2003-2004 Lecture Series

[00:00:02] INTRODUCER:
Wintry day to this year’s Tanner Lectures in Human Values. Uh, usually, uh, Chancellor Berdahl, uh, introduces the series of lectures. He was with us last night at a, uh, dinner at the University House in honor of our speakers, but, uh, had to fly to Singapore to, uh, try to, uh, uh, get some money out of our Asian alumni, and so, uh, sends his regards, uh, and his regrets.

Uh, the Tanner Lectures, he normally, uh, goes through a, uh, a kind of quick, um, um, uh, summary of the importance, uh, and the, uh, history of the Tanner Lectures. I’ll spare you that because it’s in the little program that you have. Uh, simply, uh, I wanna say that we are delighted, uh, that we’ve been, uh, blessed with them for the past five or six years.

Um, and, uh, every year it’s been, I think, uh, a, a true contribution, uh, to our campus and, uh, ultimately through the books that are produced, uh, to the larger community. And it’s a particularly, uh, I think, a great honor this year to welcome our speakers, uh, who will be talking about a, a topic that is enormously, uh, significant. I’m seeing somebody waving.

Does that mean… Can’t hear?

(student chatter)

Ah. This’ll be better?

[00:01:13] AUDIENCE MEMBER:
Oh, yeah.

[00:01:14] INTRODUCER:
Thanks. Uh, uh, so far what I’ve said is not terribly important, So you’ll see- Uh, I want to begin my introduction of Seyla Benhabib with a, a kind of slightly indirect anecdote, and I hope you’ll forgive me.

Uh, back in the early 1980s, when the theory wars were still raging and the unlikely marriage of Marxism and deconstruction seemed to some a promising venture, one of its most avid champions attended a conference on intellectual history at Cornell, where he suffered through a talk naively defending a Habermasian version of rationality. Proudly recalling his extended remarks from the floor in a later book, the Marxist deconstructionist noted that he had observed, quote, that at the conference, only First World, for the most part white men were speaking, and therefore it was unwise to speak of, quote, universal reason or, quote, rational norms, which just happened to be hanging around in midair. I suggested, he went on, that if a third world feminist attacked his rational assumptions and the institutional rationality of the conference, uh, using non-academic obscenity, she would have appeared irrational in relation to his universal reason, committed as it is in its very practice to a norm of homogeneous, synoptic continuity, uncritical, non-analytical academic male equanimity, and a well-balanced ratio that cannot tolerate the dissonance and heterogeneity which deliberately disequilibrating deconstructive criticism introduces, end quote.”

And then he added, with a touch of jubilant vindication, quote, “Fittingly enough, the speaker cut me off before I could finish my remarks, implicitly claiming the prerogative or power of reason and the chair.” “I felt,” he says, “the touch of the iron fist beneath the urbane glove of white male liberalism, end quote. Now, as you might have guessed, uh, I was the benighted rationalist with a velvet-shrouded fist of iron who would have been put in his place by that sassy third-world woman as she hurled her non-academic obscenities, uh, in the name of dissonance, heterogeneity, and, uh, disequilibrium.

Now, there’s no need, I think, to embarrass the Marxist deconstructionist by naming him now, as we have come a long, long way from the time when heterogeneity and dissonance can be understood as self-evident virtues, no matter the content of what they oppose. And even more strikingly, we are well past the point where a white male speaker could self-righteously essentialize something called a third-world woman and see her as the intrinsic bearer of those virtues, and then assign to them the role of foul-mouthed virago ranting against universalist male reason. Now, the reason I begin my introduction of this year’s Tanner lectures with this rather odd little anecdote is that I vividly recall thinking as I was flexing my iron fist under that urbane liberal glove, “For goodness sake, “Hasn’t he met Seyla Benhabib?”

I suppose it was perhaps premature of me to have expected that he would have, as her major publications were still to come. But to anyone who had his or her nose to the ground and a subscription to the journals Telos or The Philosophical Forum, it was clear that a major new voice had arrived on the scene. And although that voice was clearly coming from a woman whose origins were in what was then called the Third World, what came out was a far cry from non-academic obscenities designed to disrupt the protocols of rational discussion.

For in her 1977 Yale dissertation on Natural Right and Hegel, an essay in modern political theory, and her important first book, Critique, Norm and Utopia, a study of the foundations of critical theory written in fi– in 1986, Seyla Benhabib powerfully revealed a still robust legacy of the rationalist tradition that stretches from Hegel through the first generation of the Frankfurt School up to Jürgen Habermas. But at the same time, it is no less clear that Seyla Benhabib was supremely sensitive to the challenge of what, to borrow the title of her prize-winning second book, a book which appeared in 1992, she recognized as Situating the subject. Having been born in Turkey in 1950, a member of the dwindling community of Sephardic Jews who had lived there for nearly half a millennium, and educated in America at Brandeis and Yale, and then having done postdoctoral work in Germany, she had encountered issues of community, difference, and the importance of what the jargon came to call subject positions without having to learn about them through French theory.

In a series of subsequent publications, often in dialogue with other feminists or defenders of postmodernist forms of thought, she demonstrated how it is possible to work within a tradition that doesn’t simplistically pit reason against its allegedly liberating other, while registering the ways in which certain versions of rationality can, to be sure, undermine emancipatory goals. Let me only mention her co-edited volumes, Feminism as Critique in nineteen eighty-seven, and then Feminist Con– uh, Contentions: A Philosophical Exchange, which she wrote with Nancy Fraser, Drucilla Cornell, and our own Judith Butler. Uh, it first came out in German in nineteen ninety-three and then in English three years later.

But in the past decade, Seyla Benhabib hasn’t rested content with fighting again and again the culture wars of the 1980s and early ’90s. In her most recent work, most notably her 1996 study of The Reluctant Modernism of Hannah Arendt, and then Contemporary Theory, uh, Theories of Democracy of 2000, followed shortly by Transformations of Citizenship: Dilemmas of the Nation-State and the Global Era of 2001, and then most recently, The Claims of Culture: Equality and Diversity in the Global Era of 2002, a remarkably productive few years, she has intervened with her characteristic analytic vigor in debates about the most pressing political, cultural, and ethical issues of our day, including those occasioned by the end of the Cold War, the globalization of capital and information, and the acceleration of diasporic displacements with all the challenges that places on the international regime of human rights. With extraordinary energy, she has also managed over the years to edit or co-edit five other volumes dealing with subjects as disparate as Communicative Ethics, The Philosophical Discourse of Modernity, Democracy and Difference, and the legacies of Max Horkheimer and Richard Bernstein.

She’s also contrived to, uh, find the time to serve as editor-in-chief with Andrew Arato of Constellations from nineteen ninety-four to ninety-seven. She’s still, of course, on the board of that, and served as the co-director with Jean Cohen and Axel Honneth, who will be our next year’s, uh, Tanner lecturer of the International Course in Philosophy and the Social Sciences in Prague, uh, from 1993 to 1997. Her career has taken her from positions at Yale, Boston University, Harvard, SUNY Stony Brook, uh, Stony Brook, the New School, and then back to Harvard, where she taught from ’93 to 2001.

And then finally, since then, once again to Yale, where she is now the Eugene Meyer Professor of Political Science and Philosophy. She has given the Gauss Seminars at Princeton, the Spinoza Lectures at the University of Amsterdam, uh, and the Seeley Lectures at Cambridge, uh, as well as earning an honorary doctorate from the University of Utrecht. Something str– uh, I think, extraordinary for someone, uh, uh, still very much in the middle of her career.

Now, it would take us the remainder of the afternoon to list the places both here and abroad where she has served as visiting professor or all the languages into which her work has been written. But suffice it to say that Seyla Benhas, uh, Benhabib has emerged as an internationally acclaimed political philosopher who’s continued the tradition of the Frankfurt School into its third generation with imagination, creativity, and enormous critical acumen. It’s time now for me to sit down and allow Seyla a chance to demonstrate the qualities that have earned her all these accolades.

Happily, I’ll get a second chance to introduce her again tomorrow, and even luckier for us, she’ll give us a second lecture. Her topic today is Reclaiming Universalism: Negotiating Republican Self-Determination and Cosmopolitan Norms. Her remarks today will be followed by a response from Jeremy Waldron, I’ll introduce him in a bit, and then questions from the floor.

We’ll go until about six thirty. Tomorrow’s commentators will be Bonnie Honig and Will Kymlicka. On Thursday, all the participants will appear on the panel together, and we’ll have a concluding reception.

It is my great pleasure and honor to welcome Seyla Benhabib, this year’s Tanner Lecturer on Human Values.

(applause)

[00:09:13] SEYLA BENHABIB:
Thank you very much, uh, Martin. And as you were giving your introductory remarks, I kept searching in my memory saying, “Was I in that room, and did I utter

(laughter)

non-academic inanities?” So I ca– I was very worried about, uh, for a second as to whether I was that person who was mentioned.

It’s, uh, a real pleasure and an honor, uh, to be here this afternoon. I want to thank my colleagues in the Tanner, uh, Committee indeed for, uh, giving me this, uh, uh, pleasure and this chance to, uh, address you all. And I also want to, uh, thank my, uh, commentators, um, uh, Jeremy Waldron, Bonnie Honig, Will, uh, Kymlicka, very much for what I have already seen to be extremely perspicacious and interesting exchanges.

I look forward to an oc-oc-occasion of, uh, learning, um, uh, from them as well. I should mention that there is a handout for today’s lecture. If you haven’t received one, it would really be helpful if you did, uh, because, uh, it is, uh, it, it will simply facilitate, um, uh, uh, your following.

Let me begin. It is December 12, 1960. Israeli secret agents have captured Adolf Eichmann, and the Israeli government has declared its intention to put Eichmann on trial.

Karl Jaspers writes to Hannah Arendt, I quote, “The Eichmann trial is unsettling because I’m afraid Israel may come away from it looking bad, no matter how objective the conduct of the trial. Its significance is not in its being a legal trial, but in its establishing of historical facts and serving as a reminder of these facts for humanity.” End of quote.

For the next several months, and eventually years, an exchange ensues between Hannah Arendt and her teacher and mentor Karl Jaspers about the legality or illegality of the Eichmann trial, about institutional jurisdiction, and about the philosophical foundations of international law, and in particular, of the category of crimes against humanity. Arendt replies that she is not as pessimistic as Jaspers is about the legal basis of the trial. Israel can argue that Eichmann had been indicted in the first trial in Nuremberg and had escaped arrest.

In capturing Eichmann, therefore, Israel was capt-capturing an outlaw, a hostis humani generis, an enemy of the human race, who had been condemned of crimes against humanity. He should have appeared before the Nuremberg court, Arendt contents, but since there was no successor court to carry out its mission, Arendt thinks that Israeli courts have a plausible basis for assuming jurisdiction. she considers genocide, Arendt, that is, to be the one crime that truly deserves the name crimes against humanity.

“Had the court in Jerusalem,” she writes, “understood that there were distinctions between discrimination, expulsion, and genocide, it would have become clear that the supreme crime it was confronted with, the physical extermination of the Jewish people, was a crime against humanity perpetrated upon the body of the Jewish people.” ” But if there are crimes which can be perpetrated against humanity, then the human being is to be considered not only as being worthy of moral respect, but as having a legal status as well. A legal status which precedes all posited legal orders, but which nonetheless binds them.

Crimes against humanity in this sense is different than any other crime, which can only exist when there is a known law which has been violated. What are the laws which crimes against humanity violate? A crime, as distinct from a moral injury, cannot be defined independently of posited law and a positive legal order.

Arendt is aware that on account of its philosophical perplexities, there will be a tendency to think of the category of crimes against humanity as crimes against humaneness or humanness, as if what was intended was a moral injury that violated some kind of shared moral code. The Nuremberg Charter’s definition of crimes against humanity was translated into German as Verbrechen gegen die Menschlichkeit, as if she observes the Nazis had been simply lacking in human kindness, certainly the understatement of the century. Although Jaspers is willing to accept Arendt’s distinction between crimes against humanity as opposed to crimes against humaneness, he points out that since international law and natural law are not law in the sense of court proceedings, it would be most appropriate for Israel in this instance to transfer the competency to judge Eichmann either to the United Nations, to an international court at The Hague, or to courts provided for in the United Nations Charter.

Neither Arendt nor Jaspers harbor any illusions, however, that the UN General Assembly would have risen to the task at that time. The postscript to Eichmann in Jerusalem ends on an unexpected note. Arendt writes, “It is quite conceivable that certain political responsibilities among nations might someday be adjudicated in an international court.

What is inconceivable is that such a court would be a criminal tribunal which pronounces on the guilt or innocence of individuals.” End of quote. This is the postscript, 1963.

Why does Arendt deny that an international criminal court is conceivable? Does she mean that it is simply unlikely to come into existence, or rather that even if it were to come into existence, it would be illegitimate? But her position is all the more baffling since her very insistence upon the juridical, as opposed to the m-merely moral dimension of the concept of crimes against humanity, would suggest the need for a standing international body precisely which would possess the jurisdiction to try crimes such as crimes against humanity.

We encounter here a perplexity, a philosophical perplexity, the significance of which goes well beyond the consistency or lack thereof in Hannah Arendt’s vision of international law. Although both Jaspers and Arendt are Kantians and are deeply inten-indebted to the cosmopolitan legacy of Kant, Arendt is more of a civic republican or maybe even a political existentialist, to use Marty Jay’s phrase, than Jaspers is. Jaspers is willing to take his Kantianism to certain conclusions and to contemplate world jurisdiction and world government.

Arendt, while a Kantian in moral theory, remains committed to a civic republican vision of self-determination, and hence her skepticism towards an international criminal court. I begin my reflections on reclaiming universalism, negotiating republican self-determination, and cosmopolitan norms by recalling this exchange between Jaspers and Arendt on the fate of Eichmann. The Eichmann trial, much like the Nuremberg trials before it, captured some of the perplexities of the emerging norms of international and eventually cosmopolitan justice.

It will be my thesis in the next two, in these two lectures, that since the United Nations Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society, which is characterized by a transition from international to cosmopolitan norms of justice. Terms such as globalization and empire, which also aspire to capture some of these transformations, are misleading in many ways, in that, in my opinion, they fail to address the content of cosmopolitan norms. Defenders of globalization reduce cosmopolitan norms to a thin version of the human rights to life, liberty, equality, and property, which are supposed to accompany the spread of free markets and trading pra-practices.

Theorists of empire, most notably Toni Negri and Michael Hardt, distinguish between imperialism and empire in order to capture the novel logic of the cosmopolitan order. While imperialism for them refers to a predatory, extractive, and exploitative order through which one or more sovereign powers import– impose their will upon others, empire refers to an anonymous network of rules, regulations, and structures which entrap one in the system of global capitalism. Empire, in their account, is a hegemon without a center.

Global capitalism and cosmopolitan norms are imbricated in one another in this account. But Hardt and Negri’s residual skepticism towards human rights and the rule of law is so intense, however, that in the final analysis, they hollow out the real challenge of cosmopolitanism, which is precisely reconciling universal norms with democratic politics. Instead, they write of an undifferentiated concept of the masses or of the multitude.

I will argue that while the evolution of cosmopolitan norms of justice is a tremendous development, the relationship between democratic self-determination and cosmopolitan norms is fraught both theoretically and politically. How can the will of democratic majorities be reconciled with cos– norms of cosmopolitan justice? How can legal norms and standards which originate outside the will of democratic legislatures become binding upon them?

To examine this fraught relationship will be my task in the next two lectures. In this first lecture, I will begin by clarifying what I mean by cosmopolitanism by engaging in a complex dialogue with Arendt, Jaspers, and Kant. The distinguishing feature of the period we are in, I will argue, cannot be captured through the bon mot of globalization and empire.

We are facing the rise of an international human rights regime and the spread of cosmopolitan norms, while at the same time, the relationship between state sovereignty and such norms is becoming more contentious and conflictual. I will then clarify in the latter half of my lecture in systematic terms what I call the paradox of democratic legitimacy, namely the necessary and inevitable limitation of democratic forms of representation and accountability in terms of the formal distinction between members and non-members. This is the core tension, even if contradiction between democratic self-determination and the norms of cosmopolitan justice.

In the second lecture, I will develop the concept of democratic iterations and juris gen-generative politics following Robert Cover as modes of reconciling democratic self-determination and cosmopolitan norms. Let me now turn, uh, to the term cosmopolitanism and, uh, develop, uh, my own analysis which will be indebted to the Kantian, uh, legacy. The term cosmopolitanism, along with empire and globalization, has become one of the keywords of our times.

For some, cosmopolitanism signifies an attitude of enlightened morality, which does not place love of country ahead of love of mankind, in the words of Martha Nussbaum. For others, cosmopolitanism signifies accepting hybridity, fluidity, and recognizing the internally differentiated and conflictual character of human selves and citizens, whose complex aspirations cannot be circumscribed by national fantasies and primordial communities. Jeremy Waldron has defended this position eloquently.

For a third group of thinkers whose lineages are those of critical theory, cosmopolitanism is a normative philosophy for carrying the universalistic norms of discourse ethics beyond the confines of the nation state. And here I’m thinking of Jürgen Habermas, David Held, and James Bohman. It should come as no surprise that my project is most allied with the aspirations of this latter group.

However, in extending the norms of discourse ethics beyond the confines of the nation state, Held and Bohman in particular have not addressed the paradox of bounded communities. The question of discursive scope has not been given serious consideration, and here I part company from my critical theory colleagues and join in the anxiety expressed by Arendt’s puzzling observations about an international criminal court. I do so, and I want to emphasize this, not because I agree with Arendt, in fact, I don’t, but because I think that her anxiety must be indulged in by any serious deliberative democrat.

Now, what is meant by discursive scope? Since discourse theory of ethics articulates a universalist moral standpoint, it cannot limit the scope of the moral conversation only to those who reside within nationally recognized boundaries. It must view the moral conversation as potentially including all humanity.

Put starkly, every person and every moral agent who has interests and whom my actions and the consequences of my actions can impact in some form or another is potentially a moral conversation partner with me. I have a moral obligation to justify my actions with reasons to this individual or to the representatives of this being. I respect the moral worth of the other by recognizing that I must provide them with a justification for my actions.

We are all potential participants in such conversations of justification. But due to the open-endedness of discourses of moral justification, there will be an inevitable and necessary tension between those moral obligations and duties resulting from our membership in bounded communities and the moral perspective which we must adopt as human beings simply. From a universalist and cosmopolitan point of view, boundaries, including in particular state borders and frontiers, require moral justification.

The stipulations of discourse ethics cannot be applied to the domain of political membership without the aid of further promises, nor is it necessary to do so. A discursive approach, then, should place significant limitations on what can count as morally permissible practices of inclusion and exclusion within sovereign polities. But this then confronts the discourse theorist with a dilemma.

I’m on the second page of the handout. A shared feature of all norms of membership, including, but not only, of norms of citizenship, is that those who are affected by the consequences of these norms and, in the first place, by criteria of exclusion per definitionem cannot be, um, party to their articulation. Membership norms affect those who are not members precisely by distinguishing insiders from outsiders, citizens from non-citizens.

The dilemma then is this, the philosophical dilemma that I’m grappling with within the context of a cosmopolitan understanding of critical theory is this. Either a discourse theory of ethics is simply irrelevant to the membership practices of bounded communities in that it cannot articulate any justifiable criteria of exclusion, or it simply accepts existing practices of exclusion as morally neutral historical contingencies that require no further, uh, validation. This would suggest that a discourse theory of democracy is itself chimerical insofar as democracy requires a morally justifiable closure which discourse ethics cannot deliver.

Now, unlike communitarians who reduce the demands of morality very often to the valid claims of specific ethical, cultural, and political communities, and unlike realists and postmodernists who are skeptical that political norms can ever be subordinated to moral ones, I will insist upon the necessary disjunction as well as the necessary mediation between the moral and the ethical, the moral and the political. The task is one of mediations, not one of reductions. How can one mediate moral universalism with ethical particularism?

How can one mediate legal and political norms with moral ones? Such a strategy of mediation is crucial to reclaiming dialogic universalism. My understanding of cosmopolitanism then situates this philosophical project as one of mediations, not one of reductions or totalizations.

I do not view cosmopolitanism as a global ethic simply, nor is it adequate to characterize cosmopolitanism through cultural attitudes and choices alone. I follow I– the Kantian tradition in thinking of cosmopolitanism as the emergence of norms that ought to govern relations among individuals in a global civil society. These norms are neither merely moral nor just legal.

They may best be characterized as framing the morality of the law, but in a global rather than in a domestic national context. They signal the eventual legalization and juridification of the rights claims of human beings everywhere, regardless of their membership in bounded communities. But membership in bounded communities, which are smaller and larger than the territorially defined nation-states is nevertheless crucial.

My task then in these lectures will be to offer a solution to the problems of discursive scope in critical theory by thinking through cosmopolitan norms and bounded membership. Let me now turn to the Kantian cosmopolitan legacy. The– I’m sorry, I’m just looking for some water here.

Uh, through which I want to begin to address, uh, again, this paradox of discursive scope and reconciling cosmopolitan norms and attachments in bounded communities. Kant’s cosmopolitan legacy. The Eichmann trial and, uh, the Jaspers-Arendt exchange surrounding it are interesting precisely because they stand at the beginning of the evolution of cosmopolitan norms, the full implications of which have only become clear in our time.

To appreciate Arendt and Jaspers’ positions, as well as the differences among them, we must take one step back and re-examine very briefly Kant’s doctrine of cosmopolitan right. For both Arendt and Jaspers are grappling here with a Kantian legacy. Neither accepts legal positivism nor natural law theories.

Legal positivism, best captured by Thomas Hobbes’s phrase, “Sovereigns without swords are but words,” makes any moral critique of legality impossible. After the experiences of the Third Reich, Arendt and Jaspers have no illusion that the legal system can serve as its own moral foundation. Yet philosophically as well as historically, they consider natural law doctrines obsolete.

For reasons that I cannot develop further here, they accept that to presuppose a given human nature, as natural law doctrines do, is to fall into a metaphysics of substance and to view the human being as an entity. Following Heidegger’s insight that Dasein is the only being for whom the question of its existence is meaningful, they prefer the language of human existence or of the human condition to human nature. The human condition refers to those circumstances under which life is given to human beings.

These con– circumstances constrain our choice, but nevertheless, we are free to choose our fate. How can then can one– How can then one give meaning to a concept such as crimes against humanity if neither legal positivism nor natural law are defensible? Kant’s doctrine of cosmopolitan right shows the way here for Arendt as well as Jaspers.

The conceptual innovation of Kant’s doctrine of cosmopolitanism is that Kant recognized three interrelated but distinct levels of right in the juridical senses of the term. And I’m referring primarily to the essay on perpetual peace, but much of this argument is also found in the, uh, metaphysical elements of justice and the, uh, so-called theory and practice essay as well. Now, according to Kant, the three levels of right are the following.

First is domestic law, uh, the sphere of relations of right which Kant claims should be in accordance with the Republican Constitution. Second is the sphere of rightful relations among nations, Völkerrecht, resulting primarily from treaty obligations among states. And third is the cosmopolitan right, which concerns relations between persons as well as organized political entities in a global civil society.

Kant, as is well known, introduces the term Weltbürgerrecht, cosmopolitan right, in the third article of Perpetual Peace with reference to the duty of hospitality. The duty of hospitality is of interest to him because it touches upon the quintessential case of an individual coming into contact with an organized and bounded political entity. Uh, the German reads, and then I have a big quotation here under item four in the handout.

Das Weltbürgerrecht soll auf Bedingungen der allgemeinen Hospitalität eingeschränkt sein, which means, uh, cosmopolitan rights should be confined to the conditions of universal hospitality. And let’s read just the, uh, quote at length, uh, on the handout. But hospitality, Wirtbarkeit, and Kant is using two terms here, Hospitalität and Wirtbarkeit, means the right of a stranger not to be treated as an enemy when he arrives on the land of another.

One may refuse to receive him when this can be done without causing his destruction. But so long as he peacefully occupies his place, one may not treat him with hostility. It is not the right to be a permanent visitor, Gastrecht, that one may demand.

A special beneficent argument would be, sorry, a special beneficent agreement would be needed in order to give an outsider a right to become a fellow inhabitant for a certain length of time. It is only a right of temporary sojourn, a right to associate which all men have. They have it by virtue of their common possession of the surface of the Earth, where, as a globe, they cannot infinitely disperse and hence must finally tolerate the presence of each other.

Now, there will be a lot to say about this passage, and Jeremy and I will exchange in an extended commentary on this passage, so if it seems, uh, mysterious, um, on a first, uh, reading, there are many different layers to it. But, uh, suffice it to say that Kant himself notes the oddity of the locution of hospitality in this context, and he therefore remarks as if in an afterthought to himself, it is not a question of philanthropy, but of right. In other words, hospitality is not to be understood as a virtue of sociability.

As the kindness or generosity one may show to strangers who come to one’s land or who become dependent upon one’s act of kindness through circumstances of nature or history. Hospitality is a right. It isn’t just a moral claim.

Hospitality is a right which belongs to all human beings insofar as we view them as potential participants in a world republic. Likewise, following Kant, Arendt argues that cri- crimes against humanity are not violations of moral norms alone, but violations of the rights of humanity in our person. But again, are these moral rights or juridical rights?

Let us look closer. According to Kant, the right of hospitality entails a claim to temporary residency on the part of the stranger who comes onto us. This cannot be refused if such refusal would involve the destruction, the Untergang, the destruction of the other.

To refuse sojourn to victims of religious w-wars, to victims of piracy or shipwreckage, when such refusal would lead to their demise is untenable, argues Kant. But what remains unclear in Kant’s discussion is whether such relations among peoples and nations involve acts of supererogation, which go beyond the reasonable demands of morality into the realm of altruism, or whether such claims entail a certain kind of moral demand concerning the rights of humanity in the person of the other. The right of hospitality, we might say, is situated at the boundaries of the polity.

It delimits civic space by regulating relations among members and strangers. It occupies that space between human rights and the civil political rights between the rights of humanity in our person and the rights which would accrue to us insofar as we are citizens of specific republics. We may identify here the juridical and moral ambivalence which affects discussions of the right of asylum and refuge to our own day.

Are the rights of asylum and refuge rights in the sense of being reciprocal moral obligations, which in some sense or another are grounded upon our mutual humanity? Or are these right claims in the legal sense of being enforceable norms of behavior which individuals and groups can hold each other to, and in particular, force sovereign nations to comply with? Kant’s construction provides no clear answer.

The right of hospitality entails a moral claim with potential legal consequences in that the obligation of the receiving states to grant temporary residency to foreigners is anchored in the republican cosmopolitan order. Such an order does not have a supreme executive law governing it. In this sense, the obligation to show hospitality to foreigners and strangers cannot be enforced.

It remains a voluntarily incurred obligation on the part of the political sovereign. In this sense, the right of hospitality expresses all the dilemmas of republican cosmopolitanism in a nutshell. How to create quasi legally binding obligations through voluntary commitments, and in the absence of an overwhelming sovereign power with the ultimate right of enforcement?

In other words, if there is no sovereign to force the sovereign, in Carl Schmitt’s words, how are cosmopolitan norms possible? This is the question to which I’m coming back again and again in this, in this lecture. By delineating a conceptual space between universalistic morality and positive law with respect to the actions and interactions of individuals in the world community, Kant laid the foundational stones for what we have come to call a post-Westphalian legal order.

Kant’s Perpetual Peace essay, in this sense, signaled a watershed between two conceptions of sovereignty and paved the way for the transition from the first to the second. We can name these Westphalian sovereignty and liberal international or post-Westphalian sovereignty. In the classical Westphalian regime of sovereignty, states are free and equal.

They enjoy ultimate authority over all objects and subjects within a circumscribed territory. Relations with other sovereigns are voluntary and contingent and limited in kind and scope to transitory military and economic alliances, as well as cultural and religious associations. Above all, states regard cross-border processes as a private matter concerning only those immediately affected.

By contrast, in liberal international sovereignty, the formal equality of states is increasingly dependent upon their subscribing to common values and principles, such as the observance of human rights, the rule of law, and respect for democratic self-determination. Sovereignty no longer means ultimate and arbitrary authority over a circumscribed territory. States which treat their citizens in violation of certain norms, close borders, prevent freedoms of market, speech and association, and the like, are thought not to belong within a specific society of states or alliances.

The anchoring of domestic principles in institutions shared with other states is crucial. In Michael Ignatieff’s words, this mode of post-Westphalian liberal international sovereignty is subject to the naming and shaming processes of civil and cultural sanctions, which, while not forcing states to comply militarily, nonetheless can influence their behavior. Cosmopolitan norms, I want to argue, go even beyond liberal international solidarity, uh, sovereignty.

While historically, the subjects of international law were viewed as states and as organized political entities, cosmopolitan right envisages a conceptual and juridical space for a domain of rights relations that would be binding on non-state actors and also upon state actors when they come into contact with individuals who are not members of their own polities. Kant envisaged a world in which all members of the human race would become participants in a civil order and enter into a condition of lawful association with one another. Yet the civil condition of lawful coexistence was not equivalent to membership in a republican polity.

In an extremely important move, Kant argued that cosmopolitan citizens still needed their individual republics to be citizens at all. This is why he was so careful to distinguish a world government from a world federation. A world government, which would only result in a universal monarchy, he argued, would be a soulless desp-despotism, whereas a federative union would still permit the exercise of citizenship within bounded communities.

Concepts such as the right to universal hospitality, crimes against humanity, or Arendt’s notion, the right to have rights, are in this sense the legacy of Kantian cosmopolitanism. In each instance, they articulate a shared philosophical perplexity. Kant, Arendt, and also Jaspers want to give these concepts a binding power beyond the moral obligation which they impose on individuals.

These concepts are not to be understood as mere moral oughts. They must generate binding norms, not only for individuals, but for collective actors as well, and in the first place for states and governments. The right to universal hospitality, for example, if it means anything at all, imposes an obligation on the political sovereign by interdicting states to deny refuge and asylum to those whose intentions are peaceful, and if refusing them sojourn would result in their demise.

The right to have rights prohibits states to denaturalize individuals by denying them citizenship rights and state protection. The concept of crimes against humanity intends to prohibit government officials, state bureaucrats, and others in positions of power from acting in such a way as to engage, quote, and I am quoting here from the Charter of the Military Tribunal, “from murder, extermination, enslavement, deportation, and other inhumane acts” committed against any civilian population before or during war or persecution on political, racial, or religious grounds, whether or not in violation of domestic law of the country in which these are perpetrated. That is to say, these categories are intended not only as principles of individual conduct, of course, they are also principles that should guide individual contact, but they are also principles of public morality and institutional justice as well in that they transcend the specific positive laws of any legal order.

But what then is the philosophical puzzle about cosmopolitan norms? Let me distinguish here three different issues, and I will return, uh, to a solution or to an attempt at a solution of these issues also at the end of my second lecture. First, our questions concerning the philosophical foundations of cosmopolitan right claims.

Certainly, prior to Kant, the Western legal tradition recognized a sphere of international law which went beyond specific treaty obligations concluded by various sovereigns. Stoic conceptions of natural law, Roman conceptions of jus gentium, and Christian conceptions of the law of the Christian commonwealth established guidelines for nations in their dealings with one another. Kant also relied, in this sense, upon the work of other natural law thinkers prior to him, such as Pufendorf, Grotius, and Vattel.

But how could one justify then cosmopolitan right without falling back upon some conception of a fixed human nature or a shared system of religious belief? What, if any, are the ontological foundations of cosmopolitan right after Kant’s critical philosophy? This is the first question.

Second, cosmopolitan right, if it is to deserve its name at all, must bind the actions and the will of sovereign legal and political entities. Cosmopolitan right ought to trump positive law, although there is no higher sovereign authority which is able to enforce it. What is the authority of the norm norms which themselves are not backed by a higher authority, either in the conceptual sense or in the sense of enforcement?

And third, Kant, Arendt, and Jaspers, although anticipating a world society governed by cosmopolitan norms of justice, also proceed from the premise of a divided mankind that is organized into discrete, self-determining, and sovereign political entities. At times, this is a concession to political realism on their part. More often, though, and particularly for Kant and Arendt, the division of humankind into self-governing polities is not a factum brutum, but has a value in itself.

Whereas Jaspers is ultimately willing to abdicate republican self-governance and entertain the possibility of world government, neither Kant nor Arendt can reconcile world government with the value of private and public autonomy. Therefore, the tension between the demands of cosmopolitan justice and the values of republican self-governance is greatest in their work. Now, I intend to address these three philosophical puzzles by working backwards, namely the ontological foundations of cosmopolitan right, the authority of cosmopolitan norms to bind sovereign self-entities, and cosmopolitan norms in a divided mankind.

That is to say, I will, uh, begin first with the tension between cosmopolitan norms and republican self-governance and work towards the ontological puzzle. In fact, I should say that I am less concerned with the question of the kind of ontological universe in which cosmopolitan norms can be said to exist, but more with the question of how these norms, whatever their ontological status, can shape, guide, and constrain political discourse by creating new spaces for evaluative articulation and by extending our political imagination. Let me now then move, uh, to the last two sections of, uh, this lecture, in which I try to flesh out, uh, cosmopolitan norms, the spread of cosmopolitan norms, what I mean by them, and conclude with the paradox of, um, uh, democratic self-determination and move towards a solution, hopefully, to some of these, uh, paradoxes in the second, uh, lecture.

Kant, Arendt, and Jaspers anticipated and intimated the evolution of cosmopolitan norms of justice. In the intervening years, institutional developments have led us to frame certain questions differently, while others can still very much be understood in terms of the puzzles they had identified. What are these institutional developments?

Since the 1948 Universal Declaration of Human Rights, an international human rights regime has emerged. By an international human rights regime, I understand a set of interrelated and overlapping global and regional regimes that encompass human rights treaties, as well as customary international law or international soft law. And, uh, the most commonly cited examples of such, uh, treaties and international human, um, rights conventions, I’m sure you’re all familiar with them, but the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against, um, women, the Convention Against Torture, et cetera.

Okay. Now, we are witnessing then the rise of an international human rights regime and the development of cosmopolitan norms in at least three interrelated areas. The first is, uh, crimes against humanity, genocide, and war crimes.

Since their first articulation by Allied powers in the Nuremberg trials of Nazi war criminals, these norms have been extended from situations of international armed conflict to cover civil wars within a country, and even the actions of governments against their own, uh, people. War crimes now refer to international as well as internal conflicts that involve the mistreatment or abuse of civilians, non-combatants, as well as one’s enemy in combat. Events within the borders of a sovereign country, which may be perpetrated by officials of that country and or by its citizens during peacetime, now also fall under the category of, uh, war crimes.

Again, this is a manifest instance of this new post-Westphalian understanding of sovereignty. The second count, humanitarian interventions. The theory and practice of humanitarian interventions, which the USA and its NATO allies appealed to in order to justify their actions against ethnic cleansing and to end the continuing crimes against the civilian populations in Bosnia and Kosovo suggests that when a sovereign nation state egregiously violates the basic human rights of a segment of its population on account of their religion, race, ethnicity, language, and culture, there is a generalized moral obligation in the international community to end actions such as genocide and crimes against humanity.

In such cases, again, human rights norms trump state sovereignty claims. No matter how controversial in interpretation and application they may be, humanitarian interventions are based on the growing consensus that the sovereignty of the state to dispose over the life, liberty, and property of its citizens is not unconditional or, or unlimited. State sovereignty is no longer the ultimate arbiter of the fate of citizens or residents.

The exercise of state sovereignty, even within domestic borders, is increasingly subject to internationally recognized norms. Transnational migrations. The third area in which international human rights norms are creating binding guidelines upon the will of sovereign states is that of international migration.

Humanitarian interventions deal with the treatment by nation states of their citizens or residents. Crimes against humanity and war crimes concern relations among enemies or opponents in nationally bounded as well as extraterritorial settings. Transnational migrations, by contrast, pertain to the rights of individuals, not insofar as they are considered members of concrete bounded communities, but insofar as they are human beings when they come into contact with, seek entry into, or want to become members of territorially bounded communities.

The Universal Declaration of Human Rights recognizes the right to freedom of movement across boundaries, a right to emigrate. That is, to leave a country, but not a right to immigrate, that is, to enter a country. That is Article Thirteen.

The right to emigrate is anchored in it, but not the right to immigrate. Article Fourteen anchors the right to enjoy asylum under certain circumstances, while Article One of the Declaration proclaims that everyone has a right to nationality. Yet, the Universal Declaration is silent on states’ obligations to grant entry to immigrants, to uphold the right of asylum, and to permit citizenship to alien residents and denizens.

These rights have no specific addressees, and they do not appear to anchor specific obligations on the part of the second or third parties to comply with them. Despite the cross-border character of these rights, the Declaration upholds the sovereignty of individual states. Thus, a series of internal contradictions between universal human rights and territorial sovereignty are built into the logic of the most comprehensive international law document in our world.

Sorry. The Geneva Convention of nineteen fifty-one relating to the status of refugees, and its protocol added in nineteen sixty-seven, are the second most important international legal document after the Universal Declaration. Nevertheless, neither the existence of these documents nor the creation of the United Nations High Commissioner on Refugees have altered the fact that this convention and its protocol are binding on signatory states alone and can be brazenly disregarded by non-signatories, and at times, even by signatory states themselves.

Some lament the fact that as international human rights norms are increasingly invoked in immigration, refugee, and asylum disputes, territorially delimited nations are challenged not only in their right to control borders, but also in their prerogative to define the boundaries of the national community. Others criticize the Universal Declaration for not endorsing institutional cosmopolitanism and for upholding an interstatal rather than a truly cosmopolitan international order. Yet one thing is clear: the treatment by states of citizens and residents within their boundaries is no longer an unchecked prerogative.

One of the cornerstones of Westphalian sovereignty, namely that states enjoy ultimate authority over all subjects and objects within their circumscribed territory, has been delegitimized through international law. I concur with David Held that cosmopolitan justice conceives of international law as a system of public law. Cosmopolitan sovereignty is the law of peoples because it places at its center the primacy of individual human beings as political agents and the accountability of power.

The evolution of cosmopolitan norms, however, is rife with a central contradiction. While territorially bounded states are increasingly subject to international norms, such states themselves are principal signatories as well as enforcers of the multiple and varied human rights treaties and conventions through which international norms spread. In this process, the state is both the addressee and it, and the state is sublated and reinforced in its authority.

Throughout the international system, as long as territorially bounded states are recognized as the sole legitimate units of negotiation and representation, a tension, and even at times a fatal contradiction is palpable. The modern state system is caught between sovereignty and hospitality, between the prerogative to choose to be a party in cosmopolitan norms and human rights treaties on the one hand, and the obligation to extend recognition to all human beings on the other hand. In a Kantian vein, by hospitality here, I mean to refer to all human rights claims which are cross-border in scope.

The tension between sovereignty and hospitality is all the more real for liberal democracies since they are based on the fragile but necessary negotiation of moral universalism and territorial sovereignty. So I now move to the very final section, which is an analysis of why this paradox between the universalistic scope of cosmopolitan norms and the claims of territorial sovereignty is particularly poignant for liberal democracies, and, uh, this, uh, section will then conclude, uh, today’s, um, lecture. Ideally, democratic rule means that all members of a sovereign body are to be respected as bearers of human rights, and that the consociates of the sovereign freely associate with one another to establish a regime of self-governance under which each is considered to be the author, both the author of the laws and subject to them.

This ideal of the original contract, as formulated by Jean-Jacques Rousseau and adopted by Kant, is a heuristically useful device for capturing the logic of modern democracies. Modern democracies, unlike their ancient counterparts, conceive of their citizens as rights-bearing consociates. The rights of the citizen rest upon the rights of man.

Les droits de l’homme et du citoyen do not contradict one another. Quite to the contrary, they are co– implicated. This is the idealized logic of the modern democratic revolutions following the American and French examples.

The democratic sovereign draws its legitimacy, though not merely from its act of constitution, but equally from the conformity of this act to universal principles of human s- rights that are in some sense said to precede and antedate the will of the sovereign, and in accordance with which the sovereign undertakes to bind itself. We the people, to use the phrase that my colleague Bruce Ackerman recently also made so resoundingly present to us again. We the people refers to a particular human community, circumscribed in space and time, sharing a particular culture, history, and legacy.

Yet this people establishes itself as a democratic body by acting in the name of the universal. The tension between universal human rights claims and particularistic cultural and national identities is constitutive of democratic legitimacy. Modern democracies act in the name of universal principles, which are then circumscribed within a particular civic community.

This is the Janus face of the modern nation, in the words of Jürgen Habermas. Since Rousseau, however, we also know that the will of the democratic people may be legitimate but unjust, unanimous but unwise. The general will and the will of all may not overlap either in theory or in practice.

Democratic rule and the claims of justice may contradict one another. The democratic pre-commitments expressed in the idealized allegiance to universal human rights need to be re-actualized and renegotiated within actual polities as democratic intentions or what I call democratic iterations. Potentially, there is always a conflict between an interpretation of these rights claims that precede the declared formulations of the sovereign and the actual enactments of the democratic people which could potentially violate such interpretations.

We encounter this conflict in the history of political thought as the conflict between liberalism and democracy, and even as the conflict between constitutionalism and popular sovereignty. In each case, the logic of the conflict is the same: to assure that the democratic sovereign will uphold certain constraints upon its will in virtue of its pre-commitment to certain formal and substantive interpretation of human rights. Liberal and democratic theorists disagree with one another as to the proper balance of this mix.

While strong liberals want to bind the sovereign will through a pre-commitment to a list of human rights, strong democrats reject such a pre-political understanding of rights and argue that rights must be open to renegotiation and reinterpretation by the sovereign people, admittedly within certain limits. Yet this paradox of democratic legitimacy also has a corollary which has been little noted. Every act of self-legislation is also an act of self-constitution.

We, the people, who agree to bind ourselves by these laws, are also defining ourselves as a we in the very act of self-legislation. It is not only the general laws of self-government which are articulated in this process, the community which binds itself by these laws defines itself by drawing boundaries as well, and these boundaries are territorial as well as civic. The will of the democratic sovereign can only extend over the territory which is under its jurisdiction.

In this sense, democracies require borders. Empires have frontiers, while democracies have borders. Democratic rule, unlike imperial dominion, is exercised in the name of some specific const- constituency and binds that constituency alone.

Therefore, at the same time that the democratic sovereign defines itself territorially, it defines itself in civic terms. Those who are full members of the sovereign are distinguished from those who fall under its protection, but who do not enjoy full membership rights. Historically, women and slaves, servants, propertyless white males, non-Christians, and non-white races were excluded from membership in the sovereign body and from the project of citizenship.

They were, in Kant’s famous words, mere auxiliaries to the commonwealth. Kant says, “Anhängsel der Republik,” literally, they hang on to the republic. The boundaries of the civil community then are of two kinds.

On the one hand, these boundaries define the status of those who enjoy second-class citizenship within the polity, but who can be considered members of the sovereign people in virtue of cultural, familiar, and religious attachments. Women, as well as non-propertied males before the extension of universal suffrage, fell under this category. The status of these groups is distinct from that of other residents who not only have second-class status, but who also do not belong to the sovereign people in virtue of relevant identity-based criteria.

Such was the status of African American slaves until after the Civil War and the declaration of the Fourteenth Amendment to the Constitution. Such was also the status of American Indians who were eventually granted tribal sovereignty. The status of those of Jewish faith in the original 13 colonies of the U.S. can also be described as one of transition from being mere auxiliaries to being full-fledged citizens.

In addition to these groups are those residents of the Commonwealth who do not enjoy full citizenship, either because they do not possess the requisite identity criteria through which the people defines itself, or because they belong to some other Commonwealth, or because they choose to remain outsiders. These are the aliens and the foreigners among the midst of the democratic people. Their status is distinct from second-class citizens, such as women and workers, as well as from slaves and tribal peoples.

Their status is governed by mutual treaties among sovereign entities, as would be the case with official representatives of a state power upon the territory of the other. And if they are civilians and live among citizens for economic, religious, or other cultural reasons, their rights and claims exist in that murky space defined by respect for human rights on the one hand, and by international customary law on the other. These are refugees from religious persecution, merchants and missionaries, migrants and adventurers, explorers and fortune seekers.

I have circumscribed then in general theoretical terms, the paradox of democratic legitimacy. The paradox is that the republican sovereign should undertake to bind its will by a series of precommitments to a set of formal and substantive norms usually referred to as human rights. The rights and claims of others, be they auxiliaries to the commonwealth, such as women, slaves, and propertyless males were once considered to be, or be they subjugated peoples or foreigners, are then negotiated upon this terrain flanked by human rights on the one hand and assertions of sovereignty on the other.

Now, I want to argue that this paradox of democratic legitimacy can never be fully resolved, but its impact can be mitigated through the renegotiation and reiteration of the dual commitments to human rights and sovereign self-determination. Popular sovereignty is not identical with territorial sovereignty, although the two are closely linked both historically and normatively. Popular sovereignty means that all full members of the demos are entitled to have a voice in the articulation of the laws by which the demos governs itself.

Democratic rule extends its jurisdiction to those who can view themselves as authors of such rules. But there has never been a perfect overlap between the circle of those who stand under the law’s authority and those entitled to be full members of the demos. Every democratic demos, every democratic people has dis-disenfranchised some, while recognizing only certain individuals as full citizens.

Territorial sovereignty and democratic voice have never matched completely. Yet presence within a circumscribed territory, and in particular continuing residence within it, brings one under the authority of the sovereign. The new politics of cosmopolitan membership is about negotiating the complex relationship between rights of full membership, democratic voice, and territorial residence.

While the demos, as the popular sovereign, must assert control over a specific territorial domain, it can also engage in reflexive acts of self-constitution, whereby the boundaries of the demos can be ad-readjusted through acts of democratic iterations. The evolution of cosmopolitan norms from crimes against humanity to those extending to refuge, asylum, and immigration, have caught most liberal democracies within a network of obligations to recognize universal rights claims. Although the asymmetry between the demos and the populace, between the democratic people and the population as such, has not been overcome, norms of hospitality in our days have gone far beyond what they were in Kant’s understanding.

The guest is no longer a guest, as Kant called him, but a resident alien, as we say, or a foreign co-citizen, as some European nations say. In a remarkable evolution of the norms of hospitality within the European Union in particular, the rights of third country nationals are increasingly protected by the European Convention on Fundamental Rights and Freedoms, with the consequence that citizenship, which was once the privileged status entitling, uh, one to all rights, has now been disaggregated into its constituent elements. Liberal democracies must learn to negotiate these paradoxes between the spread of cosmopolitan norms and the boundedness of democratic communities.

That they can do so successfully is the topic as well as the hope of my second lecture. Thank you.

(applause)

[01:08:51] INTRODUCER:
We now turn to our first commentator, uh, who is, uh, no stranger to these precincts. Jeremy Waldron, uh, is now the Maurice and Hilda Friedman Professor of Law and Director of the Columbia University Law School Center for Law and Philosophy. But from nineteen eighty-nine to nineteen ninety-six, he taught at Boalt Hall and was for a while an associate dean and chair of the Jurisprudence and Social Policy program here at Berkeley.

Before coming to us, he did his doctoral work at Oxford and taught philosophy at the University of Otago in his native New Zealand. Uh, appropriately, all of our speakers, um, this year are exemplars of cosmopolitanism, the cosmopolitanism about which we’re speaking. Uh, he was, uh, a native, uh, of New Zealand, where he also practiced, uh, law.

An internationally acclaimed expert in moral and political philosophy, especially as it overlaps with juris-jurisprudential issues. His publications include, in addition to several edited volumes, The Right to Private Property of nineteen eighty-eight, Liberal Rights of nineteen ninety-three, The Dignity of Legislation and Law and Disagreement, both of nineteen ninety-nine, and God, Locke, and Equality of 2002. In all of these works, Jeremy Waldron has shown himself to be a subtle and judicious anal-a-analyst of the thorny issues of rights, civil, human, and constitutional, and I gather as well in a new book, Cosmopolitan Rights, uh, as well as a philosopher whose work has practical consequences for the most pressing legal and political, uh, issues of the day.

It’s a special privilege to welcome him back to Berkeley to deliver the first response to Seyla, uh, Benhabib’s first lecture. Jeremy.

(applause and cheering)

[01:10:42] JEREMY WALDRON:
Well, it’s a huge pleasure to be back here, um, and to have the opportunity, uh, to comment on this rich and challenging lecture that we heard this afternoon. I want to, um, register my thanks to the committee, uh, for the invitation. It’s, um, very good to be able to return to California, especially to observe some meteorological contrasts that, uh, uh, have become apparent.

And I was thrilled by the subject matter of this lecture. Maybe there’s about, um, I don’t know, eight or nine people in the cosmos who are, are made ecstatic by a proposal to have a detailed discussion of Kant on the right to hospitality. But, but, uh, believe it or not, I’m one of them, and I really do, do want to, to, to focus on some of that, uh, this afternoon.

Cosmopolitanism, as Professor Benhabib rightly observes, has become one of the key words of our times. For some, it’s about the love of mankind. For others, it’s about the fluidity of culture.

And for still others, and that’s– this is the theme we’ve been en-enjoying this afternoon, cosmopolitanism is about the evolution of a set of norms, cosmopolitan norms, norms which help to order the world, ranging from norms which define crimes against humanity, through norms of refuge, asylum, and immigration, to the, the various norms that sustain a shared sense of our life together, not just in any particular society, but our life together, uh, on the face of the Earth. And, um, we have these norms. We know that the life of people and peoples on the face of the Earth is, uh, is, uh, not just an anarchy.

There is no world state, there is no world government, but the interaction of people and peoples on the face of the Earth does have a certain sort of order. And so I suppose the best way to approach the lectures this afternoon is to say that we are asking questions about the nature, um, of that order, right? First of all, the first question is that we want to ask what sort of order is this?

What are these emerging cosmopolitan norms? What is their content? What are they about, and what do they entail?

It’s one set of questions about content, and a second set of questions about status. Where does this ordering come from? How is it imposed, if it’s imposed, and by whose authority?

How is it sustained and upheld, interpreted and enforced? Is it law? Professor Benhabib asks, what are the ontological foundations of our cosmopolitan norms?

And that’s the second set of questions. What sort of norms are these in terms of their provenance and character? Moral, legal, or what?

And what is the basis of their authority? Both sets of questions are important, I think, because they challenge us to, um, think about world order in relation to legal systems, systems of law with which we’re already familiar, the legal order of particular societies and particular nation-states. They challenge us to think about the existence and the boundaries of local

(cough)

and political communities. Nation-states, for example, when they challenge us to think about the existence and boundaries of those communities in relation to a wider order in the world. The second question invites us to consider how cosmopolitan norms differ in their modes of existence, application, and enforcement from the norms of municipal law.

And the first question invites us to consider how the content and commitments of these cosmopolitan norms may challenge some of the substantive assumptions embodied in national law and politics. Not least, I think, because cosmopolitan norms address the issue of what national polities owe to anybody over whom they hold sway or anybody who comes within their sphere of influence or the sphere of their power, whether those persons are privileged as their nationals or as their citizens or not. So with your, um, indulgence, I would like to sort of rock back and forth between these two questions about content and status because, um, I think they throw a little light on each other, and maybe they throw a little light in a way that, that wasn’t quite brought out explicitly, uh, in the lecture this afternoon.

So let’s begin with the first question: What are these norms about? Near the beginning of this afternoon’s lecture, Professor Benhabib implied that she did not want to reduce cosmopolitan norms to a thin version of human rights to life, liberty, equality, and property, particularly if that thin version of human rights was merely supposed to accompany the spread of free markets and trading practices. It’s not just about human rights, and one of the ways in which she wants to fill out the picture is by reference, as I said, very extensive and compelling reference to Immanuel Kant’s discussion of cosmopolitan right in the essay on Toward Perpetual Peace and at the end of the first part of the Rechtslehre.

Professor Benhabib was particularly interested in an association that Kant makes between cosmopolitan right and a duty of hospitality. Cosmopolitan rights, said Kant, shall be limited to conditions of universal hospitality. Now, that’s– I mean, that was the, the stuff that I was thrilled to find that I had to talk about, uh, because I have lots of things I want to say about it.

On the face of it, what Kant says about hospitality s– makes it seem like quite a limited principle. As he sets it out, it concerns the particular duty that each of us, or each people, or each nation owes to strangers who, for some reason, fetch up on their shores. As Kant puts it, it is the right of a foreigner not to be treated with hostility because he has arrived on the land of the other.

I think that’s in the, in the quotation on the, the, the, the song sheet that we, we had. It’s a right of a foreigner not to be treated with hostility simply because he has arrived on the land of another. Now, it’s not hard to read into it a right of refuge and sojourn and a right of asylum.

It may be a bit of a stretch to say, as Professor Benhabib said towards the end of the lecture, that, uh, she meant by hospitality in the Kantian vein all human rights which are cross-border in scope, but I’m not complaining about the stretch as such. There would be no point in reading these anti– And this, this is said with, uh, apologies to my philosophical col-colleagues. There would be no point in reading these antiquated Prussian tracts if we didn’t stretch and distort them a bit to fit our current, uh, concerns.

But I wonder whether Professor Benhabib started her stretch in quite the right place. Hospitality, she said, is about our relation to one another as potential participants in a world republic. Hospitality is anchored in a republican cosmopolitical order.

And though at several points she did emphasize that cosmopolitan right is about individuals and not just about states, and that it’s different from international law and Kant’s conception, she ended up by saying that the obligation of Kantian hospitality is primarily an obligation on political sovereigns. So understood in this way, cosmopolitan right is about law, particularly international law. Maybe not international law just in the classic sense of only regulating the behavior of sovereigns inter se, but international law in the modern post-Westphalian sense that also includes obligations that sovereigns owe to individuals and certain obligations that individuals owe to the world order as such.

But maybe there’s also another way of thinking about cosmopolitan right that doesn’t initially involve states or juridically organized communities at all. Let’s think about it as simply relation among people or among peoples and nations in a sense that doesn’t necessarily line up with nation-state. We could think about Kantian hospitality as something about commerce and travel and settlement and contact, that list of people that, uh, Professor Benhabib mentioned at the very end of the lecture, the merchants and adventurers, the missionaries and fortune seekers.

It’s about commerce and travel and settlement and contact, the myriad processes by which humans at all levels of social organization, free traders in their own right, corporations, uh, freebooters, uh, as well as national colonizers, the myriad processes by which humans come into contact with one another. Each person, Kant says, has the right to visit, a right to present oneself before others with a view to interaction. This right, and this is a quotation from Kant, this right, to present oneself for society.

Here I am, do business with me. To present oneself for society belongs to all human beings by virtue of the right of possession in common of the earth’s surface, on which, as a sphere, they cannot disperse infinitely, but must finally put up with being alongside one another.” Though there are distinct peoples, we live in a bounded space, and if we move away from each other, we will end up approaching each other from the other direction, something that I know about coming from New Zealand.

It’s a very, very important, uh, image, and I think the corresponding duty, uh, on the one, on the one hand is a, is a duty not to treat another with hostility simply because he has shown up with a view to contact. That’s on the one hand, and on the other hand, not to treat one’s visit as an occasion for conquest, oppression, or exploitation, but really as an occasion to interact, uh, with another person. By the way, this discussion of Kant’s about hospitality is in the midst of his critique of European colonization and colonial exploitation in America and in Africa and in the Indies.

Places he says, where in fact Europeans drink wrongfulness like water. Kant is– was a ferocious critic of this violence and injustice and exploitation, but he didn’t infer from that the desirability of our staying away from one another. On the contrary, Kant regarded our commercial and other interaction as inevitable, and he developed his cosmopolitan norms as norms that relate to its inherent desirability.

Now, I emphasize this difference between what Kant says about, you know, interactions between travelers and merchants, and Professor Benhabib’s more state-oriented reading of, uh, cosmopolitan norms as norms about human rights and so on, because I think it has consequences for the second question she asked, which was the question about status. Where do these norms come from, and how are they sustained? Professor Benhabib posed those questions, I think, very acutely and circled back them– to them several times.

I’m not sure that they have been answered in this first lecture, and I think that we’re going to get a, a, a, a, an even richer account in the second lecture. But I think my reading of Kant on hospitality helps us see a couple of places where an answer may possibly lie. I know that two possible answers which Professor Benhabib, in common with Jaspers and Arendt, and perhaps Kant too, wanted to rule out was simply to regard cosmopolitan norms as natural law on the one hand, or simply to see them as positive law on the other.

They’re neither fish nor fowl in that, uh, dichotomy. Certainly, she is right to insist that cosmopolitan norms are not natural law in the sense that moral philosophers might claim to study natural law. They’re not just moralistic wishes dressed up in the notional garb of objectivity.

They’re not just theorems of natural law whose correspondence to moral reality we assert in order to get credibility among our colleagues, but which have no worldly presence apart from such assertions. So they’re not merely sort of, uh, moralistic wishes. What about positive law?

Well, the rights and duties she is talking about, and the rights and duties I am talking about are not positive law in the sense of being commands upheld with steel or institutionalized in a Hobbesian way. And it would probably not be a good thing if, if they were. I remind you that Professor Benhabib associated herself quite properly with Kant’s ob-observation that a world government enforcing positive law on a global scale in a Hobbesian way would involve the most fearful, uh, despotism.

But still, I want to stick with positive law for a moment because legal positivism is a complicated doctrine, and I worry that Professor Benhabib might be in danger of oversimplifying it by associating it too closely with Hobbesian command and Hobbesian sanction. Positive law is not just command and sanction. It can also, for one thing, be custom and practice.

Customs can be immemorial customs, like the burial laws for which Antigone risked death, and of which she said, “Their life is not of today or yesterday, but from all time, and no man knows when they were first put forth.” Not a natural law view, but a view about the Immemorial worldly presence of certain customs. They can be immemorial customs, or they can be more recently evolving ones, ones that have grown up out of, but also helped to constitute a sense of order and a shared and mutually expressible sense that our interactions are governed by norms, even when there is no one to impose norms, and even when there is nobody to enforce them.

Think, for example, and I know this risks going back into the, into the realm of globalization and free trade that, uh, Professor Benhabib wanted to shift our focus away from at the beginning. But just think for a moment about how trade between different peoples originating from opposite ends of the Earth managed to establish itself without the imposition of overarching legal frameworks in the world. People come into contact with one another, and they begin very tentatively and awkwardly, and with a great deal of diffidence and perhaps hostility and distrust, but they begin tentatively to exchange things.

Tentatively at first, but quickly proceeding in a way that is on each side, analogous to practices of exchange that that particular person has already become familiar with in more limited and secured social settings. Normative gestures are made, little rituals are gone through that may be unintelligible to the other side, but then analogies establish themselves. And in the context of growing trust, there is a set of practices and rules that comes into existence.

And when you think about it, this is how the rudiments of law come into existence. I mean, this is how law was revived, um, in, uh, a thousand years ago in Europe. They come into existence in patterns of repetition, reflection, and familiarity as people begin to, um, establish, uh, ways of trusting and working with one another.

I mean, again, just sticking with this example of trade, we often forget, I think, how much the practices of trade precede the growth of commercial law. People trade first and develop the law of trading in their commerce. And the law of trading exists.

It’s not imposed by anybody. It’s not enforced by anything except by merchants keeping track of one another. And it grows up along the trade routes.

It grows up in the interstices of bounded societies. What we call the commercial law of particular countries then is in large part a development out of that, out of the lex mercatoria that grows up in the interstices rather than the other way around. Well, in fact, possibly it works both ways.

Commercial practices grow up within a society and are projected outwards. Commercial practices grow up in the interstices between societies and are projected inwards. And I think in that to and fro, we see a basis on which, um, norms and practices can develop.

And I believe that that to and fro, some customs growing up in the interstices and being projected inwards, some customs growing up within secure communities and being projected outwards, is key not only to this issue of trade, but to a number of the other issues that Professor Benhabib was thinking about. Sojourn, asylum, refuge, immigration. Each society develops its own ways of thinking about these and projects them outwards, and then the community of the world develops some of its own ways of thinking about them and projects, and, and, and there’s a, there’s a kind of interlacing, by no means without difficulty, but, uh, it’s an interlacing that indicates that cosmopolitan norms don’t exist in a separate sphere where there could be any question of their trumping national law– norms.

They grow up inside and beside and around and within national norms, not as a distinct, uh, set of, uh, different, uh, uh, a different juridical reality. Well, that’s just one example, but it’s an example how the mundane growth of contact between different humans and different human groups can lay the foundations for cosmopolitan right that doesn’t necessarily, uh, presuppose, uh, a juridical apparatus. I mean, I don’t want to ignore, I mean, it’s a very Pollyanna-ish story I’ve just told, and I don’t want to ignore the, the, the, the more vicious side.

As I said, Kant was a ferocious critic of some contemporary colonial and mercantile practices. But he– when, when he reflected on his criticisms of colonial practices. Again, he observed that this was not just a philosopher’s reaction, or this was not just a subjective matter of sentiment.

Cosmopolitan right, he said, is not just a bright normative idea, what he thunk up in the way that a political philosopher in New England might purport to think up a new theory of justice. Cosmopolitan right has a positive expository element also. It does justice to sentiments that are shared and held and experienced as shared, uh, in the world.

As Kant said, “The narrower or wider community of the nations of the earth has now gone so far that a violation of right on one party of the earth is felt in all.” There is a shared and growing, um, growing, uh, reflexive reinforcement of sentiments, and these sentiments add up in their global presence to a sort of positive morality, which is also part of the foundation of, um, positive law. And finally, and I think all the time we need to think of, if we’re as-, if we’re serious about these questions about the status of cosmopolitan norms, we need to think about layering and the, and the imbrication of different layers.

Finally, they lay the foundation for an additional layer of positive law ideas of a different sort. For although cosmopolitan right is not enforced by a Hobbesian superstate, there are juridical ideas about cosmopolitan right abroad in the world. There is a paper trail, not just the record of philosophical musings, but something like but short of enforceable legislation on the state model.

There are meetings and debates and resolutions and charters and covenants and all the things that Professor Benhabib mentioned under the heading of international soft law, uh, towards the end of her comments today. And although that’s often used to disparage the positive law credentials of these materials, that would be to ignore the point that positive law is never just thunderously imposed, but often grows up out of the accretion and the gradual crystallization of materials such as these. I mean, just as an analogy, Professor Benhabib began with Hannah Arendt and with Hannah Arendt’s initial skepticism and her anxiety about the idea of crimes against humanity, and she associated herself with Arendt’s position in this and many other regards.

But it is instructive to remember how terribly Hannah Arendt misjudged and underestimated the growth of the human rights movement. In nineteen fifty-one, in The Origins of Totalitarianism, she wrote this about what had been going on in the contemporary growth of human rights law. “All attempts to arrive at a new Bill of Rights were sponsored by marginal figures, by a few international jurists without political experience, or by professional philanthropists supported by the uncertain sentiments of professional idealists.

The groups they formed, the declarations they issued, showed an uncanny similarity in language and composition to that of societies for the prevention of cruelty to animals. No statesman, no political figure of any importance could possibly take them seriously.” This was written just as international human rights law was beginning precisely to grow and crystallize out of what she was dismissing in a Burkean spirit as chaff and rags and paltry blurred shreds of paper about the rights of man.

So I think Arendt underestimated, and sometimes when we press these questions, we tend to underestimate the extent to which documents which begin by just being public resolutions can crystallize and interlace with one another. And with the other tendency I mentioned, the, the growth of customs, to form the basis, uh, of a body of law which takes on a life of its own, even in defiance of the theorist’s, um, anxiety. Now, I mean, I mention all this not least because I think the possibilities that I have sketched out ought to offer us some grounds for optimism that cosmopolitan right can survive the hostility and indifference of particular sovereigns or particular political regimes, such as the one that we currently live under in this country.

If we see cosmopolitan right only through the lens of the obligations of sovereigns, then there is reason for pessimism whenever the sovereigns turn their back on the project. But if we see cosmopolitan norms as a dense and broad thicket, dense and broad over these wide ranges that I have talked about, thicket of practices and relationships constituting and regulating domains of contact and interaction of all sorts, not only between states, but over the heads of states and beneath the notice of states, through traders and scientists and missionaries and merchants of all sorts, then we are looking, I think, at something more resilient, especially when we conceive of it as entangled with this other enterprise of producing charters and declarations and the sentiments that sustain that. So I would put all this forward, I think to, to, to, to build on and supplement what Professor Benhabib has said about the, the status and the, the reality, the ontological reality of, uh, these evolving norms of cosmopolitan right.

Let me add one last thing which rocks me back to the first question about their content, the content of the cosmopolitan norms. I have emphasized the difference between my account and Professor Benhabib’s account of what the right of hospitality is about. For her, it’s about human rights, asylum, and the system of states.

I have tried to stress a less juridical, um, aspect of it, that it’s about cond– commerce and contact and interaction at the level of individuals, at the civil society level, rather than at the level of, um, sovereigns. I think also, and this perhaps is my stretch, my distortion of Kant, I think also that the duty of hospitality as he presents it, the right to visit, the duty to hos– of hospitality, are also the expression of a certain attitude towards culture. I want to go back just for a fleeting moment to the second of the meanings of cosmopolitanism that were distinguished, um, at the beginning.

A general attitude to the prospect of different peoples coming into contact with one another. What Kant is saying, I believe, is that the mere fact that a group of explorers and merchants and missionaries from one culture want to make contact with members of another culture is not to be regarded in itself as an affront. No doubt, such contacts will compromise the identity and purity of one or both of the cultures involved, but that itself is not to be regarded as a ground for hostility.

Or to put it the other way around, if Kant, like some modern theorists, had regarded the integrity of particular cultures and languages and ways of life as something to be preserved and treated with kid gloves and solicitude, something whose preservation was basic to this area of rights as among peoples, then I think he would have had to have presented the background right to visit in quite a different light, hedging it round with all sorts of restrictions, not only of consent, but of something like cultural quarantine. Certainly, the sanguine way in which he envisages cosmopolitan community, uh, I think is quite incompatible with either the, the, uh, the norm of purity or the ideal of integrity that is sometimes associated with, um, cultural identity politics. It’s, it’s, it’s more in the sense that for Kant, he thinks it tells us something very important about ourselves as human beings, that we will inevitably make contact with one another, and that the circumstances of our life together in bounded societies is not necessarily to be regarded as compromised by the, by the, uh, the proximity of people who are different in their ways of life and in their ideas from ourselves.

In our seminar on Thursday, if there is time, I will talk a little bit about what follows from all this so far as the Kantian attitude towards the formation of particular states and communities is concerned. You’ll recall that a few minutes ago, I quoted Kant talking about the limits of our dispersal on a spherical earth. We cannot disperse infinitely, but we must finally put up with being near to one another.

I think something I call the principle of proximity is key to Kant’s view of political community. We have an obligation to enter into political society with whoever happens to be near us, with those with whom one is, in Kant’s phrase, unavoidably side by side, whether they are like us or whether we like them or not. And I think this puts Kant’s political philosophy into a category that is utterly opposed to any sort of nationalist politics or affinity-based identity politics.

So I just wanted to mention that as my, as, as, as my final point. I don’t believe that Kant valued affinity communities as such. I think he valued republican communities as such, but didn’t place no value on the fact of republican communities reflecting an underlying cultural homogeneity.

And the last point I would mention is that we should take advantage of that, I think, in our thinking about rights and in our thinking about human rights and cosmopolitan norms generally, to welcome the diversity of different cultures as learning grounds and as bases for, uh, reflection and criticism and self-criticism of any sort of premature consensus that we might have as to what human rights amount to. So long as we are sure that we have something to learn about human rights, we should value the existence of diverse opinions about human rights in differing political communities and not seek, I think, to impose prematurely a cosmopolitan consensus on these matters. Thank you very much indeed.

[01:38:24] SEYLA BENHABIB:
Uh, these are, are really wonderful, um, observations and criticisms. Let me begin by saying that I completely agree with, uh, Professor Waldron in terms of the spirit, um, with which he characterizes Kant’s discussion of cosmopolitanism, both its, uh, anti- Uh, colonialist, anti-Eurocentric, uh, commitments, and yet at the same time, I think the very poignant Enlightenment commitment, uh, for Kant that human beings will seek contact with one another, and that it is part of our, uh, spirit, our reason that we will te- we will do so.

And how can one seek that, uh, seek to contact, but without ending in exploitation, imperialism, or confrontation? So there is a kind of poignancy to this discussion of cosmopolitan right. But, uh, there are a couple of areas of, uh, continuing disagreement, and, um, I will mention the first, but the first may be more the topic for the, uh, seminar, and then I want to focus on the other two, uh, this afternoon.

The first is the philosophical justification of cosmopolitan right in Kant’s text. What exactly is it really that leads Kant to say the right of hospitality is the one right that belongs to us insofar as we are to be considered as citizens of a world republic. And we have to sort out a little bit the uh, premise of proximity, what you call the politics of proximity, that the Earth is round and the further we go, the more at some point we have to reach one another.

I don’t regard this as a justificatory arg- uh, argument, and I think that and I think that Professor Waldron calls this in an article also. It’s more a reflection upon a circumstance of just- justice in the Rawlsian or Humean sense really, rather than a justificatory premise.

So we come back to the question of how exactly is Kant justifying hospitality? There are two other premises. One is the idea of the original common possession of the face of the Earth, that none of us, uh, has any more right than the other, uh, to be born, uh, onto the specific piece of, uh, land that we are in, that it is basically merely accidental that we happen to be there and not somewhere else.

That’s one premise. And the third is the question of, um, the principle of right and the idea that if our actions impact one another, in whatever way, we have an obligation to enter into a rightful community. So we may want to sort of sort out these three levels of justification because the passage itself really slides across, um, uh, all three meanings.

Now, I think the, the most important, uh, objection that Professor Waldron raises is whether my account of the right of hospitality, whatever its philosophical foundations, is quote-unquote state-centric. And there is a, a great deal at stake here. I do not regard Lex Mercatoria as the paradigm for the development of cosmopolitan norms.

And, um, there is a complicated relationship here, and I th- Uh, thank Professor Waldron for pointing out that indeed I think that the account of particularly legal positivism that I give would need to be, uh, e-enriched and, and textured. It would need to be further developed.

But here is the issue. Even in the, uh, text, uh, just, uh, to stick with Kant for a minute, uh, uh, Kant uses two terms. Human beings have the right to seek zugang, contact, But not Eingang, not entry.

Okay? So you have the right to seek contact with other human beings, access to them, but you do not have the right of entry. Now, for me, uh, this is important because it brings back the question of, uh, sovereignty.

And there is a paradox of sovereignty that I’m struggling with in the, um, account of cosmopolitan, uh, norms. And, uh, I think that even, uh, Kant, who was committed to the development of a global civil society, a civil society in which we would all be also me-members, uh, right-bearing, bearing individuals contacting with one another, was aware of this question of territoriality and limitedness, and how somehow the issue of boundaries, um, e-emerged. That’s why I focus on his very careful distinction between Zugang and Eingang, or between, uh, what he calls Besuchsrecht, the right of visitation, and the right of permanent stay, Gastrecht.

Now, this, to me, is still, uh, the, uh, tension at the heart of all territorially bounded, uh, democratic, you know, liberal societies. And it’s the, it’s the tension between civil society and the state, if you wish, that the, that the territorial state, uh, i-i confines it. And there is a moment also of necessary and inevitable violence in that territorial closure.

And when we focus upon the rights of refuge, asylum, and immigration, the limits of lex mercatoria become visible. In other words, the evolution of commercial, uh, norms and law and, and there is now a discussion, as you well, in, in contemporary jurisprudence really, about whether the system of global law has not made itself so independent that all the state-centric conversation is inadequate, Gunther Teubner’s position, for example. But I think that, uh, these arguments are, um, need to address at some, uh, point, uh, the, the moment of still danger and violence that lurks at the border.

I mean, either we’re going to go and plead for a world without borders, which is, I think, a very honorable and consistent position, but I happen to think that that’s a moral position, it’s not a political position, or we’re going to find a way of dealing with the paradox of bounded communities and the evolution of cosmopolitan norms. And finally, that’s why I began with Hannah Arendt. I agree, uh, with, uh, your, uh, comment that, um, uh, Arendt was in such despair, uh, about the right to have rights and the development, uh, and the phenomenon of statelessness, right?

And we have to give her historical, uh, we have to understand her in historical context. I mean, she was looking at the emergence of stateless peoples, and statelessness for her was the first step towards becoming rendered superfluous, and genocide is usually committed upon stateless peoples. I mean, I wanna remind you that when the Yugoslav- when the Serbian acts of genocide began in Bosnia, one of the first acts that occurred was they took away people’s driving licenses.

They had no identity cards. You know, you do not co-commit genocide upon people who are still members of specific political bodies. You cast them out.

You render them, uh, stateless. And Arendt was aware of the danger and the violence that permanently lurks within the state, um, uh, system. And that’s why she sounds, uh, truly Burkean in those moments when she’s so skeptical about the right to have rights.

Uh, I do not share that skepticism, but what I take from her is, uh, her sense of the, uh, potential, um, danger that lurks in the fragile state system within which, after all, we have housed democracies. And my concern is less with the territorial state, but with the housing of democracy and the development of cosmopolitan norms. But we will have a chance to come back to all this again on Thursday.

Thank you.

[01:46:53] INTRODUCER:
Thank you. We have about a half hour now, and I gather there is a microphone. Is that right?

So those of you who want to, uh, address, uh, the either, either member of the panel, please, uh, raise your hand. I don’t know if you wanna ma-make a line. I want to begin over there, and then, uh, the mic, uh, will give you access to the floor.

(background chatter)

[01:47:12] PROFESSOR NAGEL:
Um, I have some difficulty, uh, feeling a paradox about the relation between democratic legitimacy, uh, and cosmopolitan norms, perhaps because, uh, I already have a conception of democracy which incorporates, uh, strong limitations on the legitimate exercise of democratic power, Um, when it comes to, uh, things like crimes against humanity, um, it, it would only be an adherent of a Hobbesian conception of unlimited sovereign authority who would find anything paradoxical, I would think, uh, about, um, the idea that a sovereign power has forfeited its immunity from interference if it begins to exterminate, uh, an ethnic community, uh, within its borders. So it-it seems to me that the development of cosmopolitan human rights standards is a natural side effect of the gradual spread of the conception of legitimacy, which incorporates limits to to what a state may do, democratic or not, um, in virtue of it holding sovereign power. I mean, these two developments seem, it seems to me, uh, have gone side by side and are naturally connected.

So I, I think in terms of the alternative you began with, uh, the explanation is a natural law explanation. That might not be the term that I would prefer, but, uh, it is by way of appealing to moral standards that

(coughs)

are built-in limits on, uh, the legitimacy ex-exercise of sovereign power and not, uh, as, uh, what the Professor Waldron said, merely moralistic wishes. I actually think you were a bit inconsistent because you then derided Hannah Arendt for saying exactly the same thing about, uh, the growth of, uh, human rights ideas, that they’re just moralistic wishes. Um, moral ideas are what has driven this movement.

And, uh, so if, if it’s a choice between positivism and natural law, it’s the latter that is really behind all this.

[01:50:27] SEYLA BENHABIB:
Um, um, thank you, uh, Professor Nagel. Uh, nice to see you here. Uh, I, I, I think that, uh, the parallel development of conceptions of democratic legitimacy and cosmopolitan norms, uh, is a very important, um, observation.

Um, I mean, uh, if looked at, uh, historically, uh, perhaps the growing awareness in democracies about minority rights and cosmopolitan norms, uh, are both, if you wish, internal and external aspects of this, and I’m sure one could present an account of the history of the evolution of legal norms, something that, um, well, Will Kymlicka has done also in some of his work about, uh, mi-minority rights become the crucial, the crucial area where, in fact, uh, cosmopolitan norms then are, um, incorporated or re– uh, or internalized by democratic majorities as forming, uh, constraints. You cannot, uh, deny language rights, cultural self-expression rights, or use simply majoritarian legislation to deny the rights of specific minorities. So there is, there is an in-interrelationship, um, uh, there and, uh, p- p-particularly, of course, also, a concept like, uh, crimes against, um, humanity, which has a significant, uh, background.

I mean, my gosh, I mean, we didn’t need the concept of crimes against humanity to know that this was, uh, this was wrong, you know? Uh, right. Maybe big Christian law, Stoic law, jus gentium, uh, the Roman understanding would tell you that, you know, you do not murder innocent, uh, civilians and children and non-combatants.

These are— were, were all there. The, uh, the interesting, um, uh, aspect, though, of the concept of crimes against, um, uh, humanity was, uh, that, uh, that it made humanity not just a moral category but also a legal, uh, a juridical, a protected entity. And again, coming back a bit, you know, to the, uh, question about, um, uh, Hannah Arendt and why she may or she may not have been skeptical about, uh, about this.

We know now, for example, from, uh, Samantha Power’s book about, uh, uh, Ralph Lemkin and the emergence of the Genocide Convention, in ways that seem absolutely mind-boggling to us today. In fact, how much there were reservations against signing the Genocide Convention, and among a number of, you know, also Southern politicians in this country who saw the Genocide Convention as trumping states’ rights and as putting forward international norms then into the, you know, from a federalist perspective. So I, I think that maybe historically, um, uh, we, uh, have to remind ourselves, uh, of, uh, the fact that, uh, uh, these concepts, when they were first articulated, and I’ve been reading about the background of the Nuremberg trials, they were uncomfortable for the jurists themselves.

They did not quite know what exactly this, this concept of crime against humanity was if there was no legal, uh, sovereign that seemed to stand, um, forward. And indeed, the, um, uh, Nuremberg trials, the debate between natural law theorists and, uh, legal positivists was in-intense. And, um, so, uh, I, I, I, I think that you’re absolutely right to point out to the m-much more complex relationship here between democratic legitimacy and cosmopolitan norms.

But I will stay, uh, on this, uh, I will insist on this, um, that,

(breath)

particularly when you look at the domain of, um, citizenship and non-citizen, between the insiders and outsiders, and the rights of foreigners, In this respect also, the, uh, US law is quite, uh, quite, um, um, uh, remarkable because in extraordinary ways, uh, for example, we, uh, ignore that most immigration legislation is a plenipotentiary act in this, uh, republic. It is not– I mean, human rights concerns govern the decisions of judges, but it is up to the, uh, uh, Congress.

And so a lot of immigration legislation is really very much dependent upon the model of democratic sovereignty. And it is mind-boggling to think that the largest immigrant nation in the world still, you know, we have a jurisprudence that is quite, quite remarkably sovereignist when it comes, uh, to these acts. So, uh, There I see the need, uh, to think through and to think forward, uh, this contrast between democratic legitimacy and cosmopolitan norms.

And again, immigration, uh, decisions, uh, show to you both the pos-possible variation, but as well as the conflict here. But thank you for the, the comments.

[01:55:45] INTRODUCER:
Jeremy, do you want to-

[01:55:47] JEREMY WALDRON:
Um, just very briefly. I think in a sense, if we concentrate on crimes against humanity, we make it too easy to take this position. And when we move, I think, to issues about asylum and refuge and migration generally, there’s where we see the paradox kicking in, and there’s where we see that, that simply the, the fact that it is, it is believed by some people to be a natural law truth that a society owes refuge to those who have nowhere else to go.

That by itself wouldn’t be su-sufficient. What we’d be interested in is the layering of those sentiments upon each other and the building up of practices that would enable us to talk about law or rights in the matter.

[01:56:26] SEYLA BENHABIB:
Another question? Yes.

[01:56:32] AUDIENCE MEMBER:
I think this might be a follow-up on Tom’s question. Uh, but I, uh, I wanted to hear more by way of explanation about, um, something you said, uh, when talking about cosmopolitan norms, um, in the, in the course of the, the lecture, which was that we shouldn’t understand them as merely moral oughts, but rather as binding obligations. And I guess what I, what I wanted to, um, hear more about was just how we’re to understand that contrast between mere moral oughts on the one hand and binding obligations on the other hand.

I mean, you know, from one way of looking at things, if you’re comfortable talking about universal moral principles, uh, whatever their ontological status might be, that would generate moral oughts that apply to anyone, then there’s already a sense in which we have norms that are sources of obligation. Uh, and, and in some sense, binding obligations. I mean, if we’re talking about moral oughts that really do apply to everyone, then it’s a binding norm that people, you know, they, they define standards of conduct that people ought to comply with.

Uh, but you’re suggesting that the cosmopolitan norms that you’re interested in, uh, they’re especially problematic or paradoxical when we think of them as binding obligations. So I’m, I’m wondering what is this element of binding obli-obligation that goes beyond, uh, the mere status of a, of a norm or principle as, uh, the sort of thing that might ground, uh, a legitimate moral au– I mean, one thing that occurs to me to think about in this connection and, uh, um, might be something along the following lines. So I’ll throw this out as a suggestion and see if it’s part of what you had in mind.

I mean, I suppose you might think that, um, uh, one, one issue that’s not yet resolved, if you merely talk about, uh, moral oughts that apply to anyone, uh, would be whether or under what circumstances it might be appropriate or legitimate for, uh, other states to, um, interfere in the internal affairs of, uh, a state that fails to comply with these norms, uh, in the spirit of something like humanitarian intervention, right? And we distinguish, you, you might say, between, um, violations of moral principles or moral oughts that might seem to render that kind of action on the part of a third party or, uh, another state appropriate and violations which don’t. So, you know, the, the Europeans, presumably, no one would think that they ought to, you know, uh, invade the United States and, and impose universal health insurance, even if it’s a binding norm of justice that all, you know, all citizens should have access to that sort of thing.

But, but of course, if you get a serious violation of, um, you know, a genocidal violation of individual rights within a country, then humanitarian intervention seems appropriate. And so there’s a, um, a different kind of standing that these two kinds of violations might have. I would think of this myself in ter-in the terms that Tom was suggesting as, uh, a, a question of delimiting the, you know, the basic conditions of political legitimacy, right?

And we have some conde– more elemental conception, uh, than a conception of justice of the, uh, basic conditions that have to be satisfied by a democratic regime in order for its exercise of sovereign political authority to seem, um, you know, basically, uh, legitimate and, uh, cases where universal norms, uh, define conditions of legitimacy in that sense might seem to the sort of cases that would invite us to think that something like humanitarian intervent-intervention is, is called for. But I’m not sure if that’s what you had in mind when you’re talking about binding obligation as distinct from mere moral oughts.

[02:00:05] SEYLA BENHABIB:
Right. Um, uh, two observations. I think that in the particular passage that you are referring to, the contrast I intended to draw between, um, moral ought and binding obligation was in terms of moral oughts addressed to individuals and binding obligations addressed to collective actors.

Because otherwise it would really be tautological because oughts are binding obligations. But I was drawing a contrast between individuals and, uh, collective actors. In this case, I was talking about states, although states are not the only relevant collective actors.

In some cases, corporations, for example, uh, are violators of, you know, human rights as well as we saw in many cases in South, um, South Africa. So in that sense, the contrast, uh, is between the individual moral obligations and binding norms on collective, and I focused primarily on state, um, uh, state actors. But, um, uh, the second part of your statement suggests, um, to me, uh, that what, uh, you would like to do, you know, following here also on Thomas Nagel’s objec-observation, is bring, uh, democratic legitimacy and a normative theory of justice so close together that in effect you would be in the position of saying that even, uh, that procedurally that, uh, democratic majoritarian decisions that have been procedurally enacted, let’s say, in a thin sense of proceduralism, that it satisfies criteria, are unjust if they don’t meet the more ambitious and substantive criteria of democratic legitimacy, which you are propounding.

This is not the route I want to go. I want to see a, uh, more, um, uh, uh, contentious, m-more, uh, open, but necessarily, um, interrelated, uh, uh, uh, tension between the claims of justice and the wills of democratic majorities. I think we, we have to live with the potential, with the potential tension here.

And, uh, I think that mature liberal democracies a-are capable of negotiating this and are capable of making the claims of justice, the claims of democracies. And in fact, Euro-democracies’ democratic legitimacy, even in a procedural sense, will entail, uh, strong claims of justice in terms of both substantive rights and proceduralism itself entails a moral core. Uh, I’ll agree with that.

But, uh, I think that, uh, like, um, um, Ackerman, I think, I want to hold on to the tension between the voluntarist moment and the moment of, uh, natural law, that, that that democracy is about negotiating, uh, that, uh, that, uh, tension and reiterating it and reappropriating, uh, reappropriating it. Um, uh, so, um, uh, I, uh, I, you know, I appreciate here again your, your observation that, uh, uh, the contrasts maybe are less stark than I made them out to be, you know, in this, in this first lecture for setting out, uh, the problem. But I would not want to define democratic legitimacy in such a substantive and procedural way that already all the claims of justice would be…

I mean, we have to contemplate the possibilities that democratic majorities may be unwise and sometimes even unjust, and we need to be able to criticize that without saying they are not therefore undemocratic. And that, that’s the-

[02:04:05] INTRODUCER:
In the back. Please.

[02:04:07] AUDIENCE MEMBER:
Can I ask a really quick question?

[02:04:09] INTRODUCER:
Hold on.

[02:04:15] AUDIENCE MEMBER:
Uh, I, I think from this response, my question is, uh, maybe just a point of clarification, because you were just talking a lot about the tension between democratic boundaries and norms. Now you’re talking about norms and, um, and, uh, the cosmopolitan norms. Uh, so I was concerned about the extent to which you were comfortable with the problem of tension within the concept of universal norms about as well as the tension that comes with conf– inevitable conflict between norms that may or may not have, uh, well, that I, I would claim never can have total consensus.

[02:05:04] SEYLA BENHABIB:
Mm-hmm.

[02:05:05] AUDIENCE MEMBER:
So that, uh, I didn’t know where your position fit with, uh, on that, what I think is a Kantian dilemma about the fact that you cannot get, um, absolutes that everyone will agree on, and that even the extent to which you can have a lot of consensus about norms, there will be conflicts between those norms in solving human problems, social problems.

[02:05:31] SEYLA BENHABIB:
Mm-hmm. Uh, if I understand you correctly, I mean, the one thing I would, uh, say about this, uh, tension within the, uh, universal norms, um, uh, themselves. In, um, uh, tomorrow’s lecture, I will talk about, uh, about what happens or, in processes or how we are to understand processes when, uh, for example, political actors who have been, uh, excluded, uh, from, uh, the language of rights, not even intentionally, okay?

But in that they have not appropriated this language and made it their own, in that they have not seen themselves as addressees of these right claims. What happens in such processes? So of course, uh, all universals are marked by their own, uh, exclusions.

But at the same time, uh, I will argue and maybe, uh, Bonnie Honig will challenge me on this side, I anticipate this, that universals have a context transcending quality. And what makes them particularly universal norms is the fact that although they bear the, the marks and the insignia of their particularistic origin, I mean, after all, we the people, we know what it’s referred to, and, you know, the three-fifths exclusion of Black Americans, of women, and so on. You know, all universals bear that insignia, right?

But their mark is also that they can be reappropriated precisely because their validity is not exhausted by their having been uttered, you know, in a certain s- place and, and time. And that, that’s the, the context of… So that’s the context of the norm, the ought that transcends that.

[02:07:20] INTRODUCER:
Please, Paul.

[02:07:21] PAUL:
Um, I better have the microphone.

[02:07:25] INTRODUCER:
There’s one.

[02:07:26] PAUL:
Oh, sorry. Um, there are, seems to be many fascinating issues, um, in contest here between Professor Waldron and Professor Benhabib. Uh, and there’s one that hasn’t been raised yet in the questions.

I hope I’m not interrupting the tenor of the questions in floating it. But it has to do with Kant, and it has to do with why Kant focused on the phenomenon of hospitality. Um, which is not, I think, the most immediate thing people these days would focus on, but I think it has quite a long history.

And that, in turn, raises the question of, you know, should we restrict our discussion to the sovereign ter-territorial state as we understand it today, which after all is not the same thing as democratic legitimacy, God knows. Or should we cast our net rather farther back? Uh, and I have a kind of instinctive feeling that I think we should cast our net further back, if only for the reason that we don’t know that a sovereign territorial state, uh, which is a reality, will persist, and we don’t know whether democratic legitimacy, which is a, which is a project and unfinished business, will persist or even survive either.

And it just struck me in listening to what Professor Waldron in particular was saying, that some of the most, uh, memorable and distinctive discussions of hospitality I can recall ever reading are from the ancient world. Um, I’m thinking in particular of Moses Finley. I think it’s The World of Odysseus, but it’s some time since I read it, where there is a very, very interesting discussion of hospitality.

Uh, having nothing to do with the sovereign ter-territorial state, and for that matter, having nothing to do with natural law either. That is, there is a certain way of behaving and of comporting oneself towards gift– towards others who present themselves, even if those others are potentially hostile. Uh, this is all, uh, drawn from Homer.

Uh, you don’t just slaughter people because they happen to turn up and wouldn’t need your hospitality. And that in turn, uh, kind of raises the question of, do we necessarily need Or they may even come to think of it being an echo of this. Um, I’m, I hope I’m not being belletristic here, but I’m thinking of Shakespeare, I’m thinking of Antony and Cleopatra.

I’m thinking of the barge, not the barge on which she swans down the Nile, but the other barge, which is Antony’s barge, on which he holds a banquet. And one of his, um, consiglieri, I think it’s Enobarbus, if memory serves, comes up to him, takes him aside and says, “Okay, boss, let me, let me cut the horse of ropes. You can do in the other two triumvirs, and then you will be the capo di tutti capi.”

Uh, and Antony replies, “Oh, you should have just done it” without asking me,” because if it’s my decision, I’d be going back on my word as host. These people are my guests, whatever else they may be. They may be rivals.”

Now, what interests me about both of these examples, apart from anything else, is– Now, I really can’t resist this because this has been the only time in my life I will ever get to correct a Professor Benhabib. The phrase in Hobbes is not, “Sovereigns without the sword are but words.” It is, “Covenants without the sword are but words.”

He’s not writing a position when there are sovereign, sovereign national states or units or a desi-desideratum. Still, as Hobbes is writing, it’s what he wants to bring about.

[02:11:04] SEYLA BENHABIB:
Yeah. Not a federal company.

[02:11:06] PAUL:
Now, what is outcome versus the presupposition is another question that’s fascinating too. But I’m just thinking, um, uh, if one can, if one casts one’s net rather further back than the comparatively recent emergence of these units known as sovereign territorial states, uh, we might find a lot more material about this phenomenon of hospitality. I’m sure there’s a great deal.

I don’t know enough to say this with any assurance, but I’m sure there’s a lot in the anthropological record that might bear this out. Now, this is very much of an aside, and it doesn’t get to… But there is an issue here in between the two of yous, and it’s an issue about how juridical and how, quote-unquote, “modern” one wishes one’s discussion to be.

[02:11:50] SEYLA BENHABIB:
Uh, thank you for the, uh, correction about Hobbes. I was, uh… I would argue that actually it ends up meaning the same thing, but the correct phrase is covenants without swords are but words.

Uh, that’s, uh, but, um, uh, I think that at the end, you know, the notion of sovereignty without enforcement, of course, the– for, for Hobbes would be uh, meaningless. Uh, there is, uh, a very rich background to this concept of, um, uh, hospitality. And again, Bonnie Honig has worked on this also in her, uh, uh, book, uh, on democracy and the foreigner.

And, uh, uh, it seems to me that a lot of ancient cultures were probably based upon, uh, both spoken and unspoken norms of hospitality. And, uh, it’s also the Old Testament that says, right, “We were all strangers in another’s land,” right? I mean, the Exodus sto-story, and that’s also a fundamental norm, uh, within the, within the Old, um, Testament.

Furthermore, there is a kind of ambiguity about the origins of these terms, and I haven’t done this work, that, uh, Jacques Derrida points out to, that, uh, hospice and hostis, hospitality and enemy that are hostility are so strangely linked to one another, you know, etymologically. This is the claim that, you know, uh, he makes now, um, Now, I, uh, myself have not done the etymological work there, but, uh, if it is indeed the case that in their Latin roots, that there is this kind of link between hospitality and hostility or the, the guest and the enemy are, uh, in some very strange way, that there’s a sliding slope. That, that would say a great deal also about the, the continuing anxiety and the continuing, uh, difficulty that one has, uh, to deal with, uh, uh, the, the stranger in dealing with the stranger as the other and all, and all the connotations that that invokes.

But, um, I still want to say that as much as we may learn, uh, about this, uh, concept and, um, its ramifications, um, I don’t think it is wrong to, to focus on the contradictions of our present international, um, uh, order because, um, uh, it seems to me and, um, that, uh, we are really at a moment, uh, when, um, not in the United States because we are the hegemon and we do not experience the challenge in the same way. But in many parts of the world, the project of the nation-state is under considerable tension and under considerable attack. And Bill, Kimisha, and I will be talking about the European Union, uh, tomorrow, uh, a bit.

And there is the problem of, in fact, whether, uh, the territorial, the territorially configured bounded nation state will be the home for, uh, democracy. Now, I happen to be very s-sympathetic to concepts of both municipal and transnational democratic institutions. I mean, I’m not hostile to the state, but I do not see it as the only site.

Right? But so we are, I think, at a, at a point when, uh, the, the project which, uh, after all the territorial nation state housed democracy quite successfully for quite some time. And something has come, is coming, is ripping, uh, apart at the moment, uh, in more or less different ways.

I think that this country is not experiencing it in the same way as European countries, nor in, you know, in many ways, the rest of the world. We talk about weak states. There are countries that are incapable of consolidating the state form.

Now, that’s not something to be celebrated. I mean, they’re very dangerous in many ways. But, uh, precisely because, uh, that’s the moment that we’re in, I am focusing on hospitality in terms of transborder rights, uh, and under nation state law, though, as you remind us, it has a much richer history and cultural background and resonance.

[02:16:13] INTRODUCER:
I’m gonna give Jeremy the last word, and then-

[02:16:14] JEREMY WALDRON:
Right. Um, excuse me. When, uh, Professor Benhabib, uh, made her response to my comments, I was persuaded that, um, the cutting edge of the issue of hospitality might be for us, particularly these transborder, uh, issues that we have just been talking about.

But I think Paul’s reminder is very healthy. Um, and you can put the two together in this way, that when people talk about the right of a sovereign state to control its borders and to determine its membership, particularly in a democratic context, particularly in a democratic context, that is often defended explicitly or explicitly or implicitly on the basis of a deeper notion that a community of people, we the people, are entitled to remain in principle, or unvisited if we want to, and that there is something, as it were, possibly inherently inappropriate about other people wanting to come here, whether we’ve organized ourselves into a sovereign state. And I think all of that stuff, which is anti-hos-hospitality nativism, is lying very deeply behind the attitudes that sovereign states take up on these matters.

They don’t just take it up on juridical grounds, although sometimes it’s presented in that way. Um, particularly in democratic states, there is a notion that this is, this is our people here, and we as a people are entitled not to be visited if we don’t want to. And I believe in, in setting out the principle of hosteli- of hospitality, Kant is setting his face determinedly against that, and I wouldn’t want to water that down for the world in our account of it, right?

It’s– He’s setting his, his face against that, that deeper idea that might underlie some views about what sovereigns are entitled to do, particularly democratic sovereigns.

[02:17:56] INTRODUCER:
Uh, it’s 6:30. I want to exercise the right of hospitality and ask all of you to come back tomorrow. Uh, we’ll be convening at 4:10 again, and, uh, we’ll have two commentators tomorrow. It should be, uh, uh, as vigorous as today was. Terrific opening. I’d like to thank both of our speakers.

(applause)

[00:00:00] HOST:
Welcome you to the second of this year’s Tanner Lectures in Human Values. Um, I’m going to spare you a long introduction today. I see many faces from yesterday.

We also have a very full program with two rather than, uh, only one commentator today. So I will introduce them, uh, when it’s their turn to speak. Uh, let me simply say that our speaker is, as you all know, Seyla Benhabib.

Um, she is a professor of, uh, both, uh, politics, uh, and philosophy at, uh, Yale University. I’m going to only give you the most recent books. Um, yesterday, I took about ten minutes, so I could easily do that again, but let me simply, uh, list the most recent, uh, publications, The Reluctant Modernism of Hannah Arendt, which came out, uh, seven or eight years ago, nineteen ninety-six.

A new edition just last year. The Rights of Others: Aliens, Citizens, and Residents, which were the Seeley Lectures at Cambridge. Uh, and, uh, several other books that, uh, deal with, uh, issues, uh, comparable to the ones she’s going to be speaking about, uh, in this series, uh, of lectures.

Uh, today we will hear her on, uh, the topic Democratic, uh, Iterations: The Local, The National, and The Global. And, uh, she’ll be followed by, uh, comments by Bonnie Honig and Will Kymlicka. I’ll introduce them in their turn, and then the audience will be invited to participate.

We’ll close at about two thirty. And remember, tomorrow we have, uh, another opportunity for panel discussion, more audience participation, and a reception. Uh, thanks again for coming.

It’s a great pleasure to introduce once again, Seyla Benhabib.

(applause)

[00:01:31] SEYLA BENHABIB:
Good afternoon, everyone. It’s a pleasure to be here. Uh, we chose the format of two lectures instead of three, rather two lectures and a seminar, and this has meant, alas, that the second lecture is a little longer than I had anticipated.

I will, uh, try not to exhaust your, uh, patience and certainly to leave enough time for my, um, uh, commentators. And, uh, do please, uh, have the, uh, handout. It will, it will help in, uh, following the argument.

In my first lecture, I argued that cosmopolitanism, following Kant, is best understood as referring to the eventual juridification of the status of human beings everywhere and to the establishment of transborder norms. Since 1948, such cosmopolitan norms have developed in three domains in, uh, particular. The concepts of crimes against humanity, uh, war crimes and genocide and, uh, uh, legislation and norms, uh, following these concepts.

The theory and practice of humanitarian, uh, interventions, and finally, transnational migrations, the domain of transnational migrations. And since yesterday’s exchange with Jeremy Waldron, I am contemplating whether to add a fourth category about lex mercatoria also under, uh, the notion of cosmopolitan norms. With the spread of these norms, however, we also encounter, uh, the following paradox: namely, that the territorially circumscribed state is at once constrained by these norms and also reinforced in its authority, both as the signatory and also as the informer of cosmopolitan norms.

The state is the only unit that is still the signatory to the treaties and international covenants that enforce these norms, um, at the international level. Uh, likewise, uh, while increasingly binding the will of democratic legislatures, cosmopolitan norms in the domain of transnational migrations in particular cannot circumvent the ultimacy of the right to territorial self-determination, and this is embodied in the Universal Declaration of Human Rights in terms of the asymmetry between the right to emigrate, but the absence of an equal human right to immigrate. In this lecture, I want to propose, uh, not the overcoming of this, uh, paradox, because I don’t think that that is, uh, possible, but rather the negotiation of some of these paradoxes through, uh, democratic iterations.

After a theoretical introduction to the concept of democratic iterations, I will turn, uh, in the remainder of this lecture to a discussion of two case studies drawn from contemporary developments, uh, within European politics in order to illustrate the interaction between cosmopolitan norms and democratic self-determination claims. Iteration is a term which was introduced into the philosophy of language through Jacques Derrida’s work. In the process of repeating a term or a concept, we never simply produce a replica of the original usage and its intended meaning.

Rather, every repetition is a form of variation. Every iteration transforms meaning, adds to it, enriches it in ever so subtle ways. In fact, there really is no originary source of meaning or an original to which all subsequent forms must conform.

It is obvious in the case of language that an act of original meaning-giving makes no sense. Since, as Wittgenstein among others has reminded us, to recognize an act of meaning-giving to be precisely that rather than as something else, we would need to possess language itself. Thus we would need to possess language to presumably explain the origin of language.

Nevertheless, we may think that even if the concept of original meaning makes no sense when applied to language as such, it may not be so ill-placed in conjunction with documents such as law and institutional norms. Thus, every act of iteration might be taken to refer to an antecedent which is assumed to be authoritative. But the iteration and interpretation of norms and of every aspect of the universe of value is never merely an act of repetition.

Every act of iteration involves making sense of an authoritative original in new and different context. The antecedent thereby is reposited and re-signified via subsequent usages and references. Meaning is enhanced and transformed.

Conversely, when the creative appropriation of that au-authoritative original ceases or stops making sense, then the original loses its authority upon us as well. Iteration is the reappropriation of the origin. It is at the same time its dissolution as the original and its preservation through its continuous deployment.

We have to preserve this dialectical moment of repetition, which is at the same time a transformation and which dissolves the origin, which it necessarily also posits as authoritative at its beginning. Now, democratic iterations I’m defining as linguistic, legal, cultural, and political repetitions in transformation, invocations which are also revocations. They not only change established understandings, but also transform what passes as the valid or established view of an authoritative precedent.

Robert Cover, in a famous article called Nomos and Narrative, and following him, Frank Michelman, have made these observations fruitful in the domain of legal interpretation. Let me quote Robert Cover. I’m quoting, “There is a radical dichotomy between the social organization of law as power and the organization of law as meaning.”

This dichotomy, manifest in folk and underground cultures, in even the most authoritarian societies, is particularly open to view in a liberal society that disclaims control over narrative. The uncontrolled character of meaning exercises a destabilizing influence upon power. Precepts must have meaning, but they necessarily borrow it from materials created by social activity that is not subject to the strictures of provenance that characterize what we call formal lawmaking.

Even when authoritative institutions try to create meaning for the precepts they articulate, continue, discover, they act in that respect in unprivileged fashion. End of quote. Borrowing from Robert Post as well as Frank Michelman, I shall assume that jurisgenerative politics as acts of democratic iterations refer to destabilizing acts, iterative acts, through which a democratic people comes to consider itself bound by certain guiding norms and principles, reappropriates and reinterprets them, thus showing itself to be not only the subject, but also the author of the laws.

Whereas natural right doctrines assume that the principles which undergird democratic politics are impervious to transformative acts of collective transformation, and whereas legal positivism identifies democratic legitimacy with the correctly generated legal norms of a sovereign legislature, jurisgenerative politics signals a space of interpretation and intervention between the transcendent norms on one hand and the will of democratic majorities on the other. The rights claims which frame democratic politics, I want to argue, on the one hand must be viewed as transcending the specific enactments of democratic majorities under concrete circumstances. On the other hand, such democratic majorities must reiterate these principles and incorporate them into democratic will formation processes through argument, contestation, revision, and rejection.

Since they are dependent on contingent processes of democratic will formation, not all jurisgenerative politics may yield positive results. Thus, I want to emphasize very clearly from the outset that I am not making the validity of cosmopolitan norms themselves dependent upon jurisgenerative and democratic iterations. Their validity must be based on independent normative grounds.

But productive or creative jurisgenerative politics results in the augmentation of the meaning of rights claims and in the growth of the political authorship of political actors who make these rights their own by democratically redeploying them. Sterile, legalistic, or populistic jurisgenerative processes are also conceivable. In some cases, no normative learning may take place, but only a strategic bargaining among the parties may result.

In other cases, the political process may simply run into the sandbanks of legalism. And in still other cases, the majority of the demos may trample upon the rights of the minority in the name of some totalizing discourse of fear and war, as is the case with the politicization of prisoner rights in Guantanamo Bay, and the violation of the Geneva Accords under the present administration, for example. In the following, I want to focus on two complex legal, political, and cultural processes through which democratic iterations have occurred and collective resignifications have emerged.

I will begin with the so-called Scarf Affair or l’Affaire du foulard, which has preoccupied French public opinion and politics throughout the 1990s and is continuing to do so still. The banning of the wearing of the headscarf by Muslim girls in the schools of the early 1990s pitted the right to freedom of conscience, which all French citizens and residents alike are entitled to, against the specific French understanding of the separation of church and state, known as the principle of laïcité. On February 10th, 2004, as many of you know, the French National Assembly voted by an overwhelming majority of four hundred and ninety-four, thirty-six against, and thirty-one abstentions to ban the wearing of all religious symbols from schools.

Although the new law applies to any ostentatiously displayed religious symbols such as Christian crosses, as well as the yarmulkes of Orthodox Jewish students, as well as the headscarves worn by Muslim girls, its main target, as everyone knew, was Muslim religious attire. To understand the severity of this legislation, which drew criticism even from France’s allies in the European Union, such as the British and the Dutch governments, it is important to reconstruct the history of the scarf affair, so this will be my, uh, first discussion. Much like France, contemporary Germany as well is by now a multicultural and multi-faith society with a resident foreign population approximating ten percent of the total.

Among these foreigners, those of Muslim faiths, such as the Turks, Kurds, Pakistanis, Afghanis, and others constitute the majority. Unlike France, Germany until recently had not accepted the naturalization of immigrant children through territorial birthright. The German understanding of citizenship has been less republican than the French one, and much more focused on ethnic belonging.

This regressive understanding of German citizenship, however, could hardly be reconciled with the realities of modern Germany as a regional and global economic superpower. One of the first challenges to the restrictive German understanding of citizenship came as a request from the city-states of Hamburg and the province of Schleswig-Holstein to permit non-citizen but long-term resident foreigners to vote in municipal and district-wide elections. The German, uh, Constitutional Court rejected their request through a resounding declaration about the role of the nation and national be-belonging in a democracy.

Although the Maastricht Treaty in 1992, to which Germany is a party, has since then overridden this decision by granting all nationals of EU member states who are residents of other member countries the right to vote in and run for municipal elections, the earlier decision remains one of the most philosophically interesting interpretations of democratic sovereignty and identity of the demos. So my second example after the, uh, foulard discussion will be the specific, uh, German, uh, Supreme Court, um, uh, decision and its institutional as well as philosophical implications. So let me begin now with, uh, the so-called l’affaire du foulard.

L’affaire du foulard refers to a long and drawn-out set of public confrontations which began in France in 1989 with the expulsion from their school in Creil of three scarf-wearing Muslim girls and continued to the m-mass exclusion of twenty-three girls from their schools in November 1996 upon the decision of the Conseil d’État. The affair referred to as a national drama or even a national trauma occurred in the wake of France’s celebration of the second centennial of the French Revolution and seemed to question the foundations of the French educational system and its philosophical principle of laïcité. This concept is hard to translate in terms such as the separation of church and state or even secularization.

At its best, it can be understood as the public and manifest neutrality of the state toward all kinds of religious practices institutionalized through a vigilant removal of sectarian religious symbols, signs, icons, and items of clothing from the official public sphere. Yet within the French Republic, the balance between respecting the individual’s right to freedom of conscience and religion on the one hand, and maintaining a public sphere devoid of all religious symbolism on the other, was so fragile that it only took the actions of a handful of teenagers to expose this fragility. The ensuing debate went far beyond the original dispute and touched upon the self-understanding of French republicanism for the left as well as the right on the meaning of social and sexual equality on liberalism versus multiculturalism in French life.

The affair began when on October 19th, 1989, Monsieur Ernest Chénière, headmaster of the Collège Gabriel-Havez of Creil, forbade three girls, Fatima, Laila, and Samira, to attend classes with their heads covered. The three had appeared in class that morning wearing their scarf despite a compromise reached between their headmasters and their parents encouraging them to go unscarved. The three girls had apparently decided to wear the scarf once more upon the advice of Monsieur Daniel-Youssof Leclercq, the head of an organization called Intégrité and the ex-president of the National Federation of Muslims in France.

Although hardly noted in the press, the fact that the girls had been in touch with Monsieur Leclerc indicates that wearing the scarf was a conscious political gesture to some extent on their part, a complex act of identification and defiance at once. In doing so, Fatima, Laila, and Samira on the one hand claimed to exercise their freedom of religion as French citizens. On the other hand, they exhibited their Muslim and North African origins in a context that sought to envelop them within an egalitarian, secularist ideal of Republican citizenship as students of the nation.

In the years to come, the girls and their followers forced what the French state wanted to see as a private symbol, an individual item of clothing, into the public sphere, thus challenging the boundaries between the public and the private. Ironically, they used the freedom given to them by French society and French political traditions, not the least of which is the availability of free and compulsory public education for all children on French soil, to transpose an act of private identity into the public sphere. They problematized the school as well as the home.

They no longer treated the school as a neutral space of French acculturation, but brought their cultural and religious differences into open manifestation. They used the symbol of the home to gain entry into the public sphere by retaining the modesty required of them by Islam in covering their heads. Yet at the same time, they left the home to become public actors in a civil public space in which they defied the state.

Those who saw in the girls’ actions simply an indication of their oppression were just as blind to the symbolic meaning of their deeds as those who defended their rights simply on the basis of freedom of religion. The complexity of the social and cultural negotiations hidden behind the simple act of veiling elicited an equally ambiguous and complex decision by the French Conseil d’État. On November the 4th, 1989, the then French Minister of Education, Lionel Jospin, took the matter to the Conseil d’État.

The court responded by citing France’s adherence to constitutional and legislative texts and to international c- conventions and invoked right from the outset the necessity of doing justice to two principles, the laïcité and the neutrality of the state, uh, should be retained in the rendering of public services, and on the other hand, the liberty of conscience of the students ought to be respected. Now, I have the quotation here from the decision of the Conseil d’État, and in order to understand the severity of the, uh, very recent law banning the wearing of the scarf, I think it may be interesting to turn back to this decision which preceded it by, uh, 15 years and was, uh, articulated in 1989. And the decision is also interesting because it shows, um, precisely this instability, uh, about the so-called original meanings of rights and the necessary and inevitable negotiation of rights in, uh, different contexts.

So I’m just going to quote from the ruling of the Conseil d’État, and this is, uh, my translation. Uh, quote, “The wearing by students in the schools of signs whereby they believe to be manifesting their adherence to one religion is itself not incompatible with the principle of laïcité, since it constitutes the exercise of their liberty of expression and manifestation of their religious beliefs. But this liberty does not permit students to exhibit signs of religious belonging, which, by their nature, or by the conditions under which they are worn individually or collectively, or by their ostentatious or combative character, would constitute an act of pressure, provocation, proselytizing, or propaganda, threatening to the dignity or liberty of the student or to the other members of the educational community, compromising their health or their security, disturbing the continuation of instructional activities or the educational role of the instructors, in short, would disturb proper order in the establishment or the normal functioning of public, um, uh, service.

You can see, of course, that this Solomonic judgment, we might say, attempted to balance the principles of laïcité and freedom of religions and conscience with the need for public security. Yet instead of articulating some clear guidelines, the court left the proper interpretation of the meaning of the wearing of these signs up to the judgment of the school authorities, thus taking the issue from the domain of rights interpretation and bringing it into the domain of an administrative decision about whether or not, uh, these girls in so doing were thereby– were thereby, um, presenting a security, uh, challenge. Not the individual students’ own beliefs about what a religious scarf or for that matter wear, wearing a yarmulke meant to them, but its interpretation by the school authorities and whether or not they could be seen as signs of provocation, confrontation, or remonstration became the decisive factors in curtailing the students’ freedom of religion.

L’affaire du foulard eventually came to stand for all dilemmas of French national identity in the age of globalization and multiculturalism. Namely, how to retain French traditions of laïcité, republican equality, and democratic citizenship in view of France’s integration into the European Union on the one hand, and the pressures of multiculturalism generated through the presence of second and third-generation immigrants from Muslim countries on French soil on the other. Would the practices and institutions of French citizenship be flexible and generous enough to encompass multicultural differences within an ideal of Republican equality?

Clearly, and despite the recent decision of the French parliament to pass a law forbidding the wearing of all religious items of clothing in public schools, this affair is by no means over, and as European integration and multiculturalist pressures continue, France will have to discover new models of legal, pedagogical, social, and cultural institutions to deal with the dual imperatives of liberal democracies to preserve freedom of religious expression and the principle of secularism. Learning processes will have to take place on the part of the Muslim girls as well. While the larger French society would have to learn not to stigmatize and stereotype as backward and oppressed creatures, all those who e-accept to wear what appears at first glance to be a religiously mandated piece of clothing.

The girls themselves and their supporters in the Muslim community and elsewhere have to learn to give a justification of their actions with good reasons in the public sphere. In claiming respect and equal treatment for their religious beliefs, they have to clarify how they intend to treat the beliefs of others from different religions and how, in fact, they would institutionalize the separation of religion and state within the Islamic, uh, tradition. In an explicit acknowledgment of the changing face of France, both in the literal and figurative senses, during August 2003, 13 women, eight of them of North, uh, African Muslim origin, and the ra- rest African immigrants or the children of immigrants, were chosen to represent Marianne, the icon of the revolution painted in 1830 by Eugène Delacroix.

You all know her, bare-chested and storming the barricades. Now, continuing the con- contentious national dialogue about the separation of church and state, these new women wore the ancient Phrygian cap, a symbol of the French Revolution, and their faces were plastered all over the building of the Assemblée Nationale, rather than the Islamic veil or other ethnic or national headdress. Yet paradoxically, the political body which decided to honor these women as a counter-symbol to others who insisted upon wearing the headscarf, also empowered them to challenge the overwhelmingly white male and middle-aged French assembly, where only 12% were women.

One of them is quoted as saying, “These Mariannes have made visible something that has been the reality of the last twenty years. Look at the National Assembly. It is all white, rich, male, and well-educated.

Now we have entered their space.” End of quote. There is thus a dialectic between constitutional essentials and the actual politics of political liberalism.

Rights and other principles of the liberal democratic state need to be periodically challenged and re-articulated in the public sphere in order to retain and enrich their original meaning. It is only when new groups claim that they belong within the circle of addressees of a right from which they have been excluded in its initial articulation, that we come to understand the fundamental limitedness of every right claim, as well as its context-transcending validity. The democratic dialogue and also the legal hermeneutic one are enhanced through the repositioning and rearticulation of rights in the public spheres of liberal democracies.

The law sometimes can guide this process in that legal reform may run ahead of popular consciousness and may raise popular consciousness to the level of the constitutional essentials. The law may also lag behind popular consciousness and may need to be prodded along to adjust itself to it. In a vibrant multicultural democracy, cultural political conflict and learning through conflict should not be stifled through legal maneuvers.

The democratic citizens themselves have to learn the art of separation by testing the limits of their overlapping consensus. Let me now turn, uh, to the, uh, German, uh, citizenship case and take a small tea break for just one second.

(clears throat)

Now, the second, um, uh, case which I will, um, uh, consider as, again, an, a complex illustration of processes of, uh, Euros generative politics. On October thirty-one nineteen ninety, the German Constitutional Court ruled against a law passed by the Provincial Assembly of Schleswig-Holstein on February twenty-one nineteen eighty-nine, which law had changed the qualifications for participating in local, municipal, and district-wide elections. According to the Schleswig-Holstein’s election laws, which had been in effect since, uh, May nineteen eighty-five, all those who were defined as German in accordance with Article one hundred and sixteen of the Basic Law, which means that all, all those who are born of one German parent and who also lived on, at the time, the divided Germany, So all those who were defined as German in accordance with Article one hundred and sixteen of the Basic Law, who had completed the age of eighteen, and who had resided in the electoral district at least three months, were eligible to vote.

The law of February twenty-one, nineteen eighty-nine, now proposed to amend this as follows: “All foreigners,” it said, “residing in Schleswig-Holstein since at least five years, who possessed a valid permit of residency on who, or who were in need of none, or who were citizens of Denmark, Ireland, the Netherlands, Norway, Sweden, and Switzerland, would be able to vote in local and district-wide elections.” Uh, the choice of these six states was made on the grounds of reciprocity. Since these countries permitted their foreign residents to vote in local and, in some cases, regional elections, the provincial German legislators saw it appropriate to reciprocate and gave the citizens of these countries who were resident in Germany, uh, reciprocal voting rights.

The claim that the new election law was anti-constitutional against the Grundgesetz was brought by two hundred and twenty-four members of the Ger-German Parliament, all of them members of the conservative CDU/CSU Party. It was supported by the Federal Government of Germany, which also pleaded, uh, in the case. The Court justified its decision with the argument that the proposed change of the electoral law contradicted the principle of democracy as laid out in Articles twenty and twenty-eight of Germany’s Basic Law, and according to which all state power, Staatsgewalt, proceeds from the people.

Furthermore, and this is a very interesting quotation, By the way, this decision is, uh, attributed, uh, to Ernest Böckenförde, who is taken to be one of the, um, I think, uh, best reinterpreters of Carl Schmitt’s constitutional thought on the German, uh, Constitutional Court. I mean, he’s a brilliant jurist, uh, but there are some resonances in this decision that betray, I think, a certain, uh, origin.

So here is the, uh, the, uh, decision justifying the rejection of the Schleswig-Holstein, uh, reforms. The people, das Volk, which the Basic Law of the Federal Republic of Germany recognizes to be the bearer of the authority from which issues the Constitution, as well as the people which is the subject of the legitimation and creation of the state, is the German people. Foreigners do not belong to it.

Membership in the community of the state, Staatsverband, is defined through the right of citizenship. Citizenship in the state, Staatsangehörigkeit, which really means belonging to the state, right? Constitutes a fundamentally indissoluble personal right between the citizen and the state.

Division of the people of the state, which underlies this right of belonging to the state, is the political community of fate. The politische Schicksalsgemeinschaft, a very important phrase which keeps resurfacing, uh, then in certain, uh, discussions, uh, contemporary discussions in Germany, to which the political community of fate, to which individual citizens are bound, their solidarity with and their embeddedness, Verstrickung, in the fate of their home country, which they cannot escape, are also the justification for restricting the vote to the citizens of the state. They must bear the consequences of their decisions.

By contrast, foreigners, regardless of how long they may have resided in the territory of the state, can always return to their homeland. End of quote. This resounding statement by the Court can be analyzed in, into at least three components.

First, there is a disquisition on the mo-meaning of popular sovereignty. All power proceeds from the people. Second, there is a procedural definition of how we are to understand membership in the state.

And third, there is a philosophical explication of the nature of the bond between the state and the individual that is based on the vision of a political community of fate. The court argues that according to the principle of popular sovereignty, there needs to be a congruence between the principle of democracy, the concept of the people, and the main guidelines for voting rights at all levels of state power, namely the federal, the provincial, the district, and the communal. In other words, uh, put, um, uh, in simpler terms, the court simply argued that sovereignty is one and indivisible, and it must be the same body of the people that is carrying it at all levels of jurisdiction.

Different conceptions of popular sovereignty cannot be employed at different levels of the state. Permitting long-term resident foreigners to vote would imply that popular sovereignty would be defined in a different way at the district-wide and communal levels than at the provincial and feder- uh, federal levels. In an almost direct repudiation of the Habermasian discursive democracy principle, which I’m sure Mr. Böckenförde was very much aware, the court declares that Article 20 of Germany’s Basic Law does not imply, quote, “that the decisions of state organs must be legitimized through those whose interests are affected in each case.

Rather, their authority must proceed from the people as a group bound to each other as a unity.” End of quote. Now, the provincial parliament of Schleswig-Holstein challenged the court’s understanding and argued that neither the principle of democracy nor that of the people excludes the rights of foreigners to participate in, uh, local elections.

Um, uh, they wrote, “The model underlying the basic law is the construction of a democracy of human beings and not, uh, that of the collective of the nation.” This basic principle does not permit that one distinguish in the long run between the people of the state and an association of subservients. Very interesting that the provincial government is basically challenging the Constitutional Court and claiming, uh, and accusing it of drawing an anti-democratic distinction in the, in that it is treating foreigners as, quote, “An association of subservience.”

The German Constitutional Court eventually resolved this controversy about the meaning of popular sovereignty. It rather decided it in favor of a unitary and functionally undifferentiated conception. But it did concede that the sovereign people, through its representatives, could change the definition of citizenship.

In other words, the court kicked the ball to the politicians. Procedurally, it said, “The people simply means all those who have the requisite state membership. If one is a citizen, one has the right to vote.

If not, not. So the court wrote, “The basic law leaves it up to the legislator to determine more precisely the rules for the acquisition and loss of citizenship, and therefore also the criteria of belonging to the people. The law of citizenship is the site at which the legislator can do justice to the transformations in the composition of the population of the Federal Republic of Germany.”

End of quote. This can be accomplished by expediting the acquisition of citizenship by all those foreigners who are long-term permanent residents of Germany. The court here explicitly addresses what I have called the paradox of democratic legitimacy in my first lecture.

Namely, that those whose rights to inclusion or exclusion from the demos are being decided upon, in this case long-term resident foreigners, will not themselves be the ones to decide upon these rules. The democratic demos can change its self-definition by altering the criteria for admission to citizenship. The court still holds on to the classical model of citizenship according to which democratic participation rights and nationality are strictly bundled together.

But by signaling the procedural le- legitimacy of changing naturalization laws, the Court also acknowledges the power of the democratic sovereign to alter its self-definition, such as to accommodate the changing composition of the population. The lines separating citizens and foreigners, it is argued, can be renegotiated by the citizens themselves. Yet the democratic openness signaled by the court in sta- in this, uh, uh, procedural question of who constitutes the citizen, stands in great contrast to the conception of the people also adumbrated by the court, and according to which the people is a political community of fate that is held together by bonds of solidarity in which individuals are embedded.

Here, the democratic people is viewed as an ethnos, as a community of fate held together by the power of shared memories, solidarity, and belonging. Such a community is not one that permits free entry and exit. Perhaps marriage with a member of such a community may produce some integration over generations, but by and large, membership in the ethnos, in a community of memory, fate, and belonging is something that one is born into, although as an adult one may renounce this heritage, exit it, or wish to alter it.

To what an extent should one view liberal democratic polities as such ethnoi communities? Despite its emphatic evocation of the nation as a community of fate, in the final analysis, the court emphasizes that the democratic legislature also has the prerogative to transform the meaning of citizenship and the rules of democratic belonging. Such a dem– transformation of citizenship may be necessary to do justice to the changed nature of the population.

The demos and the ethnos do not simply overlap. Written in 1990, in retrospect, this decision of the German the Constitutional Court appears as a swan song to a vanishing ideology of nationhood. In 1992, the Treaty of Maastricht or the Treaty of the European Union established European citizenship, which granted voting rights and rights to run for office for all members of the 15 signatory states residing in other member countries.

Of the six countries to whose citizens Schleswig-Holstein wanted to grant reciprocal voting rights, Denmark, Ireland, the Netherlands, Norway, Sweden, and Switzerland, um, and only Norway and Switzerland among them remain non-beneficiaries of the Maastricht Treaty since they were not EU members. In the decades following, an intense process of democratic iteration unfolded in the then unified Germany, during which the challenge posed by the Bundesverfassungsgericht to the democratic legislators of bringing the definition of citizenship in line with the composition of the population was taken up, rearticulated, and reappropriated. The city of Hamburg, in its parallel plea to alter its local election laws, stated this very clearly.

I’m quoting, “The Federal Republic of Germany has in fact become, in the last decades, a country of immigration. Those who are affected by the law which is being attacked here are thus not strangers but cohabitants,” they use the term Inländer rather than Ausländer, “who only lack German citizenship. This is especially the case for those foreigners of the second and third generation born in Germany.

The demos is not an etnos, and those living in our midst and who do not belong to the etnos are not strangers either. They are cohabitants, or as later political expressions would have it, are co-citizens of foreign or origin, ausländische Mitbürger. Even these terms, which m-may sound odd to our ears, not accustomed to any distinction between those of citizens, residents, and non-residents, suggest the transformations of German public consciousness in the 1990s.

The intense and soul-searching public debate finally led to an acknowledgement of the fact as well as desirability of immigration. The need to naturalize second and third generation children of immigrants was recognized, and the new German citizenship law was passed in January two thousand. Ten years after Ger- the German Constitutional Court turned down the election law reforms of Schleswig-Holstein and the city-state of Hamburg on the grounds that resident foreigners were not citizens and thus ineligible to vote, Germany’s membership in the European Union led to what I’d like to call the disaggregation of citizenship rights.

Resident members of EU states can now vote in local as well as EU-wide elections. Furthermore, Germany now accepts that it is a country of immigration, that immigrant children are German citizens according to you jus soli, law of, uh, territorial birth, and that long-term residents who are third country nationals can naturalize if they wish, uh, to do so. I’d like to draw the conclusion, uh, from this, uh, example that we are at a point in the political evolution of human communities when the unitary model of citizenship, which bundled together residency upon a single territory with the subjection to a single bureaucratic administration representing a people perceived to be more or less a cohesive entity is at an end.

We are facing today the disaggregation of citizenship. These are institutional developments which unbundle the constitutive dimensions of citizenship, such as collective identity, the privileges of political membership, and the entitlement to social rights and benefits. More and more groups of human beings, and in many parts of the world, extending from North America to Europe to South Asia and Latin America, find themselves today not sharing in the collective identity of their host countries while enjoying certain rights and benefits as guest workers or permanent residents.

The entitlement to social rights, which T.H. Marshall had once considered the pinnacle of citizenship, has been disassociated from shared collective identity and, uh, political, uh, membership. We will, um, um, discuss this particularly with, uh, Will, uh, uh, well Kymlicka’s comments, and for the sake of time now, I’m going to be brief around this point. Although the examples I have discussed pertain to Europe alone, I’m going to maintain when the chance comes that these sociological developments are not just Eurocentric.

Similar transformations are taking place, uh, in Central, uh, America, in, um, um, Asia as well. And the general trend towards the disaggregation of citizenship, namely the fact that residency, see, uh, long-term residency is entitling one to a, a bundle of rights that were once considered the privilege of citizens, is a tendency I’ve seen in many parts of the world. And, uh, the bone of contention continues to be political rights, voting rights for, um, uh, non, uh, uh, citizens, um, or long-term permanent, um, uh, residents.

Now, I, uh, see in this disaggregation of citizenship, uh, rights an indication also of the spread of cosmopolitan norms, uh, which, uh, govern transnational migration. That is, now, uh, the individual is entitled to certain rights, not in virtue of nationality and citizenship, but increasingly in virtue of, uh, territorial, um, uh, presence and, um,

(coughs)

residency. In this lecture, I have elucidated processes of democratic iteration which attest to a dialectic of rights and identities. In such processes, both the identities involved and the very meaning of rights claims are reappropriated, resignified, and imbued with new and different meanings.

Political agents caught in such public battles very often enter the fray with a certain understanding of who they are and what they stand for, but the process itself frequently alters these self-understandings. Thus, in the Scarf Affair in France, we witnessed the increasing courage, maybe even militancy, of a group of young girls and women considered usually to be docile subjects in Michel Foucault’s sense. Traditional Muslim girls and women are not supposed to appear in the public sphere at all.

Ironically, precisely the realities of Western democracies with their more liberal and tolerant visions of women’s role permits these girls and women to be educated in public spheres to enter the labor force, et cetera. They are transformed from being docile bodies into public selves. Although their struggle at first is a struggle to retain their traditional identities, whether they choose it or not, as women, they also become empowered in ways they may not have anticipated.

They learn to talk back to the state. My prediction is that it is a matter of time before these women, or at least some of them, who are learning to talk back to the state, will also engage and contest the very meaning of the Islamic traditions which they are now fighting to uphold, um, a process, uh, which I think is much more advanced and dialectical in Turkey, which has similar laws banning, uh, the wearing of the headscarves in public schools. Eventually, these public battles will initiate private gender struggles about the status of women’s rights within the Muslim tradition.

These cases also show that the outsiders are not only at the borders of the polity, but also within. Perhaps I don’t need to remind anyone of this in California, uh, which is, uh, one of the largest immigration, uh, states still, um, in this, uh, country. In fact, the very binarism between nationals and foreigners, citizens and migrants, is sociologically inad-inadequate, and the reality is much more fluid, since many citizens are of migrant origin, and many nationals themselves are foreign-born.

The practices of immigration and multiculturalism in contemporary democracies flow into one another. While the scarf affair, both in France and Germany, challenged the vision of the homogeneity of the people, the German Supreme Court’s decision showed that there is an incongruity between those who have the formal privilege of democratic citizenship and others who are members of the population, but who do not formally belong to the demos. In this case, the challenge posed by the German Constitutional Court to the democratic legislature of adjusting the formal definition of German citizenship, such as to reflect the changing realities of the population, was taken up, and the citizenship law was reformed.

The democratic people can reconstitute itself through acts of democratic iteration, so as to enable the extension of democratic voice. Aliens can become residents, and residents can become citizens. Democracies require porous borders.

This is very well stated by the Free City of Hamburg, which in a direct challenge to the German Supreme Court, wrote, quote, “The Federal Republic of Germany has in fact become, in the last decades, a country of immigration.” Those who are affected by the law which is being attacked here are thus not strangers, but cohabitants who only lack German citizenship. This is especially the case for those foreigners of the second and third generation, uh, born in Germany.

The presence of others who do not share the dominant culture’s memories and morals poses a challenge to the democratic legislatures to rearticulate the meaning of democratic universalism. Far from leading to the disintegration of the culture of democracy, as many, uh, fear, such challenges to me reveal the depth and breadth of the culture of democracy. Only polities with strong democracies are capable of such universalist rearticulation through which they refashion the meaning of their own peoplehood.

Will French political traditions be less strong if they are now carried forth and reappropriated by Algerian women or by women from the Côte d’Ivoire? Will German history be less confusing? Remember the title, The Peculiarities of German History.

Will German history be less confusing and puzzling if it is taught by an Afghani German woman, as was the Fereshta Ludin case, which I did not discuss? Rather than the decline of citizenship, I see in these instances the reconfiguration of citizenship through democratic iterations.

(cough)

Let me now, uh, move, uh, to a conclusion by returning to the puzzles posed in the first lecture and by drawing together, uh, the implications of these cases and the more conceptual philosophical puzzles, uh, with which I began in lecture, uh, one. I began these lectures with a puzzle, the first articulation of which I attributed to Hannah Arendt and Karl Jaspers. After the capture of Eichmann by Israeli agents in 1960, Arendt and Jaspers initiated a series of refle-reflections on the status of international law and norms of cosmopolitan justice.

I summarize their queries in terms of three questions. One, what is the ontological status of cosmopolitan norms of justice in a post-metaphysical universe? Two, what is the authority of norms which are not backed by a sovereign power with the enfor– capacity of enforcement?

Three, how can we reconcile cosmopolitan norms with the fact of a divided mankind? I said that I would begin by answering the last question first and then proceed to an attempted answer to the others. So let me now summarize, beginning with the last question: How can we reconcile cosmopolitan norms with the fact of a divided humankind?

My answer to the question as to how to reconcile cosmopolitanism with the unique legal, historical, cultural traditions, and memories of each people, is that we must respect, further, and initiate processes of democratic iteration and jurisgenerative politics. Jurisgenerative politics are those cases of legal and political contestation when the meaning of rights and other fundamental principles are reposited, resignified, and reappropriated by new and excluded groups, or by the citizenry in the face of new and unprecedented hermeneutic challenges and meaning constellations. I have tried to illustrate such cases of rights at work as instances when cosmopolitan norms that apply to the rights of residents or immigrant foreigners are re-articulated by constituted democratic legislatures.

The French scarf affair and the German Constitutional Court’s decision concerning the voting rights of resident foreigners are cases in which democratic majorities contest and redeploy cosmopolitan norms and make them our own. I should emphasize, however, that processes of democratic iteration do not invariably and necessarily result in political outcomes which we always want to endorse. Thus, there is an element, if you wish, of will, of voluntarism that remains in this process, which cannot simply be, um, eh, contained, um, um, on, with the concept of, um, reason alone.

I mean, the rational will formation of democratic collectivity still contains, uh, that moment of contingency and freedom which we have to accept. It is clear that with the passing of legislation banning the wearing of all religious symbols in the schools, the French state has decided upon a collision course with its observant populations, Jewish and Muslim alike. It is also clear that future battles will take place inside and outside France.

It is likely to be a matter of time before some group brings charges against the actions of the French president in front of the European Court of Human Affairs. In fact, there have been two such cases which, um, uh, have been rejected so far. Together with the constitutional debate which is unfolding in the new Europe about the separation of church and state in the EU Constitution, France’s strict understanding of laicism, deplored even by its closest neighbors, will itself be challenged at the highest levels of jurisgenerative politics.

This is the peculiarity of cosmopolitan justice. Precisely because France is a signatory to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the European Charter of Human Rights, even the actions and decisions of its president are not immune to future juridical challenges. I see in such processes the reenactment in practice of the theoretical dilemma of discursive scope, namely how universalist norms can be mediated with the self-understanding of specific local and national communities.

The availability of cosmopolitan norms increases the threshold of justification to which formerly exclusionary practices now have to be submitted. Exclusions take place, but the threshold for justifying them now is higher. I see this higher threshold also as an instance of increase in democratic reflexivity.

It becomes increasingly more difficult to justify practices of exclusion by democratic legislatures simply because they happen to express the will of the majority. They are now subject not only to constitutional checks in domestic law, but to checks in the international arena as well. Both the French courts and the politicians as well as German ones find it necessary to ban the wearing of the relig- of reli- religious symbols on the basis of grounds which can be universalized and generalized for all.

In the French case, this is the future well-being and integrity of French society as a society still of all its citizens. Reflexive grounds are grounds which must be justifiable through reasons that would be valid for all. This means that such grounds can themselves be recursively questioned for failing to live up to the very thresholds set up in their own articulation.

And I think the availability of cosmopolitan norms in the global as well as national public spheres increases these processes of democratic reflexivity, whereby the threshold of justifying exclusionary and particularistic decisions becomes higher and higher. Not that such decisions do not occur, but still, if one is attentive to the logic of the dialogue, one sees the mobilization of, um, reasons, uh, that are of a generalizable, uh, kind. Let me now turn to the second question very briefly.

To Arendt and Jaspers’s second question, therefore, as to the authority of cosmopolitan norms, my answer simply is the democratic power of global civil society, and here I join Jeremy Waldron. Of course, the global human rights regime by now has its many agencies of negotiation, articulation, observation, and monitoring. In addition to processes of naming and shaming and sanctions, which can also be imposed upon sovereign nations in the event of egregious human rights violations, the use of power by the international community as authorized by the UN Security Council and the UN General Assembly remains an option.

Theorists of empire see in these developments the spread of empire without imperialism, and they are by no means opposed to this process. The spread of human rights norms increasingly integrates all societies and peoples into a universal system of interdependence. At first, of course, principally global capitalism.

Global capitalism, so, uh, Hardt and Negri, Michael Hardt and Toni Ne-Negri, do not require an imperial hegemon to enforce it violently. Written in the intermezzo between the First Gulf War and the war against Afghanistan and Iraq, this theory was naive maybe about the interdependence of war and global capitalism, particularly regarding the United States’ ambitions under this administration. But I think that Hardt and Negri were right about one thing: even the world’s sole superpower today cannot behave like a nineteenth-century empire and resort to open exploitation, extraction, and coercion.

The justification for intervention is couched in humanitarian language, and in this case, in the name of the rights of the Iraqi people. Undoubtedly, this is hypocritical, but let us not forget that hypocrisy is the compliment that vice pays to virtue. In the face of the ultimate failure of the legal justification for the Iraq intervention, the imminent threat posed by the US and its allies by Iraq’s supposed possession of weapons of mass destruction, the Iraq war is now being justified on vague humanitarian grounds, at least more so in Europe than in this country.

What lends a patina of legitimacy to this illegal war, which I don’t endorse, I’m just analyzing the discourse here, is the claim that the war liberated the Iraqi people from a dictator and that it is now integrating them into the world system of democracy and the free market. It is indeed true that the Bechtel and Halliburton corporations do not need to behave like the British in India, the French in Algeria, or the Belgians in the Congo. The processes of global profit extraction today are subtle and soft.

So far, I agree with Hardt and Negri. Yet the real battle for cosmopolitan justice in Iraq is taking place around the democratic struggle of the various groups among themselves and against the occupation administration. What will be the principles of representation in the new Iraqi constitution?

How will the Shiite majority be given its due? If a purely majoritarian system were enacted, would Iraq’s minorities suffer? The stakes at work in this process cannot be reduced simply to the profits of the global capitalist market.

Cosmopolitan rights transcend global capitalism as well as challenging it. The day will come when a democratic Iraqi majority will ask Bechtel and Halliburton to leave and begin to control its own destiny. A global society, in this sense, is developing alongside economic globalization.

Even Kant in the 18th century was aware of this interdependence. But this interdependence between the spread of global capitalism through peace and war and cosmopolitan norms does not suggest that a global civil society cannot become the repository of democratic power and challenge the very forces of global capital. Cosmopolitanism and global capitalism are strange bedfellows.

I come then to the final question. What is the ontological status of cosmopolitan norms in a post-metaphysical universe? Briefly, and I’m still thinking this through, such norms and principles are morally constructive, I want to argue, in a Rawlsian sense, but I will not deliver, uh, this argument, um, here.

They create a universe of meaning, values, and social rea- relations which had not existed before, in that they changed the normative constituents and evaluative principles of the world of objective spirit, to use Hegelian language. They found a new order, a novus ordo seclorum. They are thus subject to all the paradoxes of revolutionary beginnings.

Their legitimacy cannot be justified through appeal to antecedents nor to consequence. It is the fact that there was no precedent for them which makes them unprecedented, and we can only know their consequences once they have been adopted and enacted. The act which crimes against humanity has come to name and to interdict was itself unprecedented in human history.

The mass murder of a group of human beings on account of their race and religion through an organized state power with all the legal and technological means at its disposal. Massacres, group murder, and tribal atrocities were certainly known and practiced in human history. But once we name genocide as the supreme crime against humanity, we have moved into a new normative universe.

I would even dare say that we move into a universe which now contains a new moral fact: thou shalt not commit genocide and perpetrate crimes against humanity. It is precisely the fact that we as humankind have now learned from the memories of genocide that we can name it as the supreme crime against humanity. Cosmopolitan norms, of which crimes against humanity is the most significant, create such new moral facts by opening new spaces for signification, meaning, and re-articulation in human relationships.

Let me end then once more by turning to Arendt. Although she was skeptical that an international criminal law would ever be formulated and reinforced, Arendt in fact praised and commended the judges who sought existing, who sought to extend existing categories of international law to the criminal domain. Thus, she also wrote in Eichmann in Jerusalem, quote, “that the unprecedented,” once it has happened, may become a precedent for the future, that all trials touching upon crimes against humanity must be judged according to a standard that is still today an ideal.”

“If genocide is an actual possibility of the future, then no people on earth can feel reasonably sure of its continued existence without the help and protection of international law.” ” In consequence of this as yet unfinished nature of international law, it has become the task of ordinary trial judges to render justice without the help of or beyond the limitations set upon them through posited positive laws. However fragile their future may be, cosmopolitan norms have evolved at this point in history beyond what was anticipated and then problematized by Hannah Arendt.

An international criminal court exists, although the oldest democracy in the world, namely we, have refused to sign the Treaty of Rome legitimizing it. It is this paradox which my lectures have sought to understand and hopefully to transcend. Thank you.

(applause)

[01:03:48] HOST:
Thank you very much indeed, uh, Seyla. Now, um, in, uh, the, uh, the name of, uh, continuing the discursive dialogue, um, we will have our first c- Uh, first respondent this afternoon, who is Bonnie Honig.

Uh, Bonnie Honig is Professor of Political Science and Director of the Center for Law, Culture, and Social Thought at Northwestern University. A native of Canada, where she did her undergraduate work at Concordia University in Montreal, she continued her education at the LSE and then Balliol College, Oxford, and finally Johns Hopkins, where she earned her doctorate in political philosophy in 1989. Her first book, Political Theory and the Displacement of Politics, published four years later, won the Scripps Prize in 1994.

Since then, she edited an important collection of feminist interpretations of Hannah Arendt, which included a contribution by Seyla Benhabib, as well as a festschrift for her dissertation director, uh, Richard Flathman, co-edited with David Mapel in two thousand and two. A year before, her second book, Democracy and the Foreigner, appeared and was soon the subject of a theme panel at the American Political Science Association meetings. A recipient of fellowships from the NEH, the Center for the Behavioral Sciences at Stanford, and the Bunting Institute at Radcliffe, as well as serving as senior research fellow at the American Bar Fou- uh, Foundation.

She is now finishing a manuscript called, uh, Has the King Become a Tyrant? Uh, Paradoxes of Law and Democracy. Paradoxes are clearly on the table here, which will probe issues of democratic legitimation, uh, and the state of exception, Carl Schmitt’s term for the suspension of legality by a sovereign above the law.

In all of her work, Bonnie Honig has followed Hannah Arendt in stressing the open-endedness of politics, which goes well beyond narrow definitions of fixed identity and celebrates the agonistic dimension of political life. How agonistic her response to Seyla’s second paper is now to be determined. Uh, it is my great pleasure to introduce Bonnie Honig.

(applause)

[01:05:59] BONNIE HONIG:
Thank you. Um, I wanted to start by thanking the Tanner Lecture Committee for inviting me to be part of this event, and to thank Seyla for her interest in continuing our long-standing conversation about democratic theory and politics in this setting. These lectures are about Professor Benhabib’s hope that human rights norms and their institutionalization in law via cosmopolitanism will bring about the normative improvement and learning for all parties to natural to– to multicultural conflicts, that is to say for formal citizens, immigrants, and states.

She’s especially interested in the paradox of democratic legitimacy, which here refers to the fact that only formal citizens, read legislatures and sometimes courts, decide where the lines of citizenship should be drawn, in spite of the fact that the decision will affect not just them, but also residents, minorities, and foreigners who live and work among them, and in spite of the fact that such traditional democratic boundary line drawings are not justifiable from a universal normative perspective. She favors alien suffrage because it gives a voice in the political process to residents who are affected by outcomes of that process. That criterion of giving voice to those affected by outcomes is important to her.

And she seems pleased, as am I, that alien suffrage is now accepted practice in Germany, a country which has really undergone radical changes in the last decade. But although she reports it, she does not pause to comment on the fact that that right answer, the decision to open voting to resident aliens, was arrived at neither by the demos nor by resident aliens, neither by the legislature nor by the courts, but by a European treaty entered into, I suppose, by people who won’t themselves be living with the effects of local election outcomes in Germany. Benhabib offers no comment on the apparent democratic deficit here, nor throughout, presumably because she endorses the substance of the EU decision.

Now, it’s interesting to me that Benhabib retains an old name, the paradox of democratic legitimacy, for a new thing. The new name for this new thing ought presumably to be the paradox of bounded communities, which she mentioned in her first lecture, and which marks the fact that democracy’s supposedly necessary condition, borders, are unjustifiable from the universal normative point of view that is another of democracy’s necessary conditions on her account. The retention of the old name for the new thing is significant.

In her previous work, and briefly in the first lecture, the paradox of democratic legitimacy actually named a different problem, the problem of the demos, upon whose will the legitimacy of the regime rests, and its disturbing tendency to sometimes will the wrong thing, to will not the general will, but the will of all, not the right universalizable answer, but the factional self-interested one. That, of course, remains the problem today. It is simply the case that one of the issues on which the Demos can will wrongly, non-universalizably, is that of where to draw the lines of citizenship.

But something else is now added to the mix, although Benhabib does not note it. What is added now is the sense that maybe the Demos, formal citizens, ought not to be the only ones participating in the decision about alien suffrage. Alien residents are affected by the outcome of this process, and being affected by outcomes is the Habermasian criterion for inclusion embraced by Benhabib, so should we not, though she doesn’t suggest this, should we not conclude that resident aliens themselves should participate in any vote about voting?

If not, is that because they would thereby become judges in their own cause? But isn’t the formal demos also in that position? Both are deciding the juridical and institutional contours of their future.

In so doing, of course, they re-encounter what is really the paradox of founding, according to which the people, which does not yet exist as a people, have to will themselves into being, and they do so illegitimately in order to come into being as a people that can thenceforth, post-founding, will legitimately. But that trick of time does not work. The post-founding period is not disconnected from that which precedes it.

The paradox of founding persists in the post-founding era as traces of original illegitimacies are re-experienced and re-effaced daily. And new violence has occurred too, especially when the regime is committed to paping- papering over the aporia that might delegitimate it. Those inadequately represented or silenced at the founding are usually ill-represented or silenced after the founding.

Indeed, one of the reasons why encounters with new would-be members of the demos are often fraught is that those encounters have a tendency to render visible old illegitimacies that are normally well-hidden, old exclusions that are by now naturalized. In these new encounters, what springs into view is the invariable partitioning of the once powerfully, effectively unified people into an order of rank with widely varying access to the supposedly universal rights and privileges of citizenship. It is true that over time, as Benhabib points out, second-class members of democratic regimes like women and African Americans have been brought into full possession of formal rights.

But these subjects have still never come to bear those rights in the same way as their original bearers. More to the point, Benhabib’s emplotment of the rights story as an evolutionary progressive process of universalization obscures from view the fact that others, resident aliens, for example, have been disenfranchised along the way. Alien suffrage used to be an accepted, uncontroversial practice in the U.S. and Canada until the practice was ended by World War I-era xenophobia.

Historically, alien suffrage occurred without all of the things that Benhabib sets up as necessary to it now: border attenuation, pressures on state sovereignty, and extranational institutions. Faced with the prior practice of alien suffrage, it is hard to think of alien suffrage as the latest in a line of serial expansions earned by our progressive tapping on the system of rights, to borrow Habermas’s phrasing. Rights lose the logic attributed to them by universalists and become instead the products, for good or ill, of political work without a linear temporality structuring our view.

Other things become visible without that temporality, too. We see that the new porousness of territorial borders, which looks so promising to Benhabib, in fact cuts lots of different ways. It has been accompanied by the erection of new, not at all porous borders inside the EU, borders by way of which states internally subject to police and administrative control those who do not fit the profile of the proper citizen or resident.

Similarly, the new mobilities which looked to Benhabib so promising have been celebrated as harbingers of a new cosmopolitanism before. In particular by Randolph Bourne, the American journalist and progressive, whose 1910s ode to a new cosmopolitan post-national America was premature. Bourne did not anticipate, and Benhabib does not pause to consider, the recuperative powers of the state.

Shortly after Bourne wrote, the US accounted for all its new diversity without denationalizing by generating its recuperative myth, the myth of an immigrant America, in which however some immigrants were privileged over others. How we handle new encounters is partly shaped by how we have in the past and present negotiated the paradoxes of founding. If a regime claims that its legitimacy comes from a consent that never really occurred and never really recurs, and if that regime strives therefore to cover over that absence for the sake of its legitimacy, then we might find, as we do in the US, say, a hyper-insistence on the immigrant as a figure of consent.

We might find that naturalization ceremonies are over-reported, they’re not news, and that the consenting immigrant new citizen icon, uh, that the consenting immigrant new citizen becomes an icon through which non-consenting native-born citizens everywhere are positioned to re-experience their regime as consent-worthy. In other words, when democracies face new foreigners, they replay old scripts. Similarly, I venture to say when democratic theorists face new foreigners, they replay old scripts as well.

If the new paradox of demo- of bounded communities slips into becoming the old paradox of democratic legitimation, that is because the new problems of foreignness and open borders are seen by Benhabib to restage old concerns of hers and of Habermas about how to guide democratic will formation by way of norms that are universally valid, independent of whether anyone wills them or not. In short, how to lead the people to the water of the general will and make them drink. The problem with which Benhabib began her lectures, that of, as her title puts it, Negotiating Republican Self-Determination and Cosmopolitan Norms, is a knotty problem, but it is also, I dare say, a welcome one because it is comfortable and familiar.

As she herself pointed out yesterday, it takes the liberal communitarian debate, the rule of law versus situated subjects debate, later transformed into the paradox of constitutional democracy debate, and restages them again, now casting not liberalism, the rule of law or constitutionalism, but rather cosmopolitanism as the steady normative hand at the helm of the wayward people. Quote, “The real challenge of cosmopolitanism is the reconciliation of universalistic norms with democratic politics.” Unquote.

The challenge has the same logic and structure as the real challenges that came before, the challenges posed to democracy by constitutionalism and liberalism. At each new register, the same tensions and paradoxes are replayed. How can we bring the demos whose will may not conform to universal or constitutional norms to a free, autonomous reconciliation with those norms?

We have arrived at cosmopolitanism because in a sense, there was nowhere else to go. In quest of a solution to the paradox of democratic legitimation, Habermas and his followers got caught in forms of sta-statism, which they relied upon to preserve democracy from the caprice of the people. Concerns about the undemocratic nature of that solution then got vented by way of the paradox of constitutional democracy, a paradox then in failing to name the state as such as a problem for democracy, covered over the real concern, while also giving some vent to it.

Now concerns about the state’s caprices, state-sponsored violence and injustice are on the agenda, and so the paradox of cosmopolitanism versus republicanism, the paradox that has to be solved in these lectures, surfaces. But although it surfaces as a problem in need of solution, it is actually working as a solution. The solution to the last paradox’s now problemat- now problematic solution, statism.

In short, at each register, universalism seeks a new harbor, liberalism, constitutionalism, state institutions, and now cosmopolitanism. But no harbor is safe. Moreover, statism is still at work in Benhabib’s cosmopolitanism.

In all three of her examples, the addressee is the state. There was a third example in the longer paper. In all three, the addressee is the state, and if two– and in two of them, the speakers are individuals.

Three girls from Creil are applauded for having learned to talk back to the state. The applause is contingent, however, on the likelihood that they will also one day learn to talk back to Islam. But those three girls from Creil did not act alone.

They were fronts for an organization, a social movement personified in Benhabib’s text by Monsieur Daniel Youssef Leclerc, head of Intégrité and former president of the National Federation of Muslims in France. This indicates that their gesture was a conscious political one, Benhabib says, but it also indicates that the girls appeared in the public realm as the effects of a social movement, no less than Rosa Parks did when she supposedly spontaneously one day out of the blue, refused to move to the back of the bus. It is a trick of statist law and politics in liberal democracies to ascribe to individuals actions that are actually the products of concerted effort and oppositional movements.

Absent serious attention to the role of those movements in this case, it’s hard to tell what’s democratic and what’s iterative about it. The problems of the various paradoxes that I named above are circular. They circulate.

Each solution at one level turns out to be a problem, half of a paradox at the next. Each instance of institutional normativity, would-be universality, turns out to bear within it the danger of caprice and violence. Does it sound familiar?

It’s the story that Hegel tells in the Philosophy of Right. And all of this happens, of course, because the universal is never really what its proponents imagine it to be, context transcending and unmarked by particularity. Perhaps for these very reasons, Habermas and Benhabib and others repeatedly return to these problems.

But these problems need not rule us. There is no necessary connection, I would argue, between admirable democratic forms of life and these particular tensions and practices. Sorry, I lost my place.

It’s never happened to me before. It’s all this talk of paradox. It’s confusing.

Um, Okay, there’s… Oh, there we are. There’s- There is no necess-necessary connection, I would argue, between admirable democratic forms of life and these particular tensions and paradoxes.

These paradoxes, or these versions of them, are the products of the deliberative democratic insistence that democratic practices or regimes conform to a universality that may be alien to them. Benhabib’s cosmopolitanism, I would venture, is as unlikely as its predecessors to harbor universality in a way that works. The question then for me is what alternative problems, solutions, and questions, what alternative democratic cosmopolitanisms are obscured by the deliberative democratic paradigm?

And here I’ll just offer a few brief suggestions. Rather than reclaim universalism, which is the title of these lectures, and inserted into a supposedly permanent conflict that needs to be negotiated between Republican democracy and cosmopolitan norms per se, what if the challenge is one of how to establish and defend sites of citizenship across and within sovereign territorial divides in the name of claiming small islands of power from vast forces of biopower, economic power, state, and interstate power, whose operations affect our lives enormously, but about which no existing so-called democratic institutions can do anything, nor intend to do anything? What if the challenge for democratic actors is to figure out when the state, a particular state, is a useful, if compromising institution by way of which to pursue certain agendas, and when it is important to act against the state or not in relation to state institutions at all?

Just because modern territorial state institutions and modern democracy came into being at more or less the same historical moment, doesn’t mean, it need not mean that there is a necessary connection between them. It’s a historical connection, and their relation may be best construed as agonistic, or as I’ve argued elsewhere, Gothic rather than as hospitable. And I think this argument is different from democracy requires porous borders, which is the note on which, um, Professor Benhabib ended today.

Seeing democracy as agonistically related to its own boundedness and that of the state, rather than fulfilled by these or violated by these, opens it up to a cosmopolitanism that comes from within rather than from without, and invites us to pursue the anti-authoritarian intimations of democratic politics and privilege them in our daily practice. Such a practice requires that we move without the compass and maps of already known norms and established sovereignties. This democratic practice requires sites of concerted action, small, local, national, and transnational, but in some sense always small, that might inaugurate centers of politics and justice that rival nationalism and normative cosmopolitanism from below by partitioning spaces on behalf of democracy.

Thereby, some of the people may split off from the demos claimed by the state in which they reside and establish a separate claim and separate presence and go into solidarity with others disadvantaged by state and interstate institutions. Fi-finally, such a practice might even lead us to insist this less apr– anthropocentrically on human rights, on human rights, sensing perhaps that other creatures are remaindered by that insistence, and to broaden that category to the point where it includes sentient beings as such, to the point where perhaps our names, along with Peter Singer’s, provoke only laughter and hardly an argument from the philosophical community. I realize that last point is a bit of a stretch in this context, but it’s been bothering me lately.

Um, so I thought I’d share it with you. Um, if some or all of these things happened, and many of them have, we might see democratic cosmopolitanism less exclusi-exclusively in state-centered iterations of multicultural claims, and more in the paradox of founding, that irresolvable and productive paradox in which a future is claimed on behalf of peoples who are not yet and may never be. In the enactment of underground railroads devoted to the remainders of the state system, such as refugees, or in the designation of some spaces as cities of refuge, as Jacques Derrida has called for following Levinas’s commentary on the biblical injunction to establish six of these in Israel.

Or we might stand up for droit de cité, a demand to extend full hospitality to refugees and other non-immigrant border crossers. If we fight for droit de cité, then those poor refugees living in the murky space mentioned by Benhabib in lecture one will not have to wait for the law to position them with more clarity in its network. Or we might f– to that end, see more citizens of privileged nations marrying instrumentally those who live among them in order to enable their fellows to stay on as their neighbors, and as a nice by-product, thereby de-romanticizing two institutions insistently romanticized by the state, both marriage and citizenship.

We might also approve of movements demanding alien su-suffrage for co-residents while working hard to prevent the energies of those movements from being lost once this state-centered and state-affirming goal is won. Practices like these and others are designated by Etienne Balibar, fol- borrowing from Bodin, as marks of sovereignty in a movement to take Bodin back from the state sovereigntists. Such actions are jurisgenerative in Robert Cover’s sense, I think, more than in Benhabib’s, because although she doesn’t mention it, the jurisgenerative in Cover’s account is always partnered with the jurispathic.

Generativity without destruction is not possible for Cover. Were all of this to happen and to be visible to us through lenses that do not privilege legal, state, state-like, and interstate institutions, then we might see more worldliness in Hannah Arendt’s sense of care for the world. That Arendt had a juridical moment in relation to Eichmann is true.

Who wouldn’t? But she’s, but she’s not fundamentally hospitable or inclined to juridical solutions to political problems, nor, contra Benhabib, is she a Kantian when it comes to morals. Arendt’s Kant is that of the third critique, not the second.

She is not, nor are postmodernists skeptical about putting the political under the moral. This is a comment that, um, Professor Benhabib made yesterday. Instead, she’s not skeptical about that, she has a critique of that.

For Arendt, the chief political virtues are worldliness and care for the world, and these are in danger of being marginalized and sidelined, in my view, by the version of cosmopolitanism on offer here in which law, state, state-like, and interstate institutions are our principal addressees and all of these examples, our guardians and ventriloquizers, impersonators, and shapers and censors of our voice. From a perspective that does not look to law to solve the problems of politics and worries instead about law’s displacement of politics, the problem of refugees, for example, shifts from one that is always about to be solved by law or to something else. We might be positioned to ask with Nevzat Soguk whether refugeeism has been an occasion for the refinement and enhancement of state power rather than its attenuation.

Or we might think with Giorgio Agamben about whether refugees, rather than being the exceptions of the juridical system, are instead metaphorically its norm, the exemplars of the sort of power that the state system and its sovereign legalism represent but hide. Biopower and its rule over all as bare life. The mood set in these lectures by the absence of appropriate institutions at one time with which to try Eichmann of all people, is not, in my view, the best one through which to think about our contemporary ambivalent relations of dependence on enormous institutions and micropower that operate in, through, over us, and yet are for the most part beyond our ordinary reach.

Not because there are no Eichmanns, there are plenty, unfortunately, of deserving candidates for International Criminal Court trials. But because that emergency provides the wrong template for the work of democracy in our era, one which may well emerge in relation to emergencies, but I hope may be different or subtler emergencies. Note that the issue here is not whether we should take human rights seriously or whether we should try perpetrators of genocide.

It’s about what we think we are doing when we do that. It is whether we should allow the need to do these things to become a template for our practices of democratic politics more generally. It is about what happens to democratic politics when rights and the institutions that adjudicate them take over political space instead of occupying a contestable part of that space.

Perhaps worries like these are what motivates Jacques Derrida to write with such passion about forgiveness in the context of cosmopolitanism. The kind of forgiveness that does the absolutely impossible, forgives the unforgivable, and operates apart from institutional operations of justice. Forgiveness can’t— forgiveness can’t do everything that needs doing, but surely we must secure a world in which there is room left for it and other ethical political practices to do something.

Thank you.

(applause)

[01:29:06] HOST:
Many thanks, Bonnie. Our third, uh, uh, uh, commentator, the second one this afternoon, uh, Will Kymlicka, also comes to us, uh, from north of the border. Uh, we’re continuing the theme of, I guess, cosmopolitan intellectual life or perhaps, uh, we might call it outsourcing.

But in any event, all of our, uh, all of our panelists are in fact not, uh, Native Americans. Uh, he is currently Queen’s National Scholar in the Department of Philosophy, uh, at Queen’s University in Kingston, Ontario. Queen’s is also the institution where he did his undergraduate education before completing a second BA and then his doctorate in nineteen eighty-seven, uh, in Oxford.

Since that time, he has taught at Princeton, Toronto, and Ottawa, published no fewer than five books, including Liberalism, Community, and Culture nineteen eighty-nine, Contemporary Political Philosophy, a book which became an academic bestseller, in fact, in nineteen ninety. Multicultural Citizenship in nineteen ninety-five, which garnered prizes from both the American and Canadian Political Science Associations. Finding Our Way: Rethinking Ethnocultural Relations in Canada of nineteen ninety-eight, and most recently, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship, uh, which appeared in two thousand one.

His extraordinary international reputation as a trenchant theorist of ethnocultural group rights in liberal democratic societies is shown by the fact that his work has been translated into some twenty-one languages, and he frequently teaches abroad at universities in Barcelona and Vienna and at the Central European University in Budapest, uh, where he has been a recurring professor in the Nationalism Studies Program since nineteen ninety-eight. In two thousand and one, he was awarded the Giuseppe, uh, Acerbi, uh, Prize in Mantua, uh, Italy, which is, I believe, essentially a literary award given to those who bring peoples closer together. It is a great pleasure to welcome Will Kymlicka in the hope that he can exercise the same irenic skills in, uh, providing the conclusive, uh, remarks, uh, to Seyla Benhabib’s talk.

(applause)

[01:31:16] WILL KYMLICKA:
Thank you for the kind introduction and for the invitation. Uh, both Jeremy yesterday in his comments and Bonnie earlier just now have suggested that Seyla’s approach is too state-centric, either in its account of the sources of cosmopolitan norms or in the politics that it generates. And from my point of view, I actually, um, I’m in favor of the state-centric approach.

I think that’s where the action needs to be. And, uh, what I wanna do in my comments is actually, uh, ask Seyla to say more about what kind of a state we need. Uh, what kind of state is presupposed by her conception of democratic iterations and jurisgenerative politics?

What, what kind of state sustains, uh, productive negotiation about the tensions between cosmopolitan norms and republican self-government? Some of you may know Peter Ekeh’s famous comment that the tragedy of the state in Africa is that it’s strong enough to harm its citizens, but not strong enough to help its citizens. And I think we could generalize that and think about sort of plotting political institutions on a continuum, that some political institutions in some contexts are basically predatory.

They prey on the interests of their own citizens. Other political institutions are essentially indifferent. They neither help nor hinder their citizens.

But in the best case, we have what we could consider beneficent political institutions that actually have as their goal to protect and advance the interests of their citizens. That’s what, uh, Dominique Schnapper calls a providential state, and she’s thinking primarily of the welfare states of the Western– of Western Europe. I take it that Seyla’s entire account rests on the assumption that we’re working in a context of that kind of a providential state, at least with respect to its own citizens.

That is, she’s starting with an assumption that we’re working in a context where the state does have the, the desire and the capacity to benefit the interests of its own citizens, but alas, has not extending that concern to refugees and, uh, foreigners. Now we, we might wanna question that assumption, and I take it that one possible source of disagreement between Seyla and Bonnie is about whether Western democracy should be seen as providential in that way. And just to remind you of what I thought was an extraordinary comment in, in passing in Bonnie’s commentary, she talks about the range of power that’s affecting our lives and says that, uh, about these forms of power which no existing so-called democratic institutions can do anything nor intend to do anything.

And that seems to me a very strong statement of kind of skepticism about the idea that Western democratic states are providential in this way. But I, I take it that Seyla is assuming that th-that Western democratic states do have the capacity, at least sometimes, in some contexts, and the commitment to protecting and advancing the interests at least of their own citizens. And I agree with that.

But that raises the question of what is it that enabled these Western states to become providential? States are not inherently that way. They can be– They can–

It’s equally likely for them to be predatory and different. And I think part of the answer that explains why at least some Western states, when they’re in their best circumstances, are providential, has got to do with nationhood. I think that…

I mean, this is an, a l– a familiar story that many of you will know, Charles Tilly talks about this at length, that Western democracies have engaged in a kind of systematic set of nation-building policies to promote the idea that co-citizens are also co-nationals who share a common national language, a national identity, uh, a national, you know, literature, heroes, symbols, myths, monuments, museums, and so on. Um, and come and, and cr– and inculcate the view that citizens belong together, they form a single people, and hence belong together in a single state and have the right to govern themselves together in a single state, such that it would be a tragedy and an injustice were they to be, uh, unable to govern themselves as a single people by either being divided into two or more states or being s- absorbed into a larger state, even a larger democratic state, because they are a people, and as such, have a right to govern themselves in a single state. Now, I think those processes of nation-building, uh, have played a very important role.

I mean, this is what, uh, many people have argued, have played a vital role in developing the effective and cohesive and providential states that I take Seyla’s lectures to presuppose. Uh, and I think that pack– that, that idea– that development in, in the West of states that are liberal democratic on the one hand, but grounded in an ideology of nationhood on the other, this package of liberal democratic nationhood, uh, has been extremely successful in many respects in creating states that can in fact protect and promote the interests of at least most of their citizens most of the time with respect to their individual rights, economic prosperity, peace, the rule of law, uh, and the ability to participate in political institutions. But that strategy of creating providential straits, providential states through nation building also has risks.

One of the risks is the one that Seyla has focused on, which is, uh, the threat to immigrants. Because if the, if the basis on which providential states are constructed is that the feeling of co-nationhood, co-nationality, then obviously that, that helps explain why foreigners fall outside the scope of, uh, the state’s consideration. But ideologies of nationhood are also a threat to other groups.

For example, to sub-state national minorities, like say, American Indians here, the Quebecois in Canada, the Kurds in Turkey. One of the standard ways, one of the, usually the kind of the first, um, goals of state nation-building, uh, the first ways in which a state tries to build a common national identity is to destroy any pre-existing sense of distinct nationhood on the part of any internal historic minorities. So nation-building is a threat to immigrants, it’s a threat to, to internal national minorities.

It can also be a threat to international peace because when you ground states on ideas of nationhood, that can generate ideas of national antagonism between neighboring states. So I think this is a kind of complicated situation we’re in, that we’re trying to think about how to accommodate cosmopolitan norms within a system of states that is broadly providential, but, but has achieved that on the basis of an ideology of nationhood that it’s, it’s a risky strategy and has costs for various groups and various risks. And so the co- the question I would, as it were, rephrase Seyla’s question.

I mean, she phrases the question as how do we negotiate the tension between cosmopolitan norms and republican self-government? But I think we’re actually facing a more specific tension, which is between cosmopolitan norms and national republican self-government or national liberal democracies. And it, it may be that the ideology of… the existence of the ideology of nationhood makes these issues more complicated, and perhaps even more difficult than comes through in the way Seyla has set up the problem.

And so the first question I think we need to ask, or at least the first question I would ask if, if coming at this, is whether we think it’s possible for states that are grounded on ideologies of nationhood to do justice to the claims of cosmopolitan norms. Or whether we think in order to do justice to cosmopolitan norms, we need to, we need to abandon these ideologies of nationhood. And I mean, to oversimplify, we have obviously two options.

One o-one option, which I’ll call the, the transcending option, that is that in is rests on the idea that in order to do justice to cosmopolitan norms, we need to transcend the ideology of nation. We need to sever the connection between nationhood and liberal democracy and create some form of post-national, non-national, uh, ideas of political community, of, of, of citizenship, of sovereignty that are, that are severed from ideals of nationhood. The other option, which I’ll call the taming option, is, uh, starts from the assumption that it is possible for states that are built on ideologies of nationhood to do justice to cosmopolitan norms, but we have to find ways of taming the ideology of liberal nationhood so as to reduce the risks that it poses to immigrants, to national minorities, and to international peace.

Now, so, so that’s the question I would, uh, phrase, and I think Seyla, in her lectures, does not clearly answer that question. It’s not necessarily her concern, but I, I wanna push her to address that question. And part of the reason I, I ask that is because I think there are different, there are passages in the paper that move in different directions in respect to that question.

There are some passages in her lectures which I think, uh, push in the direction of the transcending option. For example, she says, you, you may recall it, that the claims of immigrants to local voting rights in Germany involved repudiating what she calls the vanishing ideology of nationhood, right? So sh-she suggests that the, the– we can’t understand the claims of immigrants to local voting rights except as a repudiation, a transcending of the vanishing ideology of nationhood.

And more generally, her account of the way in which rights have been, uh, as she calls it, disaggregated from national citizenship, she also takes it as evidence that we need to transcend the ideology of nationhood. So I take it in these passages that she’s actually making two kinds of claims. One is a descriptive claim that, that the– what’s actually going on, on the ground in Europe, that if we, if we actually des– the, the best description of the claims making of immigrant groups in Germany and France is that they are trying to transcend the ideology of nationhood.

So it’s a descriptive claim, but she’s also making a normative claim that this is a good thing, that, that, that it– because we need to transcend the ideology of nationhood if we’re to do justice to cosmopolitan norms. Now, if that’s your position, and I think some passages push in that direction, then I disagree on both the descriptive and the normative grounds. I, I don’t think that what… I don’t think that immigrants in either France and Germany are trying to transcend the ideology of nationhood.

And I, and I don’t think that the s- that that should be grounds for moral regret because I think… I mean, I think what they’re trying to do is tame liberal nationhood, and I think that that provides a- that I think it is possible for a tamed and chastened form of liberal nationhood to do justice to cosmopolitan norms. Uh, so, so-

But, but I’m not actually sure that Seyla wants to adopt the transcending view because there are other passages in the lectures which could be read as endorsing the taming view. Um, I mean, she says, for example, uh, and you may recall this, uh, near the end of the paper, she says that jurisgenerative politics in Europe has increased the threshold of justification to which formerly exclusionary practices are now submitted. Exclusions take place, but the threshold for justifying them is now higher.

Now, one natural way of reading that passage is that’s the taming strategy, and I think there are other passages that can also be read in that form. So I, so I, I mean, I think we can find, uh, you know, possible gestures in both the taming direction and the transcending direction in her lectures. Now those– the-these two ideas of taming and transcending may sound kind of unduly abstract, so let me try to make it more intuitively clear what the difference might be.

Uh, I, I’ll come back to the specific cases that Seyla discusses in a minute, but I think a, a quicker way of getting at this distinction is to think about the institutions of the European Union itself. So not immigrants in the first instance in France or Germany, but the basic structure of the European Union. Because I think there has been a vocal debate in Europe for the last ten or fifteen years about whether to understand the European Union as transcending ideologies of nationhood or as taming ideologies of nationhood.

Now, the transcenders, as we could call them, view the European Union– view its moral task, its world historical task, to create a post-national political order based on a post-national idea of citizenship and a post-national idea of sovereignty. Well, what does that mean? It means, amongst other things, that for, for the transcenders, it’s important to try to construct a form of European citizenship that is not derivative of national citizenship, so that people would have a direct and unmediated citizenship in Europe that doesn’t just go through their having become a citizen of a nation-state.

And it also involves constructing some form of sovereignty for the European demos that would not be simply delegated from the nation-states. And so the transcenders have been pushing at least on those two fronts to create a post-national conception of European citizenship and a post-national conception of European sovereignty. And for, for this, for this, for the transcenders, I mean, most I think are– view the European Union as, to date at least, a moral disappointment because it has failed on both of those tasks.

That at, at the moment, as Seyla emphasized, European citizenship is still derivative of national citizenship, and the decisions of the directly elected European Parliament are still essentially subject to vetoes of national parliaments through their delegates at the European Commission. So we– so f- I think mo- Many transcenders hope for, but, but feel we haven’t yet achieved a form of post-national citizenship, uh, and democracy through the European Union.

And they regret that and think that it’s therefore a moral failing, or at least not yet a moral success, because the European Union remains too nation-centric. My own view, I, I consider myself one of the tamers, is that the f– the function of the European Union and its world historical task is not to transcend the ideology of nationhood, but to tame it. And viewed that way, I think the European Union has been an incredible moral success.

First of all, in eliminating the possibility of war amongst the liberal democracies of the, of Western Europe. And that is, uh, I mean a priceless moral advance, that the idea of war between France and Germany is now basically inconceivable. But it hasn’t just tamed it in Western Europe, it’s also diffused it.

First of all, to Southern Europe, the European Union played a vital role in enabling what were fascist military dictatorships in Spain and Portugal and in Greece into normal, liberal, national political communities. And now it’s doing it again in Eastern and Central Europe with Croatia, Poland, Hungary. These, to my mind, I mean, so the European Union is in fact engaged in a project not just of taming liberal nationalism, but of diffusing it, of remaking the entire continent of Europe in the image of liberal nationhood.

And I think that’s good. I think that’s progressive. I think the peoples of Europe are much better off for the role that the European Union has played in taming and diffusing ideologies of liberal nationhood.

And so, on my view as a tamer, the European Union is a great moral success precisely because its main task was to tame and diffuse liberal nationhood, not to transcend it. Okay, now all of that may seem actually irrelevant to Seyla’s lecture because she’s focusing on the case of– I mean, I just hope that helps to clarify what might be at stake.

And I should also say that, uh, this is not just a question of how we perceive the European Union. It has political consequences because for the transcenders, I mean, there was a real debate between the transcenders and the tamers about whether to extend the European Union. Because for the transcenders, they believed, I think rightly, that if the European Union was extended to include ten new countries with very different histories and backgrounds and political traditions, it would be harder to develop a truly post-national sense of political identity and political sovereignty.

And it would– the… And so they wanted to deepen. This was the deepening versus widening debate.

The, the transcenders wanted to deepen the European Union to, to just stick with the core states in the hope that that would build a truly post-national conception of being European amongst those peoples who were now familiar with each other through the core states of the European Union. And they didn’t want to extend it because they thought, correctly, that extending it would mean that the European Union would probably remain just a club of nations. And so, so the tamers wanted to– Sorry, the transcenders wanted to deepen the European Union, the tamers wanted to widen it.

And I think from my point of view, morally speaking, it’s clear that the– we should widen it as quickly as possible, as far as possible, so as to extend the benefits of the ideology of liberal nationhood to more people. Okay, now I’d say all that may be irrelevant to Seyla’s concern, which is with immigrants. And we might, even if you agree with what I’ve just said, you might still think that the ideology of liberal nationhood cannot do justice to the claims of immigrants.

And so let me just, I mean, and, and so, and she particularly discusses the cases of giving citizenship to the Turks in Germany and the, the claims of, uh, Muslim immigrants in France to wear a headscarf. And the question is, can we, can we tame liberal nationalism in such a way as to accommodate these demands? Uh, or to put it a slightly differently, can we imagine models of multicultural liberal nationalism?

Now, as it happens, I, I have my own theory about what su- what such a multicultural liberal nationalism would look like. There are other theories out there, but I actually don’t think we even need to bother with the philosophical theories. We have existing practices in the world of multicultural liberal nationalism.

I mean, what’s striking about those two cases is that most liberal nations have d- have, have already done much better than Germany in enabling citizens to beco- enabling immigrants to become citizens, and much… most liberal nations have already done much better than France in enabling Muslim immigrants to wear headscarves and other forms of accommodation of immigrant ethnicity and culture. I mean, the point is you keep– It’s not plausible to view the German exclusion of Turks and the French prohibition on wearing a headscarf as somehow the inevitable or even the common outcome of the logic of liberal nationalism, right?

They are statistical outliers. The common, uh, way in which liberal nations deal with immigrants is through a process that enables them to become citizens, and which accommodates their right to wear religious, uh, headscarves. And, uh, here in the United States, Canada, Australia, Britain.

Then… Sorry. So, so I actually don’t see that there’s anything, e-even on Seyla’s own description of the cases, there’s nothing in them that seems to me to contradict not just potential theories about liberal nationalism, but actually existing practices of multicultural liberal nationalism in the Western world.

I mean, I, I, I think the claims that she’s discussing actually fall well within the parameters of existing practices of liberal nationhood. They’re not even at the outer boundary. They’re well within, uh, you know, common existing practices of liberal nationhood.

So I mean, so– but I, and I think part of the, part of the reason that, I mean, if it’s the case, and I’m not, as I say, I’m not entirely sure that Seyla wants these cases to somehow be probing the limits of the ideology of nationhood. But I think part of the– o-one, one possible problem here, uh, is the way in which Seyla talks about the disaggregating of rights from citizenship. And I, I just wanna end on this note because I, I, I think, as I said, there’s a potential ambiguity.

Seyla describes the process by which the Turks in Germany have acquired some of the rights which used to be reserved for citizens. So even though the Turks until recently were not eligible for naturalization, they acquired some of the social rights, a-access to welfare programs and all these, that used to be reserved for citizens. And she views that as an instantiation of cosmopolitan norms.

Uh, well, first of all, as contesting the ideology of nationhood, because rights are no- are now separated from national citizenship, And is reflecting norms of co-cosmopolitan norms. I actually think what was going on in Germany with respect to the i-rights of aliens was more complicated than that. I think there were basically, to oversimplify, two positions.

There was a right-wing position, the Christian Democrat view, which said, “We should give Turks some social rights,” but not full citizenship, in the hope that if we give them that, they won’t ask for national citizenship. So it was a way of, of, of avoiding the need to. I mean, the, the point is that they were very disadvantaged as, as guest workers, and there, there was a danger that they would become a kind of an underclass, racially defined.

They might be prone to criminal activities or to religious fundamentalism. There were, there were indications that this might happen in the second generation. And so the Conservatives felt, we’ve got to do something to improve their standing, but we don’t want to give them full citizenship.

So let’s give them some, a bundle of social rights in the hope that that will make their situation tolerable, and they’re not going to ask for full citizenship. That’s the, the right-wing version. The left-wing version, the social democratic version said, “Let’s give them social rights and perhaps local voting rights on the grounds that this will be a step towards full citizenship.

It’ll, it’ll enable the Turks to become more familiar with German institutions. It’ll enable greater trust and interaction between the Turks and the native-born Germans. Uh, it’ll create greater feelings of allegiance, uh, with the German state, and it’ll therefore make it easier to achieve the goal, the long-term goal, which is a rebundling of rights through the acquisition of full national citizenship.

And so on the, on the Social Democratic view, the, the, the, the, uh, the, uh, granting of, of unbundled rights, uh, the, the unbundling of rights from citizenship was a transit– seen as a transitional phase towards the real goal, which was naturalization and full, full and equal national citizenship. So in other words, the idea of unbundling rights is actually a, it’s a complicated political project that can serve different political aims. And on my… it, it can serve regressive political aims or progressive ones.

And, and on my view, the regressive version of the unbundling of rights views it as an alternative to full national citizenship. The progressive version of the unbundling of rights views it as a transition to full national citizenship. And so I actually think that this case, in a way, uh… I mean, there was a period of time in which some people on the left in Germany thought that if you gave the Turks local voting rights, social rights, and perhaps even direct access to European citizenship, but not German citizenship, so in other words, the Turks would be citizens of Berlin, citizens of Europe, but not citizens of Germany, that that might be an acceptable status without having to change, without having to give them access to natur-naturalization and to citizenship.

So there was, for a period of time, I think in the, in the nineteen nineties, some consideration on the– amongst the left in Germany that that might be an acceptable alternative. But I think there’s been a clear recognition that it’s not an acceptable alternative, and that it’s not acceptable for Germany to maintain a xenophobic conception of what the German nation is, and that the only long-term just solution is one which views the unbundling of rights as a step towards full national citizenship. So I actually think the German case, it’s an interesting case in which people both on the right and also to some extent on the left, looked for an alternative to the ideology of nationhood and then came to the conclusion that there is none.

There is no acceptable alternative to the integration of immigrants, except one that views as its long-term goal access of immigrants to full national citizenship. Okay, so what, what, what conclusion do I want to draw from that? I, uh, from all of these stories.

I mean, the conclusion I wanna draw is that if we want to think productively about how to reconcile cosmopolitan norms with republican self-government, given the history we have, given the kinds of states we’ve inherited, we need to think much more creatively about nationalism. Nationalism is a problem for cosmopolitans, but it’s also possibly a resource. I think there are ways we can think imaginely and creatively about the normative resources that are in ideologies of nationhood and use them as a base from which to build support and recognition of the claims of immigrants and of national minorities and of international law and crimes against humanity and so on.

And, and I think that’s, that’s one of the things we need to do. We need to try to think more creatively about how the ideology of nationhood, which is deeply rooted in Western society, can be used as a resource and not just seen as a problem. And if that’s right, then I think we’re in a–

we have– we’re– we have a slight problem, which is that virtually everyone on the left, and certainly virtually everyone on the left who thinks of themselves as a cosmopolitan, is congenitally allergic to ideas of nationalism. And I, I, I’m– this is no, I think it’s a fairly safe generalization about most people on the left, is that they, they are not willing to even contemplate the possibility that ideologies of nationhood could provide a moral resource for progressive political politics, including the recognition of cosmopolitan norms. And instead, this is all this intellectual energy devoted to trying to locate instances of post-nationalism.

I mean, it’s just kind of waiting for Godot syndrome that each, each time, you know, you look for the Maastricht Treaty or the Amsterdam Treaty to try to find evidence that post-nationalism is finally emerging, and we keep waiting for it. We try to find some social movement that’s pushing for it, and we’re neglecting the resources that lie at hand in liberal notions of nationhood, which I think are compatible with legitimate claims of cosmopolitanism. And so, and and I think that our inability to to work, to think this way, to think about the intellectual and normative resources in ideologies of nationhood, is not just intellectually constraining, I think it’s politically constraining.

And I actually think that some of the problems that Seyla is discussing are going to be more difficult to resolve, and in fact, impossible to resolve if we don’t try to make better use of the normative resources of nationhood.

[01:56:31] SEYLA BENHABIB:
Thank you.

(applause)

No, I’ll, I’ll go. I feel like getting Bonnie and, uh, Will here and let the two Canadians duke it out

(laughter)

.

(laughter)

(laughter)

And I’m gonna sit there and enjoy it

(laughter)

as you debate these, uh, totally

(laughter)

different visions of, uh, of the democratic political life. Um, oh, obviously these are, uh, both very, uh, rich and also very, um, uh, provocative comments because they are pushing me in, um, opposite directions, and it’s not, I think, possible for me to, uh, agree with, uh, uh, both or to try to do, uh, justice to both. But so what I’m going to do now is I’m going to name a number of areas of serious contention, which I would like us maybe to turn to during the, uh, seminar also tomorrow, because if I go into a full response, it will take the next half hour, and we will have no room for, um, uh, uh, questions.

Uh, let me, uh, see if I can, uh, bring, um, um, the two comments, uh, under, um, uh, several, um, uh, headings. Uh, I will begin with this dichotomy that, um, Will sets up, uh, the helpful terms taming or transcending, uh, the, um, uh, liberal democratic state, and I did not insert the term nation, uh, there, and I’ll talk about that in a minute. I think that I want to situate myself in a space that is, uh, the tension, uh, between the, the taming and the transcending strategies right now because, uh, I sincerely believe, uh, that this is not just a consequence of discursive, uh, moves as Bonnie contended, that it is as if the logic of a Habermasian position would lead one to end up where one necessarily ends up always negotiating universalism and particularism.

I happen to believe that we are at a new historical moment with, uh, different, uh, institutional, historical, and legal transformations where the pressures on the international state system are, are considerable and that, um, eh, I am trying to think through In some ways, I’m trying to think the present, because the task of critical theory is always also to think the contradictions of the present. I am a Hegelian. Philosophy is its own time grasped in thought, hopefully without historicism.

So I think that, uh, the, the tensions that Will outlined are, are real and, uh, uh, but I don’t see why one has to come down on one side or, um, another at the, at the moment. And I certainly cannot endorse the romance of the liberal nation. We have had this disagreement, uh, for quite some time now.

Uh, for me, processes of, uh, nation-building and peoplehood are much more fraught with exclusions, oppression, discrimination, uh, some of the darker side, uh, that Bonnie rightfully, uh, emphasized. And I believe there is always an equivocation here also in notions of liberal nationhood where th- whether we are assuming the nation to precede, uh, the state as some kind of a referential entity to which the liberal democratic state refers to justify itself, or whether the nation itself is formed through the efforts of the liberal democratic state. Sometimes you have this contrast in history and political science as a distinction between ethnic and civic nationalism.

But there is something at stake, uh, there because liberal nationalism has also its darker, uh, darker sides. And I’ve always felt that for, uh, Will, this posed an epistemological problem in that it never was clear to me whether this notion of the nation was the nation, uh, was the notion of the nation as the people of the state, or whether the notion of the nation, uh, was smaller or maybe even larger. To give you one example that Rogers Brubaker always talks about, uh, okay, we have focused on, or you have focused in your work on the claims of the Québécois, uh, first, um, peoples in Canada, Aboriginals.

But what about, for example, claims, uh, to, uh, a German nationhood or Slavic nationhood, which transcended territorial boundaries and were not looking at the mini nations within the nation or sub-nations within the nation, but the notion of the nation as extending necessarily the frontiers of the liberal state. So for me, this concept of liberal national-nationalism is always a normatively and empirically fraught, um, formula. And this then brings me back to Bonnie’s comment about the paradoxes of democracy.

I think that both historically and conceptually, I see a healthy tension and indeed antagonism between democratic struggles for inclusion and nationalist struggles for consolidation. Sometimes women’s struggles have repudiated the nation. Think of Virginia Woolf and her repudiation of, uh, the ideology of nationalism during the World War, World War I, the Three Guineas.

Think of Rosa Luxemburg and, uh, socialism that never could reconcile itself to, to nationalism within the European context. So democratic aspirations which have been associated with these, uh, movements, uh, cannot be comfortably fit into the framework of, uh, the nation although I think I agree with Will that institutionally there has been quite a bit of success that we can associate with the territorially circumscribed nation state. That’s why, uh, overcoming it or transcending it isn’t simply, um, such a, um, uh, uh, such an easy or, um, or task.

But if then one takes this notion of, um, the democratic paradox and the essentially contested and contestable nature of the boundaries, uh, of the, of the demos, I come to, uh, Bonnie’s question and say, “Well, what else really?” I mean, um, yes, uh, the paradox of democracy, uh, includes both the problem of, um, the general will and the will of all. Although I do not like the use of the concept of the general will, because I think that that is based, uh, upon an epistemology which is quite, uh, problematic, and I’m a deliberative democrat.

I do not think that there is a general will that can be discovered by a divine legislator. I see the general will as emerging out of processes of deliberation about, um, uh, preferences and about choices through, uh, collective reasoning itself. But let, let us just for a minute, uh, style–

So, sort of following Rousseau say that there is this, this paradox that if we are serious about democracy, we cannot always assume that the formal and the procedural and the substantive constraints, the rule of law, human rights, will nonetheless produce outcomes that we will always be ready to endorse as just. In other words, pure procedural justice in Rawlsian terms may fail in certain respects, and the democratic paradox has to accept the possibility that, uh, s- pure procedural justice will not, uh, will not just, uh, will not yield, uh, um, uh, justice. Now, in that sense, I see the paradox of bounded communities, which you name, Bonnie, to be really, um, very much tied in with this problem of self-determination and self, um, constitution.

Because one of the ways in which the claims of justice can be done wrong in democracies is precisely in the treatment of foreigners and others, and those, uh, who are, uh, who are non-citizens. So, uh, I leave, I leave open, uh, this, and I don’t quite see the problem of using an old name for what you call a new phenomenon, because I think that these are, um, uh, conceptually, uh, conceptually, um, uh, uh, related. Um, now, uh, there are a number of empirical disagreements which maybe we should take up, uh, uh, tomorrow.

Uh, this is the question about the direction of rights, the emplotment of rights, the question of local rights, alien suffrage. Uh, Bonnie contests that, uh, my historical narrative, uh, which, um, uh, although I did not explain this, uh, very much in the lecture, in the text I do refer to T.H. Marshall’s, uh, notion of civil, social, and political rights as a g- on a kind of evolutionary scheme. I don’t endorse, uh, Marshall’s historical account.

I am not, uh, a historian. I’m a historically informed political philosopher. I think that there is more zigzagging here, uh, in the notions of alien, um, uh, suffrage and local voting rights.

But coming to something that, well, Kymlicka mentioned, the reason why I think this is right now on the agenda is, uh, precisely because the nature of also immigrants’ relationship to the nation-state itself has changed such that there are cycles of going back and forth. People do not want to settle down. They do not give up– wanna give up their dual allegiances.

For example, um, Ecuador and El Salvador now permit, uh, their citizens who are also US citizens to run for and even hold office. Mexico recently granted Mexican American, uh, uh, children born on this soil to vote in local elections, but not to hold office. So I see this disaggregation of rights taking place today under different kinds of pressures which are probably part of the big G word, the globalization.

I mean, this would require a further account than I’m able to, to provide here. So historically, of course, there was, there was, um, alien suffrage. Another reason for the emergence of interest in municipal citizenship is precisely the developments which Will Kymlicka mentioned, the interest in post-national citizenship.

I think unlike, um, uh, Will, that European identities are in the process of being scrambled much more radically. I think that, you know, it was brilliant on your part to reinterpret the European Union as the spread of the ideal of liberal nationalism. That was a real coup.

But, uh, I just don’t think that that’s, I mean, I think that the European Union is spreading the Copenhagen criteria, and the Copenhagen criteria do presuppose the spread of the rule of law, um, uh, free markets, and also this capacity to sustain cosmopolitan rights and the treaties. Uh, and I’ll be brief here. The acquis communautaire is like a, you know, one of these 600-page legal documents, and to be able to even absorb that, you know.

And I think about this with respect to Turkey. I mean, it requires enormous amount of political and intellectual, you know, possess and training to be able to deal with this acquis communautaire, most of which is also boring stuff about how to sell raisins and, you know, and, uh, trade accounts and so on. But the important Copenhagen criteria are instituting transformation

But I think that identities are being scrambled, and I don’t see that these identities as leaving intact liberal, um, liberal nations. I think that it is easier, uh, you mentioned the Turkish Gastarbeiter community. It is easier for Turks to be citizens of Berlin and Frankfurt and European citizens than to be Germans.

I think that this is simply a fact. And if they are going to assume German citizenship, they will do it for instrumental reasons, because other options are not at the moment possible. And this is not very much unlike the situation in Ireland, where for the first time we saw some kind of a resolution of the Irish-British conflict as a result of the framework that was being provided by the European Union.

So both regionalisms, as well as these many identities are very important. Which, uh, then just gets me back, um, once more to Bonnie’s comment, and I really want to talk in more depth about some of the tensions here. Uh, permit me two, uh, brief points, and then I’ll, um, uh, stop.

I find myself in a great deal of agreement about the democratic practices that Bonnie points to, but my sense is that why do you think that these democratic practices are either beyond the law or opposed to the law, rather than seeing the legal framework of liberal democracies, including contestation about rights, as in framing some of these debates? I mean, the droit de cité, for example, that you mentioned, includes a tremendous amount of democratic mobilization at the local level of, you know, citizens’ empowerment, jurisgenerative politics. I would not be opposed to that at all.

But, I mean, in this country, we would maybe use federal, you know, state rights, local rights traditions. In other countries, you know, in Europe, for example, Amsterdam, a city that does this, Mm-hmm goes back to its own history- Mm-hmm as a free city-state. So I do not see the opposition here between, you know, uh, the juxtaposition that you seem to set up between democratic politics beyond the law and state-centered legal politics.

That was not my intention at all. Democratic iteration goes back and forth between, uh, the framework of the law and the democratic reappropriation of rights. So that really may be a matter of emphasis.

And the final point on Hannah Arendt, Bonnie and I have been discussing this for over a decade. I don’t think that we will agree today. We have not agreed in the past, but the reason why I used Arendt to open up these lectures was not to add pathos and thus to persuade you all.

Uh, that was not my intention. I have been really thinking through, um, the dilemmas about the International Criminal Court, and I have been looking very carefully at the Slobodan Milošević trial- Mm-hmm and the trial of the Yugoslav war criminals in The Hague. And when looking at these phenomena, I remembered this discussion that Arendt and Jaspers had about the jurisdiction of Israel to try someone like Eichmann.

And it seemed to me a very good moment, although, um, sometimes Arendtian politics has been located beyond the law. But I think again, Jeremy Waldron has a fantastic essay where he shows actually Arendt to be also much more of a constitutionalist than we give her, um, give her credit to. It seemed to me to be important to go back to that, and there I’m just going to, to get, uh, a tad contentious and say, Only the victims can forgive.

The task of democratic politics is to generate justice. That’s why we need the International Criminal Court. That’s why I think Derrida’s critique of juridification is gratuitous.

Because forgiveness can only come from the victims themselves. But what the state and its institutions can provide is, uh, justice, and people want justice. The victims of Srebrenica want justice, And it is important, it is important that the war criminals be tried, and that justice be done, and that justice be seen to be done.

And many… in, in many ways, maybe even justice and forgiveness are not opposed. I think Derrida’s ultimate argument is that they’re not opposed. But then again, uh, sort of conceding, uh, to Wilde’s point, yes, we do need the good functioning institutions of the providential state to provide justice.

[02:13:57] MODERATOR:
Thank you.

(applause)

[02:14:03] HOST:
We are, I’m afraid, uh, at the end of our time for today, but luckily we have, uh, it’s like a cricket match. We come back tomorrow, uh, for the final round. And, uh, Sam Schifrin, I think, is gonna be doing our moderating, and we’ll hear from our four speakers, and also the audience will get the chance, if they did not have today, to ask, uh, all the questions that you’ve been saving up.

So please come back tomorrow. Uh, make the questions, uh, as articulate, crisp, and, uh, straightforward as possible, and, uh, we’ll re-meet at four ten. Thank you very much.

[00:00:00] SAM SCHEFFLER:
I’m, uh, Sam Scheffler. I’m going to be substituting for Janet Broughton, who’s listed in the program as the moderator for today’s, uh, discussion. The format will be as follows: each of the three commentators, uh, will have an opportunity to speak, uh, now for fifteen or twenty minutes or so to amplify on the comments that they’ve made previously as they wish.

Uh, after that, we’ll have a very short break, and then, uh, Seyla Benhabib will have a chance to respond to the commentators. Uh, and following that, we’ll, uh, throw things open for further discussion among the panelists and, uh, questions from the floor. Uh, the, uh, the panelists will speak in a slightly different order than it says in the program.

Uh, Will Kymlicka will speak first, Jeremy Waldron second, and Bonnie Honig third. Uh, this is res- the result of a, um, grassroots democratic iteration

(laughter)

that took place among the participants themselves over the course of the last day or two. Um, given that, uh, Marty Jay did an admirably thorough job of introducing, uh, all of the speakers over the course of the last two days, and that we’d like to leave as much time as possible for discussion, uh, I will not try to, uh, recapitulate or reintroduce them, and we’ll simply, uh, start right in. So the first speaker today is Will Kymlicka.

[00:01:38] WILL KYMLICKA:
Thanks, Sam. Um, is it working or can anyone– everyone can hear me? Um, in, in my comments yesterday on lecture two, I talked about, um…

I asked some questions about the relationship between cosmopolitan norms and the idea of nationhood, and whether in order to, um, do justice to cosmopolitan norms, we need to either tame or transcend nationhood. And if, if people are interested in, in pursuing that, I, I’d be happy to later on, but that’s– that may be my own idiosyncratic obsession. So in today’s comments, I actually wanted to ask a a different question that’s perhaps more internal to Seyla’s own project, which is about the relationship between lecture one and lecture two.

Um, in, in lecture one, um, Seyla suggests that the duty of hospitality is a, a- as Kant, um, introduces it, is a, a, an important basis for cosmopolitan norms. Um, and as I understand the idea of hospitality, that’s parasitic on the notion of, of, uh, of guests. I mean, the hospitality is something you owe to guests or strangers.

Um, and, um, and a large part of lecture one is trying to, uh, or addresses the question about our, our duties to, to guests. But in lecture two, um, it, it sounds like, and this is what the question I want to ask, that the very idea of treating people as guests is suspect in a democracy, and that, um, Germany is being criticized at times in this lecture for treating its Turkish population as guests when they should be treated as citizens.

(cough)

And so I’m, I’m curious about how we get from lecture one to two, how, how we get from the, from the idea of the duty of hospitality based on… I mean, so in other words, the duty of hospitality seems to have presupposed that it’s appropriate to view people as guests, and then by the time we get to lecture two, this, it seems like it’s inappropriate to treat people as guests. So let me just try to trace out some of the, what, what’s happening there, there as I see it, and what some of the possible problems might be.

Um, Okay. So, what, a minimal version of the duty of hospitality would be that if someone in need washes up on one’s borders, you have a duty to offer them refuge. Now that’s, that’s if you like, the, the duty

that we… that is part of the Geneva Convention o-on refugees. That, that countries have a duty to offer asylum to people who are fleeing, who have a, a, a reasonable fear of persecution. And so, um, but as it’s written in the Geneva Convention, that’s just a t–

You, you’re only required to offer temporary asylum. So and once, once, once their home country has become safe again, or the fear of persecution has limited, it’s, it’s… You’re no longer under an obligation to continue to offer them refuge or asylum.

Uh, the, your duty of hospitality is exhausted by having given them refuge when they needed it, and then it’s okay to expect them to return home. Um, a, a m– a stronger version. Now, o-okay, so the Geneva Convention just concerns people who are fleeing persecution.

I, I, I… At least as Jeremy wants to interpret the duty of hospitality, it should be extended beyond simply refugees to include missionaries and t- traders and so on. But even there, I take it that on, at least on, on the modest version, these are, these are rights to temporary refuge and not, not permanent settlement.

Okay. A, a more, a, a stronger version of the right hospitality would be that we should, that in, in, in, in some or all these cases, we should in fact offer people permanent residence, even if they’re no longer, even if their original country is, is safe and secure for them to return to. Um, now that would be a very strong conception of a duty of hospitality to say that once you’ve admitted someone, um, that you are obligated to let them stay indefinitely, and that, that would be a very strong interpretation of the idea of a duty of hospitality.

Um, but it– But okay. If we, if we think about ho– a duty of hospitality in those terms, I– it seems to me that Germany in the nineteen eighties and nineties, which presumably scored very well on the duty of hospitality because Germany had the most liberal refugee policy, the most liberal asylum policy in Europe.

It was, it was easier for, for refugees to enter Germany than, than any other continental European country. That, that’s a legacy of the, of the Na- of the reaction to the Nazi period, that they had a very liberal asylum law, which they’ve since tightened. But in the 1980s and ’90s, it was a very liberal asylum law, and they allowed their refugees to stay permanently, as they allowed their Turkish guest workers to stay permanently.

So it seems to me that Germany would count as meeting a f- I mean, as, as being very– as meeting a very strong conception of the duty of hospitality in allowing, uh, more refugees in than other continental countries, and allowing them to stay permanently, and allowing their original temporary guest workers to stay permanently. But then…

Okay, so it seems to me that in lecture one, we might think of Germany as a kind of ideal country of living up to en- the duty of hospitality. But then in lecture two, Germany kind of becomes the, the main case of the failure of a country to li- to live up to cosmopolitan norms because it’s treating its T- Turks as guests. When it– according to Seyla, they should be treated as members of the demos.

They should be viewed as, uh, as, as co-citizens. A-as people whose, whose, because their interests are affected by, by political decision-making, have a right to be part of the democratic process, and are people to whom justification is owed through the processes of deliberative democracy, that they, they are as much owed a justification for public policies as, as citizens. Um, which, which implies that in fact it’s unacceptable that, that s-some, so somewhere along the line, and this is what I wanna ask about, somewhere along the line, w-

The, the duty of hospitality or, well, any of it, somewhere along the line, um, I mean, sorry. It would not be plausible if, if we wanna criticize Germany, and I, I, I, I would on many grounds, but it wouldn’t be plausible, it seems to me, to criticize Germany for failing to live up to a duty of hospitality, because in many ways it treated its guests very generously, not just in terms of allowing t-them initial entry as asylum and allowing them to stay, but also, as Seyla rightly emphasizes, it gave them, it provided very liberal access to social rights so that they had access to, to the, to welfare state, education, healthcare. Um, that’s part of the disaggregating of citizenship that, that Seyla talks about.

So it would be very hard to think that they’re mistreating their guests. But I mean, again, on, on our conception of what, what is, what is required by the duty of treating guests, it seems to me Germany was really quite, quite extraordinarily generous in its treatment of guests. But, but at some point, it became wrong to treat them as guests.

Um, and I’m, I’m curious about how that… What’s the logic there? What, what, um…

Um, and I mean, I can think of lots of reasons my-why we might want to say that at some point it becomes unacceptable for countries to continue to treat people as guests. Um, but I, I, I don’t– whatever that logic is, it doesn’t seem to me one that we can get out of the duty of hospitality.

Uh, it, it seems if anything, to be at odds with the, the, uh, the logic of a duty of hospitality. Um, and so, um, uh, um, i- which… And, uh, so I guess part of my question for Seyla is just, uh, uh, are we to understand…

I’m not, I’m– So I’m just trying to reconstruct the structure of this, of the cosmopolitan norms. Are we to understand that there’s this kind of duty of hospitality is one source of the norms of, uh, um, in which case, uh, and, and perhaps Germany scores very well on that, and that there’s some other norm that explains why it’s wrong for Germany to treat the Turks as guests.

Um, and, uh, there’s, there’s some second source of cosmopolitan norms that isn’t, I think, named i-in the lectures. Um, and then I’d wanna know how the two, uh, connect up. That was the question I wanted.

Jeremy Waldron.

(cough)

[00:10:29] JEREMY WALDRON:
Thank you very much. Um, I wanted to expand a little bit what I said on, when was it? Tuesday, um, about this issue of lex mercatoria, these, uh, customs and cosmopolitan norms that grow up along the trade routes and in the interactions of, um, merchants trading from different societies as they slowly begin to establish a normative basis from– for working with each other and, um, exchanging goods with one another.

I wanted to suggest on Tuesday that this was a very important, um, possibility to consider in answering one of the questions that Seyla asked, which is, uh, what are these cosmopolitan norms? Where do they come from? What kind of authority do they bring with them?

And I suggest they’re sometimes constructed in this very modest way of the accretion of custom, and they carry no more authority than that. They’re not imposed by anybody. And they’re not imposed in anybody’s name, but they represent uh, practices of a certain sort.

And I emphasized that for about half a dozen reasons. One was, I thought it was very important just to bear this particular instance in mind, and, and, and Seyla has, um, generously acknowledged that one might want to say something about, uh, Lex Mercatoria in addition to rules about asylum, in addition to human rights rules, in addition to some of the other topics that she mentioned. But that was only one reason for, um, for, uh, mentioning them.

I, I, I did want to look at them, these norms of merchants, the lex mercatoria, first of all for what it was, a very, very important element of interaction beyond borders, interaction between human beings as such. Secondly, as a model, a more abstract model of the way in which abstract norms might grow up here, not just between merchants, but also in these other categories of missionaries, and adventurers, and people looking for spouses, and those seeking new homes. Often, again, we’re not talking about stuff that has been, uh, imposed as law top-down, but in all these areas, analogous processes, uh, are going, are going on.

And thirdly, I thought it was also interesting to consider this case and cases like it, because it interested it, it indicated, uh, an interesting model of interaction between law as formed in particular democratic communities and law as formed in this sort of in-between no man’s land of, uh, of, uh, global interaction. And again, just using the commercial model I, I had put to you, the idea that sometimes commercial law is projected out from a domestic legal system, which has developed its own law of exchange and its own markets, and seeks to project that out into the no man’s land of international trade. But also that the practices of merchants that have grown up in the no man’s land are sometimes incorporated and projected into, and I think this, this, uh, symbiotic relationship with this, um, uh, Uh, this, uh, bidirectional relationship is very important.

Again, not just for what it tells us about how mer-merchants and commerce works, but h– for what it might tell us about, um, about cosmopolitanism generally. Even if we were just looking at these issues of hospitality that Will Kymlicka has talked about, there are norms of hospitality that grow up as people think about what they owe to one another as abstract human beings. They grow up in a s-in a sort of a global, uh, in a realm of global universalist discourse of the sort that Kant was engaging with.

But there are also norms of hospitality that are associated with particular cultures. And those are projected outwards, and the others are projected inwards, and there’s a, there’s a certain layering that results from that. Another reason I was interested in this case, and in cases like it or in cases analogous to it, was that it, um, it, it indicates the possibility of a, of a level of cosmopolitan interaction that is not as vulnerable to the attitudes of sovereigns as, say, formal, um, conventions on the status of refugees might be vulnerable or, uh, war crimes, uh, uh, uh, jurisdictions might be vulnerable.

In those latter cases, we’re talking about explicit conventions which paradoxically rest on the goodwill of the sovereigns who are party to them, and I think one of the many dilemmas that Professor Benhabib was exploring in her lectures is, is, uh, how can there be such constraining norms when in fact the source of their authority is originally the willingness of the parties to submit to them? But I think that, um, when a particular state or a set of states turns its back on the norms of international law, that doesn’t make cosmopolitan norms go away because there are whole dense thickets of cosmopolitan norms that have nothing to do with states, and that have established a worldly in-between and a presence, a normative presence in the world, not chained to any particular legal system that is more resilient than that. If I’m keeping track, a fifth reason for being interested in this, and this goes beyond my comments on Tuesday, is that it challenges us to think that cosmopolitan norms might exist as a sort of haphazard patchwork and mosaic in the world, rather than having a sort of a centralized, um, identity.

When Professor Benhabib talked about human rights conventions, she pointed to very, very well-known conventions, each of which attempts to, as it were, state what the human rights are, and very well-known conventions about refugees that, uh, attempt to establish one view about what has to be done about refugees, and one view about what has to be done about genocide, and one view about what basic human rights are. Whereas in fact, what we know exists in the world are multiple and overlapping, and sometimes conflicting doctrines of human rights, multiple overlapping and, and certainly conflicting practices for dealing with refugees. And, um, I don’t know whether a cosmopolitan should regard that haphazardness, that patchwork character as necessarily a bad thing.

Is it important for there to be just one view of human rights abroad in the world? From a philosophical point of view, presumably the truth about human rights is singular, right? And if we’re aiming at the truth, we will eventually be aiming to find out what is the truth about human rights.

But short of any assurance that we’re there already, the notion that we should value, even as we learn about human, human rights, and experiment with human rights, and evolve a sense of what appropriate human rights are, that we should value, as it were, uh, singularity in the world, or global singularity on human rights seems to me to be a problematic, uh, proposition. We don’t have it anyway, certainly not at the level of practice as opposed to the level of paper. I don’t even think we have anything that you would call a, um, overlapping consensus in the Rawlsian, uh, sense, where we have as rather s– well-known controversies flourishing, and the existence of such controversies, and the existence of dissensus about human rights norms is as much a tribute to the existence of cosmopolitan norms as any sort of singular set of conclusions would be.

That, uh, we have cosmopolitan norms because we have something to argue about, we have some law to argue about in this area, not because we would be assured of a, um, of a, uh, of a, uh, a single set of norms shared as a consensus by everybody. Now, this last point that I have just mentioned, the, the, the importance of patchworks, dissensus of cosmopolitan norms and, and being willing to embrace that and being willing to celebrate that, that is where I think the thrust of Professor Benhabib’s extremely interesting observations about democratic iteration in the second lecture should come in. Because what the, the affairs of the headscarf indicate, and what countless issues in society after society indicate, is that societies are wrestling with views about what they owe to people as such and what is, wh-

What people’s basic rights are. We don’t have the same view of free speech in this country as the British have in Great Britain, and we don’t have the same view of, uh, what is appropriately owed to human beings in the way of free speech, um, as is held in, say, Islamic countries. There is an open debate here.

Um, it isn’t that, as it were, we’re doing human rights and they’re doing relativism or something like that. Yeah, there, there is serious disagreement, and that disagreement is, is, um, is, uh, uh, embodied in the successive iterations in particular political communities, as France goes through an iteration or Germany goes through an iteration. It’s embodied in the disagreements among different countries, and it’s embodied in the presence of cosmopolitan norms as a resultant sort of patchwork rather than, rather than a, uh, a secure and unified, um, consensus.

Now I believe that’s, that’s very important. I think it’s very important to understand that this patchwork is itself part of the jurisgenerative process. It’s part of the process whereby what happens in political communities, what happens between political communities, and what happens beyond political communities feeds in as a source of continuing learning and continuing argumentation about cosmopolitan norms.

So what I would like to see added to the second lecture, in particular, would be an account not just of democratic iterations about headscarves in France, and not just an account about democratic iterations about voting in Germany, but also an account about how the iterations in one country affect and influence and feed into the iterations in another country, as countries learn from one another in their human rights practices. And also, and secondly, the way in which those iterations in particular countries and between particular countries feed into the broader, uh, sense of, uh, what exists as international law. um, so that the international law re- lawyers regard themselves as having something to learn from, for example, the clash between the British and the Americans over whether hate speech should be protected as a human right, or the clash between the Americans and the French over whether, uh, the wearing of religious symbolism should be protected as, uh, as religious freedom.

So I would like to see some work on both of those fronts, how democratic iterations in one country affect those in another, and how democratic iterations in particular countries affect the international sense on these matters. And some account also of the barriers that there are to this sort of iteration, of which I’ll just mention two strong forms of legal nativism in particular countries, particularly this country, where the judges seem more than usually reluctant to learn from judges in other jurisdictions. “We must never forget,” said Justice Scalia, “that it is an American constitution we are expounding,” and the experience of other countries, though no doubt interesting for a number of purposes, can have no particular relevance to what we are saying.

So there’s the barriers constructed by judicial nativism. And secondly, there are the intellectual barriers, I think, constructed by a certain form of self-assured self-righteousness at the international level, where those involved in human rights work and in actually forming explicit conventions tend to regard themselves as having little to learn from rights practice in particular legal systems. I do think that the stuff about refugees would be a fine case study for this, because even though there is a relatively, uh, clear set of conventions about the treatment of refugees, as a matter of fact, and as a matter of practice, every country is having to wrestle to construct much more restrictive practices in the shadow of the refugee conventions, and it would not be odd if those didn’t feed back into a sense of what the, how the conventions were ultimately to be understood.

The other point, um, that I wanted to mention, and this goes back to why I focused on custom and not just top-down law. Those who think about custom in jurisprudence historically often used to have in mind the idea that the customs of a people could gradually become a kind of second nature to them. Maybe they had their biological human nature, but their customs became their second nature.

Their customs became a sort of a second, a second, uh, identity or the basis of a second identity or a basis, uh, of the effortless organization of the minutiae of ordinary life and interaction. And by focusing on customary cosmopolitan norms, I’m interested in the possibility of cosmopolitanism becoming second nature to the people who practice it. Certainly it becomes second nature to these merchants who may be much more at home when they’re engaged in mercantile practices with merchants from the other ends of the earth than they are, uh, uh, worshiping their own gods on their own hearths.

Um, of course, there’s a problem that we imagine that cosmopolitanism becoming second nature to a person always runs up against the blockage of the second nature constituted by the primary customs of that person’s primary political community. This is a British merchant, so he has a British identity. In some sense, his British identity is always going to get in the way of his cosmopolitan identity.

His British second nature gets in the way of his cosmopolitan second nature. And it was for that reason that I wanted to press on and suggest that we read the Kantian stuff about hospitality as somewhat more radical. Read it somewhat more radically than Professor Benhabib was reading it.

Reading it staggeringly more radically than, uh, Professor Kymlicka, I think, is suggesting that we should read it. I don’t think the stuff that Kant says about visiting and the right to approach other people is just Kant giving us a few bright ideas that he might have about guests and refugees. All right?

Somebody said, “Kant, I know you’ve written a lot about the categorical imperative and about truth-telling. Do you have anything to say about guests?” And Kant says, “Yes.

As a matter of fact, here it is. It is. It’s in the stuff about…”

I believe this is expressive of an extraordinarily deep and important attitude that hooks up with other stuff about his view of the very basis of politics. That the basis of politics is, there’s a bunch of people who are strangers to one another, find themselves engaged in endemic conflict of various sorts because, though they are strangers, they are in the same vicinity. They don’t like each other particularly.

And as strangers engaged in endemic conflict, they have an obligation, not an option, but an obligation to form a political system, to mediate that conflict, and to establish a set of laws and ways of making laws that would enable people who would otherwise be endemically in conflict with one another to live under conditions of right. Now, that’s a Kant view about the primary constitution of political communities. People who don’t necessarily understand one another or like one another, making contact, finding conflict, and doing, uh, establishing the conditions of right that would be necessary to, uh, resolve that.

So there is some sort of continuity between what Kant is saying about the stuff about hospitality, the right to approach others, not just other communities, not just other political systems, but the right to approach others that you don’t like. And the very basis of Kantian political community is it isn’t as though Kantian political community is established on some sort of nationalistic basis, and then the right of hospitality fills in the gaps. It’s rather that what is said about the right of hospitality is continuous with.

And Kant, I think, is is advocating that we think about political right in all its manifestations. In all its manifestations as strangers coming together to resolve conflict under conditions of right rather than people estab- people establishing affection for one another on the basis of national, um, affinity. So, um, just for that reason, I’m, I’m, I, I was hesitant about Professor Benhabib’s contrast between secure and existing political communities on the one hand, and cosmopolitan right as a derogation of that on the other hand.

I see the foundations of the one being very much the foundations, foundations of the other. Which leaves me, I think, much more hostile in counseling Professor Benhabib to be much more hostile to Kymlicka’s suggestions about the importance of nationalism and national affinity in grounding the prospects of viable political communities than I think she was. That’s all I meant to say.

[00:27:52] SAM SCHEFFLER:
Thank you. Uh, Professor Honig.

[00:27:57] PROFESSOR HONIG:
Um, I, you know, I just, I thought I would just pose a few questions. Um, So I just, I, I just thought I would take a few of the points that I mentioned yesterday and sort of put them back on the table by way of questions and add a couple.

But really, I, I’m just gonna pose a few questions. You can answer some, a couple of them. Um, the first one is about law, and it’s, uh, it’s– these are genuine questions for the most part.

Um,

(laughter)

They really are. I wanna know more from you, Shayla, about how you think about law. You have one passage in, I think it’s the second lecture, where you s-de-describe law in a familiar phrase as laws are like walls that we build around the city, right?

And that’s a very, uh, circumscriptive or negative and liberal conception of law. Law on that account is not productive or inhabitative. And, um, But it’s such a brief thing.

Um, and I think a lot of the, uh, questions that I had for you yesterday, in some ways can be seen to stem from two different conceptions of law maybe that we have. Um, if you don’t see law as merely, uh, privative, but you see it as more constructive, inhabitative, productive, more Foucauldian terms, then you would have a different relationship towards it as an instrument of a democratic or cosmopolitan politics. Which isn’t to say that I would be opposed to it, but that I would have a more wary relationship to it.

Um, I– So one possibility is that the way I just parsed it is how it comes out, but I don’t know. So I, I wanted to ask you to say a little bit more about that conception of law or whatever conception of law informs your thinking about the practice of juridifying cosmopolitan norms that you’re calling for.

Um, and then, uh, I, I wanted to tell you what was in my mind, um, after I finished writing this comment or an earlier version of it. Um, the idea of law as walls put me in mind of the Israeli project of building a wall along its border and, um, and I thought. And then I received on email before I, right before I came here, an invitation.

I’m on stra– some strange email lists. An invitation to sign a petition to make, uh, suicide bombers and s– their supporters into war criminals, like, to sign a petition to have international law recognize this category of persons under the War Crimes Act. And that I found, uh, worrisome, uh, because it raised all sorts of red flags for me about the takeover of–

It’s a political issue, and it’s not going to be solved by criminalizing. I mean, that might be one aspect of what wants to– one wants to do in a political project, but a political project, I would think should not be exhausted or centered, or its essence shouldn’t be defined as that move when, when f- if they become more criminals than we. So that seemed to me to be illustrative of how law becomes or legal mechanisms become instruments of political power and political engagement, and sometimes replace the effort to think politically in a fuller way.

So I, I thought perhaps if I put that… I don’t know how you feel about that. I haven’t finished thinking about how I feel about that.

Um, but I thought that might inform your sense of where that worry about law’s place in the political arena was coming from in my larger comments yesterday. Uh, second question, uh, about cosmopolitan norms. Again, I thought this would just be maybe helpful in contextualizing some of the things I said yesterday.

Um, I, I think cosmopolitan norms can be seen as a tool of state sovereignty, I would argue, or as a way to put state sovereignty in crisis, right? There are some states that profit in their sovereignty from the establishment of certain cosmopolitan norms, and there are other states, perhaps under other conditions, that, uh, fee– e-experience an attenuation of their sovereignty, um, by the establishment of cosmopolitan norms. And, um, and I was struck by something that Derrida says in his essay on cosmopolitanism, where he says he outlines those two hypotheses, and he says, “Between these two hypotheses, all depends on the politics that puts these concepts to work.”

In other words, cosmopolitan norms are not essentially either of those things. They have– They bear within themselves the pos-possibility of being either, um, and everything depends on the politics that puts them to work, right? And I thought, well, um, that is very close, I think, to what you are saying by way of democratic iterations, you know.

But I wanted to ask you if you could say more, because it’s… it seems to me the point is, it’s very important what kind of politics one advocates, as opposed to giving examples of here are people being political in relationship to rights and cosmopolitan norms.

[00:33:08] JEREMY WALDRON:
If the– which–

[00:33:10] PROFESSOR HONIG:
I admired in some ways, your ha-almost hands-off reporting of these as iterations without giving your full take on in what ways they were good and bad for the Cosmopolitan Project. At the same time, I would like to hear more about the, uh, what kinds of politics you think, what, what instances of iteration would, um, push cosmopolitan norms in w-which of the two directions and why you would favor that and why you would see it that way. So I know that’s a big question, but in particular, I would be interested in what the role or not of social movements would be in a politics like that.

And I’ll just, you know, repeat the one thing that I called your attention to yesterday with reference to the examples that you gave in your second lecture, that they’re mostly examples of individuals or three girls in Creil, one woman in Germany, a legislature and a court in Germany in the third case, um, but not really of social movement politics. And, um, and I do think that in your account of the three girls in Creil, you mention that they’re kind of backed by an organization that’s interested in, uh, the, you know, more, uh, fundamentalization. Um, but you don’t say very much about the organization.

You just position it as evidence that these girls were acting in a politically conscious way. Um, and it reminded me of, you know, the day I found out that Rosa Parks didn’t just suddenly and spontaneously get tired and refuse to go up to the back of the bus, but that there was a social movement that set her up to

(laughter)

um, to refuse in a way that would launch a court case that would allow them to, um, make social change through law. And, um, and it, it occurs to me since then that, you know, as I said yesterday, that it’s a trick of statist law and politics in liberal democracies that we ascribe to individuals, we tell stories of those events as if they’re about individuals and, erase the role of social movement politics in the advancement of causes like that. So we know about Rosa Parks,

(coughs)

but we don’t know anything about the people who put her up to it and who backed her and provided resources for her, uh, legal struggle and all the rest. And in the same way, in the French case, we know about the three, three girls from Creil, but we don’t know anything about the network of associations and associational life that supported them or, you know, whatever, the whole rest of that story. Excuse me.

Uh, that was actually questions two and three together. Sorry. The role of the state was question three.

Um, You said something in response to our comments, to my comments yesterday about how you feel that learning through conflict is part of what democratic iteration is about, and that it shouldn’t be stifled by law. And that, that’s good, um, and we agree on that. And then a-again, I just wanted to ask you how you think about the kind of learning that you were saying would happen through democratic iteration.

Um, because there’s a sense in which the language that you surround that learning project with, like, you know, sometimes this won’t be productive, sometimes it’ll be just, you know, self-interested. I can’t remember. Oh, sometimes productive iterations make for augmentation, but sometimes it’s just sterile legalistic processes.

Now, that suggests that there’s more than something, which I think is good, that there’s more than something just formal going on in your analysis, but that you have ideas about the directions that this learning should go in, and that therefore, you have an idea about at what point law should enter. Like if it shouldn’t shut it down prematurely, that there’s a point at which when the democratic iteration gets to the right point, at that point it should shut it down. Um, which means that learning in some ways is, you know, uh, an exercise rather than a really open-ended adventure.

Like it’s something people have to go through, but you have a sense of where they should be going. And again, that’s not necessarily a bad thing, but I wanted you to unpack what that means for a practice of democratic iteration. Um, and I wanted to ask you whether you saw any remainders to the project of juridification, so that if we get to a point where iteration should end and it’s time to make juridical, um, whether there’s any sense of, uh, a problem or a limit or a remainder to that practice.

And yesterday, I mentioned animal rights and a certain futural politics as possible remainders of that approach. Um, fifth question. Ugh, I’m just going to skip the fifth, fifth question.

Okay, sixth question. I might bring up the fifth one later. Um, had to do with Kant.

In your lecture, I think in the first one, you mentioned that, um, there was no corresponding obligation to Kant’s right to hospitality. And what you meant, I know, is the sense that, you know, the way it’s practiced, it’s not any, any… You have a right to be taken in, but no particular state has a duty to, to, to take you into its border.

And there’s, there’s an– I, I think that’s called an imperfect right or an imperfect duty, right? Um, and, uh, and I thought But in Kant’s account, there’s more specificity to that,

[00:38:48] JEREMY WALDRON:
right?

[00:38:48] PROFESSOR HONIG:
Right, the first part of it is there’s, there’s a right to hospitality that has very specific corresponding obligations that apply to everyone, and that is, as we’ve said over the last few days, not to be– not to greet others with hostility when they arrive on your territory, um, and, uh, not to arrive on someone else’s territory with a colonial agenda or colonial ambition,

[00:39:10] JEREMY WALDRON:
right? Right,

[00:39:11] PROFESSOR HONIG:
so not to arrive aggressively

(laughter)

and not to treat with hostility someone who arrives presumably unaggressively. Um, so there are these correspondences. Now, it comes up with reference to veiling because of the way in which, I mean, I bring up those points about Kant because they apply very directly to the discussion of veiling.

I would think it would be worth unpacking because, of course, the issue for the French government is that the wearing of the veil seems aggressive. And the issue for the wom-women is that they’ve been treated as colonized by a colonizing power. And so in some ways, you know, uh, they feel that they’ve been greeted with hostility, and the French state feels that they’ve been, you know, so in some ways, both of Kant’s duties are being violated by the two parties because of how each perceives the other, not because of each one’s intention.

And I noticed in your reading of the veiling example, you focused very much on what the girls intended when they wore the veil. It was politically conscious gesture, and we– you gave a reading of it in terms of what their own voices wou-would say, did say, and have never been listened to and, you know, and that was all really helpful. But at the same time, in the realm of politics, we might be just as much or maybe more interested in the perlocutionary force of action than in the illocutionary force.

In other words, in how each understands the other, regardless of whether they get the other’s intentions right or wrong. Um, and so finally, with reference to that, and this will be the last thing, um, one of the things that Kant is very strong on is that he’s never talking about the arrival of a group. He’s talking about

(laughter)

the arrival of an individual, and he’s very specific about that. And, and so then I thought, well, what would it be like to arrive as an individual, um, and expect satisfaction, therefore of one’s right to hospitality, and who is capable of arriving as an individual? When three Islamic girls, Muslim girls, veiled or unveiled, arrive in France, they can’t arrive as individuals.

They’re, they’re marked. And they– I mean, the property of it, of individuality is for a certain class of white male European men. And everyone else is marked as belonging to a group and in our cultures.

And so when Kant says that you have to arrive as an individual in order to… If we’re– When he imagines hospitality in relationship to individuality, he, I think, helps us specify what’s so difficult about the two duties for us. So I’m not saying it’s not right, like it doesn’t fit Kant’s template.

I’m just saying you get back to b- not being greeted with hostility or being perceived as always having some ambition that’s inappropriate when it turns out that you can never arrive as an individual. Because everyone who arrives as a border crosser is always perceived in our particular context, I’m not saying this universally, but in our particular political moment, they’re always perceived as a member of a group. And there’s some sense in which, therefore, it’s the Kantian requirement is always troubled.

These women are seen as representatives of a state, of a religion, of a culture. They’re never seen as individuals, and they really can’t, They just can’t be in the, in that context. So maybe a politics of democratic iteration has to be about that and what it would be like and what it would take to problematize that whole encounter.

And maybe also what it needs to be about is how the encounter is never about the three girls. Anyway, it’s actually about a whole bunch of other issues in France, which you mentioned about laïcité and redrawing the public-private distinction and all the rest that happens around them. So it’s a rich example, and I think that you gave it a rich treatment, and I think there’s room for still a lot more, especially if you feed the example and run it through the Kantian requirements.

So I’ll stop there.

[00:43:06] SAM SCHEFFLER:
Shayla, would you like to take some time to respond to—

[00:43:09] SEYLA BENHABIB:
Weren’t we going to have a break?

[00:43:11] SAM SCHEFFLER:
Well, I— why don’t we have the break after you re— after your response?

[00:43:15] SEYLA BENHABIB:
Oh, okay.

(laughter)

I see Martin nodding there. Let me… I prefer to, uh, think while I’m standing up. So I think it’s better.

Okay, um, since, um, I, uh, began with, uh, Kant, I am going to go back to my reading of this passage because each of my three, uh, commentators to whom I’m really very, very, uh, grateful, um, for, uh, their very careful reading of these two lectures. Each of them had something different to say about this particular, uh, this particular, uh, passage. And, uh, undoubtedly, um, within the scope of, um, uh, these lectures, I did not make, uh, quite as clear as I would have liked to the way in which I was using, uh, this, uh, particular discussion of Kant’s passage on, uh, hospitality.

So, uh, why don’t I begin, uh, with, uh, this? It is, I think, astonishing that, uh, Kant, uh, says that hospitality is the one right that belongs to us, uh, insofar as we are considered Weltbürger, that is citizens of the world. Now, for me, a great deal depends on Kant’s use of the concept, uh, Recht, uh, here, uh, right.

Now, this suggests, um, a distinction here, I think from both, uh, Jeremy’s and Bonnie’s, uh, reading, and I’ll go onto a first name basis if you don’t, you don’t mind. Um, I think that both, uh, Bonnie and Jeremy are tending to read the right of hospitality in terms of a philosophy of moral virtue as the virtue of sociability. And Kant is very emphatic that he says, uh, that by hospitality is not understood the virtue of sociability and the like.

Now, the reason why I think Jeremy may be doing this is because, um, his emphasis on the emergence of cosmopolitan norms out of the many small practices of trade and exchange and of coming together of individuals, to me suggests very much, uh, this, uh, also Kantian reference to man’s unsocial sociability, right? ungesellige Geselligkeit out of which also social, I mean, life and political life is, is built. Uh, but I think Kant is trying to do something different.

He’s not simply referring to norms and practices that emerge out of, uh, intentional or unintentional contacts. Uh, he is stipulating a way in which we have to treat one another as citizens in a world republic. And I think that it is important that indeed, uh, the first duty of hospitality is not to treat the other, uh, as an, uh, enemy, and the second is to offer sojourn when not doing so would lead to the demise of the, uh, other, which takes us to, um, asylum, uh, asylum rights.

Now, um, this claim, I think, about the right of hospitality imposes actually, in the first instance, a perfect duty. Because if this is a right in our person, it imposes a, a perfect duty upon all others to respect that right in our person. In other words, the duty of hospitality is not conditional upon other characteristics.

Now, what is, I think, an imperfect duty, and where this distinction between hospitality and sovereignty, uh, that I am working with comes in, is the distinction between Besuchsrecht, the right of visitation, and the right of being a guest in the long term. Now, that is an imperfect duty. It is up to me, uh, in terms of whether an individual or an organized community, whether or not I offer this.

And Kant’s examples are very rich, and I think that Jeremy is absolutely right that the hidden context of this whole discussion is, uh, the E- Europe’s encounters with its others. It is Enlightenment and Empire, to use the name of a very fine book by Sankar Muthu which is now about Kant on this, uh, question. Because Kant says, uh, it is not at all wrong for the Japanese and the Chinese to refuse to trade with the Europeans.

If they only want to trade with them in Macau, then that’s fine. There is nothing wrong in refusing to trade with the Europeans. But if a European missionary who is shipwrecked is swept onto your, uh, shore, or if the shipwrecked ship arrives, and people do arrive in groups, okay, then it would be against the duty of hospitality not to offer them, not to offer them sojourn.

Now, I personally think, and I, and I regret not having made this sufficiently clear in the, uh, uh, construction of the two lectures and, uh, Will has challenged me on this, I don’t think this is enough. I think this is an excellent beginning point, but I don’t think this is enough. Uh, in other words, to think about cosmopolitan rights today, we have to move beyond Kant, uh, in several ways.

I mean- I mean, I think it is important, uh, to recall Kant both because it is astonishing that in 1795, he uses the concept of the right of hospitality, which in so many ways is still the logic of refugee and asylum discussion, uh, to this, uh, day. And he talks about this, again, as a right and not as a virtue of sociability.

But it is not, uh, enough because, as, uh, Will pointed out, that the language, the continuing language of guest and, uh, visitation and sojourn are way, uh, inadequate to talk about the reality of residency and membership of foreigners in organized political, in organized political communities. So in that sense, I go way beyond, uh, uh, Kant. I can’t— I haven’t done it in these lectures in The Rights of Others, which will appear shortly sometime this summer.

I actually try to make an argument towards a human right to membership, which will mediate between hospitality and, uh, the right of visitation, uh, versus, um, uh, the, um, right, uh, to stay for the longer term. Now, but let me, let me turn one more time, uh, for a second to, uh, uh, Jeremy, and I’m a-answering to these comments not in any particular order, but I’m picking them up systematically. My sense is that…

And I’m not ready to, um, uh, I’m not prepared to be able to make this argument, uh, fully, uh, this afternoon. My sense is that, Jeremy, I think you have a Pufendorf account of cosmopolitan right. I have a feeling, okay?

I mean, we, one would have to look at this, that much of what you understand by lex mercatoria and cosmopolitan right, that it was actually Samuel, uh, Pufendorf in his Law of Nations, that this was basically the understanding of cosmopolitan right, namely the right of individuals as they encounter one another in the context of the open seas. And a great deal of thinking was going on both on the part of Grotius and Pufendorf. And there is this reference in Kant’s text to the sorry comforters called Grotius and Pufendorf.

Now, why? What is at stake there? I, I, I think that, as I said, I’m not prepared to, to prepare, you know, to, to develop this argument, but I think that there is something there in the history of the development of international law which may mark a distinction between, uh, Kant…

You know, between sociability that emerges out of commerce, le doux commerce, on the one hand, and the Kantian understanding of hospitality on the other. Having said this, I am, uh, greatly sympathetic, uh, to, um, your systematic points about legal nativism or legal judicialism and the self-righteousness of cultural communities, I wholly endorse the idea of international learning, and there is in effect a discussion right now from what I can gather in American jurisprudence unfolding really about the nature of that kind of, uh, learning. Alexander Aleinikoff is writing actively about the way in which international law enters into US law.

Gerald Neuman, your colleague, has written about it. So obviously, this is at the moment an active discussion within the legal community, and I’m just eavesdropping and, you know, listening. But obviously, this is, um…

I completely agree, a-a-agree with you there. But I do wanna say something about the relationship of unity and diversity, because, uh, you presented it as if a treaty, uh, cosmopolitan norms that emerge out of treaty obligations. Let’s take something like the Convention on the Elimination of All Forms of Discrimination Against Women, right?

to see that treaty obligation. You presented it as if, uh, cosmopolitan norms emerging out of treaty obligations dictated a uniform, uh, singular, uh, kind of interpretation. You used, uh, a number of times the term, uh, unity, imposition, uniformity.

I don’t think that this is the way in which even treaties work. Treaties need to be interpreted in local context according to constitutional traditions. I completely agree, um, uh, with you there, and this is the whole purpose of democratic iterations, is to open up that space for also juridical, Uh, interpretation.

In other words, um, there can be tremendous variation in divorce and alimony laws in any particular country. I mean, you know, take a, uh, um, a, a country like, uh, India, which has the independent, uh, Muslim, um, uh, Family Act that governs the alimony and divorce status of, you know, Muslim, uh, Muslim women. Now, how will this be negotiated, uh, within the context of Indian jurisprudence and constitutional analysis?

There are many women’s groups now that– who are using CEDAW to militate against the division in India, um, of the personal right into, uh, categories, the, the denominational categories, right? So there is no, there is no uniform, uh, uniformity of interpretation that will follow from this. But an instrument like CEDAW, like most human rights interpretations, gives, uh, groups, uh, within the democratic conversation, um, a, a, a possibility for the negotiating, uh, their own, with their own traditions.

And this is an open-ended process, as, as Bonnie also emphasizes. It has to be an open-ended process, but there has to be also some, uh, some, um, um, uh, constraints. So in that sense, I think, um, uh, the question of unity in diversity, right?

This is what cosmopolitan federalism is. It’s unity in diversity. We have to hold on to that, and I don’t think there is much, um, much disagreement, um, uh, between us, uh, on that, on that point.

Final, final issue about, about Kant. Um, I think that Jeremy, you rightly emphasize the doctrine of right. That is, if the actions of one can affect the actions of another, we stand under a moral obligation to enter into a condition of right.

Right? The social contract by Kant is justified via this moral obligation. I agree with you that I think in the final analysis, this is the best justification we can give of cosmopolitan right, and not all the fanciful business about the common possession of the earth or the roundness of the earth.

So I agree with you that this would be the best, um, the best, um, uh, construction. Um, let me, let me now come back to, um, uh, Will Kymlicka’s comments and then, uh, referring back and forth to, uh, some of Bonnie Honig’s co-comments as well. Now, uh, Will rightfully, rightfully notes, uh, a kind of break between lecture one and, um, lecture two, and asks me why or how the Kantian idea of hospitality would permit one conceptually, normatively, to, uh, criticize, uh, German, uh, Constitutional Court’s decision not to give, um, um, uh, resident foreigners, uh, the right, uh, to vote.

And, uh, so your q-uh, question is, uh, um, is there something stronger, uh, there in terms of, uh, cosmopolitan norms? Uh, yes, yes, there is, and I should have made this clearer, and, um, and I’ll try to do so. Uh, just to go back for a second to the Geneva Convention, I think it’s important to distinguish, very important to distinguish between the status of asylees, refugees on the one hand, and immigrants on the other.

The Geneva Convention does not cover immigration. Immigration, because it is assumed to be a voluntary act, um, has less, immigrants have less protections under international conventions because it is assumed that they can choose not to. Now, empirically, we know that the whole distinction between immigration and asylum is at times very, very difficult to draw, and, uh, a lot of individuals become immigrants because they are asylees, and some asylees are, in truth, immigrants.

And these categories create a lot of headaches for countries because it, d– because how they are classified then generates one form of dealing with them or another, which is… I think Bondi is right here. That’s the point at which law is punitive rather than generative.

But if we take this distinction, uh, between asylees, refugees on, on the one hand and immigrants on the other, there is a fundamental asymmetry here, and this asymmetry is one that bothers me a great deal, but I don’t quite know how to, you know, really try to, uh, destroy the asymmetry or how to argue against it. The asymmetry is the following: One owes, if the state is a signatory to the Geneva Convention, and I would say that under Kantian norms of, uh, cosmopolitan hospitality, you owe first admission to an asylee, uh, or a refugee,

[00:58:30] JEREMY WALDRON:
right?

[00:58:32] SEYLA BENHABIB:
You have a duty of first admission. If someone reaches your shore and says, “I demand asylum,” then, you know, your first duty is to test the veracity or the validity of that claim to asylum. You are obliged, and the use here is, they use the term, the French term, non-refoulement.

You cannot send the one who is demanding refuge back to whatever country of origin. That is the obligation until and unless you have tested the veracity of, uh, that, uh, claim. Now, with an immigrant, whether or not this is empirically always sustainable, but with an immigrant, it is assumed that an immigrant is a person who has a state to which he or she can return.

So juridically, the status of these two individuals are radically, are radically different in international law. And, um, uh, I have heard a lot of discussions about why this system now is in crisis and may not be, uh, viable for very long. But still, at the moment, these are the discussions and distinctions in international public, um, in international public, uh, law.

So your question then, uh, would be, okay, if the state’s obligations to asylees and refugees are morally asymmetrical than the state’s obligations to immigrants, and at the current system, that’s what we’re dealing with, then is there an obligation to proceed from first admission to membership? Huh? Now, there are, uh, two versions of this.

Uh, at the present, um, and this is morally an incredibly difficult, uh, puzzle I find. For example, in, um, uh, Holland, uh, the new, uh, uh, conservative government has decided to extradite, uh, about ten thousand refugees and asylees whose applications have been found spurious. Whereas the Social Democratic governments had simply, uh, been, um, tolerant of this, they used the word dulden, you just let them disappear even though their claims have not been approved.

The, uh, new, uh, government is trying to set also, uh, an example, mixed agendas. Of course, there is a lot of Islamophobia, but not just that because there are large numbers of people from Africa involved in this. And so what do you do?

What do you do with, you know, asylees and refugees whose applications actually have been, have been denied? There I think I would join Bonnie Honig, disobey the state. I think anarchism is the best morality.

Let them become part of civil society and provide amnesty at a certain point. That’s my, that’s– I’m not sure how I can justify this as a moral argument, but I’m, I, I want to say that, uh, there are, uh, cases where individuals, uh, for example, have been in, let’s say, Dutch society for five to eight years waiting for their applications to be resolved. At that point, I think no human being is illegal.

They become a member of our community, and at that point, you know, trash the state. You have to do what you have to do. Um,

(clears throat)

uh, now, but what about, what about the c– the situation of immigrants? Well, I think a similar, a similar, uh, moral argument holds here. That is, at a certain point, someone who is a member of your community, whose children are attending your schools, who is paying taxes, who is collecting your garbage, sweeping your streets, is no longer a guest.

He or she is a member. Now, at what point this happens, how this relates to the whole, uh, legal juridical apparatus of the state, uh, where is it that we morally cross that line of fellow obligation to the other? Uh, I, uh, think, uh, that is, uh, that is also an important issue.

So therefore, I would say that although, um, states do not have unconditional obligations to grant all immigrants citizenship, a liberal democracy cannot categorially deny the granting of citizenship to a group of human beings and remain a liberal democracy. I would want to make that argument. I would say that it can never be morally justifiable for the state to say, “I will never be– recognize you as a member.”

There have to be certain conditions. The state may say, “I will recognize you as a member after twenty-five years.” That was what they were doing in Germany before they changed the law, they were saying twenty years.

It may say you need to read Goethe’s Faust, right? And that may be, that may be morally objectionable, but it’s not necessarily legally reprehensible. It may oblige you to, uh, have a civic exam, or as it i-it, it was the case with Canada, uh, it may, uh, oblige you to be able to show a certain amount of capital for granting citizenship, which itself is quite morally, you know, uh, objectionable.

In other words, uh, there is, I think, the, the bottom line is that a liberal democracy cannot categorically say to a group of human beings who are immigrants, “You will never become one of us.” And this is a point where Michael Walzer and I have been disagreeing for the last, you know, 10 years. I’m very sore on this point.

Michael seems to think that one can remain a liberal democracy and still determine and finni- you know, fiddle around with one’s laws of citizenship to deny a group of human beings on the basis of who they are, not what they have done, right? They may fail to read Goethe. And but, you know, on the basis of who they are, one can still deny that.

And of course, it’s very clear why he’s trying to make this argument. He’s trying to support certain citizenship practices in Israel. And although I’m Jewish, I don’t.

I think those are wrong practices. And I think one can have liberal democratic practices of citizenship and still retain a certain collective identity. But, you know, So I think it would be very also, uh, hypocritical to want to criticize Germany for its racist laws of immigration and not to want to criticize, you know, Israel on this score.

Right? So if you have, you know, guest workers, not only who are Palestinians, but who are Vietnamese, who are Filipinos, at a certain point, you have to get them, grant them Israeli citizenship, otherwise don’t bring them in at all. It is not legitimate.

So, uh, I think you raise an extremely important and excellent, you know, question about what happens there, and I’m sticking my neck out. It might be cut on this issue, but I’m willing to take a, a very strong position and say there is a moral obligation that I owe to the other as a being whose agency I respect. That is, if I deny the claim of the other to become a member with me in this community, basically, I am morally disregarding this person.

And, uh, so that would be, that would be the, um, uh, the argument. Uh, uh, now coming back to, um, uh, Bonnie’s, um, uh, Bonnie’s, uh, uh, comments, um, um, the function of law or the, the role of law, I would like to think law not just as walls around the city or not like, just like hedges. I think I was thinking of Hannah Arendt there, um, uh, the concept of the law as hedges.

Law is obviously also more generative and more productive. I don’t think we would, uh, we would disagree there. I think that, uh, you want to keep suggesting to me that I have a standard individualist liberal understanding of the law.

Uh, there’s nothing wrong, you know, with a liberal. Well, I mean, I am, I mean, I mean, I think political liberalism is, uh, uh… Yeah, I would say I’m a political liberal and a deliberative Democrat, but I think that there is a concept of the law here that is also more, um, uh, creative because the, the whole project of democratic iteration, uh, suggests that, um, uh, rights and juridical procedures are, um, reappropriated in democratic, uh, politics to also uh, at times, um, challenge their meaning, to open up their scope.

You can have this both in terms of the critique of procedures, uh, right? Who sets the agenda and why? But you can also have it in terms of the logic of rights claims, that is, uh, when new groups, um, whose agency has not been viewed or intended, uh, to be the principal one under the right claim.

But when these groups empower themselves and consider themselves the subject of rights, there is an expansion of the logic of right, right? I mean, we have seen this with women’s claims, women’s agency, uh, women’s, uh, juridical subjectivity brings all sorts of issues, and my favorite and silly example is always that, uh, since we have such poor, um, uh, parental maternity laws in this country that at least, you know, when, uh, uh, some sixteen, seventeen years ago, you know, when I, uh, had, um, uh, my daughter that, you know, and you know you had your ch- you notice that pregnancy is considered a disability.

Now whose disability? Right? I mean, this may seem like a silly point, but who is the subject of the law?

Why is pregnancy a disability unless you’re assuming that the subject of the law is a m-man who will never bear children, right? A very, a very, a very silly it may seem, but it’s not, because the entire system of healthcare, uh, uh, leaves, uh, aca- you know, and we know what this means for the academic community, because we have absolutely no ways of, for example, accounting for women’s tenure clock in terms also of the fact that a lot of women before the ages of thirty-six or thirty-seven happen to have, you know, um, uh, carried children, right?

So this is an example of the way in which rights claims, when they are appropriated by new groups who enter into the public sphere, uh, also transform, uh, their original, uh, logic, and interesting and unintended complications emerge, uh, with the entry of these new, uh, subjects. So, uh, with Democratic Iterations, I had this more creative, uh, process of the use of, uh, juridical, uh, juridical, um, uh, tools, um, in that, in that sense. Now, I think the– for me, the most important argument, uh, in your paper and, um, one that I don’t want to be accepting.

I think it is this. I think you are attributing to me a kind of rationalistic teleology that malgré elle, you are saying, she’s still a Habermasian, and somehow, somewhere, the general will is going to trump, and there’s gonna be good politics, and all the stuff about democratic iteration is all going to come out right at the end. Uh, I think there is a, there is a tendency to sort of say that I’m not playing it fair.

That is to say that somehow, um, your assumption is that I’m going to rig the procedure in such a way that it’s only going to yield outcomes that I can normatively endorse at the end. May– I may have misunderstood you, but, you know, a couple of passages, it, it seemed to me because, um, you say, um, “What instances of iteration are acceptable? Uh, what is, uh… how are these cosmopolitan norms at work?

And, um, I suggested, uh, several criteria, reflexive justification, uh, generalizability, and reflexive learning. And these are not criteria that come out of the democratic process. They are normative criteria that will be used to judge the process, and there, of course, I will have to engage in, in justification.

Now, h- does this mean, uh… Let me put it this way. Uh, does this mean that just as Rousseau throws up his hands and says, “Well, the people always wants the good, but it does not know it.” We need the democratic legislator– the divine legislator, you know, at some point,” and you cite this passage from Rousseau.

So does this mean that all the sort of Habermasian proceduralism, the deliberative democratic commitments, discursive opening, that in the final analysis, there is still a kind of divine legislator, a criteriological move, uh, that will be made? Well, um, you know me, I, I, uh, I think that, uh, one needs to have strong normative commitments which one justifies as best as one can. And, uh, I would like to think that those are not the commitments of a divine legislator because they are open to, uh, discussion, contention and argumentation.

And I would also like to think that criteria like re-reflexivity, generalizability, that is good reasons in public, are to some extent also intrinsic to the logic of, uh, justification in constitutional democracies. In other words, I would like to think of what I’m doing partially as immanent critique and not just as transcendent critique of imposing norms, but of taking these practices at their very best and sifting and articulating them through, and then trying to justify, uh, these, um, these, uh, norms. So why don’t I, uh, stop, uh, stop, uh, there now?

Uh, there hasn’t been an opportunity to ask any questions since Tuesday, so why don’t we, uh, open the floor for questions and discussion? And please remember that, uh, you need for, uh, in the interest of posterity, to speak into a microphone which Ellen Gobler will be happy to bring to you if you raise your hand. Again, uh, Martin Jay.

(laughter)

[01:13:05] MARTIN JAY:
Uh, I want to, uh, begin by asking, uh, the, um– about the implications of starting with Kant and the idea of Bürgerrecht or cosmopolitanism as an alternative to starting with 1789 and the Universal, uh, Declaration of the Rights of Man and Citizen. Uh, the implications seem to be very important because it gives us cosmopolitan right rather than universal right, and it helps us to avoid the embarrassment of a substantive notion of man, uh, which Heidegger and many other people have shown us to be difficult to maintain.

[01:13:35] SEYLA BENHABIB:
Uh, but it does seem to me there’s also a cost. That is to say, the idea of citizen of the world, of a burgher of the world, is a metaphor, obviously. Uh, that is to say there are no institutional, uh, uh, you know, uh, supports for that, uh, ideal.

Uh, and it brings with it a certain, um, inherent, uh, limitation, because as we know, in any territory, there are citizens and non-citizens. So that citizenship is itself, uh, not a, uh, a given right. It’s not part of nature.

It’s something that is granted. And, uh, in every territory there are people who are non-citizens, whether they’re slaves or women under certain circumstances, or even today, uh, children, for example, are not full citizens. They can’t vote.

People who are in jail can’t vote. There are various citizenship rights that are not given. Uh, and therefore, the very notion of, uh, being a member of the world citizenship community, and therefore granted hospitality, uh, opens the door to exclusion.

Who is not a citizen? And here the transcendental empirical doublet of man, however embarrassing it is, provides a slight corrective, a useful one, which I think we give up to some extent at our peril. Let’s say the very tension in the 1789 Declaration between man and citizen, which all political theorists and historians point to, you know, the Rousseau part versus the liberal part and so forth, is a kind of healthy tension because it reminds us that you can’t subsume all rights under rights of citizenship, whether within a particular polity or more metaphorically on the level, uh, of, uh, the world citizenship that is perhaps to come.

And this speaks to some extent to the issue that, uh, the respondent raised, the issue of, uh, individuals always coming as members of community, always coming in marked. I think there’s a lot of truth to that. This is the typical communitarian critique of liberal individualism.

But also, of course, individuals, uh, can be seen as, uh, in addition to a communal identity. That is to say, one is more than just an instance of a solidaristic community. One is also capable of being outside, uh, and, uh, perhaps, uh apart from the community, uh, often exiled for bad reasons, but sometimes given rights that the community would deny.

And therefore, the very, uh, uncertainty about being either an individual member of the community, uh, in a sense echoes the uncertainty of being either a man transcendentally understood and individually particularized on the one hand, and being a citizen, whether a citizen of a particular polity or a world citizen. And so I would want to, uh, sort of caution us against using cosmopolitanism as a complete and total, um, supplement or, or maybe even replacement for the idea of man, however much an embarrassment it is, uh, in, uh, philosophical terms to come up with the idea of nature or the sacred or whatever we can use to buttress the idea of this naked individual. And

(coughs)

I would say that just a quick point in the opposite direction. It seems to me that by itself, as Hannah Arendt pointed out, I think we were a little bit too quick to dismiss her, uh, Hannah Arendt. Uh, as she points out in The Origins of Totalitarianism, unless you’re also a citizen, you ain’t got much of a chance.

And, uh, as the enemy combatants in Guantanamo are, you know, quite clearly now experience, whether or not they’re guilty, we don’t know because we’ll never put them on trial. Unless you’re conceived of as a citizen, you are completely naked and totally without any, uh, you know, uh, any protection. So in a way, one might argue that That’s the first right of being a man or being a transcendental figure, is the right also to be a citizen, also to have citizenship.

So it’s this, uh, oscillation between protective tension between the two that I think needs to be, uh, I think, supported rather than, uh, replacing universal, uh, transcendental man with cosmopolis. Um, I don’t see this as such clear-cut alternatives at all. Um, and, uh, one reason why I don’t, uh, is for the simple, um, fact that, uh, the first article of, uh, Perpetual Peace says the civil constitution of every state shall be republican, which incorporates, in fact, uh, the lesson of the Universal Declaration.

Uh, by a republican constitution, uh, uh, Kant, uh, means our equality under the law, our freedom as, uh, subjects. And it is only against the background of the achievements of seventeen eighty-nine that perpetual peace in seventeen ninety-five then can move also to the right of hospitality. Uh, I am not doing here a systematic substitution of the one for the other, but the Universal Declaration does not give you the guidelines for how to deal with cross-border justice issues, and in fact, the Universal Declaration is quite liberal in terms of who is a citizen.

There are only the enemies or the friends of the revolution, and citizenship was granted quite generously to all foreigners after the, after the French, um, uh, Revolution. Uh, but so in that sense, uh, at least in, in my mind, there is no, um, there is no strategic, you know, there is no theoretical either/or here. The Kantian right of hospitality only makes sense against the background of a republican understanding of citizenship, which already presupposes the achievements of 1789.

It is just that that understanding of citizenship is not going to get you to the point of deciding about how to deal with these issues which transcend bounded, bounded communities. And, um, uh, you know, when Arendt says, “The right to have rights is,” it seems as if precisely at the point at which we are nothing but human beings, that the right to have rights ceases to make sense.” Um, I think that historically, unfortunately, she was correct.

But the whole point about the development of cosmopolitan right is that you do not treat the person who is the stateless person as a non-entity. But I don’t think that the protections offered by cosmopolitan right, Marie, not in my understanding, they don’t substitute for membership. I mean, that’s why in, uh, the second lecture, I criticize, uh, Germany for not giving, uh, voice to long-term permanent residents by giving them the municipal vote.

So I really don’t see these as two very different and competing and conflicting strategies, but I see them as really both historically and philosophically, uh, one with one another. And I think historically, Kant knew exactly what he was doing in 1795. Maybe.

Marty, did you wanna have a quick rejoinder?

[01:20:18] MARTIN JAY:
Uh, I guess my anxiety is about the continuity between the Republican moment in 1789 and Kant. And my emphasis would be on the non-Republican, uh, dimensions, uh, of the, uh, the, uh, the man, uh, which involves, uh, a, a different tradition, perhaps maybe a liberal tradition, natural rights tradition, a tradition that comes out of religious sources. Uh, but it’s a tradition that isn’t subsumable under the idea of citizenship simply because sometimes there are, uh, categories of people who are not part of.

However capacious the notion of citizenship is, there are people who are not part of that. And unless we recognize that tension, we somehow then deny them the right, uh, of, uh,

(coughing)

what would ever be considered a positive right. Uh, I mean, I don’t want to go on and on, but take, for example, uh, the, uh, the fetus. And the fetus is a very interesting figure, uh, in, uh, in the human rights, uh, debate.

And if I were a defender, uh, as I’m not, of, uh, the right to life in this, uh, abortion debate, one might argue that fetuses are normally not seen as citizens, not part of the republic. They’re not given rights. Someone who wanted to argue from an expansive notion of rights, uh, which would include perhaps animal rights, uh, as well as the rights of the fetus.

I mean, you always… the notion of the human, the notion of the citizen, are all a boundary. One might say that the republican tradition doesn’t do justice, as it were, to the rights of those figures who are outside, whether it be animals or fetuses. So, uh, all I’m saying is that it’s useful to have at least some space between the republican tradition, uh, the tradition of citizenship on one hand, and these other sources of, uh, notions of human rights, uh, including perhaps customary law.

And so there are various, various other traditions besides the republican one that one could perhaps fruitfully draw on.

[01:21:58] SEYLA BENHABIB:
Uh, this was not my task in this, in this, uh, uh, lectures, but I would say that, um, I mean, I mentioned at various points that for me, there are, uh, moral agents who may or may not be full persons. The fetus might be such a moral agent. Uh, children at certain points certainly are, and, you know, people who are a– and may be moral agents who have interests, Then there are legal subjects, and then there are citizens.

And this is, this is obviously a kind of continuum, and I, I think that I owe an explanation or a discursive justification to all, uh, moral agents insofar as my actions have an impact on their interests and well-being. But and they are not citizens.

The citizenry is a much smaller, mu-much smaller group. So I think the moral philosophy that is behind this argument would be much broader, and that may meet some of your concerns. But, uh, I didn’t spell that.

Jeremy, did you have a point on this?

[01:23:00] JEREMY WALDRON:
I did. Yeah. Um, I mean, I think Martin’s absolutely right that you, um, It would, it would be a mistake to separate the notion of the the rights of man and what’s due to humans as such from cosmopolitan right at any level.

I think Seyla’s right that it’s there in Kant’s account, but I don’t think it’s there because people are potential citizens of a world republic. And it’s not there just because they are citizens already of some smaller-scale republics. I think in the account of, uh, what would be wrong with, um, colonial exploitation and the sort of injustice that’s being condemned on that front, Kant is not saying, ‘How dare you?

“Don’t you realize this is a potential citizen of a world republic?’” I mean, the, the basis of the outrage is how dare you,” this is a human being with the rights of human beings. Uh, and I think that’s indispensable as a, as a layer, uh, uh, in there. It explains, apart from anything else, the, the, the essential element of dignity that, that Kant has in mind, I think, when he talks about the basis on which, the respectful basis on which people should approach one another and deal with one another.

So I think you’re absolutely right. It would be a mistake to try and leave that behind and pretend that the sort of account that Kant was offering, the sort of account we’ve been building today, uh, is hoping to do this without any of this naturalism that might, in other respects, be problematic. It’s, it-

It’s, it’s, it’s there, and if it’s problematic, it has to be dealt with.

[01:24:19] SEYLA BENHABIB:
Oh.

(laughter)

I don’t quite agree, but, you know, we will… I mean, the rights of humanity in the person and the rights of humanity in our person, obviously should give us part of what is meant by the right of, uh, hospitality. The rights of humanity in my person, in Kantian language, would mean that I owe to you a certain obligation of treating you in accordance with respect.

Now, the question is, does this involve also beneficence? And hospitality is odd because it isn’t just respect and it isn’t just beneficence. It is that odd middle, middle ground.

But, you know, we’re parsing distinctions here, so, um…

[01:25:02] SAM SCHEFFLER:
David Hollinger.

[01:25:04] DAVID HOLLINGER:
Uh, an observation about Seyla’s project in relation to some of the other things that are going on under the sign of cosmopolitanism, uh, leading to a question about nationalism. I’m struck, Sheila, that when you talk about cosmopolitanism, it differs very considerably from a lot of the other things that invoke that concept now. I’m thinking of many of the contributions to the Vertovec and Cohen anthology, or Pheng Cheah’s Cosmopolitics, that most people now, when they talk about cosmopolitanism, are drawing a quite sharp distinction between cosmopolitanism and universalism.

And so many of the, um, bits of language that surround it when people talk about critical cosmopolitanism, rooted cosmopolitanism, actually existing cosmopolitanism, post-colonial cosmopolitanism, these all seem to be gestures to, uh, distinguish what they mean by cosmopolitanism from a Kantian universalist tradition. So I’m struck with how more comfortable you feel with that earlier eighteenth-century heritage than so many of the other things that are going on. And it interests me that many of the things that go on now are nested to, uh, a greater extent than at first I thought you were comfortable with, with the nation as a setting in which the classic tension between universalism and particularism shall be, uh, worked out in ways that respect the historical particularity of whatever circumstances may obtain.

I’m thinking of Anthony Appiah, uh, Bruce Ackerman, uh, Mitchell Cohen. There are a lot of people who describe themselves as cosmopolitans who are also, uh, nationalists. And the more that you were talking today, the more I realized, I think that I misunderstood what you were saying in the first lecture and perhaps the second, because I hear you again and again returning with considerable respect for the historical particularity of the German situation, the French situation, the Indian situation, the Dutch situation.

So I hear you, uh, granting increasing legitimacy to the peculiarities of each of these solidarities in their efforts to, uh, incorporate a larger, uh, step toward a larger circle of the we, toward, uh, uh, steps toward a, uh, a species-wide solidarity. And especially then when you begin to talk about democracy. Um, I’m beginning to think that perhaps you’re closer to Will Kymlicka and his comments yesterday about the nation than I had first realized.

I’m wondering if you could say more than you have so far about Will’s comments about the nation, and how you would respond to the proposition that what you are reclaiming in these lectures is not so much universalism, but liberal nationalism.

(laughter)

[01:27:51] SEYLA BENHABIB:
Short answer is no way.

(laughter and coughing)

Um,

(laughter)

Some introduced an interesting and I think important distinction in his essay on cosmopolitanism between those of us who look at cosmopolitanism from the standpoint of justice and the considerably and very interesting accounts also of cosmopolitanism in, in terms of culture and identity. Uh, these projects are, uh, not unrelated. Uh, they don’t always seem to be taking place and in the same circles.

And, um, uh, there is, uh, uh, some overlap, although I think one needs to do more, more work, you know, in how, uh, these, uh, this happens. I clearly situate cosmopolitanism, although I’m not saying it exclusively has to be there, her, as a project of, um, justice. If one does so, cosmopolitanism is continuous with universalism.

And I would say that, frankly, in the final analysis, for me, a non-universalist cosmopolitanism is a contradiction in terms. It might be about the negotiation of unity and diversity, universalism and particularism, but I cannot begin to think about the project of cosmopolitanism without, um, some commitment to universalism that itself can be, can be challenged and can be discussed and can be, can be, um, uh, articulated. I mean, even when, uh, cosmopolitanism is understood as, uh, post-nationalism, bricolage, and so on, um, as cultural attitudes, there is something that sustains and enables, uh, that, um, that kind of, uh, cultural attitude, that, that kind of, uh, cultural, um, uh, identity to, to, uh, flourish.

Now, is this, um, liberal nationalism? Would one want to call it liberal nationalism? Uh, Will’s question from, um, yesterday.

I think that instead of, um… Well, as it is a, a long and, and, um, uh, let me put, put it this way. I would like to say that, uh, nations are constituted, identified through contested and conflicting narratives, and together with Roger Smith, I’m more comfortable in talking about stories of peoplehood than narratives of nationhood.

Hmm. And this may seem like a minor distinction, but I don’t think it is, because the language of the nation always interpellates a kind of givenness. After all, Natio, you know, it was the Roman goddess of birth, right?

There’s always a, a gesture of identification, a gesture of unity. Now, as a strong Democrat, I would like to both, uh, recognize its force and yet at the same time qu-question it and contest it. I think that, um, liberal nationalism is always a project filled with, you know, with tension and, um, uh, Will hadn’t quite used this to describe, uh, his position until that, um, uh, until very recently.

And, uh, for me, it is not a comfortable space to be in. Uh, and, um, I, uh, recognize, uh, the legitimate diversity of democratic self-governing peoples, Whether these are democratic– whether these are also nations is for me always a somewhat open, open question. So when I refer to the Dutch, to the Germans, or, you know, to the American case on which you work, the term, uh, the nation, I think, uh, suggests a kind of unity and a kind of, um, uh, solidarity, which itself always has to be also, um, uh, uh, a challenge, uh, a question.

In many ways, it also seems maybe we, we end up, you know, taking it for granted. So I’m not, I’m not a total skeptic there. Uh, okay?

But, uh, I, um, am not, uh, comfortable with the project of, uh, liberal nationalism. I am comfortable with the project of building liberal democracies, which will bear the marks of certain national histories that themselves will be ever newly reappropriated and, and challenged.

[01:32:38] DAVID HOLLINGER:
Can I follow through just briefly?

(clears throat)

Just to make sure we don’t have just a semantic difference here. I mean, I truly am an admirer of, um, of Roger Smith’s stories of peoplehood. Uh, but you’re making a distinction that I don’t recall his making as sharply as you now do between peoplehood as a solidarity that has, um, a, a political, um, um, uh, salience and peoplehood as something that’s entirely apart from citizenship or nationality.

When Smith talks about peoplehood with that example at the beginning of the post-Soviet republics that are trying to establish themselves, if I may, as nations, and that the notion of peoplehood is an instrument toward the establishment of a political solidarity with citizenship and sovereignty. So I’m not sure where you’re going when you pull back from the nation to the people.

[01:33:34] SEYLA BENHABIB:
Well, where I’m going with this is that, uh, there are peoples who are not nations. There are non-territorial peoples. There are peoples who carry the stories, our memories, and also self-governance, who have not organized themselves always as nations.

We also have to do, we also have to do justice to this. You see, the very concept of the nation-state or liberal nationalism, it always contains within itself this inherent and fundamental tension of the… supposedly, it is the organization of an already given entity. That is the way in which it interpellates the collectivity.

But the state and the very organization, it, um, creates the people of which it becomes, uh, the, uh, the state. So, uh, natio-na-nationalism is very often the project of nation building. And all I want to say is that in that story of nation building, I want to have the democratic story, I want to have the socialist story, I want to have the feminist story, I want to have the cosmopolitan story, uh, uh, you know.

And if one can have a narrative, uh, that will provide and also contain that. So this tension between the liberal state and, uh, uh, people of which the state is a state is, is, is the, the tension that I want to respect as one that is historically always re-articulated. For me, it’s not a hyphen.

It’s, um, it’s, it’s always in the making. Um, I don’t think you would disagree with that, Dave.

[01:35:04] DAVID HOLLINGER:
No.

(laughter)

No. Uh-

[01:35:07] SEYLA BENHABIB:
Well, may not work.

[01:35:09] DAVID HOLLINGER:
Absolutely.

[01:35:14] AUDIENCE MEMBER:
I wanted to ask you what you think is the maximal reach of cosmopolitan norms and rights. So, uh, and what is the criterion by which one would distinguish between what belongs distinctively to local, uh, situations and local rights? Uh, it seems to me it’s almost in the logic of your argument that any distinctive local right or any distinctive lack of a local right could always ultimately be challenged by cosmo– appeal to cosmopolitan norms, so then all the distinctions between the local and the cosmopolitan disappears, and we really do end up with a world state in the end by necessity of the logic of this argument?

[01:36:00] SEYLA BENHABIB:
Um, I would hope not. I mean, this, this sends us back to the exchange, I think, with, uh, uh, Jeremy about, um, the negotiation of cosmopolitan obligations and local responses to them. And I would like to give the same, the same answer.

Um, I think it is really inherent in the logic of rights norms that they permit multiple instantiations. In other words, if a country respects a right to property, right? It does not mean that that particular country also has to respect your right to cut down the redwood forest, right?

So the right to property will contain both constitutional, uh, uh, local, customary. It will be inflected by the particular conditions and stories of peoplehood and the various, you know, the various traditions. In the same way, Um, to say that one has the right to free speech, right?

Let’s say Britain, um, uh, the United States and France both have, you know, constitutional free speech clauses, but there is a much more extensive, uh, libel, um, uh, clause, for example, in, in France want to write certain things about public persons ends you, uh, in front of the, uh, courts. Uh, just as there is a different line for negotiating between what is appropriate, what isn’t. I mean, uh, I think this is a very important question of legal hermeneutics or judicial hermeneutics, and maybe I will put it this way.

Um, I take Gadamer very seriously, uh, and a lot of what I meant by democratic iterations are i-a kind of Gadamerian move. That is to say, uh, every interpretation is an interpretation on the basis of a particular context that never simply repeats, that always iterates and transforms. But we always have to ma– agree and disagree about the, about the limits of that.

And so there is a kind of, you know, contention there. So, uh, hopefully my understanding of cosmopolitanism, uh, does not mean, uh, uniformity, uh, a single canon. I think it is a really an open question of, of of what obligations, let’s say something the Convention on the Elimination of All Forms of Discrimination against Women involves.

Does this mean that, for example, religious marriages will be completely outlawed? For me, this is not at all an obvious question. It’s a question of democratic negotiation and as well as juridical interpretation, and I would say that is in the very logic of rights norms, uh, to, uh, to permit that.

Jeremy, did you wanna-

[01:38:58] JEREMY WALDRON:
Yeah, if I could a-add one thing to that because I, I agree with that. I think we might want to come kind of aggressively to embrace some version of this frightening prospect that you set out. Um, of course, there are local ways of doing things and local ways of life and local cultures, religions, languages, and so on.

But there is this also, this other strand of cosmopolitanism that we’ve been not talking about for the past three days, which is the, the strand that stresses the contingency and porousness and fractured nature of local customs, all of which are, are intensely open, uh, one way or another to interactions, comparisons, learning, and being overwhelmed by other customs. So on the one hand, you have the porousness of the local, just as a matter of fact, and it’s a matter

(coughs)

of fact that certain cosmopolitans certainly are, uh, want to celebrate. And on the other hand, you have just the facts of our presence in the world, which is that whether we like it or not, and whatever our affection for the local and for the cultural and for the religious, there’s no telling now who we will find ourselves alongside. There is no telling who we will find ourselves alongside of the modern world.

So we always have to be prepared, uh, with norms appropriate to that predicament. It can’t just be that we just insist hard line on locality as though locality were primal and cosmopolitanism was simply better and cleaner, because I think that, that has evaporated. If it were– If it was ever a reality, it has evaporated.

[01:40:34] PROFESSOR HONIG:
Yeah. I would just add, or it can’t be added to that because I guess I’m going to disagree. Um, there’s a, there’s a sense in which the local is always in question, and the cosmopolitan and the universal are not always in question, it seems to me.

Seyla wants to stress the open-endedness of cosmopolitan norms the way she stresses that with reference to all norms. And I, I take that point, but I also think, I don’t hear that in Jeremy. And and on top of that, though, I think there’s a difference between stressing their open-endedness in terms of how things will get worked out within a certain broad framework, potentially, and stressing and maintaining, as a matter of political, uh, commitment, a sense of the contingency of the norms to which you’re committed at any particular moment, and an awareness of the possibility that they will turn out to harbor within them violences and exclusions that will force you at some point in face of some contact with another to give them up or to understand them in very different ways than you did before.

And I’m not talking just about the particular iteration of that norm, but the norm. In other words, to understand that anything that you hold today to be universal may appear to you particular, and to understand that all declarations of the universal will hit some particularity as alien, and the particularity won’t be wrong when it experiences it that way. Um, so to establish more of a kind of equality between the two terms that are always negotiated.

Um, so I’ll, I’ll stop there.

[01:42:09] SAM SCHEFFLER:
Bill Scheuerman?

(clears throat)

[01:42:15] BILL SCHEUERMAN:
I think the, uh, Salisbury remarks about the property suggests, uh, an important theme for us. I would think that, um, a strong cosmopolitanism would be associated with some theory of humanity and of human rights. And if we pursue this line, we would, uh, say that something about the, something about the nature of property, we would distinguish among kinds of property and we would say, well, we don’t have a… W-w-we wouldn’t want to defend a human right in stock ownership, or we wouldn’t want to defend a human right in, as was suggested, the cutting down of the, a forest, or let us say property without any kinds of restriction.

Or there might be all kinds of variation in, in inheritance laws. But still, we would want to be able to say something about the, what it means, what kind of a violation it is of humanity to deprive somebody of, uh, the, uh, what Erving Goffman called, uh, an identity kit. Um, that is those intimate, uh, uh, aspects of property or pieces of property that are important to the individual’s, uh, uh, in-integrity and, and life.

So I think that we are committed to the idea of a, uh, that kind of cosmopolitanism, which has to be supported by some theory of humanity or human nature or what have you. If you think of it that way, then I think we also have to say that the, the, uh, conflict or the opposition, the dualism, I won’t say pernicious dualism, but dualism in a way, uh, between the cosmopolitanism and particularism is not something we should, uh, easily accept. Certainly, if we think about human rights, we could also include the idea that people have a, have a human right.

It’s important to humanity to be able to engage and to experience particular re-relationships, to marry somebody particular, to have special concern for family members, to have special concern for a locality, have special concern for an institution of which you are a part, and so on.

[01:44:44] SEYLA BENHABIB:
If you think of it that way, then the problem that we face and that maybe it needs to be discussed is, um, uh, not so much the, uh, vindication of universal values, but the ways these… this, the antinomy between universal and particular values can somehow be worked out. Now, Celso has, has said something about this by talking about the nego– about the need to negotiate these things. But here is where I think the, there is some transition that’s necessary from from our from a philosophical level to a social science level.

It seems to me it’s only by the investigation of particular contexts that we’re going to be able to, uh, establish what is needed, what are the obstacles, what will make possible some kind of a reconciliation of these perspectives. And it’s a reconciliation of those three perspectives that needs to be explored, and the only way to explore it, I think, is by empirical inquiry into the contexts that are in-involved.

(whispering)

I have to…

(whispering)

I have to go to the mic. Um, there is a great deal in what was, uh, said that I agree with, except that it is only the empirical investigation that will do it. I would much rather toggle, uh, back and forth.

Maybe that renders me an eclectic, but I find it difficult to think about normative questions without also having a purchase on the empirical. But the empirical alone does not enable me to articulate the, the normative. But this question, in a way, makes me think back to Marty Jay’s question, and I will try to, um, uh, suggest the following.

You raised the question of the right, uh, to, um, uh, property. Property in terms of if you refer to it as an identity, uh, uh, kit, but, um, I may also– I’d also like to think of property in, uh, um, Arendtian, uh, terms as that piece of the world, uh, which both houses me that is essential, you know, to my, uh, dignity, and also, of course, in complex, uh, wage-earning societies. You know, property will mean also the means of, uh, definitely certain means of livelihood.

Property is not wealth, but to simply, uh, talk about a right of hospitality without also a right to sustenance, right? If you understand property in that sense also as the some kind of right to material sustenance consistent with human dignity, then that opens up an enormously important and interesting question which starts mediating the discourse of hospitality with the whole question of human and civil rights. And the way in which this happens institutionally, uh, uh, uh, to take up, um, uh, your emphasis about the context is in terms of the rights of asylees and refugees, for example.

What happens when you have been granted asylum? Your application is still in process. You are for, from the standpoint of the law, you are in that murky space between legality and illegality.

How do you survive in civil society? Right? What happens to you?

Now, in many cases, the practice is to contain people in special housing situations or with the way, you know, we put, uh, Haitian refugees during the, uh, uh, first, um, um, uh, incidents there when, uh, um, uh, Aristide first flew. You know, you, you hold them in Guantanamo, uh, uh, Bay. You just keep them out of civil society.

But I think there is an important argument, and I would endorse this argument, that, um, the refugee must become someone who is in-integrated into civil society just as the illegal a-alien through, uh, the ability to participate in property, in property relations. I think it is much more desirable, uh, than to extend the human right to property, even to the status of those whose status are, you know, are indeterminate because that is much more consonant with human dignity. And at that point, I think the whole distinction between the right of hospitality and human rights, uh, end up on a, on a continuum because it isn’t simply, uh, enough to grant admission if you are also not granting the the means of, uh, the means of, uh, uh, livelihood.

And, uh, so, uh, uh, there is, uh, I think a, a very special relationship there, that there is an important relationship between the human right to property, uh, and, uh, the, uh, human claim to hospitality. Yes. Jay Wallace.

[01:49:51] JAY WALLACE:
Thanks. Um, I wanted to, uh, just ask, uh, two quick, uh, quick questions. Um, the first is following up some issues that have been raised already about, uh, the scope of cosmopolitan norms.

Uh, the issue’s been discussed up to now mostly in terms of, uh, the need for these norms to be interpreted in ways that, uh, reflect different local contexts and traditions and such. Um, a different way to put the question, though, might be to ask about the content of, uh, cosmopolitan norms and how far, uh, they extend. Uh, you were suggesting that you understand these norms in terms of, uh, requirements of justice.

Um, but we’ve mostly been talking about, uh, cases in which, uh, injustice involves violation– uh, flagrant violations of basic human rights in cases like genocide or, uh, refusal of asylum, um, and questions about human rights raised in the context of immigration and such. Uh, but what about– I mean, if we’re seeing these cosmopolitan norms in terms of justice, why, uh, the question would naturally arise why they don’t extend to embrace all of the requirements of justice, including requirements of economic justice, and extend to, uh, you know, requirements to

(coughing)

redistribute material, uh, resources in ways that, um, uh, you know, improve the, uh, the economic conditions and the prospects of people who aren’t members of our, uh, our own, uh, polities. Um, there’s– There would be something, at any rate, in the logic of cosmopolitan norms that would, especially if we see them as requirements of justice that would push in this direction. Is that a direction you’d be happy to go in?

If not, where do we draw the line? So that would be the first question. The second question would just be about, um, constructivism.

You said something very tentative about this regarding the ontology of cosmopolitan norms at the end of the second lecture, uh, and you suggested you weren’t very committed to it. Um, I guess I myself would be happier to see this as a matter of, uh, natural law as you were putting it, but, uh, you’re not happy with that, uh, that way of understanding cosmopolitan norms. So, um, I wanted to make a constructive suggestion maybe about constructivism.

But your own, uh, suggestion was, I guess you used the example of genocide, and you were saying that somehow the articulation of the concept of genocide in response to historical experience would bring into existence a new moral fact. Somehow that seems to me not, um, that, that seems almost like a reductio of the, um, constructivist position that’s going to end up saying that it seems to deprive us of, uh, resources for, um, making moral claims of the sort that we need to make precisely when thinking about cases of genocide. The wrongness of it doesn’t seem to be a function of our, uh, conceptual scheme for thinking about, um, the case at issue.

So, uh, I wanted to suggest maybe a different way you could think about constructivism, uh, and it might be something along the following lines. One could suppose perhaps that, uh, implicit in, uh, the conception of, uh, liberal democracy in the modern world is, uh, a commitment to certain minimal standards of justice that are conditions for, uh, I’m following up on something that Tom Nagel was saying a couple days ago, but that are conditions for the legitimacy of a democratic, uh, constitution. Uh, and a commitment, an acknowledgement of those norms seems to be built into the understanding of democracy itself in the modern world.

Uh, if you– and if you go in that direction, then the, you know, the, a, a path opens up for understanding, um, cosmopolitan norms to be, in some sense, constructed by our acknowledgment of liberal democracy as a legitimate form of political organization, a commitment to compliance with, um, basic cosmopolitan norms, one might say, is in some sense built into the attitudes or for the, the, uh, the practical, uh, stance that, uh, that we take insofar as we take, uh, liberal democracy itself legitimate. So the very idea that its legitimacy requires that certain basic, um, rights of s- of citizens within the democracy not be interfered with, uh, naturally extends to certain ways of thinking about people who are not members of our community. That would seem to me a more plausible way to go, so I wanted to see what you might think about that.

[01:54:05] SEYLA BENHABIB:
Mm-hmm. Mm-hmm. Uh, let me begin by saying something about the second question, uh, first.

Um, I, uh, was, uh, uh, a bit apprehensive myself in using the language of the new moral fact, and it certainly does, uh… It certainly should not be understood to suggest, and I, I have to formulate this more carefully, as if, uh, the fact of, um, um, genocide becomes recognized as a moral fact once we can name it. That was not my intention.

Uh, what I had in mind was the, uh, recognition of certain kinds of, um, uh, actions as genocide and their designation as such. And I guess I was very impressed by the story that Samantha Powers tells in the, in her book on Lemkin running around various United Nations agencies and individuals and saying, “Look what is happening in the Polish ghettos. This is an instance of genocide.

And there is a great deal of resistance to, to using that concept, and he even basically concocts the concept of, you know, the death of the genos. You know, what is really meant by that? How does one understand it?

You know, because it is, it is the destruction not of individuals through specifically and horrifically violent and cruel means, which has been always a component of history. But the idea that was associated with it was the destruction of human beings because of the kind of human beings they are, and the destruction of their culture, of their particularity, of the fact that they are such and not other,

[01:55:50] PROFESSOR HONIG:
right?

[01:55:51] SEYLA BENHABIB:
And he really basically has to introduce this concept. Uh, and, uh, that seems to me to be the moment of moral constructivism. I don’t quite know how to state this sufficiently well philosophically.

I’ll grant you that. I’ll have to think about this. It is an intuition with which I’m, um, operating, you know, because when you read the story, it is really amazing and appalling to us that there would have been such resistance on the part of the world community to the idea that this is an action that is committed in order to eliminate, uh, these human beings as the, this specific kind of human beings on the face of the earth.

So I, I, I agree that, you know, that is, uh, the language of constructivism there, um, uh, is as, um, uh, needs, needs to be, needs to be refined. And, um, I like the suggestion to think of these norms also as inherent in practices, and I think that, um, part of what I struggled with in this notion of the democratic dilemma, the Janus, the Janus face of democratic norms, the necessary and inevitable circumscription of universality, you know, in terms of territoriality, but always the inevitable conflict. I would, I would think that, uh, that that is precisely, you know, one way in which I would wanna go, except that if one ends up making cosmopolitan norms simply an extension of a refined i- understanding of the logic of democratic norms, then the whole tension, uh, ends up, you know, ends up collapsing.

And, and there is, there is a tension there as far as citizenship rights and human rights is concerned. Uh, the first question is obviously, uh, a very big and contested one these days And I’d like to, um, uh, also ask my, my colleagues if they want to, uh, say something here because, uh, clearly, I mean, um, since, uh, uh, Rawls’s work, uh, a great many of us who had been dissatisfied with the way in which, you know, the theory of justice ended up being so nation-state centric, right?

There’s been an attempt to extend the whole project of distributive justice into the quote-unquote, the cosmopolitan domain. And, uh, Pogge, of course, has done, uh, tremendous work here, Thomas Pogge. Much of that discussion about cosmopolitan justice seems to rest upon this, uh, premise about whether or not we can understand the world economy as, uh, sufficiently analogous to a system of cooperation, such that if it is a system of cooperation, then there will be also grounds for distributing, um, uh, benefits and rewards in certain ways rather than others.

I have, uh, um, I have taken, um, a position on that in another, uh, in another, uh, uh, piece. Uh, uh, while I am open to redistributive arguments, I think that ultimately, um, um, I’m not quite convinced that either Pogge or Beitz can overcome the democratic paradox of not ending up with a world redistributive agency. So I am for pushing cosmopolitanism in the direction of redistribution, but I also want to see somehow more attention paid, uh, to the local and to a democratic specific.

So there’s, um, there’s a great deal that needs to be, to be done there. Mm-hmm.

[01:59:27] SAM SCHEFFLER:
Okay. I think both Will and Jeremy want to say something. Will, maybe you want to…

[01:59:32] WILL KYMLICKA:
Yeah. Well, it’s-

[01:59:33] SAM SCHEFFLER:
You haven’t had a chance yet, go first.

[01:59:34] WILL KYMLICKA:
I mean, it’s, it’s, uh, F-following up on the question of the, the content of cosmopolitanism. Uh, and this is just rephrasing my original comment, but it seems to me in lecture one, we have a relatively modest conception of the content of cosmopolitan norms, which involves, uh, uh, which you can view as, if you like, side constraints on, Um, uh, the exercise of sovereignty. So it, it, it, it–

And this is obviously crimes against humanity. You can’t refuse asylum. Um, th-th– you sh– There can’t be gross violations of human rights.

Um, so those are mod– I mean, that’s the main focus of the discussion of the content of cosmopolitan norms in the first lecture, and they’re relatively modest si– say, side constraints on state power. Uh, although they’re modest, they’re still–

It’s still important because a-as you emphasize, s-some demo– some Western democracies, even those that pride themselves on being based on universal values, have not fully lived up to those. So they, they turn away asylum seekers, they d-don’t sign on to the International Criminal Court, they put people, you know, in Guantanamo or whatever. So, so y-y– there’s an interesting issue.

Even if we just stick to these modest norms, even if we think of, of, uh, cosmopolitan norms as primarily these kind of modest side constraints, there’s still an interesting issue of how you reconcile it with democratic sovereignty, and that’s what seemed to be the first lecture was about. But then in the second lecture, second lecture, we seem to get a much more robust conception of the content of cosmopolitan norms and as, as, as I think has come out in the discussion now, such that the denial, for example, to go back to this case, of the r- of Tur- of the rights of, uh, Turks in Germany to citizenship or to local vo- voting becomes a violation of cosmopolitan norms, even though, I mean, there’s no question that their human rights were respected in Germany, and they were actually quite well-treated. I mean, in, in the grand scheme of things, they had very generous access to the welfare state, and they had secure residency and rights of family reunification and civil rights, rights of free speech, and so on.

And, and it, it seems to me, now– A-and so in the second lecture, it looks like the content of cosmopolitan norms have become something much closer to justice. And, um, and, and I’m, and I, I mean, I’m not…

Those seem to be two very different conceptions, not just of the content, but of what role we want the idea of cosmopolitan norms to play, um, in our political philosophy.

[02:02:00] SAM SCHEFFLER:
Uh, Jeremy, do you wanna make your point before Seyla, and Seyla can respond to both at once, perhaps as a close-

[02:02:05] SEYLA BENHABIB:
Yeah, go ahead, Jeremy. That’s fine.

[02:02:06] JEREMY WALDRON:
Sure. Just, just, I mean, very briefly, I think on the, the, the extension and the direction of global economic justice is going to be, uh, impossible to resist, I think. It’s already implicated in some of the, uh, immigration rhetoric, anti-immigrant rhetoric.

This is our stuff. Why are they coming here to take our stuff or use our land or all that sort of, uh, notion. And also, just as, as an, as another example of the kind of thing I was talking about, commercial fiscal interrelationship of societies now has advanced to a level where the fate of different societies’ treasuries is implicated with one another, and debt forgiveness and issues like this become, I think, important and prominent, and eventually people are going to have to deal with this with a theory rather than as a series of ad hoc responses.

On the second point, I wanted to say two things. One, I think you’re absolutely right that the, the, the direction that you suggest we look for some sort of basis of construction here. Although one could push it more widely and say, if we are going to throw a net of sovereign states over the world, never mind about particular democracies, if we’re going to throw a net of sovereign states over the world, then we have certain obligations in relation to that net to make sure that everybody ends up being a citizen of one state or another, to make sure that nobody falls through the interstices in various ways.

So even just, um, quite apart from the legitimacy of particular democracies, we might also talk about the legitimacy of the state system.

[02:03:25] SEYLA BENHABIB:
Mm-hmm.

[02:03:26] JEREMY WALDRON:
On the legitimacy of particular democracies, and this is a, a… I mean, I’m always amused by this, and this is putting on a different hat altogether. I think, I hope it puts me in some association with Bonnie.

Sometimes the way that you say it, the way Tom said it yesterday, the way you said it this afternoon, the way– the way, s-excuse me, on Tuesday, the way that you said it this afternoon, the way Seyla talks about the dilemmas of democracy. The impression that’s given is that other regimes, you know, who knows? No problem.

But democracy, if we’re going to have smelly ordinary people making decisions, by God, we’re going to put some limits on the, on the legitimacy of the outcomes. These, these problems about wanting to have limits on legitimacy are problems of all political regimes. They’re not peculiarly problems of democracy, although philosophers tend to always suggest that there’s some sort of special problem about tyranny of the majority and ordinary people doing this to you on equal terms through voting.

That would be a, a nightmare. Far better to have it done by a king or have it done by… So I mean, just, it’s just a plea not to regard this as a particular dilemma for democracy.

It’s a dilemma of all political power that, uh, there are substantive limits on its legitimacy.

[02:04:30] SAM SCHEFFLER:
Shayla, would you like to respond to Will and Jeremy?

[02:04:34] SEYLA BENHABIB:
To Jeremy, I will just say yes, of course. But, uh, when you are trying to do an imminent critique, which is partially what I was attempting to do of a specific kind of regime, then of course, you know, you look at that. I mean, for example, one of the ironies is that Franco’s Spain, on the register of hospitality wasn’t really that bad.

You know, then, you know, but I’m not going to, uh, engage in that, so, uh, let me, let me come, um, to the question of, uh, that, uh, Rawls has been pushing. Is there an expansion of the notion of cosmopolitan rights in the second lecture to begin to cover an entire register of rights? Well, uh, the way I had thought about this is the following.

The cosmopolitan moment in the, uh, discussion of the German case in particular is coming through, uh, also the number one, the rights of reciprocity, the, or the duties of reciprocity. The fact that local voting rights were granted in those six states, uh, Ireland, uh, uh, Sweden, Denmark, uh, the, um, uh, Netherlands, and one other, and the Switzerland And that in the first place, it was this network of reciprocal obligations of justice that made these particular provinces want to extend local, um, voting rights. But then there is also the fact of the European Convention on Human Rights and Fundamental Freedoms that also comes into play as a, a treaty that now encompasses, uh, rights beyond citizenship claims, rights that are the case for also a larger number of countries than just the signatories of the European Union.

For example, Turkey is a signatory to the ECHR, although it’s not a member of the EU. So the, uh, uh, extension then, um, of cosmopolitan rights there in, i-is, is generated partially through reciprocity obligations and through, um, uh, these broader, uh, human rights conventions. So I don’t know if, um, I– Let me put it this way, that I think, um, I have to think a little bit more, uh, uh, carefully through the issue myself of whether I want to say that the claims of cosmopolitan, uh, justice and the disaggregation of citizenship rights, uh, uh, completely go together.

That whether territorial, territoriality would– should entitle one, territorial residence after a certain point should entitle one to the full palette of, uh, citizenship, um, citizenship rights. I mean, I chose the example because it was this instance of mediating norms and, you know, democratic iterations. But I’ll need to think more about that.

Yeah.

[02:07:30] PROFESSOR HONIG:
Can I add one thing? I just, I just wanna add quickly, um, again, it’s not merely an addition, but it’s striking to me how when– especially when in the exchanges between Will and Seyla, you talk a lot about Your focus is very much on official law and on juridical norms and on treaties, and not on kind of the daily politics. So for example, Will, you know, I don’t recognize nineteen-eighties, nineteen-nineties Germany and your discussion of how good it was for Turkish workers to be there.

The… And I don’t recognize it not because you’re wrong about the formal apparatus, but because I think about all of the instances of, uh, violence against immigrants that were state-tolerated, and I think of that state toleration and, and the use of violence in that disavowable way as a way of practicing statecraft. So you sign, you’re a signatory, there’s a treaty, you have formal law, and then, you know, there’s the KKK doing your work for you under the register of formal law.

And it’s informal, but it’s, it’s statecraft and, um, and it’s a deniable violence, but it’s not an unexperienced violence by the objects of those actions. And tho- that register of political, uh, violence, uh, serves a state’s, in the case of Germany, served a state’s ideological agenda, um, and also enhanced state powers of enforcement and policing in ways that weren’t normally used to stop violence, but were used then against the objects of violence.

[02:09:06] SEYLA BENHABIB:
So, uh, you know, it sort of takes me back to this point of, you know, it’s not unimportant. Formal law is not unimportant, but the lived experience of law and lawlessness is, to me, you know, the register that really counts, and you can kind of pull formal law into that register sometimes effectively. I don’t disagree about that.

But I do think that the over-concentration on, uh, or the exclusive concentration or the privileged concentration on the, on formal law means we can miss the whole action. We can talk about what the treaties say and who signed them and when they signed them endlessly and never get what’s really going on in Turkish-German relations internally to Germany. And I, I know you know that, but it seems to me that this is kind of a side effect of the focus on all of the formal apparatus.

So,

[02:09:54] SAM SCHEFFLER:
well, I’m afraid we’re out of time.

[02:09:56] SEYLA BENHABIB:
Oh, sorry.

[02:09:57] SAM SCHEFFLER:
So, uh, you’re all invited to join us for a reception, uh, behind the partition. And, uh, please- Join me in thanking

(laughter)

Professor Benhabib and all of the panelists for this

(unintelligible)

(applause)