A new era of responsibility seems poised to overshadow the human rights discourse in international law. On the one hand, introducing the perspective of responsibility must result in an added value when compared to the former predominant approach. In fact, some justifications are inconsistent, and the most radical interpretations jeopardize the very core of the modern theory of social and legal order—namely, the centrality of the individual. On the other hand, the incorporation of responsibility into the discourse on rights may help to overcome some of its most evident shortcomings. Nonetheless, despite some positive outcomes which the new attention on responsibility may bring about, the concept is flawed by at least two major deficits. First, the reference to responsibility tends to presuppose the possibility of taking the position of a privileged observer. This implicitly rejects the idea that the moral and legal community is essentially constituted by human individuals who freely recognize each other as equal members and rightful holders of entitlements. The second deficit is instead related to the intrinsically particularistic character of responsibility, which makes it rather difficult to apply to the field of international law and relations. An analysis shows that we are confronted with a conflict: while responsibility can, in fact, be assumed to bring an added value, the costs for this are exceedingly high, because they amount to no less than the abandonment of the core concept of modern moral and political philosophy. By recurring to the communicative paradigm of rationality and social order, a possible solution is outlined according to which responsibility is reinterpreted in the sense of a time, space, composition, and content-related expansion of mutual recognition.

This article argues that a distinction between the public and the private is both desirable and feasible in times of global governance, at least as a regulative idea. The confusion surrounding this distinction originates in different understandings of the relationship between state and society in liberalism and republicanism. Discourse theory with its idea of the co-origin of democracy and human rights reconceptualises the relationship between state and society in a way that does justice to both liberal and republican approaches. Accordingly, the public/private distinction is crucial for the realisation of democracy and freedom. Classifying an act as public or private determines what kind of legitimacy it requires. The article then recalibrates discourse theory to face the challenges of global governance, shifting its focus from hard law to a broader notion of authority, and from the state to a pluralistic, cosmopolitan world order composed of multiple overlapping communities. A community is characterised by communicative action and a common identity. In such a setting, public authority is the authority exercised on behalf of a community in relation to its members. In relation to non-members, the same act may constitute an exercise of private authority. It is a different question whether such authority is legitimate. Some examples illustrate the approach.

This paper analyses Jürgen Habermas’s claim that democracy and human rights are co-original and its implications for his international theory. A central argument in his theory, the co-originality thesis suggests that human rights and democracy are not only both fundamental and mutually supportive, but also ‘equi-primordial’ and internally related. Reconstructing Habermas’s argument as it has developed over two decades, I argue that his account of constitutional democracy has difficulties accounting for the enmeshment of constitutional and international human rights, while his three-tiered model of global governance, in the absence of democratic legitimation, amounts to a downgrade of the currently institutionalized practice of international human rights. Instead, I suggest that shifting the focus from ideal global institutions to actual processes of domestic contestation, through which groups appropriate and apply international legal norms in order to claim their rights, provides a plausible account of the practice of international human rights consistent with the co-originality thesis.

This article surveys contemporary approaches to international soft law, such as various types of legal positivism, legal realism, critical legal studies, and global administrative law. It scrutinizes to what extent the concept of law endorsed by each of these approaches is able to tackle two challenges caused by the spread of soft law as a means of governance: (1) the fact that international soft law is today often the functional equivalent of international treaties and (2) the contestations of the legitimacy of soft law. It concludes that discursive approaches that stress the public character of international law appear very promising, because they link broad concepts of law with considerations of legitimacy. However, since international institutions today exercise public authority not only through soft law or hard law, but also through non-legal instruments like information, the article argues that one ultimately needs to conceptually dissociate the concept of international law from the concept of public authority.