Abstract
This paper centres on the question as to whether human rights can be reconciled with patriotism. It lays out the more conventional arguments which perceive them as incommensurable concepts. A central aspect of this incommensurability relates to the close historical tie between patriotism and the state. One further dimension of this argument is then articulated, namely, the contention that patriotism is an explicitly political concept. The implicit antagonism between, on the one hand, the state, politics and patriotism, and, on the other hand, human rights, is illustrated via the work of Carl Schmitt. However, in the last few decades there has been a resurgence of interest in patriotism and an attempt to formulate a more moderate form, which tries to reconcile itself with universal ethical themes. Some of these arguments are briefly summarised; the discussion then focuses on Jürgen Habermas’s understanding of constitutional patriotism. This is seen to provide an effective response to Schmitt’s arguments. There are weaknesses in the constitutional patriotic argument which relate to its limited understanding of both the state and politics. This leads me to formulate my own argument for “unpatriotic patriotism.” The discussion then examines and responds to certain potential criticisms of this argument.
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Notes
This is of course almost a caricature of the situation. One could still suggest that although patriotism is morally prior, that does not entail that one could not still sympathize and indeed support human rights conventions. One could even shift or change one’s sympathies and adapt to human rights. However, if patriotism is a prior virtue, then there is usually a point where one must assert that priority. Patriotic beliefs (unless they internally embody human rights concerns) set some limits.
From the late medieval period, Roman imperial thought was utilized by secularizing territorial states (initially city-states) in Europe. The “abstract legal and political Rome” (communis patria) was a movable feast. It could apply equally to Venice, Florence, Paris or London. Princes became, in effect, supreme law-makers (sovereigns) and emperors in their own realms. The objects of patriotism thus became the new territorial states with their fatherly princes..
Quotes in this paragraph from Schmitt (1996, pp. 28–29).
Schmitt comments, in similar terms, on the League of Nations: Such a body could exist (as a league of states) as long as it had an enemy; when it no longer had one, the league became redundant.
Schmitt (1996, p. 54) later argues that “war is condemned but executions, sanctions, punitive expeditions, pacification, protection of treaties, international police, and measures to assure peace remain. The adversary is no longer called an enemy but a disturber of the peace” (p. 79).
The distinction between strong and moderate patriotism has parallels with the distinction, made within communitarian theory, between strong and moderate senses of community.
However, Taylor also admits that, in the nineteenth and twentieth centuries, the vocabularies of nationalism and patriotism became confusingly intermeshed.
As Attracta Ingram comments, citizens, in this scenario, “are thought of as bound to each other by subscription to these shared values rather by the more traditional pre-political ties that nation-states have drawn on as sources of unity … So it has to be an identity in which membership is constituted by recognition of a common system of authority erected and maintained by a constitution. Unity and legitimacy come from the constitution and the formal tie that holds people together is their continuing voluntary recognition of the constitution, their constitutional patriotism” (Ingram 1996, p. 2).
Quotes from Habermas (2001, p. 126).
“The human rights that guarantee everyone a comprehensive legal protection and an opportunity to pursue her private life-plans clearly have an intrinsic value. They are not reducible to their instrumental value for democratic will formation” (Habermas 2001, p. 117).
This is not a foundational structure in the sense of a “first philosophy.” It cannot therefore assign the various positions of the sciences, as an overall adjudicator. Philosophy is more fallibilist, interacting with the various natural and human sciences. However, immanent within all communicative action there is a type of interaction that is orientated to reaching understanding. Habermas keeps this distinct from what he calls “nonsocial instrumental action” and “social strategic action.” This fundamental interactive discourse consists of the type of elucidation and argumentation in which we suspend immediate action and in which participants, as Habermas puts it, seek to redeem the validity of claims which have been challenged. Habermas wants essentially to redeem the universalistic conditions of possible understanding. Thus, implicit within the pluralism of forms of communication we can detect a general but stubborn claim to reason that points to the possibility of the argumentative emancipation through mutual dialogue. There is, in other words, an immanent universal and foundational telos in our communicative actions that is orientated to mutual understanding. It transcends all systematically distorting communication, and therefore can orientate our collective political practices..
Think, for example, of German citizenship law. The German tradition of legal citizenship over the twentieth century was largely jus sanguinis—that is, based on blood and descent—dating back to a 1913 citizenship law. With the late 1990s election of the Social Democratic Party (SPD) led government in Germany, there were determined efforts by the administration of Gerhard Schröder, with the support of the German Greens, to reform the 1913 citizenship law. Habermas’s, and others, interest in the concept of constitutional patriotism formed a background theme here. An optimistic reforming parliamentary bill was put forward to change the 1913 law. It aimed to undermine the “blood and descent theory” and to cut the length of residency required before citizenship was granted. The proposed law also formulated a conception of “dual nationality.” However, the Bill ran into obdurate and determined opposition from the powerful Christian Democratic Union and Bavarian-based Christian Social Union parties. The widespread fear was expressed that Germany would be flooded with foreign workers. The issue then became a focus for certain state elections, such as Hesse, causing SPD losses in the second chamber of the German parliament, the Bundesrat. Consequently, the whole process of citizenship law reform faltered and was watered down. Children of foreigners would be allowed to hold dual citizenship, if one parent had worked in Germany for over eight years. The children of foreigners must then decide at 18 (within 5 years), which citizenship they wish to hold. Although these changes alone signal a historic shift, the blood and descent theory obviously still holds very strongly in the German legal tradition.
However many have wrongly tried—and still try—to subsume politics under morality, philosophy, law or religion.
In fact, it is a subtle matrix of relations between positive law, constitutionality and human rights.
Thus, for example, one might associate patriotism with a culture, specific attitudes, a religion or moral beliefs.
In fact there is something odd in the whole notion of an original meaning for Derrida.
Quoted in Canovan (1994, p. 213).
Arendt quoted inYoung-Bruehl (1982, p. 257).
See Beiner (2000, 54–55).
Canovan (2000, p. 46).
I would also want to argue that international law practice too, in large part, embodies constitutive features of what is expected from civil statehood and thus politics. In this sense, both human rights and international law should be viewed politically. As Martti Koskenniemi argues, “our inherited ideal of a World Order based on the Rule of Law thinly hides from sight the fact that social conflict must still be solved by political means and that even though there may exist a common legal rhetoric among international lawyers, that rhetoric must, for reasons internal to the ideal itself, rely on essentially contested—political—principles to justify outcomes to international disputes” (Koskenniemi 1990, p. 7).
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Vincent, A. Patriotism and Human Rights: An Argument for Unpatriotic Patriotism. J Ethics 13, 347–364 (2009). https://doi.org/10.1007/s10892-009-9066-y
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DOI: https://doi.org/10.1007/s10892-009-9066-y