Human Rights as the Basis of a Multicultural Society

Multicultural society is metaphorically referred to as “the orchestra of the human race” in which every ethnic group is equally valuable tool, preserving its diversity, but nonetheless ready to play in an orchestra, that is to work within a given community or society. It seems therefore quite trivial to say that in every 21st century society there are various forms of social life. Among numerous different styles (forms) of a good human life there are also those that are neither better nor worse nor equal in value in respect to one another but they are valuable in a disproportionate or diverse manner. The fact of multiculturalism plays an important role in shaping the law and in the way how various state institutions function.

In my article, therefore, I try to answer the following questions: Do human rights make it possible to create a genuine mutual social recognition among the actors of interactions? Does acting consistently with law pattern automatically imply social recognition, or does leaving leeway or freedom to take decisions and to act (within legally defined framework) in some cases generate conflict situations, both individual and social ones? When answering the latter questions, I argue that the arguments for recognition of human rights must be sought in the principle of mutual recognition and equality of opportunities treated as universal rationale in their favour. Such assumptions expressed in human rights – justified or even presented in an innovative way – constitute a major force which shapes the multicultural civil society.


  1. Multiculturalism as an element of essentiality of modern societies

         The idea of one-nation and monocultural state collapsed because multicultural societies have become a historical fact[1]. Naturally, this fact has not yet been grasped in a fairly adequate or heuristically fertile idea that would enable the creative, peaceful, and so devoid of hostile tension coexistence of these multicultural societies. Monological culturality became the past from the perspective of the state, as evidenced best by the emancipatory efforts of entities belonging to national minorities, ethnic communities and nomadic groups, all that demand their own cultural space. The climate of today’s world is vividly and accurately reflected in the metaphor of Clifford Geertz, for whom the present time is a Kuwaiti bazaar, marketplace of values, hubbub of languages and dialects, paths trampled by multicultural and multiracial feet, paths where we all go at once and we find it more and more difficult to get out of each other’s way. Maybe this is the reason why – due to common crossing ways, the colourfulness of varied life, the fear of often incomprehensible otherness – multiculturalism and social heterogeneity encounter in the social reality the lack of acceptance and tolerance.

At the narrative level, multiculturalism simply shows the cultural diversity of a given society, but it at the same time shuns any theoretical legitimacy of a universal model of culture, and it settles for its understanding as a kind of mirror reflecting the political, educational and socio-economic relations in multi-ethnic societies. It should be emphasized, however, that while the concept of culture is negated in its anthropological, overall – that is universal – interpretation, it is back in multiculturalism as an essentialist concept of the cultural baggage often associated with ethnic group and race. The consequence of the latter is a re-reification of the concept of culture, because each ethnic, racial group should treat the values of their culture as a proof of a permanent and visible distinctiveness. Multiculturalism constitutes a set of phenomena, including: individuals, cultural groups, processes of development and of universalization of these groups, the mechanisms of forming territorial, racial, ethnic, linguistic and even religious bonds. As a result, it forms the basis for creating the dominant, relatively orderly shaped patterns of relations between cultural groups.

We perceive multiculturalism from a different perspective when we refer to government policies aimed at levelling social tensions associated with the phenomenon of multiculturalism, or when it comes to ideology, movement, doctrine and even the philosophy of multiculturalism (in the colloquial meaning of the doctrine of love of wisdom). The example of the latter can be the so-called multiculturalism officially adopted in Canada under the Constitution of 1982 which, in the most general terms, implies the recognition of the equality of all cultures, regardless of their geographical, racial or religious origin. Thus – as Zygmunt Bauman puts it – the state shall henceforth ensure “the tortuous road to common humanity”[2]. The main feature of official multiculturalism is therefore the recognition of cultural diversity while maintaining unity and loyalty to the state.

The idea of multiculturalism has gained a tint of ambivalence today; on the one hand, it defines a certain social condition, a fact or ideal of the coexistence of multiple cultures within one community, whereas on the other hand – the policy of the state aiming at conscious creation or reinforcement of mosaic society, whilst idealising the diversity over the processes of homogeneity. The strength of multiculturalism lies in paying attention to the compelling issue of our time, namely the heterogeneity of cultural and ethnic image of modern societies and the problem of multiplicity of identities. In other words, the objective of the proponents of the policy of multiculturalism is to celebrate the identity of social groups and to support them in their struggle for social, actual equality by means of equal treatment of cultural expression.

2. Human rights as the normative paradigm of multicultural societies


In such a society there appear questions about its normative basis. Nowadays, it seems that human rights constitute the undisputed cornerstone of any significant political culture. Both thinkers from different disciplines of social sciences, in particular lawyers, as well as politicians and, ultimately, ordinary citizens, behave as if they knew what these rights stand for, what their scope and justification is. Is it really so that we know everything about human rights? The answer seems to be prima facie clear and affirmative. Meanwhile, considerable doubts arise already during the discussion about what authority is legitimised to ensure the observance of human rights by means of the power of sanctions.

They come into effect by granting the individual – by the state bodies, in entirely positivist sense –  civic title of individual and unique legal entity. The uniqueness of this mode of granting rights consists in the fact that it takes place exclusively for the individual, respectively to the personal significance of its own name. The meaning of the name lies, after all, in allowing definitive distinction of any person from any other one. According to the logic of personal individuality, such a transfer of these rights allows to dispose of them purely by their owner. Every citizen is granted with fundamental rights – implemented in the latter way – as personal legal ownership in the same way, but not as an equal among equals, but as a person who is unique and incomparable with anyone else. The equality of personal rights of the holder vis-à-vis law – which is being warranted here – applies equally to the act of granting them, limiting their application, as well as to depriving of them. This also corresponds to the reality in which every citizen is granted with personal rights, granted to him exclusively with adequate gradation by age or life situation and with varying limitations, yet, he is always granted these rights in accordance with the principle of equality from the moment of birth.

Constitutional provisions on human rights should be transferred to supra state-national fundamental rights, i.e. German, French or American. Whilst assuming this personal interpretation of the fundamental rights, one also eliminates the drama of “the dilemma of human rights”, the source of which is, on the one hand, sought in the secular law and, on the other hand, when talking about their suprapositivie character, one indicates their divine origins. At the same time, one can disregard all religious metaphysics. This would also correspond better to the intentions of philosophical enlightenment which – by referring to the fundamental criteria of scientific methodology – is directed against the introduction of religious and mythological assumptions in developing theory. It is only in this way that our basic rights of freedom would actually have consistently secular character. One would still have to provide the answer on how it was possible to create cultural traditions such as the Western culture due to which, in fact, we owe the unique, individualistic figure of a legal person. Indeed, one cannot underestimate here the role of our Christian – Western tradition in the development of individually-personalistic image of man.

The fact that most countries run a policy of human rights in the name of being universally bound with legal norms of international relations, means that at present we have to deal with the global thrust of human rights-oriented system of global citizenship. In this sense, human rights gain priority over the law of nations which, in the conflict situation, enables a humanitarian intervention aimed to protect the rights of world citizens (human rights), which clearly violates the sovereignty of the nation-state[3].Słuchaj

This justification is not sufficient from the standpoint of individual communities, ethnic groups or, ultimately, individuals that make up a country’s citizens. Justification and sanctioning of such universality has to be deeper, referring to the generally applicable arguments. Universalism is understood here as the belief about the existence and binding force of basic legal norms, expressed in the existing legal norms. The belief which is being formulated in present times is that human rights constitute the source of cosmopolitan power, namely such which stands over the sovereignty of nation-state, since it authorizes for humanitarian military intervention in a specific country. In this context, the concept “cosmopolitan” is understood as “a set of fundamental values setting the standards and limits that no one – be it the representative of the government, state or civil association – is allowed to violate”.[4] The determination of these values which are common to all is difficult, but as long as not all people give equal value to human rights as such, human dignity is believed in everywhere.

Dignity constitutes the essence of human person, namely it is inextricably linked with every man, irrespective of who he is and where he lives. Dignity is thus rooted in entelecheia of ideal humanity. Human dignity constitutes ontological quality and constitutive feature of selfhood. Hence, this materially open dignity is called “the sanctity of human person” and it constitutes a value that is confirmed rather than determined by positive law. Human dignity is inherent, and therefore it represents an intrinsic, fundamental and universal value. Its source is “humanity as such”[5]. Inherent character of dignity stands for its non-transferability. It follows further that every person has it, regardless of individual characteristics, i.e. irrespective of race, religion, nationality, obesity, abilities or background, etc., and therefore it is of non-gradable and non-transferable character, because if someone is a man, he or she is the latter in the same way as any other man. One can therefore draw a conclusion which is not widely accepted in the modern world that human dignity is not only independent of the nationality, ethnicity or gender, but also of the quality of moral or physical abilities of individuals.

Universal and egalitarian concept of dignity assumes that all people deserve to be treated with respect. In other words, the concept of dignity has taken the form of demands that consist in recognizing equal status of entire cultures and eliminating inequalities of gender, origin or race. This is based on the fundamental belief that as human beings, we are also equal in this respect, even if we were different in all other respects[6]. Dignity is thus a criterion for establishing whether a given law is fair, because fair law protects the dignity and the violation of such law is inconsistent with the inherent dignity. It can be therefore stated that nobody should be regarded as morally inferior on the basis of such physical racial or other characteristics, which he or she has no influence on.

All jurisprudential traditions, despite their differences, consider the idea of a rational and free person, and thus endowed with a specific dignity which makes it distinct from the world of things, as a basis of legal order. The meaning of this sentence is perfectly captured by Boethius’ sentence “persona est rationalis naturae individua substantia”. Dignity of a human being as a person lies in his ability to intelligent, free and moral action. These positions begin to differ, though, when it comes to identifying the quintessential element of human dignity, namely whether it is his rational nature (Thomas Aquinas and neo-Thomism), his freedom (Kant and liberalism), or rather a life in harmony with morality having its source in the community (Hegel and communitarianism).

They differ substantially also in terms of how the law should serve man, to enable him the fullest development of his personality, and thus to protect his dignity. And so, with some generalization, one could say that for a liberal, it is clear that the law respects human dignity only when it ensures to the maximum his sphere of individual autonomy (freedom to decide), which is incompatible with the sphere of autonomy of other people[7]. In turn for a Thomist (also for neo-Thomist) freedom to shape one’s own life is just one of the basic human rights granted to him as a rational being. As a result, he will in certain situations permit the possibility of restricting freedom in the name of individual welfare, which for a liberal constitutes an expression of paternalism, infringing human dignity. For a communitarianist, in contrast, the most crucial issue is the protection of the good of the community in which a person can obtain positive freedom and complete dignity involving such life that conforms to the ethical standards. For a liberal, such standpoint is a manifestation of legal moralism.

It follows then that the idea of human person and its dignity constitute the indispensable element of the internal structure of the law. In this perspective, “human dignity” is the basis for the entire construction of the constitutional order, it provides the source, foundation and principle of that order. In other words, this is the basic norm (Grundnorm) of this order in the logical, ontological and hermeneutical sense. Without this idea it is difficult to comprehend the basic institutions such as legal subjectivity or legal liability, as well as the internal values of law, which include legal security or justice. The idea of human personality undoubtedly needs further developed that can be granted by the conceptions of human being and society – that remain external in relation to law. Consequently, it is generally recognized that the fundamental value that human rights are based on is the dignity of a man. Dignity reinforces the treatment of all people as free and equal, which is sufficient to formulate the fundamental and universal human rights that are based on these very values.


3. The principle of mutual recognition and the respect and equal opportunities for every Other


The need to comply with such laws would result from adopting the principle of ‘be a person and acknowledge others as persons’. The latter, nonetheless, results merely in the bans on infringement of a person’s rights because the law that is based on it will merely set the limits of will. Universality of human rights lies in the argument on human dignity, because when considering the issue of universal equality treated as a cornerstone of modernity (the world of “culture”) we assume that it is only appropriate to recognize Me – every human being as a general person in whom everybody is identical.

The desire to be recognized is thus a basic element of human life that begins with the identification and recognition of oneself and ends in dialectic which expresses the mutual relation between the need of constant struggle for recognition and its institutionalization. The fear of the refusal of recognition sometimes stands for fear of death, therefore, the intention of obtaining it or protection against its loss becomes a driving force in the life of every man in society, the main motive of his actions in every aspect of his existence.


Zapis fonetyczny

Generally speaking, the theory in question focuses on granting equal and mutual recognition in interpersonal relations to different individuals who are representatives of national, racial, or ethnic minorities, practising different religions, placed lower in the social hierarchy due to their material status. By fair and equitable relations of mutual recognition we mean such that would enable one to regard every individual – in interpersonal relations – as an equal and free interlocutor as well as prevent humiliation and discrimination and in the area of economic relations, leading to redistribution. The moment which precedes recognition and, at the same time, is included in the latter is the feeling of one’s own worth, manifested in preserving one’s own authentic identity[8]. The process of building one’s own identity is accompanied by discovering the difference between one’s own and the Other’s. What is meant by this is the taking into consideration both the negative character of the Other as well as his internalisation in the process of self-determination. In other words, the source of identity is in the Other, namely in internalised difference from the Other and difference of the Other. The sum of differences, that is adding that what differentiates me from the Other and that which differs the Other from me, constitutes the knowledge of oneself. It can be stated that mutual recognition stands for combining self-reflection and orientation at the Other, conditioning the attitude to oneself and intersubjectivity.

The characteristic feature of the recognition at issue is mutuality, whilst we do not mean here reciprocal mutuality, rather as a participant of a merely binary relation[9]. Mutuality is most vividly manifested in the relation I to the Other, as described by Lévinas, and mutuality of my obligation becomes my obligation when I become the Other for the Second Party or the Third Party. In other words, if I take care of another individual (the Second Party), I also require such care and attention for the Second Party from other individuals (the Third Party), and if such care and attention is to be full and omnipresent then I also require it from the Other (the Second and the Third Party) in relation to the Other from their viewpoint (Me). What intermingles here is a moral order of the obligation of I towards the Other, and the duty of the Other towards the Other (including Me). In other words, we pass from self-identification to dialectic relation, which can be observed on an existential level and which leads to mutuality or reciprocity. Mutual recognition stands for a certain intellectual simultaneity, intersubjective communion, or becoming one[10]. Ricoeur writes that dialectics of recognition starts from  “something” in general, going then through “someone” and “oneself”, in order to ultimately arrive at some symbol of identity obtained in mutuality (Greeks allēlōn – “one another”; “each other”)[11]. The principle of mutuality has the character of a universal norm that is binding irrespective of cultural differences. In this context we can talk about homo reciprocus.

Mutuality plays a crucial role in well-ordered society understood as a system of social cooperation, though as a universal principle it functions in all societies, even those “badly-ordered”. In a well-ordered society it has the most complete manifestation because the citizens are treated here as rational only when they perceive one another as free and equal[12]. The criterion of mutuality means that the conditions of ordering society are considered reasonable by all those who can accept them as free and equal citizens rather than as dominated and manipulated people who are placed lower in the social hierarchy.

Legal recognition stands for protection of the individual’s sphere of freedom and legally ensured participation in public process of creating will, which is hardly possible without ensuring a certain measure of social standard of life. Being awarded with individual rights means that a given individual can have socially accepted claims, that is, carry out legitimate social activity, whilst being self-assured that all other members of society have to treat him or her with respect. Rights, therefore, serve the purpose of creating self-respect since they equip the individual with a symbolic means of expression that enables this individual to show his or her social activities and leads to the situation in which he or she is universally recognised (also in a moral sense) as a valuable and talented person[13].

The duty of mutual respect reinforces the picture of us as irreproachable individuals, but it also assumes unity and particularity of human race. Lack of respect harms human dignity, resulting in well-known atrocities like slavery, rape, ethnocide etc. What follows lack of respect is designation of people between more and less human, namely those who are worthy of living and those who do not deserve it. In this context, respecting human rights stands for respecting certain requirements that are indispensable for respecting human beings. Respect means that what we think, do, or plan to do counts for others; that we are relatively important people. As a consequence, the fact that we are alive “is of importance for others” and we deserve others’ care. In this meaning, the abovementioned commandment “you shall love your neighbour as yourself” would lead to a situation in which one’s neighbours would feel the urge to notice, recognize, and confirm that they themselves represent something exceptional, irreplaceable, and permanent. In other words, “equal love for one’s neighbours and for oneself would stand for mutual recognition of one’s own uniqueness – mutual respect for the differences between us”[14]. Morality – which can have a claim to fulfil the idea of a good person who is a cooperation partner in interpersonal relations – is regarded as morality of universal and equal respect. To put it differently, a true and accurate moral attitude consists in regarding every stranger (Other) as a subject of equal rights and, consequently, this means that the duties that are imposed on us in respect to others correspond with the rights of the Other[15]. The task of modern law is to protect the relations of intersubjective recognition by means of sanctions, at the same time leading to the least severe infringement of the integrity of a single subject of law.

Infringement of mutual relation of recognition, namely, of our obligations towards the Other, harms his identity. This obligation has to be mutual, that is – as it has already been noted – the responsibility for and towards the Other must assume a complete and equal responsibility of the Other. It is unacceptable to release him from the duty of respecting the rights of the other people on account of his weaker position or his strangeness. Depriving him of the right to be responsible disqualifies his moral decisions and makes him an inadequate participant of social interactions and, at the same time, inequality becomes an element of the relation of mutual recognition. Such inequality of obligations and lack of balance in the sphere of obligation entail the danger of a patronising and top-down mode of granting privileges, which results from the belief in the superiority of one’s own knowledge and morality and which, consequently, leads to lack of respect for and humiliation of the Other.

Every individual is a member of a community, which allows him to live an authentic, real life of his own as a part of a common co-existence with others. It was Rousseau who first pointed out that in the structure of the state the fact of being dependent on others neither stands for being dependent on political authority nor entails other dependencies that condition survival or accomplishment of a certain goal, but stands rather for the urge to gain respect[16]. The notion of respect contains the moment of approval, or even social and psychosocial affirmation. It can be, therefore, seen that we approve (affirm) our contribution in creating the world (universalistic moment), in such way as we want to see it (individualistic moment). It is then of utmost importance what we do and who we are, or rather who we could be and what we could do. It has to be noted, at the same time, that equal legal status does not directly mean that we are seen and perceived (respected) by others. In the cacophony of numerous sounds coming from – at least formally – equal individuals – our voice can be completely lost and remain inaudible, which can constitute the source of our fears and feelings of injustice. Emancipation, therefore, aims at protecting uniqueness in society and this, in turn, means that the goal of the public sphere is to enhance and protect the private sphere.

According to Axel Honneth’s theory of recognition, the conception of human mental development is connected with the conception of social participation and with the change the human being undergoes. The point of departure is then a determination of one’s own identity as an intersubjective process of justifying the claim of mutual recognition of the subjects of social interactions. Francis Fukuyama, when referring to Plato, noted that thymos as “a proud side of human personality” requires from others recognition of our value and dignity[17]. Lack of recognition on any of the abovementioned three spheres, assuming the form of disrespect or contempt, arouses the feeling of shame or anger and this, in turn, can lead to the social fight for recognition. What is most severely felt and experienced is the contempt caused by the refusal to grant civic rights, frustration resulting from inability to participate in the process of shaping public will, and, ultimately, the feeling of exclusion caused by poverty and, in the effect, a lack of access to basic and fundamental material goods. To sum up, refusal or loss of recognition is every time manifested in a different form and emotional modality.

The above is the manifestation of the normative quality of Honneth’s conception since permanent deliberations of the relations of recognition anticipate a hypothetical state of a formal conception of a good life – ethicality (Sittlichkeit). Ethicality is manifested not only the ethos of a particular lifeworld, but it is also manifested as a community of intersubjective conditions, which constitute the assumption of individual self-realisation[18]. In other words, different patterns of recognition present intersubjective conditions that we have to enhance in order to describe the structures of desirable life, whilst the anticipated state is already included in the community of values, which is ensured by relations of solidarity, as a part of which social judging takes place.

Those common values are universal human values justified by human dignity. Those values ensure peaceful coexistence of different lifestyles. What we mean here is law that lays the grounds for a commonly accepted community of values, which are indispensable at the state level (relations of solidarity). There arises a problem – already pointed out in the first chapter of this dissertation – of whether this common horizon of values in an intercultural context is always given or assumed. This problem entails disturbances in intercultural dialogue, which aims at recognising the diversity of every human being in his particularity of values. What has to be, therefore, assumed is a certain intransgressible canon of values presented in the form of universal and sacred human rights. It has to be noted that the issue of intercultural dialogue touches upon the belief in the minimum of common values despite cultural diversity[19], like the ethos of freedom and equality. What seems indispensable is a minimum “ethical consensus”[20]. Without the latter, no meaningful intercultural dialogue that aims at discursive consent makes sense. On the other hand, heterogeneity of certain values makes recognition true and complete. It is, thus, crucial to recognise the Other, irrespective of the diversity of his lifestyle, beliefs, and values. In other words, recognition of the Other consists also in exceeding and widening one’s own horizon of values, which can be observed in the example of Christian societies being open for the values of Muslim culture. It should be noted that being open for the Other and exceeding limits determined by origin, gender, religion, race, or ethnicity is vividly emphasised in the society based on the idea of dignity of human beings in which recognition – in reference with the cooperative character of this society – depends exclusively on the individual’s activity. In this sense, the fight for recognition is manifested in the omnipresent language of identity, referred to by Charles Taylor.


4. Conclusion


From the perspective of intercultural dialogue it is indispensable not only to recognize the values professed by the Other, but also a specific situation in which the Other lives. The difficulties with agreement and understanding require “a merger of horizons”, as noted by Gadamer. This is possible to accomplish only by means of assuming the role of “the speaker” or “the listener”[21]. A change of dialogue perspective means engagement in symmetry, which constitutes the basis of every act of speech. What constitutes a point of departure is the conception of a generalised Other, which allows us to treat each individual as a rational being and as an addressee of such rights and duties as correspond with ours. “A generalised Other” is “an important Other”, namely, the point of reference for our activities. Mutuality of perspectives allows the creation of a common horizon of the most fundamental values, which are intersubjectively shared. The latter originates from granting all subjects equal and inborn dignity and, at the same time, recognising equal rights. Such an abstract and formal conception does not always constitute a guarantee of fair treatment of a particular other because it can lead to a danger of improper unification of differences or diversities that occur among various individuals[22]. Such danger has been pointed at by American law philosopher,  Seyla Benhabib, who is contemporarily the finest exponent of communitaristic criticism of liberalism and feministic criticism of normative ethics.

Benhabib postulates the complementing of ethical theories with the conception of “a particular Other”, which would enable us to introduce fair activities to a greater extent than when applying merely the notion of “a generalised Other”. What is meant by this is to treat every rational being as an individual with a specific history, identity, and affectively-emotional structure. In Another Cosmopolitanism, Benhabib notes that such a perspective allows for a better understanding of the needs of the other, his motives, aims, or wishes[23]. Benhabib criticises here the abstract nature of Rawls’ “veil of ignorance”, assuming that a fair behaviour towards the other can take place only when we are aware of his needs and wishes as well as of  his own history. It is primarily a dialogue that serves as a source of such cognition[24]. A Similar view was expressed by Otfried Höffe, who accurately writes that what is crucial in intercultural discourse about human rights is knowledge of history, culture, language, and values of the different communities that are the participants of this argumentative process. Due to this consideration, one can anticipate the anthropological and – to a certain extent – also communitaristic goal that every human being is placed and deeply rooted in a specific culture or in a cultural “mixture” and is conditioned by the latter[25].

Additionally, it should be noted that the guiding principle of human rights is not freedom but equality. Egalitarianism of human rights implies that in granting rights which are based on human rights and their differentiation at the statutory level, there are any separate criteria neither at natural (biological) level or at the social (artificial) level.

Such ways of living and treating others which remain in conflict with human rights do not gain moral legitimacy or the right to equal life opportunities, even if they constitute an integral part of cultural practices or of the system of religious beliefs which people identify themselves with[26]. Neutrality towards the various ideas for the good life (whether individual or collective) belongs to the canon of the principles of liberal society. However, due to the fact that the principle of neutrality gives expression to the egalitarianism of human rights, and these, in turn, provide everybody with equal entitlement to live in a democratic community governed with the principles of democracy, neutrality has ethical and utterly moral dimension, and as such it does not allow the attitude of indifference vis-à-vis the forms of culture that violate human rights. Multinational, multicultural and multi-religious society, with various histories, no longer needs the traditional instances, which assumed the burden of social coherence or political integration. It is difficult to rely here on the national community and common historical experience. Such societies do not have a common past, homogeneous mythology or political symbolism. They have, at best, common future. Nevertheless, in order to ensure the latter, they need a common foundation: the building blocks of which may be only the universality of human rights. This common foundation must be protected and such protection is provided by a policy of equal opportunities, which is in favour of individualism, self-realization, responsibility for oneself and equal for equal right to participate in social life.

Rights that follow the abovementioned pattern, constitute the basis of inclusive community of constructivist character. Legal compulsion is treated here as procedural rationality, and an appropriate communicative arrangement which should be used for the lawgiver’s rational political will-formation and for the application of law[27]. Let us recall that such a community is comprised of various organic communities, however, it does not allow for the abovementioned lack of moral sense. At the same time, a normative model of such a community is based on the conception of an individual as a socialised advocate of the set of social roles, of the arrangement of roles internalised in the socialisation process, which is reproduced by the latter in undertaken interactions. In this perspective, an internalised, namely well-shaped social personality, ossifies quite autonomic symbols and normative models, which then leads to their externalisation. Such a community does not express a common morality, though it has as its basis the belief that a certain minimum of rules which protect human life, property, and compliance with obligations has to be accepted[28]. this means that in the spirit of communitaristic communication it demands particular values and forms of life, preserving the ability to judge others.

Such a community is – to the greatest extent possible – of an inclusive character, which constitutes a normative condition of the latter. It cannot be then driven by prejudices towards other communities (particularly religious, ethnic, or cultural ones), it is not created by means of hatred towards something which is strange and external, it is not secluded from different, strange subjects; just the opposite, this community induces the assumption that the principles that are binding within it and to become their members by means of opening to the expectations of modern world, which are connected with multicultural problems or plurality of values. This community does not negate a multiplicity of lifestyles, insofar as they are not against the principle of discourse, human rights, or the principle of mutual recognition. Such a community assumes the principle of mutuality and reliable, fair procedures, equality of its members, and cooperative participation in its activities. These principles result from the assumption that a constructivist community is a discursive community in which the power of the argumentation – namely, its significance and the extent to which it is accepted – is a “predominant factor”, rather than the argument in the form of power. This community is, therefore, open to others, as long as they are willing to respect the principles of a discourse.

The idea of constructiveness treats the argument of pluralism as a point of departure for reflective and critical deliberation on the basis of society, both from the perspective of particularistic as well as communitaristic and multicommunitaristic thought[29]. At the same time, constructivism makes it possible to enhance the elements that constitute the basis of objective significance of certain principles and values. Referring to the idea of communicative community allows the combination of the conception of obligation as an external compulsion, according to which moral demand requires support and social external reinforcement (morality will be then perceived as a socionomic, heteronomic, and external creation in respect to a given person[30]) with Kant’s conception, which treats moral obligation as “self-compulsion and self-obligation”.

What functions here as institutional protection is discursively determined law based on the consensus of all cooperating citizens who believe in Habermas’ “constitutional patriotism” manifesting solidarity of citizens[31]. The constitution has to guarantee equal coexistence of different ethnic groups and their cultural forms of life. Furthermore, the constitution has to take into account the structures of communication that account on the fact that the identity of every individual is combined with collective identities and can be established only in a certain cultural net[32]. “Constitutional patriotism”, despite the fact that it supports the significance of liberal democracy, must promote the biggest kindliness towards diversity, it has to ensure the most tolerant and flexible political system. “Constitutional patriotism” constitutes a certain common minimum, which unifies groups and organic communities driven by diverse lifestyles, at the same time ensuring the protections of the rights of minorities and discriminated groups.

It can be pointed out, following Neil MacCormick, that the legal order results from  background morality of those whose principles are embodied in political institutions. The very background morality, in turn, is morality of the political community, whose rights are already recognized on the basis of interpretation of the law. What must underlie this common morality is the respect for human rights, manifested in respecting everyone, even the most “other” human being and granting equal opportunities for all people in their pursuit of individual goals. This postulate is gaining particular value in the conditions of a complex, multicultural social system in which we happen to live today.


       Bartosz Wojciechowski is an Associate Professor in the Faculty of Law, University of Łódź, Poland. He has published extensively on the philosophy of law, legal theory, and EC Law. He is a holder of the Hölderlin Society Scholarship, the Advisor of the International Journal for the Semiotics of Law, and the President of the Polish Section of International Association for Philosophy of Law and Social Philosophy (IVR). He is also a judge in the District Administrative Court (


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  9. Habermas J. [in:] G. Borradori, Philosophy in a Time of Terror. Dialogues with Jürgen Habermas and Jacques Derrida, Illinois 2003.
  10. Habermas J., Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, Cambridge Mass. 1998.
  11. Hart H.L.A., Law, Liberty and Morality, London 1964.
  12. Held D., Die Rückkehr der Politik [in:] Was wird aus der Demokratie?, T. Assheuer, W.A. Berger (eds.), Opladen 2000.
  13. Honneth A., Kampf um Anerkennung. Zur moralischen Grammatik sozialer Kämpfe, Frankfurt am Main 1994.
  14. Höffe O., Vernunft und Recht. Bausteine zu einem interkulturellen Rechtsdiskurs, Frankfurt am Main 1996.
  15. Kant I., The Metaphysics of Morals, Cambridge 1996.
  16. Kant I., The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, Edinburgh 1887.
  17. Kersting W., Równość szans a samorealizacja [Equality of Opportunities and Self-Realisation] [in:] Etyka publiczna [Public Ethics], ed. E. Nowak, Poznań 2010, in print.
  18. Koenig M., P. de Guchteneire, Political Governance and Cultural Diversity [in:] Democracy and human rights in multicultural societies, M. Koenig, P. de Guchteneire (eds.), Hampshire-Burlington 2007.
  19. Krämer H., Integrative Ethik, Frankfurt am Main 1995.
  20. MacCormick N., Questioning Sovereignty: Law, State, and Practical Reason, Oxford 2001.
  21. Rawls J., Political Liberalism, New York 1996.
  22. Ricoeur P., The Course  of Recognition, Cambridge 2005.
  23. Roberts P., Political Constructivism, London – New York 2007.
  24. Rousseau J.J., Discourse on the Origin of Inequality, Indianapolis 1992.
  25. Taylor Ch., The Politics of Recognition [in:] Multiculturalism: Examining the Politics of Recognition, A. Gutmann (ed.), Princeton – New Jersey 1994.
  26. Tugendhat E., Vorlesungen über Ethik, Frankfurt am Main 2001.
  27. Wolf S., Comment [in:] Multiculturalism. Examining the Politics of Recognition, A. Gutman (ed.), Princeton 1994.



[1] This causes the contestation of homogenous assumptions of classical nation – state model. The requirements of assimilation or differentiating exclusion are nowadays increasingly seen as devoid of legitimacy, both at the national level, as well as internationally. The standard practiced in many countries (e.g. in Australia, Canada and Sweden) are pluralistic patterns, which are exemplified the anti-discrimination legislation, in affirmative programs or special protection of minorities. M. Koenig, P. de Guchteneire, Political Governance and Cultural Diversity [in:] Democracy and human rights in multicultural societies, M. Koenig, P. de Guchteneire (eds.), Hampshire-Burlington 2007, pp. 4 -5.

[2] Z. Bauman, Ponowoczesność jako źródło cierpień (Post-Modernity as a Source of Suffering), Warszawa 2000, pp. 59 – 68.

[3] U. Beck, Macht und Gegenmacht im globalen Zeitalter. Neue weltpolitische Ökonomie, Frankfurt am Main 2002.

[4] D. Held, Die Rückkehr der Politik [in:] Was wird aus der Demokratie?, T. Assheuer, W.A. Berger (eds.), Opladen 2000, p. 5.

[5] I. Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, Edinburgh 1887, p. 50. It is worth noting that such understanding of dignity is also presented in the Koran in Sura 17.70.

[6] Compare: J. Finnis, The Priority of Persons [in:] Oxford Essays in Jurisprudence: Forth Series, J. Horder (ed.), Oxford 2001, p. 1.

[7] It should be kept in mind that liberals themselves argue as to whether providing autonomy it is sufficient to ensure freedom from direct compulsion, or should one also ensure equal opportunities or even material resources.

[8] Ch. Taylor, The Politics of Recognition [in:] Multiculturalism: Examining the Politics of Recognition, A. Gutmann (ed.), Princeton – New Jersey 1994, pp. 28 – 44; also P. Ricoeur, The Course  of Recognition, Cambridge 2005, pp. 69 – 149.

[9] Zygmunt Bauman writes about such mutuality, taking into consideration the difference between an agreement and morality. This difference consists in the fact, as noted by this recognised sociologist, that meeting the obligation which results from an agreement depends on meeting the obligation by the partner, and in the case of morality such conditional mutuality is excluded. See: Z. Bauman, Etyka ponowoczesna, Warszawa 1996 (Postmodern Ethics, Cambridge 1993),  pp. 76 – 82.

[10] P. Ricoeur, The Course of Recognition, op. cit., p. 151ff.

[11] Ibidem, p. 250.

[12] J. Rawls, Political Liberalism, New York 1996, p. 15ff.

[13] A. Honneth, Kampf um Anerkennung. Zur moralischen Grammatik sozialer Kämpfe, Frankfurt am Main 1994, p. 194.

[14] Z. Bauman, Szanse etyki w zglobalizowanym świecie (Chances of Ethics in Global World), Kraków 2007, p. 12.

[15] E. Tugendhat, Vorlesungen über Ethik, Frankfurt am Main 2001, p. 360.

[16] J.J. Rousseau, Discourse on the Origin of Inequality, Indianapolis 1992.

[17] F. Fukuyama, Our Posthuman Future: Consequences of the Biotechnology Revolution,  New York 2003, p. 42.

[18] A. Honneth, Kampf um Anerkennung, op. cit., p. 275ff.

[19] M. Becka, Anerkennung im Kontext interkultureller Philosophie, Frankfurt am Main – London 2005, p. 154.

[20] This minimum consensus often comes down to the so-called golden rule formulated by Confucius “What you do not want done to yourself, do not do to the others”. This principle can be also found in Judaism: “That which is hateful to you, do not do to your fellow”, in Christianity: “Do to no one what you yourself dislike” or “And as you would that men should do to you, do you also to them likewise” (Luke, 3:31), in wisdom of Africa: “Just as pain is not agreeable to you, it is so with others”. This principle is related to Kant’s categorical imperative, according to which “I should not act differently than to aim at my maxim becoming a universal law”. I. Kant, The Metaphysics of Morals, Cambridge 1996,  p. 190.

[21] J. Habermas [in:] G. Borradori, Philosophy in a Time of Terror. Dialogues with Jürgen Habermas and Jacques Derrida, Illinois 2003.

[22] M. Becka, Anerkennung im Kontext …, op. cit., p. 155.

[23] S. Benhabib, Selbst im Kontext, Frankfurt am Main 1995, p. 176.

[24] Ibidem, p. 180.

[25] O. Höffe, Vernunft und Recht. Bausteine zu einem interkulturellen Rechtsdiskurs, Frankfurt am Main 1996, p. 60ff.

[26] W. Kersting, ‘Równość szans a samorealizacja’ [‘Equality of Opportunities and Self-Realisation’] [in:] Etyka publiczna [Public Ethics], ed. E. Nowak, Poznań 2010, in print.

[27] J. Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, Cambridge Mass. 1998,  p. 453.

[28] H.L.A. Hart, Law, Liberty and Morality, London 1964, p. 70.

[29] P. Roberts, Political Constructivism, London – New York 2007, p. 4, 10ff.

[30] H. Krämer, Integrative Ethik, Frankfurt am Main 1995, p. 42f. Krämer questions the possibility of self-compulsion and self-obligation.

[31] Neil MacCormick expresses a similar view: “We need not overstress the requirements of culture or common ethnicity or language as essentially constitutive of a demos in the sense required for the concept of democratic government. I should like to suggest the possibility of our conceiving such a thing as a ‘civic’ demos, that is, one identified by the relationship of individuals to common institutions of a civic rather than an ethnic or ethnic-cultural kind. People can have a civic identity constituted perhaps by what Habermas has dubbed ‘constitutional patriotism’, Verfassungspatriotismus. This is a common loyalty to a common constitutional order, regardless of differences of language, ethnic background, and the rest. People are sometimes willing to sink differences of culture, of language, of heritage, of history for the sake of their common participation in a lawfully constituted polity of commonwealth.” N. MacCormick, Questioning Sovereignty: Law, State, and Practical Reason, Oxford 2001, p. 144.

[32] In this aspect, Habermas considers the issue of “reversed discrimination”. He points out that some threatened primeval cultures have a moral right to be supported. It does not mean, however, that every culture has “equal value” in the sense that its contribution in creating world civilisation is equal and that it has something important for people. Ibidem, p. 258ff. A similar view was also expressed by S. Wolf, Comment [in:] Multiculturalism. Examining the Politics of Recognition, A. Gutman (ed.), Princeton 1994, p. 84. The task of the state – by means of law – is then only to enable cultural reproduction of lifeworlds. In other words, in multicultural societies, equal coexistence of different lifestyles gives an opportunity to every person, to every member of a given organic community, to preserve its traditions but it also enables its self-critical rejection. There is no room for fundamentalist standpoints which forbid the abandoning of one’s own culture or for fanatically abiding by certain traditional dogmas. Habermas points out that such standpoints lack the awareness of fallibility of their claims and respect in case of “burdens of reason” – as described by Rawls. Fundamentalism does not allow for a reflective look at strange and diverse lifestyles that share the same universe of discourse. We should not confuse fundamentalism with dogmatism and orthodoxy.


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