Inclusion of the Other

Studies in Political Theory

Jürgen Habermas, Ciaran Cronin, Pablo De Greiff

• Publisher: Polity
• Year: 2015
• ISBN:
  9780745694351
• Edition: 1
• Topic: Philosophy
• Subtopic: Social Philosophy

The Inclusion of the Other contains Habermas's most recent work in political theory and political philosophy. Here Habermas picks up some of the central themes of Between Facts and Norms and elaborates them in relation to current political debates.

One of the distinctive features of Habermas's work has been its approach to the problem of political legitimacy through a sustained reflection on the dual legitimating and regulating function of modern legal systems. Extending his discourse theory of normative validity to the legal-political domain, Habermas has defended a proceduralist conception of deliberative democracy in which the burden of legitimating state power is borne by informal and legally institutionalized processes of political deliberation. Its guiding intuition is the radical democratic idea that there is an internal relation between the rule of law and popular sovereignty. In these essays he brings this discursive and proceduralist analysis of political legitimacy to bear on such urgent contemporary issues as the enduring legacy of the welfare state, the future of the nation state, and the prospects of a global politics of human rights.

This book will be essential reading for students and academics in sociology and social theory, politics and political theory, philosophy and the social sciences generally.

IV

Human Rights: Global and Internal

7

Kant’s Idea of Perpetual Peace: At Two Hundred Years’ Historical Remove

For Kant, the “perpetual peace” invoked by the Abbé St. Pierre is an ideal that should lend the idea of a cosmopolitan order attractiveness and intuitive force. With this Kant introduces a third dimension into his legal theory: cosmopolitan law (das Recht der Weltbürger), an innovation with far-reaching implications, takes its place alongside state law and international law. The republican order of a democratic state founded on human rights calls for something more than the weak regulation of belligerent international relations by international law. Rather, the legal principles implemented within single states should lead ultimately to a global legal order that unites all peoples and abolishes war: “All forms of the state are based on the idea of a constitution which is compatible with the natural rights of man, so that those who obey the law should also act as a unified body of legislators. And if we accordingly think of the commonwealth in terms of concepts of pure reason, it may be called a Platonic ideal (respublica noumenon), which is not an empty figment of the imagination, but the eternal norm of all civil constitutions whatsoever, and a means of ending all wars.”¹ The conclusion—”ending all wars”—is surprising. It points to the fact that the norms of international law that regulate war and peace are only provisionally valid, that is, they are valid only until the process of legal pacification for which Kant prepares the ground with his work “Perpetual Peace” has brought about a cosmopolitan order and thereby abolished war.

Of course, Kant developed this idea within the conceptual framework of social contract theory (Vernunftrecht) and against the background of the specific historical experiences of his time. Both now separate us from Kant. With the undeserved hindsight of later generations, we can now see that his proposals are beset with conceptual difficulties and that they are no longer consonant with our historical experiences. Hence in the following I will first sketch the premises that form Kant’s starting point. They affect all three steps of his argument: the definition of the goal, perpetual peace; the description of the actual project, the appropriate legal form of a federation of nations; and, finally, the solution in the philosophy of history to the problem posed by this project, the gradual realization of the idea of a cosmopolitan order (I). Following this, I will examine how Kant’s idea stands up in light of the historical experience of the last two hundred years (II) and how it must be reformulated in light of the contemporary global situation (III). The present alternative to regression to the state of nature which has been proposed by legal scholars, political scientists, and philosophers, namely the idea of a cosmopolitan democracy,² has provoked strong objections. But these objections to the universalism of cosmopolitan law and a politics of human rights lose their force once we appropriately differentiate between law and morality in the concept of human rights (IV). This differentiation also provides the key to a metacriticism of Carl Schmitt’s influential arguments against the humanistic foundation of legal pacifism (V).

I

Kant defines the goal of the sought-for “lawful condition” among peoples negatively, as the abolition of war: “there is to be no war;” the “heinous waging of war” must come to an end.³ Kant justifies the desirability of such a peace in reference to the evils of the kind of warfare being waged by the princes of Europe at that time with the aid of their mercenary armies. Kant does not accord primary importance among these evils to the victims of war, but instead to the “horrors of violence” and the “devastation,” and above all, to the plundering and impoverishment of the country resulting from the considerable burdens of debt that arise from war, and he mentions as possible consequences of war subjugation, the loss of liberty, and foreign domination. In addition, there is the corruption of morals that occurs when subjects are instigated by the government to commit such criminal acts as spying and spreading false information or to commit acts of treachery, for example, as snipers or assassins. Here we encounter the panorama of limited war, which became institutionalized as a legitimate means of solving conflicts via international law in the system of the balance of powers after the Peace of Westphalia of 1648. The outcome of such wars defines the state of peace. And just as a specific peace treaty ends the evil of a particular war, so the peace alliance is now supposed to “put an end to war forever” and abolish the evils of war as such. This is what is meant by “perpetual peace.” But the peace in question is as limited as the war from which it arises.

Kant had in mind local wars between individual states or alliances; he had no inkling of world wars. He was thinking of wars between regimes and states, not yet of anything like ethnic and civil wars; of technically limited wars that still allowed for a distinction between combatants and the civilian population, not yet of anything like guerrilla warfare and terror bombing; of wars with politically defined aims, not yet of ideologically motivated wars of annihilation and expulsion.⁴ Given the premise of local wars and limited warfare, the normative scope of international law extends only to rules for the conduct of war and for the regulation of peace. The right “to go to war,” the so-called ius ad bellum, which has priority over right “in war” and “after war,” is, strictly speaking, no right at all, for it merely expresses the arbitrary freedom that is accorded the subjects of international law in the state of nature, that is, in the lawless condition of their external relations.⁵ The only norms of criminal law that can intervene in this lawless condition relate to the conduct of war itself, and even then they are only enforced by the courts of the states waging war. War crimes are crimes committed in war. Only since wars have become unlimited, and the concept of peace has undergone a corresponding extension, does the idea arise that war itself—in the form of a war of aggression—is a crime that deserves to be outlawed and punished. But Kant could not yet conceive of such a crime of war.

While perpetual peace is an important characteristic feature of a cosmopolitan order, it is still only a symptom of the latter. Kant must still solve the problem of how such a condition should be conceptualized from the point of view of law. He must specify what differentiates cosmopolitan law from classical international law—in other words, what is specific to ius cosmopoliticum.

Whereas international law, like all law in the state of nature, is only provisionally valid, cosmopolitan law would resemble state-sanctioned civil law in definitively bringing the state of nature to an end. Therefore, when describing the transition to the cosmopolitan order, Kant repeatedly draws on the analogy with the original social contract, that is, with that exit from the state of nature which establishes a particular state and makes it possible for citizens to live in legally secured freedom. Just as the social contract brought the state of nature between self-reliant individuals to an end, so too the state of nature between belligerent states should come to an end. In an essay published two years prior to “Perpetual Peace,” Kant draws strict parallels between these two processes. Here, too, he mentions the destruction of welfare and the loss of freedom as the greatest evils and then continues: “And there is no possible way of counteracting this except through the constitution of a legal order among peoples [Völkerrecht], based upon enforceable public laws to which each state must submit (by analogy with the civil or political legal order among individual human beings). For a permanent universal peace by means of a so-called European balance of power is a pure illusion.”⁶ Kant speaks here of a “universal state [Völkerstaat] to whose power all the individual states would voluntarily submit.” But just two years later Kant carefully distinguishes between “a federation of nations” (Völkerbund) and “a state of all peoples” (Völkerstaat).

The order henceforth described as “cosmopolitan” is supposed to differ from an internal legal order by virtue of the fact that states, unlike individual citizens, do not submit themselves to the public coercive laws of a superordinate power but retain their independence. The envisaged federation of free states which renounce war once and for all in their external relations is supposed to leave intact the sovereignty of its members. The permanently associated states preserve their supreme constitutional authority and are not subsumed into a world republic that would be endowed with all of the distinguishing features of a state. In place of the “positive idea of a world republic” is put the “negative substitute of a . . . federation likely to prevent war.”⁷ This federation is supposed to proceed from sovereign agreements under international law, which are now no longer understood on the model of the social contract. For these treaties do not establish any actionable legal rights of the parties against one another but only unite them into a permanent alliance, an “enduring and voluntary association.” Thus this act of association into a federation of nations goes beyond the weak binding power of international law only in respect of its “permanence.” Kant compares the federation of nations to a “permanent congress of states.”⁸

The contradictory character of this construction is readily apparent. For in another passage Kant asserts that “By a congress is here understood only a voluntary coalition of different states which can be dissolved at any time, not a union (like that of the American states) which is based on a constitution. . ..”⁹ Just how the permanence of this union, on which a “civilized” resolution of international conflict depends, can be guaranteed without the legally binding character of an institution analogous to a state constitution Kant never explains. On the one hand, he wants to preserve the sovereignty of its members by means of the proviso that they may dissolve their compact; this is what suggests the comparison with congresses and voluntary associations. On the other hand, the federation that founds a permanent peace is supposed to differ from merely transitory alliances in that its members feel obligated to subordinate their own raison d’état to the jointly declared goal of “not resolving their disputes by war, but by a process analogous to a court of law.” Without this element of obligation, the peaceful congress of nations cannot become “permanent,” nor can its voluntary association become “enduring;” instead, it remains hostage to an unstable constellation of interests and will inevitably fall apart, much as the League of Nations would years later. liant cannot have legal obligation in mind here, since he does not conceive of the federation of nations as an organization with common institutions that could acquire the characteristics of a state and thereby obtain coercive authority. Hence he must rely exclusively on each government’s own raora/self-obligation. But such trust is scarcely reconcilable with Kant’s own soberly realistic descriptions of the politics of his time.

Kant is very much aware of this problem but nevertheless glosses over it with a mere appeal to reason: “If (a) state says: There shall be no war between myself and other states, although I do not recognize any supreme legislative power which could secure my rights and whose rights I should in turn secure,’ it is impossible to understand what justification I can have for placing any confidence in my rights, unless I can rely on some substitute for the union of civil society, i.e. on a free federation. If the concept of international right is to have any meaning at all, reason must necessarily couple it with a federation of this kind.”¹⁰ However, this affirmation leaves open the decisive question, namely, how the permanent self-obligation of states that retain their sovereignty can be ensured. Note that this does not yet concern the empirical issue of how the idea can be approximated, but rather how the idea itself is to be conceptualized. If the union of peoples is to be a legal, rather than a moral, arrangement, then it may not lack any of those characteristics of a “good political constitution” that Kant enumerates a couple of pages later—qualities of the constitution of a state that does not need to rely on “the good moral education” of its members, but ideally has the strength to foster such an education in turn.

Viewed historically, Kant’s reticence concerning the project of a constitutionally organized community of nations was certainly realistic. The constitutional state which had only recently emerged from the American and French revolutions was still the exception rather than the rule. The balance of powers operated on the assumption that only sovereign states could be subjects of international law. Under these conditions, external sovereignty designates the capacity of a state to maintain its independence and hence the integrity of its borders in the international arena, if necessary by military force. Internal sovereignty refers to its capacity, based on the monopoly of the means of violence, to maintain law and order in its own territory by means of administrative power and positive law. Reason of state is defined in accordance with the principles of a power politics, which include engagement in prudent, limited wars, where domestic policy is subordinated to foreign policy. The clear separation between foreign and domestic policy rests on a narrow and politically sharply defined concept of power which is measured in the final analysis by the control over the reserve force of the military and the police.

As long as this classical-modern world of nation-states defines the horizon of thought, any conception of a cosmopolitan constitution that does not respect the sovereignty of member states necessarily seems unrealistic. This also explains why the possibility of a unification of peoples under the hegemony of a powerful state, which Kant evokes with the image of a “universal monarchy,”¹¹ does not represent a viable alternative: on the foregoing premises, such a ruling power would inevitably bring about “the most fearful despotism.”¹² Because Kant does not transcend the horizon of his time, it is of course equally difficult for him to believe in any moral motivation for creating and maintaining a federation between free states dedicated to power politics. Kant sketches as a solution to this problem a philosophy of history with a cosmopolitan purpose which is supposed to lend plausibility, through a hidden “purpose of nature,” to the improbable “agreement between politics and morality.”

II

Kant identifies three basic quasi-natural tendencies that complement reason and are supposed to explain why a federation of nations could be in the enlightened self-interest of each state: (1) the peaceful character of republics, (2) the power of international trade to forge an association, and (3) the function of the political public sphere. Reviewing these arguments in a historical light is instructive in two respects. On the one hand their manifest content has been falsified by developments in the nineteenth and twentieth centuries. But on the other hand they direct our attention to historical developments that exhibit a dialectical tendency. Whereas these developments reveal that the premises on which Kant based his theory, shaped as they were by conditions as they appeared at the close of the eighteenth century, are no longer valid, they nevertheless also support the claim that a conception of cosmopolitan law appropriately reformulated for contemporary conditions might well meet with a supportive constellation of forces, depending on how we ourselves interpret the changed circumstances of the late twentieth century.

(1) Kant’s first argument claims that international relations lose their belligerent character to the extent that the republican form of government prevails within states, because it is in the interest of the populations of constitutional states to compel their governments to pursue peaceful policies: “If . . . the consent of the citizens is required to decide whether or not war is to be declared, it is very natural that they will have great hesitation in embarking on so dangerous an enterprise. For this would mean calling down on themselves all the miseries of war. . . ,”¹³ This optimistic assumption has been refuted by the mobilizing power of an idea whose ambivalence Kant could not have recognized in 1795, that is, the idea of the nation. Nationalism was certainly a vehicle for the desired transformation of subordinated subjects into active citizens who identify with their state. However, it did not make the national state any more peace-loving than its predecessor, the dynastic absolutist state.¹⁴ For from the perspective of nationalist movements the classical self-assertion of the sovereign state takes on the connotations of national independence. As a consequence the republican convictions of citizens were supposed to prove themselves in their willingness to fight and die for Volk and fatherland. Kant justifiably regarded the mercenary armies of his day as instruments for “the use of human beings as mere machines . . . in the hands of someone else” and called for the establishment of the citizen militia; but he could not foresee that the mass mobilization of recruits inflamed by nationalist passions would usher in an age of devastating, ideologically unlimited wars of liberation.

At the same time, the idea that a democratic order tends to foster nonbelligerent conduct toward other states is not completely false. Historical and statistical research shows that, although states with democratic constitutions do not necessarily conduct fewer wars than authoritarian regimes (of whatever kind), they are less likely to resort to force in their relations with one another. This finding can be given an interesting interpretation.¹⁵ To the extent that the universalist value-orientations of a population accustomed to free institutions also shape foreign policy, a republican polity does not behave more peaceably all told, but the wars it conducts have a different character. The foreign policy of the state changes in tandem with the motivation of its citizenry. The deployment of military force is no longer exclusively determined by an essentially particularistic raison d’état but also by the desire to foster the international spread of nonauthoritarian states and governments. But if value preferences transcend the preservation of national interests to include the implementation of democracy and human rights, then the conditions under which the international balance of powers operates undergo a change.

(2) The subsequent history which we now look back on has dealt in a similarly dialectical way with the second argument. Kant was mistaken about the immediate situation, but indirectly he also turns out to have been correct. For Kant detected in the growing interdependence of societies generated by the exchange of information, persons, and commodities, but especially by the expansion of trade, a tendency favorable to the peaceful unification of peoples.¹⁶ Trade relations expanded in the early modern period into the dense network of a world market, which according to Kant grounds an interest in securing peaceful relations through “mutual self-interest”: “For the spirit of commerce sooner or later takes hold of every people, and it cannot exist side by side with war. And of all the powers (or means) at the disposal of the power of the state, financial power can probably be relied on most. Thus states find themselves compelled to promote the noble cause of peace.”¹⁷ However, Kant had not yet learned—as Hegel soon would from his reading of the English economists¹⁸—that capitalist development would lead to a conflict between social classes that threatens in two ways the peace and the presumptive peacefulness of politically liberal societies in particular. Kant did not foresee that the social tensions that initially intensify in the course of accelerating capitalist industrialization would both encumber domestic politics with class stru...

Table of contents

• Cover
• Contents
• Title Page
• Copyright
• Editors’ Introduction
• Translator’s Note
• Preface
• I How Rational Is the Authority of the Ought?
• II Political Liberalism: A Debate with John Rawls
• III Is There a Future for the Nation-State?
• IV Human Rights: Global and Internal
• V What Is Meant by “Deliberative Politics”?
• Notes
• Index