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TOM CAMPBELL ABSTRACT Sceptical responses to the increasing variety of human rights claims have given rise to less ‘moral’ and more ‘political’ approaches to the philosophy of human rights. These political approaches focus on the current practice of human rights, and reject ‘traditional’ theories which seek to conceptualise human rights without sufficient reference to their current political functions. Drawing on Charles Beitz, and Joseph Raz, and using as an example the anti-poverty rights associated with global justice, this article endorses focusing on the political functions of human rights practice, including the mechanisms which feature in their institutionalisation. However, it suggests modifying the political approach to render it more inclusive of human rights morality and more interactive with respect to the relationship between human rights principles and human rights practice. Thus, assessing the case for adopting freedom from poverty as a human right is seen as requiring examination of the combined implications of the moral considerations relating to the elimination of poverty and the existing and potential practice of human rights institutions, including the mechanisms at work in the implementation of their policies.
Since the early 1970s, the discourse of human rights has achieved a remarkable prominence in the domain of politics and law.1 At the same time, how that discourse is best understood and how it might be improved upon, have become increasingly controversial questions. Moreover, the proliferation of human rights claims and the diversity of their practical uses have generated a measure of scepticism as to their
Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge MA: Harvard University Press, 2010), p.3: ‘The drama of human rights…is that they emerged in the 1970s seemingly from nowhere.’ See also N. Bobbio, The Age of Rights (Cambridge: Polity, 1996) and M. Loughlin, Sword and Scales: An Examination of the Relationship Between Law and Politics (Oxford: Hart, 2000), ch. 13.
meaning, purpose, content, practical implications moral justification. 2 While there is considerable cross cultural agreement on abstract statements of human rights, this agreement does not extend to their specific content, their practical implications, or how they ought to be institutionalised and implemented.3 In consequence, while there is widespread goodwill towards human rights, there is considerable doubt about how they should be conceptualised, and how to settle moral disagreements as to their content and scope, the political purposes they serve, and the legal and other mechanisms appropriate to their implementation. 4
A comparatively recent response to such human rights scepticism is the emergence of what has become known as ‘political’ 5 or ‘practical’6 or ‘functional’ 7, as opposed to
For instance, Mary Ann Glendon, Rights Talk: the impoverishment of political discourse (New York: Free Press 2001); Richard J. Arneson, ‘Against Rights’ Philosophical Issues 11 (2001): 172; Tom Campbell, K. D. Ewing and Adam Tomkins (eds.) Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2000); Raymond Guess, History and Illusion in Politics (Cambridge: Cambridge University Press, 2001); Costas Douzinas, Human Rights and Empire: the political philosophy of cosmopolitanism (London: Routledge-Cavendish 2007); and Sonu Bedi, Rejecting Rights (Cambridge: Cambridge University Press, 2009).
Examples include the debate over human rights-based judicial review of legislation within democratic polities (see J. Waldron, ‘The Core Case against Judicial Review’, Yale Law Journal; 115 (2006), 1346 and Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitution of Democracy (Cambridge: Cambridge University Press 2007), and the human rights rationale for humanitarian intervention (see Ned Dobos, Insurrection and Intervention: the two faces of sovereignty (Cambridge University Press, 2012).
Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999); Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001). Conor Gearty, Can Human Rights Survive? (Cambridge: Cambridge University Press, 2006); and Tom Campbell, K. D. Ewing and Adam Tomkins, eds, The Legal Protection of Human Rights: Sceptical Essays (Oxford: Oxford University Press, 2011);
Joseph Raz, ‘Human Rights without Foundations’ in Samantha Besson and John Tasioulas, (eds) The Philosophy of International Law (Oxford: Oxford University Press, 2010), pp. 321-338 at p. 327:‘The task of a theory of human rights is (a) to establish the essential features which contemporary human rights practice attributes to the rights it acknowledges to be human rights; and (b) to identify the moral standards which qualify anything to be so acknowledged. I will say that accounts which understand their task in that way manifest a political conception of human rights’. See also Andrew Vincent, The Politics of Human Rights (Oxford: Oxford University Press 2010).
Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), p.8: ‘I want to explore a different approach, one we might describe as practical. It aims to exploit the observation that the human rights enterprise is a global practice. The practice is both discursive and political. As a first approximation, we might say that it consists of a set of norms for the regulation of the behaviour of states together with a set of modes or strategies of action for which violations of norms may count as reasons.’
Beitz 2009, op. cit., p. 6: ‘the functions that the idea of a human right is meant to play, and actually does play, in the practice’. See James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), p.27:Why have recent writers (for examples, Feinberg, Dworkin, Nozik) so favoured structural or (Rawls, Beitz) legal-functional accounts of rights?’
‘traditional’8 ‘orthodox’ 9 or ‘natural law’10 approaches to identifying the distinctive nature of human rights. On the political approach, human rights are understood as socio-political constructs characterised by their distinctive functions or roles in various political arena. This is based on the contention that human rights are a contemporary political phenomenon which has developed out of the human rights practice arising from the Universal Declaration of Human Rights (1948) and the subsequent human rights activities associated with the various human rights conventions and treaties adopted since 1968. 11
Overtly ‘without foundations’ and firmly ‘practice-oriented’, the political approach renounces free-standing moral debate and abstract philosophical reflection on the issues which trouble human rights sceptics. Instead, the political approach concentrates on the human rights doctrines which operate within the political practice of human rights, particularly the functional roles which human rights norms play in the sphere of global politics and constitutional law. The normative program of the political approach directs our attention to what is primarily a sociological analysis of the current practice of human rights in politics and law, and commends that empirically informed moral reflection be directed to understanding and deploying the existing functions of human rights, principally from the perspective of those involved in these processes. This approach requires examination of the working assumptions concerning the meanings and purposes of human rights which feature in the discourse of those who are knowledgeable about or involved in, what Charles Beitz calls the ‘public political project’ of human rights.12 This discourse is held to have a certain authority deriving from its historical connection with the post World War II origins of human rights and the generally beneficial outcomes of current human rights practice. More particularly, human rights are conceived of as rights the violation of which merits international concern and may legitimate some degree and type of intervention
Raz op. cit, pp. 322-27. John Tasioulas, ‘Taking Rights our of Human Rights, Ethics 120 (4) (2010): 647-78 at 673. Beitz op. cit., ch. 3. Moyn op. cit., ch. 1; Beitz op. cit, ch. 2; Vincent op. cit., ch. 4. Beitz op. cit, ch. 2.
10 11 12
in the internal affairs of a state, which would otherwise be regarded as an infringement of the sovereignty of that state. This human rights intervention is related, in a variety of ways, to the special responsibility of states to protect and promote the interests of their citizens as identified in human rights declarations, conventions and treaties.13
This article explores both the advantages and the limitations of the political approach to human rights, making particular reference to global justice, particularly the controversial doctrine that freedom from poverty is a human right. 14 In brief, the perceived advantages of the political approach include (1) Providing a relatively clear empirical paradigm as to what human rights are all about, thus assuring the practical relevance of philosophising about human rights; (2) Highlighting the contexts in which is possible to formulate the content and scope of human rights at a level of specificity that is appropriate for their operationalisation in legal and political decision-making; and (3) By-passing some of the intractable philosophical disagreements concerning the conceptualisation and justification of human rights. The perceived limitations of the political approach relate (1) to the distancing of human rights from the moral imperatives underpinning their political salience and, in some cases, (2) its withdrawal from critical engagement with the purposes human rights are taken to serve and adequate evaluation of the mechanisms that have come to be associated with their implementation.
Further, a case is made for a compromise, more ‘interactive’ philosophical approach which, while keeping in focus the political purposes and institutional mechanisms of current and emerging human rights practice, retains significant continuity with those aspects of ‘traditional’ human rights philosophy that involve the elucidation and
Beitz op. cit., p. 13: ‘The central idea of international human rights is that states are responsible for satisfying certain conditions in their treatment of their own people and that failures or prospective failures to do so may justify some form of remedial or preventative action by the world community or those acting as its agents.’ Similarly, Raz op. cit., p. 328: ‘Following Rawls I will take human rights to be rights which set limits to the sovereignty of states, in that their actual or anticipated violation is a (defeasible) reasons for taking action against the violator in the international arena.’
Thomas Pogge (ed.) Freedom from Poverty as a Human Right (Oxford: Oxford University Press, 2007).
application of characteristic human rights values, such as life and liberty, which are indelibly associated with, and incorporated in, the discourse of human rights. The proposed, more interactive, approach endorses the contention, associated with the political approach, that the specific content, scope and form of human rights cannot be determined outside of a particular context which takes into account the actual processes and concrete mechanisms that are available and likely to be involved in its application. These mechanisms include judicial review of legislation, the legitimation of foreign intervention as well as less dramatic institutional processes such monitoring, publicity and diplomatic pressure. In contrast to a purely political approach, the interactive model involves what I will call human rights values in the conceptualisation of human rights, and give more prominence to critique of the purposes and mechanisms embedded in existing human rights practice. More tentatively, it is suggested that existing institutionalised purposes and operative human rights practices together with the context in which they are to operate should be taken into account not only in terms of their instrumental roles but also as potential source of reasons for modifying the specific articulation and prioritisation of the human rights values involved.
Thus, with respect to freedom from poverty as a human right, on the interactive approach attention must be paid to the implications of adopting such a human right in the contexts of current human rights practice, both domestically and internationally, as well as the sometimes competing moral foundations of the putative right to freedom from poverty, such as the relief of suffering,15 the enhancement of autonomy 16, the rectification of past and present wrongs 17 and the securing of peace. In addition to considering which mechanisms most effectively serve the human rights values and purposes involved, awareness of existing human rights practice may prompt us to give greater emphasis to the moral significance of , for instance,
Peter Singer, One World: The Ethics of Globalization (New Haven, CT: Yale University Press, 2002); Tom Campbell, ‘Poverty as a Violation of Human Rights: Inhumanity or Injustice’ in Thomas Pogge (ed.) Freedom from Poverty as a Human Rights: Who Owes What to the Very Poor? (Oxford: Oxford University Press, 2007), ch. 2
Griffin op. cit., ch. 8. Thomas Pogge, ‘Severe Poverty as a Human Rights Violation’, in Pogge op. cit. ch. 1.
humanity (or benevolence) and rather less emphasis to justice (or culpability and wrongfulness) when determining the sense in which freedom from poverty might be adopted as a human right. 18 Viewing this process from the polar extremes, neither the justifying purposes nor the existing mechanisms in their current contexts are fixed givens. Accordingly, normative reflection concerning human rights involves matching human rights values to human right mechanisms without giving unconditional conceptual or normative priority to either type of consideration.
Human Rights Scepticism
The political approach to the philosophy of human rights may be seen as a respon se to growing scepticism about human rights. In this respect, human rights have become victims of their own success. Now the preferred moral discourse of politics, the human rights brand attracts an ever widening variety of adherents and gives rise to an increasingly broad range of strategies and mechanisms. This, in turn, makes it more and more difficult to develop an overarching conceptualisation of human rights which has sufficient precision to provide adequate practical guidance as to what human rights are, what human rights are for, and how we should go about determining their content and scope.19
Thus, in relation to poverty, while there is broad agreement that poverty is an undesirable phenomenon and that states have the primary responsibility for eliminating extreme poverty within their own borders, it is unclear how this can be achieved and what difference it makes to designate freedom from poverty as a human right, particularly if the causes of poverty include factors external to the state in question.20 When it comes to implementation mechanisms, freedom from poverty is
See Tom Campbell, ‘Justice, Humanity and Prudence’ in Jonathan Boston (ed) Ethics and Public Policy (Canberra: ANU E-Press, 2010).
Raz goes as far as to assert that ‘There is not enough discipline underpinning the use of the term ‘human rights’ to make it a useful analytical tool. The elucidation of its meaning does not illuminate significant ethical or political issues.’ Raz op. cit., pp.336f.
Henry Shue, Basic Rights (Princeton NJ: Princeton University Press, 2nd edn, 1996); Elizabeth Ashford,, ‘The Duties Imposed by the Human Right to Basic Necessities’, in Thomas Pogge (ed.) 2007, op.cit., pp. 183-218.
highly controversial as, for instance, a criterion for use in judicial review of legislation,21 and is rarely proposed as a justification for systematic coercive international intervention. Indeed, freedom from poverty may be an unsuitable goal for which to provide any of the guarantees or enforcement mechanisms which might justify its description as a ‘right’ of any sort.22 Hence current scepticism surrounding the extension of human rights to incorporate considerations of global justice.
Examination of disagreement on such matters reveals underlying conceptual, moral and epistemological uncertainty about the very idea of human rights. Cumulatively, extensive cultural diversity and political disagreement with respect to the function and content of human rights diminishes the credibility of their claimed universality, overriding importance and purported self-evidence. As a result, the still powerful rhetoric of human rights is in process of losing much of its former appeal. This unsettles the theoretical and practical understandings of both the nature and the functions of human rights. This is exacerbated b y the fact that no philosophical position on the nature of human rights has achieved an ascendancy that stands above the trends in intellectual fashion, and no policy program is able to operationalise human rights in ways that are uncontroversial even amongst human rights adherents. This is a difficult situation for a terminology that is thought to operate in a realm that transcends political disagreement through an appeal to basic moral certainties.
The sort of human rights scepticism that prompts more political and less moral approaches to human rights focuses on certain strands within the philosophy of human rights, including what may be called (1) ‘moral monism’, (2) ‘descriptive naturalism’, and (3) ‘formal conceptualism’. Moral monists seek out a normative thread that leads back to the single moral basis for the idea of human rights, usually drawing on the natural rights tradition with its emphasis on individual autonomy and the associated idea of ‘respect for persons’, as derived from enlightenment
James W. Nickel, Making Sense of Human Rights, (Oxford: Blackwell, 2nd edn. 2007), ch 9; Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008), ch. 2.
Onora O’Neill, ‘The Dark Side of Human Rights’, International Affairs 81 (2005): 427-39
philosophers, such as Immanuel Kant.23 Descriptive naturalists pursue a mainly secularised version of the sort of natural law theory which seeks to identify a number of authentic human characteristics, capacities or needs derived from our knowledge and understanding of human nature and human circumstances.24 Formal conceptualists, in their concern with the meaning of rights discourse and the categorisation of ‘human’ rights within an analytical scheme, seek to identify what they claim to be the content-neutral distinctiveness of rights in general and human rights in particular, on the basis of such factors as their (human) universality and their normative overridingness..25
As advocates of the political approach, such as Beitz, point out that these sorts of approach run into serious difficulties. Moral monists come up against the evident connection between many generally accepted human rights and a broad conception of human wellbeing which cannot be reduced to one single value, such as autonomy or dignity, to the exclusion of other values, such as freedom from suffering and material security. Thus, as has been pointed out above, poverty may be viewed as unacceptable because of the suffering it involves or because of its impact on human autonomy.
Descriptive naturalists, in their approach to the empirical realities of human nature and human needs, inevitably have to pick and choose between what is ‘natural’ in the sense of what is normal in human societies and what is ‘natural’ in terms of what is wholesome, fulfilling or uncorrupted. The first lacks normative force and the second raises moral questions that cannot be settled by an appeal to ‘nature’. This is manifest in the tension between conceptions of poverty that are based on relative deprivation
Examples include Alan Gewirth, Human Rights (Chicago: University of Chicago Press, 1982), and James Griffin op. cit.
Examples include John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), and Martha C. Nussbaum, ‘Human Rights Theory: Capabilities and Human Rights’, Fordham Law Review 66 (1997), pp. 273-300.
Examples abound in definitions of human rights in terms of their universality and overriding moral importance. Thus Jack Donnelly, Universal Human Right in Theory and Practice (Ithaca: Cornell University Press, 2nd edn. 2003), p.10: ‘Human rights are, literally, the rights one has simply because one is a human being.’ Donnelly himself adopts a more inclusive view.
within a society and those which incorporate a standard conception of material existence health that applies to all societies.
Formal conceptualists, in their attempts to define human rights in a content-neutral way, find it difficult to persuade others that the conceptual necessities to which they are committed, such as the existence of correlativity duties and effective enforcement mechanisms, apply to all types of human rights. Nor can they convincingly demonstrate, for instance, that ‘universality’ is sufficient to distinguish human rights from other rights, perhaps because universality does not imply moral importance, and moral importance is not dependent on universality.
These thumb-nail sketches provide some indication why theoretically minded persons engaged with the practice of contemporary politics are keen to distance themselves from the philosophical morass of contemporary human rights philosophy. Placing on hold the search for a general moral theory of human rights enables them to emphasise the historical distinctiveness of human rights, in contrast to what they see as the now outdated concept of natural rights, and look instead to existing opportunities for articulating, implementing and developing the current practical discourse of human rights.
While this rejection of seemingly intractable abstract philosophising is understandable, fastening purely on the historically distinctive current human rights practice has both intellectual and moral downsides. Intellectually it appears rather ad hoc and piecemeal. Morally it lacks a clear basis for the critique of existing practice. Further, it tends to fracture the moral integrity of human rights into a plurality of diverse political arrangements based on a range of ill-defined values such as justice (legal and social), equality (formal and substantive), autonomy (individual and collective) and wellbeing (negative and positive), thereby calling into question the distinctiveness of the human rights justifications for the development and deployment of mechanisms relating to international intervention, constitutionalised democracy and mandatory humanitarianism.
Such scepticism may, of course, turn out to be precisely what is required to rescue the understanding of human rights from the theoretical impasse reached within traditional human rights philosophy. At one extreme, human rights ‘fundamentalisms’, based on the ultimately untestable claimed moral insights which are used to legitimate the exercise of global power, or limit democratic institutions in novel ways, are certainly suspect. To some extent the same problems beset more sophisticated and less dogmatic monist philosophies of human rights. A measure of epistemological humility regarding the moral foundations of human rights and some political suspicions arising from the selective enforcement of recognised human rights, may be seen as healthy consequences of attending to the issues at stake in the contemporary practice of human rights, especially where this involves enacting constitutional rights and legitimating international interventions, both of which can provide a cloak for morally suspect power politics. On the other hand, at the other extreme, there are clear drawbacks to acquiescing in open-ended extensions of the range of moral groundings that are used to legitimate the political mechanisms that are currently associated with human rights practice.
The challenge here is to develop philosophical approaches to human rights which centre on the diverse and developing functional roles of human rights in the political arena and the associated mechanisms used for their institutionalised implementation, while placing less emphasis on contentious affirmations as to what is and what is not ‘natural’ or in accordance with claimed conceptual intuitions, and drawing on a restricted variety of moral grounds that have legitimate bearing on the articulation of human rights, indicating how these might be prioritised within a characteristically human rights morality. This has to be achieved, I argue, by channeling rather than undermining the politically powerful moral content embedded in the discourse of human rights.
The Political Approach to Human Rights
‘Political’ or ‘practical’ approaches take human rights to be socio-political-legal constructs for definable political purposes, in contrast to timeless ‘natural law’ 10
approaches which hold that human rights are fundamental moral rights that all people at all times possess on account of their common or intrinsic humanity. This perspective is usually traced to John Rawls 26, and labeled ‘political’ by some, 27 and ‘practical’ by others28. This section identifies the distinctive features of the political approach and raises some questions regarding its novelty within human rights philosophy, thus opening the way for exploring its claimed detachment from moral foundations.
In a recent article, Laura Valentini asks ‘In what sense are human rights political?’ and identifies three possible answers: (1) they are institutional, in that ‘human rights are meant to evaluate political institutions…rather than personal conduct’, (2) they are public, in that human rights appeal to ‘reasons that are or can be publicly endorsed’ in that they can be justified from within a variety of different ethical and moral outlooks, and (3) they are feasible, in that the content of a human right ‘depends on what is reasonably feasible in current political circumstances.’29
Together these three senses of ‘political’ neatly characterise the ‘pragmatic conceptualisation’ commended by Beitz when he criticises the sort of foundationalism which seeks to ground human rights in a moral philosophy that is detached from current human rights practices. Beitz presents what Valentini calls a ‘narrow’ version of the first (institutional) way in which human rights may be ‘political’. He takes the distinctive political function of human rights to be setting the threshold for legitimating the intervention of foreign powers in the internal affairs of a human rights violating state: ‘[h]uman rights are standards for domestic institutions whose
J. Rawls, The Law of Peoples (2nd edn) (Cambridge, MA: Harvard University Press, 1999), p.79: ‘Human rights specify limits to a regime’s internal autonomy’.
Raz op. cit. p. 327;
Beitz op. cit., p.102: ‘I shall call a conception of human rights arrived at by this route a “practical” conception…A practical conception takes the doctrine and practice of human rights as we find them in international political life as the source of the materials for constructing a conception of human rights’.
L. Valentini, ‘In What Sense are Human Rights Political? A Preliminary Exploration’, Political Studies On line: DOI: 10.11 11/j.1467-9248.2011.00905.x. Valentini, making the assumption that these senses are all to be regarded as preconditions for inclusion as a human right, expresses some doubts about the second and further doubts about the third answer. My thanks to Laura Valentini for her comments on this article.
satisfaction is a matter of international concern’30. ‘Intervention’ is, here, not so narrowly defined as to include only coercive intervention, but restricts its analysis to specific inter-state activities which would otherwise be considered an improper intervention in the affairs of another state.
Beitz’s pragmatic conceptualism also fits Valentini’s second ‘political’ criterion, according to which the determination as to whether such intervention is legitimate depends on whether this is ‘capable of being endorsed from within a variety of different overall ethical and moral outlooks’ and therefore can be viewed as part of ‘public discourse.’31 For Beitz, satisfying the public criterion requires understanding the political nature of human rights though knowing the ‘practice’ of human rights. Those engaged in a common effort to develop standards that apply to all nations on a global scale. This excludes appeal to particular religious traditions and to narrow selfinterest. What is left is still very broad. Clearly the undesirability of poverty would be a relatively easy topic on which to reach a ‘political’ agreement, as would the assumption that states have correlative economic duties towards their citizens, but, as Beitz points out,32 reaching public agreement on the extent and the ascription of responsibility for the intervention on the basis of failure to fulfill such duties is another matter. On the latter issue, and with respect to public discourse more generally, he looks to the emergence of a progressive consensus between those participants in human rights practice who are ‘reasonable’ , ‘competent’ and ‘fair minded’33 requirements which are rather more selective than the normally accepted bounds of public discourse.
Beitz op. cit., p. 128. While Beitz includes in his account of the political role of human rights that they set standards which limit the activities of all governments domestically, he regards the special role of human rights as pertaining to intervention when a state fails to provide protection of human rights. See Beitz op. cit, p137 and C. R. Beitz, ‘Human Rights as a Common Concern’, American Political Science Review 92 (2001): 269-82 at 277.
Valentini op. cit. This also derives from Rawls. Compare Beitz 2009 op.cit, p.21: ‘This conception of international human rights as a public doctrine open to a variety of justifications is indispensable to a proper appreciation of its historical uniqueness’.
Beitz 2009 op. cit., p.166f.
Beitz 2009 op. cit., pp. 106ff. Thus, p 106: ‘It would make explicit the kinds of linguistic commitments one would undertake if one were to participate in good faith in the discursive practice’; and p.107: ‘First, in identifying the central elements of the practice, the model should seek to represent a consensus among competent participants.’
Valentini’s third sense in which human rights can be ‘political’(feasibility) is central to Beitz’s practical model34 in which the factors to be considered include not only ‘the feasibility of implementing the protection in typical circumstances’ but also ‘the likely cost of making the protection effective’.35 Therefore, if intervention in the circumstances in question would not, for instance, typically assist the poverty-stricken citizens involved then they cannot be said to have a human right to such an intervention. The limits that the requirement of efficiency places on the circumstances required for recognising a human right provides Beitz with one of his reasons for holding that contemporary human rights are neither universal nor indefeasible.
Even if, as I argue, Beitz’s conceptualisation of human rights is ‘political’ in all three senses of the term identified by Valentini, this does not by itself clearly distinguish his position from that to be found in the traditional or natural law approaches. As Beitz himself notes, Enlightenment theories of natural rights were developed and deployed for political purposes, particularly legitimating opposition to oppressive governments, although, of course, these political purposes are not identical with, and not so specifically institutionalised, as those of contemporary international human rights practitioners.36 This is true of Hobbes as much as of Locke, Rousseau and Kant, all of whom were concerned with political morality more than individual morality. Indeed, while proponents of the contemporary political approaches are right to indicate that there are some very different political issues which arise in a more globalised world, some of these, such as the legitimacy of political rebellion against rights violating governments, remain important ingredients of contemporary human rights politics, as is demonstrated by the role of human rights discourse in the ‘Arab Spring’.37 Social
indeed it has for some time in most ‘traditional’ analyses of human rights from Maurice Cranston, What are Human Rights (London: Bodley Head, 1973), p.43 to Griffin op. cit., p: 44: ‘I propose, therefore, only two grounds for human rights: personhood and practicalities’.
Beitz 2009 op. cit., p.110.
Beitz 2009 op. cit., p.57: ‘Natural rights theories, at least in modern variants such as Locke’s, were primarily attempts to formulate constraints on the use of a government’s coercive power in circumstances of religious and moral diversity.’
For a different view, see Moyn op. cit., pp.1f: ‘The eternal rights of man were declared in the era of Enlightenment, but they were so profoundly different in their practical outcomes – up to and including bloody revolution – as to constitute another conception altogether’. Also Vincent, op. cit., ch. 4.
contract theorists are all to some extent ‘pre-political’ in that their reflections start from the hypothesis of social circumstances prior to political institutionalisation, but these reflections are all ultimately directed towards the determination of what constitutes morally legitimate political authority. 38
There is also a great deal in common between the public discourse criterion adopted by contemporary political approaches and the attempts of the classical social contract theorists, who all sought to provide a more secular basis for medieval natural law and the emerging natural rights in order to solve the problem of religious divisions in the causation of internal conflict and international war. Hobbesian subservience, Lockean toleration and Rousseau’s ‘general will’ are all attempts at reasoned public discourse in the relevant sense of reaching beyond cultural and religious differences in a search for a common interest in political cohesion and the common good. Indeed, the development of public discourse is in many respects a defining feature of the Enlightenment.
As to feasibility, the entire Hobbesian enterprise can be viewed as a rather exaggerated realism in which the natural rights established reflect a powerful awareness of the practical limitations as to what can and what cannot be done about tyrannical government. Further, the Enlightenment focus on the importance of property can be seen as a recognition of the poitifcal prerequisites of personal and collective material security. Overall, therefore, granting that the historical contexts of Enlightenment natural rights and contemporary human rights are significantly different, they both share the characteristics of being political, in all of the three meanings senses of ‘politics’ to which Valentini draws our attention.
However, Beitz’s distinction between human rights and ‘traditional’ rights philosophies is aimed less at the classical Enlightenment theorists and more at those contemporary philosophers, such as Alan Gewirth and James Griffin, whom may, perhaps, be more accurately described as bypassing detailed reference to the current
My thanks to Ben Saunders for drawing my attention to these points. It is worth noting that the acknowledge initiator of the contemporary political approach, John Rawls, is a social contract theorist.
practice of human rights. Thus, Beitz criticises what I have labeled the moral monist assumption that the definition and justification of human rights requires reference to only one particular moral value (‘agency’ in the case of Gewirth 39 and ‘personhood’ in the case of Griffin40 ). Also, Beitz objects to analyses of human rights, like Gewirth’s, in terms conceptual categories, such as universality, that are used to deduce the content of human rights partly by the application of these categories, a dubious methodology I have referred to as ‘formal conceptualism’. 41 However, as I note above, it has been a common feature of orthodox human rights philosophy to include, as does Griffin, a requirement of practicality within the concept of human rights, so there is little novelty there.
However, although Beitz’s criticisms do have some basis with respect to their chosen targets this does not apply to all moral focused theories, many of which embrace both the moral pluralism of human rights justifications and the defeasibility of human rights when they conflict with other considerations, and few of which depend on deductions from the allegedly defining formal characteristics of human rights to establish their content. Perhaps, therefore, the distinctiveness of the political approach lies, less in the novelty of giving a central place to the political nature of human rights, and more in the attempt to exclude moral foundations from the key features used to identify human rights. This takes us to the question of whether or not the political approach can be detached from the ‘moral foundationalism’ which is said to be a characteristic of traditional theory.
Can the Political Approach Dispense with Moral Foundations?
Knowing the currently accepted institutional implications of acknowledging the existence of a human right is clearly crucial to how we should go about determining
Gewirth op. cit.
Griffin op. cit. p.33: ‘In what should we say human rights are grounded? Well, primarily in personhood. Out of the notion of personhood we can generate most of the conventional list of human rights.’
the specific content and scope of human rights. We need to know whether what we are talking about is, for instance, the purpose of protecting minorities through the mechanism of judicial review, or the purpose of eliminating poverty through including adherence to human rights standards in international trade agreements, or the limitation of corporate power through expanding corporate criminal liability.42 It makes little sense to try and answer whether or not poverty is a violation of human rights unless we know the sort of mechanisms that will be triggered by adopting it as a human right. Will it feature in human rights based judicial review of welfare legislation? Does it legitimate the invasion of a country that tolerates extreme poverty for its citizens? Is it to be used as a basis for compulsory international aid? Will it form the basis of a new type of international criminal law?
There are, therefore, good reasons to criticise any philosophical approach to human rights which neglects to identify and take into account the political purposes and mechanisms that featured within human rights practice. The proper substantive content and scope of human rights cannot be determined without recourse to knowledge of the practice of human rights. It is not just that uncertainties arise if we do not know the range of mechanisms that may be used to implement a human right. Moral as well as empirical reasoning is needed to refine the particular objectives as well as the operational mechanisms that may be adopted. Any analysis of human rights is, therefore, incomplete without identifications of their characteristic moral justifications and practical mechanisms, both of which must be included within any comprehensive analysis of the very idea of human rights.
That there is a complex process of moral argumentation in the determination of what rights are human rights is not denied by either Beitz or Raz. Indeed both insist on the significance of the morally legitimating public arguments that must be involved in determining the content, scope and mechanisms of particular human rights. Thus Raz outlines how human rights are ‘derived from three layers of argument’, first by
Tom Campbell, ‘The normative grounding of corporate social responsibility: a human rights approach’, in Doreen McBarnet, Aurora Voiculescu and Tom Campbell, The New Corporate Accountability (Cambridge: Cambridge University Press, 2007) pp. 529-564
identifying an individual interest or other ‘rock-bottom’ consideration that ‘establishes an individual moral right’, second, holding that ‘under some conditions states are to be held duty bound to respect or promote the interest’ and, third, showing ‘that they do not enjoy immunity from interference regarding these matters.’43 In similar terms, Beitz presents ‘a schema for justifying claims about the content of human rights doctrine with three parts’. First, ‘That the interest that would be protected by the right is sufficiently important when reasonably regarded from the perspective of those protected that it would be reasonable to consider its protection to be a political priority’. Second, ‘[t]hat it would be advantageous to protect the underlying interest by means of legal or policy instruments available to the state’ and, third ‘[t]hat in the central range of cases in which a state might fail to provide the protection, the failure would be a suitable object of international concern’. 44
So, despite the title of Raz’s paper, he is not arguing that human rights cannot or do not have moral foundations in the sense of moral justifications. Beitz takes the same line, insisting that moral argument about the proper content of human rights is indeed part of the contemporary practice of human rights and adding that there is reason to hold that this practice is on the whole a good thing, 45 a view Raz shares despite a greater measure of cynicism as to some of its operations. 46
What then is at stake in the current debate about the foundations of human rights? Beitz accepts that moral reasons are required to justify human rights practice and that his position is, in this sense, ‘foundationalist.’47 Raz accepts the substance of this position when he agrees that ‘vindicating any evaluative position relies, among other
43 44 45
Raz, op. cit., p. 336. Beitz 2009 op. cit., p. 137.
Beitz op. cit., p.11: ‘we have a prima facie reason to regard the practice of human rights as valuable. On the face of it, its norms seek to protect important human interests against threat of state-sponsored neglect or oppression which we know from historical experience are real and can b e devastating when realized’.
Raz op. cit., p. 322 Beitz op. cit. p.103. Compare p. 137.
facts, on universal evaluative truths’.48 His point seems to be not that human rights lack foundations but that human rights (or some other sort of moral rights) are not, or at least are not always, themselves those foundations. There can be sound moral reasons which justify and hence constitute the existence of human rights, but these moral reasons are not always moral rights, human or otherwise. A further reason Raz has for holding that human rights are not foundational is that the reasons which explain where human rights ‘come from’ are contingent on the realities of international relations: ‘they [human rights] lack foundations in not being grounded in a fundamental moral concern but depending on the contingencies of the current systems of international relations.’49 Raz is not arguing here, against moral monists, that there is more than one moral concern involved in the justification of human rights. Rather, he is pointing out that the justification of most human rights requires reference to instrumental factors as well as intrinsic values. However all instrumental moral reasoning eventually terminates in an affirmation of the desirability of the outcomes of the instrumentality. Moreover, the undoubted relevance of consequentialist considerations to the determination of human rights does not entail that human rights are not constituted in part by some moral foundations in the shape of the non-instrumental values which play necessary and diverse roles in their justification. Seeing human rights as a type of political mechanism may undermine the view that they or their justifications are purely foundational, and hence, perhaps, self-evident and even ‘pre-political’, but it does not establish that human rights are without moral foundations - in the sense of the non-derivative values in which even their more consequential justifications terminate.50
On the above analysis, the political approach to human rights is not detachable from the sort of reasoning associated with the traditional philosophies of human rights, and which feature, for instance, in the first level of justification in Raz’s model, namely
48 49 50
Raz, op. cit., p.335. Raz, op. cit., p. 336.
Raz is not as concerned as Beitz to identify what is conceptually distinctive about human rights, although his anti-foundationalist position would appear to explain why he fastens on political functions as the more stable basis for identifying what human rights are about, namely marking the limits of sovereignty.
the selection of important interests that are deemed to generate correlative political obligations. Further, although Beitz does frequently emphasise the evident variety of moral reasons current in the human rights community as a basis for not conceptualising human rights in terms of their moral justifications, the issue of whether human rights are in some sense with or without foundations can hardly be reduced to the issue of whether or not human rights justifications are ultimately multiple or monist, since both positions accept the existence of moral foundations.
The most explicit reason Beitz gives for saying that human rights are not ‘foundational’ is that ‘[f]or any particular human right it is always possible to ask why this right should be part of a global normative doctrine and to expect a reply that brings forward further moral (and other) considerations’.51 This is a sound enough point about the pluralism which characterizes the moral justification of human rights, but it does not exclude the possibility that there is something characteristic about these moral justifications, and it certainly does not establish that the political role(s) of human rights serve as a more secure conceptual foundation for the idea of human rights, since it is also always possible to question the efficacy and morality of a particular human rights function or role.
The most effective defence of Beitz’s conceptualisation of human rights in terms of their role in international politics political is his claim that this is the shared understanding of the international political community, or at least that part of it that is conducted utilising the discourse of human rights. On this basis, he makes a whole series of claims about human rights which he takes to be implicit in the practice of human rights as a historical phenomenon. This enables him to affirm a range of doctrines that are contentious in the domain of ‘traditional’ human rights philosophy. These include (1) that human rights doctrine is of ‘broad normative reach’ and not limited to a set of minimal standards, and (2) that ‘not all of the human rights of contemporary doctrine can plausibly be regarded as peremptory.’52 Without
Beitz 2009, op. cit., p. 127.
Beitz op. cit., ch. 29-31. Other general features put forward are ‘heterogeneity’ of implementation, ‘relativity to social circumstances’, and that human rights are ‘evolutionary’, not ‘static’.
questioning the accuracy of these reports on practitioners’ assumptions, there can be no doubt that they are all open to moral challenge. We cannot, therefore, appeal solely to doctrines within the parameters of the existing discourse of practitioners to mark the boundaries of the type of moral consideration that are relevant to the determination of human rights.
In the event, Beitz’s discussion of anti-poverty rights is not significantly different from those of orthodox theorists. Beitz commences his discussion with the textual basis found in Article 25(1) of the UNDR: ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care, and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.’ He then neatly summarises how this cluster of rights is interpreted within the human rights community. Some of this involves using legal-style interpretation in terms of plain meaning, the original context and the known intentions of the authors, to conclude (1) that the ‘subsistence interests’ involved are ‘absolute’, rather than relative to the comparative situation of others; (2) that they do not require the creation of constitutional welfare rights, and (3) that it involves the contemplation of some unspecified sort of ‘international role’, so that ‘[a] choice of means would be a complex judgment of policy, not a direct inference from the assertion of a right.’53
Within this framework Beitz identifies what he regards as hard questions for his theory. He points out that since the causes and cures of poverty are complex it is not easy to identify where to locate the remedial duties correlative to anti-poverty rights when governments have failed in their primary preventive role. He goes on to discusses the kind of reasons that might justify such an allocation of duties, pointing out that the amelioration of poverty is a complex matter relating to economic and social development in ways that cannot be readily reduced to moral or legal duties. For this reason, the first hard question he addresses is whether subsistent interests can
Beitz op. cit., p.163.
be categorised as human rights in domestic contexts. The second hard question is whether there could be sufficiently strong reason for there to be a moral requirement that one state must come to the aid of the poor within another state, especially since beneficence is not generally regarded as an adequate basis for international duties.
Beitz answers these questions with persuasive practical moral arguments. First, Article 25(1), he suggests, should be read as guide for policy development and not interpreted legalistically in terms of its authors’ intentions. Second, he deploys a moral argument, along the lines commended by Peter Singer, that there are circumstances of ‘strong beneficence’ in which those who are able to come to the aid of the poor have particularly weighty moral reasons to provide aid in a world which is marred by significant unnecessary poverty. He then goes on to state that there are many possible moral reasons for accepting anti-poverty obligations, including a history of exploitation, unfair trading practices, and lack of natural resources. These reasons raise a variety of different moral considerations and suggest different remedial mechanisms. Nevertheless, he contends, ‘there are anti-poverty rights even if there is no single distinctive reason or category of reasons for action that explains why eligible agents should contribute to the relief of severe poverty wherever it occurs’54 .
In all this, Beitz is engaging in the forms of reasoning that are common in traditional theory of human rights. Neither the relevance of empirical data related to the implementing of the identified values, nor the importance of identifying the mechanisms available for implementing these values, excludes this part of his analysis from the category of moral reasoning, albeit with shifting foundations. The two positions Beitz considers may be characterised, as humanity (or benevolence) and justice (or culpability), the issue being whether the situation of that portion of the world’s people who lack an adequate standard of living establishes correlative obligations which are based on appropriate feelings of humanity on the part of those in a position to assist them, or on the ascription of responsibility to those who have
Beitz op. cit., p. 193.
contributed to or benefited from the poverty of those who need assistance.55 Beitz makes much here of his previous point that there can be multiple types of moral reason that support a human right and it is indeed the case that both humanity and justice may be in play, but they do not necessarily lead to the same content and scope in the right for which they supply the moral foundations. Thus the humanity justification is likely to regard poverty as relating to a minimum standard of living, while justice relates more to the comparative situation of those who have been harmed and those who have caused the harm.56
Moreover, in the case of both humanity and justice, in so far as these two foundations are in conflict, this conflict s over which has the sort of peremptory priority that Beitz’s account of contemporary human rights doctrine discounts. With respect to both these considerations, Beitz would appear to operate beyond the borders of the assumptions he attributes to the international human rights community and be engaging in the sort of foundational moral debate which features in traditional human rights philosophy.
Some of these points can be met by redescribing the doctrine of human rights which is alleged to be embedded in their practice, although this weakens the case that human rights public reasoning is characterised by a limited range of reason types. More important, however, is the fact that the two broad justifications in question (humanity and justice) have very different implications as to who should be assisted and who should shoulder the obligations in question. Further the two moral foundations point to different mechanisms for implementation, with humanity directing attention to the organisation of aid and justice pointing more to the correction of unfair trading practices. The overlap of their practical implications is considerable, nevertheless the relative weight we give to humanity over justice, or vice versa, has significant practical implications for establishing priorities with respect to reforming global and
Tom Campbell, ‘Poverty as a Violation of Human Rights: Inhumanity or Injustice’, in Thomas Pogge, ed, World Poverty and Human Rights (Cambridge: Polity, 2001).
This bears on and seems to negate his earlier claim that human rights doctrine is not confined to prescribing minimum standards and has a broad normative reach.
domestic economic systems and implementing redistributive practices. Anti-poverty rights therefore provide a good example of the way in which human rights have characteristic, although evidently not unique, moral foundations which are just as significant as their characteristic roles and functions when it comes to the conceptual analysis of what does, or ought to, constitute a human right and the normative assessment of what those rights should be. This raises the question of whether a more morally inclusive and dialectical approach to human rights philosophising should be preferred to more narrow interpretations of the political approach to the human rights theorising.
An Interactive Approach to Human Rights
The prime advantages of the political approach to human rights are that it encourages bringing priority moral considerations to bear on clearly identifiable and immediately significant political issues and practicalities, and casts reasonable doubts on abstract theorising, which usually relies on dubious factual claims and unwarranted conceptual stipulations, which oversimplify the practice of human rights and neglects to take into account their institutionalised purposes and typical contexts. In particular, some traditional theories of human rights detach the identification of those interests considered to be of sufficient moral weight to justify the existence of a human right from what they present as the completely distinct question of who if anyone has the duty to provide that protection and how this should be done in concrete circumstances.
Nevertheless, given the limitations of the political approach to which I have drawn attention, there may be both conceptual and practical advantages in taking human rights discourse to be the coming together of moral considerations and political factors on, as it were, a more equal footing. The moral considerations are human rights values, that is values adopted and deployed for the purpose of establishing human rights as mechanisms for protection and furtherance of the core interests of all human (albeit in different circumstances), as identified by the values in question. The political factors are those involved in the creation and sustenance of doctrines, 23
institutions and mechanisms for furthering this process in a realistic way through a process of public reasoning and political decision-making in specific social and political contexts.
The complexities of the interaction between human rights values and human rights practice cannot be adequately explored here. However, one crucial issue arising from the political approach is the extent to which human rights practice has a normative and not just an instrumental bearing on the interpretation of human rights values and their prioritisation. Advocates of ‘practice-dependence’ 57 argue that taking account of practice is not simply about devising mechanisms for the implementation of previously identified moral goals, but includes consideration of how the existing purposes, practices and relationships bear on the justification of the right as a whole, including its characteristic moral values or foundations. How this is to be understood is not as yet clear. Thus, sometimes the practices in question are taken to be those at work in the social and political relationships which generate different sorts of moral response, or whether they are the practices at work in the procedures and mechanisms involved in seeking to respond to the generated moral responses. Also it is not clear whether the normativity of existing human rights practice is ultimately grounded in the availability and effectiveness of different remedial mechanisms, or whether it is claimed that these practicalities have independent normative force, as the language of justification would seem to imply. 58
It is clear, however, that, while abstract and general affirmations of human rights values need not be associated in the first instance with a commitment to any one purpose or any particular mechanism for bringing about, for instance, the mitigation of severe material deprivation on a global scale, the articulation of a human rights at a level of specificity which makes evident what its implementation involves cannot be
Sangiovanni, ‘Justice and the Priority of Politics to Morality’, Journal of Political Philosophy 16 (2008): 137-64. See Aaron James, ‘Constructing Justice for Existing Practice: Rawls and the Status Quo’, 33 Philosophy and Public Affairs (2005): 281-316. I am indebted to Andrea Sangiovanni for his comments on an earlier version of this article.
Sangiovanni (2008) 138: ‘Practice-dependent Thesis: The content, scope, and justification of a conception of justice depends on the structure and form of the practices that the conception is intended to govern’.
satisfactorily achieved without attending to the institutionalised mechanisms that may be available and the nature and causes of the poverty in question. Uncontroversially, this requires taking into account the available practical mechanisms for bringing about social and political change, not only as instruments for the implementation of human rights but as a basis for determining the particular mix of human rights values that are most relevant the question of whether, for instance, freedom of poverty should be adopted as a human right in these circumstances.
On the ‘practice dependent’ approach, the question of whether there is, or should be, a human right, such as the right to freedom from poverty, goes beyond this largely instrumentalist view of human rights practice, to a consideration of the human relationships which exist within the wider social and economic context, for it is these that generate the urgent practical moral issues to which human rights, as a practice, is addressed. Thus, for Sangiovanni, ‘[T]he reasons we might have for rejecting or endorsing a certain understanding of human dignity or human needs as apart of a justification of a particular conception of human rights will be fundamentally shaped by the role human rights are intended to play in current international practice’.59 However, the difficulty in identifying just what these intentions might be, and the need to question whether these intentions are justifiable, are matters of concern characteristic of purely political approaches to human rights.
Although their scope and relevance is not made entirely clear, practice-dependent considerations of this sort fit readily into interactive approaches to human rights and constitutes an interesting and original element within emerging political approaches to the philosophy of human rights. The suggestion is that properly assessing whether or not there is, or whether there should be, a human right to this or that requires interactive reflection involving foundational human rights values, the implicit purposes underlying current human rights practice, the currently institutionalised mechanisms for their implementation, and the social and economic circumstances and relationships to which human rights practice is addressed.
Sangiovanni, op. cit., p.151.
Another contribution to the conceptual analysis of human rights which hhelpsw to inform the interactive approach, with its interplay between a pluralist morality of human rights and the functions and accommodations of their political and legal institutions, derives from the work of Richard Arneson, for whom rights occupy an intermediate place between political values and concrete applications, there being differing level of abstraction and degrees of concretisation. On this model, human rights come in a variety of modes, ranging from abstract statements of value (such as life and liberty) to very specific legal requirements stating precise and authoritative legal obligations (such as prohibitions on state inflicted capital punishment). Thus, many human rights may be viewed as mediating between value affirmations and specific rule-governed implementation. Human rights discourse may, therefore, be taken as inclding a variety of interactive mediating roles between morality and politics. One of these roles is to state the basic goals and acceptable methods of political organisations in the broadest and briefest manner. Some human rights declarations, bills or conventions do no more than affirm fundamental moral values on the basis of which, it is held, political policies and methods should be developed. These abstract and indeterminate statements of human rights can also have the function of affirming the political values of particular communities or regional international associations. Such human rights affirmations characteristically are lacking in precision and in the clear correlative obligations that would make them appropriate for use in mechanisms within human rights law.
Then there are more specific statements and decisions fulfill another intermediate role somewhere between the affirmation of important values in need of protection and the specification of institutional rules and mechanisms of a juridical, administrative or military nature.60 Still others statements of human rights take the shape of rights which have the characteristics of good legal rules: clarity and specificity with respect to both form and content. It is as we approach the latter than more practice-oriented
See R. J. Arneson, ‘Against Rights’ Philosophical Issues 11(2001): 12-21, and Beitz 2009, op.cit., p. 170: ‘Within the practice, human rights operate in the same way as middle-level principles operate in other branches of political discourse’.
interactive human rights discourse is required, of the sort that features, or ought to feature, in the legal adjudication of human rights charters and conventions.
Affirmation of human rights in the form of human rights values is important for political debate and provides a basis for education, for persuasion, for legislative scrutiny of existing and proposed laws by legislative assemblies and for political culture generally, even if they are only rights in the sense that they are important moral values calling for institutional recognition. It is argued that the right to freedom from poverty is a ‘manifesto’ right of this sort,61 although it may in fact be amenable to being developed into a more precise set of norms that can reasonably serve within a range of different mechanisms, such as those used in welfare states to combat poverty and could be used in what might be called global welfare law. At this point issues of feasibility are unavoidably and morally relevant, but this does not mean that there is no useful political role for manifesto human rights in which issues of feasibility play a less prominent role.
Abstract statements of human rights values without accompanying specification of concrete correlative obligations undoubtedly contribute to scepticism regarding the epistemological status of human rights discourse, particularly when these statements are made to serve roles to which they are unsuited by reason of their abstraction, such as human rights-based judicial review. However, once distinctions are made between different levels of human rights specification and account is taken of the diverse roles of human rights there is no reason to give up on utilising human rights values in the conceptualisation and articulation of human rights as a whole, and within moral debate relating to political decision-making. One aspect of this challenge is the exploration of how the human rights morality evident in contemporary public consciousness can be brought into a closer working relationship with the mechanisms currently envisaged as appropriate to the institutionalisation of human rights and the sort of social and political situations to which they are characteristically applied.
The term comes from Joel Feinberg, Social Philosophy (Englewood Cliffs: Prentice Hall 173). It can be understood as referring to the rights that ought to exist, or moral values which are candidates for being the basis for ‘real’ rights which have correlative specific and located correlative duties.
Similar points may be made about the ‘traditional’ defining features of human rights such as universalism, absolutism and minimalism, variations of which occur at different levels of abstraction and modes of practical functioning. Thus, all human beings are, according to Beitz, ‘subjects of global concern’ within the core doctrines of human rights’ practitioners. This is a form of moral universalism that can reasonably be claimed to characterise human rights and which can be taken to establish a moral orientation to all political issues. Again, some human rights, even when stated in general terms at a very general level can reasonably be regarded as absolute because their violation is so immediately evident and almost never infeasible to avoid. In most other cases this can be revised to identify an element of priority, which can also claim to be characteristic of human rights. A mix of human rights minimalism and peremptoriness does have a place in relation to some human rights, such as the right not to be tortured, where there is a universal correlativity with respect to the allocation of correlative duties and an evident connection to particular mechanisms. Others, such as the right to freedom from poverty are caught up in the complexities of feasibility, the accompanying uncertainty as to its mix of moral foundations and the concomitant indeterminacy of the content and ascription of its correlative duties and their possible enforcement mechanisms. And yet torture and extreme poverty share a high degree of moral peremptoriness which is, in traditional human rights philosophy, contra Beitz, a major factor in the conceptualisation of what it is to have a human right.
Contemporary analytical philosophy is not confined to the discovery of the conceptually necessary features of basic concepts. What is often of more concern to philosophers is the capacity to clarify the ambiguities and confusions embedded in over used and over extended political discourse so as to make explicit the contending and overlapping meanings which feature in public political discourse. Provided the appropriate distinctions are made and speakers and their audiences are clear as to what they mean when using the terminology of rights in all their variety, those 28
involved should be in a better position to make decisions about the types of human rights they consider ought to be in place and how the moral values they express ought to be matched to the mechanisms that are, in the circumstances, best to achieve the goals in question and, perhaps, vice versa. It should be possible, for instance, to embrace an idea of freedom from poverty as a manifesto human right without committing to whether or not the inclusion of such a right in the mechanism of strong judicial review or assuming that violation of this right delegitimates governments and justifies foreign intervention, provided we then go on to work out its practical implications in the light of the interaction of their foundational values, the feasibility of different mechanisms and the necessary balances with other moral considerations, including, perhaps, those embedded in existing human rights practice. The fact that the mechanisms adopted differ radically from those connected with, say, torture may be seen as a difference that does not diminish its status as a human right, any more than whether the justificatory emphasis is on justice rather than humanity.
A modified political approach, which includes criticising current human rights practice and rejecting the attempts of a practitioner elite to determine what counts as an acceptable reason for adopting a human right, has the great advantage of enabling those within and beyond the confines of human rights participants to maintain the connection between human rights and the powerful moral beliefs that energise human rights movements and provide their popular political support. It may be seen as a setback to the political approach’s strategy of diminishing human rights scepticism by side-lining the analytical and moral debates which are part of traditional philosophies of human rights. Yet, the way forward may be to endorse those aspects of human rights scepticism that call for more careful analysis of human rights discourse and reject simplistic forms of moral reasoning unrelated to practical institutionalisation of moral ideals. This can be done without giving give up on the task of matching human rights morality to human rights mechanisms and vice versa.
Thus we should not put to one side such questions as whether or not human rights are rights at all because, for instance, they may lack both effective means of
enforcement 62 and/or clearly located and defined correlative obligations.63 Instead we should work to distinguish human rights discourse at the abstract level of indeterminate moral claims from its role in the human rights institutions which specify the operational content of human rights and the practical mechanisms for their implementation. These distinct poles of human rights articulation can, indeed should, proceed together, with neither being treated as a given that the other must simply accept. This means conducting a simultaneous interactive debate on the moral bases of, for instance, global justice and the real life political and legal mechanisms that are in place of may be available for its instantiation.
This modified approach does not contest the sort of scepticism that is directed toward a human rights ‘fundamentalism’ which holds to the self-evident, absolute and literally universal model of human rights which can be derived from one core human rights value, such as autonomy, or a readily identifiable and well-defined set of human needs. It does, however, provide a framework for an orderly and politically reasonable way of conducting democratic debate as to the sort of rights that all (or nearly all) humans ought to possess, in the light of the sort of mechanisms that ought to be deployed in seeking to guarantee the interests which these rights are intended to promote and even guarantee.
With respect to freedom from poverty as a human right, the modified political approach is likely to generate a well constructed conceptual framework within which to engage in public debate as to the moral foundation(s) of that right, whether it be humanity, justice or simply collective prudence, and the interactive way they are related to the variety of mechanisms that might be used to promote the sometimes very different goals that these moral foundations suggest, both domestically and globally. Just one of the many proposals that has emerged from this debate involve the prioritisation of humanity over justice, in association with the adoption of a global humanitarian levy that is voluntary with respect the involvement of particular states
Beitz 2009 op. cit., p.3 Raz, op. cit.,p. 336.
but compulsory within the states that opt to participate. How the funds raised by such a levy should be spent and who should be responsible for coordinating the efforts is one of the many questions to be determined through such appropriate international organisations as can be found or created, most of which are contingent on a multitude of complex causal factors, none of which make it conceptually inappropriate to claim that the adoption of such a proposal involves the recognition or creation of freedom from poverty as a human right.
10 March 2012
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