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Beitz From Practice to Theory

Beitz From Practice to Theory

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Published by: Liga da Justica Um Blog de Teoria Política on Mar 08, 2013
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From Practice to Theory
Charles R. Beitz
In the years since the collapse of communism we have seen an expansion in the normativescope and political vitality of the international practice of human rights. The subject hastherefore attracted renewed philosophical attention. This of course is all to the good. Ibelieve, however, that some philosophical discussion of human rights has suffered from akind of misdirection of emphasis and occasionally some normative distortion as a result of trying to interpret the practice in light of traditional ideas of natural or fundamental rights.My aim here is to outline another way of thinking about human rights, or more precisely,about the kinds of things that human rights are, that takes guidance more directly from thepractice. These remarks draw on the view I present in my book,
The Idea of Human Rights
[henceforth
IHR
], where the main points are developed in what I hope is less dogmatic if notmore persuasive detail.
1
I will comment on three related subjects: first, the value of what I call a “practical”approach to thinking about human rights; second, the conception of human rights thatsuggests itself when we pursue such an approach; finally, the difference this makes, ormight make, in our thinking about the normative contents of human rights doctrine. In thisconnection I take up briefly and as an illustration the case of domestic violence as a subjectof human rights.
I. A Practical Approach
The elaboration of an international doctrine and practice of human rights is one of the mostimpressive of the legacies of the settlement of World War II. Yet it is now a commonplacethat the discourse of human rights is in various ways troubled. For example, the normativecontent of human rights is expanding and it is unclear on what basis the expansion should (if it should) be constrained. Particularly in view of its normative breadth, it is unclear whethera unified account of the moral foundations of human rights is possible, and if so what itwould be like. And it is unclear how international responsibilities to act in the face of localviolations should be allocated or what moral considerations might explain why agents withthe capacity to act should do so. These are the main questions that a philosophical theoryof human rights should address, but I will only comment about them briefly, and at the end.There is a prior question, an answer to which is presupposed by all three of the problemsI’ve just listed. This is the question of the nature of human rights. What does it mean to sayof some value that it is a “human right?”One way to answer this question would be to think of human rights as the expressionin international moral discourse of an abstract philosophical idea that can be found in thehistory of political and legal thought. You might think, for example, that human rights can beunderstood on the model of the natural rights that were prominent in the political thought of the 17th and 18th centuries and that informed the French and American Revolutions and thedeclarations of rights they produced. It is true, of course, that the natural rights tradition wasan important influence on more recent thought about human rights. But it can be misleading
Constellations Volume 20, No 1, 2013.
C
2013 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
 
28
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.”
2
Maritain’sobservationsuggestsasecondpoint.Humanrightsare
 public
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.
3
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
sui generis
, 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
.
4
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.
5
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.
6
All three objections have some force. But I believe the idea of human rights as
sui generis
norms for global politics survives them.
C
2013 Blackwell Publishing Ltd.
 
From Practice to Theory: Charles R. Beitz
29
To develop this idea let me comment first about the claim that human rights is a globalpractice and then about the significance of this fact for conceiving of human rights.The global human rights enterprise constitutes a normative practice in this sense: itconsists of a set of rules for the regulation of the behavior of a class of agents, a more-or-lesswidespread belief that these rules ought to be complied with, and some institutions, quasi-institutions and informal processes for their propagation and implementation. It is a
social
practice, in the sense that it exists within a discursive community whose members recognizethe practice’s norms as reason-giving and use them in deliberating and arguing about how toact.Forhumanrights,thecommunityisglobalinscopeandconsistsofaheterogeneousgroupofagents.Theyincludethegovernmentsofstates,internationalorganizations,participantsinthe processes of international law, economic actors such as business firms, members of non-governmentalorganizationsandparticipantsindomesticandtransnationalpoliticalnetworksand social movements. The practice is not as well formed as normative practices of longerstanding; we might describe it as emergent. This fact introduces some difficulties for theapproach I am suggesting (for example, it complicates the task of discerning the boundariesof the practice), but for now I will leave them aside.A practical approach tries to grasp the concept of a human right by examining the role orfunction this concept plays within the discursive practice. Human rights claims are supposedto be reason-giving for various kinds of political action that are open to a range of agents.We try to understand the idea of a human right by asking for what kinds of actions, in whichkinds of circumstances, human rights claims are typically understood as giving reasons. Theaim is to make explicit what one would be committed to believing, if one accepted a claimto the effect that people have human rights to this or that kind of protection.It is important to remember that the question about the nature of human rights is only oneof several questions that a good theory should try to answer. Some other things we mightwant to know are which values should count as human rights and what kinds of actionswould be justified in case of various kinds of infringements. The significance of the practice,in my view, is to inform an answer to the first question, about the nature or character of ahuman right. Once we have a grasp of this, we can ask what kinds of considerations wouldbe relevant to a judgment about the value of such a practice and about its normative content.But I don’t say, and it would be a mistake to believe, that an inspection of the practice can tellus which specific values should count as human rights or what an agent would be justifiedin doing in response to an infringement. To believe this would be to abandon the aspirationfor a basis on which to criticize the existing practice. A grasp of the idea of a human rightwill constrain what we can say about these further questions, but it will not answer them.
II. A Model of Human Rights
Even if we restrict ourselves to the question of the nature of human rights, the task of answering it generates a substantial research agenda, most of which is still to be carried out.For now, I can only give a brief sketch of what a plausible reply might be like.
7
I believe thata practical model of the idea of a human right would have three elements:1. Human rights are requirements which aim to protect urgent individual human interestsagainst predictable dangers to which they are vulnerable under the general circum-stances of modern life.2. Human rights are primarily requirements for institutions, which apply in the first in-stance to states. Each state is responsible for protecting the human rights of persons
C
2013 Blackwell Publishing Ltd.

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