(in: J.H.: The Inclusion of the Other, Cambridge, Ma., 1998, 129-153)
As in the period of decolonization following the Second World War, the collapse of the Soviet empire has been marked by a series of rapid dissociative state-formations. The Dayton and Paris peace accords mark the provisional end of successful secessions leading to the foundation of new nation-states or to the restoration of states that had been destroyed, had become dependent, or had been divided up. These, it would seem, are merely the most manifest symptoms of the enduring vitality of a phenomenon that has been largely forgotten not just by the social sciences: ‘With the collapse of imperial spheres of influence, the world of states reconstitutes itself within traditional boundaries which are explained in terms of national history.”(1) Today the political future seems to belong once again to the “hereditary powers” among which Hermann Lübbe numbers “religion or ecclesiastical confessions on the one hand, and nation on the other.” Other authors speak of “ethnonationalism” in order to underline the unconditional relation to the past, whether in the Physical sense of common descent or in the broader sense of a shared cultural inheritance.
Terminologies are far from innocent; they imply a particular point of view. The neologism “ethnonationalism” blurs the traditional distinction between “ethnos” and “demos”.(2) This expression emphasizes the proximity between an “ethnos,” a prepolitical community of shared descent organized around kinship ties, on the one hand, and a nation constituted as a state that at least aspires to Political independence, on the other. In this way the assumption that ethnic communities are more “natural” and evolutionarily “more primitive” than nations is implicitly contradicted.(3) The “we-consciousness,” founded on an imagined blood relation or on cultural identity, of people who share a belief in a common origin, identify one another as “members” of the same community, and thereby set themselves apart from their environment, is supposed to constitute the common core of ethnic and of national social formations. In view of this commonality, nations would differ from other ethnic communities only in their degree of complexity and scope: It is the largest group that can command a person’s loyalty because of felt kinship ties; it is, from this perspective, the fully extended family. (4)
This ethnological concept of the nation conflicts with the concept as it is usually employed by historians. It glosses over the specific connections to the legal order of the constitutional state, to political historiography, and to the dynamics of mass communication to which the national consciousness that arose in Europe in the nineteenth century owes its reflexive and distinctively artificial character.(5) If the national, as previously the ethnic, community appears from the perspective of a generalized constructivism as a “believed” or “imagined commonality” (Max Weber), the “invention of the ethnic nation (Volksnation) “ (H. Schulze) can be given a surprisingly affirmative twist. As a specific manifestation of a universal form of social integration, the quasi-natural character of the nation once again takes on an almost natural aspect even for the scientist who assumes that it is constructed. For once we recognize that the nation is merely a variant of a social universal, the resurgence of the national no longer needs to be explained. When the presumption of normality shifts in favor of ethnonationalism it no longer makes any sense to describe the conflicts that today once again command our attention as symptoms of regression and alienation in need of explanation and to conceive of them, for example, as compensations for the loss Of an international power status or as attempts to come to terms with a condition of social and economic deprivation.
Modern states which are functionally integrated by market and administrative power still delimit themselves from one another as -nations” as they always have done. But this says nothing about the specific character of national self-understanding. It remains an empirical question when and to what extent modern populations understand themselves as a nation based on ethnic membership or as ‘ a nation of citizens. This double coding has a bearing on the issue of exclusion and inclusion. National consciousness vacillates in a peculiar fashion between more extensive inclusion and renewed exclusion.
As a modern form of consciousness, national identity is distinguished on the one hand by its tendency to transcend particularistic, regional ties. In nineteenth century Europe the nation founded new bonds of solidarity between persons who had previously been strangers to one another. This universalistic transformation of hereditary loyalties to village and family, locality and dynasty, is a difficult and in any case a protracted process. Even in the classical nation-states of the West it did not encompass the whole population before the beginning of the twentieth century.(6) On the other hand, it is no accident that this more abstract form of integration found expression in the readiness to fight and in the spirit of self-sacrifice of military draftees who were mobilized against the “enemies of the fatherland.” In an emergency the solidarity of the citizens was supposed to prove itself in the solidarity of those who risk their lives for people and fatherland. On the romantically inspired concept of a people who assert their existence and distinctive identity in the struggle against other nations, the quasi-natural moment of an imagined community of shared language and ancestry is fused with the contingent moment of a narratively constructed community of shared destiny. But this national identity rooted in fictional pasts also prefigures the future realization of republican liberty rights.
The Janus face of the nation, which opens itself internally but shuts itself off from the outside, is already implicit in the ambivalent meaning of the concept of freedom. The particularistic freedom of externally asserted collective national independence seems to be merely the protective shield for the internally realized individual liberties of the citizens-their private autonomy as members of civil society (Gesellschaftsbürger) no less than their political autonomy as citizens (Staatsbürger). The conceptual opposition between a compulsory, ascriptive ethnic membership viewed as an inalienable property, on the one hand, and a freely chosen membership guaranteed by subjective rights in a voluntary political community that grants its citizens the option of emigrating, on the other, is dissolved in this syndrome. This double coding still inspires competing interpretations and contradictory political diagnoses.
The idea of the ethnic nation suggests that the demos of citizens must be rooted in the ethnos of nationals (Volksgenossen) if it is to stabilize itself as a political association of free and equal legal consociates. The binding force of citizenship is supposedly not adequate to this task. The loyalty of citizens has to be anchored in the quasinatural, historically fateful sense of togetherness of the people. The “anodyne” academic idea of “constitutional patriotism” is no substitute for a “healthy national consciousness”: “This concept (of constitutional patriotism) hangs in the air without support …. Hence appeal to the nation . . . [and] to the emotionally binding we,”(7) consciousness it contains, is unavoidable. Seen from another perspective, however, the symbiotic relation between nationalism and republicanism reveals itself as merely a transitional, historical constellation. A national consciousness propagated by intellectuals and scholars that slowly spread outward from the urban bourgeoisie-a consciousness that crystallized around the fiction of a common ancestry, the construction of a shared history, and a grammatically standardized written language-did indeed transform subjects for the first time into politically aware citizens who identify with the republican constitution and its declared goals. But notwithstanding this catalyzing role, nationalism is not a necessary or permanent precondition of a democratic process. The progressive extension of the status of citizenship to the whole population does not just provide the state with a new source of secular legitimation; it also produces a new level of abstract, legally mediated social integration.
Both interpretations assume that the nation-state was a response to the problem of the disintegration of a populace that had become uprooted from the corporative social ties of early modern society& But the one side situates the solution to the problem at the cultural level, whereas the other looks for a solution at the level of democratic procedures and institutions. Ernst-Wolfgang Bökenförde emphasizes the aspect of collective identity: “A relative homogenization in a shared culture is needed by way of compensation . . . if the society which tends to become atomized is to be reunited into a unity capable of concerted action, in spite of being differentiated into a multiplicity of parts. This task is performed by the nation and its attendant national consciousness along with, and in succession to, religion …. Thus the ultimate goal cannot be to overtake national identity and replace it with something else, not even with a universalism of human rights.(8) The opposing view is based on the conviction the democratic process itself can provide the necessary guarantees for the social integration of an increasingly differentiated society.(9) Indeed, in pluralistic societies this burden cannot be shifted from the level of political will-formation and public communication onto the seemingly natural cultural substrate of a supposedly homogeneous people. From these premises Hans-Ulrich Wehler concludes that “federal unions bound together by a sense of loyalty based primarily on the achievements of the constitutional and welfare states represent an incomparably more attractive utopian ideal than the regression to the supposed normality of the German … nationstate.”(10)
“I am not competent to engage in this debate at the level of historical arguments. Instead I am interested in the constitutional models of the relation between the nation, the rule of law, and democracy in terms of which the conflict is fought out at the normative level. jurists and political theorists intervene in the public processes of the self-understanding of citizens with different, but no less effective, means than historians; they can even influence the decisions of the Federal Constitutional Court. On the classical, late eighteenth-century conception, “nation” refers to the people who constitute themselves as a state by giving themselves a democratic constitution. Opposed to this view is the conception that arose in the nineteenth century according to which popular sovereignty presupposes a nation that projects itself into the past as an organically evolving entity in contrast with the artificial order of positive law: The ‘People,’ . . . which is the subject of constitutional authority in democracies, does not first acquire its identity from the constitution that it gives itself. This identity is rather a preconstitutional, historical fact: thoroughly contingent, but not for that reason arbitrary … it is unavoidable for those who find that they belong to a particular people.”(11)
Carl Schmitt played an important role in the history of this idea. I will begin by contrasting Schmitt’s account of the relation between nation, rule of law, and democracy with the classical conception (I). These approaches have different consequences for a number of current, interconnected problems: the right of national self-determination (II), equal rights in multicultural societies (III), the right of humanitarian intervention (IV), and the transfer of sovereign rights to supranational institutions (V). Taking these problems as my guide, I will argue that the ethnonational conception of popular sovereignty is misguided.
I. Constitutional Constructions of Popular Sovereignty
(1) In his interpretation of the Weimar constitution, Carl Schmitt accords a constructivist notion of ethnonationalism a constitutional status. The Weimar Republic stood in the tradition of the rule of law-already exemplified by constitutional monarchy-which is supposed to protect the citizens from the abuse of state power; but for the first time in German history it combined the rule of law with the constitutional form and the political content of democracy. This starting point, which is peculiar to German legal history, is reflected in the architectonic of Schmitt’s “constitutional theory.” There Schmitt makes a strict distinction between the “legal” and the “political” components of the constitution and treats the “nation” as a hinge between the traditional principles of the bourgeois constitutional state and the democratic principle of the self-determination of the people. He argues that national homogeneity is a necessary precondition for the democratic exercise of political authority: “A democratic state in which democracy is founded on the national homogeneity of its citizens conforms to the so-called nationality principle according to which each nation forms a state and each state a nation.”(12)
With this principle, Schmitt adopts the formulation of Johann Caspar Bluntschli; he also consciously aligns himself with the principles-accepted by both Wilson and Lenin-that informed the European postwar political order laid down in the Versailles peace settlement. But the specific conceptualization is more important than historical agreements. Schmitt conceives of the citizens’ equal political participation in political will-formation as a matter of a spontaneous harmony between the expressions of will of like-minded–members of a more or less homogeneous people.(13) Democracy must take the form of a national democracy because the “self’ of the self-determination of the people is conceived as a macrosubject capable of action and because the ethnic nation seems to be the appropriate entity to fill this conceptual gap-it is viewed as the quasi-natural substrate of the state organization. This collectivistic interpretation of the Rousseauean model of self-legislation prejudices all further considerations.
It is true that democracy can only be exercised as a joint practice. But Schmitt does not construe this commonality in terms of the higher-level intersubjectivity of a discursive agreement between citizens who reciprocally recognize one another as free and equal; instead he reifies it into the homogeneity of members of a single people. He makes the norm of equal treatment contingent on the fact of a uniform national origin: “Democratic equality is a substantive equality. Because all citizens share in this substance, they can be treated as equal, they have equal electoral and voting rights, etc.”(14) This substantialist understanding of the citizenry is related to an existentialist conception of the democratic decision-making process. Schmitt conceives of political will-formation as the collective selfaffirmation of a people: “What the people want is good just because the people want (it).”(15) Severing democracy from the rule of law here reveals a hidden meaning: given that the guiding political will has no rational content but is exhausted by the expressive content of a naturalized Volksgeist, it does not need to be generated through a Public discussion, participation in which is guaranteed by civic rights.
Aside from any consideration of its rationality or irrationality, the authenticity of the people’s will is attested exclusively by the plebiscitary proclamation of the will of an actually present people. Even before the self-determination of the people becomes solidified into the competences of state organs, it finds expression in the spontaneous “yes” and “no” responses of the people to predetermined alternatives: “Only the actually assembled people is the people … and can perform the activity that specifically pertains to this people: it can acclaim – in other words, signal its acceptance or rejection by a simple act of acclamation.”(16) The principle of majority rule merely operationalizes the accord between individual expressions of will: “all will the same thing.” This convergence only brings to the fore the substantive a priori of a shared national form of life. The a priori preunderstanding is granted by the substantive homogeneity of nationals who set themselves apart as a separate nation from all others: “The democratic concept of equality is a political concept that is predicated on the possibility of differentiation. Hence political democracy cannot rest on the undifferentiatedness of all human beings but only on membership of a particular people. . . . Thus the equality that is essential to democracy applies only internally, not externally.”(17)
In this way, Schmitt sets up a polemical contrast between the “people,” on the one hand, and a humanistically conceived “humanity” connected with the moral concept of equal respect for everyone, on the other: “The central concept of democracy is the people, not humanity. If democracy is indeed a political form, it can only be a democracy of the people, not of humanity.”(18) Insofar as the “idea of the equality of all human beings,” in the sense of equal consideration of the interests of everybody, has any relevance for the constitution, it finds expression in a rule of law that applies to private citizens. The meaning of human rights is exhausted by the private enjoyment of equal liberties, whereas the exercise of political freedoms by citizens is supposed to obey a completely different logic. The meaning of democratic self-determination based on ethnic homogeneity is not the political autonomy of individual citizens but rather national independence-the self-assertion, self-affirmation, and self-realization of a nation in its specificity. This nation mediates between the rule of law and democracy: only the citizens, who have been transformed from private persons into members of a politically self-conscious nation, can participate in democratic rule.
(2) By uncoupling the basic rights regulating private interactions within civil society from a substantialized “Volksdemokratie”(19) in this way, Schmitt sets himself in stark opposition to a republicanism grounded in social contract theory. On this tradition, “people” and “nation” are interchangeable concepts for a citizenry that is co-original with the political community. The people who make up the state are viewed not as a prepolitical datum but as the product of the social contract. The participants form an association of free and equal consociates under law through their joint decision to make use of their original right “to live under public laws of freedom.” The decision to live in political freedom is synonymous with the undertaking to engage in a constitution-founding praxis. in contrast with Carl Schmitt’s account, on this conception popular sovereignty and human rights, democracy and the constitutional state, are conceptually intertwined. For the initial decision to engage in democratic self-legislation can only be carried out by realizing the rights that the participants must mutually grant one another if they want to legitimately regulate their life in common by means of positive law. This calls in turn for a legitimacy-guaranteeing procedure of lawmaking that gives permanent form to the further elaboration of the system of rights.(20) Following the Rousseauean formula, in this procedure all must reach the same decisions for all. Thus the basic rights spring from the very idea of the legal institutionalization of the procedure of democratic self-legislation.
The idea of a procedural, future-oriented popular sovereignty along these lines renders meaningless the demand to tie political will-formation to the substantive a priori of a past, prepolitically established consensus among homogeneous members of a nation: Positive law is not legitimate because it corresponds to substantive principles of justice but because it is enacted in accordance with Procedures that are formally just, that is, democratic. That all decide the same thing for all in the legislative process is a demanding normative presupposition that is no longer defined in a substantive manner but is intended to prevent arbitrary decisions and minimize domination through the self-legislation of the addressees of the law, through equal procedural positions, and through the universality of legal regulation.”(21) A prior background consensus based on a homogeneous culture is not necessary, because democratically structured opinion- and will-formation make possible rational agreement even between strangers. Because the democratic process guarantees legitimacy in virtue of its procedural characteristics, it can if necessary bridge gaps in social integration. Insofar as it secures the fair value of individual liberties for all, it ensures that the network of civic solidarity remains intact.
Criticism of this classical conception is primarily directed against its “liberalistic” interpretation. Schmitt disputes the capacity of the constitutional state founded on democratic procedures to secure social integration under the two headings that informed Hegel’s critique of the “Not- und Verstandesstaat’ [literally, “state of necessity and of the understanding”] of social contract theory and have been taken up again by the “communitarians” in their controversy with “liberals”.(22) The principal targets of this critique are the atomistic conception of the individual as an “unencumbered self’ and the instrumentalist concept of political will-formation as a matter of aggregating social interests. From the point of view of these critics, the parties to the social contract are conceived as isolated, enlightened rational egoists who are not shaped by common traditions and hence do not share any cultural value-orientations, and whose actions are not oriented to reaching understanding. Political will formation on this description must take the form of negotiations concerning a modus vivendi without any possibility of reaching a mutual understanding from ethical or moral points of view. Indeed, it is difficult to see how such parties could produce an intersubjectively recognized legal order that can be expected to forge a nation of citizens from strangers-in other words, generate civic solidarity between strangers. Against such a Hobbesian backdrop, the shared ethnic or cultural inheritance of a more or less homogeneous people recommends itself as the source and guarantor of the kind of normative bonds to which possessive individualism is blind.
However, the well-founded criticism of this extreme version of natural law does not apply to the intersubjectivistic understanding of procedural popular sovereignty, which is in any case more congenial to the republican tradition. On this interpretation, the practice of deliberation between participants in communication who want to arrive at rationally motivated decisions takes the place of the private law model of a contract between market players. Political opinion- and will-formation is not limited to the formation of compromises but also conforms to the model of public discourses oriented to the rational acceptability of regulations in the light of generalized interests, shared evaluative orientations, and justified principles. This noninstrumental conception of politics is based on the idea of the communicatively acting person. Nor should the autonomy of legal ns be conceived in terms of self-ownership. The social character of natural persons is such that they develop into individuals in the context of intersubjectively shared forms of life and stabilize their identities through relations of reciprocal recognition. Hence, also from a legal point of view, individual persons can be protected only by simultaneously protecting the context in which their formation processes unfold, that is, only by assuring themselves access to supportive interpersonal relations, social networks, and cultural forms of life. A discursively instituted process of legislation and political decision-making that keeps this in view must take account of values and norms as well as existing preferences. As such, it is well qualified to fulfill the task of providing a political substitute for processes of integration that fail at other levels.
From the point of view of Kant and of Rousseau (properly understood (23)), democratic self-determination does not have the collectivistic and at the same time exclusionary meaning of the assertion of national independence and of the realization of a unique national character. Rather, it has the inclusive meaning of self-legislation which involves all citizens equally. It is inclusive in that such a political order keeps itself open to the equal protection of those who suffer discrimination and to the integration of the marginalized, but without imprisoning them in the uniformity of a homogenized ethnic community. In this connection the principle of voluntariness is crucial; that citizens belong to a state is a function at least of their implicit agreement. Whereas the substantive understanding of popular sovereignty assumes an essential interconnection between “freedom” and the external independence of a people, the procedural understanding connects sovereignty with the private and public autonomy granted everybody equally within an association of free and equal legal subjects. Given the challenges that confront us today, I want to argue, the communicative account of republicanism is more appropriate than either an ethnonational or even a communitarian conception of the nation, the rule of law, and democracy.
II. On the Meaning and Limits of National Self-determination
The nationality principle implies a right of national self-determination. According to this principle, every nation that wishes to govern itself has the right to exist as an independent state. The ethnonational understanding of popular sovereignty seems to provide a solution to a problem that republicanism cannot solve: How are we to define the totality of those to whom citizens’ rights should legitimately apply?
Kant ascribes to every human being as such the right to have rights and to regulate his life in common with others in such a way that everyone can enjoy equal liberties in accordance with public, coercive laws. But this does not settle who may actually make use of this right with whom and when; nor does it settle who may unite into a self-determining commonwealth on the basis of a social contract. The question of the legitimate composition of the citizen body remains open as long as democratic self-determination only affects the mode of organization of the common life of legal consociates in general. Of course, the self-legislation of a nation with a democratic constitution can be traced back to the decision of a founding generation to give themselves a constitution; but with this act the participants qualify themselves only retroactively as a sovereign people (Staatsvolk). It is through the shared will to found a state and, as a consequence of this resolution, through the constitution-founding practice itself that the participants constitute themselves as a nation of citizens.
This approach remains unproblematic as long as borders are not in fact disputed, as for example in the French or even the American Revolution when the citizens struggled for republican freedoms either against their own government, and hence within the boundaries of an already existing state, or against a colonial power which had itself already defined the boundaries of unequal treatment. But in other cases the circular answer that the citizens constitute themselves as a people, and thereby delimit themselves both socially and territorially from their environment, is not sufficient: “To say that all people … are entitled to the democratic process begs a prior question. When does a collection of persons constitute an entity – ‘a people’ – entitled to govern itself democratically?”(24) In the real world, who in each instance acquires the power to define the disputed borders of a state is settled by historical contingencies, usually by the quasi-natural outcome of violent conflicts, wars, and civil wars. Whereas republicanism reinforces our awareness of the contingency of these borders, this contingency can he dispelled by appeal to the idea of a grown nation that imbues the borders with the aura of imitated substantiality and legitimates them through fictitious links with the past. Nationalism bridges the normative gap by appealing to a so-called right of national self-determination.
In contrast with social contract theory which grounds the legal order in relations of mutual recognition between individual citizens, Carl Schmitt seems to be in a position to justify such a collective right. For if democratic self-determination is understood on the model of collective self-assertion and self-realization, no single person can realize his fundamental right to equal citizens’ rights outside the context of an ethnic nation that enjoys the organizational independence of a state. On this view the collective right of every people to form an independent state is a necessary condition for the effective guarantee of equal individual rights. This justification of the principle of nationality also yields the possibility of endowing the actual success of a national independence movement with retrospective normative force. A particular group of people qualifies for the right of national self-determination by the fact that it defines itself as a homogeneous people and at the same time has the power to control the territorial boundaries that derive from such ascriptive characteristics.
On the other hand, the assumption of a homogeneous people contradicts the principle of voluntariness and has certain normatively undesirable consequences which Schmitt makes no attempt to conceal: “A nationally homogeneous state then appears normal; a state that lacks this homogeneity is abnormal, a threat to peace.”(25) The assumption of a compulsory, collective identity necessitates repressive policies, whether it be the forced assimilation of alien elements or the purification of the people through apartheid and ethnic cleansing, for, as Schmitt puts it, “a democratic state (would) rob itself of its substance by consistently recognizing the universal equality of human beings in the domain of public life and of public law.”(26) In addition to suggesting preventive measures limiting the admission of aliens, Schmitt recommends the “suppression and expulsion of heterogeneous elements of the population” as well as their geographical segregation, hence the establishment of protectorates, colonies, reservations, homelands, etc.
Of course, the republican conception does not preclude ethnic communities’ giving themselves democratic constitutions and establishing themselves as sovereign states so long as this independence is legitimated by the individual right of citizens to live in freedom under laws. But as a general rule nation-states do not develop peacefully from separate peoples living in isolation; rather they typically encroach on neighboring regions, tribes, subcultures, and linguistic or religious communities. For the most part new nation-states emerge at the expense of assimilated, suppressed, or marginalized “subaltern” peoples. The formation of nation-states under the banner of ethnonationalism has almost always been accompanied by bloody purification rituals, and it has generally exposed new minorities to new waves of repression. In late nineteenth- and twentieth-century Europe it left in its wake a horrific legacy of emigration and expulsion, of forced resettlement, disenfranchisement, and physical extermination, up to and including genocide. Often enough the persecuted themselves mutated into persecutors once they succeeded in emancipating themselves. In the prevailing practice concerning recognition in international law, the emergence of the nationality principle coincided with a shift to the “principle of effectiveness” according to which every new government-regardless of its legitimacy-can count on recognition only if it succeeds in stabilizing its sovereignty both externally and internally.
But as in the salient cases of colonialism and domination by a foreign power, the injustices against which legitimate resistance is directed do not result from the violation of a supposed collective right of national self-determination but from the violation of the basic rights of individuals. The demand for self-determination can only have as its immediate content the implementation of equal civil rights. The abolition of discrimination against minorities does not per se call into question the territorial boundaries of an unjust regime. A demand to secede is legitimate only when the central state power violates the rights of a portion of the population concentrated in a particular territory; in this case the demand for inclusion can be realized via national independence. From this standpoint, the independence of the United States was already recognized by Spain and France in 1778. Since the defection of the Spanish colonies in South and Central America, and contrary to the practice that prevailed until that time,(27) the view has gained general acceptance that international recognition of a secession from the mother country is permissible even without the assent of the former sovereign.(28)
So long as national independence movements appeal to democratic self-determination in the republican sense, a secession (or the annexation of a seceded portion of a territory by another state) cannot be justified without taking account of the legitimacy of the status quo. For so long as all citizens enjoy equal rights and nobody suffers discrimination, there is no compelling normative reason to secede from the larger political community, Under these circumstances, issues of repression or of “foreign domination” (Fremdherrschaft) which would give minorities the right to secede cannot arise. This view fits the resolution of the UN General Assembly which, in accordance with the UN Charter, guarantees all peoples a right of self-determination, but does so without employing the concept “people” in the ethnic sense.(29) The resolution rejects explicitly the right to secede from “states that conduct themselves in accordance with the principles of equal treatment and of the right of self-determination of peoples and therefore possess a government which represents the whole people, without discrimination on the basis of race, religion or sex.”(30)
III. A Model of Inclusion Sensitive to Difference
To be sure, the liberal interpretation of democratic self-determination obscures the problem of “born” minorities, which comes into sharper focus from the communitarian perspective(31) and from the intersubjective point of view of discourse theory.(32) The problem also occurs in democratic societies when a politically dominant, majority culture imposes its way of life on minorities and thereby denies effective equality of rights to citizens from other cultural backgrounds. This problem concerns political issues that bear on the ethical self-understanding and the identity of citizens. In these matters minorities should not be simply outvoted by a majority. Here the principle of majority rule runs up against its limits as the contingent composition of the citizenry prejudices the outcomes of a seemingly neutral procedure: “The majority principle itself depends on prior assumptions about the unit: that the unit within which it is to operate is itself legitimate and that the matters on which it is employed properly fall within the jurisdiction of that unit. In other words, whether the scope and domain of majority rule are appropriate in a particular unit depends on assumptions that the majority principle itself can do nothing to justify. The justification for the unit lies beyond the reach of the majority principle and, for that matter, mostly beyond the reach of democratic theory itself.”(33)
The problem of “born” minorities can be explained by the fact that citizens, even when viewed as legal subjects, are not abstract individuals who are cut off from their origins. By intervening in ethical-political issues, the law affects the integrity of the forms of life in which each person’s conduct of life is embedded. In addition to moral considerations, pragmatic deliberations, and negotiable interests, this aspect of the law brings strong evaluations into play that depend on intersubjectively shared, but culturally specific, traditions. Legal orders as wholes are also “ethically imbued” in that they interpret the universalistic content of the same constitutional principles in different ways, namely, against the background of the experiences that make up a national history and in light of a historically prevailing tradition, culture, and form of life. Often the regulation of culturally sensitive matters, such as the official language, the public school curriculum, the status of churches and religious communities, and the norms of criminal law (e.g., those regulating abortion), but also of less obvious matters such as the status of the family and marriage-like partnerships, the acceptance of security standards, or the demarcation of the private from the public realm, is merely a reflection of the ethical-political self-understanding of a majority culture that has achieved dominance for contingent, historical reasons. Such implicitly overwhelming regulations can also spark a cultural struggle by disrespected minorities against the majority culture even within a republican polity that guarantees formally equal civil rights, as is shown by numerous examples such as the Francophones in Canada, the Walloons in Belgium, and the Basques and Catalans in Spain.
A nation of citizens is composed of persons who, as a result of socialization processes, also embody the forms of life in which they formed their identities, even if as adults they renounce the traditions in which they were brought up. In virtue of the constitution of their character, persons are so to speak nodal points in an ascriptive network of cultures and traditions. The contingent composition of the citizen body – in Dahl’s terminology, the “political unit”-also implicitly determines the evaluative horizon within which cultural conflicts and ethical-political discourses of self-interpretation are played out. This evaluative horizon also changes with shifts in the social composition of the citizenry. For example, political questions that depend on a culture-specific background are not necessarily treated differently after a secession, though the outcomes of votes are different; new majorities are not always the result of new arguments.
Of course, a minority that suffers discrimination can achieve equal rights through secession only on the improbable condition that its members are geographically concentrated. Otherwise the old problems merely recur under new banners. In general, discrimination can be eliminated not through national independence but only through a process of inclusion that is sufficiently sensitive to the cultural background of individual and group-specific differences. The problem of born minorities, endemic to all pluralistic societies, becomes more acute in multicultural societies. But when the latter are Organized as democratic constitutional states, several different routes to the elusive goal of a “difference-sensitive” inclusion are at any rate available: federalist delegation of powers, a functionally specified transfer or decentralization of state competences, above all guarantees of cultural autonomy, group-specific rights, compensatory policies, and other arrangements for effectively protecting minorities. In this way the body of citizens who participate in the democratic process in a particular territory or in particular policy domains changes without affecting its principles.
To be sure, the coexistence with equal rights of different ethnic communities, language groups, religious faiths, and forms of life should not be purchased at the cost of the fragmentation of society. The painful process of uncoupling must not rend the society asunder into a multiplicity of subcultures closed off from one another.(34) On the one hand, the majority culture must detach itself from its fusion with the general political culture in which all citizens share equally; otherwise it dictates the parameters of political discourses from the outset. As just one part, it may no longer form the facade of the whole without prejudicing the democratic procedure in specific questions of existential relevance for minorities. On the other hand, the binding force of the common political culture, which becomes progressively more abstract as subcultures reduce it to a common denominator, must remain strong enough to prevent the nation of citizens from falling apart: ‘Multiculturalism, while endorsing the perpetuation of several cultural groups in a single political society, also requires the existence of a common culture…. Members of all cultural groups … will have to acquire a common Political language and conventions of conduct to be able to participate effectively in the competition for resources and the protection of group as well as individual interests in a shared political arena.”(35)
IV. Democracy and State Sovereignty: The Case of Humanitarian Intervention
The substantive and procedural understandings of democracy not only entail different conceptions of national self-determination and multiculturalism; they also have different consequences for the conceptualization of state sovereignty. The state that developed in modern Europe depended from the beginning on the reserve force of a standing army, the police, and the penal system, and it exercised a monopoly over the legitimate means of violence. Internal sovereignty meant the enforcement of the laws of the state, external sovereignty the ability to assert oneself in the competition among the major powers (as this became consolidated in the European state system after the Peace of Westphalia). From this standpoint the process of democratization which was set in motion by the formation of nation-states appears as the transfer of sovereign power from the prince to the people. But this formula lacks precision in comparison with the alternative that concerns us here.
If democratic self-determination means the equal participation of free and equal citizens in the process of decision making and legislation, then democracy in the first place changes the nature and mode of exercising internal sovereignty. The constitutional state revolutionizes the basis on which political rule is legitimated. If, by contrast, democratic self-determination means the collective self-assertion and self-realization of a homogeneous people, the issue of external sovereignty moves into the foreground. For the preservation of state power in the international system thereby acquires the additional significance that a nation secures, together with its existence, its unique character over and against other nations. Thus, in the first case, the connection between democracy and state sovereignty lays down stringent conditions for the legitimacy of the internal order but leaves the question of external sovereignty open; in the second case it interprets the place of the nation-state in the international arena, but the only criterion of legitimacy it requires for the internal exercise of power is civil peace, the maintenance of “law and order.”
The conception of sovereignty in classical international law entails a prohibition on interference in the internal affairs of an internationally recognized state. This prohibition of intervention is indeed reaffirmed by the UN Charter; but from the beginning it stood in tension with the development of the international protection of human rights. The erosion of the principle of nonintervention in recent decades has been due primarily to the politics of human rights.(36) It is hardly surprising that Schmitt categorically repudiated this development. His rejection of intervention grounded in appeals to human rights can already be accounted for by his belligerent conception of international relations, indeed of politics in general.(37) It was not only the introduction of crimes against humanity after the Second World War that elicited his scornful protest. The condemnation of offensive wars(38) had already struck him as incompatible with the status and range of action of nations that can assert their existence and unique identity only in the antagonistic role of sovereign subjects of international law.
Michael WaIzer, who could not be further from the militant ethnonationalism of a Schmitt, defends a similar position. Without wishing to suggest false parallels, I would like to examine his cornmunitarian reservations concerning humanitarian intervention,(39) for they throw light on the internal connection between conceptions of democracy and the treatment of sovereignty rights. In his book on just wars,(40) WaIzer proceeds from the assumption that any community has a right of national self-determination if it possesses its own collective identity and, inspired by an awareness of its cultural heritage, has the will and determination to carve out a state existence for itself and to assert its political independence. A group of people enjoys the right of national self-determination if it succeeds in laying claim to it.
To be sure, WaIzer does not understand the candidate for political independence as an ethnic community of descent but rather as a cultural community of inheritance. However, the historically evolving cultural nation, like the community of shared ancestry, is also understood as a prepolitical entity that has the right to preserve its integrity in the form of a sovereign state: “The idea of communal integrity derives its moral and political force from the rights of contemporary men and women to live as members of a historic community and to express their inherited culture through political forms worked out among themselves.”(41) WaIzer also deduces three exceptions to the principle of nonintervention from this right of self-determination. He regards interventions as permissible (a) to lend support to a national liberation movement that manifests the identity of an independent community by the very act of resistance and (b) to defend the integrity of a political community under attack when it can only be protected by an opposing intervention. Walzer also justifies the third exception, not on the basis of violations of human rights per se, but on the grounds that (c) in cases of enslavement, massacre, or genocide a criminal government deprives its own citizens of the possibility of giving expression to their forms of life and thereby of preserving their collective identity.
The communitarian interpretation of popular sovereignty emphasizes the aspect of external sovereignty in such a way that the question of the legitimacy of the internal order gets pushed into the background. The point of WaIzer’s reflections is that a humanitarian intervention against violations of human rights by a dictatorial regime can only be justified when the affected citizens themselves take up the cudgels against political repression and, by a recognizable act of rebellion, provide concrete proof that the government is opposed to the true aspirations of the people and threatens the integrity of the community. Accordingly, the legitimacy of a political order is measured in the first instance by the accord between the political leadership and the cultural form of life that is constitutive of the identity of the people: “A state is legitimate or not, depending upon the ‘fit’ of government and community, that is, the degree to which the government actually represents the political life of its people. When it doesn’t do that, the people have a right to rebel. But if they are free to rebel then they are also free not to rebel … because they still believe the government to be tolerable, or they are accustomed to it, or they are personally loyal to its leaders …. Anyone can make such arguments, but only subjects or citizens can act on them.”(42)
WaIzer’s critics proceed from a different understanding of democratic self-determination; they reject the view that internal sovereignty is simply a matter of the effective preservation of civil peace. On this reading the key to judging the legitimacy of the internal order is not common cultural inheritance but the realization of civil rights: “The mere fact that the multitude shares some form of common life-common traditions, customs, interests, history, institutions, and boundaries-is not sufficient to generate a genuine, independent, legitimate political community.”(43) The critics dispute the principle of nonintervention and advocate, as far as possible, the expansion of the international protection of human rights. Here, of course, that a state is illegitimate according to the standards of the constitutional state is not a sufficient condition for intervening in its internal affairs. Otherwise the UN General Assembly would have to be composed along completely different lines. Walzer rightly points out that from a moral point of view every decision to act on behalf Of citizens of another country is dubious. Proposals for a case-by-case treatment of intervention(44) also take into account the limits and the extreme dangers of a politics of human rights.(45) But the decisions and strategies of the world organization, and especially the interventions of forces carrying out UN mandates since 1989, indicate the direction along which international law (Völkerrecht) is gradually being transformed into a cosmopolitan law (Weltbürgerrecht).(46)
These political and legal developments are reactions to an objectively changed situation. The unprecedented nature and scale of the government criminality that spread in the wake of the technologically unfettered and ideologically unrestrained Second World War makes a mockery of the classical presumption of the innocence of the sovereign subjects of international law. A prescient politics of peacekeeping must take into account the complex social and political causes of war. What is urgently needed are strategies designed to influence-where possible, in a nonviolent manner-the internal order of formally sovereign states whose goal is to foster self-sustaining economics and tolerable social conditions, equal democratic participation, the rule of law, and a culture of tolerance. Such interventions in support of internal democratization are, however, irreconcilable with a conception of democratic self-determination that grounds a right of national independence for the sake of the collective self-realization of a cultural form of life.
V. Only a Europe of Fatherlands?
In view of the subversive forces and imperatives of the world market and of the increasing density of worldwide networks of communication and commerce, the external sovereignty of states, however it may be grounded, is by now in any case an anachronism. Also the increasing global dangers which have long since united the nations of the world unwittingly into an involuntary risk society render a practical necessity the creation of politically competent organizations on the supranational level. For the time being there is a lack of collective actors who could pursue a “domestic” politics on a global scale and would have the power to agree on the requisite parameters, arrangements, and procedures. Yet these circumstances have in the meantime compelled nation-states to unite into larger units. This process gives rise to dangerous legitimation deficiencies, as is shown by the example of the European Union. As new organizations emerge even further removed from the political base, such as the Brussels bureaucracy, the gap between self-programming administrations and systemic networks, on the one hand, and democratic processes, on the other, grows constantly. The helpless defensive reactions to these challenges again demonstrate the inappropriateness of a substantive conception of popular sovereignty.
Although the verdict of the Federal Constitutional Court of Germany concerning the Maastricht Treaty effectively ratifies the proposed expansion of the competences of the European Union, the justification it provides reaffirms the assumption that the principle of democracy would be unacceptably “emptied of content if the exercise of state functions could not be tied once more to a “relatively homogeneous” citizen body. The Court, which takes its orientation from Hermann Heller (rather than Carl Schmitt), apparently wants to reject an ethnonationalist conception of the people. Nevertheless, it takes the view that a democratically legitimated state authority must flow from a political will-formation through which a people gives sufficient expression to its prepolitically given “national identity.” If a democratic process is to take root at all, it must be possible for the citizen body to express legally “what unites them socially and politically in a relatively homogeneous manner.”(47)
Given this basic assumption, the Court explains why the Maastricht Treaty will not found a European federal state into which the Federal Republic would be subsumed, thereby stripping it of its standing as a subject of international law (with the right to conduct independent judicial, domestic, and foreign policies, and to maintain its own defense forces).(48) In essence the argument of the Court aims to prove that the treaty does not establish the supreme constitutional authority (Kompetenz-Kompetenz) of an independent supranational legal subject (on an analogy with the United States, for example). The “alliance of states”(49) is supposed to owe its existence only to the “authorization of states which remain sovereign”: “The Maastricht Treaty takes account of the independence and sovereignty of the member states by obligating the Union to respect the national identity of its member states.”(50) Formulations such as these betray the conceptual barriers that the substantive concept of popular sovereignty erects to the transfer of sovereignty rights to supranational bodies. Moreover, they lead to astonishing conclusions that cannot be reconciled with earlier verdicts of the court on the primacy of European Community law. (51)
One would not be mistaken if one discerned in the tenor of the Court’s justification a certain level of agreement with the conclusion that Hermann Lübbe draws from his philippic against the “United States of Europe;” as he confidently asserts in the subtitle, this union is “not to be”: ‘The legitimacy of the future European Union . . . rests on the shared interests of its member countries, not on the self-determining will of a European citizenry. A European people has no political existence and, while there is no reason to think that an experience of mutual belonging among Europeans analogous to that which unites a people is inconceivable, at the present time there are no foreseeable circumstances under which a legitimacy-founding European will could take shape.”(52) Against this skepticism one could point to the decisive historical experiences that undeniably unite the European peoples. For the catastrophes of two world wars have taught Europeans that they must abandon the mind-sets on which nationalistic, exclusionary mechanisms feed. Why should a sense of belonging together culturally and politically not grow out of these experiences-especially against the rich background of shared traditions which have long since achieved world-historical significance, as well as on the basis of the overlapping interests and dense networks of communication which have more recently developed in the decades of economic success of the European Community? Clearly Lübbe’s euroskepticism is motivated by the artificial demand for a mutual belonging, “analogous to that of a people.” But the “homogeneous people,” which is again proving an impediment to reflection, is the wrong analogy.
The conflict-ridden history of state formation in the postcolonial period in Asia and especially in Africa does not offer a convincing counterexample. When the erstwhile colonies were “granted” independence by the withdrawal of the colonial powers, the problem was that these artificial territories achieved external sovereignty without already having an effective state power at their disposal. After the withdrawal of the colonial administration the new governments in many instances could assert their sovereignty internally only with great difficulty. Nor could this be achieved by means of repression: ‘The problem was everywhere to ‘fill in’ ready-made states with national content. This poses the interesting question, why postcolonial states had to be nations…. Nation-building as development means the extension of an active sense of membership to the entire populace, the secure acceptance of state authority, the redistribution of resources to further the equality of members, and the extension of effective state operation to the periphery.”(53) The continuing tribal conflicts in formally independent postcolonial states serve as a reminder that nations only arise once they have traversed the difficult road from ethnically based commonalities among people who know one another to a legally mediated solidarity among citizens who are strangers to one another. In the West, this process of nation-state formation, which interconnects and mixes tribes and regions, took more than a century.
This process of integration itself demonstrates the true functional requirements for democratic will-formation, namely, the communicative circuits of a political public sphere that developed out of bourgeois associations and through the medium of the mass press. This enabled the same themes to acquire simultaneously the same relevance for a large public that remained anonymous and to spur citizens separated by great distances to make spontaneous contributions. This process gives rise to public opinions that aggregate themes and attitudes to the point where they exercise political influence. The correct analogy is obvious: the initial impetus to integration in the direction of a postnational society is not provided by the substrate of a supposed ‘European people” but by the communicative network of a European-wide political public sphere embedded in a shared political culture. The latter is founded on a civil society composed of interest groups, nongovernmental organizations, and citizen initiatives and movements, and will be occupied by arenas in which the political parties can directly address the decisions of European institutions and go beyond mere tactical alliance to form a European party system.(54)
1. H. Lübbe, Abschied vom Superstaat (Berlin, 1994), pp. 33f.
2. Cf. M. R. Lepsius, “‘Ethnos’ und ‘Demos,”‘ in Interessen, Ideen und Institutionen (Opladen, 1990), pp. 247-256; Demokratie in Deutschland (G6ttingen, 1993).
3. Cf. C. Leggewie, Ethnizität, Nationalismus und multikulturelle Gesellschaft,” in H. Berding, ed., Nationales Betou,8tsein und kollektive Identität (Frankfurt am Main, 1995), p. 54.
4. W. Connor, Ethnonationalism (Princeton, NJ, 1994), p. 202: “Our answer to that often asked question, ‘What is a nation?’, is that it is a group of people who feel they are ancestrally related.”
5. CE H. Schulze, Staat und Nation in der Europäischen Geschichte (Munich, 1994).
6. See, e.g., P. Sahlins, Boundaries (Berkeley, CA, 1989).
7. W. Böckenförde, “Die Nation,” Frankfurter Allgemeine Zeitung, September 30, 1995.
8. Bökenförde, “Die Nation.”
9. J. Habermas, Die Normalität einer Berliner Republik (Frankfurt am Main, 1995), p. 181.
10. H. Wehler, “Nationalismus und Nation in der deutschen Geschichte,” in Berding, ed., Nationales Bewußtsein, pp. 174f.
11. Lübbe, Abschied vom Superstaat, pp. 38f.
12. C. Schmitt, Verfassungslehre (1928) (Berlin, 1983), p. 231.
13. CE 1. Maus, “Rechtsgleichheit und gesellschaftliche Differenzierung bei Carl Schmitt,” in Rechtstheorie und Poilitische Theorie im Industriekapitalismus (Munich, 1986), pp. 111-140.
14. Schmitt, Verfassungslehre, p. 228.
15. Ibid., p. 229.
16. Ibid., p. 243.
17. Ibid., p. 227.
18. Ibid., p. 234.
19. B. 0. Bryde, “Die bundesrepublikanische Volksdemokratie als Irrweg der Demokratietheorie,” Staatswissenschaften und Staatspraxis 5 (1994): 305-329.
20. CE Habermas, Between Facts and Norms, trans. W. Rehg (Cambridge, MA, 1996), Ch. 3.
21. L Mauss, -Volk’ und ‘Nation’ in Denken der Aufklärung,” Blätter für deutsche und international– Politik 5 (1994), p. 604.
22. R. Forst, Kontexte der Gerechtigkeit (Frankfurt am Main, 1994), chs. 1 and 3.
23. CL Maus, Zur Aufklärung der Demokratietheone (Frankfurt am Main, 1992).
24. R. A. Dahl, Democracy and Its Critics (New Haven & London, 1989), p. 193.
25. Schmitt, Verfassungskhre, p. 231.
26. Ibid., p. 233.
27. The relevant issues of status were first definitively clarified for the European powers when the unilateral declaration of independence of the United Netherlands was recognized by Spain in the Peace of Westphalia of 1581.
28. j. A. Frowein, “Die Entwicklung der Anerkennung von Staaten und Regierungen im Völkerrecht,” Der Staat 11 (1972): 145-159.
29. Article 1 of the human rights agreement of December 16, 1966, which is tailored to the era of peaceful decolonization after the Second World War, reads: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
30. A. Verdross and B. Simma, Universelles V61kerrecht, 3rd ed. (Berlin, 1984), p. 318 (section 511).
31. Ch. Taylor, Multiculturalism and the Politics of Recognition (Princeton, 1992).
32. J. Habermas, “Struggles for Recognition in Constitutional States,” this volume, pp. 219117.
33. Dahl, Democracy and Its Critics, p. 204.
34. Cf. H. J. Puhle, ‘Vom Bürgerrecht zum Gruppenrecht? Multikulturelle Politik in den USA,” in: K J. Baade, ed., Menschen 4ber Grenzen (Herne, 1995), pp. 134-149.
35. J. Raz, “Multiculturalism: A Liberal Perspective,” Dissent (Winter 1994): 67-79, p. 77.
36. R. Wolfrum, “Die Entwicklung des internationalen Menschenrechtsschutzes,” Europa-Archiv 23 (1993): 681-690.
37. Schmitt, The Concept of the Political (1932) (Chicago, 1996).
38. Schmitt, Die Wendung zum diskriminierenden Kriegsbegnff (1938) (Berlin, 1988).
39. For a discussion of this aspect of Walzer’s work see B. Jahn, “Humanitäre Intervention und der Selbstbestimmungsrecht der V51ker,” Politische Vierteljahresschrift 34 (1993):567-587.
40. M. WaIzer, just and Unjust Wars: A Moral Argument with Historical Illustrations (1977) (New York, 1992).
41. WaIzer, `The Moral Standing of States,” Philosophy and Public Affairs 9 (1980): 209-229, p. 211.
42. Ibid., p. 214.
43. G. Doppelt, “WaIzer’s Theory of Morality in International Relations,” Philosophy and Public Affairs 8 (1978): 3-26, p. 19.
44. Cf. D. Senghaas, Wohin driftet die Welt? (Frankfurt am Main, 1994), p. 185.
45. CE K- 0. Nass, “Grenzen und Gefahren humanitärer Interventionen,” FurüpaArchiv 10 (1993): 279-288.
46. Cf. Ch. Greenwood, “Gibt es ein Recht auf humanitäre Intervention?” EuropaArchiv 23 (1993): 93-106.
47. judgment of the second senate of the Federal Constitutional Court of October 12th, 1993: 2 BvR 2134/92, 2BvR 2159/92, Europdische Grundrechte Zeitschrift 1993: 429-447, p. 438.
48. Cf. D. Murswick, “Maastricht und der Pouvoir Constituant,” Der Staat (1993): 161-190.
49. On this deflationary concept see H. P. Ipsen, “Zehn Glossen zum MaastrichtUrteil,” Europarecht 29 (1994): 20: “By introducing the concept ‘alliance of states’ [ Staatenverbund] (the judgment) employs a terminology that is inappropriate because of its economic-technical connotations. It ignores unnecessarily the language of the European community and the other member states.” [The German word “Verbund’ means a cooperative alliance among commercial enterprises. Trans.]
50. Europ(iische Grundrechle 7eitschrift (1993), p. 439.
51. J. A. Frowein, “Das Maastricht-Urteil und die Grenzen der Verfassungsgerichtsbarkeit,” Zeitschrift fir ausiändisches 6ffentliches Recht und V61kerrecht (1994): 1-16.
52. LCibbe, Abschied vom Superstant, p. 100.
53. C. joppke, Nation-Building after World War Two (European University Institute, Florence, 1996), p. 10.
54. The Federal Constitutional Court actually suggested this interpretation at one point in its justification of the Maastricht verdict: “Democracy … depends on the presence of certain prelegal preconditions, such as a permanent free debate between conflicting social forces, interests, and ideas, in which political goals are also clarified and transformed, and in which a public opinion preforms the political mill…. Parties, associations, the press, and the electronic media are both the medium and a factor in this mediation process from which a European public opinion can take shape” (Eu”dische Grundrechte Zxitsch7ffl (1993), pp. 437f.). The reference to the requirement of a common language which follows this statement is supposed to bridge the gap between this communication-theoretical understanding of democracy and the homogeneity of the citizenry which is elsewhere assumed to be necessary.