Page 80 - Democracy and the Public Sphere

Reconfigurations: The Public Sphere Since Structural Transformation 75

intervention into the debates surrounding human rights and civil
liberties:

Human rights may be justifiable as moral rights; yet as soon as we
conceive them as elements of positive law, it is obvious that they cannot be
paternalistically imposed on a sovereign legislator. The addressees of law
would not be able to understand themselves as its authors if the legislator
were to discover human rights as pregiven moral facts that merely need
to be enacted as positive law. At the same time, this legislator … should
not be able to adopt anything that violates human rights. For solving this
dilemma it now turns out to be an advantage that we have characterised
law as a unique kind of medium that is distinguished from morality by its
formal properties. 64

On one level, then, we can simply read into this the rather laudable
aim of trying to rescue a notion of human rights (not in itself a uniquely
Western concern, as some would have it) from the paternalistic,
occidentally skewed and dogmatic fashion in which it tends to be
invoked by so many ‘global’ institutions (a kind of ‘human rights
fundamentalism’). A reflexive, cosmopolitan institutionalisation of

human rights would (a) engage properly with the fact that human
rights do not operate in a cultural vacuum and (b) aspire to include not
only the full range of states but also a representative range of citizens
residing within them (who often do not share in the majority world-
view of a particular state territory) in an ongoing deliberative dialogue
about the meaning and application of human rights in different
contexts. Similarly, within states, the paternalistic and normalising
functions of a constitution (for example, the cherished ‘right’ to an
education which may, in fact, be culturally skewed towards specifi c
communities or function as an expert system severed from in-depth
public understanding and deliberation) can only be ameliorated

by the growth of vibrant, pluralistic and reflexive public spheres
of debate. But in each case, such deliberation presupposes much of
the (concrete) normativity to which it is expected to contribute: a
right to freedom of association, for example; or supranational bodies
which institutionalise actionable rights to mount a legal challenge
against one’s own state; or the right to an education that equips us
to participate as citizens.
This begins to sound worryingly like an ethics which, rather like
the Kantian imperative we visited in Chapter 1, is left to pull itself
up by its own bootstraps. On the one hand, the democratic impulse

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