INTRODUCTION 9. Introduction

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1 INTRODUCTION 9 Introduction Justification of contemporarily controversial thesis on the intercultural nature of criminal law and legal discourse is a major challenge for modern democratic states. 1 This subject has become very topical in the context of the entitlement of Western civilizations to judge terrorist acts committed by the representatives of Muslim culture, or the problem of so-called crime without frontiers. 2 This issue concerns the definition of universality and proper justification for human rights, the relationship of criminal law and morality in terms of globalization of contemporary social relations, and the interculturality of legal dis- 1 I would like to note at this point that I use the term intercultural criminal law having in mind that it introduces semantic doubts. In this way, however, I refer to the terminology that is already applied in English and German literature. See e.g.: O. Höffe, Gibt es ein interkulturelles Strafrecht? Ein philosophischer Versuch, Frankfurt am Main: Suhrkamp Verlag, 1999, p. 67ff.; D. Ivison, Punishment in Intercultural Context: Whose Norms? Which Values? in: Punishment and Legal Theory, ed. by M. Matravers, Oxford: Hart Publishing, 1999, pp ; D. Garland, The Culture of Control. Crime and Social Order in Contemporary Society, Chicago: The University of Chicago Press, 2001, Chapter 4 ( Social Change and Social Order in Late Modernity ); G. Drosterij, M. Hildebrandt, E.A. Huppes-Cluysenaer, The Possibility of Intercultural Law, Nederlands Tijdschrift voor Rechtsfilosofie & Rechtstheorie 2006, vol. 35, no. 3, pp When applying the term interculturalism to criminal law, the latter gains a universal character, embracing in its scope respective norms and their justifications that are acceptable in any culture. I intentionally give up the term intercultural law though this term seems to raise considerably less doubt because even by means of the very name I want to differentiate between intercultural criminal law and international criminal law. The literature on the subject sometimes uses the term transnational criminal law, the sphere of which is similar to the scope of international criminal law. Cf. N. Boister, Transnational Criminal Law, European Journal of International Law 2003, no. 5, pp Cf. M. Glenny, McMafia: Crime without Frontiers, London: Bodley Head,

2 INTRODUCTION 10 course. The arising question is therefore difficult both from a legal perspective and, above all, from a philosophical and ethical one, namely whether Western societies have the power to judge and subject to sanctions according to their judgment representatives of other, distant, and different cultures? And if so what is this authority based on? The answer to this question would have a significant practical value, since a negative outcome of this discussion calls into question the jurisdiction of international criminal tribunals, which would nowadays seem very disturbing. On the one hand, this issue is particularly important for the crisis of human rights 3 and, on the other hand, for the expansiveness of cultural and moral relativism. One consequence of social and ideological changes is the phenomenon of multiculturalism, which in the area of Western culture in particular has resulted in the confrontation of ethnic and cultural minorities as well as marginalized social groups with the dominant tradition established by the canons. The study of this issue takes place in the light of contemporary crises and transformations of philosophical, ethical, and ideological canons in the overall context of Western civilization. The issue of intercultural criminal law relates to universalism relativism dispute in the area of human rights. This par excellence philosophically legal debate is of a fundamental character, and the manner of its resolution affects not only the understanding of the essence of human rights, but also their practical implementation. What is therefore particularly interesting is the answer to the question of whether there exists a perfect criminal law, generally applicable regardless of the differences in skin colour, in religion or nationality. It must have as its basis a set of universal human rights grounded in human dignity, and it must meet the requirements of civil society, while providing the victims of human rights violations with confidence in the correctness and effectiveness of the rules gov- 3 This crisis affects their respect as well as the justification and the development of the theories concerning them. In the latter case we can distinguish two categories of human rights criticism. The first consists in rejecting the idea that human nature has certain rights. The second, on the other hand, amounts to a criticism of the current model (catalogue) of human rights ideology, assuming as natural other entitlements than those which have been officially accepted. 10

3 INTRODUCTION 11 erning the modern world. Law, and human rights in particular, are seen as a leitmotif of human life in social community. The latter seems to be prejudged by the fact that law manifests a certain universe of requirements concerning the basic interpretation patterns that shape mutual understanding and defining of the duties that follow from the latter. The concept of such an approach to criminal law corresponds, in some way, to the subject of international criminal law and criminal law of nations. It is therefore indispensable to undertake an appropriate distinction, to organize the terminology, and to clarify the relations between such differentiated spheres of criminal law. The fact of accepting such conditions leads to the approval of the claim to the interculturally binding nature of criminal law a characteristic of global legal order, or rather for the vision of world society. 4 A new cosmopolitan critical theory blurs traditional boundaries between domestic and foreign policy. Such factors as global risks or standards, supranational actors, the quality of life in other parts of the world, and human rights violations in Africa or the Middle East which have been so far considered as factors of external character have become internal variables, which must be reflected in domestic discussion, in national and international politics, and in the activities of NGOs. 5 Cosmopolitan sensibility and ethicality do not automatically result from the unification of the world with the most diverse networks, but from the fact that one s own life and the lives of others can no longer be separated from each other in an appreciable manner. What therefore seems necessary is to develop a global criminal justice system that will prevent the treatment of justice in extremely relativistic ways and making it conditional on national differences of views; on the contrary, it will provide an answer to and support for global processes of developing global civil society. In this 4 S. Benhabib, On the Philosophical Foundation of Cosmopolitan Norms, in: Law and Legal Cultures in the 21 st Century. Diversity and Unity, ed. by T. Gizbert- Studnicki, J. Stelmach, Warszawa: Wolters Kluwer, 2007, pp ; U. Beck, Macht und Gegenmacht im globalen Zeitalter. Neue weltpolitische Ökonomie, Frankfurt am Main: Suhrkamp Verlag, 2002, Chapter V.5. 5 M. Kaldor, Global Civil Society: An Answer to War, London: Sage, 2004, p. 38ff.; U. Beck, Weltrisikogesellschaft. Die globalen Gefährdungen vom Terror bis Klimawandel, Frankfurt am Main: Suhrkamp Verlag, 2007, pp

4 INTRODUCTION 12 context, Albin Eser aptly notes that the increasing globalization of social life should be understood as a call for a reorientation of criminal law. It should be heading in a human-oriented direction, where a human being should be understood as an individual, a member of the community and a link in a generation chain. 6 I attempt to prove the need for intercultural criminal law by developing the idea of inclusive constructivist community. I derive inspiration in this area from John Rawls and Jürgen Habermas conceptions. My project of constructivist community assumes the conception of a rational and reasonable individual as a socialized carrier of a set of social roles, a roles system internalised in the socialisation process, which the individual represents in ongoing interactions. What is of the utmost importance from the perspective of my deliberations is that constructivism takes as its starting point the thesis of pluralism. It therefore takes into account different preferences as to values, views on life, religion, or sexuality. At the same time it justifies the possibility of critical and reflective extraction of some common principles and rules of conduct that constitute the basis of this inclusive community, inclusive community being a result of intersubjectively achieved consensus rather than of the necessities which go beyond human will. In view of multiculturalism it is crucial to note that constructivist community is of an inclusive character in the sense that its boundaries and participation in it are subject to a negotiated agreement. Inclusive community is not oriented against organic communities (cultural, religious, ethnic, etc., which are rather of exclusive character) and, therefore, it is not constituted by hatred against that what is alien and external in relation to it. What is more, it is by no means closed to others, the strangers. On the contrary, it encourages the adoption of its binding rules and the participation of its active, socially cooperating members. Constructivist community also takes into account the fact that emancipation movements, which occur in a multicultural 6 Albin Eser, Menschengerechte Strafjustiz im Zeitalter von Europäisierung und Globalisierung, in: Zasady procesu karnego wobec wyzwań współczesności. Księga ku czci profesora Stanisława Waltosia [Criminal Procedure Rules in the Light of Modern Challenges. A Book in Honour of Professor Stanisław Waltoś], ed. by J. Czapska, A. Gaberle, A. Światłowski, A. Zoll, Warszawa: Wydawnictwo Prawnicze PWN, 2000, p. 169ff. 12

5 INTRODUCTION 13 society, do not form a homogeneous phenomenon. Inclusion, therefore, means that community is open to the involvement of citizens who belong to different traditions, but with no intention to absorb these traditions by means of uniformity to a single national community. 7 The institution of constructivist community allows connecting of different levels, which in my conception serves the justification of punishment. The latter, being a community of communication, is based on the universality of the principles and rules of discourse and, accordingly, on the universality and non-transferability of human rights grounded on human dignity and the need to respect the requirements of democracy. Another factor that justifies the establishment of this community is the assumption of a universal character of the mutual recognition principle, which forces the treatment of all people as equal and free individuals. The justification of my thesis on interculturalism of criminal law will be carried out by a reference to Fichte s-hegel s concept of recognition, updated to current conditions by Axel Honneth, to Mead s- Habermas concept of convertibility of attitudes, and to the retributive theory of understanding punishment as a restoration of social imbalance. Only the presentation of these three perspectives allows for a holistic approach of contemporary philosophy of punishment. It should be emphasized that the choice of these very conceptions was dictated by the fact that they all take into account the facts of pluralism, multiculturalism, and the need to respect the rights of Others in the context of intersubjective interactions and discursively shaped law. Moreover, the abovementioned concepts relate to one another by a reference to the principle of mutual recognition, similar to Aristotle s idea of legal friendship. In the field of philosophy of punishment, the abovementioned theories take into consideration the argument of law, which was already emphasised by Immanuel Kant as well as the argument of recognition, especially noted by George W.F. Hegel and by George H. Mead, Peter F. Strawson, and Jürgen Habermas. 7 J. Habermas, Jürgen Habermas und Gerhard Schröder über die Einbeziehung des Anderen. Reihe; Kultur in der Diskussion. Band 5, in: Philosophie und Politik III, ed. by J. Nida-Rümelin, W. Thierse, Essen: Klartext, 1998, p