Rainer Forst

The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach*

Human Rights are a complex phenomenon, comprising an array of different aspects. They have a moral life, expressing urgent human concerns and claims that must not be violated or ignored; they also have a legal life, being enshrined in national constitutions and in international declarations; and they have a political life, expressing standards of basic political legitimacy. For a comprehensive philosophical account of human rights, all of these aspects are essential and need to be integrated. Yet when doing so one must not overlook the central social-political aspect of human rights, namely that when and where they have been claimed, it has been because the individuals concerned suffered from and protested against forms of oppression and/or exploitation that they believed disregarded their dignity as human beings. Human rights are first and foremost weapons in combating certain evils that human beings inflict upon one another; they emphasize standards of treatment that no human being could justifiably deny to others. My thesis in what follows is that if this is correct, it implies – reflexively speaking – that one claim underlies all human rights, namely human beings’ claim to be respected as agents who have the right not to be subjected to certain actions or institutional norms that cannot be adequately justified to them. In other words, human rights have a common ground in one basic moral right, the right to justification.

The Rule of Reasons. Three Models of Deliberative Democracy

In this paper, the author contrasts three models of deliberative democracy: a liberal one, a communitarian one, and an alternative to both. Rather than understanding deliberative democracy as the rule of principles of justice or of communal values, the third model conceives of it as the “rule of reasons.” On the basis of a discussion of seven components of an “ethos of democracy” (the cognitive capacities of citizens, political virtues, the cultural, institutional and material conditions of democracy, political legitimacy, and the “ground” of democracy), the third view, which is based on a theory of moral and political justification, emerges as superior.

Towards a Critical Theory of Transnational Justice

This paper argues for a conception of transnational justice that provides an alternative to globalist and statist views. In light of an analysis of the transnational context of justice, a critical theory is suggested that addresses the multiple relations of injustice and domination to be found in this context. Based on a universal, individual right to reciprocal and general justification, this theory argues for justifiable social and political relations both within and between states. In both of these contexts, it distinguishes between minimal and maximal justice and stresses the interdependence of domestic and transnational justice. On both levels, minimal justice calls for a discursive structure of justification, whereas maximal justice implies a fully justified basic social structure.

The Basic Right to Justification: Towards a Constructivist Conception of Human Rights

In contemporary debates on the concept of human rights, one frequently encounters the critique that this is not only a specifically Western concept, but also a tool which Western, capitalist states use to politically and culturally dominate other societies. The first thesis concerns the historical genesis and normative validity of human rights, while the second touches on political issues of their interpretation and application. Concerning the second thesis, one needs to take a closer look at the critique, especially at who raises it and against which policy or institution it is directed. It may turn out that such accusations are justified and that, at times, the rhetoric of human rights does serve to veil the political or economic aims of states or international parties who wish to achieve or maintain influence and dominance. But it is just as possible that this critique is unjustified and that the accusation of “neocolonialism” is employed ideologically, in order to conceal governments’ attempts to defend their own political power. Demands that particular values and traditions be observed and corresponding demands that cultural and political autonomy be respected may be pretexts for unimpededly dominating and oppressing segments of one’s own populace or neighboring states. In light of this situation, it is important to see that one walks into a trap if one believes that one must decide the matter generally and unequivocally in favor of one or the other position. For, in any given case, one or the other or even both critiques may be sound. And in the event that both critiques are appropriate, the dichotomous perception of reality characteristic of the postcolonial era threatens to deny the interests of those who raise the demand for human rights against those who hold power in their own state, without sharing the interests or political and economic ideas of Western states. In any case, one makes the situation too easy if one regards a priori every single critique of human rights as a disguised attempt to claim freedom to oppress instead of freedom from oppression. And, regardless of whether it is justified in a given situation, the discussion of political strategies and rhetoric hardly affects the first, more fundamental thesis, which states that human rights are a culturally specific, Western invention and ipso facto cannot be globally valid. Now, it is clearly indisputable that the concept of individual rights human beings have as human beings arose in the context of the secularization and modernization of European culture.3 Hence it is neither very difficult nor unjustified to draw attention to and emphasize

Foundations of a Theory of Multicultural Justice

In his new book Multicultural Citizenship, Will Kymlicka extends and reinterprets his case – first made in Liberalism, Community, and Culture – for the recognition of specific rights of cultural minorities on the basis of liberal principles. He convincingly argues that we need to find arguments for cultural rights within the framework of a “comprehensive theory of justice in a multicultural state” (6) and he provides the foundations as well as a discussion of the political practice and application of such a theory. More specifically, in the course of his argument he suggests a number of important distinctions between different cultural groups (national vs. ethnic) and the grounds for their different claims to recognition, the corresponding rights they can claim (self-government, “polyethnic,” special representation), and the limits of these claims (external protection vs. internal restriction). These distinctions and the use Kymlicka makes of them are very illuminating and take the complex debate concerning the meaning of multicultural citizenship a decisive step further. In my remarks on Kymlicka’s impressive enterprise, I want to focus on the question of whether the normative basis from which he proceeds is adequate for his attempt to provide a conception of justice for a multicultural society. It seems to me that the notion of personal autonomy which is the cornerstone of his distinctively liberal approach creates problems and internal tensions in his argument. Starting from this question, one can, I think, also shed some light on more specific points in Kymlicka’s theory, such as his conception of toleration and his view of political integration. Let me begin by briefly indicating what I take to be the main normative characteristics of a conception of justice appropriate for a multicultural society. Obviously, such a conception should provide grounds from which to judge which claims to recognition, raised as claims to certain rights and resources, are justifiable among citizens of a multicultural state. Accordingly, the grounds on which this is to be decided have to be “not reasonable to reject” by the different cultural (ethnic or national) groups involved. The basic values and norms of such a multicultural “basic structure” – and the reasons for important political decisions – have to be equally acceptable to all citizens; thus no cultural group may simply generalize its own values and self-understandings and impose them on others. This does not mean that either the basic structure or the political language in general can be culturally “neutral” as a kind of moral Esperanto; rather, it means

The ground of critique On the concept of human dignity in social orders of justification

In the practice of social criticism, the concept of human dignity has played and still plays an important role. In philosophical debates, however, we find widely divergent accounts of that concept, ranging from views based on a conception of human needs to religious approaches trying to explain the ‘inviolability’ of the person. The view presented here reconstructs the basic claim of human dignity historically and normatively as resting on the moral status of the person as a reason-giving, reason-demanding and reason-deserving being. The person as holding a basic moral right to justification is the true ground for the claim of having one’s dignity respected: as someone who must not be subjected to norms, rules, or institutions which cannot be properly justified to that person in appropriate practices of justification. To possess human dignity means being an equal member in the realm of subjects and authorities of justification and to be respected as such. This is the moral ground of social criticism, implied in particular social and political demands raised in given historical contexts. Thus, critical theory has to be reoriented towards a critique of the relations of justification in a given social order of justification.

Justice, Morality and Power in the Global Context

1. It goes without saying that philosophical discourses about global justice have to start from and respond to the reality of global injustice. But it is worth stressing that this holds true for the levels of both description and evaluation. We can go wrong in our assessment of the global situation (and its local consequences), and we can go wrong in providing normative theories about it because of the first error. Theories of “explanatory nationalism” (Pogge 2002a: 143–5) which locate the main causes for underdevelopment within poor and badly organized states are a case in point, though it is also important to see that in such theories descriptive and normative considerations are interwoven in a complex way. To be sure, the time when there was a critical social theory at hand that was considered to provide a historical-scientific, materialist account of capitalist relations of production and domination that at the same time entailed a normative story about exploitation as well as (the necessary steps towards) emancipation is gone. And yet, the project of a critical theory of global injustice and justice must not be given up, insofar as in our normative considerations we have to find a “reflective equilibrium” (to use Rawls’s term in a different context) between an adequate, critical assessment of the existing economic and political transnational relations and our wellconsidered general theories of justice and morality. Only in this way can we construct a critical and realistic theory of global injustice as well as justice (see Forst 2001). “Realistic” does not mean here: within the reach of practical politics; rather, it means: in touch with reality.

Power and reason, justice and domination: a conversation

Through an email conversation between Allen, Forst and Haugaard, this article explores the relationship between the dyads power and reason, justice and domination. In much of the literature reason is considered either a mode of emancipation from power (Lukes) or, conversely, a subtle ruse of domination (Foucault). Here it is argued that reasoning is intrinsic to political power, with both the potential for power as justice (Arendt), and for power as domination (Foucault and Lukes). With power and reason as normatively neutral, with both/either normatively desirable and undesirable potentials, this raises the fundamental question of how to distinguish between justice and domination. These issues are explored, taking account of processes of subject formation and systems of thought.

Tolerance as a Virtue of Justice

Abstract This article argues that the civic virtue of tolerance has to be understood as a virtue of justice. Based on an analysis of the concept of toleration and its paradoxes, it shows that toleration is a ‘normatively dependent concept’ that needs to take recourse to a conception of justice in order to solve these paradoxes. At the center of this conception of justice lies a principle of reciprocal and general justification with the help of which a distinction between moral norms and ethical values is possible. While the former are strictly binding and define the realm of the tolerable, the latter are subject to reasonable disagreement that calls for toleration. Essentially, the virtue of tolerance is the capacity and willingness to accept the principle and criteria of justification of generally binding norms in an ethically pluralist society.This virtue is analyzed with respect to its normative and epistemological components. Finally, the idea of a ‘tolerant character’ is discussed.

how (not) to speak about identity: the concept of the person in a theory of justice:

relations. There is always the danger of too few and too many laws in areas of social life, i.e., of failing to recognize areas in real need of protection versus areas of social integration that must not be &dquo;juridified.&dquo;55 (3) Up to now, I have disussed two levels of mutual recognition: as members of particular communities and as equal legal persons-the realm of the good and the realm of the right, of concrete and of abstract identity.56 But in my discussion of the forum in which the claims of each of these spheres is raised and discussed, a third level appears: the level of political discourse among citizens. It is here where concrete difference and common equality are reconciled, where claims to recognition are fought. Here persons are not just members of particular groups or persons with rights and subjects of the law; rather, here they are authors of the law. The legitimacy of law by a consensus of citizens is a conceptual demand, since even if one thinks that laws are already and only legitimate as long as they do not violate the basic rights of citizens, we need political discourse to institutionalize and interpret those rights and give a voice to those who criticize actual practices. Citizens, I argue, are at the same time ethical as well as legal persons, but the status of the citizen is neither purely ethical nor purely legal. To be a member of a political community is not the same as being a member of, say, a family, but it is more than just being a legal person. Political communities are neither integrated around a single notion of the good, but they are also more than a &dquo;heap&dquo; of legal persons, as Taylor says with Hegel.57 While communitarians interpret citizenship in a strong, ethical way-as being based on common identifications within a common culture, history, language, and &dquo;fate&dquo;-liberals value it as less demanding, as instrumental for the protection of rights, but also as a medium of civic cooperation (Rawls). The truth lies in the middle: citizens are authors of laws in their own as well as common interests, and they have to exhibit some &dquo;political virtues&dquo; like tolerance and openness to argumentation that are more demanding than the requirements of a legal person.58 Political membership requires a weak identification (though it can be strong) with the political community as a whole and with each of its members: it requires the recognition of the right of every fellow citizen to equal political liberties (and the necessary material means for that) and of the necessity of reaching a just consensus or compromise. Only a 305 discourse among equals can confer legitimacy to laws binding every person. Social solidarity is not ethical, but civic, solidarity: weaker than the solidarity with family members, friends, or comrades, but still strong enough to recognize the rights of every fellow citizen not to suffer from inequalities that exclude his or her voice from discourse. &dquo;Discursive virtues&dquo; in a political context include more than being prepared to argue; they require us to listen to others, and especially not to silence others. We do not owe our identity to our polity as we owe it to family and friends; rather, we belong together under a common system of symbols, procedures, laws, and actions-actions in the past, present, and future for which we have a certain responsibility. A legal person is responsible for his or her own actions under the law, a citizen for the collective actions of a political community in the form of general laws. Full membership in a political community requires accepting one’s obligations towards the rights of every other member of the polity not to be excluded; and it requires responsibility for the behavior of this community towards those who are non-members. (4) In Kant’s discussion of the &dquo;civil condition&dquo; [bürgerlicher Zustandj in his essay on theory and practice we find these three spheres named as the sphere of the freedom of each person to live his or her own life as a human being, of the equality of each subject of the law, and of the independence [Selbsrandigkei~ of each citizen as the author of the 1aw59-spheres that, with Hegel, we can interpret as spheres of mutual recognition.60 But if we understand these different concepts of the person as defined by membership in a community-of the good, of legal rights, of discourse-then we find that both Kant and Mead speak of a fourth community: humanity itself. A person has a claim to be recognized as a member not just of this or that group, but of humanity as such, as somebody who deserves respect qua being human, and as somebody whose self-respect depends upon being recognized as an equal but unique human being.61 This is obviously not the same as the respect towards a legal person, because this I owe to my fellow-citizen qua legal person, dictated by the law in all its specificity. But I do not just have to respect the mernbers of my particular ethical, legal, or political communities, but also every human being as a human being-regardless of where he or she comes from and to which community he or she belongs. This respect is a universal moral duty we have as and towards persons as moral persons. Moral persons have a right to be respected in their dignity, and I as a moral person have a moral duty to recognize this on the basis of our common humanity. Without this notion of the moral person, human rights are meaningless-though they are, as Hannah Arendt remarked, also meaningless in a practical way if they are not institutionalized and secured within a political community.62 306 This analysis suggests four different concepts of the person, of community, and of mutual recognition: ethical, legal, political, and moral. We also find four different concepts of obligation and responsibility: ethical and concrete obligations towards my fellows, legal obligations towards other persons under a legal system (and the responsibility for my own actions), political obligations towards fellow-citizens (and the responsibility for political actions), moral obligations towards every other human being. And we find four different concepts of freedom and autonomy: ethical and personal autonomy as self-development and self-realization; personal-legal autonomy as Willkurfreiheit, freedom of action within external boundaries; political autonomy as discursive and collective self-determination; and finally moral autonomy as acting under universal moral laws. Within each of these &dquo;spheres,&dquo; values or norms claiming validity have to be justified in different modes of discourse with different arguments. Hence, each of these domains has its own right and must not be subsumed underone of the other spheres. However, they overlap in several important ways: the status of the legal person is also partly morally defined; the political is the forum of the mediation of the ethical and the legal; different obligations come into conflict, etc. I can only suggest at this point, ratherthan show in detail, that to see the differences between these spheres is the best way to analyze their connections. Furthermore, I argue that this model of analysis enables a differentiated view of the complex and often confused issues that are dealt with in the debate between liberals and communitarians. It makes us see where the good is a good argument and where the right is right. One last remark. This model also allows a differentiated perspective on social conflicts. Struggles for recognition have, on the basis of this distinction, very different aims. They can aim for (a) the basic recognition of human rights to be free from slavery, domination, and abuse; they can aim for (b) the recognition of the equal status of individuals as legal persons, i.e., for equality under law; they can aim for (c) the recognition of the full citizenship of each, i.e., for the right to vote and participate in political discourse as well as in social life; or they can aim for (d) the recognition of one’s concrete identity as something valuable in itself and of which one should not be ashamed. Persons or groups fight for a life of dignity, legal security, political emancipation, and an identity of one’s own. It would, I think, be interesting to analyze historical struggles, for example of blacks in the United States, with the help of this model in order to understand the complexity of struggles for equality as well as difference.63 Taking concrete identities into account means to be sensitive to each one of these levels; the &dquo;riddle of identity&dquo; does not allow for 307 an easy solution since sameness and difference require a complex structure of recognition. A theory of justice has to be aware of these complexities in order to &dquo;do justice&dquo; to the identity of persons. Goethe-University