Abstract
This chapter follows the previous one in search for a satisfactory philosophical answer to the challenges to human rights. That is why it turns to Jürgen Habermas, another major figure from another philosophical perspective—critical theory . Although his view of human rights is complex as it appears in different works and from different sources, this chapter starts by trying to understand his discourse theory which founds his system of rights . Such a system fits into a constitutional democracy , which secures both private and popular autonomy, and provides the means to exercise those rights. From there, the chapter moves to the relationship between the latter and the international human rights, as it appears that Habermas also talks about them, especially when he addresses the constitutionalization of international law . Once these two sources of his understanding of human rights are identified, they are then confronted to the theoretical challenge to human rights as imperialist ideology and to the practical one of perceiving their implementation through humanitarian intervention as a neocolonialism .
Habermas’s cosmopolitanism ethics favours too strongly the Western liberal order. Liberalism is an ideology that informs both emancipatory and imperial aspirations…peace building missions have taken a neo-colonial character as international civilian administrators have taken control over these war-torn societies. (Carlos Yordán )
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Many have criticized this Habermas ’s theory of communicative action. Among others, Ernest Tugendhat (2002); and the whole third section in David Rasmussen & James Swindal, eds. (2002); Axel Honneth and Hans Joas , eds. (1991); John B. Thompson and David Held , eds. (1982), just to mention but a few.
- 2.
In one of his replies to the critics of his theory of communicative action, Habermas gives nuance between effects arising from the semantic content and those “effects as occur contingently independently of grammatically regulated interconnections.” He then asserts, “I term those effects strategically intended which come about only if they are not declared or if they are caused by deceptive speech acts that merely pretend to be valid. Perlocutionary effects of this type reveal that a use of language oriented toward reaching understanding is deployed for strategic interactions.” (Habermas, 1991a: 240).
- 3.
In another instance, he says that “the theory of communicative action detranscendentalizes the noumenal realm only to have the idealizing force of context-transcending anticipations settle in the unavoidable pragmatic presuppositions of speech acts, and hence in the heart of ordinary, everyday communicative practice.” (Habermas 1998a: 19). Rasmussen argues that this form of idealization is difficult to justify and therefore constitutes the weakness in Habermas’s argument. (Rasmussen 1996b: 1060).
- 4.
He writes, “Because communicative action demands an orientation to validity claims, it points from the start to the possibility of settling disagreements by adducing reasons. From this can develop institutionalized forms of argumentative speech, in which validity claims normally raised naïvely, and immediately affirmed or denied, can be thematic as controversial validity claims and discussed hypothetically.” (Habermas 1987: 74, 1990a: 245).
- 5.
These features or presuppositions of argumentative discourse are recurrent in Habermas’s work, in one form or another, but the idea is the same. See for instance (Habermas 1996b: 1506, 1999b: 448). Now, according to Robert Alexy , “the idea of discourse isn’t neutral. It includes universality and the autonomy of argumentation as well as the conception of impartiality which rests upon them. The idea of discourse is therefore an essentially liberal idea.” (Alexy 1996a: 212). Other scholars state the same idea that Habermas ’s theory is liberal: (Baumeister 2003: 743; Honig 2001: 793). Michel Rosenfeld also underlines that the communicative action is not neutral. (Rosenfeld 1996). It is, perhaps, why Niclas Luhmann wonders whether the discursive argumentation can include the “many who simple do not want; who cannot want; who suffer from depression; who assess their prospects negatively; who want to be left alone; who have to struggle for their physical survival to such a degree that there is no time or energy left for anything else.” (Luhmann 1996: 896–7).
- 6.
William Outhwaite adds other forms of discourses. (Outhwaite 1994: 42).
- 7.
McCarthy also notes that “claims to truth and rightness, if radically challenged, can be redeemed only through argumentative discourse leading to a rationally motivated consensus.” (McCarthy 1981: 325).
- 8.
Alexy thinks that this principle of appropriateness is vague. (Alexy 1996b: 1032).
- 9.
- 10.
- 11.
Perhaps that is why Thomas Mertens thinks that Habermas ’s cosmopolitanism abolishes the plurality of states, (Mertens 1996: 338), although Habermas himself still allocates a role to play in his reformulation of the Kantian project of a world organization without a world state. (Habermas 2010: 323).
- 12.
Habermas himself takes into account liberty, equality and post-state-nation context in his human rights understanding. However, he puts a stronger accent on liberal civic and political rights to the detriment of the others.
- 13.
For a critique of this subordination of social and economic rights to liberal rights, see Günter Frankenberg (1996: 1365–90).
- 14.
Luiz Repa argues that Habermas’s view on the universalistic dimension of human rights and the democratic conditionality for their implementation leads to a tension between his cosmopolitanism and democracy , and may create a contradiction in the cooriginality between human rights and democracy . (Repa 2014: 158).
- 15.
Sen strongly emphasizes this point. (Sen 2009: 357–66).
- 16.
Although Habermas successfully refutes the neo-liberal monadic individualism, because for him, the process of individualization passes through socialization, it is not the same case for the political community. He seems to grant it an absolute autonomy that discriminates against anyone who is alien to it. In a sense, what Karl Marx accused of “the so-called rights of man” to create an “egoistic man, man separated from other men and from the community,” (Marx 1994: 15–6), is transferred to the legal community which does not care about non-members.
- 17.
Ingram sees Habermas’s juridical conception of human rights as ending up in a contradiction with his endorsement of international human rights “as well as his own account of the complementarity of moral rights.” (Ingram 20s09: 207).
- 18.
Farid Abdel-Nour thinks that Habermas has given up his universalist aim by restricting the justification of human rights to a domestic political community. (Abdel-Nour 2004: 74).
- 19.
Following the definitions and distinction between liberalism and neoliberalism, it is to be mentioned that the target of the Habermas ’s critiques when talking about liberal hegemony is neoliberalism rather than liberalism in general. For such distinctions, see for instance (Demaine and Smith 2010: 509–14; Gane 2015; Roy 2013; Jessop 2002).
- 20.
Habermas repeatedly comes back to this case, saying for instance that “once the superpower exploits the instruments of international legal multilateralism to promote its own interests, this development acquires thoroughly ambivalent significance. What from one angle appears to be progress on the path to the constitutionalization of international law, from another appears to be the successful imposition of imperial law.” On the next page he adds, “once the globalization of a particular ethos has replaced the law of the international community, whatever is then dressed up as international law is in fact imperial law.” (Habermas 2007: 181).
- 21.
John Rawls writes, “Habermas ’s position, on the other hand, is a comprehensive doctrine that covers many things far beyond political philosophy. Indeed, the aim of his theory of communicative action is to give a general account of meaning, reference, and truth or validity both for theoretical reason and for the several forms of practical reason.” (Rawls 2005: 376).
- 22.
It has to be noted though, that Habermas , although holding this conviction, is against any imposition of these rights by gunpoint. As he puts it, “precisely the universalistic core of democracy and human rights forbids their unilateral imposition at gunpoint. Their universal validity claim which binds the West to its ‘basic political values,’ that is, to the procedure of democratic self-determination and the vocabulary of human rights, must not be confused with the imperialist claim that the political form of life and the culture of a particular democracy –even the oldest one – is exemplary for all societies.” These comments being made in the context of the Iraqi invasion, Habermas continues saying “when thousands of Shiites in Nasiriya demonstrate against both Saddam and the American Occupation, they express the fact that non-Western cultures must approach the universalistic content of human rights with their own resources and in their own interpretation, one that establishes a convincing connection to local experiences and interests.” (Habermas 2007: 34–5). Habermas seems here to subject the universal validity of human rights to the reappropriation in local context, which seems a fair way of looking at human rights in a multicultural world. But such a view seems to be, if not in contradiction, at least in tension with some of his other positions on the same question, such as “only when human rights have found their proper ‘place’ in a global democratic constitutional order, analogous to that of the basic rights in our national constitutions, will we be able to assume that the addressees of these rights can also regard themselves as their authors at the global level.” (Habermas 2006: 28). [Emphasis added.] In this last quotation he elevates the model of “our national constitutions” beyond other political experiences through which he was calling for appropriation of human rights. Moreover, he wants that this model be adopted at the global level. In this sense, Habermas seems to take with the left hand the concession he had given with the right one.
- 23.
This view is also in tension with what Habermas holds about Asian societies and human rights. Indeed, for Habermas, human rights as individual rights constitute the basis for the modern law, which was incremental for the modern capitalistic economy. For that reason, according to Habermas, “Asiatic societies cannot participate in capitalistic modernization without taking advantage of the achievement of an individualistic legal order. One cannot desire the one and reject the other. From the perspective of Asian countries, the question is not whether human rights, as part of individualistic legal order, are compatible with the transmission of one’s culture. Rather the question is whether the traditional forms of political and societal integration can be reasserted against—or must instead be adapted to—the hard-to-resist imperatives of an economic modernization that has won approval on the whole.” (Habermas 2001c: 124). From this point of view, Habermas dismisses the whole cultural underpinning of human rights and presents the neoliberal capitalistic economy as inevitable despite its alienating side. Moreover, human rights are justified instrumentally as they are presented as the foundation of the legal order necessary for the thriving of the neoliberal capitalism. If this reading is correct, then it is in a rough tension with the fact of multiple modernities and the Habermas’s plea to take into account the pluralist faces of the global society.
- 24.
He envisions two other levels, the transnational level made of regional or continental bodies capable of defending their interest at the global level and the nation-states level where these decisions are to be applied. The latter would need, however, to go through a learning process about their self-understanding and a new role to play under the cosmopolitan law. (Habermas 2010: 322–7).
References
Abdel-Nour, Farid. 2004. Farewell to Justification: Habermas, Human Rights, and Universalist morality. Philosophy and Social Criticism 30: 313–330.
Alexy, Robert. 1996a. Discourse Theory and Human Rights. Ratio Juris 9: 209–235.
———. 1996b. Jürgen Habermas’s Theory of Legal Discourse. Cardozo Law Review 17: 1027–1034.
Bal, Peter. 1996. Discourse Ethics and Human Rights in Criminal Procedure. In Habermas, Modernity and Law, ed. Mathieu Deflem. London: Sage Publications.
Bartholomew, Amy. 2003. Human Rights and Post-Imperialism: Argument for a Deliberative Legitimation of Human Rights. Buffalo Human Rights Law Review 9: 25–73.
Baumeister, Andrea. 2003. Habermas: Discourse and Cultural Diversity. Political Studies 51: 740–758.
Cooke, Maeve. 1994. Language and Reason: A Study of Habermas’s Pragmatics. Cambridge: MIT Press.
de Greiff, Pablo. 2002. Habermas on Nationalism and Cosmopolitanism. Ratio Juris 15: 418–438.
Demaine, Jack, and Penny Smith. 2010. Liberalism, Neoliberalism, Social Democracy: Thin Communitarian Perspectives on Political Philosophy and Education. British Journal of Sociology and Education 31: 509–514.
Edgar, Andrew. 2005. The Philosophy of Habermas. Chesham: Acumen.
Elwood, Douglas. 1990. Human Rights: A Christian Perspective. Quenzon City: New Day Publishers.
Ferrara, Alessandro. 2003. Two notions of Humanity and the Judgment Argument for Human Rights. Political Theory 31: 392–420.
Flynn, Jeffrey. 2003. Habermas on Human Rights: Law, Morality, and Intercultural Dialogue. Social Theory and Practice 29: 431–457.
Frankenberg, Günter. 1996. Why Care?—The Trouble with Social Rights. Cardozo Law Review 17: 1365–1390.
Gane, Nicholas. 2015. Trajectories of Liberalism and Neoliberalism. Theory, Culture & Society 32: 133–144.
Günther, Klaus. 1996. Communicative Freedom, Communicative Power, and Jurisgenesis. Cardozo Law Review 17: 1035–1058.
Habermas, Jürgen. 1971. Knowledge and Human Interest. Tans. Jeremy J. Shapiro. Boston: Beacon Press.
———. 1973a. La technique et la science comme idéologie. Intro. and Trans. Jean-René Ladmiral. Paris: Gallimard.
———. 1973b. Theory and Practice. Trans. John Viertel. Boston: Beacon Press.
———. 1982. A Reply to my Critics. In Habermas: Critical Debates, ed. John B. Thompson and David Held. Cambridge: MIT Press.
———. 1984. The Theory of Communicative Action. Vol. 1: Reason and The Rationalization of Society. Trans. Thomas McCarthy. Boston: Beacon Press.
———. 1987. Theory of Communicative Action. Vol. 2. Lifeworld and System: A Critique of Functionalist Reason. Trans. Thomas McCarthy. Boston: Beacon Press.
———. 1988. Law and Morality. In The Tanner Lectures on Human Values, vol. VIII, ed. M. McMurrin.
———. 1990a. Justice and Solidarity: On the Discussion Concerning Stage 6. In The Moral Domain: Essays on the Ongoing Discussion between Philosophy and Social Sciences, ed. Thomas Wren. Cambridge: MIT Press.
———. 1990b. Moral Consciousness and Communicative Action. Trans. Christian Lenhardt and Shierry Weber Nicholsen. Cambridge: MIT Press.
———. 1990c. The Philosophical Discourse of Modernity: Twelve Lectures. Trans. Frederic G. Lawrence. Cambridge: MIT Press.
———. 1991a. A Reply. In Communicative Action: Essays on Jürgen Habermas’s The Theory of Communicative Action, ed. Axel Honneth and Hans Joas. Trans. Jeremy Gaines and Doris L. Jones. Cambridge: MIT Press.
———. 1991b. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Trans. Thomas Burger. Cambridge: MIT Press.
———. 1995. Multiculturalism and Liberal State. Stanford Law Review 47: 849–853.
———. 1996a. Paradigms of Law. Cardozo Law Review 17: 771–784.
———. 1996b. Postmetaphysical Thinking: Philosophical Essays. Trans. William Mark Hohengarten. Cambridge: MIT Press.
———. 1996c. Reply to Symposium Participants, Benjamin N. Cardozo School of Law. Cardozo Law Review 17: 1477–1588.
———. 1997. Popular Sovereignty as Procedure. In Deliberative Democracy: Essays on Reason and Politics, ed. James Bohman and William Rehg. Cambridge: MIT Press.
———. 1998a. Between Fact and Norm: Contributions to a Discourse Theory of Law and Democracy. Trans. William Rehg. Cambridge: MIT Press.
———. 1998b. On the Pragmatics of Communication. Ed. Maeve Cooke. Cambridge: MIT Press.
———. 1999a. Bestiality and Humanity: A War on the Border Between Legality and Morality. Constellations 6: 263–272.
———. 1999b. Private and Public Autonomy, Human Rights and Popular Sovereignty. In The Politics of Human Rights, ed. Obrad Savić. London: Verso.
———. 1999c. Short Reply. Ratio Juris 12: 445–453.
———. 2000. The Inclusion of the Other: Studies in Political Theory. Ed. Ciaran Cronin. Cambridge: MIT Press.
———. 2001a. Constitutional Democracy: A Paradoxical Union of Contradictory Principles. Political Theory 29: 766–781.
———. 2001b. Justification and Application: Remarks on Discourse Ethics. Trans. Ciaran Cronin. Cambridge: MIT Press.
———. 2001c. Postnational Constellation. Trans. Max Pensky. Cambridge, MA: MIT Press.
———. 2004. Religious Tolerance: The Pacemakers for Cultural Rights. Philosophy 79: 5–18.
———. 2005a. Equal Treatment of Cultures and the Limits of Postmodern Liberalism. The Journal of Political Philosophy 13: 1–28.
———. 2005b. Legitimation Crisis. Trans. Thomas McCarthy. Boston: Beacon Press.
———. 2006. Times of Transition. Ed. Ciaran Cronin. Malden: Polity Press.
———. 2007. Divided West. Trans. Ciaran Cronin. Cambridge/Malden: Polity Press.
———. 2009a. Europe: The Faltering Project. Trans. Ciaran Cronin. Malden: Polity Press.
———. 2009b. The Concept of Human Dignity and the Realistic Utopia of Human Rights. A Lecture given at Stony Brook, September 30.
———. 2010. Between Naturalism and Religion: Philosophical Essays. Trans. Ciaran Cronin. Malden: Polity Press.
———. 2012. The Crisis of European Union: A Response. Trans. Ciaran Cronin. Malden: Polity Press.
Heath, Joseph. 2001. Communicative Action and Rational Choice. Cambridge: MIT Press.
Honig, Bonnie. 2001. Dead Rights, Live Futures: A Reply to Habermas’s Constitutional Democracy. Political Theory 29: 729–805.
Honneth, Axel and Joas, Hans. eds. 1991. Communicative Action: Essays on Jürgen Habermas’s The Theory of Communicative Action. Trans. Jeremy Gaines and Doris L. Jones. Cambridge: MIT Press.
Horkeimer, Max and Adorno, Theodor. 2002. Dialect of Enlightenment: Philosophical Fragments. Ed. Gunzelin Schimid Noerr, Trans. Edmund Jephcott. Stanford: Stanford University Press.
Howe, Leslie. 2000. On Habermas. Belmont: Wadsworth.
Ingram, David. 2003. Between Political Liberalism and Postnational Cosmopolitanism: Toward an Alternative Theory of Human Rights. Political Theory 31: 359–391.
———. 2009. Of Sweatshops and Subsistence: Habermas on Human Rights. Ethics & Global Politics 2: 193–217.
———. 2010. Habermas: Introduction and Analysis. Ithaca: Cornell University Press.
Ishay, Micheline. 2004. The History of Human Rights: From Ancient Times to the Globalization Era. Berkeley: University of California Press.
Jessop, Bob. 2002. Liberalism, Neoliberalism, and Urban Governance: A State-Theoretical Perspective. Antipode: 452–472.
Kant, Immanuel. 1983. Perpetual Peace and Other Essays. Trans. Ted Humphrey. Indianapolis: Hacket Publishing Company.
Kreide, Regina. 2009. Preventing Humanitarian Intervention? John Rawls and Jürgen Habermas on Just Global Order. German Law Journal 10: 93–114.
Lafont, Christina. 1999. The Linguistic Turn in Hermeneutic Philosophy. Cambridge: MIT Press.
Luhmann, Niclas. 1996. Quod omnes Tangit: Remarks on Jürgen Habermas’s Legal Theory. Cardozo Law Review 17: 883–899.
Marcuse, Herbert. 1991. One-Dimensional Man: Studies in the Ideologies of Advanced Industrial Society. Boston: Beacon Press.
Marx, Karl. 1994. On the Jewish Question. In Selected Writings, ed. Lawrence H. Simon. Indianapolis/Cambridge: Hackett Publishing Company.
Maus, Ingeborg. 1996. Liberties and Popular Sovereignty: On Jürgen Habermas’s Reconstruction of the System of Rights. Cardozo Law Review 17: 825–882.
McCarthy, Thomas. 1981. The Critical Theory of Jürgen Habermas. Cambridge: MIT.
Mertens, Thomas. 1996. Cosmopolitanism and Citizenship: Kant against Habermas. European Journal of Philosophy 4: 328–347.
Mitzen, Jennifer. 2005. Reading Habermas in Anarchy: Multilateral Diplomacy and Public Sphere. American Political Science Review 99: 401–417.
Mutua, Makau. 2002. Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania Press.
Outhwaite, William. 1994. Habermas: A Critical Introduction. Stanford: Stanford University Press.
Rasmussen, David. 1990. Reading Habermas. Oxford: Basil Blackwell.
———. 1994. How is Valid Law Possible? A Review of Factizität und Geltung by Jürgen Habermas. Philosophy and Social Criticism 20: 21–44.
———. 1996a. Critical Theory and Philosophy. In The Handbook of Critical Theory, ed. David M. Rasmussen. Cambridge: Blackwell Publishers.
———. 1996b. Jurisprudence and Validity. Cardozo Law Review 17: 1059–1082.
Rawls, John. 2005. Reply to Habermas. In Political Liberalism, expanded Edition. New York: Columbia University Press.
Rehg, William. 1994. Insight and Solidarity: A Study in Discourse Ethics of Jürgen Habermas. Berkeley: University of California Press.
———. 1996. Against Subordination: Morality, Discourse, and Decision in the Legal Theory of Jürgen Habermas. Cardozo Law Review 17: 1147–1162.
Repa, Luiz. 2014. The Human Rights between Morals and Politics: On Jürgen Habermas’s Cosmopolitanism. Florianopolis 13: 151–166.
Rosenfeld, Michel. 1996. Can Rights, Democracy and Justice Be Reconciled through Discourse Theory? Reflection on Habermas’s Proceduralist Paradigm of Law. Cardozo Law Review 17: 791–824.
Roy, Paramita. 2013. Neoliberalism, Liberalism and Development Practice: A Theoretical Exploration in the Context of the Changing Role of State. The Echo 1: 238–246.
Sen, Amartya. 2009. The Idea of Justice. Cambridge: Harvard University Press.
Shue, Henry. 1980. Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy. Princeton: Princeton University Press.
Smith, William, and Robert Fine. 2004. Kantian Cosmopolitanism Today: John Rawls and Jürgen Habermas on Immanuel Kant’s Foedus Facificum. The King’s College Law Journal 15: 5–22.
Teubner, Gunther. 1996. De collisione Discursuum: Communicative Rationality in Law, Morality, and Politics. Cardozo Law Review 17: 905–918.
Thompson, John B., and David Held, eds. 1982. Habermas: Critical Debates. Cambridge: MIT Press.
Tugendhat, Ernest. 2002. Habermas on Communicative Action. In Jürgen Habermas, vol. 1, ed. David Rasmussen and James Swindal. London: Sage.
Tweedy, John, and Alan Hunt. 1994. The Future of the Welfare State and Social Rights: Reflections on Habermas. Journal of Law and Society 21: 288–316.
Walker, Neil. 2005. Making a World of Difference: Habermas, Cosmopolitanism and Consitutionalization of International Law. European University Institute, Working Papers, Law, No 17.
Yordán, Carlos. 2009. Towards Deliberative Peace: A Habermasian Critique of Contemporary Peace Operations. Journal of International Relations and Development 12: 58–89.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
Ingiyimbere, F. (2017). Habermas and the Challenges to Human Rights. In: Domesticating Human Rights. Philosophy and Politics - Critical Explorations, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-57621-3_5
Download citation
DOI: https://doi.org/10.1007/978-3-319-57621-3_5
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-57620-6
Online ISBN: 978-3-319-57621-3
eBook Packages: Religion and PhilosophyPhilosophy and Religion (R0)