Humanist and political perspectives on human rights

Political Theory

Volumn 39, Issue 4, 2011, Pages 439-467

  Gilabert, Pablo ^a  

^a Gina Cody School of Engineering and Computer Science   (Canada)

Author keywords

Global justice; Human rights; Humanism; Political conception of rights

Indexed keywords

EID: 79960513314     PISSN: 00905917     EISSN: 15527476     Source Type: Journal    
DOI: 10.1177/0090591711408246     Document Type: Article

References (78)

1. Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999).
2. Cohen, "Minimalism about Human Rights: The Most We Can Hope For?" Journal of Political Philosophy 12 (2004): 190-213.
3. Beitz, "What Human Rights Mean, " Daedalus 132 (2003): 36-46 (henceforth WHRM).
4. "Human Rights and the Law of Peoples, " in The Ethics of Assistance, ed. D. K. Chatterjee (Cambridge: Cambridge University Press, 2004), 193-214 (HRLP).
5. "Human Rights, " in A Companion to Contemporary Political Philosophy, 2nd ed., ed. R. Goodin, P. Pettit, and T. Pogge (Oxford: Blackwell, 2007), 628-637 (HR).
6. The Idea of Human Rights (Oxford: Oxford University Press, 2009) (IHR).
7. See A. J. Simmons, "Human Rights and World Citizenship: The Universality of Human Rights in Kant and Locke, " in Justification and Legitimacy (Cambridge: Cambridge University Press, 2001). Contemporary defenders of humanism include Allen Buchanan, Simon Caney, James Griffin, and Martha Nussbaum. See references in the next section.
8. In "Human Rights: A Freedom Centered View" (manuscript), Laura Valentini also pursues a combination of both perspectives.
9. As I will show, the issues in this conceptual matrix are related. For example, a full account of content will need to address issues regarding correlative duties and feasibility.
10. IHR, 48-49, see 102-4.
11. IHR, 50-51, 96.
12. WHRM, 41.
13. see IHR, 55. The rights mentioned are included in Articles 10, 21, and 26 of the Declaration.
14. See Ian Brownlie and Guy Goodwin-Hill, Basic Documents on Human Rights, 5th ed. (Oxford: Oxford University Press, 2006).
15. For the skepticism worry, see Beitz, IHR, 50, 53, 66-67, 138.
16. However, some rights in the Declaration are extremely abstract (e.g., Art. 3: "everyone has the right to life, liberty and security of person"), and some rights that appear in the Covenants, and in international treaties and in national constitutions and laws are even more specific.
17. James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), 32-33.
18. James Nickel, Making Sense of Human Rights, 2nd ed. (Oxford: Blackwell, 2007), 62.
19. For similar approaches see Allen Buchanan, Justice, Legitimacy, and Self-determination (Oxford: Oxford University Press, 2004), 128-31.
20. Simon Caney, "Global Poverty and Human Rights: The Case for Positive Duties, " in Freedom from Poverty as a Human Right, ed. T. Pogge (Oxford: Oxford University Press, 2007), 275-302.
21. Amartya Sen, "Elements of a Theory of Human Rights, " Philosophy and Public Affairs 32 (2004): 315-56.
22. Martha Nussbaum, Frontiers of Justice (Cambridge, MA: Harvard University Press, 2006), 69-81, 284-91. Nussbaum's account includes conditions securing people's capabilities with respect to life; bodily health; bodily integrity; the use of their senses, imagination, and thought; the engagement of their emotions; the use of their practical reason; the development of social affiliation; the concerned relation with other species; activities involving play; and the control of their political and material environment.
23. A combination of the views mentioned would be appropriate. Griffin is correct in highlighting the specificity of normative agency in distinguishing humans from other beings. But human rights need not only protect human interests that are not also interests of other beings. What is crucial is that human rights protect extremely important concerns that all humans have. The decisive contrast is between what humans need only as members of a specific group or society and what humans need in any context. Some of the latter may be similar to what other beings need (e.g., staying alive, or avoiding excruciating pain).
24. This is why I prefer the term "humanism" rather than "naturalistic theory. " Both views see human rights, at the fundamental level, as moral claims every person has against every other in virtue of their shared humanity, and take these rights to have normative precedence over, and serve to judge, specific institutions. But humanism need not also endorse the contentious assumptions many traditional defenders of natural law theory had regarding human nature and the methodology for deriving rights from it. Beitz recently acknowledged that a "naturalistic" view could be developed that is not asocial. But he argues that it still (1) fails to "incorporate or make use of considerations about the discursive functions of human rights within existing practice"; (2) narrowly focuses on the perspective of beneficiaries of human rights promotion without illuminating the perspective of contributors; (3) its "normative content" is "likely to fall short of the list of protections actually found in international human rights doctrine"; and (4) problematically assumes that where there are discrepancies between international doctrine and naturalistic theory the latter must have at least prima facie precedence (IHR, 65-68). I defuse challenges (1) and (3) in this section, and (4) and (2) in sections "Coherence with Practice and Justification" and "Correlative Duties. "
25. Some general features of the human condition of this kind underpin the need for legal structures in the first place. H. L. A Hart, The Concept of Law,2nd ed. (Oxford: Oxford University Press, 1994), 91-98, 193-200.
26. IHR, 138.
27. WHRM, 42.
28. see IHR, 71-2.
29. WHRM, 42. "International human rights, to judge the contents of the Declaration and covenants, are suited to play a role in a certain range of societies... that have at least some of the defining features of modernization: a reasonably well-developed legal system..., an economy with some significant portion of employment in industry rather than agriculture, and a public institutional capacity to raise revenue and provide essential collective goods" (43).
30. See IHR, 57-58.
31. HRLP, 198.
32. "The practical view, by contrast [to the "orthodox" or "philosophical" view], takes the doctrine and discourse of human rights as we find it in the international political practice as basic. Questions like What are human rights? What human rights do we have? and Who has duties to act when human rights are violated? are understood to refer to objects of the sort called 'human rights' in contemporary international life, however these are best conceived. There is no assumption of a prior or independent layer of fundamental values whose nature and content can be discovered independently of reflection about the international realm and then used to interpret and criticize international doctrine. Instead, the functional role of human rights in international discourse and practice is regarded as definitive of the idea of a human right, and the content of international doctrine is worked out by considering how the doctrine would best be interpreted in light of this role. " (HRLP, 197.
33. see IHR, 102-3).
34. Beitz's "hope is to replace conceptions of human rights that invite skepticism with one that is more sympathetic to the aims and conduct of the existing practice without sacrificing a capacity to criticize it" (IHR, 198-9).
35. See WHRM, 46.
36. HRLP, 205.
37. IHR, 105.
38. See also Beitz's critique of "agreement theories" (IHR, ch. 4), and his sharp defense of women's rights in the face of conflict with prevailing moral beliefs in some cultures (IHR, 191-4). In "Justice and the Priority of Politics to Morality" (Journal of Political Philosophy 16 (2008), 137-64), Andrea Sangiovanni proposes a nuanced political view that it is not a form of conventionalism but an interpretive approach to institutions that includes three stages: (1) a "pre-interpretive stage" identifying the shared object of interpretation; (2) an "interpretive stage" reconstructing the point and purpose of the interpreted institutions and of the relevant agents' reasons for affirming the institutions' basic rules, procedures, and standards; and (3) a "post-interpretive stage" that, in an explicitly critical mode, extends the interpretive understanding of the institutions and derives a set of first principles to regulate them. A problem with this proposal is that it is not clear how (3) differs from (2) in a way that grounds critical leverage on the standards identified in it. If the deliverances of (3) are not a mere description of the core assumptions of the operating reasons identified in (2), but a set of justifying reasons with the help of which we could assess them, where do such justifying reasons come from?
39. See, respectively, the essays in Pogge, Freedom from Poverty as a Human Right.
40. and Maurice Cranston, What Are Human Rights? (London: Bodley Head, 1973).
41. Carol Gould, Globalizing Democracy and Human Rights (Cambridge: Cambridge University Press, 2004).
42. Joshua Cohen, "Is There a Human Right to Democracy?" in The Egalitarian Conscience, ed. C. Sypnowich (Oxford: Oxford University Press, 2006), 226-48.
43. See the general discussion in Amartya Sen, Development as Freedom (New York: Anchor Books, 1999).
44. IHR, 105-6.
45. IHR, 108.
46. Rawls, The Law of Peoples.
47. James Nickel, "Are Human Rights Mainly Implemented by Intervention?" in Rawls's Law of Peoples. A Realistic Utopia?, ed. R. Martin and D. Reidy (Oxford: Blackwell, 2006), 263-77.
48. Henry Shue, "Mediating Duties, " Ethics 98 (1988): 687-704.
49. Thomas Pogge, World Poverty and Human Rights, 2nd ed. (Cambridge: Polity, 2008).
50. These discussions were already present among the drafters of the Declaration. See Mary Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001). An example regarding the issue of responsibility is the insistence by René Cassin that duties of individuals (as well as institutions below and above the state) are as crucial as the duties of states (93, 113-14). This is why Cassin proposed, just before its adoption, that the title of the Declaration be changed to "Universal Declaration of Human Rights" from "International Declaration of Human Rights. " Glendon explains: "The title 'Universal,' [Cassin...] later wrote, meant that the Declaration was morally binding on everyone, not only on the governments that voted for its adoption. The Universal Declaration... was not an 'international' or 'intergovernmental' document; it was addressed to all humanity and founded on a unified conception of the human being" (161). The last paragraph of the Declaration's Preamble confirms this view, saying that it presents "a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society... shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance. " See also the Convention for the Elimination of all Forms of Discrimination against Women, which ranges over "the political, economic, social, cultural, civil or any other field" (Art. 1).
51. IHR, 10-11, 104-6, 126. Of course, an account of meaning affects any account of content and justification. Beitz acknowledges this, but he does not consider that the relation also goes the other way around.
52. IHR, 197.
53. IHR, 109, 137.
54. IHR, 109, 114-15, 128-29.
55. On the distinction between descriptive and deliberative accounts of reflective equilibrium see T.M. Scanlon, "Rawls on Justification, " in The Cambridge Companion to Rawls, ed. S. Freeman (Cambridge: Cambridge University Press, 2003), 139-67.
56. Even within a coherentist epistemological outlook, certain substantive moral principles may operate as relatively invariant. See Geoffrey Sayre-McCord, "Coherentist Epistemology and Moral Theory, " in Moral Knowledge, ed. W. Sinnot-Armstrong and M. Timmons (New York: Oxford University Press, 1996), 137-89, 151.
57. As Mary Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), 176 argues, this renders the Declaration incompatible with a legal positivist reading. The Declaration recognizes rights; it does not confer them.
58. See Mary Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001). The drafters of the Declaration consulted an international UNESCO committee including thinkers from a great variety of traditions. They concluded that agreement was possible on some core convictions on the basis of which the Declaration could be articulated, but also that it would not be wise to try to go behind them to jointly determine what more fundamental religious, moral, or philosophical doctrine most successfully grounded them (77-78, 112, 222, 226). Notice that this conclusion does not say that no philosophical ideas or values are important to the international political debate on human rights, but that they need not be as deep as those that inevitably arise in more comprehensive philosophical exercises (within specific cultures, religions, or foundational moral theories). Although the drafters put ultimate principles aside, they certainly discussed and adopted substantive moral views (38-42, 68-69, 75-76, 141-42, 146-47), including explicit humanist considerations regarding people's common humanity, their basic interests, and dignity in social life in general (227-33).
59. "Minimalism About Human Rights, " 192.
60. Cohen, "Minimalism About Human Rights, " 192.
61. Kenneth Baynes, "Discourse Ethics and the Political Conception of Human Rights, " Ethics & Global Politics 2 (2009): 1-21.
62. WHRM, 44.
63. See IHR, 58.
64. Mary Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), ch. 12.
65. The contrast is particularly strong with Rawls's account in The Law of Peoples, which takes peoples rather than individuals as the ultimate units of international normative analysis, and shortens the Declaration's list of human rights to fit the preferences of certain cultural frameworks. A humanist might accept, as a pragmatic matter, that some claims should not be pushed through foreign intervention. But they would not infer that they are not human rights, or that they should not be among the central issues in global public reasoning. Other political views are less restrictive. Cohen takes individuals, not peoples, as the basic normative units, and sees global public reason as treating human rights as "norms associated with an idea of membership or inclusion in an organized political society" leaving it open whether the relevant political society is national or global ("Minimalism About Human Rights, " 197). See also Beitz, "Social and Cosmopolitan Liberalism, " International Affairs 75 (1999), 515-29.
66. David Held, Global Covenant (Cambridge: Polity, 2004).
67. See Preamble and Articles 22 and 28 of the Declaration and Articles 2.1, 11.2, 13.2, 14, and 23 of the Covenant.
68. For a classical statement of the critique see Cranston, What Are Human Rights? For how rights and goals might relate.
69. see Nickel, Making Sense of Human Rights, 24-26, 81.
70. Beitz, HR, 631.
71. They are not the only immediate duty-bearers. If Harry is lying on the street and will die unless emergency assistance is provided, Mary may not say that she is permitted not to give first aid before an ambulance arrives because it is only the duty of the official health care system to assist people like Harry. Mary's obligation is grounded on Harry's human rights. Furthermore, since sometimes institutions work very badly and help is needed urgently, people sometimes have reason to act without waiting for institutions to intervene or be reformed.
72. Pablo Gilabert, "Contractualism and Poverty Relief, " Social Theory and Practice 33 (2007), 277-310.
73. IHR, 109.
74. Similar considerations apply to rights that are less directly related to moral rights of all against all-such as certain civil and political rights framing the relation between governments and their citizens. As we saw in the "Content" section, such rights can be seen as specifications of deeper, general abstract rights. Given that, and a humanist commitment to universal solidarity, we can couple agent-relative duties to improve the fulfillment of the rights of one's fellow citizens with agentneutral duties to foster the rights of citizens in any political framework.
75. Pablo Gilabert, "Global Justice and Poverty Relief in Nonideal Circumstances, " Social Theory and Practice 34 (2008): 411-38.
76. IHR, 42-44. See 121 on historical expansions of feasibility sets.
77. We can, with Rawls, see a conception of human rights as a "realistic utopia" whose demands are both desirable and feasible, and notice that the limits of the "practicably possible" are not easy to grasp because they "are not given by the actual, for we can to a greater or lesser extent change political and social institutions and much else" (Law of Peoples, 5-7, 12). However, Rawls's own account fails to sufficiently probe the extent to which we can indeed change our contemporary institutions and the culture underpinning them. We should also reconsider Beitz's recommendation of a state-centric view of human rights practice, warning caution regarding the suggestion that we "take certain basic facts about the world's political structure as fixed and consider the purpose of a practice of human rights within this structure" (IHR, 128). It is not just that some of our normative aims may have to change when some facts change. We may also have to change some facts to fit our existing sound normative aims.
78. Pablo Gilabert, "The Feasibility of Basic Socioeconomic Human Rights: A Conceptual Exploration, " Philosophical Quarterly 59 (2009): 659-81.