicine, technology, culture, migration, environmentalpollution, terrorism and organised crime – these concerns create a need for actionthat extends beyond national borders. Hence, if the demand for action is global, thenthe idea of an equally global polity cannot be avoided, i.e. a global system of gov-ernment that would organise itself in a deliberate manner as a global democracy andworld republic. In so doing, the accountability of collective actors stretches beyondthe borders of states or even groups of states, and the solution to global problems isleft 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 theprice of political regression, the rolling back of democracy. There is an alternative: anall-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 chal-lenge of our times: the phenomena of globalisation and modernisation, which are notlimited to economic forces alone (ch. 1). Part One develops the model of a self-accountable society that complies with principles of justice (chs. 2 and 3) and setsitself up as a democracy (ch. 4). In so doing I intend to broaden my theory of politicaljustice (Höffe 1995a) into an extensive theory of the state – by expanding the themesof solidarity and proto-justice (chs. 3.4 to 3.6), by adding new principles such as sub-sidiarity and federalism (ch. 5), by scrutinising the claim that state power is under-mined by globalisation (ch. 6), and finally, by extending institutional deliberationsthrough a broad list of civic virtues (ch. 7).

After a detailed look at the history of ideas (ch. 8), Part Two examines whethera world order is possible without statehood: as a strategic order, as a network ofinternational 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

statehood cannot itself be simply applied to the global realm. Rather, objections andcomplications would inevitably arise that will require any theory of globalism as ahomogeneous 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 proveto be a convincing alternative either. A constructive compromise between these juxta-posed 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 justifi-ably defends the need for differentiation (ch. 10). The constructive compromise is aglobal democracy that allows existing democracies to retain extensive rights andintroduces an additional ‘continental’ level of government. Since global democracyconsists in a complementary, subsidiary and federal world republic, insist on a globalpublic, and recognises the rights of states, it avoids the danger of becoming a ‘globalLeviathan’ (ch. 11). Just as in the first part, Part Two concludes by outlining a list ofcivic virtues (ch. 12).

Part Three presents exemplary duties of a complementary world republic: main-taining peace and the rule of law (ch. 13); questions of self-determination, secessionand 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 forthat reason is a realistic ideal (ch. 16).

This book employs a complex methodological approach, the core of whichconsists in a normative, legal–moral argument. Yet, contrary to the normative fallacythat deduces specific obligations only from normative reasoning alone, substantivefacts and empirical constraints are also considered. When the subsidiary worldrepublic is to be set up and the necessary responsibilities are to be specified,competences beyond those provided by philosophy are needed. I will therefore dealwith the relevant research from the realms of international law, international rela-tions 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 TimWagner, as well as to Christoph Horn and my friend Thomas Pogge in New York.

Tübingen, Germany, March 1999

x PREFACE

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 ofideas informs us that the exploration of the link between democracy, human rightsand the separation of powers – qualified democracy – reached prominence during theEnlightenment; political practice tells us that it did so during the sectarian civil warsand the period of Absolutism that followed. Further demands for the provision ofwelfare developed during the era of industrialisation and urbanisation. Once thosewere met, the state faced additional responsibilities in the form of environmentalprotection and a responsibility towards future generations. Finally, the two worldwars 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 – andis 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 ourtimes because it specifies a challenge without biasing its response.

A first approximation is uncontroversial but also lacking in profile: globalisationas an increase and intensification of worldwide social relations. Only through fourqualifications does the phenomenon acquire a more discernable shape (an introduc-tion to international debates, which displays their limited perspective, is offered byBeck 1998 and 1998a).

1.1.1 The Demise of the Individual State

Be it internal and external security, welfare provision, economic prosperity orenvironmental protection, most of the responsibilities requiring human self-organi-sation that are based on statehood and the rule of law now stretch beyond stateborders. What is more, additional actors are gaining increasing power and influenceon the international stage: multinational corporations, international or transnationalinstitutions, and non-governmental organisations. While these new entities do notsupersede existing political concepts, such as that of the liberal democracy and itssocial and ecological responsibilities, they do acquire a new dimension that compre-hensively transforms politics and the theory that underlies it.

From the first great proponents Plato and Aristotle to Roman scholars such asCicero, from the Middle Ages to the renewed philosophical foundation of the stateand the law in modernity and into our century, the cornerstone of state theory hasalways been that of the individual community. Although this community did not takeshape as a national state until very late in history, the city states of Antiquity, the

1

Roman Empire, its successors in the Middle Ages, the territorial states of the modernage, 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 losingtheir ability to solve problems of global reach is, in fact, circular: genuinely globalresponsibilities cannot be solved regionally. The bold claim that, because it is graduallybeing undermined, the individual state will eventually vanish (see ch. 6) is neitherempirically correct nor normatively required. But even the more modest scenario of astate whose power has been undermined does present a challenge to politicalphilosophy. In order to respond, the political needs to be reassessed in a way that doesnot replace but extends the individual state.

1.1.2 The Plurality of Globalisation

Globalisation tends to be exclusively equated with economic changes. If this wereaccurate, only academic disciplines other than philosophy would have any analyti-cal remit, most notably economics and supplementary fields such as internationallaw, international relations theory and sociology. However, at least two reasons canbe furnished why political philosophy is required.

First, philosophy has always dealt with one of the conditions that allowedglobalisation to come into existence: the abilities to reason and to speak as they areshared by all humankind. Since philosophy appeals to nothing else, it managed toachieve globalisation early and quickly. From its origins in Asia Minor and laterAthens, philosophy stretched first across the Mediterranean region and then acrossthe 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 globallevel whilst the globalisation of economies and financial markets had not yet beencontemplated. It was long before the arrival of personal computers that the works ofNietzsche, Heidegger and Wittgenstein made it into the households of the educatedclasses around the world.

This remark is only ostensibly praise for philosophy, however, and leads us straightto the heart of the matter. For usually, globalisation is referred to in the singular andinterpreted 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 otherwisefiercely opposed adversaries: orthodox Liberalism and orthodox Marxism. Both seemainly economic forces at work in the world. However, in reality, even economicchanges are not driven solely by economic factors but are also strongly influenced bypolitical decisions, technical advancements and changes in public attitudes. What ismore, globalisation is not only limited to the global economy or the global work envi-ronment and its counterpart of global leisure, including global tourism. Rather, a wealth of additional phenomena exist that are only partially if at all related toeconomics. Collectively, and taking into account economic globalisation, they can begrouped into three areas of concern.

2 CHAPTER 1

Whether or not the related structural transformations result in a profoundly newera is a futile question. What is certain, however, is that a global network of associ-ations has emerged, a mixture of influences and relations that generate new threatsas well as opportunities and involves not only standardisations but also demarca-tions. This creates a common world society in the sense of a community of fate(Schicksalsgemeinschaft) along three dimensions, all of which are significant for apolitical philosophy of globalisation:

(1) Globalisation must not be glossed over, nor must it be seen from oneparticular geographical perspective. Rather than limiting ourselves to the Westernviewpoint, acknowledging solely the positive and cooperative aspects and acceptingonly environmental pollution as a negative consequence, our first bundle of phe-nomena comprises an acute threat to human life and welfare: the worldwide use ofphysical force and violence. In its first dimension, the human community of fateconsists 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: arbitrarinessand violence, and the supremacy of power over the rule of law. For most of historywars have been regional conflicts. Yet, during the modern age in Europe, throughcolonisation as well as imperialism, war began to show the first signs of havingglobal reach, a development that was further reinforced during the two world warsand the subsequent developments in military technology. Nuclear warheads canreach any corner of the world within minutes and, because of the massive destruc-tiveness of the atomic warheads they carry, place humankind under the threat ofcollective suicide.

The violence permeating national borders, on the other hand, is perpetrated byorganised crime, such as the trafficking of drugs, weapons and human beings as wellas international terrorism. Environmental pollution across borders, too, constitutesviolence and is exerted on the property of foreign states. It is a fact of ecologicalglobalisation – albeit not necessarily of the community of violence – that humankindhas 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 otherwiseunspoilt nature, today even natural parks lie within the sphere of human activity. Theglobal community of violence also offers opportunities that are constructive andforward-looking. From a collective memory of the devastating atrocities ofconquests, oppressions and exploitations, from slavery, colonisations and imperi-alisms, from the horrors of nationalism and the countless victims of social andsocialist revolutions, may eventually emerge a ‘critical world memory’. If thatconscience is not selective, but cultivates a sense of ‘anamnetic justice’ that is rootedin case history and, moreover, does not stop at mere remembrance, then it will helpprevent atrocities in the future.

(2) Fortunately, there is a second bundle of phenomena promoting individual aswell as collective well-being, as the vast community of violence is supplemented bya hopefully richer community of cooperation. Yet, even within that community, theeconomy is a significant, but not the sole determinant. Contrary to the first bundle of

THE CHALLENGES OF OUR TIMES 3

factors, this second one has a geographical component that does not apply to allfactors. With respect to at least one factor, cultures such as that of China display aremarkable level of self-development (Needham 1954–1988, 1970 and 1972); andmany more cultures come into play with respect to other factors. Even so, the sec-ond bundle of phenomena is nowadays expanding primarily out of Western andCentral Europe and North America.

Factually as well as historically, the community of cooperation began with thedevelopment of humankind’s abilities to reason and to speak and, as such, withphilosophy and science – including the natural sciences, medicine, technology, aswell as the social sciences and primary, secondary and higher education. Regionaldifferences 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 outsideas 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 worldpublic, which can connect with the aforementioned world memory.

The global public is further strengthened through the expansion and intensifica-tion of international law that, in some areas, is supported by courts with globaljurisdiction. There is also an increasing number of organisations and activities thathave 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 additionssuch as the World Bank, Amnesty International or Médecins Sans Frontières(Doctors without Borders), but for the older organisations as well, including inter-national sport associations such as the Olympic Committee and, even older,churches. Moreover, significant aspects of culture are reciprocally assessed on aglobal level, including museums, stage, film, architecture (both in the sophisticatedand the low-cost variety) as well as classical and popular music. That reciprocity isnot restricted to the willingness to adopt authentic cultural elements from all parts ofthe world. Rather, at the intersection of various cultures, the universal openness issupplemented by regional adaptations, even innovations. Pars pro toto these devel-opments constitute what could be called ‘Hellenisations’, as in many areas, and indifferent variations, an ever increasing number of features originating from theWest and the East, from North and South America, from Europe and Africa, arestimulating each other. All types of mixing can be found, from interbreeding, cram-ming and melting to syncretism and hybrid creations (Nederveen Pieterse 1998).That customs detach themselves from their existing contexts to unite themselveswith new practices can be observed at levels as diverse as the fine arts and popularyouth culture.

The most often mentioned area, that of economic globalisation, is multi-facetted.Political decisions came first. Economic globalisation is not a natural phenomenonthat would, like the law of gravity, occur even without, or against the will ofhumankind. The liberalisation and deregulation of the markets for goods and capitalwas established through agreements such as Bretton Woods (1944), the General

4 CHAPTER 1

Agreements on Tariffs and Trade (GATT, 1947), and the Organisation for EuropeanEconomic Cooperation (OEEC, 1948; later OECD, 1960).

The resulting process of globalisation is further accelerated by factors such asdecreasing transportation costs, faster transportation and communication links, andthe independence of electronically traded goods and services from any given geo-graphical territory. Of further significance are the international differences in labourcosts, global investments, and the increase in educational levels in many parts of theworld. The relocation of research facilities, manufacturing plants and headquartersas well as the multinational corporations operating as global players nearly all overthe world are certainly the more obvious features of economic globalisation; so toois 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 alsogoes against the trend of centralising transnational management, control and coor-dination functions in a few metropolitan areas, the so-called ‘global cities’.Geographically fixed locations thus loose some of their importance; this has ademocratising effect: in the electronic world-wide web all locations, persons,corporations and states are treated equally. There is also an ecological gain: travel-ling via the Internet rather than by car or airplane saves energy and reduces theimpact on the environment. Finally, one’s legal protection is improved as well – atleast 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 allmarkets. If this process remains uninterrupted, all goods – including naturalresources, semi-finished and finished merchandise, service provisions such as infor-mation, management and organisation, workplaces as well capital – will soon be‘globalised’ in as much as they will be traded worldwide. The result is a globalmarket 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 sweet-ness and light. Quite the contrary, competition reigns not only in the economy butalso in all other spheres, including science, culture and even language and religion.And this competition extends to regional and national ‘sectors’, understood here asa bundle of elements, including infrastructure, educational achievement, as well astaxation and regulatory burden, and quality of life.

The global community of fate, which owes its existence to the second bundle offactors, is self-evident: events are perceived and processed both globally and simul-taneously – influenced by technological advances, international treaties and politicalliberalisation, and caused by the worldwide interconnection of the means of trans-portation and communication, which reduces transmission times and diminishes theimportance of geographical distances. The attendant cultural globalisation should, ofcourse, not be reduced only to those events that are “simultaneously present aroundthe globe as a mass media experience” (Beck 1998, 55). Of course, when transmit-ted worldwide via television, events such as the atomic catastrophe in Chernobyl orthe Olympic Games can evoke emotions globally. Yet, an integral part of cultural


universality is also that Bach, Beethoven, Mozart, Jazz and popular music arelistened to throughout the world, that the theories of relativity and quantum physicsare studied at all universities, that Homer, Shakespeare and Goethe are read, andPlato, Aristotle and Kant are discussed.

(3) Competition does not only drive those forces from which we would expect acollective (albeit not exclusively economic) benefit such as effort, courage and cre-ativity; it also has costs internal to the economy such as unemployment, as well asexternal to it such as environmental degradation. The first bundle of phenomena aswell as the second, for their part, only hint at what is in effect the main characteristicof the third: the community of fate in the narrow sense that is the community of painand suffering.

Certainly, given that the majority of relevant factors originate outside of Europeor North America, their source is only regional in scope. The repercussions thesefactors then have on these countries give them a global significance: the civil warsand abhorrent violations of human rights are, for the most part, late consequences ofcolonisation and decolonisation that can be also explained as eruptive responses tocorruption and mismanagement. Hunger, poverty, economic and cultural underde-velopment, as well as major natural catastrophes are plentiful. We witness majorstreams of refugees and migrants, caused by either political and religious oreconomic factors. In cases where migration started a long time ago, a ‘patriotismacross borders’ can be discerned: the international solidarity in the Diaspora, that ofthe 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 theonly sign of our times. If only because there are notable counter-movements, it cannotfunction as the only valid basic concept. One of these counter-movements, regionali-sation, is even in part caused by economic globalisation. In a global market, both statesand regions compete with one another. Of course, regionalisation encompasses muchmore than that, as it includes the dissolution of larger states (‘the rich’) into severalsmaller ones as well as the establishment of regional administrative bodies. Anyway,the self-confidence of some regions extends far beyond mere economic aspects. Thefragmentation of mega-cities into ethnically and culturally distinct areas also repre-sents a counter-movement, as does the strengthening of national identities withinyoung democracies. (A reversal of this counter-movement is, of course, also notice-able, as is evidenced by the states longing to join the European Union). Neither mustthe great variety of languages, customs, and religions be forgotten. These counter-points 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 (Strindberg1903/1916, 79) to be avoidable.

On close examination a second qualification that is of a historical rather than afactual nature becomes apparent. It counters our era’s tendency to overestimate itssignificance as well as its historical short-sightedness. Following Dahrendorf(1998, 41), the beginning of globalisation could be dated back to the first landing on

6 CHAPTER 1

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 yearwhen America was discovered. A glance back into history reveals that the intensifi-cation of global social relations began well before modernity.

The human condition must be the foundation. Despite the current scepticismafforded the discipline of philosophical anthropology, two factors of globalisationcan be discerned that do operate independently of history and culture. The firstfactor, a natural condition, is our spatially restricted planet, including its naturalresources and benefits. The second factor, a psychological precondition, is the capac-ity to reason and to speak, which enables humankind to live nearly anywhere and tocommunicate across any distance. As Democritus remarked, because humans areable to reason, they feel at home everywhere. “To a wise man the whole earth is hishome; the universe is the fatherland of the good soul” (see ch. 8.1.1).

These two anthropological factors do not cause globalisation, they are merelyconditions of its possibility. This potential for globalisation is realised, initially atleast, by three additional conditions that have existed everywhere, always: the socialcondition that living space must usually be shared if only because one always hasneighbours, with whom one is on either friendly or hostile terms. We only know ofabsolutely independent and autonomous communities from those novels of thesixteenth and seventeenth centuries, which are, following the model of ThomasMore, rightly called utopias and ‘never-lands’. Real polities, by contrast, have neigh-bours with whom they maintain either friendly or hostile relations.

Since we are willing to comply with common rules, customs and laws within ourborders, we cannot help but also take an interest in establishing relations across bor-ders in a legally binding manner. This international and transnational legal willingness hashelped to establish the precursors of international law. From the outset it has dealtwith two fields of application: an international public law, as the law applicable torelations between states, and an international private law (later global civic law), asthe law applicable to the relations between societies, including trade, cross-nationalmarriages, and the exchange of information and culture.

There is a psychological as well as a normative prerequisite for our internationallegal willingness and the laws that emerge from it: that we regard aliens as not actu-ally alien; that we acknowledge them as one of us, not as lawless animals but asfellow human beings.

While the first two conditions are simply given, the other three require an activeeffort. Even the decision to move within or beyond one’s borders is a matter ofhuman responsibility. In all three aspects, however, humankind seems to have movedbeyond 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 suchas clans and families, are accepted as ‘states’ in the modern sense, then the begin-nings of international and supranational laws and customs can be traced back as faras 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


relationships. Wherever polities fight with their neighbours, or trade goods and serv-ices, where knowledge, skills, art, stories, songs are exchanged and nationalitiesintermarry, a network of relations develops that prevents any single community fromliving its history sheltered from, and untouched by, other communities. Let ushighlight three eras of globalisation: Antiquity, modernity and our present time.

An exchange between cultures existed four millennia ago between Mesopotamiaand 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 theera of Hellenism, the Orient (including India and China) and the Mediterranean(including Central Africa) merged to become a global trade area, with global marketprices and trade centres such as Alexandria and Seleucia in Mesopotamia. Moreover,this merging was not only limited to the economy. From the link between Hellenicand Oriental cultures emerged a new and almost global culture. Some religions –such as Christianity, Judaism, Islam and Buddhism – spread globally, and we nowrefer to them as ‘world religions’. They provided international routes of pilgrimageto such sacred places as Jerusalem, Rome, Mecca and Santiago de Compostela.Alongside the religious pilgrimages, there were also ‘epic pilgrimages’: the tales andstories we read in Boccacio’s Decamerone are international flotsam and jetsam thatcan be traced back to the Orient and Occident. Others can be mapped out from Persiato India and much reappears at a later stage in the writings of nearly every Europeanlanguage. More significantly, since Antiquity, philosophy, science, medicine, andtechnology, the manifestations of natural reason, have “globalised themselves” as well.

A renewed push for globalisation occurred in the age of discoveries and later, inthe age of colonisation. Soon so-called global empires – Spain, Portugal, GreatBritain, the Netherlands and France – were established, competing for control of theoceans. Foreign peoples were thereby conquered and oppressed; contemporary glob-alisation is not the first to produce injustice. Criticism was raised very early in thephilosophy of the Enlightenment, most notably by Kant (Perpetual Peace, 3rd def.art.; The Doctrine of Right § 62). In addition, globalisation at this time was eitherfacilitated 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 isno longer solely instigated by individual states. Once again, peaceful inventions(such as radio technology and electronic media) as well as military inventions (long-distance bombers and intercontinental missiles) play pivotal roles. They are supple-mented by political decisions that affect the liberalisation of markets for capital andgoods, as well as international organisations and treaties (UN, World Bank, HumanRights Conventions, etc.).

1.1.4 Only a Trend

We are not yet done sharpening our definition: two pinches of scepticism are yetrequired for an accurate diagnosis. As these relate predominantly to economic glob-alisation (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

8 CHAPTER 1

new after all. Historians see its most striking aspect, the internationalisation ofcapital and exchange markets, more as a recurrence than as something novel.Modernity tends to indulge in the illusion that each generation outflanks the preced-ing one. During the early period of the gold exchange standard between 1887 and1914 goods were, however, traded on a global scale at about the same level as theyare today (Thomson and Krasner 1989). Hence we have merely returned to the statusquo of that period, which had been interrupted by the First World War, the crises ofthe 1930s, and the Second World War. Whether or not information is transmitted viasubmarine cable or electronically is of course not irrelevant, but not of great signif-icance either as far as global trade is concerned. And as for the political efforts tokeep the peace, they are barely worth mentioning. Take, for example, the peace accord350 years ago to end one of Germany’s greatest ordeals, the thirty-year war; sincemailing letters to Madrid took almost a month in those days, instructions from Spaindid not arrive until three months later, so that it took four years for the peace accordto be ratified. And yet, neither air travel nor electronic communication managed tospeed up the peace processes in the Middle East or Yugoslavia.

The second pinch of scepticism comes from the observation that even todayeconomic globalisation is a relatively weak case in point. In quantitative terms,global trade occurs primarily between the United States of America (USA), Europeand Japan: out of the hundred biggest corporations, only two are located outsidehighly industrialised states. Economic globalisation thus proves to be a highly selec-tive affair. In the cases of Japan and the USA, the export ratio is a mere 10% of theGross Domestic Product (Siebert 61994, 11). Even the financing of corporations ispredominantly done within the respective domestic economy. Exchange is presum-ably more intensive in other realms, and in terms of globalisation, culture andscience are once more on equal footing, if not a cut above.

Because both sceptical injunctions are legitimate, the current processes of global-isation merely represent a trend and not the final outcome. We live in a ‘civilisationin 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 challengesof 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 useof physical force. We must determine that it is morally required that justice and therule of law prevail over force and violence, always and everywhere, and that toachieve this aim public powers are established and democratically organised. ThisI call the universal precept of a legal order and a state, and the equally universalprecept of democracy (see chs. 3 and 4).

Qualified democracy allows the unfolding of the forces at play and expects fromthis highly competitive play great wealth – of goods and services, of science, medi-cine, technology, of music, literature and the arts. The vision of peace and justice is


thus augmented by a vision of manifold prosperity, thereby realising an immemorialdream of humankind. Concurring with one of the prophets that “they shall poundtheir swords into ploughshares, their spears into pruning hooks” (Is 2,4), physicalforces are to be transformed into economic and cultural ones, and where peaceprevails, a more than just material prosperity will take root.

A philosophy of the state and the law acknowledges the second vision but refusesto 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’ exer-cised at a different level, no longer by elected representatives but by global corpora-tions or entrepreneurs. Yet, not only do these global players lack democraticlegitimacy, directed as they are by corporate objectives, economic laws and marketconstraints and short of any capacity to legislate, they also lack both the will and thepower 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 demandnot only for economic but also for scientific and cultural affairs. At times, an‘economic fatalism’ prevails, according to which the economy determines not onlythe means but also the ends. The means of the economy set ends to which politicscan do nothing but react; instead of actively creating and shaping, politics is reducedto adapting to and complying with those goals. There is, however, actually no anony-mous fate to be found here: market forces do not rule without exception and global-isation can be given specific names, such as, “The Treaties on Global EconomicLiberalisation”. What is more, just as domestic markets are dependent upon a givenframework, 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 compelthem into a fair regulatory framework that ensures a minimum set of social andecological standards.

Political control is perhaps also conceivable, although neither the capacity nor thewarrant of politics to control should be overestimated. Neither the centres inAntiquity such as Athens, Seleucia or Rome, medieval Paris, Vienna or London northe modern metropolises, believed themselves able to steer an entire economy, andeven less so philosophy, science, arts, music and literature. Although censorship hasof course always existed, it has long been considered illegitimate and has provenrather impotent. Ancient European societies have known well before modern systemtheories, and since the Enlightenment at the very latest, that the forces at work herehave their own normative criteria and are better left to operate unchecked.

World society must and should leave much to itself: the creativity of individualsand groups, free enterprise, and chance evolution. Other areas, however, require itscapacity to create and structure. And since the basic form of collective creation is apolitical system based on the rule of law, such a requirement applies to the globalsphere as well. If, instead of force and violence, justice and the rule of law are toprevail between groups and individuals and if both are to be democratically organ-ised, then the same should have to apply beyond and between states. Do we not need

10 CHAPTER 1

a world order that is committed to a principle of justice? And do we not need toorganise 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 andthe principles that will apply to it. Already the three bundles of phenomena point tothree 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 cooperationneeds a fair operating framework, which addresses anticompetitive behaviour bystates and establishes a minimum set of ecological social standards. (3) Povertyand hunger raise questions about global justice, global solidarity as well as globalphilanthropy.

Expanding from a single state to a world republic seems to be a quantitative matterand therefore an easy one: by expanding its geography and population, the small polity,the individual polis, develops into an all-encompassing cosmopolis. This expansioneven promises to release utopian energies: it offers more than small-scale solutions tothe globalisation problems that frighten us and threaten our existence. There is,however, a serious challenger to moving forward: pragmatic scepticism. The only wayto quell those sceptical voices is to resist that romanticised ‘nowhere’, that elusivepromise of salvation, and instead, with a down-to-earth awareness of the problemsinvolved, 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 orderthat also keeps the newer forms of global violence in check: nuclear and ecologicalthreats, terrorism, the trafficking of humans, drugs and arms, as well as organisedcrime. When the ideal accepts the challenge of additional globalisation-relatedproblems, such as environmental protection and the acknowledgement of minimumsocial standards, it thereby expands into a global legal order. This order does notinvalidate the first vision: by means of economic, scientific and cultural competition,societies, and above all their citizens, blossom. Of course, a global legal communitythat is open to competition represents so radical a break with the current situation thatobjections become perfectly obvious. Their closer examination follows later inchapters 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 ona global scale: the democratisation of all states. According to the second objection glob-alisation leads to a levelling out that requires a strong counterpoint: nurturing regionaland local particularities so as to protect the social and cultural wealth in the world andto secure the associated identity of individual human beings. Immanuel Kant himselfraised the third objection: a world republic is a monster that, by virtue of its size andelusiveness, cannot be governed at all (The Doctrine of Right § 61; also: Bodin andGrotius, 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 hasmanaged to guarantee those rights. Lastly, a world state impairs competition amongpeople 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 havethe force required for a striking counter-argument, one that would send a mortal


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

1.3 MODERNISATIONS

Globalisation poses a further challenge. Even if it does not standardise our livingconditions, it leads to changes that take place worldwide and, despite their differ-ences, interlink in such a way that a common global society emerges – a global civil-isation. As far as the community of cooperation is concerned, it links rationaleconomy with science, medicine, technology and the qualified democracy. Evenwhere this civilisation does not yet exist, the promise it radiates overcomes any formof resistance, as long as there are no prohibitions constructed as roadblocks. In someplaces a ‘modernisation reduced to technocracy’ has been attempted, whereby a market-economy, and at times even science, are adopted, but democratisationper se is rejected. This model, however, seems unsuccessful in the long run.

Now global civilisation proceeds from a large region, the West, and therein liesthe second challenge: a civilisation that spreads so effortlessly without a fightemploys a hegemonic approach which harms the self-esteem of others. Since suchhumiliation is hardly consistent with a principle of global justice, and is moreoverconflict-laden, even polemogenous, one cannot help asking once again how best tonormatively deal with it.

As in medical therapy, the answer here depends on an exact diagnosis. Accordingto 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, thenbetween nation states and later between ideologies, would henceforth occurpredominantly between civilisations, understood here as types of societies orcultural spheres. Huntington’s taxonomy encompasses seven or eight civilisations:Western, Islamic, Sino-Confuscian, Japanese, Hindu, Latin-American, Slavic-Orthodox, and possibly also African.

Already this enumeration requires some correction. The troubled continent ofAfrica, for instance, is not nearly as homogeneous as to warrant its own categoryof civilisation. Further, in Japan believers in Shintoism and Buddhism, two reli-gions often interpreted as heterogeneous from a European perspective, have beencoexisting peacefully, even in one and the same person. This constellation doesnot either preclude some openness to many cultural influences from the West.

12 CHAPTER 1

In addition, a substantial part of Eastern and Central European countries do notprofess orthodox Christianity but are nonetheless of Slavic descent. Finally, LatinAmerica feels too strongly connected to Spain and Portugal and to Christianchurches 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 culturalor religious fault lines can be detected. Rather, ‘indulgence in minute differences’ leadsto fragmentation and regionalisation, for example, in Islam the conflicts between Sunnisand Shi’ites, or between ‘orthodox’ and ‘enlightened’ Muslims.

Further, the civilisations mentioned turn out to be ‘syncretistic’, not only in theirborder areas but also at their centres. The West in particular grants the right to livein its territory not only to Christians and Jews, but also to Muslims, Hindus, andBuddhists; and in its arts, it is readily inspired by all cultures. What is more, culturestend to differentiate themselves along transcultural factors, such as age, sex andoccupation, or according to social and political attitudes, settlement patterns, geog-raphy and climate. This results in commonalities across cultures, so that the urbanyouth in Western Europe resemble their counterparts in Eastern Europe and Japanmore than the previous rural generation in their own cultural spheres. This, more-over, 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 datesback to the earliest times. At any rate, the crucial borders today run less along reli-gious or cultural fault lines than between urban and rural populations, between theeducated and the uneducated and between the rich and the poor.

A still weightier objection against Huntington is offered by the manner in whichsocial structures proliferate nowadays; this happens, as mentioned earlier, to a largeextent by suggestion, without a fight. It is only competition that arises between civil-isations, and despite occasional setbacks, it tends to go in favour of that social formwhich, because of its origin, is called Western and modern. Other forms of societydo as well attain some degree of global significance. Yet, when it is ‘only’ religionthat spreads, as was the case with Buddhism and Christianity and Islam today still,or an ideology such as socialism, the commonalities carry insufficient weight toqualify as a separate form of civilisation. For that to happen fields like medicine, thenatural sciences and technology that do not seriously follow Christian, socialist orIslamic agendas are required; the economy has, anyways, restricted these agendas.Incidentally, this state of affairs helps to explain the triumphant advance of globalcivilisation. Because it is indifferent to questions of faith and salvation and goesalong with the most diverse religions, it is both capable of and entitled to globalisa-tion. 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 particularform of civilisation. Although the sources of inspiration today proceed primarilyfrom 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 fullyflourish. The ambiguous expression ‘modern’ is here understood in the normative


sense of Aristotelian physis: the realisation of a universal human potential to its fullactuality and flourishing. Modernisation can also be understood in a second, epochalsense: that the development of these abilities has specific characteristics of Europeanmodernity 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 orpure democracy, we witness a form of ‘contamination’: universal human influencesare combined with individual behaviour patterns and interests, with those of alanguage sphere, a particular national economy, or perhaps even certain corpora-tions. Only the pure form, however, is entitled to globalisation: the global spread ofEurope, preceded however by a ‘de-Europeanisation’ or, the global spread of theWest, preceded by a ‘de-Westernisation’. Only if European modernity rids itself ofits specifically European and specifically modern elements, only if it realises, on thebasis of universal human reason and interests, opportunities that have remained asyet undiscovered by other epochs and cultures, only then can a civilisation developthat is indeed, in its beginnings, tied to Europe and modernity but is, in fact, modernin a normative sense. Only then is the lofty proverb valid that it is through modernitythat humankind comes to its senses.

That the concept of a normative modernisation is not a mere fig leaf behind whicha certain euro-centrism might grow undisturbed is evidenced by ‘modern’ science,medicine and technology. They indeed succeed in realising to an unforeseen degreethe knowledge and skill that humankind has always sought. Within that generalinquisitiveness, however, a particular emphasis is stressed: a shift from knowledgeto skill. Whereas Antiquity favoured a pure, non-utilitarian inquisitiveness (see, forexample, Aristotle, Metaphysics, vol. I, chs. 1 and 2), modernity rejects this in favourof a useful but also humanitarian knowledge. Sure enough, this displacement servesuniversal human purposes: the alleviation of material suffering, the healing ofdiseases and the reduction of toilsome work. The shift in emphasis from knowledgeto skill accommodates the practical side of religions – that is, the appeal to compas-sion and charity that unites diverse religions and denominations beyond theirdogmatic controversies (see the plea for a global ethos uniting all religions in Küng1993). This shift of emphasis thus avoids the danger of favouring one of the religionswhile debasing the others.

Economic rationality, a second element of global civilisation, also has the advan-tage of being culturally indifferent. The efficiencies gained both with respect tolabour and natural resources promote the universal human interest of minimising thework carried out ‘at the sweat of one’s brow’ and of achieving either a greater profitwith the same inputs or the same profit with fewer inputs. Indeed, humankind todayhas 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. EvenEuropean modernity cannot free mankind from its tendency to desire ever more. Thesting of constant discontent even endangers natural, social and cultural resources.

We can now draw a preliminary conclusion; it begins with a clear counter-diagnosisto Huntington. And this for three reasons: because of the religious neutrality of

14 CHAPTER 1

Western civilisation, the relative importance of its geographical origins, and its mod-ernisation in the normative sense, the main controversy today does not oppose the Westand the non-West, certainly not Christianity and Islam, and not even directly secularand pre-secular societies, something that would be burdensome to religiously influ-enced cultures. Secondary issues may be addressed in this way, as many a conflict doesfeature a religious or otherwise cultural component. The crucial conflict, however,arises between groups or societies that expose themselves to normative modernisationand those that do not but rather shut themselves out. Finally, those losing out in themodernisation process provide substantial cause for further conflict.

Second, the global form of civilisation grants individual societies and sub-societiesa high degree of self-sufficiency. It is the impartiality with respect to religion andother factors that makes diversity possible: a variety of customs, languages andreligions (including religious impoverishment), positive rights, and political culture.Because global civilisation is only a form of society that remains open to socio-culturaldifferences, one can advocate it without being enslaved by the cultural imperialism thatimposes, as an ideal, one’s own culture on others. Incidentally, Western intellectualsare among the fiercest critics of euro-centrism.

Third, since it is universal human interests that matter, non-Western cultures neednot endure humiliation but can instead positively identify themselves with moderni-sation. 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 itsfull flourishing while favouring universal human interests and abilities.

Fourth, because it is universal human rationality alone that matters, experiencesfrom 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 reflexiveself-criticism, one that can steer away from the undesirable developments of globalcivilisation.

1.4 PHILOSOPHY AS THE ADVOCATE OF HUMANKIND

Ever since its inception, philosophy has taken upon itself a claim to universality: in itsattempt to address general and often universal problems it has employed arguments ofuniversal applicability so as to arrive at universal conclusions. Given the pertinentdoubt that universal principles are, in fact, only partially applicable, philosophybecomes involved in a discourse that is often intercultural, that is moderating, andoften transcultural, that is one that encompasses cultures (Höffe 1996, ch. 1). As far asthe 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 legalculture of its Euro-American origin, neither with regard to normative principles norto empirical circumstances. For only when all particularities are set aside, can weplace societies that are fundamentally different under an obligation to commit to acommon ground. The trade-off is obvious: we do not gain a spelled-out legal orderbut obtain only procedural principles. However, this is actually not a price to be paid


but rather an advantage. On the one hand, the principles are valid without exceptionwhile on the other they remain, in their concrete application, open to experience,wisdom and their respective boundary conditions, including traditions and drafts ofnew social orders.

On the second level, that of the history of the state and the law, the discourseconnects historical consciousness with socio-historical knowledge. For instance, itremembers that already in its beginnings, Western civilisation had been influencedby non-Western sources, that Greek culture was shaped by Eastern (Egyptian,Babylonian, Hittite, Phoenician) influences, and that this culture was transmitted tothe medieval Latin era not primarily via Rome but via Syrian Christians and theIslamic-Arab cultural sphere. Further, the discourse does not forget that ‘the West’gave rise to such pathologies as colonialism, religious intolerance, and the absolutiststate, against which human rights became a necessary therapy. However, it alsorecalls the fact that neither colonisation nor imperialism were invented by Europeanmodernity. 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, suitablestarting points in other cultures for three components of ‘modern polities’ – nationalsovereignty, human rights, and the separation of powers. With regard to popular sov-ereignty it refers to early hunter cultures, in which kinship-based tribes made theirdecisions (as to hunting and camping) jointly. Many religious fraternities also displaydemocratic characteristics, for instance the Dominicans and the Franciscans, whoseleaders are elected for a defined period by a congregation of their members, the eccle-sial chapter. Also, in the case of the African palaver the concerned parties continuedebating until a consensus is reached. The majority of human rights, in turn, are pro-tected by the criminal laws implemented in their respective legal orders (Höffe1999a). 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, througheither customary or divine law, are subject to rules. The separation of powers isfurther 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 interculturaldiscourse advocates such a careful implementation of the procedural principles thattheir openness comes to true and full fruition. The demands for justice and the ruleof law of modern civilisation can only be expected of other cultures if these main-tain a high degree of self-sufficiency and independence. Rather than having tosurrender their identity, they have the right to be acculturated, that is, incorporatedin such a way that remains compatible with their culture.

Without a doubt, the third condition has long been seriously violated. Not only doWestern states cultivate religious intolerance internally, which leads to religiouswars and large-scale migration, but even slavery, colonialism, and imperialism areno strange concepts to states that do adhere to the principle of religious tolerance.Their late ramifications include other cultures’ identity conflicts, which haveremained active well into the present time and urge on the West a less haughty self-

16 CHAPTER 1

assessment. Conversely, the systems of government that were developed in Europeand North America are too quickly and too directly imported. Cases in point arewhen, after the dissolution of the Spanish and Portuguese colonial empires, SouthAmerica adopted the presidential structure of the USA; when Japan, after the Mejirestoration, adopted Prussian constitutionalism; or when Africa, depending upon theearlier colonial power, was guided by either French, British or other models.Sufficient time and effort were not (and perhaps could not be) devoted to mediatebetween the Western systems of government and indigenous traditions and mentali-ties. The consequences, the well-known crises, reinforce the third condition: that thebasic model, qualified democracy, be realised only very carefully and only takingthe 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 onlysecondarily to humankind as a species. Leaning neither on particular traditions, con-ventions, nor on holy texts or a Revelation, philosophy relies exclusively on univer-sal human reason and universal human experience. By thus proceeding it secures asuitable normative core for cosmopolitan debates: concepts and statements that arevalid 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 veryideal. They will straight away demand either global democratisation or globaldemocracy. A sound philosophy, however, must deal with pertinent scepticism,which, in the case of democracy, voices two reservations. First, does this ideal consistin a pure democracy or rather in a qualified democracy, one which is linked to prin-ciples of justice, namely human rights? Second, regardless of whether simple orqualified democracy is chosen, does this ideal depend on the presumptions of aparticular culture, that of the modern West, or is it valid across cultures?

Both questions require more than a simple reconstruction of democracy, the nowa-days predominant approach. While it is true that reconstruction uncovers normativefoundations, it does little to establish their legitimacy. It only manages therefore toconvince those who are in principle already convinced anyway. “Fundamentalistpolitical philosophy” (Höffe 1995a) begins with a more basic starting-point: with thetask of establishing a universally applicable legitimacy, i.e. the authority to compel,and with an equally universal criterion for legitimation, i.e. universal consent basedon 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). Thissequence remains open to the idea of normative modernisation: although only aqualified democracy provides the environment in which it can fully flourish, politicalself-organisation may also begin with an alternative conception of law and statehood.After introducing two complementary principles of statehood, subsidiarity andfederalism, we examine the thesis that globalisation processes undermine the powerof the individual state (ch. 6). Also, while democratic theory is usually happy tocontent itself with institutional theory, we supplement the debate with considerationsof a more person-centred nature, arguing that the creation and maintenance ofdemocratic institutions require a multitude of civic virtues (ch. 7).

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CHAPTER 2

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 legitimationand, to do so, examine the structure of polities. As long as human beings createcommunities for the mere purpose of cooperation and as long as this happens in aspontaneous and voluntary manner, one might ask oneself why humans choose tolive together at all. A good many reasons can be given. The issue of social rightsaside (see ch. 3.4), fundamental political philosophy leaves it to the realm of socialtheory to determine precisely those reasons. A wholly voluntary community ofcooperation does not require a justification but only an explanation.

The issue is different, however, once a polity is no longer satisfied with voluntarismand 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 tasklies. Even today, in an age of practised historicism, this task confronts philosophywith a question that is valid across cultures and demands of it a universally applica-ble 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 coordinatesparts of the polity, including individuals, groups and institutions, and either assistsin solving problems without (private) physical force or prevents them from occurringin the first place. Finally, it licenses legal instances wherever questions of authorisationand responsibility arise. All three variants of the law share one characteristic: theauthority to compel, which more recent theories of justice and the state surprisinglyignore. 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 regu-lations. It should not be reduced to its ultima ratio, that is, penal enforcement.Equally significant is the formal requirement, which, if ignored, negates the intendedlegal 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 othergods. Not only breaking the rules, but merely personally punishing such breaches – theuse of private force – constitutes an infringement of the law.

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As an embodiment of force that is no longer private but public, the polity presentsitself as a system of rule that encroaches upon the freedoms of citizens and thusrequires justification as such. Why should the law be withdrawn from private respon-sibility and be left to public powers? Because of this supplementary question, justi-fication proves to consist of two stages: first, the law itself has to be justified, andthen the state in the wider sense of the term, the no longer private but public respon-sibility 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 com-pel 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 longerderived 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, therulers, but the citizens themselves. Even a Rousseauvian democracy, which assumesthe unity of the rulers and the ruled, maintains penal enforcement, the authority tocompel, and requires that the ruled provide for the state. Hence, while the democraticmetamorphosis – from an alien authority to one that is self-enforced by thosesubjected to it – represents a fundamental change, it does not do away with the taskof legitimation, nor the authority to compel.

2.2 WELFARE (UTILITARIANISM) OR JUSTICE?

The preceding descriptive element, the legitimation task, is methodologically fol-lowed by a normative element, the legitimation criterion. By which standard can theauthority to compel be legitimate? The normatively modest answer, a prudential andpragmatic justification, appeals to ends advocated by common sense which, in thecase of the polity, are interior and exterior security as well as economic welfare. Andsince there are many such ends, which are best pursued all at once, it is welfare, theirembodiment, which imposes itself as the standard. The authority to compel thenappears legitimate when it serves the collective well-being.

It is possible to object to this socio-pragmatic justification and claim that its guid-ing concept (Leitbegriff ) is hopelessly indeterminate, suspiciously close to ideology,and that he who appeals to notions of welfare cloaks his own particular interests underthe cover of the universal and the common. However, a good raison d’être does existfor this indeterminateness. Welfare is the embodiment of intelligent ends, and it isimpossible to articulate a priori what this will encompass. Rather, ascertaining theappropriate ends as well as defining and coordinating them in detail is a task that mustbe 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, butonly the attempt to reduce it to a particular interpretation.

Welfare’s most successful ethics is utilitarianism. It takes the maximum collectivewell-being as its guiding principle and seeks to calculate it, following Bentham, by meansof a hedonistic calculus, yet, leaves the concept otherwise expressly open (for a list ofselected readings on utilitarian ethics, see Höffe 1992; for more recent discussions

22 CHAPTER 2

DEMOCRACY IN AN AGE OF GLOBALISATION

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