Minimalism about human rights: The most we can hope for?

Journal of Political Philosophy

Volumn 12, Issue 2, 2004, Pages 190-213

  Cohen, Joshua ^a  

^a MASSACHUSETTS INSTITUTE OF TECHNOLOGY   (United States)

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[No Author keywords available]

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EID: 2542522411     PISSN: 09638016     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1467-9760.2004.00197.x     Document Type: Conference Paper

References (57)

1. Michael Ignatieff, Human Rights as Politics and as Idolatry (Princeton, N.J.: Princeton University Press, 2001), p. 173.
2. For the Declaration and Covenants, as well as other human rights conventions and charters, see the "Annex on Documents" in Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, 2nd edn (Oxford: Oxford University Press, 2000).
3. Human Rights, p. 173.
4. Immanuel Kant, Critique of Pure Reason, trans. Paul Guyer and Allen Wood (Cambridge: Cambridge University Press, 1998), A805-B833.
5. Human Rights, p. 56.
6. I believe that Ignatieff uses the term "minimalism" to cover both; Human Rights, pp. 55-6.
7. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. 12, 145. My emphasis in this paragraph on how the human rights conception is presented follows Rawls's account of the second feature of a political conception of justice. See Political Liberalism, p. 12.
8. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. 12, 145. My emphasis in this paragraph on how the human rights conception is presented follows Rawls's account of the second feature of a political conception of justice. See Political Liberalism, p. 12.
9. For discussion of the merits of this line of argument, see Onora O'Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000), chap. 6; Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (Princeton, N.J.: Princeton University Press, 1980); Amartya Sen, "Towards a Theory of Human Rights," unpublished.
10. For discussion of the merits of this line of argument, see Onora O'Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000), chap. 6; Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (Princeton, N.J.: Princeton University Press, 1980); Amartya Sen, "Towards a Theory of Human Rights," unpublished.
11. For discussion of the merits of this line of argument, see Onora O'Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000), chap. 6; Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (Princeton, N.J.: Princeton University Press, 1980); Amartya Sen, "Towards a Theory of Human Rights," unpublished.
12. Cited in Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001). On the background of Maritain's views of human rights in broader efforts to rethink the fundamentals of Catholic social thought - especially the relative significance attached to notions of the human person and the common good - see John T. McGreevy, Catholicism and American Freedom: A History (New York: Norton, 2003), chap. 7.
13. Cited in Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001). On the background of Maritain's views of human rights in broader efforts to rethink the fundamentals of Catholic social thought - especially the relative significance attached to notions of the human person and the common good - see John T. McGreevy, Catholicism and American Freedom: A History (New York: Norton, 2003), chap. 7.
14. Rawls refers to the public reason of the "society of peoples" in The Law of Peoples (Cambridge: Harvard University Press, 1999), pp. 54-7. I do not wish here to engage the issue of whether "peoples" are the moral agents in international society. Thus the less theoretically committed term "international society."
15. On the human right to democracy see Thomas Franck, "The emerging right to democratic governance," American Journal of International Law, 86 (1992), 46-91. Rawls rejects the right to democracy as a basic human right in favor of a weaker requirement of organized group consultation.
16. Universal Declaration of Human Rights, in Steiner and Allston, International Human Rights in Context, p. 1376.
17. See Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, N.J.: Princeton University Press, 1999). I am indebted to Thomas Christensen for discussion of the point in the text.
18. Thus Article 2 of the Covenant on Civil and Political Rights requires states to adopt the "legislative and other measures" needed to give effect to the rights; Steiner and Allston, International Human Rights in Context, p. 1382.
19. Charles Beitz, "Human rights as a common concern," American Political Science Review, 95 (2001), 269-82; "What human rights mean," Daedalus, 132 (2003), 36-46; "Human rights and The Law of Peoples," unpublished.
20. Charles Beitz, "Human rights as a common concern," American Political Science Review, 95 (2001), 269-82; "What human rights mean," Daedalus, 132 (2003), 36-46; "Human rights and The Law of Peoples," unpublished.
21. Charles Beitz, "Human rights as a common concern," American Political Science Review, 95 (2001), 269-82; "What human rights mean," Daedalus, 132 (2003), 36-46; "Human rights and The Law of Peoples," unpublished.
22. One might argue that human rights are the result of applying natural rights to the circumstances of an organized political society. So, for example, the right to equality before the law might be derived from a natural right to bodily security, along with some reasonable assumptions about the conditions for protecting that right in a society with a legal system. I do not find this argument compelling, but cannot pursue the reasons here.
23. Richard Rorty, "Human rights, rationality, and sentimentality," in On Human Rights, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993).
24. For discussion, see Glendon, World Made New.
25. See H. L. A. Hart, Concept of Law, 2nd edn (Oxford: Oxford University Press, 1994), pp. 193-200; Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (South Bend, Ind.: University of Notre Dame Press, 1994), chap. 1.
26. See H. L. A. Hart, Concept of Law, 2nd edn (Oxford: Oxford University Press, 1994), pp. 193-200; Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (South Bend, Ind.: University of Notre Dame Press, 1994), chap. 1.
27. The empirical interpretation parallels a conventional misunderstanding of Rawls's conception of an overlapping consensus. For discussion of the misunderstanding, see Joshua Cohen, "Moral pluralism and political consensus," The Idea of Democracy, ed. David Copp, Jean Hampton and John Roemer (Cambridge: Cambridge University Press, 1993), pp. 270-91.
28. John Courtney Murray, "The problem of religious freedom," in Religious Liberty: Catholic Struggles With Pluralism (Louisville, Ky.: Westminster, 1993), p. 131.
29. See "Declaration on Religious Freedom," The Teachings of the Second Vatican Council: Complete Texts of the Constitutions, Decrees, and Declarations (Westminster, Md.: Newman Press, 1966), pp. 366-7. The quotations in this paragraph all come from the Introduction to the Declaration, and from its first chapter, on the "General Principles of Religious Liberty."
30. In the case of revealed religions, a large issue about the relationship between revelation (including the manifestation of truths about human beings) and history looms in the background - about whether the whole truth is revealed at a determinate moment in history or is instead revealed over the course of history. I do not propose to explore this disagreement here.
31. The same of course can be said for utilitarianism and for perfectionist views founded on an Aristotelian understanding of human nature and human flourishing. For proposals about how to bring ideas about rights without parentage in positive legislation into utilitarianism, see John Stuart Mill, Utilitarianism, chap. 5 and H. L. A. Hart, "Natural rights: Bentham and John Stuart Mill," in Essays on Bentham (Oxford: Oxford University Press, 1982), chap. 4.
32. The same of course can be said for utilitarianism and for perfectionist views founded on an Aristotelian understanding of human nature and human flourishing. For proposals about how to bring ideas about rights without parentage in positive legislation into utilitarianism, see John Stuart Mill, Utilitarianism, chap. 5 and H. L. A. Hart, "Natural rights: Bentham and John Stuart Mill," in Essays on Bentham (Oxford: Oxford University Press, 1982), chap. 4.
33. To be sure, we have a strong case that that terrain cannot be occupied if paradigmatic human rights are incompatible with the doctrine.
34. See his "Epilogue," Confucian Traditions in East Asian Modernity, ed. Tu Wei-Ming (Cambridge, Mass.: Harvard University Press, 1996), p. 347.
35. My statement of the elements of Confucianism draws on the Four Books (Analects, Great Learning, Doctrine of the Mean, and Mencius). See The Four Books, trans. James Legge (New York: Paragon, 1966); The Analects of Confucius: A Philosophical Translation, trans. Roger Ames and Henry Rosemont (New York: Ballentine, 1998). For helpful discussion, see the Introduction by Ames and Rosement to The Analects, pp. 1-66; Kwong-Loi Shun, Mencius and Early Chinese Thought (Stanford, Calif.: Stanford University Press, 1997).
36. My statement of the elements of Confucianism draws on the Four Books (Analects, Great Learning, Doctrine of the Mean, and Mencius). See The Four Books, trans. James Legge (New York: Paragon, 1966); The Analects of Confucius: A Philosophical Translation, trans. Roger Ames and Henry Rosemont (New York: Ballentine, 1998). For helpful discussion, see the Introduction by Ames and Rosement to The Analects, pp. 1-66; Kwong-Loi Shun, Mencius and Early Chinese Thought (Stanford, Calif.: Stanford University Press, 1997).
37. My statement of the elements of Confucianism draws on the Four Books (Analects, Great Learning, Doctrine of the Mean, and Mencius). See The Four Books, trans. James Legge (New York: Paragon, 1966); The Analects of Confucius: A Philosophical Translation, trans. Roger Ames and Henry Rosemont (New York: Ballentine, 1998). For helpful discussion, see the Introduction by Ames and Rosement to The Analects, pp. 1-66; Kwong-Loi Shun, Mencius and Early Chinese Thought (Stanford, Calif.: Stanford University Press, 1997).
38. My statement of the elements of Confucianism draws on the Four Books (Analects, Great Learning, Doctrine of the Mean, and Mencius). See The Four Books, trans. James Legge (New York: Paragon, 1966); The Analects of Confucius: A Philosophical Translation, trans. Roger Ames and Henry Rosemont (New York: Ballentine, 1998). For helpful discussion, see the Introduction by Ames and Rosement to The Analects, pp. 1-66; Kwong-Loi Shun, Mencius and Early Chinese Thought (Stanford, Calif.: Stanford University Press, 1997).
39. On the view of human nature, and its metaphysical background, see Ames and Rosemont, "Introduction," pp. 23-9.
40. I have included all references to the Analects in the text, and I cite the Ames and Rosemont translation.
41. On Confucianism and the right to an adequate standard of living, see Stephen Angle, Human Rights and Chinese Thought: A Cross-Cultural Inquiry (Cambridge: Cambridge University Press, 2002), pp. 244-5.
42. In this case, the human rights belong, as Rawls puts it, to "an associationist social form . . . which sees persons first as members of groups - associations, corporations, and estates. As such members, persons have rights and liberties enabling them to meet their duties and obligations and to engage in a decent system of social cooperation." Rawls, Law of Peoples, p. 68.
43. The line of argument noted in the text is not the only one available within Confucianism. Angle points to two alternative strategies of early twentieth-century Confucian argument for "ethical aggressiveness: struggling to exercise those abilities and receive those benefits that properly belong to one"; Angle, Human Rights, chap. 6. Throughout, Angle rightly distinguishes the idea that doctrinal evolution sometimes represents a response to external provocations from the idea that such evolution consists simply in embracing ideas that are external to an ethical tradition.
44. Rawls, Political Liberalism, pp. 32-3.
45. For an illuminating discussion of approaches to interpretation within Islamic law, see Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh (Cambridge: Cambridge University Press, 1997), esp. chap. 6, which describes both contextualist/historicist and holistic styles of interpretation.
46. Qur'an, 2:281. I have used The Holy Qur'an, trans. Abdullah Yusuf Ali, tenth edition (Beltsville, Md.: Amana Publications, 1999). Hereafter, references are in the text.
47. Qur'an, 2:281. I have used The Holy Qur'an, trans. Abdullah Yusuf Ali, tenth edition (Beltsville, Md.: Amana Publications, 1999). Hereafter, references are in the text.
48. See Michael Cook, Commanding Right and forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press: 2000), p. 583.
49. I have been helped in my discussion here by Khaled Abou El Fadl, "Islam and the challenge of democracy," Boston Review (April-May 2003).
50. See Kevin Reinhart's Introduction to Laleh Bakhtiar, Encyclopedia of Islamic Law: A Compendium of the Major Schools (Chicago: KAZI Publications, 1996), p. xxxiii.
51. Qutb's account of freedom of conscience and responsibility seems to be of this kind. See Sayyid Qutb, Social Justice in Islam, trans. John B. Hardie (Oneonta, N.Y.: Islamic Publications International, 1953). Thus freedom of conscience is a matter of, among other things, freedom from false worship, fear (of death, injury, and humiliation), and false social values (pp. 53-68). The fundamental metaphysical idea in Qutb's view - his idea of the absolute unity of existence - appears to limit any role for basic human rights.
52. Qutb, Social Justice, p. 80.
53. See Thomas M. Franck, "Are human rights universal?," Foreign Affairs 80 (2001), p. 195.
54. Ignatieff, Human Rights, p. 56.
55. Law of Peoples, pp. 78-81.
56. Ibid., p. 62.
57. Abduallahi Ahmed An-Na'im, "Conclusion," Human Riights in Cross-Cultural Perspectives: A Quest for Consensus, ed. Abduallahi Ahmed An-Na'im (Philadelphia: University of Pennsylvania Press, 1992), p. 431.