Tune in to philosopher Davide Tarizzo’s talk from the workshop Europe and the Crisis of Reason: “Reflections on the Co-Originality Thesis.” Listen to the episode on Spotify
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The title of my presentation is Some Reflections on the Co-originality Thesis, and I am going to explain right away what this concept means. I start from a couple of very well-known historical episodes. In 1776, the American colonists rebelled against the Crown of Great Britain and established a new Respublica by claiming their natural God-given rights to life, liberty, and the pursuit of happiness. In a matter of years, the French rebelled against the Crown of France on the same grounds. Their natural rights had been infringed. And in both cases, the revolution was meant to enforce specific rights listed in the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen. And in both cases, the revolution opened the door to democracy. The Americans and the French realised that they had to take control of their lives through the exercise of popular sovereignty, so as to protect and enforce their inalienable rights. New democratic constitutions were devised to this effect.
Now, as Jürgen Habermas has pointed out, modern democracies hinge in fact on the intertwining between two different principles, and this is what the Co-originality Thesis says, the principle of human rights and the principle of popular sovereignty. Habermas talks about this intertwining in terms of a co-originality of private and public autonomy, or in terms of an internal relation between popular sovereignty and human rights. He argues that "the system of rights states precisely the conditions under which the forms of communication necessary for the genesis of legitimate law can be legally institutionalised". I apologise on behalf of Habermas for his prose, because it is quite incomprehensible. Elsewhere it also says, "Private and public autonomy mutually presuppose each other in such a way that neither human rights nor popular sovereignty can claim primacy over its counterpart".
In my latest book titled Political Grammars, published in 2021, I argue that what Habermas calls the system of rights, that finds expression in a modern democratic constitution, can be better understood in terms of what I call, or suggest calling, a political grammar. Now, I cannot recapitulate the whole argument here. Instead, I will briefly explain why and how the notion of infinite sets that I use in my book sheds further light on the Co-originality Thesis.
My presentation is divided into two sections. First, Person's Rights or the Rise of Modern Democracy, and the second section is titled Third Person's Rights or the Fall of Modern Democracy.
Now, the first thing to note is that modern subjective rights or individual rights are Janus-faced: they are both the rights of man and the rights of the citizen, as the French Declaration makes plain. From a legal theoretical point of view, it is true that natural rights can be thought of as abstract properties of human beings, independently of any political recognition and legal enforcement. In this perspective, natural rights are construed as rights in the third person plural, the alleged moral rights of human beings in general. However, from a political historical point of view, natural rights stop being such an abstract conjecture and become a concrete reality only when a group of people start asserting them as their own rights, the rights of those who claim them in the first-person plural, we the people, in an effort to enforce the rights of man by shaping them into the rights of the citizen. Importantly, when this happens, natural rights do not vanish, not even when they finally turn into positive law. On the contrary, the rights in the first-person plural, the rights that citizens bestow on themselves through a modern democratic constitution, draw their binding force and legitimacy from a general assumption — which is key to modern democracy — that every citizen is a man in the first place, and that the rights of the citizen give expression to the inalienable rights of man. As a result, every modern democratic constitution brings up the question of what it means to be human. In other words, the metaphysical anthropological question, "Was ist der Mensch?" — I'm quoting Kant — turns into the political question, "Who are we?"
Modern democracy reveals itself to be a kind of metaphysics in the first-person plural. And this is what, in my view, the Co-originality Thesis grasps at least partially — the internal relation between metaphysics and modern politics, hidden behind the internal relation between the rights of man and modern democracy. If the rights in the third person plural, that is the rights of man, cannot be untangled from the rights in the first-person plural, namely the rights of the sovereign people, the rights of the citizen, then modern democracy is grounded on a productive equivocation between metaphysics and politics. And this is perhaps one of the reasons why the debate between legal positivism and youth naturalism as to whether subjective rights or individual rights are a natural God-given property of human beings or a historical product of positive law cannot be resolved once and for all. The truth about the essence of subjective rights remains undecidable because no clear-cut line between the rights of man and the rights of the citizen can be drawn, just as no such line can be drawn between man and the citizen. The difference between the two views is just a matter of perspective. Natural rights are civil rights in potentia, whereas civil rights are natural rights in actu, just as the citizen is a man in actu.
Based on this premise, a preliminary and very rough definition of [the political? 00:07:39], that is what elevates a social mobilisation to the rank of a political event, can be sketched out. In the modern period, a social mobilisation becomes a political event when it fosters a process whereby a shift of perspective on rights becomes possible. Some natural rights are claimed by one sovereign people that expresses its willingness to turn them into positive law. This way, rights lose and simultaneously preserve their putative natural essence. On the one hand, they preserve it because citizens have civil rights insofar as they are recognised as human beings endowed with natural rights. On the other, they lose it because not all human beings are granted the rights of the citizen and can therefore identify as human beings. Hannah Arendt had already made this point in the Origins of Totalitarianism. Modern rights open and at the same time close the doors of society, floating between the two walls of natural law on one side and positive law on the other. Therein hides their limitation but also their emancipatory force. The limitation is the frontier, the border they always trace between us and the others, citizens and foreigners. The emancipatory force finds expression in the expansion of the rights of the citizen brought about by the never-ending reinterpretation of the rights of man that can be extended to more people or growing number as time goes by, according to how the sovereign people, the citizens, update their understanding of the concept of man. Whence, for instance, the extension of civil and political rights to women, blacks, and gay people, or the introduction of new social rights in 20th century constitutions. Throughout this process, perspectives keep shifting because of the moving intersection between the rights of man in the third person and the rights of the citizen in the first person.
Modern constitutions give evidence of this intrinsic ambiguity of subjective rights. Take the Italian Constitution of 1948, Article 2, or the Spanish Constitution of 1978, Article 10, German Grundgesetz of 1949, Article 1, or the French Constitution of 1958, Preamble — all these documents state that the rights of the citizen are first of all the rights of human beings, 'uomo' in Italian, 'persona' in Spanish, 'Menschen' in German, 'homme' in French. And yet, those who are granted such rights are not just human beings but also citizens of Italy, of Spain, and so forth, that bestow these rights on themselves through the exercise of popular sovereignty and thus bring the rights of man into being by shaping them into the rights of the citizen. The primary constitutional expression of the people's sovereignty consists in this collective self-assignment of some inalienable rights which belong to men as such and yet do not belong to everyone.
Besides the effects of political discrimination that follow from such a confusion between natural and positive law, it is important not to underestimate the emancipatory energy that modern constitutions possess. The energy is released precisely by the shifting intersection between the rights of man and the rights of the citizen. Every time a new right of man is recognised or a new interpretation of it is provided, a reframing of the rights of the citizen is on the way. This means, among other things, that the process through which nationals bestow on themselves the rights of man by shaping the latter into the rights of the citizens doesn't stop after a democratic constitution has been issued. As Richard Bellamy, the same theorist mentioned today by Nicholas, argues, modern democratic peoples improve their understanding of rights and of the constitution all along, providing ever-changing and sometimes conflicting interpretations of the overlapping between the rights of man and the rights of the citizen. For this reason, as Bellamy and others, including Habermas, emphasise, it is impossible to make a sharp distinction between normal and constitutional politics. As Bellamy writes, "Debates between libertarians and social democrats are not within a political framework of rights. They are about that framework. Nor can we separate out normal and constitutional politics. The very constitution of the political will always be at issue within any normal political debate."
Now, before expanding a little on Bellamy's view, it is time now to introduce some elementary notions of set theory that help us, in my view, deepen our understanding of the logic of modern rights. In the modern world, each of us can be seen as a member of two distinct sets. The first, the finite particular set of the citizens who all belong to a nation. Second, the infinite universal set of human beings that contains the former set, the former finite set. Modern democracy is based on the distinction and at the same time the connection between these two types of sets. As regards the infinite set, it is normally traditionally construed as a potential infinite set of human beings, which exceeds the final political set of the citizens. In other words, the infinite set of human beings to which man belongs cannot be contained within the final set of French nationals, of Germans, and so forth. It follows that each of us is a split subject from a modern political point of view. On the one hand, I am a citizen with a political identity. I am Italian. On the other, I am a human being, and this ontological characterisation blurs my political identity. I am not bound to be happy with the rights I already have in view of the fact that I am an Italian citizen. I can claim new rights or offer new interpretations of them in view of the fact that I am a man, a human being, and not merely a citizen.
As history attests, the simultaneous belonging of individuals to the potentially infinite set of human beings and the finite set of nationals has been a key source of legitimacy for modern political mobilisations. At the same time, it also throws light on some key features of modern individual, from a political point of view, of course. One of them is the infinite, priceless dignity of the bearer of rights. It is no mystery that the notion of individual rights and freedoms and the notion of human dignity have been intermingled in the modern period. But what is the reason for that? Why do we find, for example, a plea for human dignity at the beginning of the German Constitution or in the Federal Constitution of the Swiss Confederation, or even in the opening lines of the European Union Charter of Fundamental Rights? Clearly, the first and most obvious reason is simply Auschwitz. But the reason this plea goes beyond mere rhetoric, in my view, lies elsewhere. The double belonging to a finite set of nationals and a potentially infinite set of human beings infinitises the value of modern individuals, of modern citizens, and renders each of us an end in itself rather than a fungible means, as Kant would say. From Kant's point of view, the concept of human dignity basically means that human freedom is imprescriptible, as it cannot be bound to any definite end. Freedom is an end in itself. It follows that freedom in the modern sense is inexhaustible. We cannot put a limit on our freedom. Why? Because we cannot put a limit on the moral autonomy that allows each of us to broaden the range and the interpretation of our rights day after day. And this is why freedom, understood as autonomy, individual rights, and human dignity compose a single filament, the DNA of modern politics.
Today, according to Bellamy, the DNA of democracy is infected by a virus. The past, which he calls political constitutionalism, is challenged by the present, which he calls legal constitutionalism, and the political enactment of natural rights qua civil rights is giving way to another type of democratic engagement. By legal constitutionalism Bellamy means a conception of democracy which is no longer based on the idea that the democratic process is the constitution. Nowadays, according to Bellamy, rigid constitutions are counter-posed to active law-making and popular participation. As a result, judges and courts are entrusted with the protection of democracy, whereas political parties and representatives are increasingly seen as a danger for democratic societies. Supreme courts rather than parliamentary assemblies are considered the legitimate, reliable guardians of democratic institutions.
As Bellamy points out, legal constitutionalism arises from worries about the risk of drifting towards a majoritarian view of democracy. Hence, individual freedoms and minority rights are prioritised over popular sovereignty and the majority rule. The idea is that liberties and their constitutional protection are the driving force of democracy. In this manner, however, the advocates of legal constitutionalism neglect the fact that the Constitution is kept alive by a daily process of political — rather than merely legal — reinterpretation that guides the evolution of democratic societies towards new goals and collective achievements. Legal constitutionalism, on the contrary, reduces democracy to a matter of politically neutral procedures, undervaluing and most of the time mischaracterising the key role of the people's sovereignty and the general will in the democratic process. In many respects, Bellamy's analysis of legal constitutionalism, as opposed to political constitutionalism, accords well with some other accounts of the current crisis of democracy, not only in Europe but all over the world. For instance, David Harvey's well-known critique of the neoliberal regime of rights, which he considers unjust.
Bellamy too is aware that the rise of legal constitutionalism and the weakening of democracy on a national scale cannot be disjoined from the rise of a new neoliberal constitutionalism on a global scale. As he writes, "To the extent, globalisation is partly responsible for the contemporary attenuation of democracy, with global democracy, including the EU, but a pale shadow of its national counterpart. The case for legal constitutionalism is further strengthened, with many seeing international law as providing a necessary global legal constitutionalism to overcome the fact that all citizens now find themselves virtually or totally excluded from many of the political processes that affect their lives". According to Bellamy, global democracy undermines the democratic process, as it prevents citizens from exercising their sovereignty at the only level where such an exercise is possible, that is the nation state. Importantly, moreover, globalism and globalisation do not overtly delegitimate democratic states and constitutional charters, as Bellamy also points out, because global legal constitutionalism presents itself as a way to restate and reinforce the fundamental rights enshrined in most national constitutions which international law does nothing but recode and reshape into universal human rights. From my point of view, this recording is crucial. On the one hand, it absolutises constitutional rights, on the other, it devitalises them. And it does both things at once by completely naturalising rights.
This is the second section of my paper. Habermas' formulation of the Co-originality Thesis lends itself to several criticisms. I will mention just two. As a sociological and normative interpretation of the democratic process, Habermas' theory is flowed by infinite regress. In his view, to put it very roughly, the expression of popular sovereignty presupposes legally institutionalised democratic procedures of collective deliberation, which in turn presuppose the people's equality before the law, and mutual recognition of some fundamental rights, which in turn can only be achieved through legally institutionalised democratic procedures. This vicious circle in Habermas' argument has already been highlighted by others, Frank Michelman, for example. It can be taken as a sign that Habermas failed to find a third way between a right foundationalist approach and a legal positivist view. In my view, the only way to get out of Habermas' predicament is to assume — or better said, to acknowledge — the historical fact that the first expression of popular sovereignty predates legally constituted deliberative procedures, that is, democratic institutions. Over the past centuries, people have declared themselves citizens, politically endowed with some basic rights, also long before the legal enforcement of such rights and the establishment of democratic institutions, whereby their new citizenship could be legally validated and defended. Thus, as strange as it may seem to Habermas and many other political thinkers, the citizen and the nation of which citizens are members come into being, into existence, before the creation of the democratic constitutional state. Just as the conflation between the rights of man and the rights of the citizen comes to the fore before a democratic constitution is issued.
Contrary to Habermas' belief, democratic subjectivation and the emergence of a general will that lays claim to sovereignty precede and pave the way to democratic institutions. As history attests, the inaugural moment of a modern democracy is most of the time a revolution in the course of which one people, tired of oppression, yells out, "Nos sumus, nos existimus" and rebels against the [?? 00:25:22] institutions by claiming a number of rights that will protect the newborn citizens against further offense. In other words, trauma and violence, rather than discourse theoretic procedures, are at the origins of modern democracy.
As a normative claim about the internal relation between democracy and human rights, Habermas' argument is vitiated by another significant defect. At the level of the international law, human rights take centre stage, as everybody knows, but the problem is that human rights statements are decoupled from any global democratic procedures of legitimation. Here, therefore, the Co-originality Thesis does not apply. International law cannot be given any normative justification a la Habermas. Particularly, when this kind of justification is most needed, that is when international organisations demand respect for human rights in countries where such rights are not recognised, or democratic institutions are utterly missing. In such circumstances, one cannot think of any flow of legitimacy from the level of the democratic nation-state to the level of international organisation or supranational institutions, an idea Habermas has touched upon several times in order to bridge the gap between the Co-originality Thesis, which is key to his theory, that makes sense for national democratic settings, and international or even European law, which is not grounded on any democratic procedures of legitimation. Despite Habermas repeated attempts to find a normative justification for international rights regimes, it doesn't seem that any such justification can be found within his conceptual framework.
Among the political theorists who have sought to solve this problem following Habermas' discourse-theoretic approach, Selah Benhabib deserves special mention. If I understand her theory of democratic iteration correctly, she maintains that normative justification of rights can only be achieved at the domestic level of the democratic process, as Habermas' Co-originality Thesis entails. But Benhabib also contends that human rights, as enshrined in international and transnational covenants, have nonetheless a paramount role in this process. According to her, cosmopolitan norms function as a conceptual background against which the process of democratic deliberation within national states takes place, enabling people to judge the legitimacy of law according to discourse theoretic principles of moral and rational will formation. To put it more simply, universalist rights claims can be seen as moral suggestions or rational advices. They are concepts that foster the democratic process in various national contexts by eliciting various conceptions or political iterations of those primary concepts, as well as "the emergence of new political configurations and new forms of agency inspired by the interdependence, never frictionless but ever promising, of the local, the national, and the global". Such kind of reasoning, Benhabib [argues? 00:29:21], allows us to endorse the Co-originality Thesis and at the same time to acknowledge the jurisgenerativity of cosmopolitan norms that are implemented through constitutional norms and thereby become effective. Benhabib here draws inspiration from Kant's well-known discussions about concepts of the understanding and intuitions. "Without the basic rights of the person, republican sovereignty would be blind, and without the exercise of collective autonomy, rights of the person would be empty. The concretisation of human rights takes place in different venues through a multiplicity of institutional channels. I have introduced the term 'democratic iterations' to characterise such processes." Benhabib also clarifies elsewhere, "Human rights norms require interpretation, saturation, and vernacularisation. They cannot be imposed by legal elites and judges upon recalcitrant peoples. Rather, they must become elements in the public culture of democratic peoples through their own processes of interpretation, articulation, and iteration".
So, Benhabib gives us hope for the future of democracy, but problems unfortunately remain. Benhabib's argument is grounded on a distinction between the universalism of human rights and the particular legal forms they take in constitutional interpretations and contextualisations. She takes it for granted that there can be an interplay between these two regimes of enunciation. One is the regime of moral universalism, the other is the regime of political particularism. Given that the latter gives expression to the former, political particularism gives expression to moral universalism, and moral universalism in turn legitimates political particularism, one could expect that no serious conflict between different political vernacularisations or contextualisations of the same universal will break out for the simple reason that they all abide by the same moral and rational principles. But Benhabib does not think so, not only because modern history blatantly contradicts this conclusion, but also because her moral universalism has a purely procedural nature, which can only ensure that an agreement between conflicting views is achievable in principle, not in practice. And again, the spectre of Kant haunts Benhabib's theory. The purely procedural nature of cosmopolitan norms is not without problems, however, because of its close resemblance to the purely operational nature of Kant's concepts of the understanding. One cannot make any sentence with such empty concepts... Sorry, in the absence of any empirical content. Therein lies the first problem. Cosmopolitan norms are in fact sentences, concrete statements without specific content. But let us start then from such elementary concrete statements. In that case, the only way to hold firm to Habermas' Co-originality Thesis is to say that those statements draw their normative legitimacy from legally institutionalised procedures of democratic deliberation. As a result, they must coincide with constitutional norms. And therein lies the second problem: constitutional norms vary from place to place and do not say exactly the same thing every time. Moreover, even if they did say the same thing, their duplication and translation into cosmopolitan norms would be redundant at this point because the normative justification of human rights would always already be achieved at the level of constitutional law.
The above considerations perhaps explain why, as far as I know, Habermas has never paid much attention to Benhabib's arguments. Clearly, Benhabib does not believe that cosmopolitan norms are redundant. Otherwise, democratic iterations would just be tautologies. However, Benhabib doesn't seem to realise why cosmopolitan norms are neither redundant nor tautological reiteration. And the reason is that they bring to the fore a new kind of political set, the infinite set of the human race, or of the human family, as the Universal Declaration of Human Rights says. In my book on political grounds, I call it the human population. And this is the infinite set of which human beings are members insofar, as they are the bearers of universal human rights. According to the Universal Declaration of Human Rights, everyone is a member of this set, regardless of everyone's nationality. For this reason, the human population or the human family is an actual rather than a potential infinite set.
Now, to begin with, it is worth stressing why this infinite set is of a political nature. The reason is that the cosmopolitan norms that define it are meant to have an impact on peoples and nation-states which are conventionally understood as being political entities or sets. Since the effects on such political entities are necessarily of a political nature, also the norms that produce them must be of a political nature. Accordingly, the human family, the infinite set of human beings to which cosmopolitan norms apply, is a political rather than a merely moral set.
Contrary to Benhabib's opinion, the human population is a political body that lays the foundations for a certain kind of political rather than merely moral universalism. But the fact is that this political body is measureless. And this brings up the question of actual infinite sets. In mathematics, one can speak of at least two types of actual infinity. And of interest here is the uncountable infinite set. Today most mathematicians consider this measureless mathematical entity a given, an actual object, rather than an imaginary or impossible entity. Intuitively, one of the properties of the uncountable infinite set is that the infinity of this set does not depend on the process of counting. For instance, adding more and more numbers to a potentially infinite series of integers that remains finite but can nonetheless increase ad libitum.
Now, the infinity of the uncountable set is actual in that it is no longer relative to a finite yet potentially inexhaustible process of addition or division. The uncountable infinite set is not that which delimits a finite set from without, or that which appears each time just beyond the limits of a finite set, as is the case with a potential infinite set. Here, the infinite has a life of its own. In this sense, the infinite is a given that looks the same whatever perspective we take on it. In political terms, this means that the human population has a life of its own regardless of any finite political set of any people. Indeed, the human population is the infinite set of human beings who have the rights of man, but who do not necessarily have the rights of the citizen. An infinite set of this sort is actual and not merely potential because it can be thought of without starting from and therefore without presupposing any finite political set. The human population is defined by the possession of natural rights which are decoupled, completely decoupled, untangled from constitutional rights. The latter are somehow absolutised through cosmopolitan norms, but only to the effect that they are completely naturalised and thereby politically neutralised. Thus, we witness a kind of inversion of the democratic process. As a rule, or in the past, this process involved shifting the perspective on rights from the third-person to the first-person plural. Here, on the contrary, one shifts from the first-person perspective of constitutional rights that belong to the sovereign people to the third-person perspective of universal rights that belong to the human population. Rights in the third-person plural have now a life of their own, regardless of any democratic appropriation in the first-person plural. So, the principle of the people's sovereignty is emptied of its original meaning, that is the people's self-assignment of constitutional rights.
Against this backdrop, democracy and human rights divorce and enter into conflict. Democracy, understood as a metaphysics in the first-person plural, is devitalised by the widespread affirmation of universal human rights. It is true that the word 'democracy' continues to be used, but it doesn't mean the same thing as before.
In Bellamy's work, political constitutionalism loses ground and is gradually forced to surrender to global legal constitutionalism, or on a smaller scale, through transnational legal arrangements, such as European law, that suffer from a well-known democratic deficit. Now, in saying this, I feel the need to point out that I do not intend to take sides. I am not claiming that democracy as we have known it, national democracy, should be defended at all costs. National democracies, as Arendt, among others, emphasised, are not the best of all possible worlds. As already said, they possess emancipatory energy, but they are also essentially discriminatory, as they regularly build a wall between 'us' and 'the others'. By contrast, the rights in the third person plural exalt the rights of the others, as Benhabib underlines. As such, they put a moral burden on us that cannot be simply dismissed or denied.
The point, however, is that today we find ourselves at a turning point in history, and we should be fully aware of that. First, we should not confound the present and the future with the past. If the political present is not up to the moral imperative of the present, an effort on the part of political theorists is required. Greater creativity and innovation are needed. Second, we should be aware of the dangers that lurk behind the corner, not least because this awareness may help us to understand what kind of theoretical innovation is needed this day. Among the dangers there is one that I deem particularly insidious: the current unstoppable expansion of a new type of biopolitical power geared towards behaviour control, which is totally incompatible with any future regeneration of participatory politics, and which goes hand in hand with the decline of national democracy. Indeed, the two processes are closely related. And in light of the foregoing, this should not come as a surprise: if modern democracy is metaphysics in the first person plural, in which the question "What is a man?" and the question "Who are we?" are knotted together, then the demise of democracy entails that the knot is untied and that we the people have no voice when it comes to such questions. Thus, the door is wide open for answers which do not find their legitimation in democratic politics, but are rather in science or what is called by that name.
What then is to be done? Just a final remark, so I can follow up on Nicholas' presentation. In my view, the solution doesn't lie with cosmopolitan world government. The problem is how to restore what I have called metaphysics in the first-person plural in such a way that national democracies may be integrated into a wider metaconstitutional framework and the first-person plural of the nation may turn into one voice among many of a wider, metanational first person plural. And it is not the recalling, the reshaping, the recalling of constitutional rights on a supranational level, but rather the introduction of new as yet unheard-of rights that will bring new life to democracy. And in the last chapter of my book, Political Grammars, I talk precisely about the right to hospitality as a kind of possible way to explore. Thank you. I'm sorry for being so long.
[Audience applauding]