1. Orthodox and Political Conceptions
Over the past decade or so, after a long period of comparative neglect, philosophers have increasingly turned their attention to human rights. Such rights are generally construed in normative rather than positive terms. They are not the standards actually enshrined in what we call the “human rights” texts and practices of law and politics, but independent moral standards that such texts and practices are characteristically intended to recognize and implement. Of course, when philosophers attend to any subject matter, it is usually in the mode of disagreement. But human rights provoke disagreements well beyond the philosophy seminar room, and these are not confined to the familiar legalpolitical disputes about their identification, implications or enforcement. There are also deep divisions among historians regarding the origins of our concept of a human right. In a recent book, Samuel Moyn contends that the concept only emerged as a significant historical force in the 1970s, some decades after the Universal Declaration of Human Rights of 1948 (UDHR) (Moyn 2010). At the other extreme, Brian Tierney interprets our concept of human rights as strongly continuous with the natural rights tradition—a tradition that, he contends, originates in the humanistic jurisprudence of the twelfth century (Tierney 1997).
Other historians reject Tierney’s thesis, associating the birth of natural rights with late medieval or early modern thinkers such as Ockham, Grotius and Locke. Nevertheless, the orthodox view about the concept of a human right, at least among philosophers, has long been that it is broadly equivalent to that of a natural right. First, they are both moral rights possessed by all human beings simply in virtue of their humanity. Moral rights are here to be understood primarily as claim rights, associated with duties on others that are owed to the right-holder. Duties, in turn, are moral reasons for action that apply to their bearers independently of how the latter are motivated and which enjoy a special force or weight as against some countervailing reasons. Their violation, without justification or excuse, properly renders one subject to blame and sometimes punishment. Human rights are distinguished from other moral rights because we possess them not due to any personal achievement, social status or transaction, nor because they are conferred upon us by a positive legal order, but simply in virtue of our standing as human beings. And the second dimension along which human rights resemble natural rights is that we discover these rights by the use of ordinary moral reasoning, or “natural reason” in a venerable locution, rather than through “artificial” (e.g., legal) reasoning or divine revelation (exponents of the orthodox view include O’Neill 1996;Griffin 2008; Wolterstorff 2008;Finnis 2011. See also Tasioulas 2011).
On this orthodox conception, human rights are universal moral rights. This is perfectly compatible with their having important political implications, e.g., for the legitimacy of states or the permissibility of international intervention. Indeed, it may even be the case that certain of these political implications are necessary truths. Given the nature of states and the nature of human rights, for example, it may be a necessary truth that states should respect human rights. However, the orthodox conception does not explain the essential nature of human rights—what one needs to grasp in order to have an adequate mastery of the concept of a human right—in terms of any such political role, beyond perhaps the rather minimalist idea that human rights are the subset of universal moral rights that may be, in principle, socially (or, more substantively, legally) enforced.
That human rights are universal moral rights does not entail that they are possessed by all human beings throughout human history. Instead, a proponent of the orthodox view may coherently refer to the “human rights” possessed only by all human beings within a certain historical period, such as that of modernity (Tasioulas 2007). This is one way to read the UDHR, which includes many rights (e.g., the rights to nationality, a fair trial, an adequate standard of living) that cannot easily be ascribed to humans, such as Stone Age cave-dwellers, who inhabited epochs in which the fulfillment of the counterpart duties was unfeasible given limitations in available institutional capacities, material resources or technological capabilities. To this extent, human rights are not to be identified with “natural rights,” if this means moral rights that are meaningfully possessed even in a state of nature (Beitz 2009, ch. III). But this is just one historically formative, but hardly canonical, strand within the natural rights tradition (Tierney 1997: 70).
What other reasons might historians such as Moyn have for treating human rights as discontinuous with natural rights? One reason is that they regard human rights as norms that justify subjecting states to certain constraints with an international institutional dimension, an idea whose prevalence they take to be of recent vintage. This sort of rationale has been recently elaborated by philosophers, mostly influenced by John Rawls, who advance what might be called a political conception of human rights. Its adherents claim that the first limb of the orthodox conception, according to which human rights are universal moral rights, ignores the political functions that are integral to the concept of a human right and which distinguish such rights from natural rights. Different advocates of the political conception specify these political functions in diverse ways and in varying combinations.
One idea is that human rights are primarily claims on states or political institutions that assert a right to rule backed up by the threat of coercion (Pogge 2002: ch. 7, subsequently recanted in the second, 2007 edition; possibly also Beitz 2009). On one version of this view, a “human rights” violation only exists when some failure on the part of officials is present. Hence, we cannot automatically infer from the fact that A has tortured B simply for the pleasure that the former derives from doing so that B’s human rights have been violated. A may well have violated a right of B’s not to be tortured, even a universal moral right. But the act of torture will only be a human rights violation if A is an official of the state or his conduct is suitably connected to a coercive institutional order inhabited by A and B. One form of connection, stressed by Thomas Pogge (2002), emerges from an affirmative answer to the question of whether the act of torture is a foreseeable and reasonably avoidable upshot of the imposition of that order. However, many will question whether it is worth countenancing a dualism of human rights and universal moral rights of this sort unless the former notion is given some additional, and more specific, political dimension.
We should therefore turn to two other political roles in terms of which human rights have been characterized. Internally, human rights are interpreted as at least necessary conditions for the legitimacy of a state or comparable institution, constraining its right to rule. Unless a state complies with them, its laws will not impose obligations of obedience on its putative subjects. Externally, human rights operate as standards whose violation, if extensive and persistent, triggers a defeasible case for some form of international action (e.g., military intervention, economic sanctions, etc.) against the guilty state.
The characterization of human rights as both conditions of internal legitimacy and limitations on immunity from external interference is a prominent theme in the work of John Rawls and Joshua Cohen (Rawls 1999; Cohen 2004, Cohen 2006). This dual political function is taken to distinguish human rights both from universal moral rights and from the more expansive set of rights properly upheld in liberal democratic societies. But this analysis of human rights confronts the objection that it is internally conflicted. There appears to be a discrepancy between the conditions of internal legitimacy and those of international intervention, such that the self-same list of rights is incapable of discharging both functions. Whether a state possesses legitimacy depends on the morality of its actions in relation to its putative subjects. But whether it is liable, even in principle, to external interference depends on other considerations, including the value of political self-determination and facts about the geopolitical environment, such as the incidence of predatory behavior among states. In consequence, the mere fact that a state acts beyond the scope of its legitimate authority does not give rise to a reason, in any circumstances, for interference by other states, just as not every personal wrongdoing is justifiably prevented or punished by others (Raz 2010a: 330).
Subscribers to the dual-function view might respond by specifying more precisely how human rights operate as defeasible triggers for external intervention, rather than all-things-considered justifications. But there remains a problem with characterizing human rights either in terms of legitimacy or intervention, which is that both analyses threaten to issue in a severely truncated list of human rights. This threat is notoriously realized by Rawls’s theory, which results in the following parsimonious list:
[the] right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly).
(Rawls 1999: 65)
Notable omissions from Rawls’s list that figure in standard international human rights documents include: rights to nondiscrimination on the grounds of sex, race and religion; rights to freedom of opinion, speech, movement and political participation; rights to education, work and an adequate standard of living; and so on. Indeed, Rawls asserts that only articles 3 to 18 of the UDHR contain human rights proper; the rest are only “liberal aspirations” (Rawls 1999: 80, n. 23).
Now, this heavily revisionist upshot is a major drawback of Rawls’s account for anyone who takes it to be a key desideratum of a theory of human rights that it makes (charitable) sense of existing human rights practice. A determined Rawlsian might reply that such fidelity to existing practice is not an important metatheoretical desideratum, as compared with spelling out the implications of Rawls’s political liberalism for the foreign policy of liberal societies. Or that even if it is, Rawls’s meager schedule of human rights reflects how fidelity must be compromised in light of a competing metatheoretical desideratum of great weight, i.e., the need to arrive at a conception of human rights that is suitably nonparochial, so that human rights are not simply liberal constitutional rights projected globally.
However, a more moderate line is taken by advocates of the political conception who diagnose the problem of fidelity with Rawls’s theory as stemming from the specific kind of international response that he makes criterial for human rights. In effect, Rawls holds that a human right is distinguished by its capacity to justify military intervention when violated gravely and extensively. Naturally, there are other ways of implementing human rights short of military intervention, such as economic sanctions or diplomatic censure. But for Rawls it seems to be their ability to sustain a pro tanto case for military intervention that distinguishes human rights from other rights. However, a more generous list can be secured if we broaden the criterial notion of intervention to include nonmilitary and noncoercive forms of international response otherwise prohibited by norms of state sovereignty (see Raz 2010a). Or, alternatively, if we conceptually tie human rights not exclusively to intervention, but to the wider remedial response of “international concern,” of which the multifarious forms of intervention are just one species (see Beitz 2009: 33–42).
It is not obvious that either maneuver meets the concern about fidelity. (For an alternative approach that focuses on human rights as conditions of legitimacy, see Dworkin 2011, discussed in section 2). Core norms appealed to in the wider human rights culture, such as those prohibiting discrimination on the grounds of sex or affirming a right to an adequate standard of living, might still face an uphill struggle (see Beitz 2009, ch. 7). But supposing this worry could be allayed, one might still be puzzled by the more general idea, implicit in the political conception, that human rights are “revisionist appurtenances of a global political order composed of independent states” (Beitz 2009: 197). Consider anarchists, who reject the state in all its forms, or advocates of cosmopolitan government, who wish to transcend the state system altogether in favor of a unitary world government. Both routinely appeal to human rights to justify their positions, but this would hardly be a coherent strategy if human rights are inherently bound up with the state or the state system. Even if anarchism and cosmopolitanism are not, in the end, compelling doctrines, it seems extremely uncharitable to portray their advocates as victims of a conceptual confusion about human rights.
The line of thought so far recommends adopting the first limb of the orthodox conception, leaving it as a further, substantive question to what extent human rights have any specifically political functions. Such a view is not very remote from forms of the political conception that treat human rights as a proper subset of the universal moral rights picked out by the orthodox conception (e.g., Raz 2010a and b). However, a deeper disagreement would persist with versions of the political conception that resist the subset approach, regarding human rights as sui generis with respect to the broader category of (universal) moral rights. But this sui generis approach seems incapable of adequately capturing the characteristic moral significance of human rights. Charles Beitz (2009), for example, describes human rights as norms protecting certain “urgent interests” against standard threats posed to them by one’s government. But even the most urgent interests can be impaired in all sorts of ways without any moral wrongdoing, and it is questionable whether the distinctive significance of these interests in human rights discourse can be grasped without introducing the idea that they are protected by individual rights that impose obligations on others.
There is another, more subterranean explanation for Moyn’s thesis of a discontinuity between natural and human rights thought. It seems to be part of a commonly accepted ideal of professional objectivity that historians’ explanations should not turn on the truth or falsity of moral propositions. This prevents them from seriously entertaining the hypothesis that the rise and gathering momentum of the human rights movement is to be explained in part by the fact that it is inspired by fundamentally correct moral principles. But this dislodges an important motivation for treating human rights as continuous with natural rights: namely, the belief that both terms have been used to designate some objective truths of human morality, truths which have been formulated and implemented in different ways, and with varying degrees of insight and success, in diverse historical epochs.
Now, this arms-length relation to the moral truth also finds a parallel in contemporary philosophy. John Rawls, again, has led the way in arguing that human rights are categorically distinct from natural rights because, contrary to the second limb of the orthodox conception, they are not grounded in ordinary moral reasoning (Rawls 1999). For Rawls, people inevitably disagree about whether and how moral truth is discerned and about which moral propositions are true. But human rights, with their claim to regulate coercive intervention across international boundaries, must be justifiable to others despite their persistent ideological disagreements. So, Rawls claims, unlike natural rights, they must be grounded in a form of “public reason” that is discontinuous with ordinary moral reasoning, levitating above the fray of interminable philosophical and religious quarrels about morality, human nature and divinity:
[Human rights] do not depend on any particular comprehensive religious doctrine or philosophical doctrine about human nature. The Law of Peoples does not say, for example, that human beings are moral persons and have equal worth in the eyes of God; or that they have certain moral and intellectual powers that entitle them to those rights. To argue in these ways would involve religious or philosophical doctrines that many decent hierarchical peoples might reject as liberal or democratic, or as in some way distinctive of Western political tradition and prejudicial to other cultures. Still, the Law of Peoples does not deny these doctrines.
(Rawls 1999: 68)
This is a deeper sense in which one might hold a “political” view of human rights: they are political not only in their defining subject matter (e.g., political legitimacy, international intervention), but in the genre of reasoning that grounds them. For Rawls, the justification of human rights is modeled by a social contract at two levels. At the first level, liberal democratic societies agree to principles to govern their relations—a Law of Peoples, including its truncated list of human rights. At the second level, “decent” hierarchical societies are shown to be able to endorse the same principles from their own, nonliberal outlook. The fact that they can attract the allegiance of nonliberal societies is supposed to exonerate those principles from the charge of parochialism.
But how can the charge of parochialism be avoided unless human rights are grounded in ordinary moral reasoning, itself understood to embody an aspiration to objective correctness, i.e., correctness that is independent of the beliefs and attitudes that prevail in any given society? The alternative is to rely on standards that, in some sense, people actually share. So, for example, Rawls’s starting point in deriving human rights is the values implicit in liberal democratic culture. But that leaves us with the problem of what to say to those who do not share those values, including “outlaw states” that would be the potential targets of military intervention in a Rawlsian global dispensation. Of course, Rawls stresses that some nonliberal, but decent, societies may endorse, for their own moral reasons, his schedule of human rights. But that very schedule is only a candidate for their endorsement because it has been previously validated within an exclusively liberal perspective, one from which decent societies receive the backhanded compliment of being “not fully unreasonable” (Rawls 1999: 74). And even for members of liberal societies, is it enough to say that human rights flow from values deeply embedded in their political culture, absent an independent vindication of those values? Without an objective grounding the human rights project risks becoming just another fundamentalist commitment, as so many of its critics allege (Tasioulas 2010a: 107–8).
There are doubtless other ways of elaborating the idea of public reason, in opposition to ordinary moral reasoning, that do not lapse into parochialism of Rawlsian proportions. One line of thought begins not from public reason understood as ideas implicit in liberal democratic culture, but rather from a global public reason (see Cohen 2000, Cohen 2006; Nussbaum 2000, ch. 1; Sen 2009, part IV). These views, however, remain at a fairly embryonic stage of development. Pending their fuller elaboration, the default position may be to accept the second limb of the orthodox conception and embark on the task of discovering which moral rights are indeed possessed by all human beings simply in virtue of their humanity. Of course, once these rights have been identified, it would not automatically follow that they should be enshrined in international law or enforced by international action (see section 3, below). Nor would it necessarily follow that there is a single best institutional model, whether American or European in inspiration, for implementing those rights. To this extent, legitimate concerns about parochialism and intolerance can be addressed without abandoning the orthodox idea that human rights need to be grounded in ordinary, truth-oriented, moral reasoning.