"Meanwhile, the Spanish and Portuguese treated all seafarers who entered their sphere of influence as 'piratas' or – which was the same for them – 'corsarios', regardless of whether they carried any sort of official document or not. What for the one was regular seizure was for the other merely piracy. This shows what 'pirate' or 'freebooter' had always been: terms of other-ascription. With all sides permanently accusing each other of piracy while adhering to the legal device of reprisal or marque to justify their own use of violence, all parties accepted that there was a difference between lawful and unlawful forms of appropriation. With the aid of letters of marque and reprisal, this distinction was also transferred to the sea as unity of the difference between right and wrong. The slowly dawning awareness of maritime spaces of hitherto unknown dimensions did nothing to change this. By provided seafarers entering distant worlds with such licences, the legal practices of European waters were extended to maritime regions outside Europe, as well."**173**

How the piracy issue could be instrumentalized in the context of legitimizing the conduct of the opponent is clearly illustrated by England's strategy to use it to *legitimate worldwide jurisdictional claims*. Kempe comments on this variety of the language of international law as a language of justification:

"… The international piracy question pointed to the lack of a superior authority as a fundamental dilemma for legal relations between equal sovereign powers. Even the top English admiralty judges were forced to admit that disputes such as that about the Scottish privateer mentioned could never be decided unequivocally 'because here is no third Power that can give a Law that shall be decisive or binding between two independent Princes'.**174** The international piracy problem thus drew attention to a basic problem concerning legal relations between sovereign power that has remained virulent to this day.

Jenkins used the universality of criminal law pertaining to piracy to advance universal claims for English admiralty jurisdiction. Not only were the immediate coastal waters of the kingdom subject to the sovereignty of the English crown. In order to protect the public peace, the freedom and safety of navigation throughout the world, the king had, by virtue of his 'imperial crown', the authority and right to prosecute piracy and other crimes at sea. This right extended to the remote coasts of the Atlantic, into the hidden nooks of the Mediterranean, and to every part of the

Pacific and every other sea, 'even in the remotest corners of the world'. In keeping with the universality principle, Jenkins admitted, all other nations also had this legal right. As the admiralty judge knew all too well, this meant that international conflicts in dealing with privateering and piracy were pre-programmed. But he also knew that England as a proud sea power could afford to claim such authority in the hope that, with the help of universal piracy law, the English crown could further extend its claims to power and dominion."**175**

## V. Dominion over justificatory narratives as truly hegemonic power

When embarking on our exploration of the language of international law, we had mentioned the phenomenon of "semantic imperialism." Defining it in somewhat modified and simplistic form, we could say the "the hegemon is whoever possesses interpretative authority over justificatory narratives."

Writing about the concept of justificatory narrative, Rainer Forst describes the connection between power and the binding determination of the content of justificatory narratives:

"To have power means to influence, determine, occupy, or even close the space of other subjects' reasons and justifications – and the degree to which this is done is important. It can take place in isolated cases – through a good speech or a deception – but it can also have its place in a societal structure that is based on certain justifications or consolidated justificatory narratives. Accordingly, a justificatory order is always a power order, which says nothing about either the justification or the constellation of power. Justifications can be imposed or freely shared, and there are many modes between these poles. Power thus always unfolds in the communication space, but this does not mean that it is well grounded. It is always discursive in nature, and the struggle for power is the struggle for the possibility of structuring or even controlling the justification resources of others."**176**

Instead of "semantic imperialism" we could also speak of *narrative power* and, as the following quotation suggests, of the *international legal order as a justificatory order:*

"Justificatory narratives unfold normative power to the extent that they throw a certain light on the political and social world; the past, present, and future; on reality and ideals, connecting individuals with a collectivity and forming an accepted justificatory order. This normative power or force says nothing about the normative quality of the justifications proferred and the historical correctness of the narratives; they can also be ideological in nature. But in this case, too, the force of a

175 Kempe (2010) 177–178. 176 Forst (1984) 22–23.

narrative feeds not only on the collective perception of its cogency but on the acceptance of the superordinate principles and values that express the justifications generated. The power of a justificatory narrative arises from its historical exercise of power and its normative acceptance: *power is the ability to bind*."**177**

## C. The history of international relations as a history of juridification

For the past some ninety years, the jurisprudential discipline of international law has been flanked by "international relations"**178** (IR), a subdiscipline of political science. A brief glance at the subject suggests that the history of international relations can be addressed as a history of juridification. This is to our purpose, since we wish to show that the language of law also plays an important role on such eminently political terrain as international relations.

I. Four stages in the juridification of international politics

Martin List and Bernhard Zangl note four *surges in the juridification* of international politics,**179** which are also reflected in developments in the language of law, notably international law.

\* *The first stage: recognition as formally equal legal regimes*

"The modern international system of states was normatively construed in categories of international law as an initially minimal order under public law that, at the latest from the seventeenth century, was to become more than a material power structure. This could be described as the first stage in the juridification of the modern system of states – initially limited to Europe. This legal order is more than a mere fact of power because states *recognize* one another as formally equal. This self-description of states as elements in a system of mutual recognition is, as it were, a whole new ball game: the language game of international law."**180**

177 Forst (1984) 24.

#### \* *The second stage: the universalization of international law*

"Naturally, recognition of formal equality is not the same as factual equality. The inferior party ignores factually superior power only at the peril of punishment – in the last resort – of demise. However, willingness to recognize the other is a sovereign decision. Nevertheless, recognition among states still depends decisively on factual power considerations (for instance, on the power actually exercised in a given area). No state is easily admitted to the language game of international law. The universalization of international law, too, followed on the factual increase in the importance of non-European powers and on their formal recognition, lastly in the major round of decolonization in the second half of the twentieth century. The outcome was the division of the world into some 190 sovereign states and thus the universalization of international law under the UN Charter."**181**

#### \* *The third stage: from the law of coexistence to the law of cooperation*

"Among the specific aspects of constituting the modern system of states in the categories of international law was its indispensable relationship with morality. The pretensions of the law to validity ultimately draw on extra-legal, ethical grounds. The *language game of law* has its own rules for determining validity, but the law as a whole lives not only from this formal validity – legality – decided by its own rules, but by reference to ultimately extra-legal legitimacy. Of course, the *outdifferentiation of law as a language game of its own* concomitant with modernity should not be ignored. Legal argument is a different exercise from arguing in ethical-moral terms. And law, including valid international law is not in every specific case ethically correct. Law, notably international law, tends rather to react to the plurality of diverging values shaped by morality and religion by providing rules for coexistence, which can be converted only very cautiously and slowly into rules of cooperation on the basis of common interests, and, even more prudently, on the basis of common values."**182**

#### \* *The fourth stage: institutional consolidation of juridification processes*

"The impressive proliferation of international agreements alone would scarcely justify speaking of a fourth stage of international juridification. Current literature – in both jurisprudence and political science – on international juridification processes therefore focuses not so much on the quantitative increase in international treaties and the legal norms they lay down: it tends rather to stress the qualitative developments that have occurred since the 1980s. These new developments can be understood as a fourth stage on international juridification. They are marked by the *institutional intensification of the juridification process*, which supports the *language game of international law* through appropriate procedures.

According to the literature, current developments therefore consist less in international law producing new substantive (primary) rules than in setting new sorts of procedural (secondary) rules. The international law infrastructure has accordingly advanced considerably through agreed procedures for making, implementing, applying, and enforcing law."**183**

## II. From war and peace to cooperation on questions of political order

Under this heading, Nicole Deitelhoff and Michael Zürn in their recent "Textbook on International Relations"**184** address the development of theories of international relations as a sequence of three paradigms:

"The beginnings of the IR Galaxy were … superimposed by the question of war and peace and by the question of how wars can be prevented. These questions drive all 'paradigms' in the sense of IR theory. Ultimately, a changing world political situation cancelled out the *peace paradigm,* and specific theoretical problems were supplanted by a cooperation paradigm addressing addressed the conditions under which states cooperate, what it involves, and what the consequences are … The cooperation paradigm finally weakened as – in the view of scholars – anarchy became less pronounced in the international system. An essential condition for this was the enormous institutional dynamic that developed after the end of confrontation between the blocs. Already since the 1980s, the intensity of exchanges between societies had increased and with it the pressure of problems, requiring more and different international institutions. Not only has the number of international institutions risen tremendously since the 1990s; their form has also changed. They have intervened more and more drastically in national societies, also without the direct consent of the states involved. With these changes, the cooperative approaches, which had concentrated primarily on the act of cooperation, had less and less weight. Instead, a systemic perspective came to the fore that analysed the interplay between particular regulatory arrangements and institutions in terms of *global governance*. This placed the international system as political order centre stage, focusing on the structure of this order, on authority, and on rule, as well as resistance … The *order paradigm*, as Google Ngram Viewer data show, has been the dominant paradigm for some time in the German-speaking IR galaxy, but this development is also apparent in the English-speaking galaxy, which, owing to the predominance of the USA in world politics, has traditionally focused strongly on realistic theories."**185**

This sequence of three paradigms – the peace paradigm, the cooperation paradigm, and the order paradigm – can be read not only as a sequence of bodies of theory but also as a *sequence of growing juridification* in international politics. From this point of view, the so-called cooperation paradigm is merely an abbreviation for *cooperative structures* needed to realize cooperative gains, that is to say, the necessary provision of – as governance studies puts it – appropriate *regulatory structures* and *regulatory regimes*. **186** And the *order paradigm*, which Nicole Deitelhoff and Michael Zürn rightly translate by "global governance," is clearly a paradigm to be expressed in the language of law.

This is apparent if one takes a somewhat closer look at what is really meant by "*global governance*." Like the present author,**187** Deitelhoff and Zürn understand governance not as a primarily normative concept in the sense of "good global governance" but as an "analytical construct that encompasses the overall arrangement of different forms of control at various levels of decision-making."**188** As the passage points out, it is about *regulatory arrangements* of all sorts – a particularly useful insight for anyone like ourselves who propagates an understanding of jurisprudence as a *science of regulation*: **189**

"Governance in this second sense means the totality of collective *regulatory arrangements* addressing a particular problem or a particular societal state of affairs, and which are justified by reference to the collective interests of the group affected. Thus 'governance' refers not to isolated rules, such as the imposition of customs duties but to the *sum of rules* pertaining to a matter, such as international trade policy, and their interaction. It covers both the *content of regulation* and the norms that determine the coming into being and enforcement of the regulatory content. The *problems and matters concerned* – the second element of the definition – can be, for example climate issues, trade relations, financial relations, or human rights. But they could also be *collisions between such regulatory arrangements* or questions of *secondary rules*."**190**

Interestingly, however, this analytic approach, too – which we consider to be the right one – cannot quite manage without *normative grounding*: global

governance, as the following passage shows, speaks not only in the language of analytical analysis but also in the *language of justification*;

"Third, we can speak of governance only if the actors involved assert that it is their *intention* to promote the *common interest of a collectivity* or, even more strongly, the *common good of society*. The postulated goal must therefore be to deal with a societal problem through regulation. What is explicitly at issue is the *justification* of action, not necessarily the actual motivation behind it. Global governance as an overall arrangement accordingly includes all rules for the regulation of societal relations whose *justification* is oriented on fundamental social values and which have transnational effects, regardless of whether such rules achieve or block attainment of the postulated goals, and quite regardless of whether they are hierarchically organized or have arisen in a context without a superior, central authority."**191**

We bring this section to an end with a passage in which our authors point once again to the lasting dynamics in the development of global governance structures, identifying five stages or levels of international politics that clearly cannot be described without recourse to the *regulation concept*.

"Apart from quantitative growth and spread, the second measure of dynamism is a new quality of international and transnational institutions establishing authority through all stages of political developments. In political science, the stages of political development are often described in terms of the political cycle model. In simple terms, five stages can be distinguished at the international level: making decisions on rules – supervising compliance with them – arbitrating disputes on compliance – enforcing rules – assessing results and thus setting agendas."**192**

191 Deitelhoff / Zürn (2016) 205.

192 Deitelhoff / Zürn (2016) 211.

## Chapter Three The Language of Human Rights as a Language of Politics

#### A. Human rights as the political creed of modernity

No-one will deny that there are many facets to the idea of human rights.**193** This idea, however, has, above all, been one thing: a *political project* seeking in all historical contexts to change the world. The language of human rights is primarily a *language of political change*. **194**

We call three authors to the witness box to testify on the *symbiotic relationship between law and politics* conveyed by the concept of human rights. The first is Ben Golder. He describes human rights as grounding and restricting politics, as *the political credo of modernity*: "Human rights in this very familiar guise represent the preeminent universalist political credo of late modernity: idealist, foundationalist, metaphysical, irreducible to calculation. Indeed to call them a political credo is not quite to do them justice – human rights, according to this reckoning, are both pre- and supra-political, providing the moral foundation and limits to politics itself."**195**

Our second witness is Makau Wa Mutua, who, writing about the symbiotic relationship between politics and human rights, rightly points out that we are well advised not to take the often unpolitical rhetoric of many human rights actors at face value: "Since the Second World War, international human rights law has become one of the most pre-eminent doctrines of our time. Diverse groups from sexual minorities to environmentalists now invoke the *power of human rights language*. But this universal reliance on the language of human rights has failed to create agreement on the scope and content of the human rights corpus. Debates rage over its cultural relevance, ideological and political orientation, and thematic incompleteness. What these debates obscure is the fact that *the human rights corpus is a political ideology,* although its major authors present it as non-ideological."**196**

The third author is Samuel Moyn, who begins his impressive book on the history of human rights as follows:

193 See the overview in Mutua (2000).

194 On the political history of ideas in a "language of political change" see the introduction to this book, 1–31.

195 Golder (2016) 684–685.

196 Mutua (2000) 149.

*"When people hear the phrase 'human rights', they think of the highest moral precepts and political ideals*. And they are right to do so. They have in mind a familiar set of indispensable liberal freedoms, and sometimes more expansive principles of social protection. But they also mean something more. *The phrase implies an agenda for improving the world*, and bringing about a new one in which the dignity of each individual will enjoy secure international protection. *It is a recognizably utopian program*: for the political standards it champions and the emotional passion it inspires, this program draws on the image of a place that has not yet been called into being. It promises to penetrate the impregnability of state borders, slowly replacing them with the authority of international law. It prides itself on offering victims the world over the possibility of a better life. It pledges to do so by working in alliance with states when possible, but naming and shaming them when they violate the most basic norms. Human rights in this sense have come to define the most elevated aspirations of both social movements and political entities – state and interstate. They evoke hope *and provoke action*."**197**

This passage stresses what is characteristic of the *human rights project*: first, it is a *utopian project* that goes beyond "pure" politics, calling to mind a favourite book, Ernst Bloch's "The Principle of Hope."**198** Second, it is a *genuinely political project* because inspired by the will "to improve the world." And, third, it is consequently a *project intended to be realized*, driven by a dynamic almost impossible to check, which is accordingly a thorn in the flesh of politics.

In the realm of administrative organizational law, some organizations or institutional arrangements are often found to be at home in two normative worlds, private law (most frequently) and public law. In the age of the "cooperative state" and "private-public partnerships,"**199** there is hence a trend towards *hybridizing administrative structures*, **200** which has led to the creation of hybrid types of organization, half enterprise, half public author-

197 Moyn (2012) 1.

198 Bloch (1959).

ity.**201** A prime example in Germany is the defunct "Treuhandanstalt" – the federal trustee agency that administered the property of the former German Democratic Republic – for historical reasons a cross between government agency and liquidation management – which led a life between different jurisdictions: company law (in its capacity as "controlling enterprise") and public law (as "Anstalt des öffentlichen Rechts – "institution under public law").**202** But human rights are not about life in various jurisdictions but about life in various normative worlds. With the aid of three authors we cast a brief glance at this special situatedness of the human rights project. Writing about modern human rights as a task for Christians and Muslims, Heiner Bielefeldt rightly places the human-rights understanding of freedom at the "*focus of ethics, politics, and law*":

"However wrong it would be to monopolize human rights as a simple progress ideology of the modern age, it would be just as wrong and one-sided to treat it only as a sort of emergency brake against a general 'decline narrative' of modernity. In modern crises of traditional, ethical consensus grounded directly in religion and of traditional legal institutions, a new conceptualization of freedom has asserted itself. With hitherto unheard of conviction, the moral subject position of the human being, his / her responsibility and self-determinacy has been made the *focus of ethics, politics, and law*. This modern view of freedom has also become definitive for human rights. Human rights differ from premodern conceptions of law essentially in their pursuit of *politico-legal* recognition for equal freedom and participation for the individual. The guiding human-rights principle of equal, solidary freedom finds exemplary expression in Article I of the Universal Declaration of Human Rights: 'All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.'"**203**

In similar vein, our second author Winfried Brugger has this to say about the position of human rights between morality, law, and politics under the heading "*positivity and suprapositivity of human rights*":

"The demands of human rights express protest against conditions and modes of action that those affected regard as political and social oppression. The acts criticized can often be attributed to state-made laws and regulations adopted by political

201 On this phenomenon of hybrid organizational forms in the modern administrative state, see Schuppert, G. F. (2000), recital 120 ff.

202 See my contribution to "Treuhandanstalt": Schuppert, G. F. (1992).

203 Bielefeldt (1996).

majorities or dominant minorities. Nor can it be excluded that political power holders have acted in line with prevailing social morality.**204** For minorities who feel they are oppressed, this means that, if their situation cannot be improved within the framework of the social and political system, they will have to assert and justify their demands for justice at levels of argument that go beyond *enacted and enforced law* and prevailing positive social morality. The demands of human rights operate at this level. Human rights claim to be 'law of the law', 'higher', 'pre-state', 'natural' law of the individual or humanity as such, a normative yardstick against which extant positive law is to be measured. Such higher law can clearly not be validated by state legislation or by social acceptance: its validity needs to be derived from bodies of norms of *enlightened, critical morality*."**205**

If human rights are grounded above all in enlightened, critical morality, this does not mean that they are not part and parcel of the world of law and politics. As far as the world of law is concerned, Brugger**206** comments:

"[Human rights] always have a *tendency towards juridification*. The champions of human rights want to see them incorporated into the existing legal system (or if this is not possible into a new legal system) and integrated under constitutional law so that political rule can be transformed from a coercive system into a true 'Rechts-Ordnung' – a true order of law and rights.**207** As the 'basis of freedom, justice, and

peace in the world' human rights are intended to prevent injustice, so that people are not obliged to rise against tyranny and oppression as the last resort."**208**

As far as belonging to the world of politics is concerned, Bruggers shows that it is ultimately impossible to make a fine distinction between morality, law, and politics in the field of human rights. They are inseparably interwoven:

"There is … no *naive anti-politics attitude* underlying the human rights issue. Human rights thinking recognizes that political disputation is justified and necessary not only between competing interests but also between different conceptions of justice. It is not by chance that the guarantee of democratic participatory rights is a vital line of development in the history of human rights. However, human rights thinking also posits limiting the legitimation of political decision-making through state authority, even by majority decision. Political decisions can find greater or less acceptance, generating different degrees of consensus and dissent. From the perspective of basic and human rights, this produces an important substantive and ultimately institutional distinction: decisions are made in every polity that the parties affected, whether they agree with them or not, can no longer accept as having been reached in keeping with the relevant criteria for justice and legitimacy but must consider *unacceptable, unjust, and arbitrary*. There would then be no more *contentious legal cases* that could be sufficiently legitimated by majority decision. Prima facie they would them be indisputable cases of injustice, to be prevented wherever possible. To dispel any suspicion of a violation of justice, political (and in the given case, democratic) legitimation is then not enough. To secure justice and realize the common good in such cases, political power would have to be subject to substantive limitation through suitable precautions and more thoroughgoing examination of the public interests driving state intervention, above all the separation of powers, the entrenchment of fundamental rights, and their safeguarding by constitutional courts."**209**

Our third author in Wolfgang Schluchter, who shall have the last word on the subject:

"The legal principles of human rights *bridge the gap* between the ethic of responsibility and positive law. … They are a 'component' of both ethics and law. … From the point of view of ethics, they are legal to the extent that they mean an institutional guarantee; and from the perspective of law they are ethical to the extent that they are inalienable and therefore vested with supra-empirical dignity …".**210**

Independence on 1776, which enumerates and deplores the "long train of abuses and usurpations," the "absolute despotism," and the "absolute tyranny" of the Crown.

As interim appraisal we offer an observation and two conclusions. The *observation* is concerned with the parallelism of the human rights concept and notions about justice and the common good. The duty of all state power to further the common good is – as we have seen in the case of human rights – both supra-positive guiding principle and legal concept,**211** as Bardo Fassbender shows:

"The notions of 'common good', 'common weal', 'public interest', and 'public spirit' born in antiquity have in modern times become politico-social guiding concepts – precisely by virtue of their substantive vagueness, their shifting meaning, the changes in their orientational function, and finally because of the various political options associated with them'.**212** Over the past two decades, the conceptuality of the common good has gained new momentum in political theory and social philosophy – against the backdrop of the state losing its long defended monopoly as guardian, interpreter, and enforcement agent of the common good, while a pronounced societal pluralism has made agreement increasingly difficult on a universally binding, substantive exposition of the common good as identity-forming definition of the characteristics of the 'polity'. … The common good is also a legal concept. Peter Häberle has even spoken of 'jurisprudence as a science of the common good'.**213** … In the legal order of the Federal Republic of Germany, the 'common good' or 'public interest' serve to justify authority under public law and – limiting fundamental rights and imposing obligations – as legal title and basic rule for resolving disputes where interests collide (principally in relations between the individual and the state, but also between different statutory bodies)."**214**

The first conclusion is that the human rights project would not be beneficial were the triad of morality, law, and politics to be dissolved, leaving only one of the three to carry the load. This could be a real danger if reliance were to be placed solely on *juridification of the human rights idea*, **215** virtually "filing it away." Without constant input from morality and ethics it would not only lose its *bridging function*: the language of human rights would surely lose its

force as a "language of political change." If this is the case, our second conclusion must be that the *language of human rights has to be a multilingual language*, which can enter the debate on the good and just order of a society as a language of morality, law, and politics. Only then can the human rights project successfully *bridge* ethics, law and politics.

## II. The standard-setting force of human rights

In the face of unacceptable rules of positive law, as Winfried Brugger has shown, "an opposing 'higher', 'pre-state', 'natural' law of the individual or humanity as such" is needed as a "*normative yardstick*."**216** The search for such a supra-positive standard is particularly incontestable when – as under the Nazi regime – "unacceptable laws" claimed validity as positive state-made law and were accordingly implemented, or should one rather say "executed." In the Federal Republic of Germany, this search for touchstones in coming to terms with Nazi injustice after the Second World War led to a renaissance of natural law. Under the heading "Natural Law or Legal Positivism,"**217** a collection of essays edited by Werner Maihofer addresses the subject.**218** But this natural law renaissance was short-lived, producing a subjective "criterion gap" in the country, which not only encouraged receptiveness towards human rights but also resulted in their being incorporated in the constitution, the "Basic Law."

As Samuel Moyn has described at length,**219** the triumphant progress of human rights as normative yardstick began with the "Universal Declaration of Human Rights" in 1948 – slowly at first, but picking up speed from the 1970s. Every form of political rule in the world was now inexorably measured against the yardstick of human rights. We can therefore speak of the standard-setting force of human rights.

Dieter Gosewinkel has discussed this standard-setting force of the language of human rights in a recent publication on citizenship in Europe in

the twentieth and twenty-first centuries.**220** He notes the "breakthrough of a political movement for human rights," also substantially borne by international organizations such as the "International Labour Organization" (ILO):

"The instrumentalization of human rights in the turmoil of the Cold War and their violation in the state-building process in decolonized regions did not prevent the new universal legal standards from attaining independent status as an effective global measure of equality and justice, and in the 1950s and 1960s, to win a great deal of support in Europe, notably on the anti-imperialist left. This involved highly heterogeneous motives and tendencies. For example, the protest of the European and American left against the Vietnam War and the Russell Tribunals of the 1960s cited the violations of human rights laid down in international treaties and codifications. The cultural upheaval, symbolized as international event by 1968, brought forth new social movements. They justified their demands, more radical than those of the established movements, on grounds of new human rights standards, whose universalism was above state-made law and, so to speak, put this law under 'topdown' political pressure for change."**221**

He has this to say on the rise of human rights as *guiding political idea* in the United States of the 1970s:

"All these phenomena, which in the late sixties and early seventies consolidated into an international human rights discourse and a global politics of human rights, displayed strong differences – up to and including manifest contradictions – with respect to strength, motivation, and geographical orientation. But they also shared characteristics that proved decisive for the rise of human rights politics in the decades that followed: evocation of legal standards that ranked both legally and morally above the state and put pressure on the state, *the claim of global validity for these standards* and the transnational organization of the enforcement of humanrights norms."**222**

In Europe, too, human rights unfolded their full force only in the seventies:

"However, it was only in the 1970s that they became an effective political weapon in Europe in the struggle for individual rights, which gradually began to change political systems themselves. This had been preceded by two United Nations human rights covenants concluded in 1966 on civil and political rights and on economic, social and cultural rights. The Soviet Union had joined in 1973 and Poland in 1977. But the *political dynamite* developed only in the mid-1970s through a particular constellation in which an intergovernmental agreement on human rights standards had been taken up by civil-society groupings and used effectively in opposing their own governments. In Helsinki in 1975, the Conference for Security and Coopera-

220 Gosewinkel (2016).

tion (CSCE) concluded an agreement between 35 European countries with a highly contested agreement on human rights at its heart."**223**

Taking the example of Poland, Gosewinkel discusses the impact of the "Helsinki effect" on political practice:

"When – after the opposition movement had invoked the constitution – the Polish government in 1976 envisaged an amendment to confirm the 'unwavering and fraternal ties with the Soviet Union', the dissident movement, which was rapidly winning support in society,veered to international law: it now argued that every constitutional amendment should be in keeping with the CSCE agreement. The opposition to the communist regime had thus established *a new legal hierarchy*: national guarantees of civil rights in the constitutions of socialist countries had to meet the international standard of human rights and were subject to corresponding scrutiny."**224**

So much on the standard-setting force of human rights.

Writing about "visions seen"**225** in his history of human rights, Lauren describes the idea of human rights as one of the most influential visions of our time:

"Among all … visions, perhaps none have had impact across the globe more profound than those of international human rights advocates. Thoughtful and insightful visionaries in many different times and diverse locations have seen in their mind's eye a world in which all people might enjoy certain basic and inherent rights simply by virtue of being human. They have viewed these rights or fundamental claims by persons to obtain just treatment as stemming from nature itself and thus inherited by all men, women, and children on earth as members born into the same human family entitled to be accorded worth and dignity. Moreover, with this premise they have envisioned a world without borders or other distinctions that divide people from one another in gender, race, caste or class, religion, political belief, ethnicity, or nationality. Such visions of human rights have contributed to the long struggle for the worth and dignity of the human person throughout history. More recently, they have heavily shaped the entire discussion about the meaning of

modern politics and society around the world, and in the process provided perhaps the most revolutionary concept of our own time."**226**

However, changing the world requires not only visions but also a *type of actor* that Lauren call a *visionary*:

"The evolution of international human rights, … has required in the first instance *people serving as visionaries*. There must be thoughtful men and women not only capable of imagining possibilities beyond existing experience themselves, but also of conveying these visions to others.They may do this through their teachings, as in the messages of the prophets Isaiah and Muhammed, the parables of Jesus, the instructions of Kong Qiu, or the lessons of Siddhartha Gautama and Chaitanya. They may achieve this through other forms of communication that infuse dreams such as the speeches of Cicero or Franklin Roosevelt, the poetry of Sultan Farrukh Hablul Matin or Ziya Gokalp, the letters of Abigail Adams, *the manifestos of Karl Marx*, the journals of Hideko Fukuda, the pamphlets of H. G. Wells, the decisions of the judges presiding over the International Military Tribunal at Nuremberg, the encyclicals of Pope John XXIII, or the songs of the civil rights movement such as 'We Shall Overcome'. These visionaries may transmit their ideas to others by means of lengthy treatises such as the published writings of Bartholomé de Las Casas, John Locke, Mary Wollstonecraft, or Kang Youwei. Or, they may convey visions through *resolutions or proclamations* such as the Universal Declaration of Human Rights."**227**

Interesting in this passage is not only the list of visionaries from Muhammad to Pope John XXIII but also the catalogue of media visionaries have used to spread their message, with particular stress on "*manifestos, resolutions and proclamations*." The *declaration* could be described as a specific form of the language of human rights, if not *the* specific form of this language.

Paul Gordon Lauren sees a third necessary element apart from visions and visionaries as "conditions for change": "events of consequence",**228** by which he means historical events generally described as revolutions: "One of the reasons why these cause-and-effect relationships occur is that events such as revolutions and wars destroy existing structures of authority, privilege, and vested interests, thus making change possible. Violence and upheaval – whether they occur in Europa, North America, Latin America, Asia, Africa, the Middle East, or islands of the Pacific – result in a transformation of established institutions of control."**229**

So much for the first narrative.

In this chapter we have already made acquaintance with Lynn Hunt's "Inventing Human Rights"**230** when explaining human rights not only as a reaction to the experience of injustice but also as a consequence of people's growing awareness of their own autonomy. Hunt points out that autonomy and empathy belong together, and that it is empathy that comes into play when reading novels; not just any sort, but the "epistolary novels" so popular in the eighteenth century. This literary genre invited the reader, especially the female reader, to identify with the correspondents and to share their joys and sorrows:

"Novels made the point that all people are fundamentally similar because of their inner feelings, and many novels showcased in particular the desire for autonomy. In this way, *reading novels created a sense of equality and empathy* through passionate involvement in the narrative. Can it be coincidental that the three greatest novels of psychological identification of the eighteenth century – Richardson's *Pamela* (1740) and *Clarissa* (1747–48) and Rousseau's *Julie* (17619 – were all published in the period that immediately preceded the appearance of the concept of 'the rights of man'?"**231**

Hunt's argument is convincing. Our brief look at the history of globalization as communication history has shown, more or less in passing, that the eighteenth century was the century of correspondence,**232** not primarily business correspondence, but that between people with ties of friendship who used letters as a medium for the free expression of feelings and sensibility:

"The eighteenth century was the golden age of friendship and therefore it was the golden age of the letter. The enthusiasm of friendship could be given free and uninhibited expression in letters; the letter could be called 'the bulletin of sensibility and friendship'; lively correspondence was the criterion of friendship. … The craving for friendship necessarily entailed a craving for letters. 'Let us rather exchange amicable letters', Luise Gottsched wrote to a friend. 'This is and remains our most delightful occupation for as long as we must be apart'. To write to friends was 'the most agreeable, enjoyable occupation' and one knew no greater 'pleasure' than to receive letters from friends. With what jubilation they are greeted! They are awaited

'like the Messiah! With what yearning they are awaited! – 'I languish, my dearest friend', wrote Nicolai to Merck, 'for a letter from you'."**233**

If letters were thus the form of expression for feelings and sensibility, the epistolary novel, according to Lynn Hunt, was the appropriate medium for engendering awareness of one's own *interiority*, communicable to others.

"By its very form, then, the epistolary novel was able to demonstrate that selfhood depended on qualities of 'interiority' (having an inner core), for the characters express their inner feelings in their letters. In addition, the epistolary novel showed that all selves had this interiority (many of the characters write), and consequently *that all selves were in some sense equal because all were alike in their possession of interiority*. The exchange of letters turns the servant girl Pamela, for example, into a model of proud autonomy and individuality rather than a stereotype of the downtrodden. Like Pamela, Clarissa and Julie come to stand for individuality itself. Readers become more aware of their own and every other individual's capacity for interiority."**234**

### 2. Declaring rights

Just as letters and novels in epistolary form were the appropriate medium in the eighteenth century for gaining awareness of one's own personality, "declarations" seemed to be the obvious medium for communicating that one had become aware of one's own rights, of rights rooted in one's own person. This was the case with the declaration of the American colonies in which they expressed their political will to free themselves from the British Crown in the language of a "declaration of rights":

"The events of 1774–76 thus temporarily fused particularistic and universalistic thinking about rights in the insurgent colonies. In response to Great Britain, the colonists could cite their already existing rights as British subjects and at the same time claim the universal right as equal men. Yet, since the latter in effect abrogated the former, as the Americans moved more decisively toward independence *they felt the need to declare their rights as part of the transition from a state of nature back into civil government* – or from a state of subjection to George III forward into a new republican polity. Universalistic rights would never have been declared in the American colonies without the revolutionary moment created by the resistance to British authority. Although everyone did not agree on the importance of declaring rights

or on the content of the rights to be declared, *independence opened the door to the declaration of rights*."**235**

This "*rights talk*", as Lynn Hunt calls it, spread like an epidemic: "Despite its critics, rights talk was gathering momentum after the 1760s. 'Natural rights', now supplemented by 'the rights of mankind', 'the rights of humanity', and 'the rights of man', became common currency. Its political potential vastly enhanced by the American conflicts of the 1760s and 1770s, talk of universal rights shifted back across the Atlantic to Great Britain, the Dutch Republic, and France."**236**

The most important destination of this "travelling rights talk" was naturally France, where the "language of rights" finally imposed itself:

"The American precedents became all the more compelling as the French entered a state of constitutional emergency. In 1788, facing a bankruptcy caused in large measure by French participation in the American War of Independence, Louis XVI agreed to convoke the Estates-General, which had last met in 1614. As elections of delegates began, declaratory rumbles could already be heard. In January 1789, Jefferson's friend Lafayette prepared a draft declaration and in the weeks that followed Condorcet quietly formulated his own. The king had asked the clergy (the Frist Estate), the nobles (the Second Estate), and ordinary people (the Third Estate) not only to elect delegates but also to write up lists of their grievances. A number of the lists drawn up in February, March, and April 1798 referred to 'the inalienable rights of man', 'the imprescriptible rights of free men', 'the rights and the dignity of man and the citizen', or 'the rights of enlightened and free men', but 'rights of man' predominated. *The language of rights was now diffusion rapidly in the atmosphere of growing crisis*."**237**

This spreading "language of rights", as Hunt shows, had an internal logic, what we could call a logic of *ongoing expansion*, embracing first religious minorities, then slaves, and finally women, as well. Hunt therefore speaks of the "*bulldozer force of the revolutionary logic of rights*".**238**

235 Hunt (2007) 121–122. 236 Hunt (2007) 125. 237 Hunt (2007) 127–128. 238 Hunt (2007) 160.

188 Part Three

III. The narrative of Samuel Moyn: a political history of the reception of human rights

In "The Last Utopia,"**239** Samuel Moyn presents a quite different narrative from those of Lauren and Hunt. For him the real story of human rights after decades of political insignificance begins with their "explosion" in the 1970s. It is worthwhile considering this story, albeit in much abbreviated form, because it shows what a *key role certain actors* play in the diffusion of ideas, whether we call them in general terms "transfer agents" or specifically "human rights activists." Moyn highlights three such "diffusion agents."

#### \* *Social movements and NGOs*

The role of NGOs in promoting human rights has been described ad nauseam.**240** We limit ourselves to Moyn's comments on the role of social movements:

"*Most of all, social movements adopted human rights as a slogan for the first time*. As the 1970s continued, the identification of such causes as human rights struggles snowballed, continuing across the world throughout the decade (indeed through the present). This serial amplification occurred even as states negotiated the Helsinki Final Act, signed in 1975, that inadvertently provided a new forum for North Atlantic rights activists. And then came 1977, a year of shocking and altogether unpredictable prominence of human rights. One of the most fascinating lessons of the period is how little known were the Universal Declaration and the project of international human rights when it began, and how these earlier 'sources' were discovered only after *the movements that claimed them got going*."**241**

\* *The prominent role of Amnesty International*

Samuel Moyn is clearly fascinated by the pioneering role of Amnesty International (AI). He has this to say about the organization's modus operandi:

"Indeed almost alone, Amnesty International *invented grassroots human rights advocacy*, and through it drove public awareness of human rights generally. Its contribution would reach its highest visibility when it received the Nobel Peace Prize in 1977, the breakthrough year for human rights as a whole, though it began its work years earlier. Unlike the earlier NGOs that invoked human rights occasionally or often, AI opened itself to mass participation through its framework of local chap-

239 Moyn (2012).

ters, each acting in support of specific, personalized victims of persecution. And unlike the earliest human rights groups, it did not take the UN to be the primary locale of advocacy. Skirting the reform of international governance, it sought a direct and public connection with suffering, through lighting candles in a show of solidarity and writing letters to governments pleading for mercy and release. These practical innovations depended in equal parts on a brilliant reading of the fortunes of idealism in the postwar world and a *profound understanding of the importance of symbolic gestures*."**242**

One particularly successful method employed by Amnesty International has been the collection and dissemination of information about unacceptable conditions and practices:

"Amnesty International's novel methods of information gathering went in the 1970s far beyond its original methods of forming adoption groups to write pleas for individual release. And these methods were also critical to how it came to be (and, soon enough, were copied by other organizations). Even before the very early translation of dissident texts provided by AI's London-based research bureau, the organization had begun to focus its attention on torture in the later 1960s. It pioneered the gathering of information about depredations under Greek military rule from 1967–1974. Providentially, in 1972 the organization opened a Campaign against Torture, published a global analysis of the problem, and initiated a petition drive (the first signatory being Joan Baez, who opened it at an April 1973 concert). Seán MacBride, for his contribution to the campaign, won the Nobel Peace Prize in 1974, thereby raising the profile of human rights and broadcasting the very idea that social movements could coalesce around them. After the political coups in Chile and Uruguay, Amnesty International and other NGOs were active in gathering information and raising consciousness about infractions in those two countries. The information they gathered was spread most notably at the United Nations and in Washington, D.C., where AI opened an office in 1976. Such activities prompted some of the first analyses of AI's campaigns for wider publics, both in the academy and at large."**243**

#### \* *Jimmy Carter Superstar*

Samuel Moyn identifies President Jimmy Carter as an absolute star in the popularization of the human rights idea. "Coming out of nowhere," he was the right man with his deep-rooted morality in the right place and at the right time to spread the message of human rights: "In the right place at the

242 Moyn (2012) 129–130. 243 Moyn (2012) 147–148. right time, Carter moved 'human rights' from grassroot mobilization to the center of global rhetoric."**244**

Jimmy Carter's inaugural address on 20 January 1977, which focused on commitment to the message of human rights, dramatically enhanced the standing of the human rights idea. This is particularly worth noting, because, as the phenomenon of American "civil religion" shows,**245** each newly elected president of the United States quite deliberately takes the opportunity of the inaugural address to stress the unity of the profoundly American civil religion and the policy he intends to pursue. Jimmy Carter did just this:

"The year of human rights, 1977, began with Carter's January 20 inauguration, which put 'human rights' in front of the viewing public for the first time in American history. This year of breakthrough would culminate in Amnesty International's receipt of the Nobel Peace Prize on December 10. Carter's inaugural address on January 20 made 'human rights' a publicly acknowledged buzzword. 'Because we are free we can never be indifferent to the fate of freedom elsewhere', Carter announced on the Capitol steps. 'Our commitment to human rights must be absolute'. The symbolic novelty and resonance of the phrase in Carter's policy is what mattered most of all, since he embedded it for the first time in popular consciousness and ordinary language. Arthur Schlesinger, Jr. once called on the 'future historian' to 'trace the internal discussions … that culminated in the striking words of the inaugural address'. No one, however, yet knows exactly how they got there. But soon after, the term was being interpreted as 'almost a theological point for Carter. He can't stamp out sin, but he keeps on praying'."**246**

But that was not all: in a speech at a ceremony at Notre Dame University, Jimmy Carter even declared human rights to be the *basis for the future foreign policy of the United States*:

"But by spring, Carter gave a programmatic address at Notre Dame's commencement, laying out a full-scale foreign policy philosophy based on human rights, while Secretary of State Cyrus Vance offered some specifics at the University of Georgia Law School. Even as Carter's subordinates 'groped' to define policy, American elites embarked on an extended discussion of human rights, from their historical origins, to their contemporary meaning, to their case-by-case implications. *The issue had become relevant and even 'chic'*, Roberta Cohen, executive director of the International League (who would shortly join the Carter human rights bureau), told the *New York Times*. 'For years we were preachers, cockeyed idealists, or busybodies and now we are respectable. … Everybody wants to get into human rights. That's fine,

244 Moyn (2012) 155.

245 See my little book: Schuppert, G. F. (2012c) 67 ff.

246 Moyn (2012) 155.

but what happens if they get bored?' This upsurge in interest could not compare to that of the 1940s, when even the highest officials did not use the language of human rights (except Winston Churchill once out of office), and internationalists were concerned with the UN alone. In the 1970s, by contrast, popular mobilization and then Carter's interest kicked off a much larger and more public discussion that continues in the present."**247**

So much to the narrative of Samuel Moyn.

## IV. What the three narratives teach us

All three narratives deal with the "big idea" of human rights, an idea that is so influential that Marcus Llanque in his history of political ideas has no hesitation in calling present times the "age of human rights."**248** This idea of human rights has gone through a long juridification process, and now finds expression largely in the *language of law*, to be precise, in the language of law as a *language of politics*. Despite the depressing stories of growing violations of human rights in the most recent Report of Amnesty International,**249** it can be said that the human rights idea has now imposed itself.**250**

This, however, is only one side of the coin. As the book titles "Visions Seen" and "The Last Utopia" suggest, the idea of human rights cannot be fully juridified. It can remain effective only if it keeps its visionary and utopian roots and continues to draw inspiration from them. If these roots are severed with the stamp "dealt with" as in the human rights conventions, the triad of morality, law, and politics would crumble. The human rights idea would lose its specific role as a morally grounded normative yardstick of politics. In attaining the goal of improving the world it would accordingly still be necessary to read novels and declare rights.

As "rights talk" pertinently indicates, the global dissemination of the the human rights idea has always been an ongoing *communication process*. **251** To succeed, talking about rights has always needed more than a globally comprehensible language. As a result, globalization of the human rights message

necessarily poses a permanent translation problem.**252** As far as the problem of a common language is concerned, Samuel Moyn rightly stresses that the language of human rights – which also became the language of dissidence in the Soviet Union and the Eastern Bloc and of resistance against Latin American military dictatorships – could became a a "lingua franca": "It was the decision of a sector of the Latin American left to resist the regional repression in human rights terms that helped make the fortune of the concept in that region and beyond. As in the Soviet Union before, it also mattered that the language proved to be highly coalitional and ecumenical in providing a *lingua franca* for diverse voices."**253** And it is convincing that Moyn so strongly emphasizes the importance of Jimmy Carter as a human rights activist. Not in his role as successfully human rights politician but as a president of the United States who spoke the language of human rights – as "plain language." Marcus Lanque is therefore quite right to regard it as an essential function of human rights to provide a common language spanning cultural boundaries:

"One can really make politics with human rights and not only set political goals.**254** This points to greater potential for interpreting human rights than the assumption of hegemonic liberalism will have us believe. The human rights idea had already embarked on different paths in the Universal Declaration of Human Rights. The declaration is based not only on a liberal-individualistic understanding of law but also takes account of social and political contexts. It was therefore no systemic inconsistency when in the course of decolonization the collective dimension of human rights was more strongly stressed, along with the self-determination of nations, sovereignty over natural resources, and the protection of indigenous peoples. Humanity, too, can be addressed as a subject of rights, rights to collective goods such as biodiversity, nature, water, the sea, and the atmosphere. Human rights thus provide a language at least for conceptualizing basal conflicts across all cultural differences, hence *paving the way to universal communication and cooperation*."**255**

If this is the case, it is only logical to follow Florian Hoffmann**256** in understanding the discursive nature of human rights as the key aspect. Ben Golder summarizes the argument as follows, bringing us back to the parallels with the concept of the common good:

"… for Hoffmann it is precisely this discursive character of human rights (human rights 'talk') that 'secures' their democratic open-endedness and incipient plurality. … Neither the 'objective' discursive meanings of human rights nor their unofficial 'subjective' articulations by individual speakers can ever finally be determined or delimited, and for him the very meaning of human rights only emerges fleetingly and from time to time when different discourses and subjective understandings of human rights encounter, affect and modify each other in 'a dynamic process of mutual feedback loops'. For Hoffmann, this 'pragmatic perspective aims to comprehend human rights discourse, not in terms of what it could be, or ought to be, but in terms of what it arguably is, namely a *plural, polycentric, and ultimately indeterminate discourse* amenable to use by nearly everybody everywhere', which is consequently 'beyond the control of those creating them, and is ultimately uncertain. There is no single correct signification and thus use of human rights'."**257**

In other words, if a global history of ideas and knowledge is to be written, the career of the language of human rights as a "language of rights" and a "language of political change" would be an essential element in the project. This being the case, we conclude this chapter with a glance at the various ways in which the language of human rights has been used in various historical contexts and by various actors.

Writing about human rights between politics and religion, Wolfgang Reinhard reflects on an aspect that naturally captures our attention: the history of ideas and human rights. He posits that there are no free-floating, ready-touse ideas: they are always born and used in *an interest-driven context*:

"Pallas Athene, the combative goddess of wisdom, is believed to have emerged fully armed from the head of Zeus. Thus the Greek myth. Ideas are similarly considered to emerge ready-to-use from the brains of geniuses. Thus the myth espoused by the history of ideas. When demythologized, the process looks more modest and more complex. Often enough, a genius merely formulates a long overdue concept. Although a cultural repository of thought provides the raw material for new ideas, these ideas first have to be formulated as they come into being. Often enough, what is new about them is that they establish and conceptualize hitherto incommunicable, perhaps even inconceivable states of affairs, even though with hindsight we can identify their beginnings and roots in the history of ideas. The new is produced by

257 Golder (2016) 694.

certain interests under certain underlying conditions, often enough by the need *to legitimate* the outcome of a development in a changing or in an unchanged environment."**258**

This need to legitimate certain developments brings us to our next topic.

## II. Two notable contexts of application for the language of human rights

1. The language of human rights as a language of legitimacy

There is no disputing that the protection of human rights is of crucial importance for the *legitimacy of the secular state*. Winfried Brugger:

"Throughout history, the question of [the legitimation of political power] has found a variety of answers. From antiquity until well into the Middle Ages, power relations were mostly based on descent and tradition. This traditional justification of governmental power was flanked by religious justification, which until well into modern times was an essential support for secular and spiritual rule in the Western hemisphere, and in some non-Western cultures such as Islam is still so today. In the modern age, however, a third line of justification for the state has come to the fore, which, from a global point of view, must now be considered dominant. Only a state that respects human rights can count on acceptance by its citizens and describe itself as a state governed by the rule of law.

The 1789 French Declaration of the Rights of Man and the Citizen states this succinctly in Article 2: 'The goal of any political association is the conservation of the natural and imprescriptible rights of man', and in Article 16: 'Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution.'

Developments over the past 200 years can thus be summed up as follows: the justification of the modern state depends essentially (if not exclusively) on respect for human rights."**259**

Although it is not fully clear what finally moved the deputies of the French National Assembly to draft the Declaration of the Rights of Man and of the Citizen, they were obviously aware that the special revolutionary situation called for a fundamentally *different basis for the legitimacy of political power* than in the past:

258 Reinhard (2014) 313. 259 Brugger (1989) 538–539.

"The Assembly finally voted on August 4 to draw up a declaration of rights without duties. No one then or since has adequately explained how opinion finally shifted in favor of drafting such a declaration, in large part because the deputies were so busy confronting day-to-day issues that they did not grasp the larger import of each of their decisions. As a result, their letters and even later memoirs proved tantalizingly vague about the shifting tides of opinion. We do know that the majority had come to believe that an *entirely new groundwork* was required. The rights of man provided the principles for *an alternative vision of government*. As the Americans had before them, the French declared rights as part of a growing rupture with established authority. Deputy Rabaut Saint-Etienne remarked on the parallel on August 18: 'like the Americans, we want to regenerate ourselves, and therefore the declaration of rights is essentially necessary'."**260**

With regard to the function of human rights as *fundamentally new legitimation concept for state power*, Hunt adds:

"In one document, therefore, the French deputies tried to encapsulate both legal protections of individual rights *and a new grounds for governmental legitimacy*. Sovereignty rested exclusively in the nation (Article 3), and 'society' had the right to hold every public agent accountable (Article 15). No mention was made of the king, French tradition, history or custom or the Catholic Church. Rights were declared 'in the presence and under the auspices of the Supreme Being', but however 'sacred', they were not traced back to that supernatural origin. Jefferson had felt the need to assert that all men were 'endowed by their Creator' with rights; the French deduced the rights from the entirely secular sources of nature, reason, and society. During the debates, Mathieu de Montmorency had affirmed that 'the rights of man in society are eternal' and 'no sanction is needed to recognize them'. The *challenge to the old order* in Europe could not have been more forthright."**261**

## 2. The llanguage of human rights as the language of justification

As far as the language of law as a language of justification is concerned, we have become well acquainted with this phenomenon in connection with the language of international law. The language of human rights as – to quote Bardo Fassbender – key element of the common good under international law**262** – is clearly well suited for deployment in political controversies and conflicts, as the following examples show.

260 Hunt (2007) 130. 261 Hunt (2007) 132. 262 Fassbender (2003) 1 ff.

\* *The suitability of the language of human rights as an element in political justificatory rhetoric.*

Samuel Moyn offers numerous examples of this suitability in his book on the history of human rights.**263** The first example concerns justification of the entry of the United States into the Second World War particularly its involvement in the struggle against Nazi Germany. The authoritative grounds were stated by Roosevelt and Churchill in the so-called Atlantic Charter.  *Human rights began first of all as a war slogan, to justify* why the Allies had to be 'now engaged in a common struggle against savage and brutal forces seeking to subjugate the world'. But no one could have said what the slogan implied."**264**

The "justificatory language"**265** of human rights, as our second example shows, proved extremely useful in justifying the founding of the United Nations, for which good reasons had be found in the light of the failure of the League of Nations: "To the extent that [the American internationalists] remained in the negotiations, human rights and other idealistic formulations *reflected a need for public acceptance and legitimacy*, as part of the rhetorical drive to distinguish the organization from prior instances of great power balance. It was a narrow portal to offer morality to enter the world, and a far cry from a utopian multilateralism based on human rights."**266**

Now to the third example: the language of human rights has played a crucial role in the political rhetoric of *anti-communism and anti-totalitarianism.* Samuel Moyn:

"By the later 1930s, however, a dominant understanding began to crystallize in this prewar struggle over the phrase's implications: it came to *be antitotalitarian*, a meaning codified most clearly by the most prominent world figure ever to use the phrase before FDR [Frank Delano Roosevelt, G.F.S.], Pope Pius XI, in largely neglected references dating from 1973. 'Man, as a person', Pius declared in *Mit brennender*

266 Moyn (2012) 59.

*Sorge*, his famous encyclical decrying the fate of religion under the Nazis, 'possesses rights that he holds from God and which must remain, with regard to the collectivity, beyond the reach of anything that would tend to deny them, to abolish them, are to neglect them'. The pope was on his own journey, having discovered only in these years that the 'totalitarian' regimes were hostile to Christianity, after a period of judicious waiting and alliance seeking."**267**

This example is important because, especially after the Second World War, the *Christianization of human rights* was to be observed.**268** Writing about modern human rights as a task for Christians and Muslims, Heiner Bielefeldt**269** describes how, in the light of the success of the human rights idea, both Christianity and Islam have sought to claim this idea for themselves as home grown.

Very prominent was naturally the omnipresent anti-communist thrust of the language of human rights. Samuel Moyn comments:

"Then, by 1947–48 and the crystallization of the Cold War, the West succeeded in capturing the language of human rights for *the crusade against the Soviet Union*; the language's main promoters ended up being conservatives on the European continent. Having failed to carve out a new option in the mid-1940s, human rights proved soon after to be just another way of arguing for one side in the Cold War struggle.**270** … human rights became almost immediately *associated with anticommunism*. Besides an international controversy around discrimination against South Asians in South Africa, the two major *cause célèbres* in which human rights were invoked at the United Nations and in international fora generally were *anticommunist in spirit*. In one, the Soviet Union was criticized on human rights grounds for prohibiting women who were Soviet citizens from migrating to join their foreign husbands abroad; the second, and most visible of all, revolved around the internment and trial of Cardinal József Mindszenty, The Primate of Hungary, in 1948–1949, and related abuses of Christians in Eastern Europe like the house arrest of Cardinal Josef Beran in Czechoslovakia – both campaigns occurring so quickly after the Universal Declaration as to help define its bearing."**271**

\* *The invention of responsibility to protect*

On this prominent *justification*, **272** Andreas Rödder**273** has this to say, under the heading "between human rights imperialism and indifference: responsibility to protect and humanitarian intervention":

"The sovereignty of states and universal human rights have repeatedly been evoked as basis and ideals for the international order, especially after 1990 – and have often been at odds. The concept of *responsibility to protect*, **274** formulated in 2005 by the United Nations and adopted by 192 countries, provided a theoretical loophole. If a state failed to meet its responsibility to protect its population, the protection of people against serious violations of human rights justified armed intervention from outside and against the sovereignty of the state in question."**275**

We now make a sweeping turn to the "dynamics of the rule of law."

	- The R2P Concept

The Responsibility to Protect – known as R2P – refers to the obligation of states toward their populations and toward all populations at risk of genocide and other large-scale atrocities. This new international norm sets forth that:

These principles in a 2011 report of the *International Commission on Intervention and State Sovereignty* and were endorsed by the United Nations General Assembly in the *2005 World Summit Outcome Document* paragraphs 138 and 139.

## Chapter Four The Language of the Rule of Law as an Integral Part of the Language of the Political History of Ideas

In concluding the third part of this book, we examine the role of the language of the rule of law**276** in the history of political ideas. The aim is not to give a detailed description of what are generally considered the elements of the rule of law**277** nor to decline the functions of rule-of-law principles.**278** We have already looked at them briefly under the heading "legal certainty as the "idée directrice" of law"**279** and in connection with the "invention of public office,"**280** so important for the rule of law. Nor will various conceptualizations be weighed up, notably whether a "thinner conception" that addresses the formal virtues of the rule of law is to be preferred over a "thicker conception" that firmly posits human rights as a crucial component thereof.**281** A great deal has been written about all these aspects (not least by the present author) and the state of discussion is relatively easy to access.**282**

Our approach is a different one. Certain key topoi of the political history of ideas are addressed to discover whether and, if so, how intensively these central topics in the history of political ideas have been discussed in the language of the rule of law or – to include the potential of the language of law – could or ought to be discussed.

The first concept to consider is the legitimacy of political authority.

276 Although there are differences between "Rechtsstaatlichkeit" and "rule of law," they do not warrant treatment as separate concepts.

277 See, for example, the treatment of the "essential elements of the rule of law principle" in: Benda (1995); on the components of the "rule of law" see Tamanaha (2007).

A. Legitimate authority: authority based on and limited by law

The legitimacy of authority has always been a central topic in the political history of ideas and philosophy of the state.**283** Under the conditions of globalization and transnationalization, it has experienced an impressive renaissance;**284** Michael Zürn has spoken of the role of *political science as a science of legitimation*. **285** As we have seen in the preceding section on the language of human rights, invoking law and its protection has always been among the most important resources for legitimizing the authority of the state. Jean Bodin took the view that only sovereign power exercised in accordance with the law and limited by the law could claim to differ from the practices of robbers or pirates.**286** Arther Benz is probably right to assert "that limitation of state power by law and constitution is a fundamental precondition for legitimate, state authority."**287** But the relationship between power and the law, as we shall see, is somewhat more complicated.

I. The dialectical relationship between power and law: law as the basis and limitation of power

According to Hermann Heller,**288** law not only limits but also *shapes power*. This "fundamental insight into the power-shaping nature of law" means that the relationship between power and law must be seen as *dialectical*:

"As long as law and the volitional power of the state are addressed without considering dialectical aspects, neither the particularity of law nor that of the state can be properly understood, let alone the relationship between the two. Both the validity and the positivity of law are incomprehensible without correlative mapping of state and law. Law must be recognized as the necessary condition for the modern state, and the state as the necessary condition for modern law. Without the power-shaping character of law, there is neither normative legal validity nor state power; without the law-shaping character of state power there is neither legal positivity nor state. The relationship between state and law is possible neither as undiscriminating unity nor as unbridgeable contrariety.The relationship between law and state is therefore a

dialectical one, namely, a necessary relationship between separate spheres and inclusion of each pole in its opposite (Cohn, Theorie der Dialektik, p. 52 ff., 264 f., 287)."**289**

Marin Kriele describes this dialectical relationship between power and law in similar vein: "Power derives from law, and the law derives from power. The two seemingly exclusive propositions are nevertheless both right. Institutions of the state decide what the law is, but they decide by virtue of competence assigned to them: the organizational norms that decide on the assignment of competence can also be amended, but only by the competent institutions and through the procedures provided for this purpose."**290**

Using a somewhat different terminology, one can speak with Arthur Benz of a *duality of legitimation and limitation*, a relationship that has found its currently valid form in the idea of the *constitutional state*. According to Benz, the modern state developed as a legal order, as an institution that justifies and limits power. This duality of legitimation and limitation was based on the existence of law prescribed for the state,"**291** namely by tradition or religion. Once tradition and religion were no longer able to justify law, the institution "state" logically needed to be reinvented:

"The legal order that constituted the state needed to be derived from sources other than tradition and religion. The history of ideas offers various approaches to solving this problem. What finally made the grade was the concept of the democratic constitutional state in which the tensions between law and state are integrated not abolished."**292**

To sum up, the language of law and its hard core, the rule-of-law principle, could with respect to the state be seen as two languages: a language of justification and a language of limitation. Arthur Benz's conclusion is that these two languages come together in the language of constitutionalism.

289 Heller (1970) 191–192.

290 Kriele (1990) 23.

II. The language of the rule-of-law constitution as a language of rules and procedures

If the relationship between power and law is dialectical, the question is how this relationship actually "works," how this interplay operates. The answer is in principle quite simple: certain *rules* are needed to *organize* these dialectical relations:

"The concept of law … points to specific characteristics of institutions and processes of institutional politics: if the state is institutionalized as a legal order, the political processes that constitute and change this order must also operate in accordance with *rules* and must not be subject to the arbitrariness of individuals or powerful groups. *Democratic processes, too, must obey rules* – by which the multitude of individual wills is transformed into a collective will. This raises the question of what rules apply for the political procedures by which the legal order of the state is established. What legitimates these rules and by what processes are they made and put into effect?"**293**

The task of providing theses indispensable *procedural rules* is given to the *constitution – understood as both institution and process*, and hence to a constitutional language that as language of rules and procedures frames the political process and thus limits it:

"From a formal point of view, the modern state is an institution grounded in law. The law defines the functions and powers of the state, its authority. Assuming office in the state involves a limitation on the exercise of power, of power conferred under the rules of state institutions. Unlike societal organizations, the state is characterized by specific functions and competences: it alone is entitled to set universally valid and binding norms (lawmaking) and to enforce them by coercive means. But this does not vest it with boundless sovereignty. Both the content of the rules and the exercise of force are limited by law.**294** This law goes back to *procedures*, which have in turn to be set and guaranteed by the state. The limitation of power by law therefore also requires power limited by law."**295**

This view of the *state as an institution***296** that operates by defined rules and in defined organizational forms brings us to the next point.

Legal Concepts and Legal Regimes in a Global History of Ideas 203

In his constitutional law theory, which characteristically combines legal and sociological perspectives, Hermann Heller has coined a particularly apt and hence often quoted term to describe the particularity of the institution "state" as the "*organized unity of decision-making and action*".**297**

This definition indicates that such unity does not appear out of the blue: it *has to be organized*. Heller's key concepts are therefore *organization* and *organize*.

He has this to say about the *state as organization*:

"In fact, the entity 'state' exists as a neither 'organic' nor fictitious human actionentity (Wirkungseinheit); it is a special type of organized action-entity. *The law of organization is the most fundamental constitutive law of the state.***298** Its unity is true unity in an operational structure whose existence in the form of human collaboration is enabled by the action of special 'organs' consciously directed towards effective entity formation. Never … does the relative natural or cultural uniformity of the local inhabitants in itself produce the entity state. Ultimately, this is always and only to be understood as the outcome of conscious human action, of conscious entity formation, of *organization*."**299**

Activity intent on building an organization is called *organization*, and can be described as follows:

"*Organizing* is an activity directed towards instigating and realizing such actions (and omissions) as are necessary for the present and constantly regenerated *existence of an*

"*All societal coexistence is ordered coexistence*. *In the merely factual, i. e., rule-driven regularities of societal action, too, societal orders find expression that lend consistency to human coexistence and the possibility of concerted collective collaboration. But it is still a big step from order to organization, from coherent societal conduct to relatively enduring unity of action …*

*Collective action in manifold centres of action is integrated only where the performance of the many is – possibly compulsorily – unified and uniformly put into effect through action consciously directed towards the unity of action. This form of activity concerned with the mode and order of connecting and effectively upgrading performance can be called conscious entity building or organization."*

299 Heller (1970) 230.

*ordered structure for action* (organization). From a phenomenological standpoint there are three mutually exacting 'elements' in every organization: societal action by a number of people in cooperation; whose collaboration 2. is regularly oriented on a rule-driven order, whose setting and safeguarding is in the hands of 3. special institutions. Every group capable of deciding and acting, every collective actionentity is an organized action structure consciously constituted by institutions to achieve unity of decision and effect. The extent to which organized members are themselves also institutions depends on how cooperative or hierarchical the structure of the organization is. At any rate, every extensive organization, notably the state, is always based on the societal division of labour. The action structure we call 'state' has autonomized itself above all by assigning particular governmental functions to *special institutions*."**300**

But the production of a collective capacity for decision-making and action requires not only a certain measure of institutional concentration**301** but also, for purposes of institutional will-formation, certain *procedural rules*. Writing about premodern political procedures, Barbara Stollberg-Rilinger stresses the importance of procedural autonomy for the "*formation of a body politic with a consistent will*":

"To distinguish between and explain various types of procedure, I propose (with reference to Luhmann) procedural autonomy as a criterion. The *need for collective political action* (for instance, warding off external enemies, dealing with public order problems, providing funding, etc.) can call for procedures to be developed that enable collective decision making and conflict management (in the language of early modernity: *procedures for building a body politic with united purpose*). If political procedures are to produce decisions accepted as binding by all those affected, and thus – even without the executive having any or only inadequate means of enforcing them – producing a collective capacity to act, if political procedures are to acquire such authority, they will require, among other things, a degree of structural autonomy from the (estates-based, hierarchical, corporative) environment."**302**

A particularly instructive example of the connection between procedural law and institutionalization are the procedural rules for the election of bishops. On the importance of this for the institution "Church", Andreas Thier remarks in his book on "Hierarchy and Autonomy":**303**

"In late antiquity and the Middle Ages, hierarchical order and then institutional autonomy became the determining characteristics of institutional Church identity. This is particularly apparent with regard to rule-setting for the appointment of bishops. Hierarchical elements grew in importance as did the question of subject matter and reach of the autonomous decision-making powers of those involved. Decisive for these developments was the procedural manner in which bishops were appointed jointly by clergy, laymen, crown province bishops or metropolitans. Elaborated above all in the ecclesiology of Cyprian of Carthage, the notion of ordered procedure became the key guiding principle in conciliar and papal rulesetting. In such transitions from ecclesiological concepts of order to concrete arrangements, enduring regulatory traditions developed, which, especially in the eleventh century, were to gain particular normative authority. As far as media are concerned, the precondition for this tradition formation was the embedding of ecclesiastical legal culture in the written word, notably in Church canon collections. These repositories of Church legal culture ensured that the rules passed down were available. They were to become important for the further development of normative knowledge in the Church."**304**

He later adds:

"The gradual development of rules for filling leading positions in the Church was reflected in the institutional consolidation of the Church from about the first century and in the consequent development of a structure of ecclesiastical offices."**305**

Pausing to take stock, we note that, as far as the state is concerned as decision-making and action entity, two types of law are involved whose importance is often underestimated: *organizational law* and the *law of procedure*. **306** It would be doing injustice to these two varieties of law to see them only from a practical, instrumental point of view, as elements in advanced administrative studies. Organizational and procedural law offer a great deal more. As we have seen, they are *important control parameters* in governmental and administrative action,**307** and thus – in our terminology – two highly important languages of politics. We consider two examples.

307 For a detailed treatment of organizational law, see Schuppert, G. F. (2012b).

306 From the public administration perspective on organization and procedure as control level of administrative action, see Schuppert, G. F. (2000) 544 ff., 772 ff.

The organizational principle of the separation of powers clearly has a fascination for exponents of constitutional law theory. It is treated at length in every "theory of the state", perhaps not least because it offers an opportunity to honour one of the heroes of the political history of ideas, Charles de Secondat Baron de la Brède et de Montesquieu.**308** The "idée directrice" of the separation of powers principle is to *prevent the abuse of power* through an institutional arrangement of mutual constraints**309** constituting a system of "checks and balances."**310** Roman Herzog, for example comments as follows on this broadly accepted understanding of separation of powers theory:

"… Since it first found literary expression in the eighteenth century, separation of powers theory has posited that the institutions of the limited power complex that results from the separation of powers ought not to encounter one another with indifference but *check* one another; i. e., impel each other to exercise power correctly and *restrain one another from abusing power*. If one is not prepared to accept that loyal holders of power do this in violation of the fundamental limits to their responsibilities, it will be necessary to conceive of the separation of powers not as the assignment of responsibilities that leads to hermetic closure but as *a system of mutually overlapping jurisdictions* within which each power is tied to concurrent acts of will by different office holders. Historically, separation of powers theory has consequently never led to clean-cut divisions between different branches of government but always to a more or less stable, extremely complicated system of mutually overlapping powers and participatory rights. To be exact, such overlap does not, as is often assumed, violate the principle: it necessarily arises from it in the pursuit of mutual constraint."**311**

We do not really need to know more about the organizational principle of the separation of powers, nor to ascertain whether, in party-state democracy, we are perhaps dealing with interlocking or even entangled powers.**312** Our sole concern is to show that a principle of the law pertaining to the organization of the state has operated since the eighteenth century as a language of politics.

#### 2. The example of bureaucracy

Particularly from the perspective of the history of ideas, bureaucracy is especially interesting because – almost more than separation of powers theory – it reveals the close links between seemingly technico-institutional organizational arrangements and notions about the *legitimacy of state power*. Our concern is not the efficiency of bureaucratic administration or adding to the ever popular, trite criticism of bureaucracy so rife since Franz Kafka and Heimito von Doderer,**313**,**314** but with bureaucracy as the embodiment of an – extremely successful**315** – type of modern "domination." Predictably and inevitably this places us in the company of Max Weber.

Weber identifies various types of domination defined in terms of legitimation basis. He distinguishes three pure types: charismatic, traditional, and the legal, rational domination characteristic of the modern state. The last is based on belief in the legality of the set order and the right of those called upon to exercise such power to issue commands. Weber's basic thesis**316** is that the last type of domination requires exercise of a specific type, namely administration that implements the set order and applies rules; that, being rule-bound, acts in accordance with learnable routines, which convey predictable and rational decision-making behaviour. *This type of domination is called bureaucracy.*

According to Maximilian Wallerath, the function ascribed to it was "to ensure the ousting of absolutist and feudal regimes by legal-rational governance structures. Personal, patriarchal power and subjective arbitrariness was to be replaced by rational rule on the basis of law and superior purposiveness."**317**

The rule-boundedness that Max Weber repeatedly emphasises gives a hierarchically organized bureaucratic administration, as Horst Dreier point

313 One of my favourite books deserves a mention here: Doderer (1951) [engl. transl. (2000)].

out,**318** doubly *grounding in constitutional law*: as legal domination it is rooted in the rule-of-law principle and in the democracy principle as authority implementing democratically produced policy programmes cast in the form of enacted law.

"With regard to democracy, the *binding nature of enacted law and checks on the executive branch* are of crucial importance for politics. Bureaucratic administration is nothing other than an instrument for enforcing laws and programmes that have been produced by democratic procedures. No considerations other that compliance with the law should feed into decisions. Formality and the written form permit the lawfulness of administrative action to be examined and to correct unlawful decisions. Hierarchical organization ensures the accountability of administrative authorities to parliament: the responsible minister must be able to rely on his instructions, for which he is accountable to parliament, being carried out by even by the lowestranking officers in his department."**319**

And this bureaucratic administration has not only been grounded in the rule of law and democracy but is also the key agent in *dealing with societal modernization processes in society*, as Lutz Raphael rightly stresses:

"Administrative authorities in the nineteenth century had to cope with unheard of *acceleration in economic and social processes*; indeed, at times the administration itself sought to trigger or accelerate this dynamic. The administrative state under the rule of law was a regulatory side effect of far-reaching social, cultural, and above all economic mobilization processes. Whatever labels are attached to these critical junctures in the development of European history – whether modernization, modernity, onset of the capitalist world order, or whatever – the *services and functions of bureaucracy have always been an indispensable element of this transition*, and are among the formative bases if our current world, however sceptical and suspicious one might be about their future."**320**

In all, the example of bureaucracy shows that both the language of state organization and the language of administrative organization operate not primarily as the languages of a technico-instrumental organization theory but as languages of politics, as the political debates and disputes of the nineteenth century impressively demonstrate.

320 Raphael (2000) 12.

It is doubtless part and parcel of the political history of ideas and the philosophy of the state that good government has above all to be just government. For example, Philippe Mastronardi's work on constitutional theory bears the revealing subtitle "general constitutional law as theory of the good and just state";**322** and Arthur Benz, writing on the state as legal order, notes that: "Even before the state appeared on the stage of history, political theoreticians had recognized that good government obtains only if it *serves the common good and justice*. Greek and Roman antiquity sought guarantees for good government in the constitutional order. By this they understood the division of responsibilities and governmental functions in the hope that this would either produce *just holders of power* or restrain the exercise of power and prevent it from going against the common good and justice. Constitutional theory with its distinction between good and degenerate constitutions systematized the possibilities of separating governmental functions."**323**

As this passage shows, there are basically two ways to ensure just rule: training power holders to become *just ruler personalities* or creating *power structures that guarantee justice*.

As far as justice personified in the just prince was concerned, it was thought in the seventeenth and eighteenth centuries that it could be fostered by "manuals on good government",**324** a widespread literary genre that went by the name of "Fürstenspiegel".**325** Foremost among the virtues of the Christian prince was justice, as Hans-Otto Mühleisen notes with reference to Erasmus of Rotterdam:

"The Christian prince can rightly claim that his subjects know and respect the law if he himself knows and obeys the laws of the Supreme Ruler Christ, i. e., if he

commits himself to justice. As a Christian, the prince can propitiate God best through a caring attitude towards his people in government'. The cross is laid upon him, which from an Erasmian point of view is equivalent to justice: 'If you do what is right; if you do violence to no man; if you sell no office and accept no bribe, even if your purse suffers harm. Be steadfast and take care above all that you *gain the prize of justice*'."**326**

The mists of time have veiled this variant on securing the just exercise of power through personalization, despite Pierre Rosanvallon's return to the literary tradition in a recent book.**327** The notion of promoting justice through just institutions has gained more and more ground. Discussing current theories of justice, Bernd Ladwig notes:

"Whoever acts justly contributes directly or indirectly to just conditions. If everyone treated everyone with respect, the direct result would be a state of all-round mutual respect. If more people donate to OXFAM than before, the indirect result would probably be that more would be done to combat hunger in the world. Perhaps the most important thing, however, that anyone can do for justice is to *support just institutions*. Institutions are the focus of judgments about justice that seek its realization. There are good reasons for this. Institutions and institutional orders play an essential role in whether and how justice imprints itself on our world. Modern philosophers and economists have therefore placed greater value on institutions and societal structures as opposed to individuals and their virtues. The expectations of justice have since weighed less heavily on the shoulders of the individual. Most theories of justice now focus not on the qualities of the individual but the *properties of institutions*."**328**

This invites us to take a brief look at the idea of institutional justice.

## II. The idea of institutional justice

Rainer Forst presents highly interesting thoughts on the idea of institutional justice**329** in his consideration of transnational justice and democracy.**330** First he joins us in rejecting the *dominance of distributive justice*, above all because it neglects the question of who makes decisions on distributing goods, by what procedures, and in what institutional contexts: "These recipient-oriented perspectives centred on goods and distribution hide essential

aspects of justice. First, the question of how the goods to be distributed come into being, and hence the question of production and its just organization. But still more important, the political question is disregarded of who decides on the structures of production and distribution and how – as if there were a vast distribution engine that only needs to be correctly programmed."**331**

However, if the main concern is who, by what procedures, and in what institutional contexts decides the distribution of generally scarce goods, institutions need to be developed that can be expected to promote justice. Justitia is "a goddess created by humanity who comes into the world to banish arbitrariness; she is therefore present wherever arbitrariness prevails (or threatens). *She therefore demands specific institutions* – for instance, a *legitimate legal situation* in the place of the "natural state" of arbitrariness; but she cannot presuppose what she demands."**332**

We agree with Forst that, from this point of view, justice is an institutional virtue: "*Justice* is a relational, as well as an *institutional virtue*; it does not refer to all asymmetrical relations between human beings without discrimination, but it does refer to those which exhibit forms of rule or domination and social arbitrariness – wither in contexts involving only sparse legal regulation or in thicker institutional contexts, within and beyond the state."**333**

This is only a short step away from identifying *two types of justice-related institutions*: "It is also important to distinguish between institutions necessary for realizing justice and institutions or (more or less institutionalized) conditions that make justice necessary and 'promote' it. We can call these practices *promoting justice* or *requiring justice*."**334**

Modifying Forst's terminology and with reference to the institutional economics work of Douglass North, John Joseph Wallis, and Barry R. Weingast on the one hand **335** and Daron Acemoglu and James A. Robinson on the other,**336** we propose to speak of institutions *inhibitive of justice* – that

favour arbitrariness – and institutions *conducive to justice*, drawing a distinction between these two types of institution.**337**

As regards justice, we now turn to the *substance* of the rule of law – a principle that is a pillar of our body politic.

## III. The justice genes of the rule of law

When considering institutions conducive to justice, the institution of the rule of law cannot be left aside: it is regarded as a bulwark against injustice and arbitrariness. Michael Stolleis has this to say:**338** "Throughout the First World War and the Weimar Republic, 'Rechtsstaat', 'l'état de droit', 'rule of law' stood for state action bounded by law and accountable to the courts, for an independent judiciary, and, in a broader sense, also for an incorruptible public service committed to the public good: all in all, for protection of the individual against arbitrariness",**339** We begin with this bulwark function of the rule of law.

1. Law and arbitrariness

Horst Dreier**340** addresses the opposition between law and arbitrariness that Rainer Forst has described:

"Little seems to be so clear and undeniable as the irreconcilable opposition between law and arbitrariness; at any rate, if we take arbitrariness in the now current sense of the term to mean erratic, indiscriminate, high-handed action without apparent rational motivation or understandable grounds. *The term wears, so to speak, reproval on its sleeve.* Arbitrariness thus seems to be more or less the quintessence of flouting the notion of law and the central functions of every legal order. This explains such widespread assertions as 'arbitrariness and law are in principle opposites', or, even stronger, arbitrariness is the '*counter-concept to justice*' or 'blatant injustice'. And, indeed, where law is to serve as a conflict resolution tool, to guarantee expectational security, and to enable people to live together in freedom and equality, it can

337 North et al. (2009), Acemoglu / Robinson (2013) explain the difference between these two types of institutions, taking the example of institutions with restricted access (inhibitive of justice) and institutions with unrestricted access (conducive to justice).

338 Stolleis (2012).

perform these fundamental tasks only if laws and their application are seen to further not arbitrariness but reliability and predictability, not to be playing a game of blind man's buff."**341**

The ideational value of law in relation to justice derives chiefly from the control function of law in modern societies:

"If, as a specific social technique, law is to steer human co-existence, arbitrariness has no place. In 'The Concept of Law', first published in 1961, H.L.A. Hart posits that universal, general and binding norms are at the very core of justice. It would be a contradiction in terms when setting norms to apply arbitrariness as a principle."**342**

So far so good.

But this undoubted inclination of law towards justice tells us nothing about whether the institution of the rule of law deserves to be called conducive to justice. A look at the institutional virtues of the rule of law will help justify the epithet.

2. The institutional virtues of the rule of law conducive to justice

In addressing the institutional virtues of the rule of law, we are referring to the rule of law that developed in the course of the nineteenth century as a "political programme"**343** directed towards protecting civil liberties through the legal limitation and disciplining of state authority.**344** In what follows, we are concerned not with a *material concept of the rule of law –* predominant after 1945 in response to the abuse of law under the Nazi regime – aiming to "*produce a materially just legal state of affairs*."**345** What is at issue is a rule of law not confined to formal guarantees – and which can therefore be dismissed as unpolitical – but an institution whose components – the separation of powers, an independent judiciary, lawful administration, and the guarantee of comprehensive legal protection – are committed to the material goal of a just order of the body politic, with an unassailable hard core**346** that

enhances the chances of (as Höffe would have put it) things being just in the world.

It is therefore not about playing off the material rule of law against the formal rule of law but about assessing the intrinsic value of formal legal guarantees and ordered procedures and their contribution to realizing a just order of the state and society. Ernst-Wolfgang Böckenförde describes the *indivisible unity* of the formal and material aspects of the institution of the rule of law:

"The call for the material rule of law overlooks or underestimates the intrinsic importance, *the material intrinsic importance of formal legal guarantees and ordered procedures*. It is precisely formal guarantees and procedures that shield and protect individual and societal freedom by warding off direct action against individuals or societal groups in the name of absolute enacted or believed material content or socalled values; in this they prove to be institutions of freedom; they have little to do with formalism, let alone positivism. This dismantling of freedom by totalitarian regimes never begins with the exploitation of formal guarantees and procedures but always with them being disregarded in the name of a higher, material, and prepositive law, be it the 'true religion', the 'homogeneous national community' or the 'proletariat'. Only at the second stage, when the new law has been installed as a means of revolutionary change, does the positivism and legalism of totalitarian regimes arise."**347**

To sum up, it is the institutional virtues of the rule of law that are directed towards enabling and promoting justice as an institutional virtue. We can therefore speak of the rule of law as an institution that promotes justice. This brings us to our next topic.

D. How much rule of law is there in good governance?**348**

A great deal. A glance at the elements generally considered to constitute the core of this worldwide, globally operative "guiding principle of state-

an independent judiciary? 3. Is the abuse of power by representatives legally or politically sanctioned? And 4. To what extent are civil liberties (human rights, judicial rights, antidiscrimination laws, freedom of religion) in place and to what extent is violation actionable?

hood"**349** shows why this is so. Franz Nuscheler offers a catalogue of the most current good governance criteria:**350**

This catalogue alone shows that, almost without exception, the criteria listed come under the broad rubric of what we have called the "*institutional virtues of the rule of law*." At the latest, however, the high rule-of-law content of good governance becomes fully clear when we consider "combating corruption"; after all, corruption is the paramount example of "bad governance."**351** This also explains why fighting corruption ranks so high on the agenda of exponents of the good governance concept. It is therefore all the more worth noting that the distinguished Romanian corruption scholar Alina Mungiu-Pippidi declares that only an "*institutional approach*" can succeed in the battle against corruption. In "Corruption: Diagnosis and Treatment"**352** she proposes distinguishing between two fundamentally different "rules of the game" practised in a society: "*particularism*" and "*universalism*." By "particularism" she means a culture of privileges,**353** whereas "universalism" de-

scribes an attitude prevailing in society "where equal treatment applies to everyone regardless of the group to which one belongs."**354** To behave "particularistically", however – it should be realized – is in keeping with the "human nature" and is therefore so widespread:

"Particularism is not a social 'malady', as corruption is usually described, but rather a default, natural state, and therefore arises frequently. Social psychology provides considerable evidence that the nature of man is sectarian, and that social identity results from biased intergroup comparison and self-enhancing behaviour. Humans naturally favor their own family, clan, race, or ethnic group – what Edward C. Banfield**355** called 'amoral familism'. Treating the rest of the world fairly seems to be a matter of extensive social learning and sufficient resources. Societies which have travelled furthest from that natural state of affairs and have produced a state which treats everyone equally and fairly are exceptions and products of a long historical evolution. Such evolution should not be taken for granted; indeed, as James Q. Wilson**356** argues, universalism and individualism, which spread in the West after the Enlightenment to become generally agreed norms, are neither natural nor necessarily and invariably good principles. To understand individual behavioural choice, an understanding of governance context is therefore indispensable, and anticorruption strategies created in disregard to this are predetermined to fail."**357**

If this is the case, then fighting against corruption is not a problem of combating individual misconduct. What is needed is to *change the* "*rules of the game*" and thus – if sets of rules in the social-science sense are understood as institutions**358** – to take an *institutional approach*:

"Corruption in society is therefore not conceptualized in this book as an aggregate of individual corruption. The non-corrupt countries at the top of Transparency International's Corruption Perception Index (CPI) do not differ from countries on the bottom simply by the number of individuals engaged in corrupt acts, *but by their institutions*; in other words, by *the rules of the game* influencing power distribution and the shaping of the allocation of public resources. The countries at the top of the Control of Corruption scale managed *to institutionalize* open and nondiscriminative access at some point in their past, and so their institutions differ substantially from the ones at the bottom. … Many countries in the middle struggle between two worlds, for in them both universalistic and particularistic practices coexist, more or less competitively. … But regardless of how wide the variation might be, some sort of invisible threshold exists between a society where ethical

Legal Concepts and Legal Regimes in a Global History of Ideas 217

universalism is the norm and one where the norm is particularism – and one can predict fairly well what treatment and what share of public resources to expect from the state if one knows where one stands in the status ranks."**359**

Given her "institutional approach", it is not surprising that Alina Mungiu-Pippidi has adopted the institutional economics distinction between institutions *with and without restricted access*, integrating it in the following overview**360** of four different governance regimes. The table, which can be read as a scale of the rule-of-law content of various governance regimes, brings this section to a close.

Governance Regimes and their Main Features

Promotion of the rule of law is among the favourite projects of the Western world, notably in the Federal Republic of Germany.**361** The present author contributed to conceptualizing a major conference devoted to this subject, held in Berlin on 15th January 2009 under the heading "The Rule of Law – Patent Recipe for All the World? Promoting the Rule of Law in Foreign Policy".**362**

The popularity of "rule of law promotion" has not declined, rather the opposite. In "Rule of Law Dynamics",**363** published in 2012, no fewer than five contributions are devoted to rule of law promotion:

The array of rule of law activities, their intensity and financial scale have given occasion to speak of a "rule of law promotion industry."**369** Particularly interesting about the phenomenon**370** is the interrelatedness of this actor constellation, since it clearly reveals the *genuinely political nature of rule of law promotion*. Jane Stromseth, David Wippman, and Rosa Brooks have identified three groups of actor:

Legal Concepts and Legal Regimes in a Global History of Ideas 219

"The *World Bank and multinational corporations* want the rule of law, because the sanctity of private property and the enforcement of contracts are critical to modern conceptions of the free market. … *Human rights advocates*, though not typically allies of multinational corporations, business interests, or international financial institutions, are similarly enthusiastic about the rule of law. … The human rights-oriented conception of the rule of law involves, at a minimum, due process, equality before the law, and judicial checks on executive power, for most human rights advocates regard these as essential prerequisites to the protection of substantive human rights. … Increasingly, international and national *security experts* also want to promote the rule of law, seeing it as a key aspect of preventing terrorism. Especially since September 11, 2001, military and intelligence analysts have drawn attention to the ways in which the absence of the rule of law can lead to instability and violence and create fertile recruiting grounds for terrorist organizations. …"**371**

The point to be made here is that the language of rule of law promotion in its most advanced form is a language of politics.

II. The new EU framework to strengthen the rule of law

The European Union sees itself not only as an economic community, a community of law, and a political community, but also as a community of values.**372** This conception is expressed in Article 2 of the Treaty on European Union, as amended by the Treaty of Lisbon:

"The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail."

In order to maintain the cohesion of this community of values, Article 7 of the EUT introduces a special procedure to be applied if a Member State infringes fundamental principles. Since this is indeed bringing up the big guns, the definition of such infringement and the conceivable consequences are set out as follows (Article 7 paras. 1 and 3 of the EUT in excerpt):

"On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the

values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of this Treaty to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council."

In March 2014, the Commission published a communication presenting a "framework to safeguard the rule of law in the European Union":**373** "Although it does not permit new types of legally binding measure, it does substantially strengthen the role of the Union in this field. The Communication establishes a pre-Article 7 procedure and thus introduces general and continuous monitoring. Such a framework to safeguard the rule of law is per se a new tool and also a major step in integration policy."**374**

Three characteristics mark this *genuinely political* tool offered by the rule of law framework. Armin von Bogdandy and Michael Ioannidis:

"The first characteristic is specific reference to the rule of law. It can therefore not be used to protect all the fundamental values listen in Article 2 TEU but only to uphold the – broadly defined – principle of the rule of law, that is regarded as the 'foundation of all values upon which the Union is based'.

A second characteristic of the rule of law framework is the assumption that the rule of law is upheld in Member States of the Union. Isolated cases of breaches of fundamental rights or miscarriages of justice are not sufficient grounds to activate the framework. It can be activated only in extreme situations that adversely affect 'the integrity, stability and proper functioning of the institutions and mechanisms established at national level to secure the rule of law'. The Commission terms such situations 'systemic breakdown'.

A third characteristic is that, under the framework, the Commission assumes a stronger role in safeguarding the rule of law than is assigned to it under Article 7 TEU: the framework is triggered solely by the Commission, and it makes all decisions without the collaboration of other institutions. This does not prevent it from drawing on the expertise of other EU institutions and international organizations, such as the Venice Commission of the Council of Europe."**375**

373 Communication from European Commission (2014).

374 Bogdandy / Ioannidis (2014).

375 Bogdandy / Ioannidis (2014) 39.

## \* *Concluding remarks*

Looking back over the reflections on the "language of the rule of law" presented in this chapter, it is clear that it is not only an important language of the political history of ideas but that has also shaped the latter since antiquity. This has not only been so with regard to the "obvious cases" of the legitimacy of political authority, good government as the just exercise of power, and equal application of the law; it also holds true for two more specific variants of the language of law: organizational law – viz "separation of powers" – and procedural law – viz rule-bound bureaucratic administration. Finally, the thoughts on the rule-of-law content of "good governance" and the EU Rule of Law Framework have shown that arguing in the "language of the rule of law" can be of considerable practical political importance.

# Part Four The Role of Key Legal Concepts in a Global History of Ideas

The third part of this book addressed the role of various legal regimes and legal principles in a global history of ideas and knowledge: natural law, international law, human rights, and the rule of law. We turn now to the importance of key legal concepts in the global history of political ideas. Such a project necessarily requires a choice to be made from among the concepts that play a significant role in more than one discipline. We have opted for the following four:**1**

These are all concepts that play a crucial role not only in the home disciplines of the present author – constitutional law and theory of the state (*Staatsrecht* and *Staatslehre*) – but also in other academic disciplines such as political science, historiography (witness Reinhard's "Geschichte der Staatsgewalt"**2** ), sociology, political philosophy, and public administration. However, since we are particularly interested in the *role of the language of law*, in discussing these four concepts we shall be focusing on how much *legal content* they have. Only then can we decide how important the language of law is in a global history of ideas and knowledge.

We begin our conceptual expedition with the concept of state.

1 A fifth would be property, but this concept is addressed in separate study, already completed in manuscript form, to be published under the title "Property – Intellectual and Social History of a Legal Institution" ("Eigentum – Ideen- und Sozialgeschichte eines Rechtsinstituts").

2 Reinhard (1999).

Chapter One State authority

A good place to start finding out about the concept of state is to consult an encyclopedia of the state**3** or politics,**4** a manual of political philosophy and social philosophy,**5** or the now standard work on the modern state by Arthur Benz.**6** The information they offer is discouraging: there appears to be consensus that it is difficult if not impossible to define the state. Arthur Benz quotes Raymond Boudon and Francois Bourricaud to the effect that "defining the state is an almost hopeless task".**7** With almost moving intensity, Josef Isensee, a leading German teacher of constitutional law, describes the inevitable "*relativity of all concepts of the state*":

"What the *state* is cannot be reduced to a single concept or captured by a scholastic definition. This is in the nature of the subject: the complexity and spatio-temporal mutability of state phenomena. A concept can capture only one of countless aspects of 'the state'. Consequently, all concepts of the state are necessarily relative, and many such concepts are accordingly needed. An approximative picture can emerge only from the multitude of aspects that come into view in circumnavigating the topic. The state as the subject matter of scholarly research requires both normative and empirical methods. It is addressed by many disciplines: legal, philosophical, historical, economic, political and other 'social-scientific' fields of study: all that traditionally constitute the → '*Staatswissenschaften*' ('sciences of the state') in the broadest sense of the term. → *Staatslehre* ('theory of the state)."**8**

Given these difficulties, various strategies can be considered. Christoph Möller suggests following the Anglo-American pattern of simply doing without a definition;**9** or one could ask whether a concept of state is really necessary.**10**

We are firmly convinced that such *avoidance strategies* are not the solution: the manifest, enduring role of the state as key governance actor**11** makes it more necessary than ever to map out the contours of the concept.**12** Our strategy is to circle the object "state" to gain a closer view from three different angles – in the hope that the intersections will throw the "nature" of the state into relief, teaching us something about the role of the language of law in the process. The itinerary proceeds under three headings:

## A. Functions of the state and the role of law

In his key article on the state in the Görres Society dictionary, Josef Isensee lists six *functional characteristics of the modern state* (for which he reserves the term "state").**13**

The following samples all show that these various entities cannot be described without the help of law and its language. This hold true in the first place for the modern state as peace entity: "The modern state … has brought peace to society, disarmed the citizenry, and replaced self-justice *by*