Cosmopolitanism, sovereignty and human rights - in defense of critical universalism

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Cosmopolitanism, sovereignty and human rights - in defense of critical universalism

Elena Namli - ThD, Professor of theological ethics.

Uppsala university, Sweden Faculty of Theology

What is a reasonable understanding of the relationship between human rights protection, on the one hand, and respect for people's sovereignty, on the other? In order to address this question this article utilizes the distinction between political cosmopolitanism on the one side, and moral cosmopolitanism on the other. Political cosmopolitanism implies that some form of global citizenship is needed for universal protection of human rights. Critics of this position stress the importance of self-governance and state sovereignty. In this article, it is claimed that rejection of political cosmopolitanism can be combined with embracement of moral cosmopolitanism, i.e. embracement a global moral community where respect for human dignity and therefore recognition of human rights of each individual is not limited by national citizenship and borders.

In this article, I defend a non-violent form of moral cosmopolitanism. Such a cosmopolitanism demands a modification of universalism of human rights. I distinguish between descriptive and epistemological universalism on the one hand and pure normative universalism on the other. Descriptive and epistemological universalism, I demonstrate, are aggressive forms of univer- salism that tend to legitimize domination. Critical universalism, which is a form of pure normative universalism, is justified in that it inspires political liberation within different traditions without legitimizing cultural monopolism and violence of the Global North.

Keywords: cosmopolitanism, normative universalism, critical universalism, human rights and sovereignty

Космополитизм, суверенитет и права человека - в защиту критического универсализма

Елена Намли

Let me start by highlighting an important distinction between three different, but related, forms of universalism. These forms can be labeled in various ways and are recognized by some philosophers and ethicists. The terminology adopted here has been developed by the Swedish ethicist C-H. Grenholm Grenholm C-H. Etisk teori. Kritik av moralen. Lund, 2014.. The first type of universalism is descriptive and states that there are some norms that are shared trans- contextually. More sensitive descriptive universalists would claim that while norms might appear different, they are substantially the same. Martha Nussbaum's defense of the universalism of human rights in her Women and Human Development represents an example of such a position Nussbaum M. Women and Human Development. The Capabilities Approach. Cambridge, 2000. [24]. Despite acknowledging the existence of what she calls “obtuse universalizing”, Nussbaum maintains that “[c]ertain basic aspirations to human flourishing are recognizable across differences of class and context [,..]” Ibid. P. 31.. It is not unusual, then, to find philosophers restricting their descriptive universalism to negative norms, such as the condemnation of violence or the prohibition of murder, on the grounds that a shortlist of such prohibitions would be an object of ready universal consensus Ignatieff M. Human Rights as Politics and Idolatry; Miller D. Human Rights in a Multicultural World // Mдnskliga rдttigheter - fran forskningens frontlinjer / Ed. By D. Amneus, G. Gunner. Upp-sala, 2003. P. 39-50..

The second form of universalism is normative. It contends that, regardless of factual disagreements, moral norms must include the claim to universal validity.

This form of universalism states that although people often disagree on the issue of justified norms, moral norms should be judged by the criterion of universalization. While normative universalists differ as to how these universal norms are to be identified, it is not unusual for normative universalism to be combined with some form of rationalism. Arguably, the most influential universalist is Immanuel Kant, who defends the position that only norms that can be universalized by the proper use of reason are authentically moral norms Kant I. Grundlegung zur Metaphysik der Sitten. Leipzig, 1920. P. 20.. As R. Hare observes in his seminal work Moral Thinking:

Universalizability can be explained in various equivalent ways; it comes to this, that if we make different moral judgments about situations which we admit to be identical in their universal descriptive properties, we contradict ourselves Hare R. Moral Thinking. Its Levels, Method and Point. Oxford, 1981; Nagel T The Problem of Global Justice // Philosophy and Public Affairs. 2005. Vol. 33. No. 2..

The third form of universalism is epistemological and claims that the justification of valid norms should transcend contextual differences. According to this form of universalism, justifying a norm requires that it be made universally reasonable; that is to say, reasonable for every rational person in every context. The Enlightenment is often - in my view, correctly - regarded as the culmination of such epistemological universalism. Kant's famous axiom Sapere aude! (Dare to use your own reason!) in Was ist Aufklдrung? (1784) asserts that there is a single correct path to reason which is potentially discoverable by anyone who reasons freely.

How, then, are human rights universal, and when do they become an instrument of imperialistic domination? In what follows, I will examine several arguments against the notion of the universality of human rights, while bearing in mind that such universality can mean three different things. First, that human rights are descriptively universal, that is, universally acknowledged. Second, that human rights aspire to universal validity; and third, that the justification for human rights is universal. As already stated, the purpose is to evaluate different visions of the universality of human rights, and to relate this evaluation to moral cosmopolitanism.

One line of criticism of the belief in the universality of human rights highlights the tendency of the Global North to disregard other political and cultural traditions by universalizing its own conventional values. Typically, the normative individualism of modern liberalism is presented as universally characteristic of human rights. This individualism holds that the value most deserving of strong protection is individual freedom of choice. M. Ignatieff is a prominent defender of the idea that such individualism is a universal value. He writes:

... Western human rights activists have surrendered too much to the cultural relativists' challenge. Relativism is the invariable alibi of tyranny. There is no reason to apologize for the moral individualism at the heart of human rights discourse [...] rights discourse is individualistic [...] Human rights is morally universal because it says that all human beings need certain specific freedoms “from”; it does not go on to define what their freedom “to” should consist inIgnatieff M. Human Rights as Politics and Idolatry. P. 74-75..

It is obvious that although he is aware of non-Westem critiques of human rights individualism, Ignatieff asserts its universality.

Opponents of Ignatieff argue that a particular feature of Western liberal human rights culture, namely, its individualism, is uncritically presented by its proponents as universal. The alternatives to such universal individualism are described by liberals as mere historical and cultural particularities to be overcome. It is beyond the scope of this essay to develop an argument in defense of either individualism or non-individualism. Nonetheless, it may reasonably be asked whether presenting one's own tradition, in this case liberal individualism, as universally binding in fact suppresses the other's right to present arguments for the validity of their tradition. Needless to say, all traditions are dynamic and demand critical interpretation. But by labeling one tradition as universal, we deny the other the right to self-determination I believe it is crucial to recall the long history of liberal imperialism and colonialism when we dis-cuss contemporary politics and political ethics of human rights. There are significant contributions made by professional historians that deserve our attention here (Grenholm C-H. Etisk teori. Kritik av moralen. Lund, 2014)., and, in the process, remain uncritical of our own tradition.

A variant of this critique of human rights universalism is to be found in the skepticism toward how many human rights agents prioritize human rights. A habit of avoiding explicit discussion of the issue of prioritizing among conflicting rights has been discussed by scholars such as L.W. Sumner. In his seminal work The Moral Foundation of Rights, Sumner argues persuasively that in order to give a comprehensive definition of a right, it is first necessary to present a reasonable understanding of its strength. As Sumner states:

[...] the strength of a right is its ability to override, or susceptibility to being overridden by, competing moral considerations. The strength of a right has been completely specified when its weight has been given relative to every sort of consideration with which it might compete Sumner L.W. The Moral Foundation of Rights. Oxford, 1987. P. 124..

While actors in different situations may legitimately argue in favor of different understandings of the strength of various rights, to ignore the need for transparent discussion of the subject runs the risk of increasing the misuse of the concept of human rights. One such misuse is the tendency to assert the universality of some highly contextual priorities between rights. As far as I can see, Western political cultures evince a widespread tendency to frame certain priorities of rights as universal. Non-Western actors are more inclined to argue that priorities be understood as contingent upon contextual factors such as culture, religion, or tradition. When Western human rights agents argue for according a stronger status to traditional liberal rights (freedom of speech, freedom of religion interpreted as a negative right, sexual rights, etc.) they tend to present these priorities as universally binding. This stands in sharp contrast to non-Western societies, whose human rights agents often rationalize their priorities in terms of “Asian values” or “Sharia-related priorities”; that is, without claiming that their reasoning is universally binding. Western liberal critics of this position question it on the grounds that traditions can be, and often are, used to legitimize human rights violations. While this is true, it is also true that various liberal cultures make different tradition-related priorities between rights.

Japanese scholar of international law Y. Onuma maintains that the framing of contextual Western priorities as normatively universal is very often carried out by influential international NGOs. Well-established human rights actors such as Amnesty International are clearly in thrall to the Western human rights agenda. Onuma demonstrates that reports produced by organizations such as Amnesty International and Human Rights Watch mostly deal with civil and political rights and are less than transparent in how they set their priorities Onuma Y. Toward an Intercivilizational Approach to Human Rights // The East Asian Challenge for Human Rights / Ed. By J.R. Bauer, D. Bell. Cambridge, 1999. P. 113.. In a recent study titled “International Law and Power in the Multipolar and Multicivilizational World of the Twenty-first Century”, Onuma remains critical of international Western NGOs. He writes:

However, it cannot be denied that the basic assumptions, ways of thinking, and cultural propensities of many influential NGOs are evidently West-centric. Most of the globally influential NGOs are based in the West; NGOs in Asia and Africa are far less influential. To make matters worse, some of the non-Western NGOs are even more Western-centric that their Western counterparts, because of their members' educational backgrounds in the West, their inferiority complex toward Western society, and their elitist status in their own societies Onuma Y. International Law and Power in the Multipolar and Multicivilizational World of the Twenty-first Century // Legality and Legitimacy in Global Affairs / Ed. By R. Falk, M. Juer- gensmeyer, V. Popovski. Oxford, 2012. P. 186..

Onuma's critique warrants our attention, I believe, not least because it seems clear to me that framing a specific prioritization of rights as universally normative can easily be combined with a rejection of the other's right to present arguments for an alternative prioritization strategy. In this view, such a rejection can serve to legitimize stigma, and even racism, in ways that fundamentally undermine the credibility of the concept of human rights. A very recent example of how human rights can be co-opted by a racist agenda can be seen in the European discourse on the defense of freedom of speech. Freedom of speech is publicly declared to be under threat by Islam or “Islamic values” even though there is very little evidence to support the claim that freedom of speech in Europe is seriously threatened by powerful Islamic actors. What is obvious is the fact that a few desperate and occasionally violent acts by individuals convinced that some modes of free speech must be restricted because they violate Islamic tradition have been represented as posing a threat to European democracy and human rights. A clear contrast emerges when we consider that far more common legal and political restrictions of freedom of speech - namely, those based on security - are not viewed as dangerous to the same degree. Nor is there any significant discussion of how the serious underrepresentation of Islamic voices in public space in Europe poses a threat to freedom of speech and, thus, democracy.

The tendency of powerful actors within human rights discourse to present their view of human rights as normatively universal has been criticized from the vantage point of communicative ethics Benhabib S. Claiming Rights across Borders: International Human Rights and Democratic Sove-reignty // Americal Political Science Review 2009. Vol. 103, No. 4. P. 691-704.. This tendency ignores a crucial norm of human communication, namely the recognition of the other's equal entitlement to be a discursive agent. Later in this essay I discuss how a coherent human rights univer- salism might be constructed. For now, let me simply emphasize that when Western liberal views of human rights are labeled universal in the sense of being beyond a need for further deliberation, human rights are likely to be transformed into an instrument of unjust communication and political or military violence. The increasing invocation of human rights as a justification for international military operations with the goal of effecting regime change in sovereign countries is the most alarming of these contemporary developments My own view is that the extended interpretation of the Responsibility to protect is used, in viola-tion of UN treaties, to legitimize interventions in sovereign states, thereby causing state collapses and refugee catastrophes. (Byers M. International law and Responsibility to Protect // Theorising the Responsibility to Protect / Ed. by R. Thakur, W. Maley. Cambridge, 2015. P. 119-124; Mil-ler D. Human Rights in a Multicultural World. P. 265-292).

To summarize the discussion so far, several forms of human rights universalism need to be scrutinized. First, we need to critique the tendency to elevate normative conventions set by those with most power to the status of a core foundation for universal human rights. Second, we need to critique a universalism which allows the dominant liberal view of how to prioritize conflicting human rights adequately to exclude other reasonable alternative visions of how such rights can be implemented and balanced. The third problematic form of universalism is the dominant “self-righteous idealistic universalism” Onuma Y. Transcivilizational Perspective on International Law: Questioning Prevalent Cognitive Frameworks in the Emerging Multi-Civilizational World of the Twenty-First Century. Leiden, 2010. P. 152-153. of Western agents, as Onuma has called it, which, in many cases, prevents other agents from playing an equal part in deliberations about human rights.

What does such scrutiny mean in terms of the three forms of universalism of rights presented above? The descriptive universalism of human rights must be firmly rejected. Human rights are always institutionalized and constructed in different concrete social settings and cultures. Therefore, to disregard differences in interpretations as well as in priorities is to contribute to the unjust monopolization of ideational power. Such monopolization legitimizes international violence at the same time as it contributes to a democratic deficit domestically.

The epistemological universalism of human rights is ambivalent. On the one hand, the ideal of universal rationality encourages social critique and, therefore, political and social liberation. On the other hand, an epistemological universalism can be framed as a rejection of the other's equal right to define reason and rationality. Therefore, I believe that we should question any form of strong epistemological universalism; i.e., the idea that universal criteria of rationality can be uniformly formulated and applied to any context at any time. This being said, I still defend a weaker version of epistemological universalism. Such a universalism recognizes reason as embedded in concrete social structures and simultaneously states that people can reason trans-contextuallyMy notion of trans-contextuality includes class as well as cultural and political differences.. The question that any plausible theory of weak epistemological universalism must address is, thus, “what material and ideational conditions are needed in order to make trans-contextual reasoning possible”?

Lastly, I believe that the normative universalism of human rights must be defended and further developed. Normative universalism should be framed in a way that, on the one hand, prevents human rights from becoming an instrument of international violence, and, on the other hand, sustains the transformative political potential of human rights in different societies. This form of universalism constitutes the very core of a justified moral cosmopolitanism. I call this normative universalism of human rights critical normative universalism, and describe it in the following, concluding part of this essay.

Critical universalism: toward a non-aggressive, emancipatory vision of human rights

Let me further clarify my view on moral normativity. My position might be described as materialist value constructivism. It views moral values as social constructions related to concrete societies and concrete positions held by people within complex relations marked by economic, political, and discursive power. Justice, peace, human rights, and any other moral values acquire force by virtue of social perspectives. What does this mean? First, it means that in order to change the moral norms of a society, we need to address its social structure. Secondly, it means that it is very often the marginalized groups who articulate progressive challenges to the moral conventions of any given society. Thirdly and most importantly, materialist constructivism is not a nihilistic position. I believe that although moral conventions reflect the social positions of individuals and groups, materialist constructivism involves a critical level of practical rationality that makes it possible to approach moral conventions critically and self-critically. If applied to the issue of the universality of human rights, it means that universal human rights cannot be presented from a position that is not a particular position. These positions are involved ipso facto in a struggle over universality that challenges their particularism.

The constructivist critique of the universalism of human rights highlights the risk of exclusion with regard to marginalized social positions. One of the more influential analyses of how powerful actors acquire and maintain a monopoly on universality has been developed by French sociologist P. Bourdieu. Bourdieu makes use of Austin's term “scholastic view” to denote a position of reasoning “distanced from necessity and urgency” that, in turn, presupposes material conditions unavailable to most people. Bourdieu's “scholastic view” includes the claim to universality. As he observes:

Most of the human works that we are accustomed to treating as universal - law, science, the fine arts, ethics, religion, and so forth - cannot be dissociated from the scholastic point of view and from the social and economic conditions which make the latter possible. They have been engendered in these very peculiar social universes which are the fields of cultural production - the juridical field, the scientific field, the artistic field, the philosophical field - and in which agents are engaged who have in common the privilege of fighting for the monopoly of the universal, and thereby effectively promoting the advancement of truths and values that are held, at each moment, to be universal, indeed eternal Bourdieu P. Practical Reason. On the Theory of Action. Stanford, 1998. P. 135..

As a result of various material conditions, most people are excluded from what Bourdieu calls the struggle for the legitimate monopoly over the universal Ibid. P. 139.. The advantage of Bourdieu's approach to this struggle is that he neither demonizes the winners nor idealizes the marginalized. What he demonstrates is, rather, the social logic of exclusion within the discourse on universal values.

With all this in mind, we can now further clarify the notion of critical universalism of human rights. The universality of human rights is a mere normative universality that recognizes the ambivalence of human reason as both context-dependent and context-transcending. Critical universalism is Kantian in the sense that it obliges us to make serious efforts to reason about human rights in a way that makes those rights universally recognizable. No concrete setting of the protection of human rights is beyond critique if human rights are normatively universal. As K. GQnther's observes: “[...] critical self-correction is part of the claim to universalism” Gьnther K. The legacies of Injustice and Fear: A European Approach to Human Rights and their Effects on Political Culture // The EU and Human Rights / Ed. by P. Alston. Oxford, 1999. P. 122..

Further, Kantian normative universalism is a powerful critical instrument to be applied to the politics of identity when such politics undermine the legitimacy of social groups and individuals who challenge existing conventions and power structures. Although collective self-determination might include different visions of national identity, domestic political visions should not be framed in terms of the identity protection. As already mentioned, recent developments in Europe and the USA demonstrate how the “identification” of human rights - i.e. using human rights as an essential part of European, Swedish, or another identity - transforms them into yet another instrument of domination and xenophobia and, simultaneously, deprives human rights of their critical democratic potential. Therefore, the normative demand for the universalization of any justified norm counteracts, or at least can be used for counterstrategies against, the reduction of sovereign politics to identity protection.

At the same time, the critical universalism that I am defending challenges Kantianism in that it relates practical reason to social practices and thereby links human rights to their institutionalized protection and the social positions of both individual human beings and groups. The normative constructivism I have in mind is a materialistic understanding of the political potential of human rights. Social emancipation from concrete forms of domination and oppression turns human rights into an instrument of social transformation. Inversely, the possession of power tends to transform human rights into a discourse of legitimization of that powerannounced the plan to create The Human Rights Institute and produces new human rights docu-ments that demand that authorities within the state create such “plans” in different parts of the country..

I believe that the dialectic of critical universalism captures the uniquely liberating potential of practical reason; i.e., ethics. The desire for universal values and just institutions is an essential feature of ethics that, in every authentic application, remains radically critical of concrete conventions and institutions. My claim is thus that universalism is only justified as a mere normative universalism that can inspire liberation without exclusion and, therefore, makes institutional transformations possible. Importantly, this universalism deconstructs any concrete liberation and institutional setting as, simultaneously, a (new) form of oppression. Therefore, I describe my notion of the universalism of human rights as an open universalism. To quote S. Benhabib: “[u]niversalism is an aspiration, a moral goal to be strived for; it is not a description of the way the world is” Benhabib S. Is There a Human Right to Democracy? Beyond Interventionism and Indifference // Philosophical Dimensions of Human Rights. Some Contemporary Views / Ed. by C. Corradetti. Dordrecht, Heidelberg, London, New York, 2012. P. 198..

To conclude in political terms, the position defended in this essay means an embracement of the moral cosmopolitanism of human rights that is non-violent due to its rejection of both the descriptive and the strong epistemological universalism. Such a cosmopolitanism confirms the importance of political citizenship as the single legitimate instrument of social transformation. The moral cosmopolitanism of human rights, when built upon an open normative universality, acknowledges the importance of national sovereignty and identity at the same time as it rejects any reduction of the political to efforts to sustain the existing conventions and institutions.

Список литературы / References

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Benhabib, S. “Is There a Human Right to Democracy? Beyond Interventionism and Indifference” // Philosophical Dimensions of Human Rights. Some Contemporary Views / Ed. by C. Corradetti. Dordrecht Heidelberg London New York: Springer, 2012, pp. 191-213.

Bourdieu, P. Practical Reason. On the Theory of Action. Stanford: Stanford University Press, 1998. 165 pp.

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