10 the Universal Concept of Human Rights as a Regulative Principle: Freedom versus Paternalism

Article excerpt

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Introduction

IN THE BROAD SPECTRUM of the current debates among philosophers, political scientists, and politicians regarding the politics of human rights there are two contrasting approaches. One is represented by the neoconservative and neoliberal concepts, which rely mainly on the "hard power" of force, and justify forcibly "spreading democracy" (including through the unilateral intervention of a superpower) in the name of human rights protection, thus challenging international law. The other approach consists of focusing on the root cause of the problem, emphasizing the "soft power" of diplomacy and cooperation, and strengthening international human rights law and cosmopolitan order. It is represented by the theorists of "discourse ethics," Karl-Otto Apel and Jurgen Habermas, as well as the adherents of "cosmopolitan democracy," such as David Held, Martha Nussbaum, James Bohman, Patrick Hayden, and Jean L. Cohen.

The idea of the democratic West targeting the nondemocratic countries in spreading the "zone of liberal peace" raises concerns among many philosophers. Is the use of force the best means for the solution to the problem of protection and promotion of human rights? Or, conversely, does abstaining from the use of force mean ignoring the human rights violations in our own and other countries? If neither of these views is correct, is it possible to find an alternative approach, which would combine both goals of peace and human rights protection, using only morally acceptable means for these ends? Is it possible to maintain the universalistic principle of sovereign equality alongside human rights principles? How can we combine the values of autonomous political community and human rights?

The conceptual flaw of forcibly "spreading democracy" is the assumption that a democratic state spreads its own sociopolitical system as an alleged universal "model" for and on behalf of the international community. This assumption seems to equate the universal "principles of law" with the legislative autonomy of a democratic state. But is the legislative role of a democracy in the constitution of positive law (by the sovereignty of a people) enough to ground universally valid law, or the validity claim of "human rights" as international law? These interpretations deny the existence of a universal criteria for the evaluation and possible criticism of the democratic states themselves (thus attributing to them self-sufficient infallibility). Moreover, this questions whether there are legitimate grounds for the critical evaluation of any state, including a democratic one, "from the outside," from the perspective of universal law, such as human rights.

In this essay I argue that the universal concept of human rights gives us a regulative principle for a possible critique of any state, including a democratic one. It could serve as a normative yardstick for judgment regarding every actual democratic state. Moreover, the philosophical justification of the universal regulative principle for evaluating these states is vital for progressive political change as well as for the politics of human rights.

I shall analyze the two above-mentioned approaches to the politics of human rights. First, I will critically review the ideas of forcibly "spreading democracy" and its political implementation. I will then examine Kant's concept of human rights as freedom and its ongoing relevance. In the final part of the essay, I will review the development of Kant's ideas by the theorists of "discourse ethics" and of "cosmopolitan democracy." My analysis will confirm that the solution to the problems of securing peace and protecting human rights can be achieved only by peaceful means, based on the rule of law. Its global realization requires strengthened international law and institutions such as a reformed United Nations. The contemporary period is viewed as a transitional phase from an international to a cosmopolitan order. …