―Humanity and Universalizability: A Kantian Interpretation of the Foundations of Human Rights,‖ in Recht und Frieden in der Philosophie Kants: Akten des X. Internationalen KantKongresses, ed. Valerio Rohden et al. Berlin/New York: W. de Gruyter, 2008, vol. 5, p. 745-756. Nythamar de Oliveira Pontifical Catholic University, Brazil University of Toledo, Ohio Alexander von Humboldt-Stiftung, Kassel 1. As one speaks nowadays of the philosophical foundations of human rights, one seeks above all to address anew the question ―what are, after all, human rights?‖ and why and how should anyone stand up for them. In order to revisit the very problem of the foundations of human rights in the 21 st century, it would be thus important to differentiate at least three levels of philosophical argumentation, namely, (1) the ontological-semantical problem, comprising epistemic questions of meaning and language, so as to define, from the outset, what is meant by human rights; (2) the correlated problems of philosophical anthropology and philosophy of history within the modern conception of ―human nature‖ and the anthropocentric specificity of human rights; (3) the ethicalpolitical problem of justifying and defending human rights, particularly from a universalist standpoint, so as to respond to the criticisms raised by communitarianism. Contemporary authors such as John Rawls, Norberto Bobbio, Jürgen Habermas, Otfried Höffe, Thomas Pogge, and Wolfgang Kersting are among those who have decisively contributed, in the last decades, to recasting the philosophical foundations of human rights, by taking into account the interdisciplinary dimension of the three levels just mentioned above, especially with reference to the contributions of economics, political theory, social psychology, and law studies. 1 In this brief paper, I shall confine myself to levels 2 and 3, especially to the problem of the correlation between universalizability and humanity in light of the lasting contributions of Immanuel Kant's practical philosophy to the philosophical foundations of human rights today. In effect, the gamut of official documents of international conventions, treaties and commissions (for instance, issued by the United Nations and the European Union) refers us directly or indirectly to the appropriation of universalizable principles, particularly inspired by Kant's philosophy of right and peace. My guiding thesis is that such a correlation not only translates the most important 1 Cf. ―Zu einer hermeneutische Begründung der Menschenrechte,‖ in H. Eidam, F. Hermenau, and D. Souza (eds.), Metaphysik und Hermeneutik. Festschrift für H.-G. Flickinger. Kassel: Verlag der Universität, 2004, p. 310-324. original contribution by Kant to the recasting of the philosophical problem of human nature, at the heart of any discourse on human rights, but also rehabilitates universalism in ethics and political philosophy as it makes highly defensible the cosmopolitan juridification, the extension of liberal principles of constitutional democracy to other peoples, and the promotion of human rights through international law. Thus, it is my contention here that an intercultural transformation of the Kantian correlation between universalizability and humanity allows us to overcome all the suspicions raised against Eurocentrism and imperialism (economic, political, and cultural), so as to corroborate multiculturalism and the fact of a reasonable pluralism without falling back into an irresponsible, nihilistic relativism. Furthermore, it may be shown in which sense the Kantian conception of right refers us back, on the one hand, to the correlation between freedom and equality, and, on the other hand, to the correlation between universalizability and humanity, and how it can make feasible a normative identification between ―human rights‖ (Menschenrechte) and ―basic rights‖ (Grundrechte), rendered positive by the deontological, irreducible category of ―human dignity‖ (Menschenwürde), even if understood as Menschheit or Menschlichkeit. 2. Several articles and monographs have been published in the last two decades attesting to the relevance of Kant's moral philosophy, philosophy of right, and political philosophy to our current understanding of human rights. In particular, one can observe that the reception of Kant's philosophy of right and political philosophy has been radically transformed since Rawls's ―Kantian interpretation‖ came out in 1971, and the subsequent studies by Höffe, Pogge, Kersting and Bernd Ludwig. 2 I am assuming that the Rawlsian interpretation can be identified as a model of Kantian constructivism, in contrast with teleological and independent interpretations, according to which a theory of theory of justice would be, respectively, the effective historical fulfillment of Kant's moral philosophy or just another matter of pragmatic concern within a system of rights, without any allusion to the problem of the foundations of morality. 3 I am furthermore assuming the position, upheld by Paul Guyer, Thomas Pogge, Onora O'Neill and others, that the principles of justice expressed by Rawls's Theory of Justice turn out to be a reasonable, defensible reconstruction, and according to Guyer, ―necessary,‖ to Kant's own 2 Cf. T. Göller, ―Kants Menschenrechtsbegründung heute,‖ in Kant und die Berliner Aufklärung, ed. V. Gerhardt, R.P. Horstmann und R. Schumacher, Berlin: W. de Gruyter, 2001, Bd IV, p. 126-133; W. Kersting, Wohlgeordnete Freiheit: Immanuel Kants Rechtsund Staatsphilosophie. Berlin: Walter de Gruyter, 1984; O. Höffe, Kategorische Rechtsprinzipien: Ein Kontrapunkt der Moderne. Frankfurt am Main: Suhrkamp, 1990. 3 K. Baynes, The Normative Foundations of Social Criticism: Kant, Rawls, Habermas. Albany: SUNY Press, 1992. conception of right. 4 Pogge has also shown that the so-called ―political liberalism‖ of Rawls is, in effect, a quite defensible interpretation of Kant's own theory of justice, insofar as the latter is irreducible to a comprehensive liberalism or to a moral doctrine. 5 This would bring us closer to a fundamental problem in the reception of the Rechtslehre, namely, that although it cannot be dependent upon the supreme principle of morality or any of the formulations of the categorical imperative, its formal, procedural thrust not only accounts for the defense of a synthetic a priori unity of reason (in continuity with the transcendental arguments of the three Critiques) but also for an analytical reading of Kant's constructivism (proceeding to Freiheit qua the grounding idea of Vernunft) and, in Pogge's own account, the conception of a procedural game. Hence what has been termed moral constructivism, following the seminal studies by O'Neill, Schneewind and others, serve to respond to Strawson's contention that the Kantian model of foundation is descriptive rather than revisionary or constructive in a broad sense, which is refused together with the identification between moral and political constructivism. 6 I think that it is indeed possible to argue for a Kantian-inspired articulation between the problem of foundations and that of justification of morality, on the one hand, and the independent albeit not irrelevant empirical problem of the applicability of normative principles in the sphere of right and in the very formulation of public policies and institutional procedures, as Pogge has, to my mind, convincingly argued. 7 It is against such a problematic that I am asserting that Rawls's ―Kantian interpretation‖ is to be taken as a watershed (Wendepunkt) in the Kant-Forschung in law studies and theory of justice and peace, precisely because of its thematization of the theory-praxis articulation in Kantian terms rather than in the post-Kantian, esp. post-Hegelian, post-Marxist attempts that sought to overcome the dualism of transcendental arguments and empirical researches in history and sociology. Thus, pre-Rawlsian readings of Kant's theory of justice repeat some of the same mistakes inherent in German idealism as it sought to trivialize Kant's dualisms and attempted at some dialectical solution that supposedly overcame idealist chimeras through historical substance (Hegel) or materialist process (Marx), overlooking the most specific problems of finality, content and formality in its nontheoretical conception of the ―practical‖ use 4 ―Rawls's principles of justice are the necessary reconstruction of Kant's own conception of right‖, in P. Guyer, ―Life, Liberty and Property: Rawls and the Reconstruction of Kant's Political Philosophy‖, in D. Hüning and B. Tuschling, (eds), Recht, Staat und Völkerrecht bei Immanuel Kant. Berlin: Duncker & Humblot, 1998, p. 291. 5 T. Pogge, ―Kant's Theory of Justice‖. Kant-Studien 79 (1988): 407-433. 6 Cf. P. Strawson, Individuals: An Essay in Descriptive Metaphysics, London: Routledge, 1959. 7 Cf. O. O'Neill, Constructions of Reason. Cambridge University Press, 1989. of reason. 8 In effect, according to Ronald Dworkin, a political theory that ―takes rights seriously‖ can be diversily conceived through three distinct models, depending on its stress on finality, right or duty as a fundamental principle and guiding idea, as attested by utilitarian (welfare state), natural law (Naturrecht) and deontological paradigms(moral obligation), respectively. 9 However, the articulation between these three different models of foundations remains far from a harmonious conciliation by means of some metaphysical or supposedly scientific argumentation of sorts, as proposed by several Hegelian and Marxist readings leading up to the Positivismusstreit involving Popper, Adorno, Dahrendorf and Habermas. I shall offer two examples of such a deficiency in the interpretations of two respected readers of Kant, such as Ernst Bloch and Bernard Bourgeois, who provide us with this sort of reading. I shall then proceed to recast the Kantian articulation between right and moral so as to make defensible a universalist interpretation of human rights, as over against communitarians, without transgressing the juridical specificity of a theory of rights and without falling back into teleological models that merely apply a supposed universalizability to differentiatead sociopolitical contexts, and in agreement with recent interpretations offered by Allan Wood and Markus Willaschek. 3. In his 1961 work on ―Natural Law and Human Dignity‖ (Naturrecht und menschliche Würde), Bloch starts from the historical opposition of the modern current of natural law to the social utopian trend (or the revolutionary praxis) of his own affiliation, so as to stress that, while the former proclaims the freedom that results from human dignity, the latter claims happiness (or human fulfillment) through the peace of an equality and fraternity (Brüderlichkeit) as solely capable of generating an authentic, lasting human solidarity. Bloch points thus to the historical tendency of separating freedom –so cherished by liberals-from solidarity –usually advocated by socialists. For Bloch, today's task for human rights consists in the humanization of their revolutionary effective actualization (revolutionäre Verwirklichung), reconciling peace and right, freedom and solidarity. According to Bloch, Kant did perceive the great philosophical problematic underlying the foundations of human rights in the very separation between an ideal of freedom and its historical, concrete reconciliation, but his theory of right could not go beyond a reformist theory of human rights, insofar as the affirmation of rights as a means and rigorous principle of the final purpose (Endzweck) of humanity –viz. its perpetual peace- remained 8 Rawls's suggestion that the Gemeinspruch, together with Kant's writings on the philosophy of history and Zum ewigen Frieden, were decisive for such a ―Kantian interpretation‖ of justice as fairness is certainly instructive. 9 Cf. R. Dworkin, Taking Rights Seriously. Harvard University Press, 1977, p. 172s. somewhat subordinated to its ideal form, incapable of effectively securing right and peace, freedom and happiness. Bloch's Hegelian-Marxist reasoning seems to recognize, indeed, the important contribution of Kant's universalism, in particular, its inherent conception of dignity as essential to human being (Menschenwürde qua Menschenwesen), although he refuses its formalism just as the supra-empirical stance of freedom culminates in a philosophical anthropology: Menschenwesen is ultimately taken for the foundation of right, as long as objective right (institutional norms of human agency, whatever is due to her/him) guarantees at every moment her/his subjective right (the faculty of acting, that which is due). (p. 35s.) Bloch observes also that even though Marx recognized in Kant the great German theoretician of the French Revolution, his idealization of human rights cannot resist the critique of ideology (Ideologiekritik): because the originary, social contract was only the ideal origin of right, not to be taken in real and historical terms (such as through wars and violent conquests and struggles for recognition), it simply cannot fulfill its claims to justification and legitimation of power structures and institutions. Bloch actually deals with accounts that just attest to this aberrant contradiction between natural law, contractualism, and historical events contradicting their ideals. 4. Bernard Bourgeois extensively resort to Bloch's reading of Kant, in his work Philosophie et droits de l'homme de Kant à Marx (Paris: PUF, 1990), as he acknowledges German idealism as the philosophy of the French Revolution and seeks to stick to the Blochian agenda of ―democratic socialism‖ as the only capable of politically reconciling liberalism and socialism.(p. 9) Bourgeois points then to three difficulties within any research on the foundations of human rights, namely: 1. the problem of content, which consists in subsuming a multiplicity of rights under one single principle, usually identified with some idea of the human being (une idée de l'homme), such as presupposed by the catalogue of rights suggested by the UN. To what extent does the content of such rights vary with the diversity of humans groups? What is the general content of such an idea of the value of human existence, or would it be reducible to an idea of freedom, dignity, happiness, security or peace? Bourgeois reappropriates the opposition, evoked by Bloch, between formal freedom and real freedom, so as to thematize anew the conflict between liberalism and socialism. 2. a second problem relates to the style --or better said, the mode-human rights translate a certain kind of voluntarism or historicism. Hence his question, how can one avoid the imposition of an ideal to history? 3. finally, according to Bourgeois, there is the problema of the locus where one conjugates the social effective reality with the static juridicity, whether by the socialization of the political (―anarchism‖) or by the politization of the social (marxism), or still by the separation between the social fact, regardless of the right, and the purely static right (liberalism). Bourgeois proceeds then to an interesting comparison between Bloch's analysis of natural rights and the one developed by Luc Ferry and Alain Renaut, in the third volume of their Philosophie politique, intitled Des droits de l'homme à l'idée républicaine (Paris: PUF, 1985), where the socialist solution is dismissed, in detriment of a properly republican solution. For these authors, a liberalism such as Hayek's (Droit, législation et liberté, vol. 3: PUF 1983) that overlooks the acquired rights (créances, such as, right to work and social security) by the economic dynamics of the market ends up falling back into historicism, making thus the republican interpretations of human rights even more defensible. The antinomy between rights-freedoms (formal freedoms) and rights-créances (acquired, real freedoms) would be solved through the affirmation of rights qua participation, i.e. political rights of effective participation in power through universal suffrage, assuming the fundamental rights of free opinion, press and association. That is how one returns to the republican solution of the antinomy of human rights through the afirmation of both formal and real freedoms together. Although Bloch and Bourgeois, as well as Renaut and Ferry, refer us Kant's political philosophy, especially to the Kantian distinction between understanding and reason, to the imperative of determinate rules and to the challenge of the regulation of the historical becoming vis a vis the demands of rights socially acquired, these authors seem to overlook the Kantian problematic of the independence of the doctrine of right from both transcendental idealism and moral philosophy. If, as Kersting has convincingly shown, the socalled ―thesis of independence‖ (Unabhängigkeitsthese) attributed to Julius Ebbinghaus, Klaus Reich and Georg Geismann, 10 favors the analytical reading of the principle of right (i.e., that is impossible to be derived from the supreme principle of morality, hence irreducible to the conceptions of universalizability or humanity as an end in itself, as one finds them in the formulations of the categorical imperative), on the other hand, as Pogge argues, the Rechtslehre may as well be developed --and does make sense, following the intent of Kant himself-within a metaphysic of customs, although it can also be taken in a specifically juridical, political sense as a procedural game, according to a constructivist model that has been appropriated and developed 10 Cf. W. Kersting, Wohlgeordnete Freiheit, Berlin: Walter de Gruyter, 1984; 3. Aufl. 2005, p. 37-42; J. Ebbinghaus, Gesammelte Schriften, II: Philosophie der Freiheit, Bonn: Bouvier, 1988. by Rawls, Habermas and others. 11 I think it is instructive to revisit the Hegelian and Marxist critical transformations of Kant's philosophy of right by their philosophy of history so as to effectively fulfill its formal promises, without the utopian presupposita of their philosophical anthropology, in light of the recent discussions on the relevance of the Kantian Rechtslehre for a theory of justice in our century. The philosophical foundations of human rights would be thus rehabilitated by a reconstructive reading of the Kantian articulation between the levels of transcendental argumentation a priori and the normative application towards the promotion of such rights, so as to elucidate the correlation between universalizability and humanity. 5. As shown in the Introdution to his Doctrine of Right, Kant's important differentiation between rights (Rechte, in the plural) and right (Recht, in the singular) reveals the scope of his own definition and task assigned to a Reine Rechtslehre: ―Da aber der Begriff des Rechts als ein reiner, jedoch auf die Praxis (Anwendung auf in der Erfahrung vorkommende Fälle) gestellter Begriff ist, mithin ein metaphysisches System desselben in seiner Eintheilung auch auf die empirische Mannigfaltigkeit jener Fälle Rücksicht nehmen müsste, um die Eintheilung vollständig zu machen (welches zur Errichtung eines Systems der Vernunft eine unerlassliche Forderung ist), Vollständigkeit der Eintheilung des Empirischen aber unmöglich ist, und, wo sie versucht wird (wenigstens um ihr nahe zu kommen), solche Begriffe nicht als integrirende Theile in das System, sondern nur als Beispiele in die Anmerkungen kommen können: so wird der für den ersten Theil der Metaphysik der Sitten allein schickliche Ausdruck sein metaphysische Anfangsgründe der Rechtslehre: weil in Rücksicht auf jene Fälle der Anwendung nur Annäherung zum System, nicht dieses selbst erwartet werden kann.‖(Ak. B. 6, S. 205f./ AB III) And Kant goes on to say, ―Es wird daher hiemit, so wie mit den (früheren) metaphysischen Anfangsgründen der Naturwissenschaft, auch hier gehalten werden: nämlich das Recht, was zum a priori entworfenen System gehört, in den Text, die Rechte aber, welche auf besondere Erfahrungsfälle bezogen werden, in zum Theil weitläuftige Anmerkungen zu bringen: weil sonst das, was hier Metaphysik ist, von dem, was empirische Rechtspraxis ist, nicht wohl unterschieden werden könnte.‖(S. 207) What must be emphasized here is that the subsequent elaboration of the Rechtslehre towards the Tugendlehre takes place against the conceptual background of this contrast between the pure and the empirical, on the one hand, and in light of the Kantian distinction between morality and legality, or between the internal (belonging to the 11 T. Pogge, ―Is Kant's Rechtslehre a Comprehensive Liberalism?,‖ in M. Timmons (ed.) Kant's Metaphysics of Morals: Interpretative Essays. Oxford: Oxford University Press, 2002, p. 133-158. fundamental level of ethics) and the external law-abidingness (which is specifically related to right), on the other. As Willaschek put it, ―because Right is restricted to external actions, no one is juridically required to obey the law out of respect for the law.‖ 12 The analogy of the Universal Principle of Right in the Rechtslehre with the universalizability of the categorical imperative in the GMS can be thus misleading, especially as one takes into account the latter's distinction between a genuine moral action, done out of respect for the law or from duty, ―aus Pflicht,‖ and an action that is simply in conformity with duty, ―pflichtmässig.‖(IV 397f.)And yet, the correlated conceptions of moral worth and humanity as an end in itself seem to corroborate a procedural view of universalizability that can be found in both morality and legality, notably in the very issue of standing for human rights insofar as they can be universalized according to the liberal, Kantian-inspired principle of ―equal liberty.‖ Besides the explicit allusions to such a correlation in the Rechtslehre's conjunction of the homo phaenomenon and the homo noumenon, Kant conceives thus of duties, not only in so far as they are duties, thinking of them as ethical, but also of their legislation being itself outside the scope of ethics, as they comply with the external obligation of the law: pacta sunt servanda. In effect, the very conception of Verbindlichkeit is what ultimately may help us bring together the moral and the legal distinctive, albeit complementary aspects of the Kantian view of humans as rational, reasonable beings whose ―free choice‖ (freie Willkür) ought to be self-determined by pure reason alone in order to be said to be actually ―good,‖ or to qualify the only thing that can be morally good, the will (Wille). As the GMS allows for the contrast between heteronomous and autonomous approaches to the classical view of human nature, Kant's refusal of theological, teleological, and perfectionist conceptions and the task of establishing the supreme principle of morality in autonomy qua freedom points furthermore, as Wood upholds, to an extension of ―the conception of humanity, the capacity for setting ends having objective value, to that of personality, the capacity for giving laws which determine all objective value.‖ 13 As Kersting has shown, just as the Kantian conception of humanity is found in his practical philosophy and not in his anthropology, so the equation of humanity and dignity, already formulated in the GMS, is reinforced in the Tugendlehre (e.g. IV 428f., 433) so as to elucidate the normative function of the oft-misunderstood ideal of personality. In effect, ―Menschheit, Würde und Persönlichkeit stehen in einem engen begrifflichen Verweisungszusammenhang und werden von Kant auch häuftig synonym 12 M. Willaschek, ―Which Imperatives for Right?,‖ in M. Timmons, op. cit., p. 69. 13 A. Wood, Kant's Ethical Thought, Cambridge University Press, 1999, p. 158. gebraucht.‖ 14 Hence in order to arrive at the Kantian definition of an action said to be right ―if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in accordance with a universal law,‖(VI 230) it is not so much the question of derivation which is at stake as the presupposed idea of freedom which turns out to be common to both fields, even if one cannot derive one principle from the other. 15 Hence one must read the formulation of the fundamental principle of right as a normative complement to the Grundformel in the GMS, as ―right and authorization to coercion,‖according to Kant, are supposed to ―mean one and the same thing.‖(VI 232) In effect, the articulation of the so-called Grundformel or Universalisierungsformel and the Zweck-an-sichFormel in the Grundlegung only comes to its full procedural thrust in the Rechtslehre, precisely because of the call for an effective actualization of the third formula (Reich der Zwecke) through the juridical codification and social, political application of their normativity. 16 6. I should like to conclude with an elucidation of this normative view of humanity. Claude Lefort and others have convincingly argued that human rights and democracy are necessary conditions for the appearance of different opinions and for the emergence of pluralist forums of discussion. 17 Although it is not important to thematize here whether human rights should be conceived in a minimalist, more or less explicit catalogue of basic rights, or whether liberal democracy, juridification and the ongoing process of globalization should come under attack for the very sake of the desirable promotion of human rights, I think the procedural thrust of the Kantian correlation between humanity and universalizability comes full circle in this normative view of free, moral persons who are entitled to concrete claims. In order to meet the claims of political, social, and cultural rights, usually identified with first-, second-, and third-generation human rights, it is inevitable that conflicting, substantive conceptions of religious, cultural, and moral values will compete for an equal say, so that whatever is taken for ―human‖ must be worth universalizing, to carry out such a procedure of universalizability. This is precisely why the Kantian equation of worth with human worth means that the only way to assert that something about being human is ultimately priceless, sacred, irreducible to any measure stick, is being human itself, humanity as an end in itself, the only being whose ends are self-posited. Such a 14 W. Kersting, op. cit., p. 203 n. 199. 15 Cf. P. Guyer, ―Kant's Deductions of the Principles of Right,‖ in M. Timmons, p. 23-64. 16 Cf. H.J. Paton, Der kategorische Imperativ, Berlin, 1967. 17 C. Lefort, L'invention démocratique. Paris: Fayard, 1994, p. 31. Cf. O. Höffe, Demokratie im Zeitalter der Globalisierung. München: Beck, 1999. conception of humanity cannot be reduced to any particular religious, moral, philosophical or cultural view, precisely because each one of them must always already presuppose this very irreducibility that makes worth every religious, moral, and cultural expression. Such is indeed the binding formality that explains the correlation between humanity and universalizability in both the GMS and the Rechtslehre, and in full agreement with Kant's conception of freedom in the three Critiques and in his philosophy of religion: human beings are doomed to be free, as it were, insofar as they are not reducible to natural determinism, as they ought to be rational, reasonable beings, bound by the law of freedom. As Ludwig put it, ―a principle of determination that is not a causal principle of nature has to be a formal one.‖ 18 Kant's formal universalism does not exclude the realization of ends and means set by particular communities and traditions, but rather renders them possible. As Heiner Bielefeldt remarks, ―today human rights seems to be the only conceivable way of shaping human existence in such a way as to do justice both to the reality of radical pluralism and multiculturalism and to the necessity of binding the modern state to a societal consensus based on the recognition of human dignity.‖ 19 In the final analysis, as Walter Schweidler has argued, (1) human worth is relational and not a property (Würde ist Verhältnis, keine Eigenschaft), (2) it is a status, not desert (Würde ist ein Status, kein Verdienst), and (3) it is only noticeable as a duty, not as a privilege (Würde ist nur als Verpflichtung, nicht als Privileg wahrnehmbar). Human worth belongs thus to the overall, endless project of becoming truly human, so that its task (Aufgabe) be at once a claim (Forderung) and a fulfillment (Erfüllung). 20 18 B. Ludwig, ―Whence Public Right? The Role of Theoretical and Practical Reasoning in Kant's Doctrine of Right‖ in M. Timmons, op. cit., p. 168. 19 H. Bielefeldt, ―Towards a Cosmopolitan Framework of Freedom: The Contribution of Kantian Universalism to Cross-Cultural Debates on Human Rights,‖ Jahrbuch für Recht und Ethik 5 (1997): 349-362. 20 W. Schweidler, Das Unantastbare. Beiträge zur Philosophie der Menschenrechte. Münster: LIT, 2001, p. 11-19.