Universality - a Principle of European and Global Constitutionalism
| Autor | Markus Kotzur |
| Cargo | Associate Professor of Public, International and European Community Law en la Universidad de Leipzig |
| Páginas | 201-228 |
Markus Kotzur
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Associate Professor of Public, International and European Community Law en la Universidad de Leipzig. Obtuvo su "Abitur" en 1988, y cursó estudios en las Universidades de Freiburg, Bayreuth y Duke University, Durham, North Carolina (USA). En 2000 culminó su trabajo sobre Theoretical Framework of international and Human Rights Protection (Theorieelemente des internationalen Menschenrechtsschutzes, Duncker & Humblot, Berlin 2001). En 2002 terminó su habilitación sobre el artículo 24 sec. 1a German Basic Law (Grenznachbarschaftliche Zusammenarbeit in Europa, Duncker & Humblot, Berlin 2004). Desde entonces, el autor ha impartido docencia en las Universidades de Cologne, Dresden, Würzburg, Leipzig y Münster, en Alemania, así como en Kaliningrad State University, en Rusia. Sus líneas principales de investigación son Derecho Constitucional Comparado, Derecho Internacional Público, Derecho Comunitario Europeo y Derecho Constitucional Europeo, incluyendo la dimensión histórica y filosófica de la integración europea.
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Is there, based upon a universal notion of the law, a global or universal legal order? Is there a universal source of judgement? The universality of common moral values as well as common legal principles, giving rise to a step by step development of a basic legal order for all mankind, may very well be considered as a dangerously Euro-centric, presumptuous utopia. However, such a development seems to be the inevitable consequence of what is called globalisation.1 The "global village" - describingPage 202 manifold worldwide interdependencies in fields such as technology, economy, politics - for sure is a serious challenge to the traditional categories of legal thinking. Many ambiguities have to be taken into consideration: the lack of normativity of a global legal system, many indifferent associations connected with the idea of globalism respectively universalism.2 Therefore, rethinking the relationship between universality and cultural/historical particularity becomes all the more necessary. To provoke the solemn pathos of "universality" or global law would not be sufficient. Quite the contrary, it would rather sound like a suspicious excuse for a desired but not existing vision of "our one planet earth". Universality is well known in different contexts: the universal dimension of religions, the missionary aims of ideologies, the discursive world public forum of philosophical debates, the universal history by Voltaire, the "Weltgeist" by G. F. Hegel or the "weltbürgerliche Absicht" by I. Kant. The collapse of the communist systems in Eastern Europe after 1989/1999 raised hope that a "new world order" under the United Nations could become effective. However, in the post Iraq war period one needs to pay attention to rather precarious dialectics between "global law" and global power". Not a universal "rule of law" but a global state of emergency might turn into a quite disputable paradigm of the worldwide "anti terror war".3
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The process of structuring universal law, of outlining its chances and limits, requires a thorough scientific approach. The analyst not only has to be aware of the historical but also the comparative dimension. Universality might be understood as a pre-existent Platonic idea(l) as well as a concrete real life phenomenon originated by very specific historical developments. Universality is deeply rooted in cultural traditions. It is a concept used by many scientific disciplines. In the legal context, universality is an intrinsic expression of the very legal culture a political community is based upon. Even more, this article will try to show that universality is a constitutional principle itself. Since 1789, the principle of universality - born in the aftermath of the French Revolution and expressed in the "Déclaration des droits de l'homme et du citoyen" - has been written down inPage 203 many constitutional texts of various different legal cultures and found resemblance in public international law treaties such as the UN-Charter or the International Covenant on Civil and Political Rights. If public international law shall be (or become) a meaningful instrument to developed a rule of law based and accordingly "constitutional" legal texture for the aforementioned processes of globalisation and internationalisation, it needs to be universal in nature. And it needs to meet universal expectations. An inter-constitutional concept of public international law4, shaping universal principles by comparing national constitutions, will help to clarify the possible content as well as the possible functions of universal law.
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The terms "universal" or "universality" are of Latin origin. The American Heritage Dictionary of the English Language (4th ed. 2000) describes universality as (1.) "the quality, fact, or condition of being universal" and (2.) "universal inclusiveness in scope or range, especially great or unbounded versatility of the mind". What is universal, exists and prevails everywhere. It has a certain relation, extension and applicability to more or less everything. Therefore, a merely Platonic approach as to virtues, the good, justice or (human) rights would result in a shortcoming. Universality rather "should be looked for, not in abstract theoretical `principles´ or other a-historical judgement or vision, but in concrete experience", which is to say: "normative authority, in so far as it exists for man, resides in historical particularity".5 Let us pay attention to some of these historical particularities. Platonic philosophy itself has a historical momentum. Only in a vivid debate with the Pre-Socratic or Pre-Platonic achievements of Greek philosophy, Plato could create his world of ideas associating the universal "with ascent from the world of change and particularity".6 The universal highest good will last and never change. Many universalists followed Plato: Aristotle, Seneca and Cicero - at least to some extent -, in the Christian Tradition Thomas Aquinas. The Christian religion put a special emphasis on the universal - with obvious consequences for the law. Modern public international law is deeply rooted in the idea of a Christian-European "family of peoples" - the so called universitas christi-Page 204ana.7 However, this notion of universality soon was challenged by the discovery of America, the Reformation and religious wars in Europe.
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Humanity itself, the universal societas humana as one cornerstone of rationalistic natural justice8, became the legitimising point of reference for a truly global legal community.9 In the 18th century E. de Vattel framed his "humankind-oriented" concept of a "société des nations".10 However, the strong focus on the human being as an individual at the same time questioned whether universality could be a source of normativity. Fundamental dichotomies emerged from the universal-individual model: universality versus particularity, universality of values versus relativity of values, universality versus diversity. Once more, universality seemed to be the Platonic ideal, particularity the empirically profound real world description. Not surprisingly, thinkers like E. Burke and others represent a historical emphasis on a connection between particularity, diversity etc. on the one, normativity on the other hand. Notwithstanding the impressive intellectual level of the philosophical universality-particularity debate, a black-and-white scheme of the universal and the particular-individual is not able to explain today's theory and practice especially of human rights protection.11 Human rights are both - universal and individual/particular in nature. They are based upon the universal notion of human dignity and the particular realisation thereof in a particular legal culture at a particular moment in time. This notion of universality can look back on the great tradition of the Virginia Bill of Rights (1776) or the French Declaration (1789), the latter one saying in its article 16: "Toute société dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de constitution". Modern human rigths texts some-Page 205what absorb theses classical texts.12 The following examples may give proof of such a "process of reception". The first quotation stems from the "Bangkok Declaration" representing the human rights idea in an Asian cultural context:
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"(...) recognise that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds."13
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The universality of human rights also was a topic of the Vienna Conference in 1993. The final document, the Vienna Declaration, strongly rejects any kind of cultural, religious or historical relativity of human rights. Before outlining the different principles of a...
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