The justification of human rights and the basic right to justification: A reflexive approach

Ethics

Volumn 120, Issue 4, 2010, Pages 711-740

  Forst, Rainer ^a  

^a NONE

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EID: 77955671112     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/653434     Document Type: Article

References (112)

1. James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), 35.
2. James Nickel, Making Sense of Human Rights, 2nd ed. (Oxford: Blackwell, 2006);
3. see also John Tasioulas, "The Moral Reality of Human Rights," in Freedom from Poverty as a Human Right, ed. Thomas Pogge (Oxford: Oxford University Press, 2007), 75-101.
4. "Taking Rights out of Human Rights," Ethics 120 (2010): 647-78 (in this issue).
5. John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 27 and 79.
6. John Rawls, The Law of Peoples, Ibid., 80.
7. John Rawls, The Law of Peoples, Ibid.
8. Charles Beitz, "Human Rights and the Law of Peoples," in The Ethics of Assistance: Morality and the Distant Needy, ed. Deen K. Chatterjee (Cambridge: Cambridge University Press, 2004), 196.
9. See also Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), 7-12 and 102-6, where the idea of a "practical conception" is laid out in detail.
10. Beitz, "Human Rights and the Law of Peoples," 197.
11. Ibid., 202-3.
12. See also Beitz, The Idea of Human Rights, 41-42, 65, and 143.
13. See Beitz, The Idea of Human Rights, 33-40.
14. Joseph Raz, "Human Rights without Foundations," in The Philosophy of International Law, ed. Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010), 321-38, 328.
15. Jean Cohen also holds the view that the function of human rights is "to override, or set limits to the domestic jurisdiction of states"; thus she argues for a very limited "subset of legally institutionalized and enforceable international human rights" ( Jean Cohen, "Rethinking Human Rights, Democracy, and Sovereignty in the Age of Globalization," Political Theory 36 [2008]: 578-606, at 582 and 599).
16. Raz, "Human Rights without Foundations," 336.
17. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2001).
18. R. J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), 48-49.
19. Joshua Cohen, "Minimalism about Human Rights," Journal of Political Philosophy 12 (2004): 190-213, at 192.
20. Joshua Cohen, "Minimalism about Human Rights," Journal of Political Philosophy Ibid., 197, emphasis in original.
21. Joshua Cohen, "Minimalism about Human Rights," Journal of Political Philosophy, 2004, 12, 197 Ibid.
22. Ibid., 199.
23. Ibid., 210.
24. Joshua Cohen, "Is There a Human Right to Democracy?" in The Egalitarian Conscience: Essays in Honour of G. A. Cohen, ed. Christine Sypnowich (Oxford: Oxford University Press, 2006), 226-48.
25. I agree with Allen Buchanan's point that neglect of the historical dimension of human rights might be a reason for the inattention in recent human rights discourse to the status-egalitarianism expressed by human rights. See his "The Egalitarianism of Human Rights," Ethics 120 (2010): 679-710, at 688 (in this issue).
26. It is important to note that this was often qualified as "well-affected," restricting the claim to political equality to persons with a certain degree of economic independence. On this, see the famous Putney Debates of 1647 documented in Arthur S. P. Woodhouse, ed., Puritanism and Liberty (Chicago: University of Chicago Press, 1953). What I point to here is a certain logic of the historical argument for human rights that has also been used to criticize their concrete historical forms.
27. John Lilburne, "England's Birth-Right Justified" (1645), in Tracts on Liberty in the Puritan Revolution, vol. 3, ed. W. Haller (New York: Octagon, 1965), 303.
28. See also Rainer Forst, Toleranz im Konflikt: Geschichte, Gehalt und Gegenwart eines umstrittenen Begriffs (Frankfurt/Main: Suhrkamp, 2003), chaps. 5 and 6 (an English translation titled Toleration in Conflict is forthcoming from Cambridge University Press).
29. See Richard Saage, Herrschaft, Toleranz, Widerstand: Studien zur politischen Theorie der niederländischen und der englischen Revolution (Frankfurt/Main: Suhrkamp, 1981).
30. Thomas Paine, Rights of Man, Common Sense, and Other Political Writings (Oxford: Oxford University Press, 2008).
31. The democratic point of human rights is also stressed by Lefort's reading of the declaration in Claude Lefort, "Politics and Human Rights," in The Political Forms of Modern Society, ed. John B. Thompson, trans. Alan Sheridan (Cambridge: Polity, 1986), 239-72.
32. Christoph Menke and Arnd Pollmann (Philosophie der Menschenrechte [Hamburg: Junius, 2007]) also stress the political character of the Universal Declaration as a reaction to totalitarian government, yet they see this as a historical break rather than a continuation.
33. Jürgen Habermas, "Discourse Ethics: Notes on a Program of Philosophical Justification," in Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholsen (Cambridge, MA: MIT Press, 1990), 43-115;
34. Ronald Dworkin, "Foundations of Liberal Equality," in The Tanner Lectures on Human Values XI, ed. Grethe B. Peterson (Salt Lake City: University of Utah Press, 1990), 1-119, here at 9.
35. I have adapted the distinction in Rainer Forst, Contexts of Justice: Political Philosophy beyond Liberalism and Communitarianism, trans. John M. M. Farrell (Berkeley: University of California Press, 2002).
36. Charles Larmore, The Autonomy of Morality (Cambridge: Cambridge University Press, 2008), chap. 6, also argues for a norm of moral respect as the basis for a publicly justifiable basic structure; he restricts this, however, to the political realm of justification.
37. Griffin, On Human Rights, 4.
38. Ibid., 32.
39. Ibid., 33 and 51.
40. Ibid., 35.
41. Ibid., 46 and 49.
42. Ibid., 18.
43. See my Toleranz im Konflikt, chaps. 4-6.
44. Griffin, On Human Rights, 10-11.
45. Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law (1673), ed. James Tully, trans. Michael Silverthorne (Cambridge: Cambridge University Press, 1991), 61.
46. Griffin, On Human Rights, 13.
47. Ibid., 38.
48. Ibid., 35.
49. Ibid., 45.
50. Ibid., 32.
51. Ibid., 135.
52. In Rainer Forst, Das Recht auf Rechtfertigung: Elemente einer konstruktivistischen Theorie der Gerechtigkeit (Frankfurt/Main: Suhrkamp, 2007, English translation forthcoming as The Right to Justification from Columbia University Press), chaps. 1 and 2, I discuss the moral foundations of this view. As opposed to the interpretation of my approach by Menke and Pollmann, Philosophie der Menschenrechte, 57-68, I see the duty of justification as a duty of both practical reason and morality. The ground of human rights is the moral recognition of the other as having a right to justification, but that kind of recognition is an imperative of moral practical reason.
53. Griffin, On Human Rights, 247.
54. Ibid., 45.
55. Ibid., 163.
56. I have discussed this more fully in my Toleranz im Konflikt, 736-42.
57. This is not to say that ethical considerations are irrelevant for the justification of rights claims; rather, they are insufficient to establish the normative character of such claims as reciprocally and generally binding.
58. Griffin, On Human Rights, 24;
59. see also his critique of Raz in James Griffin, "Human Rights and the Autonomy of International Law," in Besson and Tasioulas, The Philosophy of International Law, 339-56.
60. For a comprehensive treatment of these issues, see Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004);
61. A more skeptical view is expressed in Jean Cohen, "Whose Sovereignty? Empire versus International Law," Ethics and International Affairs 18 (2004): 1-24.
62. Jean Cohen, "Rethinking Human Rights, Democracy and Sovereignty in the Age of Globalization," 591.
63. following MichaelWalzer, "The Moral Standing of States," Philosophy and Public Affairs 9 (1980): 209-29, at 214.
64. Buchanan, Justice, Legitimacy, and Self-Determination, chap. 6.
65. Beitz, "Human Rights and the Law of Peoples," 203.
66. See also Beitz, The Idea of Human Rights, 33-40.
67. Even though Beitz criticizes minimalist views of human rights (see Beitz, The Idea of Human Rights, 106 and 142), his own critique of the human right to democratic institutions (ibid., 185) attests to the reductivist tendency in "practical" approaches.
68. John Rawls, "The Domain of the Political and Overlapping Consensus," in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 473-96, 491.
69. Rawls, The Law of Peoples, 65 and 71.
70. Ibid., 10, italics in original.
71. Ibid., 61.
72. Cohen, "Minimalism about Human Rights," 197.
73. Ibid., 210-13.
74. Cohen, "Is There a Human Right to Democracy?" esp. 233.
75. Ibid., 244.
76. Ibid., 233.
77. Ibid., 234.
78. Cohen, "Minimalism about Human Rights," 211.
79. On this point, see also Seyla Benhabib's argument based on the idea of a "right to have rights" in her "Is There a Human Right to Democracy? Beyond Interventionism and Indifference," The Lindley Lecture, University of Kansas, 2007.
80. Cohen, "Is There a Human Right to Democracy?" 237.
81. Cohen, "Minimalism about Human Rights," 193.
82. See Rainer Forst, "Political Liberty: Integrating Five Conceptions of Autonomy," in Autonomy and the Challenges to Liberalism: New Essays, ed. John Christman and Joel Anderson (Cambridge: Cambridge University Press, 2005), 226-42.
83. Cohen, "Minimalism about Human Rights," 197 and 198.
84. Ibid., 199.
85. Ibid., 210.
86. See also my critique of Rawls in Contexts of Justice, chaps. 3.1 and 4.2, as well as my The Right to Justification, chap. 4.
87. I do not deny that a free-standing notion of respect can be incorporated into different "background justifications" of cultural and religious kinds, to use a phrase by Charles Taylor, "Conditions of an Unforced Consensus on Human Rights," in The East Asian Challenge for Human Rights, ed. Joanne R. Bauer and Daniel A. Bell (Cambridge: Cambridge University Press, 1999), 124-44. However, these backgrounds must not lead to interpretations of what kind of respect is owed to whom that reproduce the inequalities and asymmetries that human rights are supposed to correct. Given the moral grammar and social function of human rights, they need to have a moral weight of their own that can counterbalance "traditional" hierarchical or patriarchal normative outlooks.
88. As discussed, e.g., in Bauer and Bell, The East Asian Challenge for Human Rights, and in Daniel A. Bell, East Meets West: Human Rights and Democracy in East Asia (Princeton, NJ: Princeton University Press, 2000).
89. In the remainder of this section, I condense an argument I make at greater length in Rainer Forst, "The Basic Right to Justification: Toward a Constructivist Conception of Human Rights," trans. Jonathan M. Caver, Constellations 6 (1999): 35-60.
90. Uma Narayan, "Contesting Cultures: Westernization, Respect for Cultures, and Third-World Feminists," in The Second Wave: A Reader in Feminist Theory, ed. LindaNicholson (New York: Routledge, 1997), 396-418, at 412.
91. Uma Narayan, "Essence of Culture and a Sense of History: A Feminist Critique of Cultural Essentialism," in Decentering the Center: Philosophy for a Multicultural, Postcolonial and FeministWorld, ed.Uma Narayan and Sandra Harding (Bloomington: Indiana University Press, 2000), 80-100, at 91.
92. On the notion of democracy implied here, see Rainer Forst, "The Rule of Reasons: Three Models of Deliberative Democracy," Ratio Juris 14 (2001): 345-78.
93. This also holds true for persons who cannot use their right to justification in an active sense, such as (to some extent) children or mentally disabled persons; the passive status of having that right does not depend on its active exercise.
94. I explain the difference to Rawls in Forst, "The Basic Right to Justification," 45-46.
95. The latter aspect is stressed by Buchanan, "The Egalitarianism of Human Rights."
96. I modify here the "not reasonable to reject" formulation of Scanlon's contractualist theory of justification; see Thomas Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998), esp. chap. 5. I discuss the differences between Scanlon's contractualism and discursive constructivism in The Right to Justification, chaps. 1 and 2.
97. This also captures the historical meaning of these rights; in briefly mentioning the social struggles of the Levellers, I pointed out that they were directed against feudalism as a social order as well as against absolute monarchy as a political order.
98. That worry has been raised, in different ways, by Allen Buchanan, James Griffin, and John Tasioulas, to whom I am particularly grateful.
99. I agree with Griffin (On Human Rights, 41) on that point.
100. In an important sense, I share Habermas's idea of the "equiprimordiality" of personal and political autonomy as well as of human rights and popular sovereignty, as explained in Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996), esp. chap. 3.
101. In another sense, however, I diverge from it, for my notion of equiprimordiality sees the right to justification as one source for both, while Habermas sees different sources at work. In addition, none of these has the moral status of the right to justification for which I argue. For a discussion of this, see Rainer Forst, "The Justification of Justice: Rawls's Political Liberalism and Habermas's Discourse Theory in Dialogue," in The Right to Justification, chap. 4.
102. Charles Beitz, "What Human Rights Mean," Daedalus 132 (2003), 36-46, at 44.
103. In his The Idea of Human Rights, 142-43, Beitz distances himself from this view, however. For another example of that position.
104. see Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity, 2002), chap. 1.
105. See Rainer Forst, "Towards a Critical Theory of Transnational Justice," in Global Justice, ed. Thomas Pogge (Oxford: Blackwell, 2001), 169-87.
106. See Pogge's argument in World Poverty and Human Rights, 58.
107. Pogge discusses the case in which the state is not willing to act and categorizes it as a kind of "official disrespect" (ibid., 61).
108. For the notion of "mediation" here, see Henry Shue, "Mediating Duties," Ethics 98 (1988): 687-704.
109. This point is stressed by Jürgen Habermas in his "Remarks on Legitimation through Human Rights," in The Postnational Constellation, trans. Max Pensky (Cambridge, MA: MIT Press, 2001), 113-30,
110. "Does the Constitutionalization of International Law Still Have a Chance?" in The Divided West, trans. Ciaran Cronin (Cambridge: Polity, 2006), 113-93.
111. See Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace, Jovanovich, 1979), chap. 9;
112. for an interpretation and application of this thought, see Seyla Benhabib, The Rights of Others (Cambridge: Cambridge University Press, 2004), chap. 2.