The Divided West

Jürgen Habermas

• Publisher: Polity
• Year: 2014
• Print ISBN: 9780745635194, 9780745635187
• eBook ISBN: 9780745694580
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

Make no mistake, the normative authority of the United States of America lies in ruins. Such is the judgment of the most influential thinker in Europe today reflecting on the political repercussions of the war in Iraq. The decision to go to war in Iraq, without the explicit backing of a Security Council Resolution, opened up a deep fissure in the West which continues to divide erstwhile allies and to hinder the attempt to develop a coordinated response to the new threats posed by international terrorism.

In this timely and important volume, Jürgen Habermas responds to the dramatic political events of the period since September 11, 2001, and maps out a way to move the political agenda forward, beyond the acrimonious debates that have pitched opponents of the war against the Bush Administration and its coalition of the willing. What is fundamentally at stake, argues Habermas, is the Kantian project of overcoming the state of nature between states through the constitutionalization of international law.

Habermas develops a detailed multidimensional model of transnational and supranational governance inspired by Kantian cosmopolitanism, situates it in the context of the evolution of international law toward a cosmopolitan constitutional order during the nineteenth and twentieth centuries, and defends it against the new challenge posed by the hegemonic liberal vision underlying the aggressive unilateralism of the current US administration.

The Divided West is a major intervention by one of the most highly regarded political thinkers of our time. It will be essential reading for students of sociology, politics, international relations, and international law, and it will be of great interest to anyone concerned with the current and future course of European and international politics.

IV
The Kantian Project and the Divided West

8
Does the Constitutionalization of International Law Still Have a Chance?¹

Introduction

As the European system of states was taking shape, philosophy, in the persons of Francisco Suarez, Hugo Grotius, and Samuel Pufendorf, still played the role of pacemaker in the creation of modern international law. Moreover, when legally constrained international relations later stabilized at the level of violence of so-called cabinet wars [Kabinettskriege], philosophy assumed this role a second time. With his conception of a “cosmopolitan condition” or “weltbürgerlichen Zustand,” Kant took a decisive step beyond international law centered exclusively on states. Since then, international law has not only developed into a specialized brand of legal theory. Following two world wars, the constitutionalization of international law has evolved along the lines prefigured by Kant toward cosmopolitan law and has assumed institutional form in international constitutions, organizations, and procedures.²

Since the end of the bipolar world order and the emergence of the US as the pre-eminent world power, an alternative to the evolution of a cosmopolitan constitution has emerged. A world dominated by nation-states is indeed in transition toward the postnational constellation of a global society. States are losing their autonomy in part as they become increasingly enmeshed in the horizontal networks of a global society.³ But in this situation the Kantian project of a cosmopolitan order not only has to confront the traditional objection of “realists” who affirm the quasi-ontological primacy of brute power over law. Other opponents are currently emerging who advocate the liberal ethos of a superpower as an alternative to law.

On the realist conception, the normative taming of political power through law is possible only within the confines of a sovereign state whose existence is founded on its capacity to assert itself with force. On this premise, international law must forever lack the cutting edge of a law armed with sanctions. Today, a more far-reaching conflict is superseding the dispute between Kantian idealists and realists of the Carl Schmitt school over the limits to the juridification of international relations.⁴ The project of a new liberal world order under the banner of a pax Americana advocated by the neoconservative masterminds of the current US administration raises the question of whether the juridification of international relations should be superseded by a moralization of international politics grounded in the ethos of a superpower.

Idealists and realists clashed over whether justice is even possible in relations between nations;⁵ the new dispute, by contrast, is over whether law remains an appropriate medium for realizing the declared goals of achieving peace and international security and promoting democracy and human rights throughout the world. Now the controversy concerns the path by which we can achieve these goals, whether via the legally established procedures of an inclusive, but often weak and selective, world organization, or via the unilaterally imposed decisions of a well-meaning hegemon. At first glance, events seemed to have settled the issue when Saddam's statue was toppled from its pedestal in Baghdad. By then the US government had ignored international law twice, first with its proclamation of a National Security Strategy in September 2002 and then with the invasion of Iraq in March 2003. In addition, it had sidelined the United Nations in order to accord priority to its own, ethically rather than legally, justified national interests, even over the objections of its allies. The marginalization of the world organization by a superpower bent on going to war represented a dramatic challenge to existing law.

Hence, the question arises of whether there is anything amiss, normatively speaking, in this imperial approach, assuming, at least for the sake of argument, that the American action could have realized more effectively the same goals which the United Nations had hitherto pursued half-heartedly and with scant success. Or, even granting this counterfactual assumption, should we not rather hold steadfastly to the alternative project of a constitutionalization of international law and do our utmost to bring a future US government to recall the world-historical mission embraced by Presidents Wilson and Roosevelt, in each case following a calamitous world war? For the Kantian project can only continue if the US returns to the internationalism it embraced after 1918 and 1945 and once again assumes the role of pacemaker in the evolution of international law toward a “cosmopolitan condition.”

A situation marked by terrorism and war and by disparities in global economic development that are merely amplified by the unfortunate consequences of the Iraq War compels us to reflect anew on this issue. Granted, nowadays philosophy can at most play the ancillary role of elucidating the concepts employed in the specialized treatments of international lawyers and political scientists. Whereas the role of political science is to describe the state of international relations and that of jurisprudence is to give an account of the concept, validity, and content of international law, philosophy can try to clarify certain basic conceptual features of the development of law in the light of both existing constellations and valid norms. Only at this level can it contribute to the discussion of whether the Kantian project still has a future.

Before returning to this question at the end of the chapter, I would like in the first part to detach the idea of the cosmopolitan condition from its conceptual linkage with the concrete notion of a world republic. In the second, historically oriented part, I will examine the trends which have promoted or hindered the constitutionalization of international law, properly understood.

Politically Constituted World Society vs. World Republic

Classical international law and “sovereign equality”

Kant deplores the idea of wars of aggression⁶ and questions the right of sovereign states to go to war, i.e. the jus ad bellum. This “right,” which is “strictly speaking, unintelligible,”⁷ constitutes the structural core of classical international law. This set of rules derived from customary law and treaties reflects the contours of the European state system which took shape following the Peace of Westphalia and remained in place roughly until 1914. With the exception of the Vatican, only states – and until the middle of the nineteenth century only European states – were admitted. Thus tailored exclusively to the participation of “nations,” classical international law was constitutive for “inter-national” relations in the literal sense. It represents nation-states as participants in a strategic game:

• states enjoy sufficient de facto independence to make autonomous choices and act on their own preferences;
• guided by the imperatives of self-assertion and self-defense, they pursue exclusively their own preferences (understood as “national interests”) and the security of their citizens;
• any state can form coalitions with any other state and they all compete to increase their political power through their ability to exert military threats.

International law lays down the rules of the game⁸ and determines:

1. the qualifications that potential participants must satisfy: a sovereign state must be able to exercise effective control over its social and territorial boundaries and maintain law and order;
2. the admission requirements: state sovereignty rests on international recognition; and
3. the actual status: a sovereign state can conclude treaties with other states. When conflicts arise, it has the right to declare war on other states without offering supporting reasons (jus ad bellum), but it may not intervene in the internal affairs of other states (the prohibition on intervention).

These principles entail a series of consequences:

• there is no supranational authority to sanction and punish violations of international law;
• a sovereign state can violate standards of prudence and efficiency, but it cannot violate moral norms: its behavior is treated as morally indifferent;
• the immunity enjoyed by states extends to their representatives, officials, and functionaries;
• sovereign states reserve the right to prosecute and try crimes committed in war (in accordance with the jus in bello);
• third parties may remain neutral vis-à-vis warring parties.

Thus, the normative content of classical international law extends only to according equal status to sovereign states, a status that rests on the reciprocal recognition of subjects of international law, without regard to differences in size of population, territory, and actual political or economic power. The price for this “sovereign equality” is the acceptance of war as the mechanism for regulating conflicts and thus the freedom to resort to military force. This precludes the possibility of higher impartial judicial and prosecutorial authorities. These two features account for the “soft” character of international law, whose effectiveness remains dependent in the final analysis on the sovereign will of contracting parties. The efficacy of international treaties is subject in principle to the qualification that the sovereign parties reserve the right to substitute politics for law whenever they see fit.

The political constellation underlying classical international law is different from that underlying state law. The power of the state which secures the rights of citizens is itself bound by law. At the national level, the political authority of the state, which is first constituted in the forms of law, and law, which is contingent on the sanctioning power of the state, are mutually interdependent. This interdependence of “political power” and “law” is absent at the international level, where an asymmetrical relation between power and law persists because international legal regulations reflect the underlying power constellations between states without normatively transforming them. Law expresses and, in certain respects, shapes relations between sovereign powers, but it does not effectively constrain them.

Hence, classical international law can exercise an inherent stabilizing effect only to the extent that the formally equal status of the subjects of international law is “backed” by a de facto balance of powers, always assuming that warring parties accept a tacit agreement to respect certain limits on the use of violence in war as morally sacrosanct. Kant contests both of these assumptions on empirical grounds. With the contemporary example of the division of Poland in mind, he describes the role of the balance of power in promoting peace as a “mere fantasy.”⁹ And it is not only the horrors of “wars of punishment and extermination” that are a moral scandal for Kant. Even cabinet wars condu...

Table of contents

• Cover
• Title page
• Copyright page
• Editor's Preface
• Author's Foreword
• Note on the Translation
• I: After September 11
• II: The Voice of Europe in the Clamor of its Nations
• III: Views on a Chaotic World
• IV: The Kantian Project and the Divided West
• Index