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Subjective Rights and Human Rights in Habermas: The Legal and Moral elements of a Cosmopolitan Political Theory.

Introduction

Many people associate the word human rights with persons and organizations fighting injustice, especially in third-world countries with oppressive or corrupt regimes. Sometimes, in Western societies, the human rights of migrants are spoken of as something that opposes the civil rights of citizens, when in fact it is not much the rights that are usually in tension in such debates, but the conceptions of citizenship: cosmopolitan citizenship versus nationalistic citizenship that restricts certain human rights for some people for the benefit of others. In this paper, we will consider human rights as a cosmopolitan rendering of subjective rights, first acknowledged within the boundaries of the Nation-State, then morally extended to the whole human community, and finally legally established at the cosmopolitan level, albeit in a partial manner and with little effective enforcement at present. Fundamental subjective rights, in past conceived as natural rights, are in fact human rights as first recognized, that is, restricted within the boundaries of a particular commonwealth. The Virginia Declaration of Rights (1776) and French Declaration of the Rights of Man and of the Citizen (1789) established rights in terms that make these rights seem

2 universal, but in practice these rights were restricted to male citizens (and more precisely those who were well educated, had political connections and could afford a good lawyer). Abolitionism, Female Emancipation, the development of international law (e.g. the Geneva and Hague Conventions) and institutions, and the debates on citizenship within the huge empires of the 19th century led to a universalization of the claims to fundamental subjective rights, which eventually give rise to the Universal Declaration of Human Rights (1948) when enough political will was mustered to recognize such rights after the atrocities of World War II. Subjective rights are one of the major pillars of modern democratic countries. They define the basic freedoms and the social and economic prerequisites to that are necessary to make the ideals of Liberty and Equality that characterize the modern conception of the State a reality. That is why authors such as John Rawls construct their political theories on principles of justice that can be identified with such ideals and subjective rights. In a globalizing world, human rights can similarly be understood as fundamental elements of a cosmopolitan political theory that considers all human beings associated together, not necessarily within a world State, but surely as residents of a cosmopolitan space inhabited by world citizens and coordinated by legitimate, just and effective international institutions. Habermas thought points us in this direction and so it is important to first understand his construal of subjective rights before extending them to the postnational constellation.

1. Subjective Rights and Popular Sovereignty


In the West, and in cities all around the world that are becoming more and more diverse, we cannot avoid dealing with difficult issues in the political, legal, social and economic spheres that often put different groups of citizens in tension. If real conflict is to be avoided, these issues must be solved through fair decisions that citizens can own and consider valid even if they do not coincide with their personal preferences. In the past, political ideologies and shared ethical values and norms rooted in lifeworlds and worldviews that had hegemony on the citizenry of a particular nation-state (often sustained by religious belief) provided an ethical-juridical-political framework that allowed relatively straightforward solutions to such tensions. Today, given the increasing diversity of cultures, traditions and worldviews present in modern cities, it is of utmost importance that we examine our decision-making framework to make sure that it can be both effective and legitimate (at least in the sense that all those concerned by the decisions taken can agree that the decisions have been adopted through a valid, fair, rational and reasonable procedure). Furthermore, given that many issues (such as environmental concerns, migration, finance and commerce) can no longer be dealt with at the level of the NationState, we also need to see what framework would be effective and legitimate enough so as to be adopted at the level of regional blocks and at the cosmopolitan level, where dealing with diversity and pluralism becomes even less avoidable.

4 Modernity has provided us with general framework for public decision-making by focusing on the legal aspect (even though this maintains an important link to moral and political elements). Modern law seeks to guarantee robust public decision-making by putting together effectiveness and legitimacy. Effectiveness is achieved by establishing laws that are enforced effectively through coercion, enacted publicly (and make known to those concerned), and limited in scope to what is explicitly stated (so that what is not explicitly prohibited is permitted). The element of publicity and the limitation to the explicit allow the system of coercion (police, law courts) to function efficiently: they know exactly when citizens break the law and can intervene to deal with illegal acts. Furthermore, these elements make it easier for the citizens to accept state coercion since it is rational and predictable: they can know precisely when they break the law and when they risk being punished for their behavior. The effectiveness aspect of modern law allows citizens to behave as self-interested rational calculators (considering the law as a structure of coercion, which unfortunately is necessary to avoid social chaos), and bear with it, obeying it to avoid sanctions, trying to live their lives as freely as possible within the constraints imposed by the law. The legitimacy aspect of modern law, however, provides a more desirable alternative to this minimalist, calculating and self-interested attitude towards the law (which nevertheless must be catered for, since there are citizens who are not willing to go beyond

5 this attitude). Citizens may also comply with the norms of the law out of respect for the law (Habermas 2001, 115). However, to do this, they need to consider the law valid and legitimate. Modernity has put a great deal of effort into establishing the legitimacy of law for all citizens, irrespective of their worldviews and lifeworlds. Contractarian authors have insisted that public law is not just a law of coercion but also a law of freedom that respects the autonomy of the individual citizen (since it protects and respects individual rights when enforced) and furthermore depends on this autonomy (since law, in order to be enacted, somehow depends on the participation of the individual citizen in an act of popular sovereignty). Autonomy this freedom to live ones life according to the ends one chooses for oneself is what provides law its legitimacy from a modern perspective. In polities marked by deep diversities between competing conceptions of the good, legitimacy is no longer a matter of grounding in objective transcendental truths (that are so difficult to establish nowadays on the public level), and so the validity of law is measured by the extension of the freedoms (i.e. liberty) it makes available in a fair manner to all citizens (i.e. equality), in a way that ensures a proper social harmonization between freedom and equality (fraternity or solidarity). Modern law seeks to respect freedom and equality on two levels. On one hand, it is drawn up in a way that every citizen can own it 1. Civic Republicans tend to underline this aspect

Depending on the political theory invoked, they can own it because the Leviathan who imposes it is ultimately a mask I am wearing with everybody else, since we all decide that it is better to put somebody on

6 and give more weight to the freedom the citizen exercises as a public self, that is, as participant in acts of popular sovereignty. On the other hand, modern law is enacted and enforced in a way that respects the rights of each individual (Habermas 1998, 99s). Liberals tend to put the emphasis on this aspect, that is, on the freedom citizens should enjoy as private selves, and insist that if ones freedom must be limited, it should not be limited more that is necessary to protect their freedom (from others) and to protect the freedom of others in a fair system of limitation of freedoms (since a system of unlimited freedoms is not possible in a world of limited resources). The liberal position considers subjective and human rights prior to the exercise of popular sovereignty (democracy), such that rights impose moral limits to what can democracy can enact as law (hence law and democracy are subordinated to a morality of self-determination Moralitt). The civil republican position, on the other hand, does not limit the exercise of popular sovereignty using a morality based on subjective rights, but in some authors (such as Rousseau, according Habermas reading), it obliges the subject to conform to the will of the people that is formed prior to the exercise of popular sovereignty (usually in communities and lifeworlds that orient public opinion independently from democratic processes). Hence this latter position ends

the throne to represent us and obey her laws whatever they may be rather than to have to face anarchy (Hobbes); because if I think according to the general will so as to formulate laws that can be unanimously accepted in my commonwealth, I would propose just this law (Rousseau); because if I seek to give the status of universal law to all the maxims necessary to formulate a morally valid law on this issue, and if I consider all persons affected by such a law not merely as means but also as ends, I would come up with just this law (Kant).

7 us subordinating law and democracy to the ethos (Sittlichkeit) of a particular community or to the worldview of a majority (Habermas 1998, 101s). To avoid subordinating law and politics to morality or to a particular ethos, Habermas develops a theory (the co-originality thesis) whereby rights and popular sovereignty, private and public autonomy constitute one another concurrently. This means that there are no subjective and human rights that are not born from an exercise of popular sovereignty, at least reconstructed ideally in a thought experiment 2, where individuals grant rights to one another and with this very action they construct a framework for all subsequent legitimate expression of popular sovereignty. Liberals, insisting on the primacy of individual rights over popular sovereignty, often argue inductively from examples of totalitarian regimes and tyrannical majorities, and it is true that, historically, individual rights were first claimed to limit the enormous power concentrated in the hands of the
This is a particularly problematic aspect of the co-originality thesis. Historically, there has not been any intersubjective exercise of popular sovereignty anywhere in the world in which all world citizens (or at least the citizens of a particular commonwealth) came together in a situation of symmetrical dialogue and established human rights. So the thesis cannot be established if not through a thought experiment, such as Rousseaus assembly, Kants kingdom of ends or Rawls decision behind the veil of ignorance. This means that, at least at this point, Habermas reconstructs a supposedly intersubjective exercise of popular sovereignty from within the conscience of a single subject, and does not escape from the trap of philosophy of consciousness. The problem repeats itself down the line, in day-to-day debates on particular laws. Habermas (1998, 104) claims that consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possibly affected. Meets with implies an intersubjective exercise, but could meet with does not (migrants and future generations do not participate as communicative actors in the processes of enactment of law that concern them; they can only be included through thought experiments within the consciousness of the legislator). Given the or, we can opt either for the intersubjective exercise (by ensuring they actually meet with... the agreement of all those affected) or the solipsistic exercise (by ensuring that they could meet with the agreement of all those affected), and so intersubjectivity seems superfluous. In the end, we could very well have a legitimate republican government without any democratic processes, simply by having an Enlightened monarch enacting laws that could meet with the agreement of all those possibly affected, such as we find in Kant.
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8 sovereign with the creation of centralized modern States. Subjective rights are hence historically prior to democratic processes and historically posterior to legal and political institutions that existed before the advent of democracy and were de facto considered legitimate. In fact, the notion of rights is introduced in to question the legitimacy of the absolute monarch who asserts his administrative and law-making powers beyond certain tolerable limits. At the dawn of modernity, the legitimacy of law was not based on the autonomy of the subject (i.e., the exercise of popular sovereignty and the respect of human rights in the enactment and enforcement of law), but on a moral grounding derived from religious or natural law presumed to be objectively true and hence automatically acceptable to all citizens. This is why, historically, subjective rights were claimed against the State, precisely because a legitimated commonwealth existed independently of the individual autonomy of its subjects 3. Nevertheless, conceptually (using a thought experiment, such as that of the social contract), it is obvious that for rights to be claimed against a State, there must be a legitimate State to begin with. In modern commonwealths, given that their legitimation scheme must be built on autonomy (Habermas 1998, 94-99), one must assume the existence of rights in order to conceive a legitimate State, so the rights claimed by liberals against the

Locke, for instance, in his Letter Concerning Toleration, opens a private space for the enjoyment of individual rights by arguing, on the basis of these heteronomous grounds for legitimacy (that is, using biblical and natural law arguments), for the need of a space for the exercise of autonomy from the magistrates monopoly of coercion.
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9 State are evidently derived (or second-order) rights. In other words, in the order of ideas, a legitimate (modern) State and its valid (modern) law cannot exist prior to an exercise of popular sovereignty where individuals come together to create a State by granting rights to one another and devising a State apparatus that guarantees the effective protection of these rights through coercion. The problem of abuse of the use of coercion by the State apparatus thus constituted and the subsequent need of making right claims against such a State apparatus is therefore conceptually secondary to the problem of establishing rights among citizens, which is what justifies the existence of a State apparatus in the first place. Jrgen Habermas insists on this point in many of his writings 4. His purpose is two-fold. (1) On one hand, Habermas wants to distinguish subjective rights (and human rights) considered as a legal structure from subjective rights (and human rights) as a moral concept, and to bracket the latter for a number of reasons, as we shall see 5. Legally-enacted subjective rights are established by citizens; hence they can evolve and be changed through a legitimate procedure. They are not divine or immutable. They are not imposed
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Cf., for example, Habermas (2001, 113-118), (1998, 454-457). Habermas does not deny that human rights have a moral content and can be construed from the moral point of view, he simply brackets it to construct an intersubjective notion of legal, actionable rights enshrined in law and constituted through a democratic procedure. For instance, in Between Facts and Norms, Habermas (Habermas 1998, 105) states that human rights [...], which are inscribed in citizens practice of democratic self-determination must [...] conceived from the start as rights in the juridical sense, their moral content notwithstanding. In the Postscript to Between Facts and Norms, Habermas (1998, 454) notes that human rights might be quite justifiable as moral rights, yet as soon as we conceive them as elements of positive law, it is obvious that they cannot be paternalistically imposed on a sovereign legislator. However, this by no means implies that law enjoys moral neutrality. Indeed, moral reasons enter into law by way of the legislative process. Even if moral considerations are not selective enough for the legitimation of legal programmes, politics and law are still supposed to be compatible with morality on a common postmetaphysical basis of justification (idem, p. 453).

10 heteronomously on the citizenry, but are the basic components of a constitution that citizens will and agree to, and that they could change in the future. (2) On the other hand, Habermas is aware of the risk involved when one claims that rights are simply established by legal procedures and can be changed. Natural law theorists have sought fundationalist grounding for subjective and human rights to make them unavailable, out of reach of supposedly warranted or downright unwarranted manipulation through positive law by the regime or government of the day. If we do not need to invoke an authority outside our legal-political sphere to make legal claims about subjective and human rights as Antigone did when she invoked the eternal laws of the gods against Creonte 6, or Francisco de Vitoria and Bartolom de Las Casas when they invoked natural law against the conquistadors and the local colonial authorities in South America then we have to conceive a layer within positive law that is nonmanipulable, that is very hard to alter without the unanimous approval of all those that can be in some way affected by the alteration, and that maintains an aura of sanctity such as the divine laws of old, demanding utmost respect by all citizens. This layer should be considered more sacrosanct than other aspects of the constitution, and should be kept safe from manipulation even by populist governments and hegemonic majorities that muster a

Some modern commentators of Sophocles claim that it is anachronistic to read Antigone (lines 453-455) in this way (cf. Mahoney 2007, 2), but we are more interested in the work of art as a living subject of interpretation than in the archaeology of the original authors intentions and worldview, and it is indubitable that Sophocles text and Aristotles commentary (Rhetoric 1373a) have for many centuries inspired and shaped thought on subjective and human rights (cf. Burns 2002, 545-557).
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11 two thirds majority in parliament and may be tempted to use this warrant to violate the rights of minorities. This element of indisponibility present in modern law must be kept together with the instrumentalizable or readily-modifiable character of law in our societies, which allows modern law to respond and adapt to a rapidly changing world. Habermas conception of subjective and human rights uses a Kantian Proceduralist approach to overcome the long-standing debate between legal positivists (juspositivists) and natural law theorists (jusnaturalists) and provide a grounding to these rights that allows us to respond to many of the questions raised by sceptics. Jusnaturalists insist on the indisponible element that must be at the basis in all legal systems and root this element in a moral construct, ultimately subjecting law to morality. Juspositivists insist on the readilymodifiable character of efficient modern legal systems and tend to exclude from law any reference to morality, any limitations of the will of the legislator apart from those established by the legal system itself. In the following sections, we will first discuss Kantian Proceduralism (2) and then discuss the Sceptical, Juspositivist and Jusnaturalist positions on human rights (3), before discussing in more detail Habermas construal of human rights (4).

2. Kantian Proceduralism
Let us start by situating Habermas work within a larger tradition and a wider debate on the issue or subjective and human rights. Habermas political philosophy is classified as

12 Postkantian. Postkantian procedural theories of justice are among the most interesting attempts to construct a civic ethic that is relevant and suitable to our plural societies and our globalized world. They construct and justify normative content on the basis the fairness of a procedure, assuming that if a deliberative or decision-making procedure is considered acceptable to all participants (or citizens) its normative results will also be accepted as valid. The classical example is that of a group of children who divide a cake (let us imagine that it is done at school during recreation): if the person who is willing to cut the cake is also willing to take the last slice, one can normally assume that the procedure will be fair, since her slice (the last slice) can be approximately equal to the other slices only if she cuts the cake meticulously into portions of equal sizes (or equal desirability). This may seem very obvious and intuitive, but a more careful analysis reveals that even in this simple case, there are a huge number of factors being taken for granted that are very difficult to justify in a rigorous manner. For starters, we are assuming that all the children are self-interested, can eat the cake, are allowed to eat the cake, want to eat the cake, have equal entitlements to a portion of the cake; that the cake is divisible into equal units of a decent size; that the use of the knife and the eating of cake is permitted in that situation (such that the very act of cutting does not imply the confiscation of the cake or the interruption of the cutting itself); that the person cutting has the ability and freedom to cut the cake in equal portions; that all the children use the same criteria to evaluate the

13 desirability of the slices (namely volumes of dough and frosting) and all can evaluate the result (the children are not blind...). If the fairness of such a simple procedure is not as obvious as it looks, we realize that we must be very careful while assessing the obvious fairness and weak and easily justifiable assumptions of a proceduralist theory of ethics, in particular when it proposes to ground a series of human rights. Nonetheless, we cannot deny the attractiveness of such theories in a world where substantive theories of the good can no longer be considered as universally acceptable. We cannot agree on what is the ultimate end and good of human existence, and so we cannot ground the rules that structure our peaceful, just and prosperous social coexistence with neighbours that do not share our worldview and lifeworld on a fully fledged theory of the good. Nonetheless, we need common law, and we need law that is deemed valid and legitimate by all (contrary to what legal realists claim), laws that can be respected and obeyed by most citizens on the basis of such claims to validity, thus avoiding the need of excessive coercion and the establishment of unsustainable tyrannical police states. If we cannot use a comprehensive theory of the good as grounding, how can we ensure that laws can be considered valid by all at the national and cosmopolitan level? This legitimacy cannot be grounded and guaranteed uniquely by hermeneutic mechanisms that ensure the respectful interpretation of venerable laws and customs coming from the wisdom of

14 ancient or not so ancient lawgivers (as legal hermeneutists claim); this would amount to a dogmatization of the legal tradition and an elitist dependency on the interpretation of that tradition by a handful of legal experts. Nor can it be based (as legal positivists claim) on the mere internal coherence of the legal system and its procedures, understood as a sort of sorcerers dictionary where all terms and lemmas refer coherently to others inside the system such that they all have sense but not necessarily reference (in the Fregian sense) to external realities. Ultimately, laws can be considered valid, respected and obeyed only if they are considered morally valid, at least some minimal sense of the word moral, for instance by incorporating publicly-acceptable teleological contents and moral principles, as claimed by Ronald Dworkins theory of law (discussed in Habermas 1998, chapter 5). But the morality being invoked here is not that of a fully-fletched ethical worldview. This brings us back to the work of John Rawls, which has inspired Dworkin and inaugurated one of the most important debates in contemporary philosophy. Rawls, the most famous of the Kantian proceduralist political philosophers, speaks in his early works of a thin theory of the good or of the right, which mainly consists of two, lexically-ordered principles of justice that embody the first and second generations of human rights. This thin theory of the good is thus proposed as the minimal morality necessary to ground law hence ensuring the fairness of relationships in all the social structures that integrate and bind citizens into one political community. In Political Liberalism, Rawls presents his moral grounding as a freestanding module that he expects all rational and reasonable comprehensive theories

15 of the good to incorporate, so as to achieve an overlapping consensus on the principles of justice that would serve as a standard to judge if particular laws (and the prevalent legal, political and economic systems) are warranted or not. In adopting this new structure to support his theory of justice (intended to overcome communitarian critiques of the contractarian argument proposed in A Theory of Justice to justify the proposed principles) 7 Rawls adopts a fully-intersubjective proceduralism akin to that proposed by the Frankfurt School. The principles of justice are validated as fair and acceptable not by a solipsistic Kantian mental experiment, but as an (expected) result of a real Rousseauian dialogue between citizens. However, we are well aware that not any dialogue is acceptable if we want it to provide a moral foundation of law by virtue of the morality (fairness) inherent in the dialogue procedure itself. Rousseau would say that the dialogue procedure must be set up in such a way that citizens are forced to think according to the general will, rather than promote their interests, preferences and worldviews using their power, influence, wealth, social

In fact, some have argued that there is no neutral position between comprehensive moral traditions (cf. MacIntyre, Three Rival Versions of Moral Enquiry) and that Rawls, in his choice under the veil of ignorance argument, reveals that his thin theory of the good actually presupposes a fully fletched liberal ethic coming from the Enlightenment tradition. (Rawls (2005, 489) admits that justice as fairness is presented in [A Theory of Justice] as a comprehensive liberal doctrine [...] in which all members of its well-ordered society affirm that same doctrine. This kind of well-ordered society contradicts the fact of reasonable pluralism and hence Political Liberalism regards that society as impossible). Others, like Michael Sandel (Liberalism and the Limits of Justice), have argued that Rawls rational calculators, being unencumbered selves, cannot be true human moral agents, and hence that a thin theory of the good cannot be justified if not understood and incorporated within a more comprehensive moral worldview. This critique has pushed Rawls to rethink his original theory in terms of a module that can be inserted into comprehensive theories that real human beings, being morally and socially encumbered selves, cannot simply bracket when making rational choices.
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16 status and cunning (cf. The Social Contract, I.7-8, IV.1-2). Rawls says that in public debates and when casting votes in elections and referenda, citizens must make public use of reason, similar to that expected of US Supreme Court judges when deciding legal cases (cf. Rawls 2005, 231-240). Similarly, Habermas invokes his theory of communicative action to establish the conditions of an ideal speech community. In all cases, the rules established to ensure the fairness of the dialogue procedure and to regulate the fair admission and participation of citizens in the dialogue itself are assumed to be simple, intuitive, and thus acceptable to all; this is a point that we will need to evaluate later in view of what we said about the simple case of the cutting of the cake. However, the structure of the argument seems to be quite robust: if we have a fair procedure to establish principles of justice and a shared morality of minimums (as the Spanish proceduralist philosopher Adela Cortina 8 would say), we can build a basis to assess the validity of law, which basis can be deemed the most acceptable in a modern pluralist society. This basis, or morality of minimums, or module, as we have seen in Rawls, is generally considered to consist in an ordered set of rights, namely civil rights in a particular polity and human rights in general integrated within a legal system. Habermas (1998, 99), for instance, claims that human rights and the principle of popular sovereignty [...] constitute the sole ideas that can justify modern law. However, Habermas, in most of his works, considers rights mainly as products of modern law. A major question that will accompany
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Cf, for example Cortina (2001, 182, 143 ff.).

17 us as we seek to understand his theory of right is whether there is some moral basis, or some rudimentary moral rights that we must assume to be able to welcome everyone concerned in Habermas speech community that established legitimate law, and also in determining who are those concerned, and so entitled to participate in the communicative procedure. It seems, at a first glance, that we need to assume what the 1948 Universal Declaration of Human Rights (UDHR) claims (Art. 1): All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Moreover, it seems that we need to assume that (Art. 2) everyone is entitled to all the commonly recognized human rights and freedoms, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. These assumptions are not morally neutral, and we will see how Habermas will deal with this issue as he seeks to construe a system of human rights based on a concept of law that is not subordinated to morality. In a globalized world, the composition of the ideal speech community necessary so that citizens may grant one another legally-binding (actionable) human rights through an act of global popular sovereignty implies a strong, empowering egalitarianism, a shared language and a truly cosmopolitan approach. These are not light assumptions and we will keep them in mind in the ensuing discussion. Furthermore, as Habermas and the UDHR insist, the rights and freedoms necessary to participate in the dialogue of the speech community must not be limited to civil, economic

18 and political rights (first-generation human rights) that simply remove obstacles and make it possible in principle to participate in democratic deliberative processes that give rise to law, but must also include social egalitarian rights (second-generation human rights) that empower all citizens to become effective participants in the dialogue, equipping them with enough education, health protection, free time and personal wealth to do so. The UDHR (Art. 2) also suggests an extension of the ideal speech community beyond the borders of the nation-state: no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. The parties who participated in the drafting of the UDHR in 1948 had moral reasons to justify all this, but they could not express them in a way acceptable to all. In most of his works, Habermas seeks to maintain all this doctrine on a basis that is purportedly strictly legal, and his argument avoids moral references and limits itself to saying that the legal system that guarantees this complex system of rights is what works in modern societies. We will see if such a posture can be sustained through and through. In any case, we may simply note at this point that it is very hard, even for staunch Habermasians, to stop Habermas conception of human rights from spilling over from its legal setting and include assumptions that Habermas would shun as remnants of a natural law approach. In a text on discourse ethics and the grounding of human rights, orginally written for a lecture in 1988, Adela Cortina (2007, ch 8) sketches an answer to this question:

19 Human rights are a type of demands not merely aspirations the satisfaction of which must be guaranteed through legal obligation, and so they should be protected by the corresponding organisms. [] The satisfaction of such demands, the respect of these rights, are enabling conditions if we want to make sense of the word human. Should any person not wish to make such demands, we would find it difficult to recognize them as human. Should any person refuse to respect such rights in other persons, we would find it difficult to recognize them as human. (Cortina, 2007 p. 249) It is interesting that, according to Cortina, the fact of making and respecting human right claims is a necessary condition for being considered human. There is an anthropology being a conception of the human self, a construal of human nature assumed here that people from non-Western worldview would not accept without further argumentation and grounding, an endeavour that may not be as straightforward as it looks. Cortinas thought is very close to that of Habermas, but, as we shall see in many of his works, Habermas tries to avoid this by limiting himself to the realm of law, assuming the existence of persons who are willing to make and respect human right claims in the practice of legal constitutionmaking. Lurking behind the different approaches of Cortina and Habermas is a longstanding debate between natural law and legal positivism concerning the grounding of human rights, in which both contestants seek to flaunt their prowess at fending away a plethora of sceptical critiques of the notion of human rights.

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3. Scepticism about Human Rights, Juspositivism and Jusnaturalism


3.1 Conservative and Relativist Scepticism concerning the Universality and Grounding of Human Rights Many authors today seek to relativize those human rights that in the West we consider most universal. These authors want to propose or maintain conceptions of the human being according to which not all persons are expected to present and respect the demands listed in the UDRH and considered inalienable in the legal and political tradition of the West. China and other eastern countries have used arguments based on a notion of eastern values to justify the bracketing (and thus disrespect by the State) of first-generation human rights (Habermas 2001, 123-126). Similarly, in many Muslim countries, authorities claim that the UDHR is simply a secular interpretation of the Judeo-Christian tradition, as Said Rajaie-Khorassani (the UN representative of Iran) stated in 1981. When one rejects the UDHRs claim to universality, one easily concludes that when there is a conflict between the UDHR and the interests (or policies) of Chinese government or the Islamic Sharia or Fiqh, the UDHR is trumped and only a subset of unproblematic human rights will be recognized. Obviously, Far-Eastern, Middle-Eastern, Maghreb and other political figures and religious authorities, as well as all respectable international organizations ostentatiously insist that they observe and promote human rights, using a rhetoric that competes well with that of the leaders of many Western nations whose realpolitik features negatively in the reports of Amnesty International or Human Rights Watch. To be sure,

21 today it is important to pay lip service to human rights if one wishes not to be ostracised on the international stage. But this rhetoric cannot hide the fact that human rights are increasingly being questioned, even in Western countries that have traditionally championed their cause. The list of recognized human rights tends to shrink in some countries, and oftentimes, criticism to such reductions and relativizations is met with a condemnation of alien values imposed by colonialism and cultural globalization. In this way non-western modernities resist the historical learning process we have known in the West. To understand what we mean by this, it is interesting to consider the historical relationship between Christianity and the modern notion of human rights, in particular in the case of Catholicism. Catholic authorities were initially suspicious of the liberal declarations of human rights (promoted ideologically in the XVIIIth and XIXth century by liberals that were openly hostile towards Christianity and the Catholic Church) but eventually came to recognize that such rights were not simply a by-product of secularist ideology aiming to undermine religious belief, but where deeply compatible with the Christian worldview 9. In this way, the Catholic Church, which strongly condemned liberal human rights in the XIXth century (under popes

In fact, a number of Christian writings, especially in the corpus of the Apologetic Fathers (Justin Martyr, Epistle to Diognetus, Athenagoras of Athens) and texts of the Salamanca Thomist revival (Francisco de Vitoria, Bartolom de Las Casas, Francisco Surez), can be cited as predecessors of first-generation human rights claims. Moreover, human rights find strong anchoring in Christian Systematic Theology (and especially in Theological Anthropology) and secular thought has been nourished and heuristically inspired by this religious doctrine through successful Hegelian learning processes as Habermas admits (cf. Habermas and Ratzinger 2006, 44-46).

22 Gregory XVI and Pius IX) 10, came to tolerate the idea of such rights and eventually ended up becoming a staunch defender and promoter of such rights (especially during Vatican Council II, in the documents Dignitatis Humanae and Gaudium et Spes and in practically all papal encyclicals regarding ethics that have been published since). Today, it is clear to most Catholic theologians that initial hostile reaction of the Church Magisterium towards liberal human rights was due to historical contingencies and adopted political theories that were not really linked to the core of Christian faith and that had made it harder for Catholics to read the signs of the times, as the Second Vatican Council would say and made them lose sight of the kerygma, the essential Christian message, when evaluating such issues. Thus the Catholic Church, and in analogous ways, the major religious traditions of the West, have found a way to incorporate the human rights module into their more comprehensive ethical doctrines not as an alien doctrine, but as something firmly rooted in their respective religious traditions. This explains why Catholic authorities have become staunch defenders and promoters of human rights. In the debate, secularist liberalism too learned what the doctrine of human rights entailed: religious freedom implies that the imposition in the public sphere of an ideology hostile to religion and aiming to undermine religious belief cannot be tolerated by the selfsame structure of toleration that the liberals themselves had championed.
Several texts of these popes condemn the modern errors, such as freedom of conscience, freedom of expression, and freedom of religion in predominantly Catholic countries, as well as democracy and the emancipation of women. See Gonzlez-Carvajal (2005, 50-52) and Osuna (2001, 167-172).
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23 Today, however, it is not clear whether such a historical process could be replicated in Islam and in Far Eastern religious and ideological traditions, through the introduction of hermeneutic processes allowing the distinction (in the authoritative texts of these traditions) between core values and historical additions, between the contingent socioeconomic context assumed by the foundational texts and the deeper universal worldview inspiring this authoritative literature 11. In any case, on a cosmopolitan level, it is sad to see the UDHR, one of the greatest achievements of international law, not only disrespected in practice but increasingly questioned and mutilated in its theoretical conception but major worldviews and considerable portions of humankind. For anyone well acquainted with the history of thought in the West, documents such the 1990 Cairo Declaration on Human Rights in Islam and the 1991 White Paper on Shared Values by the Singapore government (subtly endorsed in some of the articles of the 1993 Bangkok ASEAN Declaration on Human Rights) 12 indicate a tendency in certain countries to control and filter out, in their dialogue with

A number of authors believe that such a dialogue may allow Islam to develop a hermeneutic of the Koran and the Sunna, distinguishing between apodictic and casuistic laws, between universal and sociologicallysituated norms, between the religious, cultural and political aspects of Islam and furthermore establish an adequate epistemological status for the Fiqh and the Koranic Schools (that in practice determine what is authentic Sunna and what is to be considered as part of the Sharia). Some Muslim thinkers, such as Fazlur Rahman, make a distinction between what Muhammad heard (the Revealed Koran, considered by Muslims as the eternal and uncreated Word of Allah) and what Muhammad wrote (the Transmitted Koran), and it seems that already in the 15th century, classical authors such as Jalaluddin Suyuti made a distinction between revealed meanings and written words in the Koran. At this moment in history, however, most of the reform movements in Islam tend to enhance conservative and literalist readings, such as the Islamist reform movements born in the 1970s (at the beginning of the 14th century of the Hegira); cf. Castells (2004, 13-23). 12 Cf. Jost (1998, 625-648), Peerenboom (2006), Sheehy (2004, 67-82), Thio (1999, 1-86).
11

24 modernity, certain elements that we consider fundamental in the West. Such a tendency may functionally destabilize or morally undermine their modernization processes. 3.2 Intellectual Scepticism in the West

Habermas (2001, 119) recognizes that the human rights discourse that has been argued on normative terms is plagued by the fundamental doubt about whether the form of legitimation that has arisen in the West can also hold up as plausible within the frameworks of other cultures, and he adds that the most radical critics are Western intellectual themselves. In this section I would like classify and analyse some of the arguments of these intellectual sceptics. Charles Beitz (2009, 3-7) identifies six types of scepticism about human rights; three concern mainly theoretical issues and three concern practical issues. Of the latter, two types concern practical legal problems regarding international enforcement, and one concerns the feasibility of the satisfaction of certain human rights in particular social conditions. Though important, these practical problems, in my opinion, are not the most serious forms of scepticism. True and adequate international enforcement of the UDHR (that will be decided in a politically valid manner, and not done unilaterally by superpowers and ex-colonial powers as an excuse for an economically-motivated regime change in certain strategicallyrelevant countries) will become a reality when everybody will be convinced of the legitimacy, validity and universality of the UDHR. The satisfaction of second generation

25 human rights has always been considered as a works in progress depending on economic development; this would be much more rapid (and feasible) if the satisfaction of the first generation human rights (regarding property, freedom of speech and association, political rights) is guaranteed so as to establish functioning democracies, and in turn, these rights are relatively technically easy and economically cheap to satisfy if there is the political will to establish efficient and fair democratic institutions. A number of third world countries with few or no natural resources but with political liberties, press freedoms, religious liberties, functioning trade unions and industry lobbies have managed to achieve stable and good governance and thus develop economically so as to afford ambitious welfare programmes, while other nations rich in mineral wealth but poorly governed still struggle to offer basic health care, sanitation, housing and primary schooling. I think that the more theoretical scepticism regarding the validity, universality and moral grounding of human rights is the most problematic. To classify the major positions in this debate, we can identify them more or less with the three types of anti-modern stances identified by Habermas (1981, 13), namely those adopted by young conservatives (that include post-Nietzschians, such as Bataille, Foucault, Derrida and Vattimo), old conservatives (that include neo-Aristotelians) and neo-conservatives. Neoconservatives reject or devalue most human rights while the young and old conservatives declare that modernity is in disarray and the Enlightenment project has aborted since there is no such thing as a universal critical reason, independent of all worldviews and anchored in the autonomy of

26 the subject. This means that there is no stable position, no common rational centre of gravity from which one can identify, criticize and censor what is morally unacceptable (and define what moral principles and values should be entrenched and considered absolute) in the various worldviews present in society. Thus, many young and old conservatives consider the UDHR as a remnant of the failed and flawed Enlightenment project, a series of rights founded in a non-existent universal reason or on a political power game disguised as a fictitious cosmopolitan consensus between worldviews. Hence, they claim that the UDHR has no moral or epistemological authority to question or criticize practices based on the will to power of aesthetes or the venerable traditions of Muslim or Confucian communities. Schematically: Young conservatives who promote or intellectually adopt the cultural trends of postmodernity, adopting philosophical elements from Nietzsche and Heidegger deny that any grounding is possible for human rights. They refuse strong thought with its supposedly violent and exclusive (marginalizing) claim to truth. Gianni Vattimo, for instance, says that only Nihilism can serve as grounding for modern values such as equality, since any grounding that claims to offer a criterion allowing criticism entails inevitable inequalities (cf. Cortina Orts 2007, 242). 13

We can include here the proponents of the critique of power, that Habermas (2001, 120) considers as followers of Carl Schmitt. These authors claim that the normative language of law can supposedly reflect nothing else but the factual claims to power of political self-assertion; according to this view, consequently, universal legal claims always conceal the particular will of a specific collectivity to have its own way.
13

27 Old conservatives tend to conceive religious, philosophical and cultural traditions as separate worlds, with specific rationalities and incommensurable conceptual and lexical webs 14. In his famous book After Virtue, Alisdair MacIntyre (2007, 69-70) criticizes the notion of universal human rights, saying that the truth is plain: there are no [natural or human rights], and belief in them is one with belief in witches and unicorns 15.

We can include here the proponents of the critique of reason, that Habermas (2001, 120) considers as followers of Martin Heidegger. These authors claim that every tradition, worldview, or culture has inscribed its own always incommensurable standards for what is true and false. 15 According to A. MacIntyre, public debates on ethics in our plural societies are not moral debates but rather emotivist displays of rhetoric: in order to convince the other person and to manipulate her understanding, one constructs pseudo-arguments by weaving together concepts and bits of reasoning from very diverse worldviews. According to this author, these elements, taken out of their original cultural and conceptual context lose their meaning and become a jargon that can be used to justify all sorts of things becoming emotionally charged words and slogans that seem to belong to the party of the person which one is trying to convince. This situation is the final result of the loss of the substantive ethical doctrines of Antiquity and the Middle Ages, initially brought about by the Enlightenment project that sought to construct a neutral morality, emancipated from all worldviews, that was supposed to serve as a universal standard. Actually, the Enlightenment simply added a new worldview to the list, based on a conception of the human subject as a being uprooted and alienated from the community that originally furnished him with his identity. In this way, the modern self ends so ethically and anthropologically unencumbered that she is unable to know what good to seek and hence how to live the good life. According to MacIntyre, modernity as projected by the Enlightenment does not actually manage to find a common point of reference, a common language and system of reference from which worldviews and ethical doctrines can be appraised, but rather invents an artificial worldview with a fake universal moral language. This patchwork language, with its concepts and moral principles ends up distorting and caricaturizing ethical concepts derived from traditional worldviews when one seeks to translate these concepts into the supposedly universal public language proposed by the Enlightenment. However, MacIntyre is not a relativist or perspectivist thinker; he believes that there is a common truth to be found at the end of a long process wherein each worldview consolidates itself through coherentist processes (risking collapse if it finds itself deadlocked in substantial internal contradictions), and where different worldviews critique each other using the language and conceptual web of the worldview being critiqued. In any case, however, the critique cannot come from outside or from a neutral standpoint. Hence, there cannot be a universal list of human rights that can put in question the practices of particular traditions or worldviews; rather all subjective rights and duties can only arise within a particular tradition. Even if there were similar lists in different traditions, these cannot be compared, since in each worldview, the notion of right of an individual only makes sense within a web of ethical notions (including a particular anthropology, notion of human flourishing, etc., together with the communal means and practices that
14

28 Neoconservatives claim we are experiencing a crisis typical of late capitalist societies, and attribute this to a presumed excess of democracy, to the dysfunctional character of the welfare state, to the destabilizing activities of a leftist intellectual lobby that encourages the masses in their demands for self-determination, and to the loss of authority of the bourgeois value system (Cortina Orts 2007, 131). The solution to this crisis, according to the neoconservatives, does not consist in going back to pre-modernity, but to reinstall the old bourgeois capitalism that existed before the socio-economic theories of John M. Keynes. Using various argumentative strategies, authors such as Robert Nozick relativize and sideline second generation human rights (such as equality and distributive justice) and also propose the limitation several first generation rights (such as freedom of expression, trade union membership, etc.) deemed excessive, or considered harmful and socially destabilizing. When faced with such forms of scepticism, the typical strategy until recently has been to seek a grounding for human rights. Natural law theorists (jusnaturalists) and legal positivists (juspositivists), have sought to derive a set of human rights since the wake of modernity, often inspired by some notion of human dignity. The former understand these rights as claims rooted (in some way) in the very nature or being of humans: a self or essence

determine and make the goods accessible). Cf. MacIntyres After Virtue; Whose Justice? Which Rationality?; Three Rival Versions of Moral Enquiry.

29 considered fundamentally stable along the space and time axes, at least in the sense that it presents to the other person a number of ethical demands that cannot be relativized or limited in space to a particular geographic area or culture, and in time to a particular period in history. In this sense these authors consider that there is a core of the human self (traditionally called human nature) that is cosmopolitan and transcultural (universal), and constant in history (immutable) so as to enable us to speak of an equal intrinsic dignity of each human person. The ethical demands that arise from the moral imperative that obliges us to respect the dignity of every human person, however, must be morally worked out in more detail, and then inserted into positive law so that persons who refuse to act morally and respect the dignity of other persons may be coerced to do so in the interest of the common good. The latter theorists, the juspositivists, avoid this metaphysical scaffolding and seek to limit human rights to legal (actionable and sanctionable) claims that are ultimately based on a legitimate pact or convention that cannot be easily changed or abrogated. In the older nation-states before 1948, and in younger countries who obtained independence especially since the 1960s, efforts were made to enshrine these rights in national constitutions using a variety of public arguments (from legal tradition, notions of human dignity, religious ideas, convenience to ensure development and modernization, natural law etc.). Juspositivists, without necessarily upholding such arguments or accepting the notion of natural rights, insisted that the important thing was to have them incorporated

30 into the fundamental laws of nations and established in international law. Nowadays, given that we do have list that has a status of international law (though it is not a treaty), and that many human rights are included in most modern constitutions, legal positivists consider that such a legal grounding is sufficient, and the only thing left to do is to enforce laws protecting human rights. They assert that we should not seek to understand whether they are (morally) legitimate or not, or whether all members of society and all societies can and actually find a grounding for such rights so as to consider them legitimate. It would seem that for such thinkers, the fact that a law is there and that it does not risk being repealed (being useful or not put to question by a sufficient majority) automatically dissolves the legitimacy question, or else, it would seem that the bare fact of the existence of a law resolves the legitimacy question by magically conjuring up valid legitimacy arguments in all worldviews present in society. 3.3 The Juspositivist critique of Jusnaturalism

Juspositivists often seek to drive home their point by undermining the jusnaturalist strategy of legitimation, which seeks to provide grounding for human rights from outside the legal system itself. One of most famous critiques of jusnaturalist attempts to furnish human rights with an absolute or firm grounding is that of the Italian philosopher of law Noberto Bobbio. Bobbio (1996, 3) conceives fundamental human rights as rights that one aspires to attain (desirables), not as something morally due or possessed prior to positive legislation. They are usually claimed by individuals from a legal system that does yet

31 concede them until they are incorporated into the system and become legal rights. Since they are strongly desirable, philosophers have sought to establish a foundation for such rights, to strengthen claims that such rights should be granted and respected, and therefore recognized legally. Such a quest for grounding is quite understandable, according to Bobbio, but it gives rise to the illusion of an absolute foundation. One seeks to find an irresistible or unopposable reason or argument to make the strongest case possible for entrenching such aspirations in positive law and firmly grounding existing laws guaranteeing human rights. This illusion, says this author, comes from the natural law tradition which for many centuries has sought to derive rights directly from the nature of humans. Bobbio quickly dismisses this tradition, saying that human nature is understood differently according to the perspective one adopts (communitarian, kinship, or individual) and says that according to ones perspective, one may derive rights and duties that are in conflict with those derived when adopting a different perspective on human nature 16. According to Bobbio, there are four major difficulties that prove it is impossible to provide an absolute or very firm grounding to human rights: The expression human rights is vague, and one cannot ground anything that cannot be clearly defined. Bobbio says that only three types of definition are

Bobbio give the example of the old debate among natural law theorists regarding who should benefit from an inheritance: should the community or the family take the bigger share? Or should the individual benefit from the inheritance by spending all her fortune before dying?
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32 possible, but none manages to pinpoint what we are talking about when we speak of human rights: o Tautological definitions (such as human rights are those that belong to all humans) are simple unacceptable; o Definitions that describe the desired or proposed status of such rights are very debatable since they do not say anything on their content (e.g. human rights are those that (should) pertain to all human beings); o Finally definitions that say something about the content of human rights introduce value judgements that depend on particular worldviews, and hence are controversial and cannot be universalized; they follow the perfeccionist model (human rights are those whose recognition entails (or is required for) the improvement of civilization, the bettering of human life, the possibility of attainment of flourishing by most humans...), but what is deemed necessary for human flourishing or the improvement of civilization depends on culture, worldview, situation, etc. Human rights are a variable category, as history has shown; the list changes according to historical conditions, necessities, interests, classes in power, means available to guarantee their enforcement and promotion. The list changes not only by expanding to include new rights; some rights that were considered absolute in the past (e.g. private property) today are no longer considered sacre et

33 inviolabile. This fact, according to Bobbio, shows that rights are not fundamental by their nature (p. 6). Human rights constitute a heterogeneous category: in the declarations on finds a mix of rights that imply very diverse and at times incompatible demands on individuals and on society. Each generation of human rights would thus require a different type of grounding that may entail a number of contradictions with the foundation of another generation of rights. Bobbio claims that maybe there are only two rights that are truly fundamental and which do not seem to enter in conflict with the others: the right not be enslaved and the right not to be tortured; unfortunately, several years have passed since Bobbio delivered his original speech in a conference in 1964, and even these rights have been put into question. Many people today do not find any problem with the enslaving economic structures into which irregular migrant workers are forced to live, and since 9/11/2001, not even the latter right concerning torture seems as obvious to most people as Bobbio presumes. The tension between human rights of the first generation (freedoms) and those of the second generation (social empowerments), that Bobbio considers antinomic, makes it impossible to firmly ground both sets of rights at the seme time. Secondgeneration rights imply positive obligations imposed on other citizens. In order that everybody may attain an adequate standard of living and in order to create and

34 redistribute wealth through welfare structures, many persons must make significant sacrifices pay taxes, work more, put private property at the service of the common good, when necessary. All this implies fewer liberties, that is, reduced first-generation rights for many persons (not only for the few obscenely rich nobles of the ancien rgime). Next, Bobbio offers an a fortiori argument that seeks to prove that absolute or firm grounding of human rights is not only impossible, but also undesirable. Absolute or firm grounding is counterproductive: history has shown that some nations, classes and social groups have resisted the introduction of 2nd generation rights (social and economic rights) because they considered 1st generation rights as absolute. Hence, the claim that human rights can be grounded in an absolute manner often serves the political agenda of reactionaries who refuse the introduction of some rights in the name of others, rather than enhancing the political clout of true defenders and promoters of human rights. Furthermore, according to our author, such grounding is ethically of no use, as we know from the critique of ethical rationalism going back to Aristotle: it does not suffice to know and make known (through reasoned argument, or rational grounding) what is good or just for people to be convinced in practice to do what is good or just (p. 10). Bobbio applies this to the UDHR using three arguments:

35 o When everybody thought that there was an irrefutable grounding of human rights, these rights were not respected more than they are today; rather they were respected less. o The international community reached an agreement on the UDHR in spite of the crisis that arose when they sought to find a solid universal foundation for the declaration. o Today, according to Bobbio, what we need is not so much a foundation to specify and list human rights (we already have them clearly on paper in the UDHR) but rather material conditions to ensure that they are made available to all (especially those of the 2nd generation), and the political will to protect them through the rule of national and international law. Bobbio does not deny that some sort of grounding is necessary, but his proposal is that of seeking a sort of portfolio of (non-absolute) justifications, which he calls the study of possible principles (p. 11), in an interdisciplinary dialogue with history, sociology, economics and psychology. In 1948 and for a number of years after the UNDR was signed, such an approach seemed plausible, since the contents and universality of the declaration was not questioned, and only its grounded was problematic. We agree about human rights but on condition that no one asks us why, wrote Jacques Maritain, quoting a colleague when the UDHR was being drafted (cf. Beitz 2009, 21). Today we can no longer assume that people agree about human rights, and so if we believe that the UDHR is more than a modus

36 vivendi agreement we need to be able to say something about why all should agree on these rights. Surely, one cannot seek a grounding that is absolute in the sense that is completely axiomatized; the Trilemma of Mnchhausen and Gdels Incompleteness Theorems show that such foundationalism is not viable. However, a firm and shared grounding is not excluded, and its value seems more obvious to us than to theorists from the late 40s to the mid-70s. Today, we no longer have a first world that staunchly promotes the first generation of human rights and a second world that promotes the second generation, two ideological blocks that manage to find a consensus position when faced with the horrible memories of the Second World War, the terrible prospects of nuclear annihilation. Even if we do not fully accept the idea of a clash of civilizations, coined by authors such as Samuel Huntington, we are nonetheless aware that the international political scene is much more fragmented, now that western political thought (be it Marxist or Capitalist) has lost part of its universal hegemony. From Islamic theocracy to populist kleoptocracy, from Asian pragmatism to tribal federalism, new political models have arisen since the 1960s that question some the basic ethical and juridical axioms of Western modernities. Therefore, the consensuses reached in the past are today in need of grounding more than ever before, even though, with so many worldviews to cope with, the possibility of grounding seems more remote than ever. Postmodern thought, which tends to relativize all that claims stability and universality in ethics, mixes with religious fundamentalism, separatist

37 nationalism and a political pragmatism prone to populism and demagogy to form a heterogeneous block that seeks to undermine the international consensus on human rights. Hence, when Bobbio says that after the UDHR we no longer need an absolute grounding for human rights, we find that statement much less convincing than his audience probably did in the 1960s when he gave the original conference on the subject. When he argues that an absolute grounding does not suffice to protect human rights, we are less easily tricked into concluding that it thus shown not to be necessary. When he claims that it has been counterproductive in a certain historical context we are left with the impression that it may not be counterproductive in all historical contexts, and this impression becomes a certainty when we review the history of the idea of natural rights from the Stoics to the present (cf. Tierney 1997). Surely, there are tensions between the first and second generation of rights. Liberty and equality have been in dialectic tension since they became the major aspirations of modernity. However, the ideologues of the French Revolution had already found a third term fraternity, which we may substitute in todays pluralist world with the more inclusive notion of solidarity that allows us to keep together liberty and equality and render their tension productive rather than stifling. The presumed incompatibility between human rights is oftentimes deduced from an erroneous absolutist notion of these rights (that is not the same as the search for an absolute

38 foundation of human rights): we live in a finite world, and often there is a legitimate need to limit the enjoyment of certain rights, not only those of the second generation promoting equality and freedom from want, but also some of the liberties of the first generation, such as property, freedom of movement and freedom of expression. Thus, in spite of what Bobbio claims, the limitation of the right to property is inherent in the very notion of right to property when correctly understood as forming part of a set of rights that have to be guaranteed and extended to the greatest extent possible in a finite world. Contrary to what Bobbio claims, the list of human rights has not been reduced in a legitimate way in democratic countries or at the international level; rather it has been expanded. Such expansion is not indicative of its being a variable category but of the progress in moral theory allowing the identification of a more complete set of rights and of the progress in juridification, that is, in the legal recognition of right claims that were not previously actionable. Bobbios critique is typical of many authors from the legal positivist tradition. On close analysis, many arguments used are not very convincing. However, there are two very strong critiques of the jusnaturalist position that have been frequently underlined and must be analysed more closely. One concerns the problem of the naturalist fallacy and other targets the problem of how one can in real life avail oneself of a series of rights conceived as moral claims that only bind enlightened consciences. As Robert Spaemann (1989, 90) explains:

39 The adversaries of the jusnaturalist position argue that one con only derive an ought from an is if the is is itself conceived as grounded in an act of will. However, this would be a metaphysical premise that not all acknowledge, and thus it cannot ground the obligations of those who do not accept it. Moreover, these obligations depend totally on the fact that they are not based on the subjective conviction of those who are obliged to respect them. A right becomes a right when it is constituted thus by a sanctioning entity. When we consider things in this manner, the metaphysical foundation becomes a superfluous ingredient, independently of what is being sought by such a grounding, since, in any case, a right that is not entrenched into positive law remains juridically irrelevant. Obviously, jusnaturalists do not consider the second objection as very problematic: they fully understand the need of entrenching human rights into national, regional and international positive law and warmly support such efforts: human beings are not angels, they need laws and law enforcement. Thus, it is a fact that rights need to be instituted legally, because many people would not respect them unless they were legally coerced to, even if they were to recognize that they are morally obliged to respect them. But this fact does not by itself exclude the need for or the possibility of moral grounding: if citizens were to think that human rights are simple conventions reached through political lobbying and that there is nothing wrong in disrespecting them if one found a way of doing it without getting caught or punished, the result would be disastrous, especially since enforcement on an international level is already so poor that a generalized opportunistic attitude would make the UDHR seem like a cruel joke to those whose rights are being constantly violated. Nobody would respect a law, in the absence of effective enforcement, unless they believed

40 that there is something good in the law or the law-making procedure, and therefore that it has some moral warrant, at least in the sense of Kants Categorical Imperative (or unless they can benefit directly from their obedience of law, which is not usually the case for those who violate human rights). The first objection is however more difficult to deal with. It is fairly obvious that from an is based merely on empirical observations of human nature (on biological, physical, or sociological data) one cannot derive an ought. As Spaemann suggest, an ought can be derived from an is only if that is already ethically charged, if it understood in the framework of a should be. Are all human beings free and equal? From a sociological or biological point of view they are not. But from an ethical and political point of view, are they called or created or constitutively oriented to be free and equal? Should they be treated as free and equal subjects, simply because they are subjects and not merely things? Or are they just complex robots made of organic matter, possessing no more constitutive freedom or equality than a rock or a jackhammer? It is not easy to dismiss certain reductionist claims, but surely, law, ethics and human self-understanding presuppose that human beings, unlike computers and robots, have some degree of rationality and freedom so as to be responsible for their actions, and that their behaviour cannot be accounted for uniquely using mechanical causality chains.

41 This means that law, ethics and commonsense presuppose some form of teleological understanding of the human being. When we use an is to speak about a human person in these fields of knowledge (but not in biology or empirical sociology), it is assumed that humans are not simple things that follow mechanically the laws of causality, but that they can, to some extent, orient their actions towards ends and goals, which they consider as goods in some way or another. The human is, when apprehended in law, philosophy or everyday language contains some sort of ought, not necessarily a moral ought, but an orientation towards what each subject wills or wants to be, who she thinks she should be or should become, be it an accomplished philanthropist, a famous murderess, a talented banker or simply a good mother. Human rights fit into this teleological structure, because they are means that human beings need to reach their ends in life, and some can also be ends in themselves (since one could have, as a major purpose in his life, that of expressing oneself in the freest way possible in spite of many obstacles, or that of promoting freedom of expression in a country ruled by an oppressive regime). The fact that many (if not all) of the rights listed by the UDHR fit this structure a posteriori is generally accepted: empirically, where they are recognized and respected juridically, these rights do seem to help most people to reach their ends in life; in this sense they are useful, but this does not prove that they are inviolable or all human persons are necessarily entitled to such rights. The question that is much harder to answer is whether all (or any and in that case which) of the rights listed in the UDHR can be said to fit into this teleological structure a priori, as enabling

42 conditions of being fully human, such that the being (or nature) that acts according to a teleological rationality and is responsible for her actions i.e., the subject of law and ethics, and the other we refer to when talking about a fellow human being cannot be properly conceived without assuming that that being has a natural (or a priori) entitlement to such rights. Traditional natural law theories try to answer this question by defining an end or a series of ends that they claim all human beings seek (or ought to seek) often basing this claim on supposedly universal observations of human social behaviour or biological being, or on cross-cultural religious or philosophical insights and then deducing what rights are logically necessary to achieve these common ends of the human race. Given that, traditionally, such common ends were presented in the context of comprehensive theories of the good that at the onset of modernity were no longer shared by all, and that the arguments from biology, sociology, ethnology, history of philosophy or comparative religion used to demonstrate the universality of such common ends became more and more suspicious (and criticized as mere faades used to promote the anthropology of a particular worldview), the deduction of rights from such ends came to be considered unviable as a grounding procedure for human rights. As we shall see, however, the procedure used by natural law to justify rights found other names and more subtle ways of surviving the harsh critique coming from juspositivist authors. In fact, many of those postmetaphysical authors who claim that their thought is completely weaned from natural

43 law still assume that all rational humans seek goods like social peace, an ordered society, or the possibility of reaching an understanding in their communicative action, as overarching goods rooted in human rational and communicative nature. It is ultimately such metaphysical assumptions that provides a basis allowing them to deduce basic a priori requirements for leading a human life (namely some measure of freedom and equality, at least to participate in public communicative processes) and subsequently a list of human rights. 3.4 The Dangers of Pure Juspositivism

The dead end reached by traditional jusnaturalism when faced by the fact that comprehensive theories of the good cannot be used any more to ground rights in a pluralist society does not mean that juspositivism wins the debate by default. The positions of authors like Bobbio, as we have seen, assume too naively that the international consensus of 1948 will hold, and will remain strong enough to make any quest for firm grounding seem pointless. In other articles in Bobbios book, this assumption becomes more central, for instance when he claims that the Universal Declaration of Human Rights represents a unique demonstration that a value system can be considered to be founded on humanity and thus acknowledged by it: the proof is in the general consensus over its validity (Bobbio 1996, 13). As Mahoney (2007, 139-142) argues, Bobbios argument from an expanding international de facto consensus is not very convincing, and history has shown that many consensuses on value systems have faltered. In fact, a brief review of the history

44 of the attempts to seek grounding for human rights based on juspositivism and jusnaturalism is very instructive. Bulygin (1987, 79-81), himself a defender of legal positivism, traces the history of the attempts to ground human rights that oscillates between juspositivism and jusnaturalism 17. He considers the positions of R. Dwarkin, J. Rawls, R. Nozick, J. Finnis and C. Nino as a return to jusnaturalist form of grounding human rights, a reaction to authors from the 1960s and early 1970s who opted for a grounding in the positivity of law, such as N. Bobbio, H. Hart, A. Ross and H. Kelsen. These in turn seem to have been reacting to the jusnaturalism of the 1950s, born in the wake of the World War II trials, when it seemed obvious that legal positivism not only proved impotent to protect human rights in the totalitarian states of the 1920s, 30s, and 40s, but was also the pet legal theory of such regimes since it made their actions accountable only to law-making institutions they controlled, and not to some unmanipulable moral authority stemming from human nature. In many such trials, people involved in genocides, atrocities and mass violations of human rights usually claim that they were following orders and that they were obeying civil law (established by authorities that they believed were legitimate and that probable were technically legitimate) 18. Today, if any of those involved in waterboarding

A similar history can be deciphered from Habermas critique of a series of German legal theorists at the beginning of chapter 3 of Between Facts and Norms (Habermas 1998, 82-89). 18 From a legal positivist point of view, many of the Nurnberg convictions are probably invalid, since they invoke ex post facto laws and notions such as crimes against humanity that did not exist before the trials and
17

45 Guantanamo inmates were to be brought to trial for torture, they would probably seek to defend themselves just like many German officers did at Nurnberg. It is interesting to note that the juspositivism that was dominant in the beginning of the XXth century was a product of a XIXth century movement that sought to establish civil rights and constitutional guarantees as a stable tier of positive law; this had become necessary since by this time, the jusnaturalist attempts to ground modern law pursued in previous centuries were dismissed and abandoned. We can go further back in time, to see that Medieval Scholasticism reintroduced the notion of natural law as a standard to appraise rationally and ethically the positive law that had survived in Europe after the Dark Ages (cf. Porter 1999, 34-41). All this indicates that pure legal positivism does not stand the

certainly were not contemplated by the German penal code or applicable international law when the acts considered criminal were committed. Germany was not a signatory of some of the international conventions cited, and Hitlers never abrogated the Weimar Constitution, but suspended it by declaring a protracted State of Exception (technically justified by legal theorists such as Carl Schmitt) that allowed him to operate within a legal framework (cf. Giorgio Agambens: State of Exception). From a natural law perspective, such as that of Surez (cf. De Legibus), there are certain acts that are so obviously wrong to commonsense that every rational person who were demanded by law to perform such acts would know that such a law is invalid, and would be obliged in conscience to disobey such a law. Thus, from this point of view, a sane person who engages in a mass wanton killing and torturing thousands of people on a lame propaganda excuse and claims he did nothing wrong because there was no law against it that but rather the law demanded that he should obey orders (and those were the orders!) could still be guilty, morally and legally, when we distinguish which laws are legitimate and which laws are invalid under such regimes and determine which laws he was bound to obey and which to disobey. Obviously, such an approach subjects law to morality, and in a multicultural society this becomes problematic since from different ethical viewpoints different laws may be considered valid or invalid. In some cases, conscientious objection is tolerated in modern countries (though often the objector may have to endure some sanctions, since law does not probe consciences and cannot externally distinguish a conscientious objector from a free rider or an opportunistic breaker of the law), however, modern law cannot suffer its being systematically subjected to validation by a subjective conscience in order to be applicable in the case of that subject. Furthermore, in cases such as that of the Nurnberg Trials, one has to find somewhere in the penal code or the legal tradition a valid law that would be applicable to the case, if we are to observe the general principle of penal law: nullum crimen, nulla poena sine praevia lege poenali.

46 test of time, and if we have to do away with natural law, at least as traditionally understood, we still need to posit (and establish) the existence of a stable tier of (positive) law that has a sacred character, that cannot be easily manipulated, not even by the will of majorities. Constitutional guarantees, even though they seek to maintain within positive law a categorical element that is not readily available to ordinary law making, may at times be insufficient to contain the tendency of modern law to make itself excessively available, that is, politically malleable and juridically easy to modify.

4. Habermas construal of human rights


In chapter 3 of Between Facts and Norms, Habermas seeks to distinguish his position radically from jusnaturalism and its heritage, by insisting that his construal of subjective and human rights (which, as we have seen in section 1, emerge concomitantly with popular sovereignty, at least in the order of ideas, according to Habermas co-originality thesis) is fully situated in the realm of modern law, and in no way subordinated to morality. At the same time, Habermas rejects the pure juspositivist position by establishing a normative layer within law itself that is supposed to guarantee a dialectic relationship between the instrumentalizable character of modern law and an indisponible dimension necessary to safeguard it from easy manipulation that would undermine its claim to legitimacy.

47 4.1 Law, democracy and morality

Habermas, in his writings, spares no effort to insist that his construal of human rights is mainly a legal one, and that his construal of law is not subordinated to morality, even though there is complementariness between law and morality. Faithful to a Weberian theory of modernity that shuns any link between modern institutions and religion or metaphysics, his notion of modern law refuses to admit any reference to a higher law, be it moral, religious or metaphysical. According to Habermas (1998, 107-111), morality is not law: it lies in a different sphere of reality, has a different level of reference, uses a different language and deals with a different kind of action norms. Being ontologically and semantically different from morality, positive law does not recognise the superiority of the former within a normative hierarchy, as Kant and traditional jusnaturalists claim (albeit in very different ways). Habermas, at some points in his argumentation, takes this distinction to the extreme, for instance when he claims that posttraditional morality represents only a form of cultural knowledge, whereas law has, in addition to this, a binding character at the institutional level (idem). What this phrase obviously seeks to hide is that morality is a very special kind of cultural knowledge since it seeks to be cross-cultural (it aims at universality, and is hence less cultural than national positive law), and furthermore that, understood from a Kantian perspective (as one can assume in Habermas), morality is a knowledge that has a binding character (it is not merely speculative knowledge, but rather an awareness of imperatives that impose themselves on our conscience) and that, as we

48 shall see, does not only bind persons and lifeworlds, but also binds systems (institutions) indirectly. Habermas (1998, 94) relates and distinguishes law from morality by conceiving the Principle of Law (LP) as mediator between two other principles, the Democratic Principle (DP) and the Moral Principle (MP), both of which are in turn derived from an undifferentiated Discourse Principle (D). Law is somehow linked to morality because if it is to be considered legitimate, it must not contradict certain basic norms of morality. It is however mainly linked to the Democratic Principle, since it is established in acts of popular sovereignty. Hence, rights and popular sovereignty (considered as legally-enshrined entities) arise from procedural application of the Democratic Principle (DP), and not from a Moral Principle (MP). The Democratic Principle states that only those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted (Habermas 1998, 110) 19. This principle is derived from the Discourse Principle (D), when we limit fair communicative action to what is concrete and enforceable and to a particular community of speakers. The Discourse Principle

19

What is obviously problematic in this definition is the problem of regress, since it does not give us any criterion to judge the legitimacy of the law that legally constitutes the procedure, given that this cannot be validated by the procedure itself a posteriori. Ultimately, we do not accept a fair, rational and reasonable democratic procedure as valid not because we recognize the legitimacy of the law of some enlightened monarch or revolutionary junta that historically established democracy for the first time, nor through some circular thought experiment where we seek to prove that a procedure is legal because it is democratic and it is democratic because it is legal. We ultimately judge a fair, rational and reasonable democratic procedure as legally legitimate on the basis of our moral intuitions, and in this sense the democratic principle is inescapably dependent on the moral principle.

49 can also yield the Moral Principle if universalized 20, but modern law cannot suffer universalization: it cannot and should not try to enforce a full-fletched morality. But how does Habermas define the Discourse Principle, which lies at a level of abstraction that is still neutral with respect to morality and law, for it refers to action norms in general (Habermas 1998, 107)? Here is the definition he provided in Chapter 3 of Between Facts and Norms (idem): Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses. When dwelling upon this formulation, the reader justifiably wonders in what sense such a principle is neutral with respect to morality. Maybe this principle does not entail a comprehensive moral theory, but surely it is value-laden, since it assumes that all affected persons be consulted (at least using a thought experiment, if we were to read the could agree are merely hypothetical, and possibly that they be consulted in actual fact). They are to be consulted as equals (the validity depends on the acquiescence of all, or the lack of a veto from each and every individual), in the context of a rational discourse: all possibly affected persons thus have the right to veto an action norm they find unacceptable in the

The Moral Principle is a universalization of the Discourse Principle (defined below), used for the justification of moral norms; it functions as a rule of argumentation for deciding moral questions rationally. Habermas (1998, 109) says that starting with the general presuppositions of argumentation as the reflective form of communicative action, one can attempt to elucidate this principle in a formal-pragmatic fashion.
20

50 context of such a discourse, and they obviously have a right to participate in such a discourse. But who says that all affected parties have such rights? Why should they be consulted? Why not let the technical experts decide, or the wiser or more excellent citizens, the aristoi? Why not consult the gods, and read the auspices or cast lots? Many people (still) consider that perfectly rational! And besides, should we really consult future generations (through a thought experiment) before approving laws that may affect them? Should we really consult migrants and obtain their assent before approving laws that affect them? Who says we should? Who says all human persons are to be treated as equals and as having participatory or vetoing rights in public discourses before this is established by law (which is very doubtful if we posit a value-neutral law-making procedure in first place!)? Actually, there is someone or something that says this, making the discourse principle plausible as a basis for both the democratic principle and a full-fletched principle of morality. And that is precisely a minimal morality. There is a notion of fairness linked to a notion of human dignity and to a notion of shared rationality at the heart of the Discourse Principle. We do not observe the flight of the birds or consult the stars to make common decisions but we ask humans, treating each as equally rational and equality entitled to be listened to seriously. They may in turn refer to authoritative elements in their lifeworlds or communitarian ethos for inspiration (whether we deem this rational or not), but if they

51 veto what the majority is arguing for in terms that are rationally convincing, we expect them to rationally convince the other speakers of the opposite. Actually, Habermas admits that his Discourse Principle has a normative content inasmuch as it explicates the meaning of impartiality in practical judgement (ibid.). It is obvious that he is trying to avoid the use of the word morality (Moralitt, which Habermas understands in the sense of a full-fletched Kantian proceduralist doctrine promoting selfdetermination of all members of society in a just manner), and even more the word ethics or more precisely ethos (Sittlichkeit, which, following a famous distinction made by Hegel, is understood to refer to comprehensive doctrines and customs regulating behaviour in particular cultures, religions and worldviews, built on premises that are not fully universalizable, and promoting the self-realization of members of a community that shares common practices, ends and conceptions of the good). Nevertheless, in his use of the word normativity 21, Habermas includes a notion of impartiality, or fairness, and in his definition of the Discourse Principle, this is understood in a very particular way, as we have seen. So, is the Discourse Principle truly neutral with respect to morality? It seems obvious

21

Speaking about subjective rights in Rousseau, Habermas explains what he means by normative. The normative content of human rights enters into the very mode of carrying out popular sovereignty. The united will of the citizens is bound, through the medium of general and abstract laws, to a legislative procedure that excludes per se all nongeneralizable interests and only admits regulations that guarantee equal liberties for all. According to this idea, the procedurally correct exercise of popular sovereignty simultaneously secures the substance of Kants original human right (Habermas 1998, 101).

52 to the reader that the notion of fairness and human dignity it assumes cannot be morally or ethically neutral, in the usual English meanings of the words moral and ethical 22. By excluding the word ethical, reducing the word moral to a very particular meaning (that of a comprehensive Kantian universalization ethic, reduced to a cultural phenomenon, dependent on propitious personality structures- ibid, p. 114), and by using ambiguous terms such as normative, Habermas appeases juspositivist readers by giving them the impression that he is not subordinating law and democracy to morality when in fact there is a lot of morality going on in his definition of the discourse principle and in his setting up of the discourse procedure. There is so much morality (in the non-technical sense of the term!) going on in his definitions that he manages also to convince readers sympathetic to jusnaturalist foundationalism that he has found a way of effectively establishing, within the legal and democratic procedure, a way of protecting human rights,

22

When we say that the law should be enforceable, the law should not demand the impossible, or a new law should be enacted according to the procedure established in the legal code, we may safely assume that such statements are somehow value-neutral, and that they can be situated fully within the realm of law. But it is not the same when we say that the law should be drafted using a fair procedure, or that all persons affected by a new law should be able to agree to it, or when we establish an idea of validity based on the fairness of an intersubjective communicative procedure (such that a well-balanced and formulated law or constitutional treaty drafted by experts but not well received by the majority should be considered as less valid than a poorly drafted law that enjoys the support of the multitude). Legal language and legal procedures, to be formally valid in purely juspositivist terms, need not imply a democratic process or a fair communicative procedure that assumes that all persons are equal and are entitled to participate in the drafting and enactment of law, that citizens (and even people who are not citizen) have rights to freedom of expression, association, and several other freedoms necessarily to make to create a democratic process that resembles closely to an ideal speech situation. In fact, for most of the history of humankind, legal codes and procedures have existed without making any of these modern assumptions.

53 a way of safeguarding a indisponible element within law, without referring to a superior law 23. Surely, when enacting this or that law, a higher law (such as Kantian moral law, or natural law) is not invoked (unless the law is contradictory to morality, a proviso which, as we shall see below, is far from being a trivial limitation). But this is possible because a higher law is invoked when drafting the procedure used to enact all law, and this reference to a higher law is actually accepted on the basis of propitious personality structures. Habermas may well doubt the effectiveness of morality in modern political orders, but surely, the mere balancing out of the will to power and egoistical-strategic action of a multitude of individuals does not by itself produce a legal system based on equality 24. Masses of people can be effectively repressed for long periods of time in non-egalitarian situations (e.g. regimes that support slavery and discrimination based on class, race, wealth, gender or sexual orientation) until those committing the repression are convinced that they are

A populist regime may well have a 67% majority in parliament, but if Habermas principles are to be respected (all concerned must not disagree, within rational deliberative processes), it will find it hard to use law to diminish human rights or discriminate against minorities. 24 Habermas (1998, 449) himself admits that the Hobbesian problem of founding a social order could not be satisfactorily resolved in terms of the fortuitous confluence of rational choices made by independent actors. This led Kant to equip the parties in the state of nature with genuinely moral capacities as Rawls would later do with the parties in the original position. Sure, pure rational calculators would not opt for the Rawlsian principles of liberty and equality unless constrained to think morally according to the general will (Rousseau) or by universalizing their maxims (Kant); otherwise, in a real world where inequalities are rampant, a rational calculator would not seek to reduce these inequalities so that all would benefit, but rather to find a place among those benefiting the most from the inequalities. But Habermas then concludes saying that today, following the linguistic turn, discourse theory provides an interpretation of this deontological understanding of morality. So there is a deontological morality packaged into discourse theory.
23

54 doing something wrong 25. Leaders like Mahatma Ghandi, Martin Luther King, Nelson Mandela and Lech Walesa can bring about social change peacefully and effectively because the personality structures of their opponents are ultimately propitious and open to their moral rebuke, whereas the students in Tiananmen and more recently in Tehran, or the monks in Myanmar are faced with opponents who still believe they are right or that they should not listen to the demands of the protestors. As long as an oligarchy in power thinks it is justified in depriving other citizens of freedom and in maintaining the situation of inequality (because, it claims, such a social structure is willed by God, necessary for economic progress, imposed by cultural values, demonstrated philosophically by Plato, etc.) and as long it has the means and cunning to maintain the status quo through repression and indoctrination of the masses, the idea enacting law according to the democratic principle will remain but a lofty, and actually inaccessible, goal. As we shall see below, the moral force of the notion of human dignity, when brought up in such situations, is of great importance; it has a central role in the rhetorical and imaginative processes that fuel social transformation. Indeed, no society would adopt fair procedures of legislation, such as those suggested by Habermas, if it did not value fairness and share some notion of human dignity. No pluralist nation would adopt, on a societal scale, the rules of communication that hold between a
25

Nietzsche would insist that the oppressors should not give in to this trick, since there is no such thing as right and wrong. In fact, if we wanted a legal system that is really independent of morality, we should learn a lesson or two from the Genealogy of Morals.

55 group of peers unless at least the majority of the persons physically residing in that nation were to start considering each other as peers, as holding equal rights in spite of their differences. And such reciprocal recognition must first be a moral one if we are to hope that, one fine morning, these peers are to come together and recognize each others rights legally through a valid (democratic) procedure. At this point, I would like to make a further observation regarding the relation between law and morality in Habermas. We have already mentioned that, according to Habermas, a legal order can be legitimate only if it does not contradict basic moral principles (1998, 106) and that even on a postmetaphysical basis of justification politics and law are [...] supposed to be compatible with morality (1998, 453). Logically, if contradiction or incompatibility with morality is to be avoided in Politics and law, then morality has the right to censor political and legal action norms that it considers unacceptable, and so negative morality (as a minimal system of universal prohibitions) does subordinate law and politics to its demands. If x must be compatible with y, but y does not have to be compatible with x (morality does not have to be compatible with law or politics!), then y limits the possible values of x, and in this sense subordinates x. Hence, to be precise, what Habermas is claiming is that positive morality (as a maximalist or perfectionist moral system emerges in an unlimited speech community, an ideal community of morally accountable subjects) does not subordinate law and politics to its imperatives. Modern law is not to be conceived as a reduced version of full-fletched moral law, a phenomenic copy of

56 a moral noumenon, simply cut down to what is enforceable and to what concerns external (public) behaviour. Rather, it enforces (in a way not contrary to a morality of minimums) the observation only those elements of moral behaviour (mainly the respect of certain rights) that the citizens decide are necessary to enforce (through exercises of popular sovereignty), and furthermore it enforces a number of behaviours, conventions and procedures that are not in themselves moral (but become moral duties once established by legitimate lawmaking), such as traffic regulations, taxation bands, etc. This distinction, however, does not necessarily solve our problem, since we still need to know if certain human rights are presupposed in the morality of minimums (in Habermas notion of the normative) that law and politics are bound not to contradict. We need to know if there are moral human rights that constrain the exercise of popular sovereignty when it co-constitutes a basic list of legal human rights in its originary emergence. But before dealing with this issue, I would like to quickly sketch Habermas construction of a set of legally-recognized human rights using the Legal Principle and the Democratic Principle. 4.2 Habermas list of subjective and human rights

At the end of Chapter 3 of Between Facts and Norms, Habermas describes how the democratic principle and the medium of law interlock to produce a series of placeholders for subjective and human rights. In this second version of the co-originality thesis, the democratic

57 principle (that represents popular sovereignty or public autonomy) enters into a reflexive relationship with the legal medium (that establishes subjective rights and guarantees a degree of private autonomy to those who do not wish to exercise their public autonomy by participating in public communicative processes). The result is a legal code, which determines the procedures for the exercise of popular sovereignty and guarantees certain classes of rights necessary for citizens to participate effectively in such an exercise. Other rights, that limit the coercion of the institutions that emerge from this exercise, are later on established, as we explained in section 1. The categories (or placeholders) of rights that emerge in the original exercise of popular sovereignty that establishes (historically or conceptually) the constitution are listed and explained (pp. 122-123). For example, Habermas mentions the basic rights that result from the politically autonomous elaboration of the right to the greatest possible measure of equal individual liberties, of the status of member in a voluntary association of consociates under law or of legal protection. He includes rights to equal opportunities to participate in processes of opinion- and will-formation in which citizens exercise their political autonomy and through which they generate legitimate law, and also rights to the provision of living conditions that are socially, technologically and ecologically safeguarded insofar as these are necessary, in a concrete polity, to have equal opportunities in the exercise of the previously-mentioned rights. These categories are placeholders, in the sense that we could take the list established in the UDHR and distribute

58 the individual articles in these pigeon-holes. However, the list must not come from the UDHR as something external and impose itself on the lawmaker. The UDHR can be justified by postulating an exercise of cosmopolitan popular sovereignty that establishes a sort of minimal world constitution. Putting aside the problems involved in such a notion, we can for the moment limit our discussion to the practise of constitution-making in a particular commonwealth. Habermas (1998, 126) insists that in this exercise, two elements are maintained in dialectic tension. On the one hand some categories of rights (namely the first three mentioned above) are unsaturated placeholders for the specification of particular basic rights; they are more like legal principles that guide the framers of constitutions. On the other hand, however, these framers must, without prejudice to their sovereignty, orient themselves by the above-mentioned principles insofar as they make use of the legal medium at all. What are we to make of this circularity? We could either dismiss it as a vicious circle in which the framers of the constitution are constrained by the normatively of the categories of rights they constitute, and yet (contradictorily) are not constrained by them since they do not exist prior to (and cannot prejudice) their exercise of sovereignty as legislators. Or else, we could understand this reflective construction in the sense of a hermeneutic circle whereby the categories of rights (as initial normative pre-judices in a Gadamerian sense that orient the framers of the constitution) guide the legal expression of the sovereignty of the law-makers, which in term constitutes a series of legal rights that allow

59 a critical comprehension and appraisal of the original normative pre-comprehension of subjective rights. And this brings us back to the question of what pre-comprehensions, what pre-judices are present in the contractarian state of nature, in the Rawlsian original position, in the Habermasian speech community while framing constitutional law. What lies underneath the reciprocal constitution of private and public autonomy, legal code and democratic principle, subjective rights and popular sovereignty? 4.3 A morally-laden discourse theory

The answer is by now quite obvious. There is a discourse theory, one that is normative, morally-laden, albeit not with a fully-fletched moral theory. But does discourse theory already suppose a set of moral human rights? We have already mentioned the distinction between legal and moral human rights in Habermas (1998, 155): If one wants to speak of law only in the sense of positive law, then in fact one must distinguish between human rights as morally justified norms of action and human rights as positively valid constitutional norms. However, legal human rights could be understood as positively valid constitutional norms at the level of the nation-State, or on the level of cosmopolitan society. Habermas (1998, 456; 2001, 118) seems to think that cosmopolitan legal human rights are equivalent to moral human rights since they are obtained through a univerasalization of the discourse principle (and hence through the moral principle). He also suggests ways how this can be achieved by transforming all

60 existing states into authentic constitutional democracies and offering all human persons the right of choosing whatever nationality they wish to adopt, or by developing the notion of legal world citizenship and embedding it firmly in international law (Habermas 2001, 118-119). However, simply reconstructing the dialectic between popular sovereignty and human rights on a global scale and assuming the discourse principle as the basis of this dialectic does not answer the question whether the discourse principle and communicative action itself presuppose pre-legal human rights that are morally-laden. In some of his writings, Habermas seems to exclude this categorically: the model of constitution-making is understood in such a way that human rights are not pregiven moral truths to be discovered but rather are constructions (2001, 122). But on what grounding are they constructed? This is precisely the question Habermas (1998, 460) seeks to avoid: If one defines the relation between morality and law [in the way we have seen above] and no longer uses the common label of rightness to identify the legitimacy claim of legal norms with the claim to moral justice, then on can leave open the further question of whether there are moral grounds for entering a legal order in the first place. [...] The positive law that we find in modernity as the outcome of a societal learning process has formal properties that recommend it as a suitable instrument for stabilizing behavioral expectations [...]. Philosophy make unnecessary work for itself when it seeks to demonstrate that it is not simply functionally recommended by also morally required that we organize our common life by means of positive law, and thus that we form legal communities. The philosopher should be satisfied with the

61 insight that in complex societies, law is the only medium in which it is possible to reliably establish morally obligated relationships of mutual respect even among strangers. Obviously, the need for some sort of positive law in a society seems so obvious that we do not to justify it morally. But what is much less obvious is that not any type of positive law will do. For most of human history since the invention of writing (an even before), positive law has existed and served its pragmatic function, while remaining totally oblivious of any notion of popular sovereignty and human rights, let alone Habermas complex construal of these elements into his particular notion of modern law. Furthermore, in many modern countries, there are modern laws liberalizing or regulating the latest financial instruments and technical innovations, but these laws are not the product of democratic procedures, nor do they form part of a legal system that promotes and respects human rights. The moral agnosticism of this paragraph would make sense if Habermas notion of modern law were to be so wide as to include the positive laws of such states. I do not think he is actually so tolerant. Modern law can generate human rights and establish democratic processes if we construe it in a very particular manner. The bare fact that in countries like Germany or the USA, constitutional law can be construed in a manner that allows the legal protection of rights and democratic processes does not necessarily mean that in all modernities it has to be construed in this way. Simply using a functionalist argument, and saying that in Germany and the US, this particular construal of modern law works (and therefore should be more or

62 less imitated all over the world) does not do the trick: in some theocracies, authoritarian and totalitarian regimes there are other forms of modern law, and they somehow work too, and maybe do a better job at stabilizing behavioural expectations than do the legal systems of Western democracies. So unless we show that there is a moral reason to adopt a notion of modern constitutional positive law such as that proposed by Habermas, human rights and democracy will simply be optional requirements, completely superfluous (if not positively harmful elements of destabilization) in a nation where there is some other sort of constitutional positive law that works. 4.4 Human Dignity, Ideology and Utopia

Furthermore, human rights, conceived merely as part of the legal establishment, and deprived of the utopian force of the idea of human dignity and of an expanding notion of equality, can become yet another constitutive element of repressive ideologies. As Habermas (2001, 120) notes: The individual advances in emancipation reveal in hindsight the ideological function that human rights had also fulfilled up to that time. That is, the egalitarian claim to universal validity and inclusion had also always served to mask the de facto unequal treatment of those who were silently excluded. This observation has aroused the suspicion that human rights might be reducible to this ideological function. In a recent lecture on The Concept of Human Dignity and the Realistic Utopia of Human Rights, given in Stony Brook University on the 30th September 2009, Habermas has made a

63 decisive step forward in this debate. He proposes the notion of human dignity as the moral source from which all of the basic rights derive their sustenance (Habermas 2009, introduction). Hence, Habermas now admits that human rights do have a moral existence, or at least a moral source, prior to their legal establishment by an act of popular sovereignty, be it on a national or an international level. They are not simply legal constructions. As he himself puts it, there is something inscribed in human rights implicitly from the outset the normative substance of the equal dignity of every human being which human rights only spell out (idem, 1). The text brings to mind phenomenological descriptions from French authors such as Levinas and Ricoeur, as Habermas considers the heuristic and inventive function of experiences of humiliation and vulnerability we go through ourselves and we encounter in the other human person 26: The different aspects of the meaning of human dignity emerge from the plethora of experiences of what it means to get humiliated and deeply hurt. The features of human dignity specified and actualized in this way can then lead both to a more complete exhaustion of existing civil rights and to the discovery and construction of new ones. It is important to note the two terms: discovery and construction. There is an element of construction, since the notion of human dignity points utopianly to something that has yet to be achieved through political and legal means, and fires up human inventiveness and imagination, making us desire and look toward a new and better world order. While legally-

26

Torralba Rosell (2005, 68-74) discusses the notion of human dignity as vulnerability in a number of French authors, such as Franois-Xavier Dumortier (1993, 21).

64 established human rights may be used as an ideological smokescreen to maintain the status quo, the idea of human dignity challenges utopianly the legal and political establishment revealing new situations of injustice, inequality and lack of freedom, and promoting the legal recognition of new human rights and the wider interpretation of existing ones. This reminds us of Paul Ricoeurs Lectures on Ideology and Utopia, (1986), where the author argues that, while both ideology and utopia have important positive functions, utopia is one of the correctives to the problems raised by ideology. Utopia uses the rhetorical device of a crazy dream (pathological function) to allow a subversion of the status quo and creation of imaginative variations of current power structures (pivotal function) and to provide a critique of the present situation and a possible alternative (positive function); cf. Sargent (2008, 263-273); Thomasset (2005, 525-541). In his lecture, Habermas (2009, 1) shows how the neoliberal ideology, flaunting its support for legally-established liberal rights to the detriment of other categories of rights, destroys the balance between the different generations and ends up eroding all human rights, whereas the notion of human dignity grounds the indivisibility of all categories of human rights. However, there is also an element of discovery, besides that of creation and imagination. Habermas says that human dignity forms the portal through which the egalitarian and universalistic substance of morality is imported into law (idem). Dignity links right claims (and the reciprocal granting of rights in Habermas practice of framing a constitution), to a moral given. Obviously, Habermas does not understand that given in the sense of

65 something inborn, inherent to human nature, created by God; this would be too metaphysical and religious for his philosophical outlook. However, as Rawls does in Political Liberalism, he acknowledges the existence and importance, within a pluralistic society, of modes of generally acceptable justification whose epistemic dimension is beyond state control, that may in fact be religious or metaphysical. And, as Rawls does, he limits this moral given to a module, a morality of minimums (as we have called it above, following Adela Cortina): Human rights circumscribe precisely that and only that part of morality which can be translated into the medium of coercive law and become political reality in the robust shape of effective civil rights. (Habermas 2009, 1) In a footnote Habermas recognizes that in his earlier works, he had not taken into account the fact that the cumulative experiences of violated dignity constitute a source of moral motivations for entering into the historically unprecedented constitution-making practices that arose at the end of the 18th century and the status-generating notion of social recognition of the dignity of others provides a conceptual bridge between the moral idea of equal respect for all and the legal form of human rights (idem, note 15). Hence, we can conclude that law is subordinated to a minimal morality in the sense that human persons enter the modern law-making process as construed by Habermas for moral (and not for purely functionalist) reasons. Habermas provides a genealogy of the notion of equal human dignity that ends up giving equal status to all human beings; only when this equal status

66 becomes a moral given does the democratic principle make sense and only then can such a principle interact with the legal form within a law-making practice that establishes legal human rights on the basis of popular sovereignty (and vice-versa) 27. 4.5 Human rights, human dignity and discourse theory

If we acknowledge that human rights are ultimately based on the moral notion of human dignity, the original question of grounding repeats itself here. What is this notion based on? The question is relevant because, just as established legal human rights could become a ideological smokescreen for a repressive or imperialist will to power, so too can the idea of human dignity serve the utopian rhetoric of a subversive social minority (or majority). If appeals to morality have no real grounding, as Nietzsche claims in his works (e.g. in the Genealogy of Morals), then notions such as that of human dignity may become a way of having the strong the aristoi, the noble and better individuals dominated by the weak

27

In the third part of his lecture, Habermas underlines the utopic aspect of the notion of human dignity and the rights it presents for legal entrenchment. Speaking about the tension between human and civil rights, Habermas says that human rights constitute a realistic utopia insofar as they no longer paint deceptive images of a social utopia that guarantees collective happiness, but anchor the ideal of a just society in the institutions of constitutional states themselves. I think it is very important to highlight the utopic aspect of human dignity and human rights against the positions of authors such as Amartya Sen (2009) who seem to completely ignore the imaginative and rhetorical function of contract theories and utopic construals of perfect institutions. Simply seeking to make current societies less unjust, as Sen proposes, does not allow us to escape the culturally-embedded ideologies that stifle and constrain our notion of the just and seek to convince us that there is ultimately nothing so unjust in our societies as to warrant a process of change (that by itself usually generates some measure of injustice). Of course, Sen proposes cross-cultural dialogue as a means of overcoming parochialism and discovering situations of injustice in ones own culture, but as long as all major world cultures think within the same box (regarding slavery, the status of women, the legitimation of war, homosexuality...) there is no way that a simple dialogue on existing cultural best-practices will reveal the existing cross-cultural bad practices, unless we use our imagination to narratively create ideal societies with ideal institutions, and confront our real societies with these utopias.

67 and pathetic losers, who have no real warrant for subverting the aristocratic social structure but the spiteful desire to express their resentment. Why should all individuals who exhibit the traits that characterize the taxonomic species Homo and genus sapiens be considered as equal in dignity, a dignity that is considered attached to individuals (and not only to the species as a whole), a dignity that is not so much high-priced as it is priceless? Why should we not restrict dignity to a smaller group, a class, a race, a handful of dignitaries who wield power over the rest? Why should we not attribute rights and entrust law-making and political decisions only to those who are mighty be it in terms of strength, power, money, manipulative language and let might establish right, as Trasymachus, Gorgias, Polus or Callicles would have argued long before Nietzsche, had the manipulative maieutics of Socrates and the mighty pen of Plato not silenced them too early and cast them among the losers in the history of philosophy? I think that option between a moral and an aesthetic life, such as that proposed in Kierkegaards Either/Or depends on a choice ultimately be taken by individuals, and this choice depends partially on their existential experiences. However, there are arguments that support the option for morality. Surely, such arguments do not provide an absolute grounding that would force everybody within a society to adopt a moral life on the basis of a rational demonstration (ethics is not mathematics and pace Spinoza it cannot be axiomatized; furthermore, as Bobbio rightly reminds us, ethical rationalism is a fallacy).

68 This is why, just as Habermas claims that the Enlightenment project is not defunct, I believe that the jusnaturalist project is not defunct, neither, even though it must be radically re-framed and daringly proposed to a very hostile academic audience. Furthermore, in spite of all the aversion towards natural law that Habermas jargon and genealogies embody, his thought does open new pathways for jusnaturalism. If human rights and popular sovereignty, if law, democracy and universal morality are based on the discourse principle and this is based on a minimal morality of human dignity, then we should ask what sort of being is a human being, if we must assume that it does possess such a dignity. Rather than going back to some ahistoric notion of human nature, a cosmopolitan and trans-cultural minimal morality based on the notion of human dignity must ask frame the question who are we, humans? in terms of the questions what makes us the beings we are? and what will make us the beings we choose or feel called to be?. Existentialism teaches the importance of asking this second question. Though limited by our history, our social and physical conditionings, we can to some extent choose who we want to be as a human race, be that choice be purely rational or be it based on a some notion of a calling inspired by a religious worldview or a political utopia. We cannot, however, make that choice as single individuals, groups or nations. We must chose and work towards what will make us more human. Authors like Habermas and Rawls, in my opinion, rightly point out that, in spite of the complex history and geography of modernity, the human race is looking towards a future marked by widespread liberty and

69 equality. The utopian thrust of the moral notion of human dignity, combined with the institutional stability of modern law that consolidates achievements in human rights and democracy on the national and international levels, opens up a possible future where all world citizens are treated as equals, equipped with legally-recognized freedoms and with the means necessary for their enjoyment. Therefore, part of the answer to Nietzsche and the Sophists objections to morality is that, in spite of our greed and egoism, our will to power, our desire to dominate others, we do prefer a world where all can be free and equal (even though we realize that, in a finite world with limited resources, and equal distribution of freedoms and opportunities will entail limits to such freedoms and opportunities). We do prefer this sort of world to a world of repression and violence where most of humanity is left to rot in misery, even were we to be placed among the happy few who lord it over the rest. When we reflect lucidly on our history and on human history, especially on those moments when we looked into the gripping countenance of the vulnerable other in her misery, humiliation or suffering, or when we were exposed to the ghastly face of wanton violence and human want, we know that we do not want to be bermenschen in a society of bermenschen. So when we sit down and think what we want to be as a human society and how to get there, the notion of human rights sets the ball rolling and we can start to see the moral (normative) and functional need (especially in modern pluralistic societies) of legally-established human rights enmeshed in a democratic practice. This duo can thus be seen as grounded in the

70 nature we want to be, since human rights and democratic expressions of popular sovereignty make us the beings we want to be. However, there is also the another question to consider: what makes us the beings we are? Before the advent of modern philosophical jusnaturalism and the theology of the manuals in Catholic countries, scholastic theology and philosophy had moved towards a notion of human nature understood in terms right reason (recta ratio), especially in authors such as Francisco Surez. Reason is what makes us the beings we are, especially practical reason which involves conscience and will, and so brings out our ability of making use of freedom and living as moral beings, responsible for their choices and actions. The philosophy of conscience reinforced all this with the notion of autonomy, however it also packaged autonomous reason with individualism and secularism, which distort the notion of right reason and make it a much less acceptable answer today to the question: what makes us the beings we are? Habermas can answer that question today in a more convincing way by invoking the notion of communicative reason. I will not delve here into Habermas and Apels theory of communicative action here but simply present some personal reflections. Communicative reason is a source of communicative rights, that when universalized provide placeholders for moral human rights that are prior to legal human rights since they are assumed in the communicative processes that ensure the legitimacy of the constitution-making process. As

71 we have seen at length, Habermas (1998, 110) conceives this process as a practice of selfdetermination on the part of legal consociates who recognize one another as free and equal members of an association they have joined voluntarily. This means that the exercise and practice that originally establishes legal human rights can only be performed by human beings who already recognize other human beings as having moral human rights: the right to join an association, the right to refuse to join an association, the right to be treated fairly and to be considered equal to other members of the association. The typical jusnaturalist-foundationalist question at this point is: what grounds such communicative practices and their normativity? Are there innate or natural communicative rights? In answering this question, I think that we should not abandon the co-originality thesis, even if we are outside the realm of modern law. Habermas intuition that we should always keep together private and public autonomy holds also at this level. I believe we can posit a moral co-originality of human rights and popular sovereignty that is more originary that the legal co-originality that Habermas is so concerned with. Habermas construal owes much to Rousseaus Social Contract, but at this point, a glance at the state of nature and the genealogies in Rousseaus Discourses will prove more instructive. Rousseaus biggest flaw, in my opinion, lies in his conception of human persons as loners in the state of nature. Human persons are social beings, and they cannot recognize their moral autonomy if not in the context of a relationship of reciprocal recognition with other

72 people within a community. A commonwealth, however, is not built by the confluence of a multitude of loners. Rousseau fears the fragmentation of the general will because he doubts that his assembly can really handle fair communicative processes. Nevertheless, metaphorically, we should not look at Tarzan as the typical person in the state of nation, but rather at Romulus and Remus, a group of peers who can found Rome because they already constitute a community of equals and can recognize one another as having rights, at least within the practice of a basic game of communication. Human beings are already part of a real minimal moral community (though not an ideal, universalized one) before the event of modern law, of universalizing moral theories based on full-fletched notions of human autonomy, and even before the existence of the comprehensive ethoses of the great religions and civilizations born in the axial age or before. Humans already concede to each other minimal moral subjective rights and constitute a minimal democracy with the very emergence of language: if I accept to join another person in a rational language game, I already recognize her (at least) as a minimally rational being and equal to myself, (at least) within the framework of the language game, and no longer a barbarian, a utterer of what to me is incomprehensible sound (and so not much more than an animal). I already constitute with her a language community that is open to include those who are ready to learn and join the language game, following the basic rules of grammar. This is even more so when the purpose of the language game is that of reaching an understanding, and when it is set up so as to exclude the

73 use of external coercion and the manipulative use of language. There are obviously many other language games possible that do not have such constraints, but when we reach out to the other in an attitude of friendship, we willingly accept such constraints. Here too, the notion of human dignity is central: it helps us extend the mode of communication we use among friends and among peers to others whom we consider very different from us and with whom we disagree; we know that if we do not respect such persons or at least tolerate them and try to set up a fair dialogue with them, the only other was to resolve our differences would be violence and oppressive domination, which entails that someones dignity will be violated, be it ours or theirs.

Conclusion
The discussion above indicated that the notion of human dignity and the nature of communicative reason (with the communicative rights it entails) can ground morally the warrant for the legal procedure described by Habermas, necessary for the establishment of actionable human rights on a national and international level. This manner of grounding human rights, even if it beckons back to an unfashionable natural law strategy, does allow us to overcome the problems posed by notion of human rights restricted to the modern legal and democratic playground uniquely warranted by the fact that it works. In a way, our grounding strategy may be considered as a revamped version of jusnaturalism, whereby the nature of human communication itself becomes the groundwork of morals

74 and human interaction, defining a basic set of moral human rights co-originally with a basic moral political community, that eventually grounds practices, historical events and conceptual exercises that entrench into modern law the procedures defining concomitantly both legal popular sovereignty and legal human rights. I find this strategy interesting because it escapes the lack of firm grounding of juspositivist positions and of authors such as the later Rawls, who tells us that all worldviews should incorporate his module if we are to avoid a modus vivendi consensus on the theory of justice, but does not tell us what happens if a number of worldviews in fact do not incorporate his module. Thus, it does not lack an epistemological or, to be frank, an ontological grounding in the nature of human communication, a grounding that philosophy before Heidegger and Logical Positivism would openly call metaphysical, since rational communicative structures are somehow ultimately rooted in the being of human beings and intersubjectivity of human thought entails a particular construal of the human self, of that essence within which thought is phenomenally encountered 28. Furthermore, this grounding strategy escapes the problems of traditional jusnaturalist theories, namely their being metaphysical in a sense deemed unacceptable in modernity, that is, their dependence on religious dogmas, worldviews and anthropological-

28

The very fact that thought is construed as something that transcends the boundaries of that essence says something about that essence.

75 cosmological theories that cannot be readily adopted by everyone in a pluralistic, disenchanted modernity. Though such a grounding does not pretend to solve the long-standing debate between juspositivism and jusnaturalism, or to dissolve all forms of scepticism regarding human rights, it may serve a contribution to the debate, and discover in the richness of the thought of a great author such as Habermas a number of resources that may help us take the debate beyond Habermas own limitations.

Ren Mario Micallef Boston, December 2009.

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