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Human Rights, Democracy, and Global Governance
IPSA
Montreal 2014
© 2014 Andrew Buchwalter
Andrew Buchwalter
Department of Philosophy
University of North Florida
Jacksonville FL 32224 USA
Human rights and democracy are often understood to exist in some conflict with one
another. There are many ways in which this conflict can be articulated,1 but certainly one
pertains to the opposition between the universality associated with human rights norms and the
particular conditions associated with modes of popular self-determination. Human rights are
often assumed to connote norms that possess universal application and pertain to human beings
as such, irrespective of membership in a particular political, social, or ethic community.
Conversely, democracy involves modes of popular self-governance that are intertwined with
membership in a distinct and delimited political community.
In this paper I challenge this disjunctive understanding of the relationship of human
rights and democracy, focusing especially on their connection in a global context. I do so by
employing tools of dialectical analysis that derive from the work of Hegel, even if I make little
direct reference to Hegel himself. On the one hand, I argue that human rights depend for their
validity and specific meaning on processes of application and concretization that liminally entail
democratically conceived modes of collective self-interpretation and self-definition. Conversely,
1 For an overview see Christoph Menke and Arnd Pollman, Philosophie der Menschenrechte zur Einführung
(Hamburg: Junius Verlag, 2007), pp. 170-186.
Buchwalter, IPSA 2014, 2
I claim that popular forms of democratic self-interpretation give expression to robust accounts of
human rights transcending the particularism of a specific political community. Not only does
meaningful public deliberation presuppose a full account of individual rights (and duties); the
processes of collective interpretation central to deliberative self-definition entail relations with
other cultures and communities that serve to clarify and validate universal norms of right and
justice, which in turn are shaped via agreements fashioned and refashioned in the social and
historical interaction of the world’s peoples and cultures.
One consequence of this view is that it entails a decidedly historical and pragmatic notion
of universal norms of rights, one forged not through abstract appeal to metaphysically presumed
norms and principles but through processes of intercultural or intersocietal learning. Another
consequence is that permits an account of human rights norms that not only eschews an abstract
distinct between universal and particular or transnational and local, but does so in ways that
demonstrate the coimplication and mutual dependence of such poles. Yet another consequence
is that it clarifies the relationship between democratic self-governance and universal human
rights, where (a) cultivation of conditions for democracy proceeds isomorphically with the
formation both of a human rights community and the increasingly global validation of universal
principles of right and justice and (b) human rights themselves find realization in local and
transnational processes of democratic self-determination. I further contend that this mediated
view of the relationship of rights and democracy suggests a specific view of legal and political
institutions, one expressed in a differentiated, multi-level, transnational federalism associated
with the notion of global governance without global government.
The paper is divided into five parts. First I detail the dependency of a doctrine of human
rights on processes of democratic self-determination, focusing on the degree to which the very
Buchwalter, IPSA 2014, 3
assertion of rights depends on modes of interpretive application embodied in forms of
autonomous political agency. Second, I argue that this contextualizing process, far from
championing a normative relativism, not only entails a context-transcending receptivity to other
legal-political cultures and traditions but does so in a way that occasions a notion of intercultural
sociation resulting in an account of universal human rights generated and validated in the
recognitive interaction of the world’s peoples and cultures. Third, I further explicate the view
presented here by relating it to the account of the relationship of universal human rights,
democratic self-determination and normative context-transcendence espoused by Seyla
Benhabib, with whose notions of democratic iteration and jurisgenerative politics this paper
shares commonalities. Fourth, I explicate some implications of this view, focusing on the notion
of a human right regimes, the universality of a human rights doctrine, the concept of impartiality
in the moral-political judgment associated with that doctrine, and the conjunction of rights and
democracy under conditions of globality as regards both bounded and transnational communities.
Fifth and finally, I conclude with some brief remarks about the viability of an account of human
rights, democracy, and interculturality in the face of the seemingly unfavorable conditions
supplied by current forces of neo-liberal globalization, affording special emphasis to the notion
of global governance without global government.
I.
The notion that human rights have a transhistorical, transcultural status distinct from
reference to specific embodiment has a long and even distinguished pedigree. It is part of the
legacy of rational natural law, for which rights, to the extent they can be said to exist at all, do so
in a state of nature or as features of an essential human nature, separate from any specific social-
political instantiation. It flows as well from the liberal natural rights tradition, which construes
Buchwalter, IPSA 2014, 4
rights as entitlements individuals possess prior to social or political entanglements. It is a feature
of the post-1945 discourse on human rights, in which rights are championed precisely as a way
to challenge the forms of human abuse and degradation condoned and legitimized by particular
legal communities. It is justified further by the specifically moral dimension of the discourse on
human rights, with its emphasis on intrinsic human dignity and entitlements individuals are
deemed to possess simply in virtue of their status as human beings and as members of a common
humanity. Some even claim that the separate status of rights is attributable to distinctions
between academic disciplines, where law considers formal structures while political scientists
focus on empirical social realities.2
For various reasons, then, it has been long assumed that norms of human rights possess a
transhistorical and transcultural dimension juxtaposed to specifically embodied forms of social
and political life. In what follows it is not my intention to dispute this general understanding,
although of course there are now those who do so.3 I do claim, however, that it is also false to
assume that the doctrine of human rights, even a doctrine of universal human rights, is to be
construed only from this perspective. For one thing, this misunderstands the nature of rights
themselves. Although rights can be understood as moral principles that have standing
universally and irrespective of institutional embodiment, it is also the case that rights are legal
principles that are meant to be promulgated and enforced, and so depend upon and require
institutional concretization. Hegel famously defined right as the “existence of the free will”
(Dasein des freien Willens),4 and this captures a distinctive feature of rights—moral principles
2For a discussion of this point, see Carol C. Gould, Globalizing Democracy and Human Rights
(Cambridge: Cambridge University Press, 2004), 192. 3For a distinguished example, see Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford
University Press, 2009). 4G.W.F. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H.B. Nisbet (Cambridge:
Cambridge University Press, 1991), §29.
Buchwalter, IPSA 2014, 5
tied to institutional articulation. In the words of Seyla Benhabib: “Human rights protect the
moral claims of individuals in institutionalized form.”5
The point here, however, is not simply that rights depend for their validity and proper
articulation on legal institutionalization; such institutionalization is itself intertwined with
processes of cultural articulation, those that further attest to the embodied nature of a meaningful
concept of human rights. On this view legal norms depend for their acceptance and validity on
interpretive processes through which they acquire meaning and authority for a particular
community. The standing that a particular right has in a particular community is inextricably
tied to the manner in which it articulates the specific values, practices, and traditions of that
community. The specific meaning of the right of free speech in, say, the United States, Canada,
and Germany varies in line with different historical traditions and expectations in those
countries.
In his account of constitutional interpretation, American legal philosopher Ronald
Dworkin famously differentiates between concepts and conceptions, asserting that conceptions
represent the historical application and animating concretization of generally presumed
conceptual principles.6 This point is relevant here as well, for rights and other general normative
concepts acquire their specific relevance and authority for a particular legal community as those
concepts assume the form of particular political-cultural conceptions. Appreciation of this point
was clear even to the drafters of the 1948 Universal Declaration of Human Rights, a document
often criticized for the abstract nature of its claims to universality. If not explicitly, they
5Seyla Benhabib, “Democratic Sovereignty and International Law: the Contemporary Debate,” paper
presented at the Straus Institute for the Advanced Study of Law and Justice, November 28, 2011. 6Ronald Dworkin, Taking Rights Seriously (Cambridge MA: Harvard University Press, 1977). The
distinction between concepts and conceptions has been employed by Seyla Benhabib, Dignity in
Adversity: Human Rights in Troubled Times (Cambridge: Polity, 2011). Later in this paper I indicate how
the approach advanced in this paper differs from that of Benhabib.
Buchwalter, IPSA 2014, 6
acknowledge implicitly the degree to which articulation of basic rights is always confronted with
expectations for interpretive contextualization. “Nothing in this Declaration may be interpreted
as implying for any State, group or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights and freedoms set forth herein.”7
To understand this application process properly, however, it is not enough simply to point
to the dependency of rights on their embodiment in a particular cultural tradition. Rather, this
process must be regarded as one in which agents affected by those rights can be said to
appropriate and endorse those rights, construing them as meaningful for themselves and their life
contexts. Only through such active appropriation are rights and other norms accepted as
authoritative for members of a cultural community. Following Habermas, we might say that the
concretization process depends on regarding agents not only as the grantees or addressees of
rights but their authors as well.8 Only through such authorial identification can individuals fully
and freely acknowledge the authority of rights as binding on themselves and their social
circumstances.
This point speaks directly to the connection of rights and democracy. To say that rights
depend on the autonomous agency of affected individuals is of course not to attend to individual
or private autonomy alone. Autonomy in that sense may be relevant for moral decision-making,
yet for matters of law and public life autonomy denotes something of more broadly public
significance. At issue is the autonomous agency of a polity in which individuals deliberatively
and in concert with one another define and redefine the meaning that rights hold for them as
members of a political community. The process of interpretative application in this case is
indeed one of collective self-determination. In Sources of the Self, Charles Taylor wrote: “to talk
7 http://www.un.org/en/documents/udhr/, accessed July 23, 2012.
8Jürgen Habermas, “On the Internal Relation of the Rule of Law and Democracy,” European Journal of
Philosophy 3, no. 1 (April 2005): 11-20.
Buchwalter, IPSA 2014, 7
of universal, natural or human rights, is to connect respect of human life and integrity with the
notion of autonomy. It is to conceive people as active cooperators in establishing and ensuring
the respect which is owed them.”9 Yet to link rights to the active cooperation of people in
establishing and ensuring respect is just another way of asserting that rights depend on the
political self-determination of those addressed by those rights. Thus against the view that
democracy and a doctrine of human rights may be at odds with one another, I want to argue here
that rights themselves depends for their validity and concrete meaning on processes of
democratic agency and decision-making. David Held has put the point well in detailing his
account of a “layered cosmopolitanism,” something to which in a general way I return in the last
section of this paper.
On the one hand, the position upholds certain basic egalitarian ideas—those which
emphasize equal worth, equal respect, equal consideration and so on and, on the other, it
acknowledges that the elucidation of their meaning cannot be pursued independently of
an ongoing dialogue in public life. Hence, there can be no adequate institutionalization
of equal rights and duties without a corresponding institutionalization of . . . forms of
public debate, democratic participation, and accountability.10
Of course, a certain circularity is attached to the position here presented. I have argued
that rights depend on democracy, and yet democratic decision-making, reliant as it is on inter
alia rights to speech and participation, itself depends on the presence of rights. Yet this not a
significant problem for the position I am advancing. Certainly, any community, including and
maybe especially a political community, will always rely on some received or presumed norms
of sociation, including those involved in clarifying the norms of sociation themselves. It is the
9Charles Taylor, Sources of Self (Cambridge: Cambridge University Press), 12.
10David Held, “Principles of Cosmopolitan Order,” in The Cosmopolitan Reader, ed. Garrett Brown and
David Held (London: Polity, 2010), 235.
Buchwalter, IPSA 2014, 8
case as well, though, that the specific meaning and validity those norms have for a particular
community are also clarified and determined in the deliberation and collective self-reflection of
members of that community. Legal theorist H.L.A. Hart defined a system of law as a social
order which both depends on certain “primary rules”—the received customs and traditions of a
particular community—and the “secondary rules” though a community explicitly clarifies what
those rules mean, how they can changed, and how they can be adjudicated. 11
In like manner, we
might say that as a general matter rights take a certain priority over democracy while also saying
that, as regards the specific meaning and validity of rights, that democracy takes a certain
priority of rights. There is a circularity here, but, as in the case of Hart, it a productive one
reflective of the relationship of rights and democracy itself.
The merit of the position sketched here can be noted by briefly comparing it to some
notable competing accounts. In his Law of Peoples, Rawls famously rejects any conceptual
connection between human rights and democracy. Rawls does affirm the universality of some
basic “urgent” rights, e.g., freedom from slavery, protection from genocide. Not included among
these, however, is a right to democracy, a state of affairs that distinguishes his position even
from the one codified in the 1948 Universal Declaration of Human Rights. Inclusion of a right to
democracy would be a problem for a conception of international law which, like Rawls’, seeks to
demonstrate tolerance for the world’s peoples and cultures, including those “decent hierarchical
societies” that do not guarantee a universal right to vote or other rights associated with political
equality.12
11
H.L.A. Hart, The Concept of Law 2nd
ed. (Oxford: Oxford University Press, 1994), 79-99. 12
John Rawls, The Law of People (Cambridge MA: Harvard University Press, 1999), 78-81.
Buchwalter, IPSA 2014, 9
This paper does not dispute commitment to principles of plurality and diversity, a
commitment that drive Rawls’ concerns for toleration.13
On the contrary, it fully affirms it. The
processes of legal interpretation empowering a particular of political self-definition are rooted
precisely in a recognition that rights are not abstractly and ahistorically valid, but must always be
fashioned in ways expressive of local social and cultural conditions. True, this interpretive
process depends on forms of democratic self-governance that on Rawls’ account are unavailable
in certain culture and societies. Yet it is not clear that Rawls’ own account is fully intelligible
without some commitment to processes of popular self-determination, a concept he himself
invokes in advancing the idea of a full Society of Peoples.14
Rawls seeks to accommodate the
integrity of diverse cultural traditions, and yet that integrity is arguably not properly affirmed
unless members of that culture are able to participate fully in the processes through which they
can clarify, validate, and endorse those traditions.15
The position sketched here thus challenges any hard and fast distinction between human
rights and democracy. But it is also avoids any overly hasty conjunction of the two concepts. A
version of this position is present, at least implicitly, in the work of Hannah Arendt, who
famously construes the concept of right as a right to have rights.16
To be sure, Arendt fashions
this right as a right to political membership and not a right to democracy per se. Yet inasmuch as
political membership, for her, is a republican conception that finds preeminent expression in
13
Law of Peoples, 59-62. 14
Law of Peoples, 61. 15
A similar point is made by Rainer Forst, who argues that any conflict that might arise in the common
good conception of justice that Rawls assigns to a decent consultation hierarchy would necessitate the
type of right to equal participation he excludes. See his “The Justification of Human Rights and the Basic
Right to Justification: a Reflexive Approach,” in Philosophical Dimensions of Human Rights: Some
Contemporary Views, ed. Claudio Corradetti (Dordrecht NL: Springer Verlag, 2012): 94-96 and generally
81-206. In this essay he advances similar criticism of the related position advanced by Joshua Cohen, “Is
there a Human Right to Democracy?” in The Egalitarian Conscience. Essays in Honour of G.A. Cohen,
ed. C. Christine Sypnowich (Oxford: Oxford University Press, 2006), 226-248. 16
Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973), 296f.
Buchwalter, IPSA 2014, 10
agents acting in concert to shape and define themselves, their relationships, and the public sphere
itself, it does approximate something like a right to democratic self-rule. At the same time, by
linking so closely the idea of rights with that of self-rule, Arendt misses the advantage of a more
dialectical approach. On that approach, we can account for the conjunction of human rights and
democracy even while eschewing any direct identification of rights with political agency. In
this way, we allow, as I think one must, a central place for “negative” liberty rights as well as
“positive” welfare rights—rights that of course do not figure prominently in Arendt’s thought—
and still claim, given the requirements for legal-political interpretation detailed above, that such
rights depend for their validity and concrete meaning on processes of democratic will-formation.
In this sense one might say that the account offered here is more capacious, as it allows for a
connection between human rights and democracy not because but precisely in spite of any
conceptual link between the two.
II.
Against the view that universal human rights and democratic self-government stand in
some opposition, I have argued instead for a type of dialectical mediation, one in which rights
depend for their validity and concrete meaning on processes of contextualization, which in turn
find their most complete expression in forms of democratic self-determination. An apparent
problem with this view, however, is that it may seem to undermine the idea of human rights
itself. As norms pertaining to humanity in general, human rights are assumed to possess
universal status and extension. Yet a view that says that rights have meaning only when
embodied in particular contexts suggests that in real terms rights have no such universal standing
at all but are simply the expression of local circumstances. In this way, rights are deprived not
only of their presumed universality but also their capacity, central to the human rights discourse,
Buchwalter, IPSA 2014, 11
to serve as standards by which to condemn and criticize unjust or abusive practices in particular
settings. Hence, the position outlined so far may seem to promote the relativism that a theory of
universal human rights is meant to contest.
There are many ways in which to respond to this challenge. One could, for instance,
follow American political theorist Amy Gutman, who claims that current state-centric forms of
democratic self-determination provide citizens with otherwise unavailable military, economic
and diplomatic resources to be defend general human rights claims in a world where robust
forms of transnational governance are weak.17
One might follow Will Kymlicka, who asserts
that national self-determination, especially of the sort respectful of individual liberties, it itself a
universal right of all nations.18
One might follow Thomas Pogge, who holds that, in a globally
interconnected world, democratic self-governance is not possible without forging ties with other
communities, which itself entails affirming social relations governed by rights-based norms of
interaction.19
One might also follow Carol Gould, who both challenges a notion of locality that
does not incorporate more than merely “local” considerations and asserts that local self-
determination itself is not fully intelligible without appeal to broader notions of human rights.20
There is much to be said for these various arguments. In what follows, though, I
approach the matter from a somewhat different perspective. In particular, I claim that
accommodation of human rights is entailed by the very process of interpretive appropriation
occasioned by the requirements for contextualization associated with a doctrine of human rights.
The particular point of this argument hinges on the recognition that processes of interpretative
17
“Democratic Citizenship,” in For Love of Country, ed. Josh Cohen (Boston: Beacon Press), 71. 18
Politics in the Vernacular (Oxford: Oxford University Press, 2001). 19
See Kok-Chor Tan, “Nationalism and Cosmopolitanism,” in The Cosmopolitan Reader, 186. 20
Carol C. Gould, “Negotiating the Global and the Local: Situating Transnational Democracy and Human
Rights,” in Democracy in a Global World: Human Rights and Political Participation in the 21st Century,
ed. Deen K. Chatterjee (Lanham MD: Rowman & Littlefield Publishers, 2008), 71-87.
Buchwalter, IPSA 2014, 12
appropriation are also matters of cultural self-interpretation and self-definition. 21
Appreciation of
this point is important from the perspective for a mode of analysis, for which individual self-
understanding is also an intersubjective process depending ideally on achieved relations of
recognition with others. On this account, then, the very process of cultural self-interpretation
contains a context-transcending dimension. On an intersubjective view of the relationship of self
and other, one community can properly engage in processes of self-understanding only to the
degree that it integrates into its own self-understanding the perspectives of others, including the
latter’s perspective on it. For the issue at hand, then, the process by which one culture defines
the meaning of rights in ways relevant to its own traditions at least in principle depends on its
incorporating into that self-understanding the perspectives of other legal traditions and practices
as well. It is thus true that processes of legal hermeneutics require restatement of general norms
in terms of the traditions and practices specific to a particular political community. Yet, far from
entailing a type of relativistic enclavism, this very process has a transcendent dimension, one
reflected both in an openness to other legal-political traditions and a willingness to incorporate
into one’s own self-understanding those of the other. Nor should it be assumed that this
integration of external perspectives undermines local autonomy. Rather, such integration, in
engaging new and different approaches to rights norms, can provide opportunities for new and
expanded modes for democratic empowerment and self-determination. In this sense as well,
21
To forestall misunderstanding, let me note that the appeal to the idea of selfhood in designating a collective is not
meant to suggest that collective are identities in the sense of individual persons, nor is to suggest that such
collectives can be comprehended in terms of the more homogeneous features of an ethnic notion of identity. Such
features may be elements of the notion of peoples espoused by Rawls, yet the concept of “selfhood” employed here
is better understood though a Hegelian inspired model of self-determination, one both constituted through practical
activity and established only through engaging difference and diversity. In this respect the position I advance has
affinities to the recognitively construed notion of collective self-determination employed by Eva Erman in her
account of the politics of international recognition. On the other hand, I dispute her contention that a notion of
collective self-determination must necessarily be demarcated from those of “subjectivity” and “collective identity.”
See Eva Erman, “The Recognitive Practices of Declaring and Constituting Statehood,” International Theory 5, 1
(March 2013): 129-149. I have discussed the viability of a notion of collective identity with a little more detail in
“Honneth, Hegel, and Global Justice,” in Tony Burns and Simon Thompson (eds.), Global Justice and the Politics
of Recognition (Houndmills, Basingstoke,Hampshire: Palgrave MacMillan, 2013), 23-47.
Buchwalter, IPSA 2014, 13
then, there is a more than a merely contingent connection between contextually specific modes
of democratic self-determination and a context-transcending endorsement of principles of right
and justice.
To be sure, such practices of openness are not in great evidence in current American
jurisprudence. But they are increasingly evident in the legal practice and judicial self-
understanding of other countries and states, and notably the European Union. There, not only are
rights claims of citizens in one country increasingly advanced through appeal to supra-national
legal entities, like the European Court of Justice; the legal self-understanding and even the public
culture of individual states are increasingly reshaped through integration of perspectives
resulting from transnational juridical exchange. Global legal developments reveal a “dialectical”
process, one characterized—to use terms employed by Saskia Sassen—by an “endogenizing of
the non-national . . . inside the national,” something that in turn has a “denationalizing” effect on
the legal-political self-understanding of national communities themselves.22
This view has affinities with the above mentioned position of Thomas Pogge, who asserts
that democratic self-governance in an increasingly interconnected world entails a robust account
of universal human rights. Yet there is at least one difference. On his view, democratic self-
determination engages a preexisting and already accepted account of human rights. Especially
under circumstances of increasing global interconnectivity, democratic self-government requires
forging relations with other states and political entities, something that in turn requires
acknowledging and accepting the norms regulating such interaction. The view sketched here,
however, is more emphatically historical. While appeal to a set of already present and
commonly existing shared norms is a part of any social interaction at the global level, the more
22
Saskia Sassen, “Response,” European Journal of Political Theory 6, no. 4 (2007): 436. See also her
“Neither Global nor National: Novel Assemblages of Territory, Authority, and Rights,” Ethics & Global
Politics 1, no. 1-2 (2008): 61-79.
Buchwalter, IPSA 2014, 14
central focus on the present account remains on the legal self-understanding of individual
cultures. It is such understandings that are integrated in processes of mutual recognition. Yet
appreciation of such historicity is no impediment to an emphatic account of universal human
rights. Instead, it simply clarifies its features. On this view, a doctrine of human rights does not
denote a set of norms presumed to possess, in the tradition of rational natural law, some
transcendent status, preexisting cultural and political embodiment. Instead, a doctrine of human
rights is generated and validated in the intersociation and interchange of peoples and persons as
they define and redefine their relations with one another in history. It is one, in particular, tied to
a normative convergence process animated by the activity of peoples and persons (re)adjusting
their legal conceptions and self-conceptions as they forge and maintain relations with other
peoples and persons. In this respect, human rights represent a decidedly intercultural
phenomenon, not the metaphysical one commonly associated with the natural law tradition and
some of its current proponents.23
Following Charles Taylor, we might speak of a doctrine of
human rights as the product and ongoing creation of an overlapping consensus, one achieved,
however, not through theoretical reflection—as in the case of Rawls’ original formulation of this
concept—but in the real interaction of peoples and persons throughout history.24
In this sense we
might more appropriately speak, with Martha Nussbaum, of a “political overlapping
consensus,”25
yet one that is genuinely political and not simply the historical realization of
purportedly essential human capacities presumed to possess universal standing.26
23
See, for instance, James Griffin, who affirms the continuing value of the Enlightenment notion of rights
that “we have simply in virtue of being human.” See his On Human Rights (Oxford: Oxford University
Press, 2008), 13. 24
Charles Taylor, “Conditions of an Unforced Consensus on Human Rights,” in The Politics of Human
Rights, ed. Obrad Savić and Beogradski Krug (London: Verso, 1999), 101-119. 25
Martha Nussbaum, “Capabilities and Human Rights,” Fordham Law Review 66, no, 2:113-147. Cited in
Seyla Benhabib,”Is There a Human Right to Democracy?,” in Corradetti, 200. 26
Here I follow Benhabib, “Is There a Human Right to Democracy?”: 200-204.
Buchwalter, IPSA 2014, 15
To be sure, the language of “consensus” should not mislead. Certainly there is no talk of
a final consensus or even the “fusion of horizons” thematized in hermeneutic theory. Likewise,
Taylor’s talk of an “unforced” consensus on human rights is also not altogether useful in this
context. Any process of historical exchange on rights will always be a matter as much of
confrontation as cooperation, disagreement as agreement. Yet appreciation of the reality of
conflict is not incompatible with development of an increasingly global convergence on rules
and norms of sociation. Indeed, such conflict can even facilitate it. It might be said that any
consensus on human rights is itself the response to experiences of misrecognition and the other
failed processes of human interaction that accompany and perhaps even drive human history.
Referencing Axel Honneth, Jürgen Habermas presents a doctrine of human rights as emerging
“from violent and sometimes even revolutionary struggle for recognition.”27
In the present
context we might invoke this point to suggest war, conflict, strife and other forms of struggle are
to be understood as part of an intercultural learning process, one in which principles of right are
forged in response to historical forms of injustice (Unrecht) and to the modes of misrecognition
with which such injustice is often associated.28
One can thus construe a doctrine of human rights
as the product of a historically generated overlapping consensus, yet one for which consensus not
only does not preclude dissensus but even presupposes it.
III.
The argument I have been advancing in this paper can be further clarified by contrasting
it to a position with which generally it has much in common--that advanced by Seyla Benhabib
27
Habermas, “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” Coarradetti,
73. 28
See Heiner Bielefeldt, “Menschenrechte als interkulturelle Lerngeschichte,” in Philosophie, wozu? ed.
Hans Jörg Sandkühler (Frankfurt: Suhrkamp, 2008), 289-300.
Buchwalter, IPSA 2014, 16
in her book Another Cosmopolitanism,29
which contains her 2004 Tanner Lectures. Attention to
Benhabib’s position is instructive for at least the three following reasons: she also addresses of
the relation of rights and democracy in a global setting, she claims that rights must be
interpretively contextualized through democratic deliberation (she calls this “democratic
iteration”), and she asserts that the nature and meaning of rights claims thus shaped are fashioned
in “bottom-up” modes of political activity she terms “jurisgenerative politics.” Yet there are
important differences in the two positions. These differences focus, among other things, on the
question of the extent to which democratic iteration and jurisgenerative politics can be said to
possess a context-transcending dimension.
In the case of the position I sketch, this context transcending dimension may be
characterized as a form of immanent transcendence. Proceeding from an intersubjective model
of self-identity, I suggest that the very process of collective self-interpretation central to a
particular appropriation of rights norms itself normatively entails an openness to engage and
integrate into one’s own legal-political self-understanding the self-understanding of other
peoples and persons. In this way the process of democratic iteration represents a type of two-
way street. Not only are general principles of right appropriated in ways relevant to the
circumstances of a particular political community; that appropriation is also one which triggers
interactions with other communities, in this way not only engendering richer and more expansive
local understanding of rights but contributing to processes of intercultural dialogue that can
foster a richer, more expansive, and more genuinely global account of universal human rights.
We might say that on this reading jurisgenerative politics is emphatically jurisgenerative,
contributing to the generation and regeneration of the doctrine of universal human rights itself.
29
Seyla Benhabib, Another Cosmopolitanism (Oxford: Oxford University Press, 2006).
Buchwalter, IPSA 2014, 17
For Benhabib, however, context-transcendence has a different dimension. It is not one
immanent to the actual process of democratic iteration itself, but instead is stipulated through an
account of the nature of rights themselves, one whose very assertion details, alternatively,
context immanent and context transcending dimensions. On this view rights reference on the
one hand perspectives we adopt that result from obligations associated with membership in
bounded communities and on the other hand the moral perspective we must adopt as human
beings simpliciter.30
On this view rights do indeed articulate a “mediation,”31
as Benhabib puts
it, between universal and particular or as she calls it the moral and the political. Yet in terms of
democratic iteration the mediation is largely external or contingent, not constitutive or, we might
say, truly jurisgenerative. Here iteration takes the form of the particular application or
appropriation of norms whose general nature and validity remain presumed. Iterative
appropriation is not itself a process that contributes to the articulation or rearticulation of the
general discourse on universal human rights itself.
This is not to say, as has Benhabib critics Bonnie Honig, the logic of democratic iteration
is one of subsumption, where local practices are simply subordinated to a logic of universal
norms.32
At issue is not the mere subordination of the political to the moral. Against Honig,
Benhabib asserts that the process by which received norms are appropriated especially by new
political actors is one which can “open new worlds and create new meanings.”33
This is an
important and compelling feature of the practice of democratic iteration. Still, it is not clear how
this addresses the issue of a mediation of moral and the political perspectives, those we possess
as members of a political community and those we may possess in virtue of our humanity. As
30
Another Cosmopolitanism, 18-9. 31
Another Cosmopolitanism, 158. 32
Bonnie Honig, “Another Cosmopolitanism? Law and Politics in the New Europe,” in Another Cosmopolitanism,
102-127. 33
Another Cosmopolitanism, 159.
Buchwalter, IPSA 2014, 18
Benhabib herself asserts, the new worlds that are opened and the new meanings that are created
are those pertaining to membership in a particular political community. It is not clear how these
help with the general discourse on human rights, which pertains to norms that, as she herself puts
it, are “cross-border in scope.”34
Honig is thus incorrect to assert that Benhabib’s account of
iteration reflects a logic of subsumption; she does not seem to be incorrect, however, in
characterizing Benhabib’s iterative practices as those that entail changes only “in the subject’s
relation to universalistic categories, not the categories themselves.”35
Consider Benhabib’s own example. Focusing on “l’affaire du foulard,” she notes how
the exclusion in France of scarf-wearing Muslim girls triggered a significant reassessment of
rights to freedom of religion as well as general issue of the relationship of church and state. This
represents a good example of the revisioning of rights achieved through democratic iteration and
jurisgenerative politics. At the same time, it is telling that this process of reassessment and
rearticulation of rights is one that for Benhabib occurs within the confines of French public
sphere. She does not present as one that leads to a context-transcending, “transnational”
reassessment or revaluation either of gender rights or norms of human rights generally.36
For her part, Benhabib would likely dismiss an in effort to account of universal rights to
via historical processes of intercultural learning as a conflation of conditions of facticity and
validity. This is how she criticizes the neo-Wittgensteinian Jeremy Waldron, who presents
human rights norms as emerging from everyday practices of human interaction. 37
And it is true
that Waldron presents too rosy a picture of the role played by trade and commerce in the
emergence of a doctrine of universal human rights, just as he minimizes the countervailing role
34
Another Cosmopolitanism, 149. 35
Honig, “Another Cosmopolitanism?” 111. 36
Another Cosmopolitanism, 51-61. 37
Another Cosmopolitanism, 154f.
Buchwalter, IPSA 2014, 19
played by conflict, crises, and catastrophes. Yet if one should not conflate the conditions of
facticity and validity, politics and morality, one should not artificially separate the two, either.
Instead, they should be regarded as mutually implicative and co-conditioning. Thus certainly
interactions and struggles of peoples and persons involved in intercultural learning process
should be answerable to certain basic norms governing their modes of sociation. Yet for those
norms to take the form of a binding and globally authoritative doctrine of human rights, they
should also be construed as the product historical processes by which the world persons and
peoples interactively, reflexively, and often in the face of great tragedy, clarify, establish,
endorse, and accept the conditions governing of their sociation. This, I submit, is the view that
best accords with an account of human rights attentive to the requirement of democratic iteration
and sustained by modes of jurisgenerative politics. It is also one that helps clarify the idea of an
intercultural theory of universal human rights.
IV.
Several implications flow from the account of the relationship of human rights,
democracy, and interculturalism I have advanced so far in this paper. For one thing, it clarifies
the nature of a global “human rights regime.” On this view such a regime is not simply a set of
agreements and covenants, nor is it even a “consensus” on those agreements. A global human
rights regime on this account is characterized instead by the ongoing and never-ending effort on
the part of members of the world community to articulate and rearticulate the rules, norms, and
values that govern their sociation. Rooted in recognitive processes where general norms are
refashioned to express local practices, just as these practices are modified to express wider
principles,38
a human rights regime subsists in the ongoing process of diverse and differentially
situated persons and peoples defining and redefining the conditions of their commonality. In this
38
See Hegel, PR §339.
Buchwalter, IPSA 2014, 20
sense, we might follow Richard Rorty in speaking of a global “human rights culture,” one
characterized, however, just by the activity of world’s persons and peoples clarifying the
meaning and nature of rights themselves.39
A second consideration bears on the nature of the universality associated with a doctrine
of universal human rights. On the view presented here, human rights are universal not in the
sense that they express some essential feature of human nature. Instead, universality denotes the
historical process of the world’s persons and people, in the face of continuing contestation,
gradually coming to some agreement, revisable though it may be, on the shared norms and
principles of their sociation. As Benhabib writes, universality consists “in experiences of
establishing commonality across diversity, conflict, divide, and struggle.”40
In this sense the
adoption of the various human rights documents over the past 60 years, not just the 1948
Universal Declaration of Human Rights itself but the two 1976 Covenants as well, give voice to
a notion of universality defined through the legal and political process a global community
clarifying the conditions of its sociation. Earlier Kant, in Perpetual Peace, invoked an
intersocietal learning process of this sort to characterize the emerging acceptance of the notion
that “the violation of right in one part of the world is felt in all.”
At a more abstract level a similar point can be made as regards the idea of impartial
reasoning, certainly an element in any clarification and validation of an account of universal
human rights. In this context, impartial reasoning specifies rules and principle that can be
universally shared and in ways that deny special standing to any particular individual, group, or
country. In the words of American ethicist Thomas Hill, impartiality is the claim that “principles
must be defensible to anyone looking at the matter apart from his or her special attachments,
39
See Hauke Brunkhorst, “Dialectical Snares: Human Rights and Democracy in the World Society,” in
Coradetti, 221. 40
“Is There a Human Right to Democracy?” Corradetti, 198.
Buchwalter, IPSA 2014, 21
from a larger human perspective.” Thomas Scanlon has argued similarly, asserting that we
should ask of any rule or principle whether or not it could be reasonably rejected by someone
motivated by “the desire to find principles which others similarly motivated could not reasonably
reject.”41
Yet impartial reasoning, certainly in the moral-political context, is not just a theoretical
exercise. As David Held has emphasized, invoking Hannah Arendt, it is a “social activity” as
well. Here such reasoning is directed to “an anticipated agreement with all those whose diverse
circumstances affect the realization of a people’s equal interest in self-determination and
autonomy.”42
From this perspective as well, then, specification and validation of universally
applicable principles of human rights is tied, however hypothetically, to intersubjective
conditions for establishing actual agreements on those principles by all subject to them.
But the preceding considerations also shed important light on the relationship of
democracy and human rights. One issue is the idea of global democracy itself. This is a topic
much discussed in recent years, and I can’t begin to do it justice here. Instead, let me note, rather
schematically, just a couple of points. First, the process of intersocial exchange described here,
inasmuch as it does serve to further entrench human rights world-wide, variously facilitates
opportunities for more and more individuals to participate in decision-making processes
concerning actions and policies that affect them.43
Second, an interculturally construed
understanding of the notion of human rights, forged as it is in the ongoing dialectic of universal
and particular/self and other, facilitates the mediation of individual and community required of
genuinely collective and, indeed, genuinely global processes of political self-determination.
41
The definitions by Hill and Scanlon are taken from Brian Barry, “International Society from a
Cosmopolitan Perspective,” in Brown and Held, 101-f. 42
Held, “Principles of Cosmopolitan Order,” 239. 43
Lorella Cedroni has emphasized the centrality of a ramified account of human rights for what she calls
“democracy-building processes.” See “Rights in Progress. The Politics of Rights and Democracy-
Building Processes in Comparative Perspective,” in Corradetti, 253-263.
Buchwalter, IPSA 2014, 22
Third, and perhaps most significantly in this context, the process of intercultural learning
described here also demonstrates the degree to which respective attention to rights and
democracy can be mutually enforcing and mutually enhancing. On the one hand, a global human
rights community, devoted as it is to reflection by its members on the conditions of their
sociation, itself engages in and gives expression to process of self-determination. On the other
hand, such processes of self-determination, precisely because they are devoted to fostering the
conditions for its members’ sociation and shared existence, contribute to the further clarification,
validation, and realization of human rights world-wide. Especially in this regard particularly
human rights and democracy are co-conditioning and mutually implicative.
Yet we can account for the relationship between rights and democracy under global
conditions even without appealing to a notion of cosmopolitan governance. Such a relationship
is already discernible in the transnational interactions of diverse persons and people world-wide.
As we have seen, forms of democratic self-definition, given an intersubjective understanding of
self-identity, depend on forging relations of recognition with other persons and peoples. Yet
such modes of recognition themselves depends on relations of respect and reciprocity, those that
both presuppose and affirm acceptance of basic rights and duties. A concept of democratic self-
determination thus affirms a transnational conception of rights. Conversely, rights themselves
depend on modes of popular self-determination. As suggested, rights-claims express relations of
reciprocity and mutual recognition. Yet reciprocal recognition both depends upon and fosters the
autonomous agency of the individual parties involved. At the political level such autonomous
agency is expressed in processes of democratic self-determination. In this sense, then,
realization of the idea of human rights depends on cultivating possibilities for democratic well-
Buchwalter, IPSA 2014, 23
formation. Here, too, an intercultural understanding of the generation and validation of universal
norms affirms the co-primordiality and mutual dependence of rights and democracy.44
V.
This paper has sought to promote a notion of interculturalism that contributes to the
further realization of both human rights and democracy under conditions of globality. Yet the
proposition that globalization generally can contribute to further realizing democracy and human
rights is not especially plausible today. Indeed, much evidence suggests just the opposite. At
least in the current constellation, globalization is largely defined by neo-liberal market
mechanisms that enunciate a truncated notion of human rights and empower multinational
entities increasingly immune from traditional democratic oversight and accountability.
Similarly, the international organizations that supposedly regulate global commerce (e.g., the
IMF, WTO, and European Central Bank) are themselves largely committed both to a neo-liberal
orthodoxy and to decision-making procedures significantly shielded from public scrutiny and
agenda-setting. Far from empowering rights and democracy world-wide, global trends today
suggest a growing gap between “decision-makers and decision-takers,”45
one that makes talk of
realizing rights and democracy globally an increasingly dubious and even delusionary
aspiration.46
At the same time, however, it is possible—and here I employ another classically
Hegelian motif—that the very problem may contain seeds for its resolution. One feature of
44
On this point see “Hegel, Global Justice, and the Logic of Recognition,” Chapter 11 of my book
Dialectics, Politics, and the Contemporary Value of Hegel’s Practical Philosophy (New York & London:
Routledge, 2011), 214-35. 45
See David Held, “Democracy, the Nation-State, and the Global System,” in Models of Democracy, 3rd
ed. (Cambridge: Polity, 2006), 290-311. 46
For a critique of this view, see Charles R. Beitz, “Global Political Justice and the ‘Democratic Deficit,’”
in Reasons and Recognition: Essays on the Philosophy of T.M. Scanlon, ed. R. Jay Wallace, Rahul
Kumar, and Samuel Freeman (Oxford: Oxford University Press, 2011).
Buchwalter, IPSA 2014, 24
contemporary capitalism is indeed the emergence of transnational and multinational corporations
that increasingly undermine the authority of traditional state-centric forms of political power.
Yet this very undermining process may itself create new opportunities for democratic
organization, human rights, and their relationship. Thus, by way of conclusion, let me make
three quick points. All bear on how the phenomenon of global governance without global
government can assist in reconciling human rights and democracy under conditions of globality.
The first regards democracy. With the decline in power of sovereign states, one can no
longer presume a preexisting site for democratic deliberation and decision-making. Instead, the
site for such action may now be seen as the type of “empty place” that Ernesto Laclau and
Chantal Mouffe claimed are features of modes of governance no longer embodied in the
personage of a sovereign subject.47
Yet far from a limitation, this may actually be a positive
feature of current constellations. No longer able to rely on preexisting political structures, a
transnational citizenry is now more compelled to forge those relations and affiliations
themselves.48
Included here are inter alia cross-border coalitions of governmental and semi-
governmental institutions, networks of non-governmental organizations and associations, non-
territorial movements and interests groups, and transnational citizens’ initiatives. Current modes
of capitalism and neo-liberal globalization may call into question the conditions for democracy
on a global scale, but it also created the conditions for arguably more comprehensive and robust
forms of democratic engagement, those where the modes and conditions of democratic
engagement themselves increasingly become objects of democratic engagement.
47
Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Toward a Radical Democratic
Politics, trans. Winston Moore and Paul Cammack (London: Verso, 1985). 48
See James Bohman, “Toward a Critical Theory of Globalization: Democratic Practice and
Multiperspectival Theory,” Globalizing Critical Theory (Lanham MD: Rowman and Littlefield, 2004),
48-71.
Buchwalter, IPSA 2014, 25
A similar point can also be made regarding the idea of human rights. Thus, the
diminution in the power of centralized state structure can have the effect of empowering a
broader global public sphere invested with the responsibility both to call attention to human
rights abuses and to provide fresh perspectives in advancing the cause of human rights. In this
respect scholars have noted the role played by informal networks of observers in assisting the EU
Fundamental Rights Agency in conjunction with the 2000 protests in reaction to inclusion of the
allegedly xenophobic Freedom Party in the Austrian government.49
In a different vein, others
call attention to how Non-Governmental Organizations (NGOs) serve to broaden an
understanding of human rights to include women’s rights.50
Both are examples how the goal of
protecting and fostering human rights can actually be aided by networks of civil society actors
who emerge in response to the vacuum potentially resulting from the loss of traditional modes of
state-centric power.
Finally, the emergence of a global public sphere can itself throw new light on the
dialectical relationship of human rights and democracy itself under current conditions.51
As just
suggested, one function of a global public sphere in a postnational order is increasingly to
monitor, protect, and even enforce human rights. Yet such a global public sphere itself depends
on processes by which all those affected, however exactly this principle is to be understood,
might have some say in public decision-making. In this regard, fostering human rights depends
on democratic participation. Yet such participation itself entails a complex relation to human
49
See Joshua Cohen and Charles F. Sabel, “Global Democracy?” International Law and Politics 37/2005:
763-97. 50
Margaret Moore, “Globalization and Democratization: Institutional Design for Global Institutions,” Journal of
Social Philosophy 37/1 (Spring 2006): 32. 51
For one account of the positive potential of a global publis sphere, see Nigel Dower, “Situating Global
Citizenship,” in Randall D. Germain & Michael Kenny (eds.), The Idea of Global Civil Society: Politics and Ethics
in a Globalizing Era. Routledge (2005). For one more sensitive to its aporias, see Nancy Fraser “Transnationalizing
the Public Sphere,” Theory, Culture and Society, 24 (2007): 7-30.
Buchwalter, IPSA 2014, 26
rights. On the one hand, participation depends on a rich account of human rights—e.g., not only
civil rights of speech and political rights of participation but presumably some manner of social-
economic rights as well. On the other hand, and especially relevant for the arguments advanced
in this paper, participation serves to articulates and validate an account of universal human
rights. One of the features of a global public sphere is precisely that provides a forum in which
its members attend to the conditions of their sociation, above all the rights and duties pertaining
to membership in the global public sphere itself. At the global level, however, such attention
assumes a decidedly universal dimension, where “universality” is understood in line with the
account of global interculturality presented—in the interactive experiences of peoples and
persons establishing commonality across diversity. It is with regard to this socio-historical
account of universality that a global public sphere can be said to play a distinctive role in
detailing how democracy and universal human rights may be conjoined under conditions of
globality. And at the risk of pollyannaism, we might say that this conjunction is conceivable not
only in spite but perhaps even because of the forces of neo-liberal globalization that appear to be
marshalled against it.