29 COSMOPOLITAN NORMS HUMAN RIGHTS AND DEMOCRATIC ITERATIONS SEYLA

29 COSMOPOLITAN NORMS HUMAN RIGHTS AND DEMOCRATIC ITERATIONS SEYLA
DAS FORSCHUNGS UND AUSTAUSCHPROGRAMM WRITING THE COSMOPOLITAN IMAGINATION GENRE

"Another Universalism: Cosmpolitan Rights and Ethical

Cosmopolitan Norms, Human Rights and Democratic Iterations

Seyla Benhabib

Eugene Meyer Professor of Political Science and Philosophy

Yale University

Not for Circulation and Publication

@Seyla Benhabib

The status of international law and of transnational legal agreements and treaties with respect to the sovereignty claims of liberal democracies has become a highly contentious theoretical and political issue. On September 18, 2008 The New York Times carried an article by Adam Liptak entitled “U.S. Court, a Longtime Beacon, is Now Guiding Fewer Nations.”^¹ Liptak detailed how in the last decade citations of decisions of the U.S. Supreme Court had declined, while the influence of the European Court of Human Rights and the Canadian Supreme Court had grown. This evidence was all the more surprising since so many of these courts and their leading constitutional documents – such as The Indian Constitution of 1949; the Canadian Charter of Rights and Freedoms of 1982; the New Zealand Bill of Rights of 1990 and the South African Constitution of 1996-- all drew on American constitutional principles at their inception.

At stake is not only the esteem in which the U.S. Supreme Court is held world-wide, but the standing of international and foreign law itself in U.S. courts. In his highly controversial decision that struck down the death penalty for juvenile delinquents, Justice Anthony M. Kennedy cited the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, among other documents.^² In his dissenting opinion, Justice Antonin Scalia, thundered: “The basic premise of the court’s argument – that American law should conform to the laws of the rest of the world – ought to be rejected out of hand.” Seeing this as an all or nothing equation, Justice Scalia drove to a reductio ad absurdum: “The Court should either profess its willingness to reconsider all these matters in the light of views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision making, but sophistry.”^³ (Emphasis in the original)

This controversy concerns not only the heft and weight of foreign courts in influencing the decisions of Supreme Court justices, but broader issues such as: what is the proper epistemology of judicial decision-making? Why should judges not learn from other colleagues who have considered similar problems in their own jurisdictions? Isn’t legal epistemology enriched by looking across the border and even the ocean? Citing a foreign ruling does not convert it into a binding precedent, does it?

Not only Justice Antonin Scalia, but Chief Justice John G. Roberts Jr. as well, oppose this liberal-minded problem-solving approach to judicial decision-making that would learn and borrow from other courts and international documents is. Justice Robert considers the citing of foreign law to be not an innocent exercise in decision-making, but a compromise or dilution of sovereignty. Liptak quotes Justice Roberts from his 2005 confirmation hearings: “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no senate accountable to the people confirmed that judge. And yet he is playing a role in shaping the law that binds the people in this country.”^⁴ By blurring the distinction between “citing an opinion” and “creating a precedent,” Justice Roberts raises the specter of the weakening of democratic sovereignty and judicial accountability.^⁵

What indeed is the status of foreign and international law in a world of increasing interdependence? Do they dilute sovereignty? What is the source of the anxieties and fears invoked by so many in these debates about the problematic relation of transnational legal norms and democratic sovereignty?^⁶

Let me distinguish between foreign, international and transnational law from the standpoint of a political theorist rather than that of a legal scholar: By ‘foreign law’ I will broadly understand special obligations, privileges and encumbrances which emerge among states as a consequence of bilateral or multilateral treaties. Thus, tax agreements, commercial contracts and the like among countries pertaining to individuals or corporations would be prime examples.

By ‘international law’ I understand public legal conventions pertaining to the world community at large, some of which may be formulated in written form, such as the Universal Declaration of Human Rights, and others of which, such as norms of jus cogens, are unwritten but pertain to customary international law. Jus cogens norms mean that any treaties among nations and international agreements which engage in gross human rights violations by advocating genocide, ethnic cleansing, slavery, mass murder are eo ipso invalid.

In defining ‘transnational law’ I follow Harold Koh’s processual focus on “transnational legal process.” He writes: “… the theory and practice of how public and private actors including nation-states, international organizations, multinational enterprises, nongovernmental organizations, and private individuals, interact in a variety of public and private, domestic and international fora to make, interpret and enforce rules of transnational law… transnational law is both dynamic –mutating from public to private, from domestic to international and back again – and constitutive, in the sense of operating to reconstitute national interests.”^⁷

Duly executed foreign and international law is binding upon lawmakers, as the U.S. Constitution itself states in Article VI on the status of treaties.^⁸ In this respect, there is no contradiction between the will of democratic legislatures and the force of international law and treaties. Entering into such agreements or declining to do so is a crucial aspect of sovereignty itself. Yet unlike some jurisdictions in which foreign and international law become part of domestic law, in the U.S. treaties are not self-executing and require congressional ratification.

What about the status then of multilateral treaties concerning human rights in particular? I will raise this question not with specific reference to the U.S. case alone, but against the background of larger transformations in international law.^⁹

I approach these questions as a political philosopher and not as a legal scholar. I want to look at the alleged conflict between one class of international legal norms in particular, namely those pertaining to human rights, broadly understood, and sovereignty, and I want to argue that in fact the alleged conflict between such norms and democratic sovereignty derives from an inadequate understanding of how international and transnational norms function. Such norms enhance rather than undermine popular sovereignty.

Since these transformations are altering norms of state sovereignty as well as impacting the actual capacity of states to exercise sovereignty, it is important at the outset to distinguish between state sovereignty and popular sovereignty. The concept of ‘sovereignty’ ambiguously refers to two moments in the foundation of the modern state, and the history of modern political thought in the West since Thomas Hobbes can plausibly be told as a negotiation of these poles: First, sovereignty means the capacity of a public body, in this case the modern nation-state, to act as the final and indivisible seat of authority with the jurisdiction to wield not only ‘monopoly over the means of violence,’ to recall Max Weber’s famous phrase, but also to distribute justice and manage the economy.

Sovereignty also means, particularly since the French Revolution, popular sovereignty, that is, the idea of the people as subjects and objects of the law, or as makers as well as obeyers of the law. Popular sovereignty involves representative institutions, the separation of powers, and the guarantee not only of liberty and equality, but of the “equal value of the liberty of each.” Etienne Balibar has expressed the interdependence between state sovereignty and popular sovereignty thus: “… state sovereignty has simultaneously “protected” itself from and “founded” itself upon popular sovereignty to the extent that the political state has been transformed into a “social-state”… passing through the progressive institution of a “representation of social forces” by the mechanism of universal suffrage and the institutions of social citizenship…”^¹⁰

My question is: how does the new configuration of state sovereignty influence popular sovereignty? Which political options become possible? Which are blocked? I will argue that cosmopolitan norms enhance the project of popular sovereignty while prying open the black box of state sovereignty. They challenge the prerogative of the state to be the highest authority dispensing justice over all that is living and dead within certain territorial boundaries. In becoming party to many human rights treaties, states themselves “bind” their own decisions.

The argument presented in this paper bears upon but does not lead to a definitive position regarding the global justice debate in contemporary political philosophy. One aspect of that debate, largely between Rawlsians such as Thomas Nagel and more cosmopolitan theorists such as Thomas Pogge as well as Joshua Cohen, concerns the picture of the world order from which we proceed.^¹¹ I agree with cosmopolitans that the world-picture of the “law of nations” is inadequate, but I also concede that this point alone cannot determine the nature and extent of obligations of justice among nations and individuals in the world community. But legal developments matter, and we need to correct the picture of national autarchy on the basis of which Rawls, at least, wrote The Law of Nations. I will outline the normative implications of my argument in the concluding sections of this paper.

From International to Cosmopolitan Norms

It is now widely accepted that since the UN Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society which is characterized by a transition from international to cosmopolitan norms of justice. While norms of international law emerge through treaty obligations to which states and their representatives are signatories, cosmopolitan norms accrue to individuals considered as moral and legal persons in a world-wide civil society. Even if cosmopolitan norms also originate through treaty-like obligations, such as the UN Charter, and even if the various human rights covenants can be considered for their member states, their peculiarity is that they bind states and their representatives, sometimes against the will of the signatories themselves. This is the uniqueness of the many human rights agreements concluded since WWII. I want to describe this process as ‘multilateral covenantalism.’

Let me list here briefly the numerous human rights declarations which have been signed by a majority of the world’s states since the 1948 Universal Declaration on Human Rights (UDHR):^¹² the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, adopted by Resolution 260 (III) A of the UN General Assembly on December 9 1948 (Chapter II); the 1951 Convention on Refugees (which entered into force in 1954);^¹³ the International Convention on Civil and Political Rights (ICCPR; signed in 1966 and entered into force in 1976, with 152 countries are parties to it)^¹⁴; and the International Covenant on Economic, Social and Cultural Rights (ICESCR; entered into force the same year and with similar number of signatories),^¹⁵ and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW; signed in 1979 and entered into force in 1981).^¹⁶ These are some of the best known among many other treaties and conventions.

But what does all this really mean? What possible significance do these multilateral human covenants have if states continuously and brazenly violate them? Are these not mere words at worst or aspirational ideals at best that have little traction in limiting state conduct? Can these treaties be considered law at all?

Empire and Cosmopolitanism

In contemporary thought, terms such as ‘globalization’ and ‘empire’ are often used to capture these transformations in the international domain. Yet these terms are greatly misleading, in that they fail to address the distinctiveness of cosmopolitan norms. Defenders of economic globalization, such as Thomas Friedman (at least in his earlier work, The World is Flat), reduce cosmopolitan norms to a thin version of the human rights to life, liberty, equality, and property that are supposed to accompany the spread of free markets and trading practices. In this respect, neo-liberal theorists of globalization join hands with neo-Marxist theorists of ‘empire,’ most notably, Tony Negri and Michael Hardt. As is well-known, Hardt and Negri distinguish between imperialism and empire in order to capture the novel logic of the international order. While imperialism refers to a predatory, extractive and exploitative order through which a sovereign power imposes its will upon others, ‘empire’ refers to an anonymous network of rules, regulations, and structures which entrap one in the system of global capitalism. Empire is a hegemon without a center. Global capitalism requires the protection of the rights of the individual to freely exchange goods and services in the market place; above all; global capitalism demands that contracts be upheld (pacta sunt servanda), that they be predictable and capable of execution. Empire, then, is the ever-expanding power of global capital to bring farther and farther reaches of the world into its grip. ^¹⁷

A more interesting version of the empire thesis has been recently provided by James Tully, who names such cosmopolitan rights discourse “the Trojan horse” of a neo-imperial order extending throughout the globe. “The two cosmopolitan rights,” writes James Tully, harking back to the development of cosmopolitan discourse in the 18^th century, namely “of the trading company to trade and the voluntary organizations to convert – also fit together in the same way as with the nation state. The participatory right to converse with and try to convert the natives complements the primary right of commerce …From the perspective of non-Western civilizations and of diverse citizenship, the two cosmopolitan rights appear as the Trojan horse of western imperialism.”^¹⁸

But let us pause here: the contours of the precise relationship between the global commercial transactions and the law remains yet to be determined. Alec Stone Sweet in his article, “The new Lex Mercatoria and Transnational Governance,” provides a sobering view: the medieval “law merchant,” which appeared between the eleventh and twelfth centuries, “was operated by traders and their agents.”^¹⁹ It was based on good faith; reciprocity; non-discrimination between foreigners and locals, and conflict-resolution favoring equity settlements (Ibid.) “The new Lex Mercatoria also employs general principles of contract, mediation and arbitration along equity lines, and means of curating reputations,”^²⁰ but it does so with a new legal system “replete with its own ‘a-national’ law of contract and system of private ‘courts’.”^²¹ Lex Mercatoria is parasitic upon state authority, in that it uses the state for the purposes of enforcement, “while otherwise working to reduce the reach of sovereign control over transnational business.” (Ibid.) Stone Sweet is not as alarmed as others are about the erosion of state sovereignty implied by this process, seeing rather the emergence of instruments such as UNIDROIT Principles of International Commercial Contracts as norms that could become a comprehensive code for international commerce. Reminding his readers that the American Law Institute in 1932 first produced a Restatement of the Law of Contracts and drafted the Uniform Commercial Code, Stone Sweet argues that “the bulk of the law governing contracts and interstate trade was harmonized, without federalization.”^²² According to Stone Sweet the relationship between lex Mercatoria and the state, therefore, is one of deep interdependence: while lex mercatoria is giving rise to arbitration procedures which circumvent national courts, it is only states that can enforce the results of such arbitration; and arbitrators are increasingly working according to precedent, giving reasons etc. What we are witnessing, says Stone Sweet, is the emergence of an alternative model of transnational governance, and this “decentralized transnational ‘governance’ will now begin to take on the features of ‘government.’”^²³

On this model, sovereignty is not being eroded as much as it is being voluntarily ‘outsourced’ to new institutions. The neo-liberal advocates of global capitalism and Marxist critics of globalization each miss the extent to which this system is decentered and fragmented and escapes the control of any kind of single center of power which can be deemed hegemonic over it. But conservatives are not wrong in worrying that a new system of governance without consent is emerging. The ‘decentralized transnational governance’ of the new lex mercatoria is created by elites and judicial officials who are responsible and responsive to each other; but the extent of their responsiveness to the peoples in the countries from which these transactions emanate is murky at best.

Another version of the argument that the spread of cosmopolitan norms heralds a project of hegemony has been advanced by Kim Sheppele and Jean Cohen. ^²⁴ According to this analysis, it is the creation of an international emergency situation primarily through the actions of the UN Security Council which must be heeded. “… [The] seemingly arbitrary redefinition of domestic rights violations as a threat to international peace and security, and the selective imposition of debilitating sanctions, military invasions, and authoritarian occupation administrations by the SC or by states acting unilaterally (‘coalition of the willing’), framed as ‘enforcement’ of the values of the international community, gave some of us pause. This discursive framework opened a Pandora’s box, the import of which is becoming clear only now, in the third post 9/11 phase of the transformation of public international law.”^²⁵ The Security Council is usurping law-making capacities, and in legislating against terrorism, in favor of humanitarian emergencies, and post-peace-keeping regimes and the like, it is violating privacy as well as sovereignty rights. The member states of the UN can neither oppose these measures, nor can they amend them, since the amendment rules place the UN Security Council out of their reach by endowing its members with special veto rights. The connection between these actions of the SC and cosmopolitan norms of human rights is that, formulae such as “the obligation” or “the responsibility” to protect, which have been increasingly endorsed by the Secretary General of the UN and which are logical consequences of viewing every individual as a being entitled to rights within the global civil society, become slippery slopes towards the creation of an international emergency situation, prodded by the actions of UN SC. As Mahmood Mamdani puts it in biting terms: “ The new humanitarian order, officially adopted at the UN’s 2005 World Summit, claims responsibility for the protection of vulnerable populations…Whereas the language of sovereignty is profoundly political, that of humanitarian intervention is profoundly anti-political …. The international humanitarian order, in contrast, does not acknowledge citizenship. Instead it turns citizens into wards.”^²⁶

There is a great deal in these objections that should be taken seriously and that ought to give one pause: both neo-liberal theorists of the “the world is flat” school and critics of neo-imperial capitalist hegemony recapitulate a well-known Marxist critique which views the discourse of human rights as the ideological veneer enabling the spread of free-commodity relations.^²⁷ Certainly, there is a historical as well as conceptual link between the universalization of market forces and the rise of the view of the individual as a self-determining and free being, capable of disposing over her goods and actions. But human rights norms are not norms of person, property and contract alone and they cannot be reduced to norms protecting free-market transactions. Human rights norms such as freedom of speech, association, assembly, entitlements to socio-economic equality are also citizens’ rights, subtending and enabling collective action and resistance to the very processes of rapacious capitalist development. Many of the international human rights covenants contain, in fact, provisions against the exploitative spread of market freedoms in that they protect union and associational rights; rights of free speech; equal pay for equal work; workers’ health, social security and retirements benefits. Global capitalism which creates special free-trade zones is often directly in violation of these human rights covenants.^²⁸

The charge that the defense of these cosmopolitan rights has unwittingly given rise to a “responsibility to protect” and hence to an international emergency regime is more complicated: A very good example of this slippery slope from the responsibility to protect to the duty to intervene, by military force if necessary, occurred during the great typhoon that hit Myanmar- Burma in Spring 2008. Bernard Kouchner, the former President of Medecins Sans Frontiers, foreign minister of France, argued that the nations of the world had a duty to intervene even against the will of the secretive Myanmar military junta. Robert Kaplan, the conservative thinker, concurred and suggested that the US Navy could move up the river delta to Myanmar and that once it did so, the mission of humanitarian aid to the victims of the cyclone, could easily morph into one of “nation-building.” Only this time, one would be self-conscious about this task and apply the Crate and Barrel principle outright: “if you break it, you own it”!^²⁹

I do not wish to deny, therefore, the many ambivalencies, contradictions and treacherous double meanings of the current world situation, which often transforms cosmopolitan intents into hegemonic nightmares. However, I do wish to claim that some of these general assertions and criticisms derive from a faulty understanding of multilateral convenantalism, in that they view the new international legal order as if it were a smooth “command structure” emanating from a hegemonic source – whether this be global capitalism, the modern nation-state as complicit in the spread of global capitalism or the Security Council itself. In all these diagnoses little attention is paid to the social dissemination of human rights norms throughout member states and to the legal, social, cultural and political institutions through which this takes place. But I want to argue the distinguishing feature of the period we are in cannot be captured through the bon mots of ‘globalization’ and ‘empire’; rather, we are facing the rise of an international human rights regime and the spread of cosmopolitan norms, while the relationship between state sovereignty and such norms is becoming more contentious and conflictual. I will argue that these human rights instruments can empower democracies by creating new vocabularies for claim-making for citizens in signatory states as well as opening new channels of mobilization for civil society actors who then become part of transnational networks of rights activism and hegemonic resistance.

The public law documents of our world -- the UDHR, the various international human rights covenants, and the Geneva Conventions of 1951 Relating to the Status of Refugees and their Protocol of 1967 -- are distillations of collective struggles as well as of collective learning. It may be too utopian to name them steps toward a “world constitution,” but they are more than mere treaties among states. They are global public law documents which are altering the terrain of the international domain. They are constituent elements of a global and not merely international civil society. In this global civil society, individuals are rights-bearing not only in virtue of their citizenship within states but in virtue of their humanity. Although states remain the most powerful actors, the range of their legitimate and lawful activity is increasingly limited. We need to rethink the law of peoples against the background of this newly emergent and fragile global civil society, which is always being threatened by war, violence, and military intervention.

In recent works such as The Rights of Others. Aliens, Citizens and Residents (2004) and Another Cosmopolitanism (2006),^³⁰ I have argued that understanding cosmopolitanism in terms of the legal and moral status of the individual in the world civil society goes back to Kant’s concept of “Weltbuergerrecht,” as expounded in “Perpetual Peace.” (1797) I will not be concerned with this genealogy in this essay nor with the philosophical problems of the justification of human rights except very briefly to set out the terms of my argument. I have done so elsewhere.^³¹ Rather, I want to suggest a model of ‘democratic iterations’ for analyzing the relationship between cosmopolitan norms and the will of democratic majorities.

Human Rights and the Generalized and Concrete Other

I need to offer some brief philosophical clarifications. I want to argue that rights claims are in general of the following sort: “ I can justify to you with good reasons that you and I should respect each others’ reciprocal claim to act in certain ways and not to act in others, and to enjoy certain resources and services.” Some rights claims are about liberties, that is, to do or to abstain from doing certain things without anybody else having a moral claim to oblige me to act or not to act in certain ways. Liberty rights generate duties of forbearance. Other rights claims are about entitlement to resources. Such rights, as the right to an elementary school education or to secure neighborhoods, for example, entail obligations on the part of others, be they individuals or institutions, to act in certain ways and to provide certain material goods. As Jeremy Waldron observes, such rights issue in “cascading obligations.”^³²

For me human rights or basic rights are moral principles that need to be embedded in a system of legal norms such as to protect the exercise of communicative freedom.^³³

First and foremost, as a moral being capable of communicative freedom you have a fundamental right to have rights. The right to have rights involves the acknowledgment of your identity as a generalized as well as a concrete other.^³⁴ If I recognize you as a being entitled to rights only because you are like me, then I deny your fundamental individuality which entails your being different. If I refuse to recognize you as a being entitled to rights because you are so other to me, then I deny our common humanity.^³⁵

The standpoint of the ‘generalized other’ requires us to view each and every individual as a being entitled to the same rights and duties we would want to ascribe to ourselves. In assuming this standpoint, we abstract from the individuality and the concrete identity of the other. We assume that the other, like ourselves, is a being who has concrete needs, desires and affects, but what constitutes his or her moral dignity is not what differentiates us from each other, but rather what we, as speaking and acting and embodied beings, have in common. Our relation to one another is governed by the norms of formal equality and reciprocity: each is entitled to expect from us what we can expect from him or from her. In treating you in accordance with these norms, I confirm in your person the rights of humanity and I have a legitimate claim that you will do the same in relation to me.

The standpoint of the ‘concrete other,’ by contrast, requires us to view each and every being as an individual with an affective-emotional constitution, concrete history and individual as well as collective identity, and in many cases as having more than one such collective identity. In assuming this standpoint, we bracket what constitutes our commonality and focus on individuality. Our relation to the other is governed by the norms of equity and complementary reciprocity. Our differences in this case complement rather than exclude one another. In treating you in accordance with these norms, I confirm not only your humanity but your human individuality. If the standpoint of the generalized other expresses the norm of respect, that of the concrete other anticipates experiences of altruism and solidarity.

Such reciprocal recognition of each other as beings who have the right to have rights involves political struggles, social movements and learning processes within and across classes, genders, nations, ethnic group and religious faiths. This is the true meaning of universalism: Universalism does not consist in a human essence or nature which we are all said to have or to possess, but rather in experiences of establishing commonality across diversity, conflict, divide and struggle. Universalism is an aspiration, a moral goal to strive for; it is not a fact, a description of the way the world is.

Variations in Rights and Legal Systems

Human rights, on this account, then embody principles which need contextualization and specification in the form of legal norms. How is this legal content to be shaped? Basic human rights, although they are based on the moral principle of the communicative freedom of the person, are also legal rights, i.e. rights that require embodiment and instantiation in a specific legal framework. As Ronald Dworkin has observed, human rights straddle that line between morality and justice; they enable us to judge the legitimacy of law.^³⁶ The core content of human rights would form part of any conception of the right to have rights as well: these would include minimally the rights to life, liberty (including to freedom from slavery, serfdom, forced occupation, as well as protecting against sexual violence and sexual slavery);^³⁷ the right to some form of personal property; and equal freedom of thought (including religion), expression, association and representation. Furthermore, liberty requires provisions for the “equal value of liberty” (Rawls) through the guarantee not only of socio-economic goods, including adequate provisions of basic nourishment, shelter and education, but also through the right to self-government.

Let us raise at this point a question concerning the legitimate range of rights : if we agree on the centrality of a principle such as “freedom of religious expression,” must we also accept that minority religions are entitled to rights to public expression equally with the majority, as I would argue, or can we maintain that freedom of religious expression is compatible with some reasonable restrictions upon its exercise, as Rawls has claimed? Certainly, the juridical, constitutional, as well as common law traditions of each human society, the history of their sedimented interpretations, their internal debates and disagreements will shape the legal articulation of human rights. For example, while equality before the law is a fundamental principle for 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 which accrue to individuals in virtue of their belonging to different cultural, linguistic and religious groups.^³⁸ There is, in other words, a legitimate range of variation even in the interpretation and implementation of such a basic right as that of “equality before the law.” 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 legitimate.

Herein lies the distinctiveness of an approach based on communicative freedom. Freedom of expression and association are not merely citizens’ political rights the content of which can vary from polity to polity; they are crucial conditions for the recognition of individuals as beings who live in a political order of whose legitimacy they have been convinced with good reasons. They undergird the communicative exercise of freedom, and therefore, they are basic human rights as well. Only if the people are viewed not merely as subject to the law but also as authors of the law can the contextualization and interpretation of human rights be said to result from public and free processes of democratic opinion and will-formation. Such contextualization, in addition to being subject to various legal traditions in different countries, attains democratic legitimacy insofar as it is carried out through the interaction of legal and political institutions with free public spaces in civil society. When such rights principles are appropriated by people as their own, they lose their parochialism as well as the suspicion of western paternalism often associated with them. I will call such processes of appropriation “democratic iterations.”

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.^³⁹ 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. The iteration and interpretation of norms and of every aspect of the universe of value, however, is never merely an act of repetition. Every act of iteration involves making sense of an authoritative original in a new and different context. The antecedent thereby is 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 upon us as well.^⁴⁰

If democratic iterations are necessary in order for us to judge the legitimacy of a range of variation in the interpretation of a right 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? I accept here Juergen Habrmas’s insight that “the democratic principle states that only those statutes may claim legitimacy that can meet with the assent (Zustimmung) of all citizens in a discursive process of legislation which has been legally constituted.”^⁴¹ The “legal constitution of a discursive procedure of legislation” is possible only in a society that institutionalizes a communicative framework through which individuals as citizens or residents can participate in opinion- and will-formation regarding the laws which are to regulate their lives in common.

Democratic legitimacy reaches back to principles of normative justification, though the two are not identical. Democratic iterations do not alter conditions of the normative validity of practical discourses that are established independently of them; rather, democratic iterations enable us to judge as legitimate or illegitimate processes of opinion and will-formation through which rights claims are contextualized and contested, expanded and revised through actual institutional practices in the light of such criteria. Such criteria of judgment enable us to distinguish a de facto consensus from a rationally motivated one.^⁴²

Cosmopolitan Norms and Democratic Iterations

What is the interaction between cosmopolitan norms and actual legislative processes, and how can democratic iterations help us understand such processes better ? Because the UDHR is “only” a declaration of principles and does not detail mechanisms for enforcement, some argue it does not function sufficiently as law,^⁴³ while others see it as a different kind of law. In several articles Judith Resnik has argued that by ratifying treaties, domestic obligations are altered, and that particularly in a federal system, judges duly regard valid treaties as binding law. Resnik calls such processes “law’s migration” and cites numerous examples: “…federalism is also a path for the movement of international rights across borders, as it can be seen from the adoption by mayors, local city councils, state legislatures, and state judges of transnational rights including the United Nations Charter and the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) and the Kyoto Protocol on global warming. Such actions are often trans-local – with municipalities and states joining together to shape rules that cross borders.” ^⁴⁴ Another common method of implementation for UN provisions are the establishment of “expert bodies” chartered to elaborate the meaning of conventions by promulgating “general comments” and by receiving reports from member-states, which in turn are obliged to detail how they are compliant with or failing to live up to their commitments as parties to conventions. Further, in some jurisdictions (but not generally in the United States), international obligations can be a direct source of legally enforceable rights through litigation in national courts.^⁴⁵ In addition to processes of law’s migration and the establishment of ‘expert bodies,’ cosmopolitan norms enshrined in multilateral covenants can enter the process of democratic iterations in specific polities via the action of social movements and civil society actors.

In a forthcoming article entitled “Global Feminism, Citizenship and the State,” the Iranian sociologist, Valentine Moghadam analyzes the effects of an international human rights regime, of transnational civil society, and of a global public sphere on women’s rights in Muslim countries.^⁴⁶ Moghadam, who considers case studies from the Republic of Iran and the Kingdom of Morocco in addition to Egypt, Algeria and Turkey, explores how “local communities or national borders” are affected by globalized norms. She asks: “What of the migration and mobility of feminist ideas and their practitioners? How do local struggles intersect with global discourses on women’s rights? What role is played by feminists in the diaspora, and what is the impact of the state?” By analyzing the formation of women’s rights and feminist organizations both within specific countries and through transnational feminist networks, she argues that international conferences and treaties such as CEDAW have created tools that women tailor to their own contexts.

Moghadam maps the “significant variations in women's legal status and social positions across the Muslim world.”^⁴⁷ Yet in general, “similar patterns of women's second-class citizenship”^⁴⁸ can be identified in terms of family life and economic opportunity. Citizenship is transmitted through fathers, and marriage laws give men rights that women do not have. In both Iran and Morocco, for example, the state, the family and economic forms of dependency create what Moghadam calls the “patriarchal gender contract.”^⁴⁹

Responding in the 1980s to efforts to strengthen application of gendered Muslim family law, various women's networks came into being. Nine women from Algeria, Sudan, Morocco, Pakistan, Bangladesh, Iran, Mauritius and Tanzania, formed an action committee that resulted in Women Living Under Muslim Laws (WLUML), which serves as a clearinghouse for information about struggles and strategies. WLUML includes women with differing approaches to religion; some are anti-religious while others, such as Malaysia’s ‘Sisters in Islam,’ are observant Muslims. Some women work to abandon religious strictures while others challenge interpretations of religious laws and make arguments from within texts and traditions.

Moghadam identifies features of these efforts that distinguish their work from counterparts in North America and Europe. Many Middle Eastern women's groups display “a tendency to work with men and to engage state agencies”^⁵⁰ rather than adopt more radical feminist postures characteristic of some groups in other parts of the world. Furthermore, these groups are relatively isolated “from the transnational feminist networks”^⁵¹ perhaps in part because of language barriers. Yet, by reviewing recent conflicts in Iran and in Morrocco on family rights, Moghadam argues that WLUML, along with the Women Learning Project, had an impact through interactions between state-centered and transnational action. Thus she concludes that “The integration of North and South in the global circuits of capital and the construction of a transnational public sphere in opposition to the dark side of globalization has meant that feminism is not ‘western’ but global.”^⁵² Raised by her examples are ironies in global struggles: the struggle for women’s equality requires revisiting the discourse of universalistic human rights just as the conditions of global migrations raise questions about whether to aspire to global citizenship, to particularized affiliations, or combinations thereof. Further, in an important confirmation of democratic iterations Moghadam suggests that the more culturally embedded a group is within a nation-state, the more effective could be their efforts to incorporate universalist norms.

An extraordinarily interesting case of democratic iterations occurred when, in the course of a debate in Canada concerning whether or not religious arbitration courts ought to be legalized, Canadian Muslim women turn to WLUML to help them overturn Muslim arbitration courts. This case is worth considering in some detail:

Many countries now promote “alternative dispute resolution” to create state-enforced private settlements of conflicts in lieu of adjudication of rights.^⁵³ As Audrey Macklin explains, under the law of the Canadian Province of Ontario, women are rights holders when families dissolve and they can seek compensation for household labors that enabled their husbands to develop careers. Ontario also permits resolutions through negotiations that result in “domestic contracts.” In addition, when disputants use arbitration, those outcomes are enforceable in court. (In contrast, in Quebec, family law arbitrations are advisory rather than binding.)

In 2003, a then-new “Islamic Institute for Civil Justice” offered to arbitrate family and inheritance conflicts under Muslim law, prompting an inquiry about whether faith based arbitration ought to be given legal force. Opposition came from the Canadian Council of Muslim Women, who worked with the transnational group, Women Living Under Muslim Laws (WLUML), discussed by Moghadam. Reliant on networks “as Canadians, as women, as immigrants, and as Muslims,” the opponents built constituencies both locally and globally, just as they argued from national and transnational principles including the UDHR’s commitments to dignity and equality. Proponents of faith-based resolutions were similarly domestic and international — including “the Christian Legal Fellowship, the Salvation Army, B’nai Brith, the Sunni Masjid El Noor, and the Ismaili Muslims.” The denouement was Canadian legislation that does not prohibit parties from turning to faith-based tribunals but gives such judgments no legally enforceable effect.

As Macklin details, women played central roles in this case, expressing “political citizenship in the public sphere of law reform,” and doing so through transnational and transcultural claims of equality.^⁵⁴ “Claiming their entitlement as legal citizens of Canada to participate in governance… [they] demanded equal citizenship as Canadian women. At the same time, they pointedly refused to renounce their cultural citizenship or to confine their gender critique to the specific cultural context.”^⁵⁵

Such practices not only render the meaning of citizenship more complex by revealing the interaction of the language of universal rights and culturally embedded identities; they also expand the vocabulary of public claim-making in democracies and aid them in evolving into “strong democracies.” They are reconstituting the meaning of local, national and global citizenship through processes of democratic iterations in which cosmopolitan norms enable new vocabularies of claim-making, assume a concrete local and contextual coloration, and often migrate across borders and jurisdictions in increasingly complex and interconnected dialogues, confrontations and iterations.

Returning now to a question I posed earlier concerning the relevance of my account to contemporary debates around global justice, this would be twofold: first, the degree of development of multilateral covenantalism suggests that international public law exceeds the articles of the Rawlsian “law of peoples:” transnational law creates wider and deeper interdependencies among nations, pushing them farther and farther towards structures of global governance. While the world system of states is not one of perfect cooperation with defined rules of justice, neither are relations among states “mere contractual obligations,” as Thomas Nagel has argued. The current global system of interdependence is, as Cohen and Sable argue, sufficiently thick as to trigger significant relations of justice, which are weaker than those within nation states but certainly stronger than those envisaged by the world picture of sovereigntistes. The demands for global coordination in response to the recent economic world-wide meltdown is but one indication, among many others, of this new phase of global interdependence.

Second, the law’s migrations and processes of democratic iterations both reveal that global human rights discourse moves across increasingly porous borders to weaken, and render irrelevant, the distinction between ‘liberal’ and ‘decent-hierarchical’ societies. Particularly those societies where the human rights of women, of ethnic, religious, linguistic and other minorities were curtailed on grounds of faith and religion, must now contend with increasingly transnational movements and actors who network across borders in developing new strategies of claim-making expanding the human rights’ agenda. These developments are all the more significant since they undermine the divide between ‘liberal tolerance’ on the one hand and ‘liberal interventionism’ on the other, by inducting citizens, social movements, churches, synagogues, mosques, cultural institutions, the global media etc., into a contentious dialogue about ‘justice across borders.’ Recent movements mobilizing to end genocide in Darfur; to help AIDS victims in Africa; against the practice of female genital mutilation; for protecting the rights of undocumented migrants – les sans papiers and many others are illustrative of this new global activism enabled, in part, by the spread of cosmopolitan norms.

A Disquieting Conclusion

What I have called “multilateral convenantalism” is a new stage in the development of global civil society, in which the relationship between state sovereignty and the spreading human rights regime may generate increasing interventionism on the one hand as well as open up spaces for democratic iterations on the other. I see no reason not to acknowledge the ambiguities of this moment. But as a critical social theorist, I look for those moments of rupture and possible transformation when social actors reappropriate new norms both to enable new subjectivities to enter the public sphere and to alter the meaning of claims-making in the public sphere itself. This is the promise of democratic iterations and cosmopolitan norms in the present.

However, despite these developments I also have a disquieting thought: increasingly I am convinced that we need to understand the creation of “zones outside the law” alongside this process. From renditions of enemy combatants to unknown locations with the cooperation of US and European governments to the emergence of maquilladoras in Central and South America and free-growth zones in China, Southeast Asia, and not to mention the decline of the state everywhere in Africa, there is also a process of “dejuridification” afoot. The attempt is to resist the spread of global law and to create enclaves of lawlessness and of the denial of the right to have rights altogether. In many free-trade and growth zones, the rights of workers to fair pay, to assemble, unionize and organize are suspended and violently controlled. In the desperate straits that the current world economic crises will generate in many developing countries, it is likely that these norms will be further suspended in a Faustian bargain to keep foreign direct investment coming and the economies growing.

I don’t have a good explanation for how or why these processes continue to coexist in the world society at the present; but I want to insist on the significance of existing instruments of cosmopolitan norms to help combat them. These are not complicit in the legitimation of but rather they are enabling conditions of resistance to the forces of a global capitalism run amok. Any defensible vision of global justice in the current world-order will have to take these legal instruments and documents seriously and work with them rather than against them. For this project, we not only need to overcome the reductionist resistance of many on the Left to the force of transnational law but also the defensiveness of many on the Right who see transnational law as undermining democratic sovereignty, when in fact, it can enhance it.

References

1 See Adam Liptak, “U.S. Court, a Longtime Beacon, is Now Guiding Fewer Nations,” NY Times, September 18, 2008, p. A1, continued on A 30.

2 See Roper v. Simmons (2005); and Liptak, p. A 30.

3 Roper v. Simmons, Justice Scalia dissenting, joined by The Chief Justice and Justice Thomas.

4 Liptak, “U.S. Court, a Longtime Beacon, is Now Guiding Fewer Nations,” p. A30.

5 The letters to the editor on this issue on the whole favored the more inclusive approaches to foreign law taken by Justices Kennedy, Ginsburg, and former Justice Sandy Day O’Connor ( out of the 6 letters printed 4 were favorable; 2 were not). However, one reader returned to the question of sovereignty. “Our Supreme Court cannot legitimately adjudicate based upon “inspiration” from other countries, or borrow from them to create a “good impression”… In America, laws must derive from the consent of the governed through the representative branches. To do otherwise destroys self-government, which is what our country is all about in the first place.” “U.S. and Foreign Law: Oceans Apart,” The New York Times, September 20, 2008, A18. Letter by Wendy Long, a counsel to the judicial confirmation network. Ms. Long is referring to a statement of Justice O’Connor’s quoted by Adam Liptak to the effect that relying on foreign and international law “may not only enrich our own country’s decisions: it will create that all-important good impression.” Cited by Liptak, Ibid, p. A30. Providing a detailed account of the splits within the U.S. Supreme Court on these matters and its historical precedent, Harold Koh introduces the terms ‘transnationalist’ vs. ‘nationalist’ jurisprudence. He writes: “The national approach is characterized by commitments to territoriality, national politics, deference to executive power, and resistance to comity or international law as meaningful constraints on national prerogative.” Harold Koh, The Future of Transnational Litigation, Part Four, ch. xiii, “The Supreme Court’s Emerging Jurisprudence of Transnational Litigation,” pp. 247-260, here p. 248 (Forthcoming; on file with the author)

6 This is not the same as the well-known question since Thomas Hobbes, Jeremy Bentham and J. L. Austin about whether international law is law because it is incapable of enforcement by a sovereign with the capacity to constrain and oblige. I am concerned here with international obligations which states themselves voluntarily undertake, without being forced or constrained to do so, by a more overpowering sovereign. Multilateral covenantalism is voluntary, not imposed. See the essay by Koh in the following footnote about why nations obey international law.

7 Harold Koh, “Why Do Nations Obey International Law?”, Review Essay, The Yale Law Journal, vol. 106, No. 8 (June 1997), pp. 2599-2659; here p. 2626-2627.

8 “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Article VI, United States Constitution on “Debts, Supremacy, Oaths.”

9 On the relationship between treaties, the Constitution and Congress, and how compliance with many treaties may encroach upon the constitutionally guaranteed authority of Congress and Article III courts, see Curtis A. Bradley and Jack L. Goldsmith, Foreign Relations Law (2^nd edition, 2006). In a recent article entitled, “When Judges Make Foreign Policy,” Noah Feldman discusses the case of Medellin v. Texas to illustrate the complexities of the status of international law in the U.S. courts. “The case, Medellin v. Texas, grew from a conflict between the Supreme court and the International Court of Justice over death-row inmates in the United States who were apparently never told that they had the right to speak to the embassies of their home countries, a rights guaranteed by a treaty called the Vienna Convention on Consular Relations. The international court declared that the violation tainted the inmates’ convictions and insisted that they have their day in court to try to get them overturned…. The Supreme Court disagreed….What made this conflict between the Supreme Court and the International Court of Justice particularly stark was that the Bush administration had for once taken the side of international law.” Noah Feldman, “When Judges Make Foreign Policy,” The New York Times Magazine (September 28, 2008), p. 56. I do not agree with the kind of political pragmatism that Feldman recommends to the Court in attempting to resolve these issues in the future. We need a more principled normative account of the ways in which international and transnational norms do or do not enhance democratic popular sovereignty. In the Medellin v Texas case they would have obviously done so by enhancing the rights of all, particularly inmates, to due process. What can be more democratic than protecting due process rights? The Court upheld an undemocratic sovereigntisme in this case.

10 Etienne Balibar, “Prolegomena to Sovereignty,” in: Balibar, We, The People of Europe? Reflections on Transnational Citizenship. (Princeton, NJ: Princeton University Press, 2004), p. 152.

11 Cf. Thomas Nagel, “The Problem of Global Justice,” Philosophy and Public Affairs, 33, No. 2 (2005), pp. 113-147; Joshua Cohen and Chuck Sabel, “Exta Rempublicam Nulla Justitia,” Philosophy and Public Affairs, 33, No. 2 (2005), pp. 147-175; Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Oxford: Basil Blackwell, 2002).

12 Universal Declaration on Human Rights, G.A. res. 217A (III) (Dec. 10, 1948) [ hereinafter, “UDHR”].

13 Convention relating to the Status of Refugees, G.A. res. 429 (V) (entered into force April 22, 1954). [hereinafter, “1951 Convention.”]

14 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.) As of 2007, 152 countries were state parties [ hereinafter, “ICCPR”]

15 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) [hereinafter, “ICESCR”].

16 The Convention to Eliminate All Forms of Discrimination Against Women, United Nations, General Assembly Resolution 34/180, Dec. 18, 1979 (entered into force, Sept. 3, 1981) available at http://www.un.org/womenwatch/ daw/cedaw/econvention.htm [hereinafter, “CEDAW”.] These provisions are, of course, augmented by many others. See, e.g., 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, as well as to have their spouses and minor children of legal aliens be admitted to join and stay with them, and to protect them 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 ILO make work policy and migration policies known and treat fairly "migrants for employment"); Declaration on Territorial Asylum, G.A. res. 2312 (XXII), 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967).

17 Although first translated into English in 2001, the Italian version of Empire (Cambridge: Harvard University Press, 2001) was written in the period between the Persian Gulf War of 1991 and the Yugoslav Civil War of 1994. Its view of USA power is more benevolent than the subsequent work by Michael Hardt and Antonio Negri, Multitude. War and Democracy in the Age of Empire (The Penguin Press: New York, 2004) Since the webs of empire are so ubiquitous, sites of resistance to it are diffuse, decentered and multiple. The ‘multitude’ resists the total penetration of life structures by the empire in organizing demonstrations against the G-7; the World Bank; the Gulf War, the Iraq War and the violation of international law. The multitude focuses on power as a global phenomenon and attempts to generate a counter-force to empire. The metaphors of networking, entanglement, binding, spread of communicative forms and the like which underlie this social-theoretical analysis are one-sided precisely because they present a world without institutional actors and without structured centers of resistance. Relatedly, the multitude, Hardt’s and Negri’s revolutionary subject, is not the citizen. The multitude is not even the carrier of popular sovereignty since it lacks the drive toward the constitutionalization of power, which has been the desiderata of all popular movements since the American and French revolutions. The multitude gives expression to the rage of those who have lost their republics: the multitude smashes institutions and resists power. It does not engage in what Hannah Arendt has called the “constitutio libertatis.” (Cf. Hannah Arendt, On Revolution (Viking Press: New York, 1963). See also Seyla Benhabib, The Reluctant Modernism of Hannah Arendt, 2^nd edition (Rowman and Littlefield: New Jersey, 2003), pp. 130-172. Hardt and Negri’s residual skepticism towards human rights and the rule of law is so intense, that, in the final analysis, they hollow out the real challenge of cosmopolitanism, which is the reconciliation of universalistic norms with democratic politics, in favor of an undifferentiated concept of the masses or of the multitude who are said to be the only counter-hegemonic force capable of resisting global capitalism.

18 James Tully, “On Global Citizenship and Imperialism Today: Two Ways of Thinking about Global Citizenship,” Lecture presented at the Political Theory Workshop, Yale University, ISPS on May 1^st 2008. Tully develops a concept of ‘diverse citizenship’ in this essay, which he believes can serve as a counter-hegemonic challenge to the modern-statist conception of citizenship. I would argue that cosmopolitan norms, in the sense in which I develop in this paper, are enabling conditions of such diverse citizenship.

19 Alec Stone Sweet, “ The new Lex Mercatoria and transnational Governance,” in: Journal of European Public Policy, 13:5, 627-646; here p. 629.

20 Ibid., p. 630.

21 Ibid., p. 627.

22 Stone Sweet, “The new Lex Mercatoria and transnational Governance,” pp. 633-635.

23 Stone Sweet, Ibid., p. 643.

24 Jean L. Cohen, “A Global State of Emergency or the Further Constitutionalisation of International Law: A Pluralist Approach,” forthcoming, Constellations: An International Journal of Critical and Democratic Theory (Fall 2008) and Kim Lane Scheppele, “International State of Emergency: Challenges to Constitutionalism After September 11”, Yale Legal Theory Workshop, September 21, 2006.

25 Ibid., p. 2. It would be important to know which of the SC-sanctioned interventions and non-interventions are being referred to here and whether there are significant differences that must be heeded: intervention in Bosnia vs. non-intervention in Rwanda and Darfur; intervention in Iraq after 9/11 vs. non-intervention in Iraq after the Gulf War, when twenty thousand Shi’ites and many more Marsh Arabs were decimated by Saddam Hussein’s regime.

26 Mahmood Mamdani, “The New Humanitarian Order,” The Nation (September 29, 2008), p. 18.

27 Karl Marx, “The Grundrisse “ in The Marx-Engels Reader, edited by Robert C. Tucker, second edition (New York: W.W. Norton , 1978 ), pp. 238-244.

28 See my essay, “Twilight of Sovereignty or The Emergence of Cosmopolitan Norms. Rethinking Citizenship in Volatile Times,” in: Citizenship Studies, 11/1 (February 2007), pp. 19-36.

29 Seth Mydans, “Myanmar Faces Pressure to Allow Major Aid Effort,” NY Times, May 8, 2008 and Robert Kaplan, “Aid at the Point of a Gun,” NY Times, Op-Ed, May 14, 2008.

30 Seyla Benhabib, The Rights of Others. Aliens, Citizens and Residents (Cambridge: Cambridge University Press, 2004); Another Cosmopolitanism. The Berkeley Tanner Lectures, edited and introduced by Robert Post and with commentaries by Jeremy Waldron, Bonnie Honig and William Kymlicka (Oxford: Oxford University Press, 2006).

31 See Seyla Benhabib, “Another Universalism: On the Unity and Diversity of Human Rights,” Presidential Address. Proceedings and Addresses of the American Philosophical Association, vol. 81, No. 2 (November 2007), pp. 7-32.

32 Jeremy Waldron, “Introduction,” Theories of Rights (Oxford: Oxford University Press, 1984), p. xxx . I have also found very helpful, Matthew Noah Smith, “The Normativity of Human Rights,” (manuscript on file with the author.)

33 My position here is distinct from that of Martha Nussbaum’s as well as Amartya Sen’s. Martha Nussbaum suggests that a nonparochial view of human rights, while it may not be endorsed by all conventional moralities, may find favor in the eyes of main conceptions of political and economic justice in the world: understood thusly, human rights would constitute the core of a political rather than moral overlapping consensus. See Martha C. Nussbaum, “Capabilities and Human Rights,” in: Fordham Law Review (1997-98), vol. 66, No. 273, pp. 273-300. Nevertheless, Nussbaum’s method of philosophical deduction, which ties in rights concepts all too narrowly to a philosophical anthropology of human capabilities, is problematic. No distinction is made in her account between rights as “moral principles” and rights as “legal entitlements,” on the one hand, and “the principle of rights” and “the schedule of rights,” on the other.

In “Elements of a Theory of Human Rights,” Amartya Sen criticizes Nussbaum’s attempt to identify an “overarching ‘list of capabilities’,” on the grounds that such a “canonical list,” as well as the weight to be attributed to the various items on this list, cannot be chosen without a further specification of context. More importantly, Sen sees in such a procedure “a substantive diminution of the domain of public reasoning.” See Amartya Sen, “Elements of a Theory of Human Rights,” in: Philosophy and Public Affairs 32, no. 4 (2004), pp. 315-356, here p. 333. fn.31. Sen wishes to consider human rights as “primarily ethical demands,” which relate to the “significance of the freedoms that form the subject matter of these rights.” (Ibid) Although he refrains from an exhaustive listing of these freedoms himself, for Sen freedoms are actualizations of capabilities, both in the sense of opportunities and also of processes requisite for capabilities to be unfolded. “Rather, freedom, in the form of capability, concentrates on the opportunity to achieve combinations of functionings…” he writes. (Ibid., p. 334).

By situating human rights so centrally within an ethical theory of freedom and capabilities, Sen disregards the political history of rights which were always closely tied to claims to legitimacy and just rule. Rights are not simply about strong moral entitlements which accrue to individuals; they are about claims to justice and legitimacy enframing our collective existence as well. We cannot simply reduce rights to the language of moral correctness. Violating a right is different than inflicting a moral harm on a person.

I have dealt with these issues extensively in: “Is There a Human Right to Democracy? Beyond Interventionism and Indifference,” University of Kansas at Lawrence, Lindley Lecture. Forthcoming (2008); cf. also, Seyla Benhabib, “The Legitimacy of Human Rights,” Daedalus (Summer 2008), pp. 94-104.

See Seyla Benhabib, Situating the Self. Gender, Community and Postmodernism in Contemporary Ethics (London and New York: Routledge, 1992), pp. 35-37.

35 See the innovative interpretation of Arendt’s “the right to have rights” by Peg Birmingham, Hannah Arendt and Human Rights. The Predicament of Common Responsibility (Bloomington: Indiana University Press, 2006). Birmingham writes: “The right to have rights is inspired by a new principle of humanity; the principle of publicness that demands that each actor by virtue of the event of natality itself has the right to temporary sojourn on the face of the earth.” Here, p. 58. Underlining mine. Although I cannot go into greater detail within the compass of this essay, let me simply mention that Birmingham addresses but, in my view, does not resolve, the problem of “the lack of normative foundations” in Hannah Arendt’s thought.

36 See the classical essay by Ronald Dworkin, “Taking Rights Seriously,” (1970), in: Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), pp. 184ff.

37 Since I consider individuals as “generalized” and as “concrete” others, taking into account their embodiment, the protection of the bodily integrity of persons, who are sexed differently, is an important human right. It is not only women who are subject to sexual violence, many gay and lesbians are as well; however because of their capacity to become pregnant, forced and arbitrary violence against women affects their personhood and capacities for communicative freedom differently than gay men. The important point is to keep in view the different kinds of violence that one can be subject to as a result of sexual difference and to incorporate this into our understanding of human rights. For example, many governments, including the USA and Canada, now recognize and grant as legitimate, requests for asylum for women escaping Female Genital Mutilation.

38 For further elucidation, see Benhabib, The Claims of Culture, ch. 5 in particular.

39 See Seyla Benhabib, Another Cosmopolitanism, pp. 45 ff. See also Frank Michelman, “Morality, Identity and ‘Constitutional Patriotism’,” Denver University Law Review, vol. 76, No. 4 ( ), pp. 1009-1028.

40 I offer democratic iterations as a model to think of the interaction between constitutional provisions and democratic politics. It may be possible to extend democratic iterations as a model for the “pouvoir constituant,” the founding act as well. In this essay, I am assuming that democratic iterations are about ordinary as opposed to constitutional politics; though I am claiming that ordinary politics can embody forms of popular constitutionalism and can lead to constitutional transformation through accretion. There is a lot more that needs to be said about the relationship of a discourse-theoretic analysis of democratic iterations and political liberalism than I can within the scope of this paper. See Rawls’s final reflections in his “Political Liberalism: Reply to Habermas,” The Journal of Philosophy, vol. 92, No. 3 (March 1995), here pp. 172 ff. Thanks to my student Angelica Bernal for her observations on this problem.

41 Juergen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. By William Regh (Cambridge, MA: the MIT Press, 1996), p. 110.

42 For a clarification of the distinctions between normative justification and democratic legitimation, see “Symposium on The Rights of Others,” in European Journal of Political Theory, vol. 6. no. 4 (October 2007), pp. 395-463 in general and specifically, Seyla Benhabib, “Democratic Exclusions and Democratic Iterations: Dilemmas of ‘Just Membership’ and Prospects of Cosmopolitan Federalism: Reply to my Critics,” in: European Journal of Political Theory, pp. 445-463.

43 That critique has been made more generally about many forms of international law. See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001). Yet, national jurists can conclude that, by ratifying treaties, domestic obligations change.

44 See Judith Resnik, “Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry,” in :The Yale Law Journal 115 (2006); Judith Resnik, “Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State” International Journal of Constitutional Law 6, no. 1 (2008). Also, cf. Judith Resnik, “Categorical Federalism: Jurisdiction, Gender, and the Globe,” Yale Law Journal 111 (2001).

Medellín v. Texas, 552 U.S. (2008)

46 Valentine Moghadam, “Global Feminism, Citizenship, and the State” in: Gender, Borders and Citizenship. Mobility and Immobility, ed. by Seyla Benhabib and Judith Resnik (Forthcoming: NYU Press, 2009)

47 Moghadam, “Global Feminism, Citizenship, and the State,” 2 .

48 Ibid., 10.

49 Ibid., 8.

50 Moghadam, “Global Feminism, Citizenship, and the State,” 17.

51 Ibid.

52 Ibid., 28.

53 See Judith Resnik “Procedure as Contract” Notre Dame Law Review 80: 593 (2005).

54 Macklin, “Particularized Citizenship,”in: Gender, Borders and Citizenship. Mobility and Immobility, Benhabib and Resnik eds. (Forthcoming) See also Bruker v. Marcovitz, [2007] S.C.J. No. 54 (Can).

55 Macklin, “Particularized Citizenship,”in: Ibid.

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