Constellations Volume 20, Number 1, 2013
to think of the human rights we encounter in the discourse of contemporary global politicallife as coming from the same mold and sharing the same features.For one thing, it mischaracterizes the intentions of the founders of modern humanrights. The original Commission on Human Rights—the committee that drafted the 1948declaration—actually considered whether to present human rights as belonging to humanbeings “by nature.” They decided not to, on the grounds that this would be parochial. Theydid not believe that a public international doctrine of human rights should embed a strongview about the basis of human rights. They thought of human rights, as Jacques Maritain putit, as “practical conclusions which, although justified in different ways by different persons,are principles of action with a common ground of similarity for everyone.”
principles,createdto do a certain kind of work in the discourse of global politics. They are not presented asprinciples for a state of nature or for a generic form of society abstracted in time and space.They are principles for the public life of global politics in a modern world. Human rights arenot the same thing as principles of justice, but they aim to play a similar public role: theyfunction as a public basis of political criticism in a morally diverse world. This is part of what makes modern human rights a revolutionary idea.I will not say more here about the appropriateness of the natural rights model as a basisfor conceiving of human rights as we find them in contemporary international doctrine.
Theessential point is that, although we might believe that natural rights-like considerations serveas normative foundations of human rights, or anyway of some of them, nothing compels usto adopt this model for answering what I called the “prior question” of the nature of humanrights. This is important once we recognize the (perhaps non-obvious) ways that the naturalrights paradigm can exert pressure to constrain the normative content of human rights andto shape the kinds of reasons for action to which violations might give rise. I believe we dobetter to abandon philosophical preconceptions about the nature of human rights and think of them
, as the norms of an actually existing global practice. We should try toanswer the question “What are human rights?” by inspecting the practice and working upa model of the idea of a human right from a grasp of the roles the idea plays within thepractice. I call this a “practical approach.”This is an unorthodox way to think about human rights. I was led to it by reflecting onthe conception of human rights presented by John Rawls in
The Law of Peoples
Rawlsdescribes human rights as a special kind of norm for a “Society of Peoples.” Their role isto set a limit to international toleration: a society whose government respects the humanrights of its people is entitled to be treated by other societies as an independent locus of self-determination, whereas a society whose government violates its people’s human rightsmakesitselfvulnerabletoforcefulinterventiontoprotectthepeopleagainsttheirgovernment(andperhapseachother).InRawls’sview,humanrightsarenottobeconfusedwithnaturalor“fundamental” rights; they do not, as he writes, embody any comprehensive doctrine. Theyare “a special class of urgent rights” designed to play a certain role in the public discourseof the Society of Peoples.
SomepeoplemightregardRawls’sconceptionofhumanrightsasobjectionableinvariousways. For example, without much argument he restricts the substantive content of humanrights to only some of the protections found in contemporary international human rightsdoctrine. He has very little to say about the moral basis of human rights. And the idea thatcoerciveinterventionistheonlyinternationalremedyforviolationsofhumanrightsisplainlyunrealistic.
All three objections have some force. But I believe the idea of human rights as
norms for global politics survives them.
2013 Blackwell Publishing Ltd.