DEMOCRATIC SOVEREIGNTY AND TRANSNATIONAL LAW
On Legal Utopianism and Democratic Skepticism
SEYLA BENHABIB
INTERNATIONAL LAW AND AMERICAN COURTS: A CASE OF AMERICAN EXCEPTIONALISM
On April 17, 2013, the US Supreme Court issued its much-awaited decision regarding Kiobel et al. v. Royal Dutch Petroleum.1 The Nigerian plaintiffs had sued three oil companies and the military dictatorship in Nigeria for attempting to silence protesters who were militating against environmental damage caused by the companies’ actions. It is reported that scores were killed, and the plaintiffs themselves claimed to have been captured and beaten. Writing for the majority, Chief Justice John G. Roberts Jr. argued that “the ATS [Alien Tort Statute] covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur whether within or outside the United States” (III). He concluded, “Even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application” (IV). Invoking a traditional understanding of Westphalian territorial sovereignty and sovereign immunity, Justice Roberts and the majority in the court made it much more difficult, with this decision, to extend the reach of transnational human rights claims into US courts.
The matter of the citation of foreign law, whether the law of other nations or international law and treaties, has in the meantime become an American political scandalon. It now serves as a litmus test in the appointment of Supreme Court justices, who are asked whether or not they will interpret the US Constitution in the light of “foreign doctrine or influence.” A group of scholars, intellectuals, and policy makers “who view the emerging international legal order and system of global governance with consternation” have now coalesced as the “new sovereigntists.”2
For some, this court’s sovereigntism is nothing new. They have called it “American exceptionalism,” which has mutated into Michael Ignatieff’s “American exemptionalism.”3 One of the most forceful early criticisms of the United States, with regard to its “exemptionalist” behavior vis-à-vis the law of nations, was formulated by Carl Schmitt. As he quite bitingly put it:
Once the priority of the Monroe Doctrine—the traditional principle of Western Hemisphere isolation, with its wide-ranging interpretations—was asserted in Geneva, the League abandoned any serious attempt to solve the most important problem, namely, the relation between Europe and the Western Hemisphere. Of course, the practical interpretation of the ambiguous Monroe Doctrine—its application in concrete cases, its determination of war and peace, its consequences for the question of inter-allied debts, and the problem of reparations—was left solely to the United States.4
And, in a turn of phrase that could have flown from Jacques Derrida’s pen, Schmitt concluded:
The United States was, thus, formally and decisively not present in Geneva. But they were, as in all other matters, and hardly ineffectively and very intensely, present as well. There thus resulted an odd combination of official absence and effective presence, which defined the relationship of America to the Geneva Convention and to Europe.5
It is not only the historical attitude of US courts and lawmakers that should draw our renewed attention to the status of foreign law, whether international treaty law or transnational law.6 A wide-ranging contemporary controversy has emerged that spans legal studies as well as political theory, jurisprudence as well as cultural studies. This controversy concerns, at its deepest level, the meaning of democratic sovereignty in a new age and under conditions of nascent legal cosmopolitanism. We can distinguish among several questions.
First, what is the status of foreign law, including the law of other nations and international treaties, in constitutional and statutory adjudication? As we know, great variations across countries exist in this regard. Although international law becomes part of the valid constitutional order in many countries of the world, such as the Netherlands and South Africa (referred to as “constitutional monism”), other constitutions are “dualist” with respect to treaty-based international law and require various forms of parliamentary and/or treaty ratification before these can become part of the law of the land.
A second question is whether recent developments in legal doctrine and practice can be seen as leading toward global constitutionalism, with or without the state.7 Global constitutionalists point to increasing cooperation among constitutional court justices across the globe, their learning from one another, and, increasingly, their citing one another in considering similar cases, not as precedent but as significant evidence. Even some scholars, such as Jeremy Waldron, who find the concept of “global constitutionalism” exaggerated, nonetheless argue that there is increasing convergence around a “law for all nations.”8
Others, who defend constitutionalization without the state, such as Günther Teubner, single out the spread of norms of lex mercatoria and many other “lexes,” such as lex sportiva, to argue that processes of norm hierarchization, coordination, and cooperation beyond the purview of states have evolved into a self-regulating system.9 Why shouldn’t a system that exhibits so many features of constitutionalism also be honored with that title?10
In contemporary political philosophy, the utopian claims of legal cosmopolitans and global constitutionalists have been met with a reticence that at times borders on hostility. And here, strange bedfellows have emerged. Joining Chief Justice Roberts in his Westphalian understanding of sovereignty as territorially circumscribed jurisdictional sovereignty is a group of eminent political thinkers, ranging from communitarians such as Michael Walzer to liberals such as Thomas Nagel to progressive left thinkers such as Samuel Moyn and Jean Cohen.11 These thinkers wish to defend the value of democratic self-determination, and they claim either (a) that recent developments in international law are ideals of cosmopolitan elites with little traction in the life of peoples (Walzer and Moyn); (b) that the principle of self-determination expresses an important value, and that “legal pluralism” may be the desirable middle ground between global cosmopolitanism and national sovereigntism (Walzer and Cohen); or (c) that international law is no more than the consensually undertaken contractual commitments among sovereign states that remain the central units of jurisdiction and enforcement (Nagel).
I take these objections, particularly (a) and (b), very seriously. My own questions in this essay are related to, but distinct from, both sets of issues named under (a) and (b). I am interested in legal cosmopolitanism as it bears on the moral individual as a legal person in the international community, and I wish to examine the alleged conflict between one class of international legal norms in particular—namely, those pertaining to human rights, broadly understood, and democratic sovereignty. I will argue that transnational human rights norms strengthen rather than weaken democratic sovereignty. My thesis is that this is a false juxtaposition, and that even though there are inevitable conflicts and tensions between the application of and compliance with human rights norms in domestic contexts and in international treaties and covenants, we need to develop a conceptual and empirical model for understanding these tensions not as a zero-sum game but rather as a process of dialectical norm-enhancement and interpretation. I am less interested in cases of blatant violations of human rights norms and more focused on the interpretation and evocation of these norms through democratic legislatures, nongovernmental actors, and social movements in quotidian politics as they lead to further norm articulation and interpretation. Distinguishing between a “concept” and a “conception” of human rights, I will claim that self-government in a free public sphere and free civil society is essential to the concretization and iteration of the necessarily abstract norms of human rights. I will further argue that, without the right to self-government, exercised through proper legal and political channels, we cannot justify the range of variation in the content of basic human rights across constitutional democracies as being legitimate. I name such processes “democratic iterations.”
THE RESURGENCE OF COSMOPOLITANISM
It is now widely accepted that, since the Universal Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society that is characterized by a transition from international to cosmopolitan norms of justice. Whereas norms of international law emerge either through what is recognized as customary international law or through treaty obligations to which states and their representatives are signatories, cosmopolitan norms accrue to individuals considered as moral and legal persons in a worldwide civil society. By “cosmopolitanism,” I have in mind both a moral and a legal proposition. Morally, the cosmopolitan tradition is committed to viewing each individual as equally entitled to moral respect and concern; legally, cosmopolitanism considers each individual as a legal person entitled to the protection of his or her human rights by virtue of individual moral personality and not on account of citizenship or other membership status. Even if cosmopolitan norms also originate through treaty-like obligations, such as the UN Charter, the Universal Declaration of Human Rights, and various other human rights covenants, their peculiarity is that they bind signatory states and their representatives to treat their citizens and residents in accordance with certain norms, even if states later wish, as is often the case, to engage in actions that contradict these terms and violate the obligations generated by these treaties themselves. This is the uniqueness of the many human rights covenants concluded since World War II: through them, sovereign states undertake the self-limitation of their own prerogatives.
The best known of the human rights agreements that have been signed by a majority of the world’s states since the 1948 Universal Declaration of Human Rights are as follows: the United Nations Convention on the Prevention and Punishment of the Crime of Genocide; the 1951 Convention on Refugees, which entered into force in 1954, with only 19 state signatories and 145 state parties, and its Protocol of 1967 (with 146 state parties); the International Covenant on Civil and Political Rights (signed in 1966 and entered into force in 1976, with 168 countries out of 195 being party to it as of 2015); the International Covenant on Economic, Social and Cultural Rights (ICESCR), entered into force the same year and with 164 member parties as of 2015; the Convention to Eliminate of All Forms of Discrimination Against Women (CEDAW), signed in 1979 and entered into force in 1981, with 99 signatories and 189 state parties as of 2015; the International Convention on the Elimination of All Forms of Racial Discrimination (entry into force on January 4, 1969, with 87 signatories and 177 parties as of 2015); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entry into force June 26, 1987, with 81 signatories and 158 state parties as of 2015).12 These are some of the best known among many other treaties and conventions.13
The skeptic will ask, What does all this really mean? What possible significance can these multilateral human rights covenants have if states continuously and brazenly violate them, manipulate them to serve their own ends, etc.? Are they not mere words, at worst, or aspirational ideals, at best, that have little traction in influencing and limiting state conduct? Do these developments create a novel, enforceable, and justiciable legal world order? Doesn’t the process of formulating reservations, understandings, and declarations take the bite out of the human rights treaties, in particular, and make them merely convenient smoke screens for states to hide behind?
Although skeptical doubts about state behavior and an international state system that remains beset by violence, civil wars, and proxy wars cannot be set aside, I remain convinced that something has changed profoundly in the grammar and syntax of the language of international law, sovereignty, and human rights.
Let me begin, then, with the question of whether legal cosmopolitanism is a form of constitutional monism and what degree of pluralism can be thought to be compatible with legal cosmopolitanism when it comes to the interpretation of human rights in different polities. Human rights constitute the core of legal cosmopolitanism; without clarifying the relationship of human rights treaties and international practices to the institutions and practices of states, much talk about legal cosmopolitanism hangs in thin air.14
HUMAN RIGHTS AND CONSTITUTIONAL RIGHTS
In recent debates, two quite distinct ways of considering human rights and their justification have emerged: the so-called traditional conception of Alan Gewirth and James Griffin, and Joseph Raz’s and Charles Beitz’s so-called political or functional conception of rights, inspired by John Rawls’s work in The Law of Peoples. Whereas traditional human rights theories such as Gewirth’s and Griffin’s build human rights around a conception of human agency, the approach to human rights initiated by Rawls’s project of developing “public reason” assumes that the late modern political world, characterized by an inevitable value pluralism and burdens of judgment, does not need to presuppose any such philosophical accounts.15
Admittedly, the philosophical discussion of human rights and the conversation among lawyers, jurists, and legal scholars do not run in tandem, but the philosophical debate does raise a legitimate question about the relationship between human rights norms and constitutional rights. In this essay, I do not provide my preferred strategy of philosophical justification for human rights, which proceeds from the value and norm of communicative freedom to a conception of “the right to have rights.” I have done so elsewhere.16 Briefly, in my view, human rights constitute a narrower group of claims than general moral rights. Human rights bear on human dignity and equality; they are protective of the human status as such. I agree with Griffin that human rights do not exhaust the entirety of our conceptions of justice, let alone of morality.17 Human rights have their proper place in discourses of political legitimation. Such discourses presuppose moral principles, in the sense that the justification of human rights always leads back to some moral principle and some view of human agency. Human rights are most central to a public vocabulary of political justice; they designate a special and narrow class of moral rights.
Human rights covenants and declarations articulate general principles that need contextualization and specification in the form of legal norms. How is this legal content shaped? Basic human rights are rights that require justiciable form; that is, they require embodiment and instantiation in a specific legal framework. Human rights straddle the line between morality and legality; they enable us to judge the legitimacy of law.18
In negotiating the relationship between general human rights norms, as formulated in various human rights declarations, and their concretization in the multiple legal documents of various countries, we may invoke the distinction between a concept and a conception.19 In Political Liberalism, Rawls clarifies this distinction as follows: “Roughly, the concept is the meaning of a term, while a particular conception includes as well the principles required to apply it … A conception includes … principles and criteria for deciding which distinctions are arbitrary and when a balance between competing claims is proper.”20 I will not follow Rawls in identifying “concept” with “meaning”; rather what is helpful in his elucidation is the articulation of how conceptions differ from concepts. For example, we can differentiate between moral concepts, such as fairness, equality and liberty, let us say, and conceptions of fairness, equality, and liberty, which would be fleshed out by introducing additional moral and political principles to supplement the original concept so as to be able to make necessary distinctions.21
The terms “principles” and “norms,” as introduced by Robert Alexy, are more appropriate in this context. Alexy writes:
The decisive point in distinguishing rules from principles is that principles are norms which require that something be realized to the greatest extent possible given their legal and factual possibilities. Principles are optimization requirements, characterized by the fact that they can be satisfied to varying degrees … [B]y contrast, rules are norms that are always either fulfilled or not.22
The binarism of concept/conception can now be read as one of principle/norm. A concept of human rights is a principle of human rights that permits “realization to the greatest extent possible,” whereas conceptions of human rights require specific legal norms for their concretization and are subject to varying rules of application and interpretation.
Applied to the question of how we move from general normative principles of human rights, as enshrined in the various covenants, to specific conceptions of them as enacted in various legal documents, this would suggest that we can view these documents as formulating core concepts of human rights, which would form part of any conception of valid constitutional rights. How then is the legitimate range of rights to be determined across liberal democracies, or how can we transition from general concepts of rights to specific conceptions of them? Even as fundamental a principle as “the moral equality of persons” assumes a justiciable meaning as a human right, once it is posited and interpreted by a lawgiver. Here, a range of legitimate variations can always be the case.
For example, while equality before the law is a fundamental principle of all societies observing the rule of law, in many societies, such as Canada, Israel, and India, this is considered quite compatible with special immunities and entitlements that accrue to individuals by virtue of their belonging to different cultural, linguistic, or religious groups. In societies such as the United States and France, with their more universalistic understandings of citizenship, these multicultural arrangements would be completely unacceptable.23 At the same time, in France and Germany, the principle of gender equality has led political parties to adopt various versions of the norm of parité—namely, that women ought to hold public offices on a fifty-fifty basis with men, and that, for electoral office, their names ought to be placed on party tickets on an equal footing with male candidates. In the United States, by contrast, gender equality is protected by Title VII and Title IX, which apply only to major public institutions that receive federal funding.24 Political parties are excluded from this.
There is, in other words, a legally legitimate range of variation even in the interpretation and implementation of such a basic right as that of equality before the law.25 But the legitimacy of this range of variation and interpretation is crucially dependent upon the principle of self-government. My thesis is that without the right to self-government, which is exercised through proper legal and political channels, we cannot justify the range of variation in the content of basic human rights as being legally legitimate. Unless a people can exercise self-government through some form of democratic channels, the translation of human rights norms into justiciable legal claims in a polity cannot be actualized. So, the right to self-government is the condition for the possibility of the realization of a democratic schedule of rights. Just as without the actualization of human rights themselves, self-government cannot be meaningfully exercised, so too, without the right to self-government, human rights cannot be contextualized as justiciable entitlements. They are coeval. That is, the liberal defense of human rights as placing limits on the publicly justifiable exercise of power needs to be complemented by the civic-republican vision of rights as constituents of a people’s exercise of public autonomy. Without the basic rights of the person, republican sovereignty would be blind, and without the exercise of collective autonomy, the rights of the person would be empty.26 Cosmopolitan citizenship is formed through such democratic iterations within and across demoi.
This strong thesis will provoke the objection that surely it is possible that a nondemocratic regime, say a monarchy or some other form of benevolent authoritarianism—maybe even a form of “constitutional theocracy,” to use Ran Hirschl’s term, or Rawls’s Kazanistan—could respect human rights without accepting a human right to self-government.27 I am willing to bite the bullet here and argue that such a limitation of human rights to minimal protections of the person, the rule of law, and guarantees of civic peace and property is fundamentally incomplete. Human rights cannot be separated from the right to self-government, because when they are, they no longer are rights but “privileges” granted to one by some higher authority. The people can claim rights to be their own only when they can recognize themselves, through the proper institutional channels, to be the author of those rights as well. Certainly, stability, some respect for the rule of law and property relations, civic peace among competing ethnic and religious groups, which many “decent hierarchical” regimes (as Rawls calls them) may achieve, are politically valuable and not to be dismissed. But they cannot satisfy a prime condition of political modernity, that legitimacy originates with respect for the capacity of persons to be the sources of reasonable consent or the “self-authenticating sources of valid claims.”28
In The Law of Peoples, Rawls interpreted human rights as defining conditions of just membership for peoples in a world society of states. Since then, discussions of human rights have been linked to “pro tanto justifications” for limiting state sovereignty, including, when necessary, through military intervention.29 Because of this restrictive understanding of the purpose of international human rights, both Raz and Beitz have adjusted their expectations of decent hierarchical peoples’ compliance with human rights norms to what may be reasonable to ensure pluralism and peace in the world community alone.
The cosmopolitan theory of democratic iterations that I defend, by contrast, proceeds from individuals and not from peoples as subjects of transnational human rights law. Furthermore, I do not accept that human rights violations provide pro tanto justifications for intervention, except in the event of the most severe violations such as are also prohibited by the genocide convention and international human rights law—that is, genocide, slavery, mass extermination or ethnic cleansing, mass deportations, and crimes against humanity.30
Once we move beyond the options of military or economic intervention against or indifference toward human rights violations in other states and consider individuals in decent hierarchical societies as our “moral and legal contemporaries,” the conversation and practice around international human rights take a different form. The question now becomes, What good reasons can we reciprocally provide each other, such that some accept certain forms of gender inequality, while others do not? Why do some of us recognize the curtailment of the rights of religious minorities and others do not? Reasonable pluralism among peoples’ interpretation of human rights must not be understood as a static reality, sealed off from contention with other human groups at the borders of the state; rather, we must understand reasonable pluralism as an evolving and contentious conversation among individuals, groups, and peoples of different nationalities, faiths, and cultures. If we are moral contemporaries in a conversation that spans the same coordinates of space and time, and if, in some cases, we share the same lifeworld with individuals from decent hierarchical societies, who might be our observant Muslim, Jewish, or Sikh neighbors, we need good reasons to convince one another that we may accept radically different normative sources of justification for human rights and their content. The issue has been misleadingly stated by Rawlsians, insofar as the conversation has always been assumed to occur elsewhere and at other times, across imaginary borders and boundaries, thus ignoring the challenge of moral contemporaneity.31
Historically, human rights evolved well in advance of democratic struggles. T. H. Marshall’s famous trilogy of civil, political, and socioeconomic rights still has something instructive to teach us.32 Insofar as the evolution of human rights in Western European societies is concerned, this account, despite some historical flaws, is still quite illuminating. Clearly, the civil rights of property and contract, and some privacy rights, such as freedom of marriage and the right to freedom of conscience, evolved out of struggles in the course of the sixteenth and seventeenth centuries. With the American and French revolutions, political rights over equal suffrage, freedom of association and the press, freedom of assembly, and democratic voice gained prominence. Socioeconomic rights, such as the right to unemployment compensation, old-age and disability pensions, health care, and the like, are the last to have been attained through democratic struggles and show the most variation across democracies. My claims about the interdependence of democracy and human rights do not concern this historical legacy. Rather, I am concerned to account for the “unity and diversity” in the interpretation of human rights across democracies, or in their legitimate range of legal variation across different societies.
A careful reader will note, however, that I am using the somewhat awkward locution “legitimate range of legal variation” rather than “legitimacy” simpliciter. Why? Because there needs to remain a “normative gap” between concepts of human rights as enshrined in various documents, treaties, and covenants and the specific articulations of them—or legally legitimate conceptions of them—as posited by the legislators of various peoples. This “normative gap” enables the struggle among the national, local, and the international levels, as well as among various organizations, social movements, national and international nongovernmental organizations, and others, in their interpretation of human rights. Concepts of human rights cannot be reduced to their specific conceptions, and they may be and usually are invoked with a moral force that transcends the legally legitimate will of the demos. The meaning of a term is not exhausted by its multiple instantiations; likewise, the force of a principle is not exhausted by the number of norms said to concretize the principle. And so it is with general human rights principles as well. They enframe and are enframed by democratic iterations, but the sum total of democratic iterations does not exhaust their meaning or their normative force.33
The model of democratic legitimacy presented above may also be named “the authorship model of democratic legitimacy.” The democratic people are said to be the “authors” as well as the “addressees” of human rights and constitutional rights. But this normative model seems to presuppose a centered form of Westphalian authority with a clearly demarcated demos, thus flying in the face of post-Westphalian transformations of state sovereignty, both sociologically and in international law. Maybe one should accept the sociological force of the post-Westphalian diagnosis and admit that democratic authorship and popular sovereignty remain captive to a historically defunct model of territorially bounded sovereignty, and thus forfeit them normatively?34 It may be that we need to conceptualize democratic authorship in less unitary and more heterarchical terms and instead approach it through a different model of sovereignty and the public sphere. Maybe we should all embrace “postdemocracy”?35 Or should one insist that these normative criteria of legitimacy remain necessary even in view of new global arrangements, and that, in fact, they may be in a healthy tension with these arrangements? Such tensions may enable further institutional reform.36 So instead of forfeiting the ideal of popular sovereignty, the task ahead may be to re-embed this ideal in new transnational institutions through processes of what Turkuler Isiksel calls “reflective adjustment.”37
Let me review the course of the argument so far. The examination of the relationship between human rights embedded in international covenants and treaties and constitutional norms has led me to distinguish between a concept and a conception of human rights. I have further argued that whereas international human rights treaties can be viewed as formulating general principles of human rights, constitutional rights can be considered their further concretization, now in the form of justiciable norms. To judge the range of divergence between these two, one must introduce the principle of self-determination, because I maintain that the right to self-government is the condition for the possibility of the realization of a democratic schedule of rights. I have further named this claim a model of “democratic authorship.” How can such a strong normative criterion of democratic authorship make any sense of the heterarchical practices of transnational law of the present?38
DEMOCRATIC LEGITIMACY AND INTERNATIONAL HUMAN RIGHTS PRINCIPLES
A normative model of democratic authorship is particularly inappropriate, it appears, in the context of international norms whose legitimacy cannot be traced back to the united will of a sovereign people. Such norms originate either in declarations and covenants formulated by expert bodies in international organizations, such as the United Nations or other treaty-producing organizations, or they originate through customary international law as upheld by national and international courts and shared practice. But it is not the genesis of the norm alone that should determine its legitimacy. Just as the major human rights declarations of the international community have taken the constitutions of the world’s liberal democracies as a model for articulation, so too can these international rights norms enter the democratic conversation of citizens through various venues and thus become “contextualized”—or, to use Peggy Levitt and Sally Engle Merry’s felicitous word, “vernacularized.”39
In a number of works over the past decade, I have proposed “democratic iterations” as a possible normative model with empirical implications to think through some of these dilemmas. By democratic iterations, I mean complex processes of public argument, deliberation, and exchange through which universalist rights claims are contested and contextualized, invoked and revoked, posited and positioned, throughout legal and political institutions as well as in the associations of civil society. In the process of repeating a term or a concept, we never simply produce a replica of the first intended usage or its original meaning; rather, every repetition is a form of variation. Every iteration transforms meaning, adds to it, enriches it in ever-so-subtle ways. Every act of iteration involves making sense of an authoritative original in a new and different context, through interpretation. The antecedent is thereby reposited and resignified via subsequent usages and references. Meaning is enhanced and transformed. Conversely, when the creative appropriation of that authoritative original ceases or stops making sense, then the original loses its authority over us as well.
Democratic citizens and stakeholders must reinterpret and reappropriate human rights principles in order to give them shape as constitutional rights and, if and when necessary, must suffuse constitutional rights with new content. Nor is it to be precluded that such constitutional iterations may themselves provide feedback loops in rendering more precise the intent and language of international human rights declarations and treaties.40
Democratic iterations occur throughout national and transnational civil society and global public spheres, in diverse sites. In constitutional democracies, the courts are the primary authoritative sites of norm iteration through judicial interpretation—although not of their democratic iteration, since per definitionem they operate according to different criteria of legitimacy. Yet the interaction between domestic norms and transnational ones does not take place only in courts. Increasingly, intervening in these processes are the contributions of other organizations, such as national and international nongovernmental organizations like Amnesty International or Human Rights Watch, which can produce expert reports and mobilize public opinion around controversial norm interpretation and norm implementation issues. A third site of iteration emerges through the interaction of domestic-judicial and transnational sources of norm interpretation and the political opinion-formation of ordinary citizens and residents. In formulating the concept of democratic iterations, it is this latter process that I had most in mind, though the other two processes were not excluded. Robert Post captures this tension between the legal and political very well:
Politics and law are thus two distinct ways of managing the inevitable social facts of agreement and disagreement. As social practices, politics and law are both independent and interdependent. They are independent in the sense that they are incompatible. To submit a political controversy to legal resolution is to remove it from the political domain; to submit a legal controversy to political resolution is to undermine the law. Yet they are interdependent in the sense that law requires politics to produce the shared norms that law enforces, whereas politics requires law to stabilize and entrench the shared values the politics strives to achieve.41
If democratic iterations are necessary in order for us to judge the legitimacy of a range of variation in the interpretation of a rights claim, how can we assess whether democratic iterations have taken place, rather than demagogic processes of manipulation or authoritarian indoctrination? Do not democratic iterations themselves presuppose some standards of rights to be properly evaluated? Furthermore, aren’t democratic iterations conceding too much to, or maybe even idealizing, democratic processes that are inevitably messy, are often ill informed, and, more significantly, may result in the trampling of the rights of unwanted others and minorities? I am very aware of this conflict, and yet I would insist on the necessary interaction between the liberal discourse of rights protection and the democratic processes of opinion- and will-formation.42 Democratic iterations do not idealize populist politics, but they have some formal discourse conditions built into them that would exclude the most egregious rights violations.
Democratic legitimacy reaches back to principles of normative justification. Democratic iterations do not alter the validity conditions of moral discourses of justification that are established independently of them. The “normative gap” remains. As is well known, this discourse model of justification, much like John Rawls’s model of the two principles of justice, is a counterfactual one. It leads us to judge as “legitimate” or “illegitimate,” in a preliminary and formal sense, processes of opinion- and will-formation through which rights claims are contested and contextualized, expanded and debated, in actual institutions of civil and political society. Such criteria minimally distinguish a de facto consensus from a rationally motivated one. Such criteria are not guidelines for building institutions, any more than Rawls’s second principle of justice—the “difference principle”—tells us how to organize the economy! They are counterfactual criteria that can lead participants to challenge the legitimacy of a decision reached or a norm advocated. They provide moral agents with what Rainer Forst terms a “veto right.”43
Some will note that there may be some kind of circularity here. I am talking about the right of participants to equal say, to agenda setting, and so forth, and the objection will be voiced: Weren’t such norms supposed to result from a practical discourse in the first place? The answer to this objection is as follows. Since Aristotle, we know that, in reasoning about matters of ethics and politics, we are “always already situated” in medias res—we never begin the conversation without some presupposition and, in this case, without some shared understanding of what equality of participation in the conversation, challenging the agenda, and the like, may mean. Discourses are reflexive processes through which much of what we always already take for granted is challenged, questioned, “bracketed,” if you wish, until these presuppositions are reestablished at the end of the conversation—a conversation that itself is always open to a future challenge.
This hermeneutic model of iteration is a recursive one, based on the same principles of nonfoundationalism that Neil Walker recently articulated.44 There is an empirical and normative incompleteness to the interpretation of the rules that frame the discourses themselves, which then need to be reposited and rearticulated through the conversation. This recursive model of justification, based on the force of iterations, is related to many discussions in contemporary nonfoundationalist epistemology as well.45
When deployed with respect to international law and democratic sovereignty, democratic iterations help us understand a process that Judith Resnik has documented. Treaty ratification processes now no longer center upon “a singular formal moment of ratification through a monovocal nation-state.” Increasingly, cities, states, counties, and municipalities are themselves incorporating major human rights treaties into their own charters. The city of San Francisco and San Paolo, Brazil, have adopted CEDAW; Portland, Oregon, has incorporated the Universal Declaration of Human Rights.46 These processes of “legal seepage” at levels below the centralized judicial authority of the state testify to disaggregation processes of the national that Saskia Sassen is also concerned with.47 However, one cannot naively assume that all local iterations will enhance democratic processes and values; they will not and do not. Nevertheless, such affiliations multiply the sites at which transjudicial conversations can occur, and they show how, even in the face of national recalcitrance and resistance to some human rights organs, such as CEDAW, for example, a human rights discourse can take place across national and local boundaries.
Resnik’s innovative contribution is to suggest that reservations, understandings, and declarations themselves can be viewed in analogy to doctrines such as “margin of appreciation” or types of legal pluralism permitted by a variety of federalist arrangements (such as, for example, India’s Muslim Family Law).48 Yet, whereas the local and regional incorporation of rights treaties suggest their expansion across borders, these other processes suggest the limitation and blunting of their normative reach. Resnik cites how Bangladesh in 1997 withdrew reservations to CEDAW, which were earlier based on the conflict between Sharia law and the convention; Jordan withdrew a similar objection to a woman’s right to independent residence and domicile outside that of her husband, in 2009. Sex-based differences in the military had led countries such as Australia, Austria, Germany, New Zealand, Switzerland, and Thailand to place reservations on CEDAW; many of these nations have subsequently withdrawn their caveats.
Resnik is not oblivious, either, to the limiting effect of reservations, understandings, and declarations, nor to the potentially opportunistic uses European courts make of the doctrine of “margin of appreciation.” Yet she sees these models of “mediated participation” as offering a “cosmo-political” vision to “capture the idea of polities joining in commitments that both acknowledge their independent identities while imposing reciprocal obligations.”49
As this final discussion indicates, although I do not share the skepticism of realist state-theorists, I also am unable to share in the enthusiasm of global constitutionalists. It is within and across bounded polities (which may or may not be nation-states—they can be multiethnic or multicultural democracies, binational federations, or constitutional postnational polities such as the EU) that democratic iterations can occur. Empires have frontiers; democracies have boundaries. These boundaries are porous, permeable, and active sites of transnational conversations and interactions. It is this radical fact of interdependence and transnational affiliation that contemporary legal cosmopolitanism ought to seek to elucidate.
Let me conclude by returning to the objections, outlined at the beginning of this essay, of those thinkers who wish to defend the value of democratic self-determination and who claim (a) that recent developments in international law are ideals of cosmopolitan elites with little traction in the life of peoples (Walzer and Moyn); (b) that the principle of self-determination expresses an important value, and that “legal pluralism” may be the desirable middle ground between global cosmopolitanism and national sovereigntism (Walzer and Cohen); and finally, (c) that international law is no more than the consensually undertaken contractual commitments among sovereign states that remain the central units of jurisdiction and enforcement (Nagel). I hope to have shown that (a) and (c) are empirically false. The normative reach of international and transnational law is not limited by their conditions of origin; they are not merely fancy documents drawn by remote elites but actually have consequences for the empowerment of peoples around the world. Nor can they be viewed as contractual treaty obligations undertaken by sovereign states alone. They certainly are that, at least, but they also are much more than that, in that they bind states to a new sovereignty regime.
My struggle in this chapter has been to do justice to the values of self-determination and democratic sovereignty, on the one hand, and of legal cosmopolitanism and transnational solidarities on the other. “Legal pluralism” certainly captures a truth, but it does not go far enough, because the most difficult questions today emerge around the tug-of-war between the demands of international human rights norms and the sovereignty claims of constitutional democracies. Legal pluralism does not tell us how we ought to think about such conflicts and move beyond the zero-sum approach entertained by many. For example, what is the legitimate range of variation in the interpretation and implementation of human rights norms across democracies? How do we account for the force of the “normative gap” between concepts and conceptions of human rights?
I have suggested that there are some plausible theoretical answers to these dilemmas, all of which operate along the shared moral and political intuition that the democratic and the transnational, the local and the cosmopolitan are not opposed but may be seen, through contentious interpretation and conflict, as enhancing one another.
NOTES
An expanded and slightly revised version of this essay appeared as “The New Sovereigntism and Transnational Law: Legal Utopianism, Democratic Skepticism and Statist Realism,” Global Constitutionalism, 5, no. 1 (March 2016), 109–44.
I am grateful to Joseph Weiler for his hospitality during my stay at NYU’s Straus Institute for the Advanced Study of Law and Justice, under the auspices of a Guggenheim Fellowship in spring 2012. I am equally thankful to Judith Resnik for her extensive feedback as this essay has assumed final form, and to Robert Post, Neil Walker, Alec Stone Sweet, and Bruce Ackerman for helpful conversations. Participants in the “Justification Beyond the State” conference at NYU’s Straus Center, on November 15, 2013—Rainer Forst, Jean Cohen, Mattias Kumm, Turkuler Isiksel, Lea Ypi, and, in particular, Stefan Gosepath—provided very sharp comments on another draft of this essay. Thanks also to my American Political Science Association co-panelists of August 2014, Max Pensky and Cristina Lafont, for their engagement with these themes.
1. Kiobel et al. v. Royal Dutch Petroleum, 569 U.S. (2013), No. 10–1491.
2. Michael Goodhart and Stacy Bondanella Tanichev, “The New Sovereigntist Challenge for Global Governance: Democracy Without Sovereignty,” International Quarterly Studies 55, no. 4 (2011), 1047.
3. Michael Ignatieff, “Human Rights as Politics,” in Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), 12–14.
4. Carl Schmitt, Der Nomos der Erde im Voelkerrecht des Jus Publicum Europaeum, 4th ed. (Berlin: Duncker and Humblot, 1997), 224; Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (New York: Telos, 2003), 254–5. I have consulted, but have not always used, the English translation.
5. Schmitt, Nomos der Erde, 224–5. My emphasis. I used my own translation here because the English has been somewhat abbreviated.
6. I am using the term “transnational law” in the sense described by Harold Koh, as international law that moves through public and private institutions and engages not only states but also nongovernmental organizations and commercial corporations. See Koh, “Transnational Legal Process,” Nebraska Law Review 75, no. 1 (1996): 181–208; and Koh, “Transnational Public Law Litigation,” Yale Law Journal 100 (1991): 2347–402. See also Oren Perez’s statement: “This expanding network of transnational ‘legalities’ is not based on a coherent set of normative or institutional hierarchies. Rather, it represents a highly pluralistic mixture of legal regimes, with variable organizational and thematic structures: from state-oriented systems—such as the dispute settlement of the WTO, or the adjudicative system of the Law of the Sea Convention—to hybrid or private regimes.” Perez, “Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law,” Indiana Journal of Global Legal Studies 10, no. 2 (2003): 25. By “hybrid regimes,” Perez also means “the cooperation between public and private bodies.”
7. Among the literature discussing “global constitutionalization,” see Bardo Fassbender, “The United Nations Charter as Constitution of the International Community,” Columbia Journal of Transnational Law 36, no. 3 (1998): 529–619; Fassbender, “ ‘We the Peoples of the United Nations’: Constituent Power and Constitutional Form,” in The Paradox of Constitutionalism, ed. Martin Loughlin and Neil Walker (Oxford: Oxford University Press, 2007), 269–90; Arnim von Bogdandy, “Constitutionalism in International Law: Comment on a Proposal from Germany,” Harvard International Law Journal 47, no. 1 (2006): 223–42; Brun-Otto Bryde, “Konstitutionalisierung des Voelkerrechts und Internationalisierung des Verfassungsbegriffs,” Der Staat 1 (2003): 61–75; and Hauke Brunkhorst, “Globalizing Democracy Without a State: Weak Public, Strong Public, Global Constitutionalism,” Millenium: Journal of International Studies 31, no. 3 (2002): 675–90.
For historical antecedents, see Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre (1928; repr. Vienna: Scientia Allen, 1960); Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft (Vienna: J. Springer, 1926). There are parallel discussions with regard to constitutionalization in the EU, the World Trade Organization, and the International Monetary Fund. See Alec Stone Sweet, “Constitutionalism, Legal Pluralism, and International Regimes,” Indiana Journal of Global Legal Studies 16, no. 2 (2009): 621–45.
8. Jeremy Waldron, “Partly Laws Common to All Mankind”: Foreign Law in American Courts (New Haven, CT: Yale University Press, 2012). See also Jeremy Waldron, “The Supreme Court, 2004 Term-Comment: Foreign Law and the Modern Ius Gentium,” Harvard Law Review 119, no. 1 (2005): 129–47.
9. See Günther Teubner, “Global Bukovina,” in Global Law Without a State, ed. Günther Teubner (Aldershot, VT: Dartmouth, 1997), 3–28; and Teubner, “Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory,” in Transnational Governance and Constitutionalism, ed. Christian Joerges, Inger-Johanne Sand, and Günther Teubner (Oxford: Hart, 2004), 3–29.
10. Mark Tushnet argues that the “globalization of constitutional law” is unavoidable. For him, the driving mechanisms are economic; he leaves aside the question of the globalization of human rights norms insofar as they constitute the core of constitutional law. Tushnet, “The Inevitable Globalization of Constitutional Law,” Virginia Journal of International Law 49 (2009): 985–1006.
11. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983); Thomas Nagel, “The Problem of Global Justice,” Philosophy and Public Affairs 33, no. 2 (2005): 113–47; Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press, 2010); Jean Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism (Cambridge: Cambridge University Press, 2012).
Theorists such as Quentin Skinner and Michael Sandel also are skeptical about the force of the international. See Skinner, “The Sovereign State: A Genealogy,” in Sovereignty in Fragments: The Past, Present and Future of a Contested Concept,” ed. Hent Kalmo and Quentin Skinner (Cambridge: Cambridge University Press: 2010), 26–46; and Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA: Belknap Press of Harvard University Press, 1996). Sandel states, “If the global character of the economic suggests the need for transnational forms of governance, however, it remains to be seen whether such political units can inspire the identification and allegiance—the moral and civic culture—on which democratic authority ultimately depends” (399).
12. See Universal Declaration of Human Rights, G.A. Res. 217A (III) (Dec. 10, 1948); United Nations Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (III)A (chapter 2) (Dec. 9, 1948); Convention Relating to the Status of Refugees, G.A. Res. 429 (V) (entered into force Apr. 22, 1954); International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (no. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force Jan. 3, 1976); The Convention to Eliminate All Forms of Discrimination Against Women, G.A. Res. 34/180, Dec. 18, 1979 (entered into force Sept. 3, 1981); International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX) (Dec. 21, 1965); and Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 (Dec. 10, 1984).
13. These provisions are, of course, augmented by many others. See, for example, Declaration on the Human Rights of Individuals Who are not Nationals of the Country in Which They Live, G.A. Res. 40/144, Annex, 40 U.N. GAOR Supp. (No. 53) at 252, U.N. Doc. A/40/53 (1985), providing such “aliens” with rights to leave, liberty of movement within a country, the right to have spouses and minor children admitted to join and stay with them, and protection from expulsion by requiring opportunities for hearings and for decision making not predicated on discrimination based on “race, colour, religion, culture, descent or national or ethnic origin”; Convention on the Reduction of Statelessness, 989 U.N.T.S. 175 (Dec. 13, 1975), requiring that nations grant nationality rights, under certain conditions, to “persons born in its territory who would otherwise be stateless”; Migration for Employment (Revised) (ILO no. 97), 120 U.N.T.S. 70 (Jan. 22, 1952), providing that members of the International Labour Organization make work policy and migration policies known, and treat fairly “migrants for employment”; and Declaration on Territorial Asylum, G.A. Res. 2312 (XXII), 22 U.N. GAOR Supp. (no. 16) at 81, U.N. Doc. A/6716 (1967).
14. In recent years, the historiography of human rights has commanded the attention of many historians, as well, and it is as if each historian has his or her heroes and heroines in telling the tale of the Universal Declaration of Human Rights, in particular. For Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), this is Eleanor Roosevelt; for Samantha Powers, “A Problem from Hell”: America and the Age of Genocide (New York: Basic Books, 2002), it is Ralph Lemkin; for Jay Winter, Dreams of Peace and Freedom: Utopian Movements in the Twentieth Century (New Haven, CT: Yale University Press, 2006), it is the French jurist René Cassin; for Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University Press, 2009), it is South African Prime Minister Smuts, whose efforts, ironically, resulted in the condemnation of his own South Africa for its treatment of “colored” peoples. Johannes Morsink’s extremely instructive and more philosophical reconstruction of the debates resulting in the Universal Declaration takes the Canadian jurist Humphreys as its hero. Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999). In contrast to these works, Samuel Moyn’s much-discussed narrative in The Last Utopia is less reverent and explicitly antiteleological and antihagiographic. Joining Marc Bloch in criticizing the “idol of origins” (we can also think here of Walter Benjamin), Moyn refuses to see history as the tracing of antecedents and argues that human rights are something new that has transformed old currents beyond recognition. The “true key to the broken history of human rights, then, is the move from the politics of the state to the morality of the globe which now defines contemporary aspirations” (Moyn, Last Utopia, 42). In this provocative work, Moyn goes wrong in his simplistic juxtaposition of human rights and democratic self-determination, and in misconstruing the interaction between the ethical and political dimensions of human rights. See my critique, in Seyla Benhabib, “Moving Beyond False Binarisms: On Samuel Moyn’s The Last Utopia,” Qui Parle? 22, no. 1 (Fall/Winter 2013): 81–93.
15. See Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: University of Chicago Press, 1982); Gewirth, The Community of Rights (Chicago: University of Chicago Press, 1996); James Griffin, On Human Rights (Oxford: Oxford University Press, 2008); John Rawls, The Law of Peoples with “The Idea of Public Reason Revisited” (Cambridge, MA: Harvard University Press, 1999); Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), 13; and Joseph Raz, “Human Rights Without Foundations,” in The Philosophy of International Law, ed. Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010), 321–39. Pablo Gilabert names the traditional conception the “humanistic” view. See Gilabert, “Humanist and Political Perspectives on Human Rights,” Political Theory 39, no. 4 (May 2011): 439–67. I discuss these differences in Seyla Benhabib, “Reason-Giving and Rights-Bearing: Constructing the Subject of Rights,” Constellations: An International Journal of Critical and Democratic Theory 20, no. 1 (2013): 38–51.
16. See Seyla Benhabib, “Another Universalism: On the Unity and Diversity of Human Rights,” in Dignity in Adversity: Human Rights in Troubled Times (Cambridge: Polity, 2011), 57–77; and Benhabib, “Reason-Giving and Rights-Bearing,” 38–51.
17. James Griffin, “Human Rights: Questions of Aim and Approach,” Ethics 120, no. 4 (July 2010): 745.
18. See the classic essay by Ronald Dworkin, “Taking Rights Seriously” (1970), in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 184–205.
19. John Rawls invokes H. L. A. Hart’s discussion to introduce this distinction. See Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 5; and H. L. A. Hart, The Concept of Law (1961; repr. Oxford: Clarendon, 1975), 155–9. Many thanks to the late Ed Baker for clarifying some of the intertextual issues involved here.
20. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 14, note 15.
21. Dworkin, “Constitutional Cases,” in Taking Rights Seriously, 131–49.
22. Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002), 47–48.
23. Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press, 2002), 154–68.
24. Title IX, Education Amendments of 1972, 20 U.S.C. §§ 1681–1688 (1972); Title VII, 42 U.S.C. §§ 2000e to 2000e-15 (1970), as amended, 42 U.S.C. §§ 2000e to 2000e-17 (supp. II, 1972).
25. There is an epistemic parallel between what I am calling “range of variation” and jurisprudential principles such as “margin of appreciation” and “proportionality,” used frequently by courts in their interpretation and application of human rights norms. But sometimes these principles are also invoked to eviscerate the normative power of international human rights. Particularly disappointing in this respect have been many judgments of the European Court of Human Rights, which have clearly upheld state sovereignty over and against human and civil rights claims with regards to the so-called “scarf affair.” For a discussion of the position of the European Court of Human Rights in the Leyla Sahin case, see Seyla Benhabib, “Human Rights, International Law and the Transatlantic Rift,” in The Democratic Disconnect: Citizenship and Accountability in the Transatlantic Community, by Benhabib et al. (Washington, DC: Transatlantic Academy, 2013), 89–96. http://www.transatlanticacademy.org/sites/default/files/publications/TA%2020123report_May13_complete_web.pdf.
26. I owe this formulation to Jürgen Habermas’s thesis of the cooriginality of public and private autonomy. Habermas, Between Facts and Norms, trans. William Rehg (Cambridge, MA: MIT Press, 1996), 84–104. The final sentence here (“Without the basic rights of the person …”) refers, of course, to Immanuel Kant’s famous formulation, “Thoughts without concepts are empty; intuitions without concepts are blind.” Kant, Critique of Pure Reason, unabridged ed., trans. Norman Kemp Smith (New York: St. Martin’s, 1965), 93. Although I am indebted to Habermas’s general discussions of the relationship between public and private autonomy and his analysis of the discursive legitimation of law, I do not follow his “discourse-theoretic deduction of basic rights.” See Seyla Benhabib, review of Habermas’s Between Facts and Norms, in American Political Science Review 91, no. 3 (1997): 725–6.
27. Ran Hirschl, Constitutional Theocracy (Cambridge, MA: Harvard University Press, 2010); Rawls, Law of Peoples, 79–80.
28. Rawls, Political Liberalism, 32. There is a substantial shift in Rawls’s understanding of the concept of the person between Political Liberalism and Law of Peoples, and this is behind the turn to Joshua Cohen’s “minimalism” in the defense of human rights among Rawlsians. I explore some of these issues in Seyla Benhabib, “Is There a Human Right to Democracy? Beyond Interventionism and Indifference,” in Philosophical Dimensions of Human Rights: Some Contemporary Views, ed. Claudio Corradetti (New York: Springer, 2011), 190–213.
29. See Raz, “Human Rights Without Foundations,” 321–39. For a defense of the “political conception” of rights, which goes beyond the limitations formulated by Raz, see Cristina Lafont, “Human Rights, Sovereignty and the Responsibility to Protect,” Constellations 22, no. 1 (2015): 68–78.
30. For a judicious analysis, see Cohen, Globalization and Sovereignty, 196–203.
31. For further reflections on these issues, see my exchange with Saladin Meckled-Garcia, in Seyla Benhabib, “Defending a Cosmopolitanism Without Illusions: Reply to My Critics,” Critical Review of International Social and Political Philosophy 17, no. 6 (2014): 697–715; and Saladin Meckled-Garcia, “What Comes First: Democracy or Human Rights?” in the same issue, 681–88.
32. T. H. Marshall, Citizenship and Social Class and Other Essays (Cambridge: Cambridge University Press, 1950).
33. I am grateful to the participants at the “Justification Beyond the State” conference at NYU’s Straus Center, held in November 2013, and in particular to Stefan Goosepath, Rainer Forst, and Chris McCrudden, for helping me see the difficulties of this point.
34. For a compelling recent statement of this objection, see Nancy Fraser, “Transnationalizing the Public Sphere: On the Legitimacy and Efficacy of Public Opinion in a Post-Westphalian World,” in Transnationalizing the Public Sphere, ed. Kate Nash (Cambridge: Polity, 2014), 8–42.
35. See the much-discussed book by Colin Crouch, Post-Democracy (Cambridge: Polity, 2004).
36. “We argued above,” write Goodhart and Taninchev, “that popular sovereignty represents the reconciliation of sovereignty … with the democratic principles of freedom and equality … Freedom and equality do not require popular sovereignty; they require that if there is sovereignty it must be popular … The challenge, then, is to decouple democratic freedom and equality from the notion of popular control, to develop new democratic criteria more appropriate for making sense of and evaluating global governance arrangements” (Goodhart and Taninchev, “New Sovereigntist Challenge,” 1060). My central argument in this essay is that the “decoupling” of democratic authorship from freedom and rights makes no sense conceptually and is hardly possible institutionally. Rather, we need to recognize the multiplicity of national, international, and transnational political arrangements and their messy interlinkages through various iterations, all the while subjecting such arrangements to democratic accountability and scrutiny.
37. Turkuler Isiksel, Europe’s Functional Constitution (Oxford: Oxford University Press, 2016).
38. See Neil Walker, “Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship,” Rechtsfilosofie & Rechtstheorie 39, no. 3 (2010): 206–33.
39. Peggy Levitt and Sally Engle Merry, “Vernacularization on the Ground: Local Uses of Global Women’s Rights in Peru, China, India and the United States,” Global Networks 9, no. 4 (2009): 441–61.
40. I have discussed in more detail the role of global social movements in claiming rights across borders and generating cosmopolitan citizenship in Seyla Benhabib, “Claiming Rights Across Borders: International Human Rights and Democratic Sovereignty,” in Dignity in Adversity, 117–38. This was originally published in American Political Science Review 103, no. 4 (November 2009): 691–704.
41. Robert Post, “Theorizing Disagreement: Re-conceiving the Relationship Between Law and Politics,” California Law Review 98, no. 4 (2010): 1319–50. See also the concept of “democratic constitutionalism” developed in Robert Post and Reva B. Siegel, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights and Civil Liberties Review 42, no. 2 (2007): 373–434.
42. For further elucidation, see Seyla Benhabib, “The New Sovereigntism and Transnational Law: Legal Utopianism, Democratic Skepticism and Statist Realism,” Global Constitutionalism 5, no. 1 (March 2016): 109–44.
43. Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice, trans. Jeffrey Flynn (New York: Columbia University Press, 2012), 183, 265.
44. Neil Walker, “Constitutionalism and the Incompleteness of Democracy”; and Walker, “Constitutionalism and the Incompleteness of Democracy: A Reply to Four Critics,” Rechtsfilosofie & Rechtstheorie 39, no. 3 (2010): 276–88. Walker is discussing democracy in these articles and not rules of discourse per se, but rules of discourse are the most abstract norms that undergird democratic practices, and the principle of “incompleteness” holds for both. Although he does not accept the prospect of “postnational constitutionalism without democracy,” Walker shows the inadequacy of the sovereign nation-centric model by elucidating how constitutionalism and democracy define and “complete” each other (Walker, “Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship,” 228–33).
45. See, for example, Robert Brandom’s statement: “Saying ‘we’ in this sense is placing ourselves and each other in the space of reasons, by giving and asking for reasons for our attitudes and performances … Our attitudes and acts exhibit an intelligible content, a content that can be grasped or understood, by being caught up in a web of reasons, by being inferentially articulated.” Brandom, Making It Explicit: Reasoning, Representing and Discursive Commitment (Cambridge, MA: Harvard University Press, 1994), 5.
46. Judith Resnik, “Comparative (in)equalities: CEDAW, the jurisdiction of gender, and the heterogeneity of transnational law production,” I.CON 10, no. 2 (2012): 531–50, 546.
47. Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press, 2006).
48. See Benhabib, The Claims of Culture, 91–94.
49. Resnik, “Comparative (in)equalities,” 549.