Article Title: Habermas on Human Rights: Law, Morality, and Intercultural Dialogue.

Contributors: e!!rey "lynn # author. ournal Title: $ocial Theory and %ractice. &olume:
'(. Issue: ). %ublication *ear: '++). %age ,umber: -)./. C0%*RI1HT '++) $ocial
Theory and %ractice#"lorida $tate 2ni3ersity4 C0%*RI1HT '++) 1ale 1rou5
). Indi3idualism, Indi3idual Rights, and Intercultural Dialogue
The dis5ute o3er the conce5t o! human rights is not merely a debate among theorists. The last decade o! the twentieth century, in 5articular leading u5 to and
!ollowing the .(() &ienna Con!erence on Human Rights, witnessed a surge in the debate o3er the cross#cultural 3alidity o! human rights. 6-+7 In this section, I
want to bring attention to a !urther as5ect o! Habermas8s conce5tion o! human rights##their intersub9ecti3e !oundations##as an im5ortant contribution to this
debate. In the cross#cultural dialogue o3er human rights, one o! the central :uestions, in general terms, is whether human rights ha3e any 3alidity outside o! the
;estern cultures in which they originated. In 5articular, it is charged that the indi3idualism inherent in the idea o! indi3idual rights is a !oreign im5osition on
more communally oriented cultures. In critici<ing Habermas8s conce5tion o! human rights, %ogge characteri<es the ob9ection to indi3idualism s5eci!ically in terms
o! a re9ection o! the 9uridi!ication o! human rights:
Insistence on the juridification of human rights ...
provokes the communitarian and East Asian criticism that human
rights lead persons to view themselves as Westerners:atomized,
autonomous, secular and self-interested individuals ready to
insist on their rights no matter what the cost may be to
others or the society at large. (41)

This 3ersion o! the criticism !ocuses on the legal as5ect o! human rights as the most ob9ectionable as5ect o! human rights, as i! the moral ideals behind
human rights might themsel3es be more acce5table i! they were not lin=ed to 9uridi!ication. 6-'7 The 5roblem with such claims is that they o!ten con!late
the indi3idualism within the conce5t o! human rights with the indi3idualism o! 5articular ideals attributed to ;estern culture, such as indi3idual sel!#
su!!iciency or sel!#interest. Rather than discarding the legal as5ect o! human rights in the ho5e o! securing wider agreement !rom non#;estern traditions,
we might do better to distinguish two di!!erent as5ects o! indi3idualism related to rights. ;e can distinguish the conce5t o! indi3idual rights !rom the
>culture o! indi3idualism> that in!luences the legal culture o! many ;estern societies. "ollowing Habermas, we can then see how the conce5t o! indi3idual
rights is based u5on the intersub9ecti3e !oundations o! law and rights rather than the ideal o! indi3idualism 5resent in 3arious !orms in ;estern cultures.
;hether the e?ercise o! indi3idual rights within a legal system is atomi<ing de5ends on numerous !actors. The system o! rights in the abstract does not,
by itsel!, dictate how these rights should be utili<ed, how rights should be 3iewed by legal 5ersons, or how 5ersons should 3iew themsel3es. Indi3iduals
can e?ercise their rights to s5ea=, organi<e, and 5artici5ate in go3ernment in order to coo5erate in bringing about changes in their common li!e. 0r they
can choose to indi3idually de!end their rights against all, in an indi3idualistic s5irit o! antagonism, with only sel!#interest in mind. There are as5ects o! the
legal culture o! the 2nited $tates in 5articular that both non#;estern and ;estern critics ob9ect to, but they are not necessarily inherent in the 3ery idea
o! an egalitarian rule o! law. @3en limiting our !ocus to ;estern societies, there are signi!icant di!!erences in constitutions 6e.g., the more recent
constitutions o! ;estern @uro5ean countries contain many economic and social rights not included in the 2.$. Constitution7, legal systems, and general
cultural and historical in!luences on 5eo5le8s attitudes toward their legal rights 6e.g., the way that restrictions on !reedom o! s5eech based on hate s5eech
are 3iewed in the 2.$. 3ersus 1ermany or Canada7. All o! these di!!erences come together to !orm the legal culture o! a society.
$trong cultural currents em5hasi<ing democratic 5artici5ation or communal solidarity result in articulations o! the system o! rights that are di!!erent !rom
those em5hasi<ing indi3idualistic com5etition or sel!#su!!iciency. 0! course, these ideals can also co#e?ist in the same society, and the legal culture may
re!lect this. I! 5eo5le li3ing in non#;estern societies 3alue community and order, then they may choose to e?ercise their rights in a way consistent with
those 3alues. Contem5orary a5an may 5ro3ide a good e?am5le. ;hile the current a5anese constitution was modeled on that o! the 2nited $tates, there
are also strong currents within a5anese culture em5hasi<ing solidarity and consensus, which discourage indi3iduals !rom asserting indi3idual rights. 6-)7
This indicates ways in which the 3ery idea o! a system o! indi3idual rights is not necessarily atomi<ing. The issue cannot be determined at the theoretical
le3el4 rather, it is a matter !or citi<ens to wor= out themsel3es, in the 5ro9ect o! reali<ing the system o! rights in a manner consistent with their cultural
ideals. Distinguishing the conce5t o! indi3idual rights !rom the surrounding culture##which together contribute to the legal culture##can at least hel5 to
answer culture#based criticisms o! human rights that con!late the conce5t o! human rights itsel! with a culture o! indi3idualism.
@3en i! critics acce5t that a culture o! indi3idualism is not a necessary outcome o! im5lementing a system o! rights, they may still :uestion the
5resu55ositions underlying the conce5t o! indi3idual rights. They may see the 3ery idea o! rights#bearing indi3iduals as an o3erly atomistic conce5tion.
*et, a central as5ect o! Habermas8s account o! the system o! rights 5ro3ides a res5onse to this criticism. He 5laces the system o! indi3idual rights on
intersub9ecti3e !oundations:
At a conceptual level, rights do not immediately refer to
atomistic
and estranged individuals who are possessively set against
one
another. On the contrary, as elements of the legal order
they
presuppose collaboration among subjects who recognize one
another,
in their reciprocally related fights and duties, as free
and equal
citizens. This mutual recognition is constitutive for a
legal order
from which actionable rights are derived. (44)

Thus, although actionable rights are attributed to indi3iduals, the discourse#theoretic understanding o! rights 5laces them on the intersub9ecti3e
!oundations o! a legal order. It does not start with the moral rights o! isolated indi3iduals. The abo3e criticism o! the indi3idualism o! rights de5ends
hea3ily on 3iewing rights in terms o! >5ossessi3e indi3idualism.> Aut that is not the only strain o! ;estern 5olitical thought. Habermas re9ects that
inter5retation o! rights because it !ails to account !or the >community o! law> that is 5resu55osed by the moment o! mutual recognition in the granting o!
rights. He argues that
possessive individualism fails to recognize that legally
protected
individual rights can only be derived from the pre-
existing, indeed
intersubjectively recognized norms of a legal community. It
is true
that individual rights are parts of the equipment of legal
persons;
but the status of legal persons as rights-bearers develops
only in
the context of a legal community [Rechtsgemeinschaft] which
is
premised on the mutual recognition of its freely associated
members. (45)

0ne o! the main lines o! argument o! Aetween "acts and ,orms !ocuses on the intersub9ecti3e !oundations o! rights in arguing that indi3iduals only
a55ear as rights#bearing legal 5ersons in the conte?t o! a >community o! law.> This reading o! rights, which attem5ts to reconcile indi3idual and
community at the conce5tual le3el, o!!ers an alternati3e to both atomistic indi3idualism and a strong 3ersion o! communitarianism. 6-B7 A !urther
:uestion, howe3er, is why non#;estern societies should acce5t the indi3idualistic !orm o! law as it de3elo5ed in ;estern societies. That is, in s5ite o! this
account o! the intersub9ecti3e !oundations o! law, the idea o! indi3idual rights may still be 3iewed as an im5ort !rom ;estern traditions. Habermas relies
on the !unctional argument in this conte?t. Relying on the !ormal as5ects o! law that I addressed earlier, he argues that the indi3idualistic !orm o! law is
!unctionally necessary in com5le? modern societies. 0ne as5ect o! indi3idual rights is that they 5rotect the indi3idual8s 5ri3ate conduct !rom the moral
scrutiny o! others. This !orm o! law is
tailored to the functional demands of modern economic
societies,
which rely on the decentralized decisions of numerous
independent
actors ... Legal certainty, for example, is one of the
necessary
conditions for a commerce based on predictability,
accountability,
and the preservation of trust. Consequently, the decisive
alternatives lie not at the cultural level but at the
socioeconomic
level. (47)
Ay locating the argument here, Habermas is able to de!lect, to some e?tent, criticisms that rely on culture#based arguments that claim indi3idual rights
are contrary to certain cultural traditions. 6-C7 ;ith an a55eal to the indi3idualist !orm o! law as !unctionally necessary, he can de!end it without
a55ealing to this system o! law as somehow normati3ely su5erior. 1ranted, this argument relies to some e?tent on the em5irical claim that this 5articular
!orm o! law is !unctionally necessary !or the success o! any moderni<ing society. *et, e3en without e3aluating the em5irical claim, this argument shi!ts the
burden o! argument bac= on those who would claim that e3en though @ast Asian societies, !or e?am5le, ha3e ra5idly moderni<ed many sectors o! their
societies, it would still be contrary to their communal traditions to im5lement a rights#based legal system. Modern labor mar=ets and economies seriously
disru5t traditional ways o! li!e. 0nce the decision to moderni<e has been made, the grounds !or arguing in terms o! maintaining communal ways o! li!e
:uic=ly disa55ear. -. Concluding Remar=s: 0n the 1lobal Reali<ation o! Human Rights
I would li=e to conclude with some remar=s on how Habermas8s conce5tion o! human rights relates to the global reali<ation o! human rights. Habermas
di!!erentiates between the system o! rights in the abstract, as a set o! legal 5rinci5les, and the conte?t#de5endent readings !ound in historic constitutions.
Aut what does this mean !or reali<ing human rights on a global scaleD 0ne way to achie3e this aim is through multi5le reali<ations o! the same system o!
rights. How the system o! rights, as a !ramewor=, gets s5elled out as a 5articular schedule o! rights within a gi3en country de5ends on the 5olitical
circumstances o! a s5eci!ic society. I began to discuss this issue in the last section. At the global le3el, it is im5ortant to note that while Habermas8s
account o! the system o! rights is an ideali<ation based on '++ years o! constitution#ma=ing within 3arious ;estern nation#states, it is not, in 5rinci5le,
limited to national 5olitical communities. %resu55osing only the discourse 5rinci5le and the modern !orm o! law entails that the same system o! rights
comes into 5lay !or any 5olitical community that attem5ts to legitimately regulate its common li!e through the
medium o! law, be it a national, regional, or global community. This leads to another 5ath !or the global reali<ation o! the system o! rights##some !orm o!
global legal order.
0n the one hand, Habermas8s account o! a >community o! law> as the !oundation !or human rights might a55ear o3erly ideali<ed at this 5oint, with no
real 5urchase yet in the !orm o! a global community o! law, based on the mutual recognition o! indi3iduals. 0n the other hand, some ty5es o! law, such
as commercial and trade law, already establish a global community o! law in another sense. 2n!ortunately, this !orm o! legal community, with its o!ten#
harm!ul e!!ects u5on the e?cluded and e?5loited, is outstri55ing the normati3e !eatures o! a community o! law !ounded u5on e!!ecti3e human rights.
Rather than re!ute Habermas8s model, 5erha5s this global e?tension o! law to 3arious s5heres o! the global economy sim5ly rein!orces the need !or a
global 5olitics o! human rights as a res5onse. 6-(7 "urthermore, with the 2ni3ersal Declaration o! Human Rights 6.(-C7, the International Co3enant on
Ci3il and %olitical Rights 6.(BB7, and the International Co3enant on $ocial, @conomic, and Cultural Rights 6.(BB7, the rights o! indi3iduals ha3e achie3ed
international recognition##5art o! the 5ost#;;II >9uridical re3olution> in international relations. 1reater 5rotection o! human rights##5art o! an e3ol3ing
>en!orcement re3olution>##also de5ends u5on the !urther de3elo5ment o! im5artial mechanisms o! en!orcement 6e.g., the International Criminal Court7,
some o! which are tied to su5ranational !orms o! go3ernance 6e.g., the @uro5ean Court o! Human Rights7. 6E+7 "rom the 5ers5ecti3e o! a discourse
theory o! human rights, a =ey issue here is e3aluating the democratic legitimacy o! these regional and global human rights regimes. Habermas has
already addressed such issues with some s5eci!ic 5ro5osals !or institutional re!orm that might address the >democratic de!icit> in3ol3ed in regional and
international go3ernance. 6E.7
Another im5ortant :uestion, howe3er, is to what e?tent does his account o! abstract categories o! rights o!!er any guidance in de3elo5ing actual
schedules o! human rightsD 0ne way to address this is to see how the categories o! rights, reconstructed in terms o! the constitutional state, relate to the
global human rights regime. Any schedule o! rights that cannot be read as a s5eci!ication o! these categories or legal 5rinci5les would 3iolate the
5er!ormati3e constraints im5lied in an attem5t to legitimately ma=e use o! the medium o! law. $ince the basic categories include rights to e:ual indi3idual
liberties and 5olitical rights, along with social and economic rights, any schedule o! rights that im5lements only one o! these categories can be critically
e3aluated as a one#sided inter5retation o! the system o! rights. $5eci!ically, Habermas is critical o! the claim, o!ten made in the conte?t o! the Asian
3alues debate, that social and economic rights ought to be granted 5riority o3er ci3il and 5olitical rights. In res5onse, Habermas argues that >!rom a
normati3e stand5oint, according 85riority8 to social and cultural basic rights does not ma=e sense !or the sim5le reason that such rights only ser3e to
secure the 8!air 3alue8 6Rawls7 o! liberal and 5olitical basic rights, i.e. the !actual 5resu55ositions !or the e:ual o55ortunity to e?ercise indi3idual rights.>
6E'7 ;hile this may loo= as i! Habermas grants 5riority to liberal and 5olitical basic rights, he would li=ewise be as critical o! a one#sided attem5t to
im5lement only the classic liberal rights. He lays out the system o! rights such that the content o! classical liberal rights can only be 9usti!ied through
5olitical elaboration 6and thereby 5resu55ose e:ual 5olitical rights74 and since e?ercising liberal and 5olitical rights re:uires a certain le3el o! material
e:uality, social and economic rights must be guaranteed as well. ;hile Habermas has said that the category o! social and economic rights >can be
9usti!ied only in relati3e terms,> that is not to say that the im5lementation o! any one category o! rights should be granted 5riority o3er the
im5lementation o! any other category. That is, a relati3e 5riority at the le3el o! 9usti!ication 6or the order o! e?5lication7 ought not to be re!lected at the
le3el o! im5lementation. 6E)7 This conce5tual 5oint about 5riorities does not eliminate the 5ossibility o! con!licts between 5articular rights in 5ractice4 but
that is an issue to be wor=ed out within the system o! rights and not at the le3el o! categories.
$econd, Habermas insists that moral arguments be brought into the 5rocess o! 9usti!ying human rights. There!ore, there are clearly moral constraints on
the inter5retation o! human rights and not all inter5retations o! human rights are 3alid. Ta=ing the !irst category o! basic rights as an e?am5le, Habermas
states that the classic liberal rights##to 5ersonal dignity4 to li!e, liberty, and bodily integrity4 to !reedom o! mo3ement, !reedom in the choice o! one8s
3ocation, 5ro5erty, the in3iolability o! one8s home, and so on##are inter5retations o!, and ways o! wor=ing out, what we might
call a >general right to indi3idual liberties.> 6E-7

The inter5retation o! the system o! rights in the ;est has a history in which moral arguments ha3e been set out in !a3or o! such rights, which are
su55osed to be in the e:ual interest o! all. Di!!erent, and 5otentially con!licting, inter5retations o! the system o! rights are not 9ust a matter o! debate
between the ;est and the non#;est. "or e?am5le, the dis5ute o3er whether the death 5enalty is consistent with a right to li!e is a matter o! great dis5ute
within the ;est, between the 2nited $tates and the many @uro5ean countries that ha3e banned ca5ital 5unishment. Aut i! cross#cultural dialogue is to
add legitimacy to a global human rights regime, then ;estern inter5retations o! human rights also need to be e3aluated in non#;estern conte?ts in order
to see whether such rights can be su55orted !rom within 3arious non#;estern 5ers5ecti3es as well. Li=ewise, arguments raised !rom within non#;estern
conte?ts may draw attention to blinds5ots within ;estern traditions. This 5rocess has actually been underway since at least the 5lanning meetings that
were held to dra!t the 2ni3ersal Declaration o! Human Rights. 6EE7 Meaning!ul cross#cultural dialogue must in3ol3e more than ta=ing go3ernment leaders
as sole s5o=es5ersons !or their cultures. It means that democratic institutions must ta=e root su!!iciently to allow those a!!ected the chance to 5artici5ate
in an intra#cultural dialogue in order to de3elo5 their own inter5retations o! what their traditions can or cannot su55ort. In order !or inter#cultural dialogue
to bring legitimacy to a consensus on a broad range o! human rights, a 3ariety o! intra#cultural dialogues need to be underta=en and sustained in a way
that 5rotects those who underta=e them. 0! course, the !reedom to carry out such an endea3or re:uires the im5lementation o! many o! the 3ery same
rights, such as !reedom o! e?5ression, that are the ob9ect o! discussion. 6EB7 As this 5rocess o! dialogue and inter5retation increases at the global le3el##
within an emerging global ci3il society##it is not yet clear what new insights may be gained. More im5ortant at this 5oint, 5erha5s, is that democratic
rights and institutions be established that sa!eguard those who attem5t to reinter5ret their traditions, rather than lea3ing this to authoritarian rulers or
religious leaders who claim the sole authority to inter5ret tradition. This is one o! the strengths o! Habermas8s account o! reali<ing the system o! rights as
a 5ro9ect o! democratically elaborating and e?5anding the content o! human rights, whether nationally or globally.