Human rights for hedgehogs?: global value pluralism, international law, and some reservations of the fox

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 975-1009

  Sloane, Robert D ^a,b  

^a BOSTON UNIVERSITY   (United States)

^b UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 77954335730     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (207)

1. RONALD DWORKIN JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript on file with the Boston University Law Review).
2. See RONALD DWORKIN, Is DEMOCRACY POSSIBLE HERE? 24-51 (2006).
3. [hereinafter DWORKIN, DEMOCRACY]
4. See Louis HENHN, THE AGE OF RIGHTS 1-5 (1990).
5. See JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 20-21 (2d ed. 2003).
6. See, e.g., RONALD DWORKIN, Zs There Really No Right Answer in Hard Cases?, in A MATTER OF PRINCIPLE 119,144-45 (1985).
7. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1, (manuscript at 129).
8. See DONNELLY, supra note 4, at 16 ("The essential point is that 'human nature' is seen as a moral posit rather than a fact of 'nature,' and a social project rooted in the implementation of human rights. It is a combination of 'natural,' social, historical, and moral elements, conditioned, but not simply determined, by objective historical processes that it simultaneously helps to shape.");
9. Michael Ignatieff, Human Rights as Idolatry, in HUMAN RIGHTS AS POLITICS AND IDOLATRY 53, XX (Amy Gutmann ed., 2001).
10. See DONNELLY, supra note 4, at 21.
11. See id. at 18-21.
12. See RONALD DWORKIN, JUSTICE IN ROBES 76-78 (2006). For further discussion, see infra text accompanying notes 126-63.
13. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 211) ("Human rights. . . do not merely tramp collective goals. They also tramp another principle prominent in international law: sovereignty.").
14. See generally Robert D. Sloane, Outrelativizing Relativism: A Liberal Defense of the Universality of International Human Rights, 34 VAND. J. TRANSNAT'L L. 527 (2001).
15. See WILL KYMUCKA, MULTICULTURAL CITIZENSHIP 81-82 (1995).
16. I remain unpersuaded for substantially the reasons explained in BRIAN LEITER, Objectivity, Morality, and Adjudication, in NATURALIZING JURISPRUDENCE 225 (2007). I agree, in particular, with what Leiter calls the naturalistic conception of objectivity, the view that "objectivity in any domain must be understood on the model of the natural sciences, whose objects of study are objective in the sense of being 'mind-independent' and causally efficacious (i.e., in making a causal difference to the course of experience)." Id. at 226 (footnote omitted).
17. Ignatieff, supra note 7, at 54.
18. The assertion that human rights are descriptively universal is false. See, e.g., DONNELLY, supra note 4, at 89 ("Cultural relativity is an undeniable fact; moral rales and social institutions evidence an astonishing cultural and historical variability.");
19. American Anthropological Association, Statement on Human Rights, 49 AMER. ANTHROPOLOGIST 539, 542 (1947).
20. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 216);
21. see also DWORKIN, DEMOCRACY, supra note 2, at 23-51.
22. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 214-16).
23. See Sloane, supra note 12, at 558-59, 591 ("Paradoxically, then, the feature of comprehensive 'conceptions of the good' that proves most adverse to an international order structured by respect for universal human rights is dogmatic universalism - the claim that one system of value prescribes what 'is right' for everyone and can therefore be justifiably imposed, through violence if necessary, on others.");
24. see also DONNELLY, supra note 4, at 18-20 (arguing that foundational appeals in the realm of human rights inevitably prove both "contingent and contentious").
25. Ignatieff, supra note 7, at 54; see also Sloane, supra note 12, at 558-59.
26. See DWORKIN, DEMOCRACY, supra note 2, at 23-51.
27. See, e.g., DONNELLY, supra note 4, at 10.
28. DWORKIN, DEMOCRACY, supra note 2, at 29.
29. See DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 215).
30. Id. (manuscript at 128). Dworkin previously called this the principle of intrinsic value.
31. DWORKIN, DEMOCRACY, supra note 2, at 9.
32. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 128).
33. Id. Dworkin previously called this the principle of personal responsibility. DWORKIN, DEMOCRACY, supra note 2, at 10.
34. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 128).
35. DWORKIN, DEMOCRACY, supra note 2, at 21.
36. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 211) (emphasis added).
37. Id. (manuscript at 211-12).
38. Id. (manuscript at 212).
39. Id. (emphasis omitted); see also DWORKIN, DEMOCRACY, supra note 2, at 35.
40. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 212).
41. Or perhaps optional, although in that event, the right would not, it seems, qualify as a genuine (moral) human right; otherwise, how could it simultaneously be optional? It would need to be express or implicit in any bona fide account of the two principles of human dignity Dworkin expounds.
42. But see infra text accompanying notes 64-75.
43. See DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 212);
44. see also DWORKIN, DEMOCRACY, supra note 2, at 36-38.
45. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 212);
46. see also DWORKIN, DEMOCRACY, supra note 2, at 37.
47. An even more controversial example would be the oft-mocked right to "periodic holidays with pay," which appears in the Universal Declaration of Human Rights art. 24, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR]. Plausible arguments based on good-faith interpretations of the two principles of human dignity exist both for and against such a right.
48. See Village of Skokie v. Nat'l Socialist Party of Am., 373 N.E.2d 21, 23 (III. 1978).
49. Dworkin has expressly argued that the latter right does exist. See Ronald Dworkin, The Right to Ridicule, N.Y. REV. BOOKS, Mar. 23, 2006, at 44. Yet if, as seems clear, a good-faith construction of the two principles of human dignity could be advanced that would justify the contrary conclusion, then the "right to ridicule" cannot, according to Dworkin's account, be a (moral) human right.
50. See International Covenant on Civil and Political Rights arts. 1 (self-determination of peoples), 27 (linguistic and religious rights for minorities), Dec. 16, 1966, 1966 U.S.T. 521, 999 U.N.T.S. 171. See generally KYMLICKA, supra note 13 (arguing that the traditional liberalism, despite its focus on the individual, can and should accommodate certain group rights).
51. Sloane, supra note 12, at 568 ("It is clear, for example, that 'due process' under international human rights law does not demand the Anglo-Saxon 'adversarial' as opposed to the Continental 'inquisitorial' model, or vice versa. Functionally equivalent safeguards in each system can independently satisfy its requirements.").
52. European Convention on Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR].
53. Handyside v. United Kingdom, 24 Eur. Ct H.R. (ser. A) at 22 (1976).
54. The term "decisionmakers" is preferable to "judges" in this context. In the field of international human rights, institutional actors will more often than not be officials other than judges, acting in fora other than courts - for example, a member of the Human Rights Committee, reviewing a state's report on its compliance with the International Covenant on Civil and Political Rights.
55. -414 F.3d 233 (2d Cir. 2003).
56. -28 U.S.C. §1350 (2006) ("The district courts shall have original jurisdiction of any action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.").
57. See Flores, 414 F.3d at 236-37.
58. Id. at 235-37.
59. Id. at 254.
60. Id. at 254-66.
61. -542 U.S. 692 (2004).
62. Id. at 715; see also Flores, 414 F.3d at 242-43.
63. Cf. DWORKIN, DEMOCRACY, supra note 2, at 29 ("So even if the Bush administration were right in its legal opinion that the Geneva Conventions and other treaties technically do not apply to the Guantánamo detainees, the moral question would still remain whether our policies there and elsewhere do violate the detainees' underlying human rights, rights that the United States would act immorally, even if not illegally, in violating.").
64. See Sosa, 542 U.S. at 724 (discussing Blackstone's paradigms of international torts to help define those international norms that may today give rise to actionable violations of human rights under the ATCA).
65. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 212).
66. Id. (manuscript at 210).
67. See, e.g., Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254, 282 (2d Cir. 2007).
68. See generally Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443 (2001).
69. Kadič v. Karadžič, 70 F.3d 232, 239 (2d Cir. 1995).
70. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 212).
71. See Sloane, supra note 12, at 544 n.48 (citation omitted).
72. See MOISÉS NAÍM, ILUCIT 57-58 (2005).
73. See DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 213).
74. See Cass Sunstein, Rights and Their Critics, 70 NOTRE DAME L. REV. 727, 731-32 (1995).
75. Sloane, supra note 12, at 530.
76. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 211) (emphasis added).
77. Id. (manuscript at 212).
78. -416 F.3d 1242 (11th Cir. 2005), reh'g en banc denied, 452 F.3d 1284 (11th Cir. 2006).
79. See id. at 1247 (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004)).
80. Id. at 1247.
81. Aldana v. Del Monte Fresh Produce, N.A., Inc., 452 F.3d 1284, 1284 (11th Cir. 2006).
82. See id. at 1284-88.
83. Other foreign and regional courts have debated similar issues and reasonably, even if controversially, arrived at a variety of conclusions about CIDT.
84. See, e.g., Ireland v. United Kingdom, 25 Eur. Ct H.R. (ser. A) at 5, 67 (1978) (finding that practices such as wall- standing, hooding, and sleep and food deprivation "undoubtedly amounted to inhuman and degrading treatment . . . [but] did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood"); HCJ 5100/94 Public Comm.
85. Against Torture in Israel v. Israel [1999] IsrSC 46(2) 1471, 1478 (appraising the legality of the "moderate physical pressure" techniques that Israeli interrogators employed).
86. Of course, given his commitment to objectivity in the realm of values, Dworkin might want to say that certain people who deny the existence of a particular human right simply misconstrue what the two principles require. The point of emphasis, however, is that except at the margins where virtually everyone agrees, the principles themselves supply no objective means to determine which interpretations should be deemed "reasonable" or "good-faith" interpretations.
87. LETTER, supra note 14, at 226 ("Dworkin's extensive writings on 'external' and 'internal' skepticism about objectivity have attracted little attention---Indeed, I am not aware of anyone, other than Dworkin who has found his response on this score satisfactory.").
88. DWORKIN, DEMOCRACY, supra note 2, at 9-10
89. ("[Human life] has value as potentiality; once a human life has begun, it matters how it goes. It is good when that life succeeds and its potential is realized and bad when it fails and its potential is wasted. This is a matter of objective, not merely subjective, value; I mean that a human life's success or failure is not only important to the person whose life it is or only important if and because that is what he wants. The success or failure of any human life is important in itself, something we all have reason to want or to deplore." (first emphasis added; footnote omitted ));
90. see also RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 74 (1993).
91. [hereinafter DWORKIN, LIFE'S DOMINION]
92. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 129).
93. Id. (emphasis added).
94. See id. 81 Id. (manuscript at 124).
95. Id. (manuscript at 129). Parenthetically, while I agree with Dworkin that it is not clear why or in what sense human beings have "intrinsic and equal worth," id., it is not necessarily inconsistent to ascribe product value to an object and simultaneously not to want more of that object. We might ascribe product value to trees, for example, because of the shade they provide, their critical role in the ecosystem, and so forth - none of which has anything to do with a creative process by which the trees came into existence. But it would not follow that we would necessarily want more trees, or that more trees would make our lives go better. Too many trees (which is not, alas, a problem we actually suffer from) might crowd out other forms of life, which themselves have product value, or occupy too much space, leaving us with no place to establish cities or to plant food for survival.
96. Id. (manuscript at 124).
97. Id. (manuscript at 129).
98. DWORKIN, DEMOCRACY, supra note 2, at 11 ("I shall try to convince you that most people accept ['the intrinsic and objective importance of how a human life is lived'] on reflection ... by persuading you that most people think it is intrinsically and objectively important how their own life is lived and then, second, that most people have no reason to think it is objectively any less important how anyone else's life is lived.").
99. To be clear, "syllogism" is my characterization. Dworkin does not self-characterize the argument as a type of syllogism. But I do not think it is an unfair characterization of the essential logic behind the two principles of human dignity, as set out in Democracy and, in greater detail, in Justice for Hedgehogs.
100. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 129, 164). To the same effect, Dworkin has argued elsewhere that we all think our own lives have "intrinsic" value and that if we accept this conviction relative to ourselves, "the equal objective importance of all human li[fe]" follows.
101. DWORKIN, DEMOCRACY, supra note 2, at 11-16.
102. Compare, e.g., DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 184) (disavowing the view that "our moral 'intuitions' are guides to truth in some way at least analogous to perceptions of the world of nature"),
103. with DWORKIN, DEMOCRACY, supra note 2, at 11-14 (scrutinizing the conviction that most of us think it important that our lives go well). For analysis of the conviction that human life is sacred,
104. see DWORKIN, LIFE'S DOMINION, supra note 77, at 71-81.
105. See, e.g., DWORKIN, DEMOCRACY, supra note 2, at 15-16 (referring repeatedly to what most Americans "think" or "believe" or "would admit");
106. id. at 21 ("I hope you are now at least tempted to agree that Americans across the political spectrum, with relatively few exceptions, would accept that they share the conception of human dignity that I have been describing." (emphasis added)). The repeated references to Americans in Democracy may reflect only the focus of that book on political discourse in the United States. If so, it is still a questionable leap of logic to go from what most Americans, in this day and age, think to what most human beings everywhere think .
107. See id. at 16.
108. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 14).
109. DWORKIN, DEMOCRACY, supra note 2, at 9.
110. Justice for Hedgehogs often refers collectively to the two principles as "human dignity" or just to "dignity." E.g., DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 212).
111. DWORKIN, DEMOCRACY, supra note 2, at 37.
112. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 129).
113. Id. (manuscript at 212).
114. That more familiar Kantian claim about the intrinsic and equal dignity of all human beings offers a plausible premise for the syllogism underlying the idea of human rights. But even apart from Dworkin's disavowal of it, the proposition itself is no more than a dogmatic assertion and at best stands on shaky ground. Michael Perry argues that there is no intelligible secular account of the idea that human being are innately sacred (or have equal dignity or worth).
115. MICHAEL J. PERRY, THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES 11-41 (1998). I tend to agree, though for partially distinct reasons. For particular reference to Dworkin's views, see id. at 25-29. Dworkin rejects the view that religion can supply an adequate ground for his first principle,
116. DWORKIN, DEMOCRACY, supra note 2, at 14-15, or for human rights,
117. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 213-16).
118. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 162).
119. PERRY, supra note 97, at 4-5.
120. IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 46 (Allen W. Wood ed. & trans., Yale Univ. Press 2002) (1785).
121. See DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 209). On the "ticking time-bomb terrorist" hypothetical,
122. see ALAN M. DERSHOWITZ, WHY TERRORISM WORKS 131-63 (2002).
123. On the moral, legal, and pragmatic flaws in this hypothetical, see, for example, David Luban, Liberalism, Torture, and the Ticking Bomb, 91 VA. L. REV. 1425, 1427 (2005);
124. Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM.L.REV. 1681, 1715 (2005).
125. Ignatieff, supra note 7, at 54.
126. Id. at 79 (footnote omitted); see also id. at 80 ("We defend human rights as moral universais in full awareness that they must counteract rather than reflect natural human propensities.").
127. Id. at 54-55.
128. See HENKIN, supra note 3, at 17.
129. Sloane, supra note 12, at 548.
130. See id. at 550.
131. Jacques Maritain, Introduction to HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS 9 (UNESCO ed. 1949).
132. This core is "bounded," to be sure, but nonetheless meaningful. See DONNELLY, supra note 4, at 51-53.
133. G.A. Res. 421, ¶ E, U.N. GAOR, 5th Sess., Supp. No. 20, U.N. Doc. A/1775 (Dec. 4, 1950). Although the UDHR rhetorically recognizes "the inherent dignity" of all persons, it avoids explaining the source of that dignity, except to say, in words redolent of Ignatieff s view, that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind." UDHR, supra note 39, at 71. History shows, in other words, that the absence of human rights threatens human dignity.
134. See Ignatieff, supra note 7, at 83 ("All that can be said about human rights is that they are necessary to protect individuals from violence and abuse, and if it is asked why, the only possible answer is historical.").
135. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 136) (emphasis added).
136. Parenthetically, the mere fact that we cannot avoid a conviction does not necessarily mean it is true. We cannot avoid the perception and consequent conviction of a world characterized by time and extension (space). But that does not make our convictions about time and space true, as Albert Einstein suggested and modern quantum physics seems to corroborate. In a similar vein, Dworkin argues that we should reject a naturalistic account of free will and causation because it can only be redeemed [in the 'physical and biological world']." Id. (manuscript at 145). He worries that "once we do [adopt the naturalistic account of causation,] the hope [that we have free will] becomes vulnerable to scientific discovery or metaphysical speculation." Id. Yet the possibility that science might dash our hope that we have free will in a naturalistic sense offers no reason to abandon the naturalistic account of freedom of the will. It would be methodologically repugnant to adopt a particular view of free will precisely in an effort to insulate that view from scientific truth. Cf. LETTER, supra note 14, at 238 ("Science has earned its claim to be a guide to the real and the unreal by depopulating our world of gods and witches and ethers, and substituting a picture of the world and how it works of immense practical value."). Above, I say Dworkin "seems" to reject this view in the text because elsewhere in the manuscript, Dworkin locates human dignity in "the fact of our consciousness and the phenomenal world of challenge it offers - the challenge of lives to lead and thousands of decisions to make," which "itself gives us all the dignity we need or should crave."
137. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 145);
138. see also DWORKIN, DEMOCRACY, supra note 2, at 15 ("It ['your having a good life'] is important for no further reason than that you have a life to live."). This strikes me as difficult to distinguish from the view quoted in the text, which Dworkin explicitly rejects.
139. PERRY, supra note 97, at 26.
140. See id.
141. Id. at 5 (emphasis added).
142. JEREMY BENTHAM, ANARCHICAL FALLACIES 489, 501 (1824).
143. See, e.g.. Jack Donnelly, Human Rights and Asian Values: A Defense of "Western" Universalism, in THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS 60, 62-69 (Joanne R. Bauer & Daniel A. Bell eds., 1999). Slavery may be an exception.
144. See Jenny S. Martinez, Antislavery Courts and the Dawn of International Human Rights Law, 117 YALE L.J. 550, 552 (2008) (observing that international antislavery courts established between 1817 and 1871 "were the first international human rights courts").
145. Sloane, supra note 12, at 548.
146. Cf. DWORKIN, JUSTICE FOR HEDGEHOGS, Supra note 1 (manuscript at 210) ("Dignity is ... the foundation of all political rights.").
147. See, e.g., International Covenant on Civil and Political Rights, pmbl., Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171; UDHR, supra note 39, at 71 (recognizing "the inherent dignity and ... the equal and inalienable rights of all members of the human family");
148. World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, pmbl., U.N. Doc. A/CONF.157/23 (July 12, 1993) ("Recognizing and affirming that all human rights derive from the dignity and worth inherent in the human person...").
149. Ignatieff, supra note 7, at 80.
150. Sloane, supra note 12, at 587-92.
151. JOHN RAWLS, THE LAW OF PEOPLES 11 (2001) ("In the Society of Peoples, the parallel to reasonable pluralism is the diversity among reasonable peoples with their different cultures and traditions of thought, both religious and nonreligious.").
152. Sloane, supra note 12, at 592. Value monism, in contrast, must insist that all values can be harmoniously reconciled; "it cannot accommodate fundamentally divergent basic models and values capable of irreconcilable conflict."
153. Avery Plaw, Why Monist Critiques Feed Value Pluralism: Ronald Dworkin's Critique of Isaiah Berlin, 30 SOC. THEORY & PRAC. 105, 106(2004).
154. Ignatieff, supra note 7, at 74-75 ("There is no reason to apologize for the moral individualism at the heart of human rights discourse: it is precisely this that makes it attractive to dependent groups suffering exploitation or oppression."); see also HENKIN, supra note 3, at xi; cf. Donnelly, supra note 117, at 77-78.
155. JOHN RAWLS, A THEORY OF JUSTICE (1971).
156. JOHN RAWLS, POLITICAL LIBERALISM, at xvii (1993) ("The fact of a plurality of reasonable but incompatible comprehensive doctrines - the fact of reasonable pluralism shows that, as used in Theory, the idea of a well-ordered society of justice as fairness is unrealistic.");
157. see also id. at 36 ("[T]he diversity of reasonable comprehensive religious, philosophical, and moral doctrines found in modern democratic societies is not a mere historical condition that may soon pass away; it is a permanent feature of the public culture of democracy.").
158. See RAWLS, LAW OF PEOPLES, supra note 123, at 11-12.
159. DAVID JOHNSTON, THE IDEA OF A LIBERAL THEORY 26 (1994) (emphasis omitted).
160. For example, in the Federalist Papers, James Madison ascribed the inevitability of factions within free polities to value pluralism, which he saw as the natural consequence of man's self-love, passions, the fallibility of his reason, and a consequent "zeal for different opinions concerning religion, concerning Government and many other points." THE FEDERALIST NO. 10, at 58-59 (James Madison) (Jacob E. Cooke ed., 1961). In the nineteenth century, John Stuart Mill located value pluralism at the center of the proper conception of the nature and limits of political freedom in a true liberal polity.
161. See JOHN STUART MILL, ON LIBERTY 11-12 (Elizabeth Rapaport ed., Hackett Publ'g Co. 1978) (1859).
162. See ISAIAH BERLIN, THE HEDGEHOG AND THE FOX 1 (1953) ("There is a line among the fragments of the Greek poet Archilochus which says: 'The fox knows many things, but the hedgehog knows one big thing.'" (citation omitted)).
163. For an early critique, see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 268-72 (1977); for a more recent critique,
164. see DWORKIN, JUSTICE IN ROBES, supra note 10, at 105-16.
165. See also Ronald Dworkin, Do LIberal Values Conflict?, in THE LEGACY OF ISAIAH BERLIN 73 (2001) (discussing Isaiah Berlin's "ideas [about value pluralism] as a distinct and important philosophical contribution, particularly to political philosophy").
166. See DWORKIN, DEMOCRACY, supra note 2, at 10-11.
167. See generally John Rawls, Justice as Fairness: Political Not Metaphysical, 14 PHIL. & PUB. AFF. 223 (1985) (arguing that his conception of justice - which requires diversity and plurality - is independent of philosophical and religious doctrines).
168. Plaw, supra note 124, at 106. Berlin apparently also believed in the normative value of value pluralism (in contradistinction to value monism), see id. at 120-23, but for present purposes, that thesis is immaterial; and, at any rate, there is no evidence that Berlin believed in the metaphysically objective truth of any value, including the normative value of value pluralism.
169. See DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 7).
170. See id. (manuscript at 216);
171. see also DWORKIN, DEMOCRACY, supra note 2, at 23-51.
172. See DWORKIN, JUSTICE IN ROBES, supra note 10, at 76-78.
173. Id. at 77-78.
174. See M. at 77.
175. See W. at 78, 107.
176. Id. at 107; see also id. ("Berlin did not just insist, as so many writers now do, on the anthropological platitude that different societies are organized around very different values . ... Nor does he simply combine that platitude with the further skeptical claim that it makes no sense to speak of 'objective' values at all.").
177. ISAIAH BERLIN, The Pursuit of the Ideal, in THE CROOKED TIMBER OF HUMANITY: CHAPTERS IN THE HISTORY OF IDEAS 12-13 (Henry Hardy ed., 1990);
178. see also DWORKIN, JUSTICE IN ROBES, supra note 10, at 107.
179. Isaiah Berlin, Two Concepts of Liberty, in LIBERTY 166, 213 (Henry Hardy ed., 2002) (emphasis added).
180. Id. at 217.
181. CONNIE AARSBERGEN-LIGTVOET, ISAIAH BERLIN: A VALUE PLURALIST AND HUMANIST VIEW OF HUMAN NATURE AND THE MEANING OF LIFE 4 (2006).
182. True, Berlin says, "There is a world of objective values." BERLIN, supra note 143, at 11. But this is a case of imprecise word choice and a quotation taken out of context. By restoring the context, it is unmistakably clear that Berlin does not mean values exist in some ontological or metaphysical sense. In the very next sentence, he says that by "objective values," he means "those ends that men pursue for their own sakes, to which other things are means." Id. This is a description of intrinsic values, not objective values in the sense Dworkin has in mind.
183. Berlin, supra note 144, at 169.
184. See id. at 170 ("This [definition of freedom] is what the classical English political philosophers meant when they used the word.").
185. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 260).
186. See Jeremy Waldron, The Irrelevance of Moral Objectivity, in NATURAL LAW THEORY 170,173-75 (Robert P. George ed., 1992).
187. See DWORHN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 215).
188. See id. (manuscript at 11).
189. See supra text accompany notes 115-25.
190. Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 153, 153 (Jeremy Waldron ed., 1984).
191. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 211).
192. Id. ("If those who claim authority over some territory violate the human rights of those in their power, then other nations are permitted to attempt to stop them if other conditions are met").
193. Id.
194. See MICHAEL IGNATIEFF, WHOSE UNIVERSAL VALUES? THE CRISIS IN HUMAN RIGHTS 19 (1999).
195. HENKIN, supra note 3, at 5.
196. W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AM. J. INT'L L. 866, 866-67, 869 (1990);
197. see also id. at 872 ("International law is still concerned with the protection of sovereignty, but, in its modern sense, the object of protection is not the power base of the tyrant who rales directly by naked power or through the apparatus of a totalitarian political order, but the continuing capacity of a population freely to express and effect choices about the identities and policies of its governors."). For additional discussion,
198. see ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELFDETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW 56 (2004).
199. See generally DELIBERATIVE DEMOCRACY AND HUMAN RIGHTS (Harold Hongju Koh & Ronald C. Slye eds., 1999);
200. DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW (Gregory H. Fox & Brad R. Roth eds., 2000).
201. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 7).
202. See RONALD DWORHN, FREEDOM'S LAW: THE MORAL READING OF THE CONSTITUTION 1,16-17,21-31(1996).
203. Sloane, supra note 12, at 591 (footnote omitted).
204. See KANT, supra note 100, at 55-56.
205. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 48-49 (1974).
206. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 145). 168 Berlin, supra note 144, at 212.
207. DWORHN, JUSTICE IN ROBES, supra note 10, at 106.