Plea for a constitutionalization of international law

By Jrgen Habermas Our section is announced under the venerable title Cosmopolitanism. I am the last person who would feel uneasy addressing this topic. But let me explain why I prefer to focus on the more specific and demanding perspective of a constitutionalization of international law. The concept of cosmopolitanism leads us to continue a train of thought that bypasses the major problem of how to tame, channel, and civilize political power in legal terms even beyond the nation state. Cosmopolitanism remains a somewhat loose conception unless it confronts the issue of a transnationalization of the achievements of the constitutional state. For the process of extending democracy and the rule of law beyond national borders German public lawyers have developed the concept of a constitutionalization of international law. Let me first explain this concept (I) and then, in a second part, use some aspects of the present European crisis as an example for identifying one major obstacle on the road that eventually may lead us to a political constitution for a world society without a world government (II). I. Neither Government nor Governance If we consider the constitutional state from a historical perspective, then what strikes us as its major achievement is how it contained despotism. Two aspects of that process of taming the violence of brute political power can be distinguished the civilizational achievement of the legal institutionalization of equal freedoms for every citizen, on the one hand, and the increase in the effectiveness of the modern administrative state, on the other. I propose to conceive of both the advance in civilization brought about by law and the organizational rationalization of the state apparatus in terms of a transformation of the substance of state power, i.e. the mode of exercise of political authority. From this point of view, the juridification of international relations, which began after the end of the Second World War with the transition from coordinating to cooperative international law, then also turns out to be a kind of continuation of this process. Since the foundation of the United Nations, of the three major global economic organizations (World Bank, IMF, and WTO), and of informal negotiation systems such as the G8 and the G20, even the rudiments of a

constitutionalization of international law have taken shape.1 The changes in international law correspond to a transformation of international relations: the constitutionalization of international law is bound up with a supplementation of the powers of national governments by a growing web of international organizations that make governance beyond the nation state possible. What I conceive as a dissolution of the decisionistic substance of the power involved in the exercise of political authority from the perspective of political science appears from the perspective of legal theory as a transformation in the composition of the medium of law. For the time being, however, these two trends are associated with a democratic deficit that could be counterbalanced only through a transnationalization of democracy. Before I take up this major issue I would first like to say something about the two long-term trends that we discover when we take a selective look back on modern European history: (1) the constellation of law and political power is changing in tandem with (2) the change in the substance of state power.2 (1) The change in the medium of law is reflected in a shift in the relative weights of the two components out of which modern law is composed. In order to perceive the shift that has occurred in international law, we must call to mind the conventional concept of state law. The constitutional state which enjoys a monopoly on the legitimate use of force endows valid legal norms simultaneously with a legitimate and a coercive character, which is why Kant speaks in terms of coercive laws of freedom. Law which is at once legitimate and coercive presents the citizens with a choice between following valid norms either from personal self-interest in the expectation of sanctions or out of respect for the law in the light of the procedure of democratic lawmaking.
1

On this schematization of the evolution of international law, see Anne Peters, Vlkerrecht (Zurich: Schulthess, 2006), 11ff. 2 Legal pluralist approaches have analyzed these changes in terms of displacements in relations of power between the public authority of the state and the private economic power of globally operating corporations and made the over-hasty diagnosis that the legislative authority of the state is becoming diffused as public-private partnerships have increased. The disenchanting effect of the banking crisis was not the first phenomenon that prompted a reassessment of the role of public authority in international relations in the discussion over international law. See Armin von Bogdandy, Philipp Dann, and Matthias Goldmann, Developing the Publicness of Public International Law, in German Law Journal 9/11 (2008): 1375-1400. On the public turn in general, see Nico Kirsch, Global governance as public authority, in International Journal of Constitutional Law 10/4 (Oct. 2012): 976-87.

If one proceeds from the customary premise that a world state enjoying a monopoly over the legitimate use of force is neither possible nor desirable, a dualistic conception of an international legal system comprising both the law of peoples and the law of states seems unavoidable. On this conventional conception, the obligatory law of states which is implemented through the sanctioning power of the state and by courts and administrations has a different mode of validity and a higher level of effectiveness than international law, which lacks the backing of the sanctioning power of the state. Thus the conventional conception holds that international law bases its authority on customs, international treaties, and universally recognized legal principles alone, that is, on the unenforced consensus among the states. This conclusion is unavoidable, of course, only as long as we assume that recognition of the legitimacy of a legal system cannot guarantee an average level of obedience to the law unless it is backed up by the threat of coercion by the state. Today this assumption no longer holds universally. Existing European law provides the most advanced example of the shift in the balance between the two components of the enforceability of the law, on the one hand, and the recognition of its legitimacy and average compliance with the law, on the other. In the European Union, supranational law, insofar as it is not rejected by national constitutional courts in eligible exceptional cases, enjoys priority over the national law of the member states, even though the latter continue to exercise a monopoly over the means of the legitimate use of force. Evidently, in European law, which has become differentiated as an independent level of regulation, the relative weights have shifted between the two components of the legal medium in favor of a recognition of the legitimacy of supranational authority (of the Council and Parliament, the European Court of Justice, and the Commission). Since the founding of the United Nations, the increase in the number of international courts, the strengthening of international criminal law, and, above all, the rapid proliferation of international organizations in almost every possible policy field, we are also observing at least weak indicators of a similar shift between the sanctioning and legitimation components in international law. As a result, the gap between the sanction-backed mode of validity of state law and the soft mode of validity of international law is beginning to close. Reality seems to be approaching Kelsens unitary conception of international law, albeit at a snails pace. This trend becomes apparent, of course, only when we recognize that not only the contents of legal systems, but also the medium of law itself, is changing. Once we modify the rigid concept of modern law accordingly, it also seems less improbable that one day it

could become a routine matter to use the state monopolists over legitimate force to implement the impartial and juridically monitorable decisions of a reformed UN Security Council. (2) Today at the international level a corresponding change in the substance of state power is going hand-in-hand with this change in the composition of the legal medium. The concept of state sovereignty in classical international law still presupposes a realist concept of state authority. Political power is supposed to be exhibited in the instrumental rationality of the self-assertion of a state that is assumed to act autonomously. On this traditional conception, each sovereign state pursues its national interests on the international stage of competing co-players without having its scope for action normatively restricted in any way by deference to the international community as a whole. This policy model of safeguarding and optimizing national power in the international arena finds its legal expression in the famous jus ad bellum, the discretionary right to wage wars without having to justify oneself. As Carl Schmitt correctly recognized, the abolition of this right represented a sea change in the history of international law. The fact that, in our post-heroic era, war is neither a legal nor a preferred means for solving international conflicts, however, is only the most visible sign of a change in the mode of exercising political authority . The dense network of international organizations deprives classical international law of its assumed power basis. In a highly interdependent world society, even superpowers are losing their functional autonomy in important policy fields. In view of the growing number of problems that can be solved only through joint political action, all states are finding themselves forced to cooperate. This explains why the number of international organizations with far-reaching regional or even global competences is increasing at an accelerating pace. Corresponding to this is the progressive assimilation of classical foreign policy to forms of domestic politics. Thus the decisionistic core of political power is being broken down in the crucible of the flows of communication of transnational negotiations and discourses. States can no longer regard themselves exclusively as sovereign, contracting subjects; today already they even operate on occasion as members of the international community.

(3) However, there is a reverse side to the two trends mentioned, and a rather dark one a growing democratic deficit that is increasing in tandem with them. 3 The changes in the composition of the legal medium and of the exercise of political power can be explained in terms of the intrusion of deliberative elements into the powersteered international relations of a world society that is undergoing economic globalization and systemic integration in general. Yet the inclusion of the citizens in supranational decision-making processes is not keeping pace with the legal domestication of the intensified cooperation among the states. On the contrary, for the present the price for effective governance beyond the nation state is an uncompensated erosion of the legitimation processes at the level of the nation state. The improvement in the organizational functions that is being achieved at the supranational level through cooperation between states might be described as a trend towards rationalizing the exercise of political power in the international arena; but we cannot qualify this trend as a civilizing process as long as international organizations only exercise their mandates on the basis of international treaties, hence in forms of law, but not yet in conformity with democratically generated law that is, legitimately. Global governance is a euphemistic term for the undemocratic character of the institutionalization of international relations that we have witnessed to date. For even if all members of a specific international organization were unimpeachable democracies, the kind of legitimation that the individual member states bring with them from home, as it were, is increasingly insufficient to justify decisions of the organization as a whole and all the less so the closer the cooperation and the greater the invasiveness and relevance of the jointly concluded policies. From the perspective of the citizens of each of the national member states, there is an asymmetry between the limited authorization of their own national delegates and the scope of the compromises carried by all delegates in concert; for these joint decisions impinge on the citizens of all of the member states indiscriminately. To this is added another deficit. In contrast to the decisions of national cabinets that cover all policy fields, the agenda of functionally specialized organizations is confined to particular areas of responsibility in such a way that this narrow focus does not allow the undesirable external effects of decisions to be taken into account. For both of these reasons, a certain paternalism is built into the legal form of this kind of organized cooperation, a paternalism that would not be rectified
3

With reference to international jurisdiction, see Armin von Bogdandy and Ingo Venzke, Zur Herrschaft Internationaler Gerichte, in Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht 70 (2010): 1-49.

even if, as has been proposed, international organizations could be obligated to abide by certain human rights standards.4 (4) I regard the fact that powerless international negotiation systems like the G8 or the G20 are created at all as a symptom that the steering capacity of existing institutions is being overtaxed by the pressing global challenges of climate change, global economic crises and imbalances, the worldwide risks of large-scale technology, and so forth. The systemic constraints that are penetrating national boundaries (today, above all, those of the unbridled global banking sector) are quasinatural social and economic forces that must be domesticated. A multiplication of the familiar kind of international organizations capable of coping with the increased need for regulation would merely aggravate the aforementioned legitimacy deficit. Technocratic regimes will continue to proliferate under the innocent title of governance as long as sources of democratic legitimation are not tapped for supranational authorities as well. A transnationalization of democracy is overdue. The democratic legitimation process will be able to extend across national boundaries to a political community beyond the nation state (such as the European Union, for example) only when it becomes possible to combine in a different way the three building blocks that are constitutive for every democratic system within a supranational multilevel system.5 The three building blocks in question are the people as the bearer of political will-formation, the state as that organization which enables the citizens to act collectively, and the legally constituted community of citizens as a voluntary association of free and equal individuals. Only within the nation state are these three building blocks aligned in social space. Elsewhere I have developed the idea that two constitution-building subjects could participate on an equal footing in constituting a supranational democracy, namely, the citizens in their role as members of the future union and these same citizens in their role as members of the already constituted states out of which the union would be composed. This idea
4

Christina Lafont, Alternative visions of a new global order: What should cosmopolitans hope for? in Ethics & Global Politics (2008): 1, 1-2, 1-20. This proposal does not provide a substitute for the democratic legislator and the local courts which can only decide on and control the appropriate application and sufficient exhaustion of abstract human rights standards; cf. Klaus Gnther, Liberale und diskurstheoretische Deutung der Menschenrechte, in W. Brunner, U. Neumann, and S. Kirste (eds), Rechtsphilosophie im 21. Jahrhundert (Frankfurt am Main: Suhrkamp, 2008), 338-59. 5 See my reflections in the title essay of The Crisis of the European Union: A Response (Cambridge: Polity, 2012).

provides the impetus for reflecting on a variable geometry of the aforementioned building blocks. Whereas within the framework of federal states the subnational units (such as states, cantons, or Lnder) feature only as the constituted components (constituted, that is, by an undivided sovereign, the people), the member states of a supranational democracy would play the role of a constituting power from the outset (and as a result would retain comparatively stronger competences within the constituted political community). II. The trend towards technocracy and the lack of solidarity Rather than spinning out the idea of a political constitution for a world society without a world government further,6 I would like to use the example of the EU crisis to show how rocky the road leading to such a constitution is. I am interested in the stumbling block posed by the lack of political solidarity, hence the narrow horizon within which, for the present, citizens can be required to take the perspectives of their fellow citizens into consideration as well. Let me proceed without further explanation from the premise that the structural imbalances between the national economies of the euro zone are forcing the member states of the European Monetary Union to take further steps toward political integration. The crisis has taught us that the European Monetary Union cannot be stabilized in the medium term without a joint fiscal and economic policy that would extend to other policy fields such as taxation and social policy. In the long run it will not be sufficient to provide loans to the over-indebted states so that each of them can improve its competitiveness on its own. However, a deepening of institutionalized cooperation would demand more democracy in Europe and a corresponding change in the Treaties. In fact, we are witnessing a development that is stoking the conflicts between the peoples. Europe is being drawn into the slipstream of a form of technocracy that is tailoring the individual member states without the involvement of their populations to the format of consolidated democracies, that is, of democracies adjusted to uncontrolled markets. Under the leadership of the German government, the European Council is adhering to a crisis agenda that insists on the priority of each individual state balancing its national budget on its own. In the crisis-stricken countries, this policy is
6

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

adversely affecting the social security systems, public services, and collective goods, which means that it is being implemented at the expense of the strata of the population that are disadvantaged in any case. Changing this requires breaking with the political self-interpretation of nation states according to which each member state is formally sovereign and takes decisions in questions of budgetary, social, and economic policy without regard for their side effects on other member states, hence, exclusively from a national perspective. With this fiction of national sovereignty, the governments of the so-called donor countries above all are avoiding requiring their electorates to exhibit the requisite degree of political solidarity. A cooperative project undertaken from a joint European perspective to promote growth and competitiveness in the euro zone as a whole would require these countries to accept, in their longerterm self-interest, redistribution effects that would be to their disadvantage in the short and medium terms. Political parties avoid the issue of the reasonableness of requiring political solidarity. I take this as a sign of political timidity, if not of sheer opportunism, in the face of a challenge of historical dimensions. Perhaps even a dry philosophical analysis of the concept of solidarity can contribute something to clarifying what is at stake. In order to exonerate appeals to solidarity of accusations of moral stuffiness, of misplaced good intentions, and of being unpolitical accusations that the realists are wont to level against them I would first like to distinguish obligations to show solidarity from moral and legal duties. Showing solidarity is a political act that by no means calls for a form of moral selflessness that would be misplaced in political contexts. Kostas Simitis, Prime Minister of Greece at the time of its accession to the EU, wrote in the Frankfurter Allegmeine Zeitung on 28 December 2012: Solidarity is a concept that certain countries in the Union are not comfortable with. Even though Simitis is sitting in a glass house, his understanding of solidarity may nevertheless be correct. Thus: What is meant by solidarity? Solidarity is not synonymous with justice either in the moral or the legal sense of the term. We call moral and legal norms just when they reg ulate practices that are in the equal interest of all those affected. Just norms secure equal freedoms for all and equal respect for everyone. Of course, there are also special duties. Relatives, neighbors, or colleagues can in certain situations expect more, or a different kind of help from each other than from strangers. The extent of these positive duties is often indeterminate; but, as such, they are nevertheless strictly binding: parents violate their duty of care, for example, when they neglect the health of their children. But compare this with the case of a distant relative who enters into

contact with his surprised cousin again after decades and confronts her with a request for a larger financial contribution because he is facing an emergency situation. He can hardly appeal to a moral obligation but at most to a tie of an ethical kind founded on family relations (in Hegels terminology, one rooted in Sittlichkeit or ethical life). There is a special feature whereby such an ethical obligation is distinguished from a proper moral one. Belonging to an extended family justifies an obligation only if the actual relation between those concerned generates the expectation that the cousin can count on the support of her relative in turn in a similar situation. It is the trust-founding Sittlichkeit of informal social relations that, under the condition of predictable reciprocity, requires that the one individual vouches for the others. Such ethical obligations rooted in ties of an antecedently existing community, typically family ties, exhibit three features. They ground exacting or supererogatory claims that go beyond what an addressee would be obliged to do either by law or morality. On the other hand, when it comes to the required motivation, this kind of ethical claim is less exacting than the categorical force of a moral duty; nor does it coincide with the kind of prudence or respect involved in following coercive law. Moral commands should be obeyed out of respect for the underlying norm itself without regard to the compliance of other persons, whereas the citizens obedience to the law is conditional on the fact that the sanctioning power of the state ensures general compliance. Fulfilling an ethical obligation, by contrast, can neither be enforced nor is it categorically required. It depends instead on the expectations of reciprocal conduct and on confidence in this reciprocity over time. In this respect, and this is the important feature, unenforceable ethical behavior also coincides with ones own medium- or long-term interest. It is precisely this aspect that Sittlichkeit shares with solidarity, though the latter cannot rely on pre-political communities such as the family but only on political associations or shared political interests. I repeat: What differentiates both ethical expectations and appeals to solidarity from law and morality is the peculiar reference to a joint involvement in a network of social relations. That involvement grounds both another persons demanding expectations that might even go beyond what law and morality commands, and ones own trust in the reciprocal conduct of the other if need be in the future.7 Whereas morality and law refer to the equal freedoms of

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

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autonomous individuals, ethical expectations and appeals to solidarity refer to an interest in the integrity of a shared form of life that includes ones own well-being.8 We should note, however, that the concept of solidarity, even though it derives these semantic connotations from the memory of quasi-natural communities such as families or corporations, marks a change in the semantics of ethical life proper in two respects. Conduct based on solidarity presupposes political contexts of life, hence contexts that are legally organized and in this sense artificial, not ones that have evolved organically. The customary talk of civic solidarity already presupposes the legally constituted environment of a political community, normally a nation state. Solidarity is always political solidarity. We should bear in mind that nationalism obscures this difference between civic solidarity and prepolitical Sittlichkeit. Nationalism appeals without any justification to the concept of solidarity when it champions national solidarity and thereby assimilates the solidarity of the citizen to the cohesion among those who are born into the same collectivity.9 At any rate, the credit of trust that is presupposed by conduct founded on solidarity is less robust than in the case of ethical conduct because this credit is not secured through the mere existence of a quasi-natural community. The ascriptive moment of inherited ties in antecedently existing ethical relations is missing in the case of solidarity. What lends solidarity a special character is, moreover, second, the offensive character of striving or even struggling to discharge the promise which is invested in the legitimacy claim of any political order. This forward-looking character becomes particularly clear when solidarity is required in the course of social and economic modernization. Sometimes appeals to solidarity are appropriate in situations when citizens face the challenge of adjusting the overstretched capacities of an existing, but eroding political framework to the indirect force of encompassing systemic interdependencies which connect the fates of citizens of different political communities behind their backs, as it were. Such interdependences are felt as mere constraints on what actually should be within the reach of the political control of
8

In earlier publications, I connected moral justice too closely with solidarity/ethical life. See Habermas, Justice and Solidarity: On the Discussion Concerning Stage 6 (1984), in Thomas E. Wren (ed.), The Moral Domain: Essays in the Ongoing Discussion between Philosophy and the Social Sciences (Cambridge, MA: MIT Press, 1990), 224-50. I no longer uphold the assertion that Justice conceived deontologically requires solidarity as its reverse side (p. 244) because it leads to a moralization and depoliticization of the concept of solidarity. See also my commentary on Maria Herrera Lima in Habermas, Nachmetaphysisches Denken II (Berlin: Suhrkamp, 2012), 127ff., here 131-3. 9 Habermas, On the Relation between the Nation, the Rule of Law, and Democracy, in The Inclusion of the Other: Studies in Political Theory (Cambridge, MA: MIT Press, 1998), 129-53.

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democratic citizens. I think that this description fits the present situation of citizens in the core European countries who must push for further political integration in order to extend their control over quasi-natural economics forces and recover a democratic balance between politics and the market.