Power and Justice
(Last modified Febuary 2008)
This project explores political philosophy and asks what kind of political philosophy is needed to grasp the contemporary realities of the social and political world. Can political philosophy continue to pose traditional questions about law and justice, the good life, and the conditions that justify power, even though the framework of the nation-state has lost its key function? Should scholars abandon “methodological nationalism”? If so, what form of reflexion can be conceptualized that will explain the specificities of contemporary modes of collective life and simultaneously define values that impart meaning to political action, meaning that goes beyond the mere capacity to manage the consequences of the dynamics of the economic world?
Starting point for this project is a concept of individual rights based on Max Weber’s sociology of the law. Although he was a proponent of the nation-state, as a sociologist and historian Weber defined law in a manner that permits a wide-ranging application of the term. Under modern political conditions, the state is responsible for guaranteeing individual rights. But before the state was institutionalized, other collectives—what Weber referred to as other “legal communities”—served this function. What was unique about the modern state was not that it guaranteed these rights but rather the fact that it appropriated that guarantee by forcing other legal communities to relinquish it. According to this interpretation, Weber’s famous definition of the state based on its monopoly on the legitimate use of physical force appears as a theory of sovereignty that differs from the tradition of modern political philosophy (contract theories) only because it determines the locus of power, while leaving the question of justification unanswered. Despite this normative indifference, Weber’s definition of the state does not comprise an ontological assumption that asserts a necessary link between violence and power (Arendt’s interpretation) but instead summarizes an interpretation of interwoven narratives about individual rights and political associations.
In contrast to historical understandings of the concept of individual rights, theories of law often question the meaning of the notion or, indeed, contradict it. Although Weber’s contemporary and friend Georg Jellinek attempted to formulate a systematic rationale for the concept of individual rights, this idea was, for the most part, either accepted only with certain provisos (Hans Kelsen) or even rejected outright (Léon Duguit, Michel Villey). Criticism focused on what was perceived as a linkage of the concept of individual rights to natural law, that is, all rights that an individual can claim as a natural being. From a historical perspective, however, the concept of individual rights can be separated from that of natural law by conceptualizing the individualization of rights that underlies contemporary understandings of individual rights as a correlate of the establishment of state sovereignty.
Such an interpretation offers a new perspective on changes in concepts of the political. If we conceptualize state sovereignty as one mode of the relationship between power and rights, then we are better able to emphasize the specificities of that relationship. The monopoly of the state and its capacity to guarantee rights is an exceptional phenomenon, both in the history of the West and in the broader context of comparative cultural history. Thus, rather than interpreting the demise of state power on the backdrop of the state’s former hegemony (a perspective that often leads to the assumption that state hegemony can only be overcome by establishing international or supranational institutions), it would seem to make more sense to dispense with the hierarchical concepts of the political. The erosion of state sovereignty can then be grasped within the context of the multiplication of powers and their de-territorialization. Moreover, the agenda of political philosophy is shifted from a focus on the conditions for legitimate power to the conditions that are a prerequisite for securing individual rights. The citizen as a political actor can continue to be perceived as a legal person, an individual with rights that are already defined or await realization. But the fate of such citizens is determined in a web of institutions that are no longer organized hierarchically, a web in which the state is just one of many institutions.
A philosophy that accounts for this decentralization of the political should do without the strong universalism that comes with theories of state sovereignty, without being forced to abandon all normative aims. This project examines how democracy can develop under the conditions of a non-hierarchical plurality of powers that can guarantee rights. To this end, the positions of authors such as Claude Lefort, Toni Negri, or Jacques Rancière, who conceptualize democracy dynamically as a process of questioning existing institutions, rather than statically as a form of government, will be explored. These authors view institutionalization as such as a risk for democracy; some reject it outright. Liberal democracies, however, are the result of a productive contradiction between the search for a form of government based on the legal framework of popular participation in the production and reproduction of democracy and, in the last two centuries, repeated transgressions of these legally defined forms of participation. The aim now must be to formulate a concept of democracy that incorporates both institutionalization and critiques of established institutions.
This research is based on the following working hypothesis: a dynamic concept of democracy does not overlook the significance of institutions and takes into account the plurality of powers that are capable, on the level of world society, of transforming mere subjective claims into guaranteed rights.