LEGAL RESEARCH PAPER SERIES

Paper No 51/2010 June 2010

Human Rights as Legal Rights

PAVLOS ELEFTHERIADIS

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 Human Rights as Legal Rights

Pavlos Eleftheriadis*

Abstract

This essay is a reply to Joseph Raz’s ‘Human Rights in the Emerging World Order’. In
that essay Professor Raz commits three errors about human rights. First, he identifies rights
with the legal relations that these may entail. Second, he presents human rights as
summaries of value, something that does not explain their peremptory force. Third, he
considers human rights as continuous with interpersonal rights. A better account of human
rights will be more sensitive to the distinctness of human rights as legal rights. Such a theory
must, first, draw a clear distinction between legal rights and the legal relations these may be
entail (something which Raz himself explained in his earlier analysis of rights). Second, it
must highlight the way in which rights are peremptory reasons for action that escape the
balancing of values or interests. Third, it ought to locate human rights in an institutional
domain appropriate for international relations. Failing to see this distinct role of human
rights as legal rights undermines our proper understanding of human rights and their
justification.

*
Fellow in Law, Mansfield College, University of Oxford. This essay was presented at a panel on
Joseph Raz’s work at King’s College London, 11 May 2010. Many thanks to all participants for
their comments and discussion and especially to Colm O’Cenneide James Penner, Qudsi
Rasheed, Andrea Sangiovanni, Leif Wenar and Lorenzo Zucca. My warmest thanks are to my co-
panellists, Susan Marks and Joseph Raz.

1
In ‘Human Rights in the Emerging World Order’, which was published in the
first issue of Transnational Legal Theory, Professor Raz’s has made a series of
typically sophisticated and subtle arguments about human rights.1 He noted that
one of the most important difficulties in the law of human rights is, as he says, ‘to
make practical sense of [a] right, to acknowledge both its universality and its
sensitivity to cultural variations’.2 This is indeed one of the most urgent and
important challenges for the philosophy of law. His criticism of the dominant
human rights rhetoric, namely that this rhetoric emphasises the goods intended to
be protected by rights, but not the costs this protection may impose on others, is
in my view justified, timely and effective. Due to its clarity, eloquence and
directness this essay is destined to become highly influential in the literature on
human rights.
Nevertheless the essay’s main arguments are bound to mislead and hence
call for a reply. Professor Raz’s arguments are based on a flawed conception of
legal rights and a flawed theory of their value. His view is that moral rights are
some kind of union of values and duties and that human rights are a similar such
union. But moral and legal rights do different things and have significant
differences. Moreover, human rights are not summaries of value but a different
type of institutional protection of liberty. Failing to see this distinct role of human
rights as legal rights undermines our proper understanding of human rights and
their justification. In this reply I will offer a defence of an alternative view of
human rights, at least in outline. I offered a general account of legal rights in a
recent book, which forms the background to the comments I make here.3

THE ARGUMENT

Professor Raz takes aim at what he calls ‘traditional’ theories. Such theories, he
argues, take rights to be universal in that everyone has them as a human being.
He draws our attention to the right to education and to the right to health (which

1
Joseph Raz, ‘Human Rights in the Emerging World Order’ 1 Transnational Legal Theory (2010).
31-47 (henceforth: Raz, ‘Human Rights’).
2
Raz, ‘Human Rights’ 46.
3
Pavlos Eleftheriadis, Legal Rights (Oxford: Oxford University Press, 2008).

2
are listed in the Universal Declaration and the International Covenant on
Economic, Social and Cultural Rights respectively) and shows that these human
rights cannot be so universal. It is obvious, he says, that the cave men of the Stone
Ages did not have a right to education in virtue of their humanity. They did not
have schools or universities, so the idea is absurd. The duties that should be
associated with the value in given circumstances, are impossible to enforce. It
does not help, he says further, to retreat to ‘synchronic universality’. A human
right to the ‘enjoyment of the highest attainable standard of physical and mental
health’ is culturally so specific, that is clearly impossible to apply across cultures.4
Professor Raz then concludes that when it comes to the importance of health
‘there is no single way of drawing the balance between health and other
concerns’.5 The content of any duties will thus remain elusive, perhaps
irremediably so.
This last argument is meant to undermine the coherence of the universalist
project in its entirety. Because rights are about values which find expression in
concrete circumstances, they cannot be uniform across cultures. The variety of
values and their complex and inconsistent interpretation across cultures is certain
to frustrate any attempt at arriving at a canonical list of human rights. The values
may appear the same but the duties capable of being derived from them are not.
This point highlights also a darker side to human rights. Because in
deciding on the highest attainable level of health the international institutions that
are entrusted with the implementation of human rights will have to assume
jurisdiction over the way different countries compromise between concern for
health and the pursuit of other values, they have a paternalistic effect. So
Professor Raz asks:

Is it acceptable that international organisations whose office holders are

drawn disproportionately from a few powerful countries should decide
about the good sense or otherwise of the practices of countries all over the
world?6

4
Raz, ‘Human Rights’ 45-46.
5
Raz, ‘Human Rights’ 46.
6
Raz, ‘Human Rights’ 47.

3
These are some of the difficulties and risks that Professor Raz identifies with the
common theories and the rhetoric of human rights.
Let me summarise his position in two short statements. The philosophical
mistake of the traditional theories, for Professor Raz, is two-fold. First, there is an
issue of process: because human rights entail a duty to establish impartial, efficient
and reliable institutions and because human rights entail duties on other parties to
protect those rights, the traditional accounts are incomplete: they almost always
fail to explain who is the particular bearer of the corresponding duty and how and
by whom the duty bearer will be held to account. Second, there is an issue of
content: the traditional theories give an insufficient or highly idealised account of
the content of the duties that human rights entail, so that their claim to
universality is empty. There cannot be universality when there has to be such
variety to the content of duties and the specification of duty bearers. I have
condensed here but hopefully not misrepresented this subtle argument.
Although I understand and endorse many of these arguments and
conclusions and especially the warning against the unwarranted optimism of the
traditional theories, I think that Professor Raz’s analysis suffers from what I take
to be three important flaws that render the arguments ineffective. The first
concerns the distinctions between moral rights, legal rights and legal relations, the
second is about rights as summaries of values and the third is about the
appropriate institutional domain of human rights. In each case, highlighting the
flaws in Professor Raz’s arguments leads the way to some important insights into
the nature of human rights as legal rights.

LEGAL RIGHTS AND LEGAL RELATIONS

In Professor Raz’s analysis, human rights connect the value to the possessor of
having a right, to the set of duties that this value justifies. There is some
ambiguity in the nature of this connection – of the value to the actual duties – but
there is no doubt that the connection is very strong.
The example from the human right to health was supposed to show that
the cultural variety of views about the nature of health and its value renders the

4
content of that right unstable. Professor Raz notes that the theory of the equal
moral worth of all human beings is not enough to produce common rights for all,
in the sense of justifying a determinate and common set of duties. One needs an
additional premise, the common conditions of life today, which he presents as
follows:

Human rights cannot be subjected to such a response [i.e. a response from

sovereignty, namely that conditions in our state are different] because we
identify human rights with those rights that all people living today have in
virtue of the common conditions of life today… Because we have those
rights in virtue of the common conditions of life today no special
knowledge of the circumstances of this country or that are required to
know that its citizens have rights.7

But this argument is evidently false, argues Raz, because the theory of human
rights need not only identify the values protected by the rights (which may well be
universal) but should also specify who the duty –bearer should be in the particular
circumstances. So the traditional theories ‘neglect the need to establish a case for
holding others to be under a duty to secure, at least to some degree or in some
ways, the right holders’ enjoyment of the rights’.8 Because we cannot specify the
duty bearers and their particular duties without knowing a great deal more about
the society where the human right is supposed to apply, then the optimistic
traditional argument fails. Once we start discovering what goes on in a particular
culture, the prospect of uniformity disappears. And if something as basic and
fundamental as health is taken to be different things to people in different places,
then there can be no hope for uniform duties corresponding to any other human
rights. If such duties cannot be uniform, then there is no universal human right to
health.
Professor Raz’s error is in identifying the right with the particular duties
that it entails. It is true that the specific legal relations that are generated by a
moral or legal right depend on cultural and social factors. But that does not affect

7
Raz, ‘Human Rights’ 43.
8
Raz, ‘Human Rights’ 43.

5
the right itself. Professor Raz fails to distinguish sufficiently between a right and
the legal relations that flow from it. This distinction between a right and its
practical consequences will be differently drawn for moral rights and for legal
rights. Moral rights apportion blame but legal rights distribute coercion. In law
everything is supposed to end up in the form of remedies against specific persons,
justified according to the particular circumstances of each case. Law speaks
through power.
The distinction between legal rights and legal relations is illuminated by a
simple example. Let us say that in England today you had a right to free speech
against a government decision but you failed to challenge that decision within
three months, as the civil procedure rules on judicial review require. Do you have
a right? Our common usage, which Professor Raz endorses, is somewhat
misleading because it forces us to say that you both have a right and you do not
have a right. We may say that you have a right to free speech but not a right to
win the case against the government. But is not the right to free speech the same
thing as winning the case against the government? This is what Professor Raz
also implies, when he discusses the right to health and the relation to the duties it
entails. The right is the set of duties it entails. But it is clear that this is
paradoxical and highly confusing.
The most appropriate analysis of such a situation should be that there is
still a legal right, namely the right to free speech, but that the legal relations that
follow from it (namely the Hohfeldian pairs: claim/duty, liberty/no-right,
power/liability and immunity/disability) are subject to countervailing reasons of
civil procedure.9 We should then say that in the example the claimant has a right
but not a legal claim, hence his application for judicial review fails. Rights are
reasons that entail clusters of particular claims, liberties, powers and immunities
as instances of law, when the conditions of legal reasoning and procedure have
been satisfied. The nature of the right is the particular justification or argument it
offers for a set of legal relations. It follows that legal rights cannot be properly
9
See W. N. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’
23 Yale L. J. (1913) 16 and 26 Yale L. J. (1917) 710, reprinted in Wesley N. Hohfeld, Fundamental
Legal Conceptions As Applied in Judicial Reasoning, edited by Walter Wheeler Cook (New Haven:
Yale University Press, 1923) 23 and 65. For an interpretation see Eleftheriadis, Legal Rights 107-
128.

6
understood except as interpretations of some ideal of the control persons ought to
have over their lives, an ideal of liberty. So the connection between rights and
legal relations is one of justification and interpretation.10
It follows that the Hohfeldian instances of law, the proper set of legal
relations, come as conclusions of legal deliberation about particular cases. This
analysis does not, obviously, apply to moral rights, since there is no comparable
remedial framework. When we disapprove of someone’s actions, we at most tell
them so. It is a different case in law. Nor is there in morality a related principle of
assurance under the rule of law, as there is in any sophisticated legal order. This
principle promises that public rights and duties will be given effect through
remedies constructed according to a public set of institutions according to the
requirements of the rule of law.
One would have expected Professor Raz to respect the distinction between
reasons and duties. His general analysis of rights is an expression of the same
idea. Professor Raz has consistently written that rights are interests that are
sufficiently strong to justify the imposition of duties.11 But he fails to draw the
appropriate conclusion from his own distinction. In effect, Professor Raz holds
rights to be both reasons and conclusions, rights and legal relations, at the same
time. I will offer three examples where he fails to draw the distinction sufficiently.

a) Rights to government bonds

The first example is his usage of a right to ‘government bonds’. Professor Raz is
outlining a distinction between legal rights with moral force that are ‘created by
law’ and ‘legally recognised moral rights’. He gives as an example of the former
category the ‘rights one has by virtue of holding a government bond’.12 But these
are not rights at all and the example is very odd.
Having any sort of entitlements over a government bond involves claims,
liberties, powers and immunities. These are specific legal relations, particular to
the circumstances of the case. One has a government bond because they have

10
This is an argument I explore in detail in Legal Rights 149-179.
11
See for example Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) 165-192.
12
Raz, ‘Human Rights’ 34.

7
purchased them in a valid way and because the general law provides for
government bonds and because all the possible exceptions do not apply or
because no relevant person has raised any relevant objections within the six year
limitation. But the legal relations over the government bonds that arise out of the
generally applicable law of contract, property and civil procedure are not to be
confused with the abstract and general rights to property or rights to a fair trial.
The latter are abstract reasons that help us structure the whole legal order.
Specific legal relations come only as conclusions to legal reasoning. So general
legal rights are best understood as cluster rights that may or may not entail a
number of sets of legal relations according to the facts of each case.13

b) A ‘power to waive’ rights

There is a second example. Professor Raz repeats the same mistake when he
speaks of the power ‘to waive rights’. He notes that ‘commonly, right-holders
have the power to waive their rights, permanently or on some occasions’.14 He
explains this as follows:

But generally rights are (by the third truism) protected by duties on others,
which can be – and that is the fourth truism – waived or suspended by the
right-holder. This power, and not the standing to complain, is at the core
of the special standing of right-holders regarding their own rights.15

It cannot be so. Rights, says Professor Raz, are reasons based on values, not
personal preferences. They are objective reasons that do not depend on the
preferences of their holders. Professor Raz writes:

The value of the right to its possessor is its ground. It is that value
which justifies holding others to be duty-bound to secure or at least not
to interfere with the right-holder’s enjoyment of the right, and it is only

13
For further elaboration see Eleftheriadis, Legal Rights 107-128.
14
Raz, ‘Human Rights’ 38.
15
Raz, ‘Human Rights’ 39.

8
 when such duties exist that the right exists. It exists because it gives rise
to such duties.16

It is clear that the value involved here does not depend on the opinion or
preference of the right-holder. How can then the preference of the holder override
the value of having a right? It is very difficult to see how a right holder can
normally deny the effect of an objective value and waive a right. One cannot
waive the existence of an objective interest of the value of a life, for example.
Anyone can, perhaps, exercise a specific legal power to amend legal relations. But
this is different. What we waive is the duty one owes us, not the right that
justified that duty. So by saying that rights can be waived, Professor Raz takes
rights to refer to both the reasons and the particular legal relations they entail. He
writes that the holder waives the right, whereas he means that the holder waives a
duty under some pre-existing legal relation justified, perhaps, by the same right or
other important considerations. So one who waived a claim under a government
bond, would not be waiving the right to property or the right to a fair trial. His or
her rights as general and abstract reasons would remain exactly the same.

c) The specificity of rights and duties

There is a third instance of the same error. Professor Raz writes as follows:

The justification for the existing right for education which I sketched is
based on perfectly universal considerations, namely on the importance of
the opportunity to have a rewarding life and on the way the chances to
have a rewarding life depend on possessing skills to tap the opportunities
available in one’s place and time. All practical moral conclusions are
based on universal considerations applied to specific circumstances. There
is nothing special to rights, or to human rights, in that. And the earlier
considerations about rights generally have shown that rights do not
necessarily derive from other rights. More commonly, and perhaps in all

16
Raz, ‘Human Rights’ 36.

9
 cases, they derive from considerations to do with the value of life in the
way my story about the right to education illustrates.17

Professor Raz tells us that the right to education depends partly on one’s place
and time. Again, there is no distinction here between the right as a general and
abstract reason for action and the particular normative relations that are entailed
by such a right. The two are used here indistinguishably. But this is a mistake.
Legal relations are, of course, particular. Being deliberative conclusions,
they depend on one’s place and time.18 But the general right itself, which justifies
a cluster of legal relations and informs their interpretation, does not, for it is based
on general assumptions about human life and perhaps particular assumptions
about the relevant society. All that a general right needs to specify is that there
should be some institutionalised paths for their appropriate enforcement –
appropriate to its time and place. Some empirical assumptions are necessary, but
they are not as demanding or extensive as Professor Raz requires. In any event,
the proposition that a right exists in law remains general and abstract without the
right losing its meaning. For example, we may say that there is a universal right
to the free exercise of religion, without specifying exactly how each state is to deal
with their own dominant religions (if any) or the precise ways in which
individuals benefit from it. How this right may be given effect in each state or
jurisdiction can remain open as a matter of interpretation, without affecting the
universality of the right as a reason. It can be same reason throughout, variously
interpreted and applied. As long as we observe the same process of reasoning and
justification, universality is maintained.

d) Summing up

The identification of rights with legal relations makes the argument against the
traditional theory unpersuasive. For the criticism amounts to saying that
determining legal relations will depend on particular cultures and understandings.
But this is how it should be. If rights are general reasons, they can be perfectly

17
Raz, ‘Human Rights’ 40-41.
18
For further development of this point see Eleftheriadis, Legal Rights 86-101.

10
universal, when the legal relations they entail depend on the circumstances of
each society. The case for the universality of rights does not include the
uniformity of all the particular legal judgments made because of them.19
I conclude that the argument from the cultural particularity of the content
of human rights fails. It opens the way perhaps for a different argument, which I
think is strong: namely that the general reasons themselves are unavailable
because they are incompatible with the moral horizons of non-Western cultures.
But this is a very different argument, one that does not rely just on the
particularity of human experience. It refers to the variety of reasons, not the
variety of conclusions.20

RIGHTS AND VALUES

The second error, which runs parallel to the first, relates to the way in which
human rights are supposedly vulnerable to the cultural specificity of values. Here
the relevant example is the right to health. For Professor Raz the value of health
and the extent to which it is attainable will depend on the economic, social and
political circumstances of different countries. The argument is supposed to show
that because different cultures take different positions about values and their
conflicts then there is no single right to something valuable. Culture makes the
required balancing entirely parochial. I agree with the observation, but cannot see
how it leads to the conclusion.
Professor Raz’s argument turns on his general account of rights. This is
some type of a teleological argument. Rights are taken to be strong individual
interests in well-being, such that they ground duties on others.21 Professor Raz has

19
Notice that Raz’s argument here undermines equally any domestic case for general rights.
Given the different circumstances, there can be no uniformity of domestic rights either. A large
and varied society with multiple legal systems, such as the United States or the United Kingdom,
could not meaningfully have general constitutional rights because its various constituent legal
systems would bring their own very different understandings to their application.
20
This is a problem that I discuss in Pavlos Eleftheriadis, ‘The Universality of Rights’ 3 Indian
Journal of Constitutional Law (2009) 52-73.
21
This was the theory defended in the Morality of Freedom, where Professor Raz wrote: ‘Given that
rights are based on people’s interests it cannot be claimed that they are trumps in the sense of

11
now modified his theory of rights, in that he now speaks of value, not interests.
But the essence seems to me the same.
The paper states that it there are three truisms about rights such that:

a) what one has a right to is a thing of value,

b) having a right is something of value to the right-holder and
c) the right of one person limits the freedom of other people.22

Because of the first two ‘truisms’, the multiplicity and relativity of ‘value’ across
cultures renders rights highly particular things. Nevertheless, it seems to me that
the first two truisms are not truisms at all.
What one has a right to is the conduct of others. This is why the third
truism is correct. Rights are about the measure of control we exercise over our
own life and over the lives of others. This measure of control is achieved through
clusters of legal relations. But this undermines the first two ‘truisms’. The control
we enjoy over the conduct of others may or may not be of value to us or anyone
else. Having legal relations with others is not the same things as enjoying what
Professor Raz calls ‘the object’ of a right, e.g. education or health. Others should
do something about it, no doubt. But the two are distinct.
It is easier to see this if we return to the classic liberties that rights
normally protect. For example, the right to free speech entitles one to the liberty
of publishing a pamphlet as well as to a claim for the forbearance or tolerance of
the authorities. For most people, however, publishing pamphlets would never
enter their minds. In what sense is the tolerance of the authorities to something
they are not interested in doing of any value to them? How does it serve their

overriding other considerations based on individual interests … It follows that there is nothing
essentially non-aggregative about rights. Nor are rights necessarily agent-relative considerations’;
Morality of Freedom 187. For a recent and very effective criticism of Raz’s general view, which
argues that the aggregation of interests does not yield a theory of rights at all, see James Griffin,
On Human Rights (Oxford: Oxford University Press, 2008) 54-55. For more extensive discussion
see N. E. Simmonds, ‘Rights at the Cutting Edge’ in Matthew H. Kramer, N. E. Simmonds,
Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press, 1998) 113, at
149-158.
22
Raz, ‘Human Rights’ 35.

12
‘interests’ or give them ‘benefits’? The answer normally is given with reference to
a theory of freedom or a set of appropriate liberties of the person. But a theory of
freedom is not a theory of balancing valuable actions. A theory of freedom is an
institutional theory (advocating that rights introduce a two-stage process in our
moral thinking), not a teleological theory.
Professor Raz has explored this issue in detail in ‘Rights and Individual
Well Being’.23 He identified there the puzzle of a stringent right that does not
serve an important interest. He used there the example of owning something
worthless:

I may own something which is of little value to me, say, an old shirt. Since
it is my shirt, others have a duty to respect my right to it. Rights always
justify the existence of duties on (some) others. This in itself shows that the
right exceeds in importance the interest which it protects, since had I no
right to it my interest in having the shirt would not have justified holding
others to be duty-bound to let me have it.24

The answer given by Professor Raz is that rights are also based on the ‘general or
common good or interest’ as well as on the interest of the right-holder. So he
concluded that ‘the protection of many of the most cherished civil and political
rights in liberal democracies is justified by the fact that they serve the common or
general good’.25 So a right is the result of a complex coincidence of parallel
private and public interests. I am not sure how this earlier statement is reconciled
with the most recent one. In the more recent essay, Professor Raz says that his
view of rights ‘in seeing rights as justified by what is of value to the right-holders
… challenges the view that rights are fundamental’.26 Rights for Professor Raz
require a ‘special character of the value which the right provides’, but he nowhere
specifies what this special character is.27 He only says it is not fundamental.

23
Joseph Raz, ‘Rights and Individual Well Being’ in Raz, Ethics in the Public Domain, pbk ed.
(Oxford: Clarendon Press, 1995) 44-59.
24
Raz, ‘Rights and Individual Well Being’ 46.
25
Raz, ‘Rights and Individual Well Being’ 52.
26
Raz, ‘Human Rights’ 37
27
Raz, ‘Human Rights’ 37.

13
 I think that, a rival and in my view better understanding of rights which
explains their role in practical reasoning is that they are not subject to this general
balancing of private and public interests or good or values. I will return to this in
the third part of my comments.
It seems to me that the arguments deployed by Professor Raz make rights
redundant. At most they are summaries of values and their balancing. All that
matters are the values that are involved in our actions. This is a problem that all
consequentialist or teleological theories of rights face: they do not account for the
distinctive role of rights in moral reasoning as protections of freedom.
Rights are not summaries. They introduce a two – level type of practical
thinking about our actions. In the most persuasive account (an account that
Professor Raz used to endorse, but I dot know if he still does) rights have a
peremptory force. Professor Raz has written that rights have peremptory force in
that they ‘mark matters which are of special concern’ to the right-holder and are
for that reason special.28 They may keep this peremptory force in cultures that
take value to be different things. So this is a very important point for the
universality of rights. But nothing Professor Raz says in the essay under
discussion justifies the peremptory force of rights. All we have is the balancing of
values both here and abroad with a view to the best state of affairs from the point
of view of well-being, or the best realisation of value. But such an exercise of a
comprehensive balancing of values will never lead to universal conclusions.
There is a philosophical view that takes rights to be distinct from values, in
the way it protects the moral status of persons. This is the view defended by John
Rawls, Thomas Scanlon, Thomas Nagel and others. For this view, the goods
which we properly value and wish to secure are something distinct from the
institutionally-defined rights, which are important means of securing these valued
goods. So values can conflict when pursuing one requires some sacrifice in the
pursuit of the other. When a conflict arises we may need to ‘balance’ these values
against one another. But this is not the case for conflicting rights. Rights,
understood as institutional constraints that prevail over the pursuit of any other

28
Raz, The Morality of Freedom 250.

14
collective good) are not to be balanced but adjusted against other rights. This
adjustment of rights is not a matter of balancing.29
This philosophical tradition, which holds that the value of some liberties is
a distinct value worthy of this protection, is much closer to the paradigm of
human rights in law. I think that legal doctrine is now very comfortable with the
idea of a two-tier structure, and the thought that rights are constitutional or
human essentials that courts must protect with special urgency, even when their
own legislatures have been negligent or even hostile to this protection.
Constitutional rights have a peremptory force in constitutional law in that they
are to be protected in a special way by courts and other public agencies. Human
rights have a peremptory force in international law in that they are to be protected
in a special way by international institutions and states even against the normal
barriers of state sovereignty. This distinct use of rights law must be part of any
persuasive theory of the law of human rights.
None of these features is accounted for by Professor Raz, for whom rights
are continuous with values or interests. Rights for him are at most summaries of
the good action. But if so, his criticism of human rights misfires, because he
addresses neither the legal reality of human rights nor the best philosophical
arguments for the peremptory force of human rights.

THE INSTITUTIONAL DOMAIN OF HUMAN RIGHTS

My final point concerns the domain of human rights as legal rights. Professor Raz
does not situate human rights in their proper institutional domain. He assumes
that they are continuous with interpersonal rights. He takes human rights to be
forms of interpersonal moral rights. I believe this is a mistake, because human
rights are institutional rights with a very particular function.
The view that rights are teleological tools for the achievement of value
takes right outside any institutional context. Yet there is a difference between
interpersonal rights, political rights and international (human) rights. It may be
that moral inter-personal rights are considerations of substantive value of the kind

29
See for example T. Scanlon, ‘Adjusting Rights and Balancing Values’ 72 Fordham L. Rev. (2004)
1477.

15
that Professor Raz describes. We can remain agnostic about this while we focus
on human rights. In the case of interpersonal relations, the persons involved in
the relationship are perhaps to judge their conduct by reference to what they
consider valuable action. Nevertheless, in political and international contexts the
situation is very different.
Legal rights are evaluations of action that are always imposed on others
and imposed on persons by the force of state dominion. If a court decides
something, the parties are bound by it. If a legislator issues a law, the citizens are
bound by it. When a constitution sets out constitutional rights, everyone is bound
by them. So legal rights are not personal evaluations of action. They are
institutional evaluations with huge consequences for the individuals concerned.
Law speaks through power.
We must conclude that institutional rights and interpersonal rights must be
two very different things. If we adopted a view of legal rights as summaries of
overall value, as advocated by Professor Raz, we would also imply say that the
institutions of the state had to make such relevant evaluations, if they were to
properly apply rights. Otherwise, they would not protect rights correctly. In order
for state institutions to understand and give effect to rights, Professor Raz implies,
these legal institutions will need to engage in precisely the same consideration of
the balancing of value as that performed by persons in figuring out their own
relations with others. So Professor Raz invites these institutions to use state
power to promote the good of everyone as defined by the most persuasive theory
of value. There is no boundary of inviolability for persons, unless it is supported
by that theory of value. But this result is contrary to our intuitions about rights.
The untrammelled pursuit of the good by the sate, according to the true ends of
life so to speak, is the very denial of constitutional rights and the very denial of
modern liberty. If the state is supposed to create virtue in this way, there is no
room for individuals to take responsibility for their lives.
In a way, Professor Raz’s theory of rights is pre-modern. It refuses to
engage with the political arguments for the social contract, such that we find in
Hobbes or Rousseau. He takes us to Plato’s Republic or to Aristotle’s Politics where
the aim of the state is to create room for virtue. But even Plato expressed doubts
about this plan in his late works. In the Statesman he tells us that we cannot tell

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who might be the wise person that is capable of telling right and wrong in all
particular cases. So he advises us to settle with second best, a ‘second choice’,
namely the rule of law, even though laws fail to discriminate among particular
cases. He tells us:

… people have found themselves unable to put up with the idea of that
single individual of ours as monarch, and refused to believe that there
would ever come to be anyone who deserved to rule in such a way, so as
to be willing and able to rule with virtue and expert knowledge,
distributing what is just and right correctly to all… But as things are, when
– as we say – a king does not come to be in cities as a king-bee is born in a
hive, one individual immediately superior in body and mind, it is
necessary – so it seems – for people to come together and write things
down, chasing after the traces of the truest constitution.30

Professor Raz’s argument advises us against this second best. The overall best is
to allow judges and others to exercise philosophical acumen as to the content of
real value. He does not think that the special power of the state, of the collective
force, which so easily corrupts leaders into becoming rapacious tyrants (Plato
notes, from bitter experience) demands any special treatment. Perhaps he accepts
the idea that the state is to give meaning to our lives.
Philosophically, this argument is contrary to the liberal premise that the
state should not tell people how to live. But it is also contrary to our legal
experience of rights in both constitutional and international law, where we are
called upon to apply rights without passing judgment on what is the right way to
live. For example, the right to free speech is universally recognised to protect bad
speech. In fact, whether it is good or bad does not go into the assessment, except
when it crosses certain extreme barriers. So racist speech or mendacious speech is
normally allowed. I do not think Professor Raz can explain how there can be a
right to do wrong.

30
Plato Statesman, trans. R J Rowe, in Plato, Complete Works, edited by John Cooper,
(Indianapolis: Hackett, 1997), 301c-e, p. 346.

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 Similar consequences follow for international human rights. They are
rights that are supposed to be enforced by institutions, namely states and
international bodies. Yet the problem becomes harder in the international setting
or human rights are supposed to do their work. This invitation to seek the
ultimate good is certain to undermine the stability and legitimacy of any
international system.
Let me discuss a recent example. In March 2009 the United Nations
Human Rights Council, passed a resolution speaking of the ‘defamation of
religion’ as a human rights violation.31 All Western members of the HRC voted
against the resolution. Saudi Arabia, Russia and Egypt, among others, voted for.
India and Brazil abstained. This resolution ‘expresses deep concern at the
negative stereotyping and defamation of religions and manifestations of
intolerance and discrimination in matters of religion or belief still evident in the
world, which have led to intolerance against the followers of these religions’. It is
hard to understand what they are saying, unless of course one assumes that the
religious sensibilities of the faithful merit special protection. Do they? The answer
will depend on a substantive theory of the good. So the Council is giving effect to
Professor Raz’s theory, minus the emphasis on autonomy. But this is the view of
the good that they have. They do not have another.
But this type of paternalism cannot be a correct account of the ethics of
human rights and it also misunderstands the current law of human rights. In the
domain of international law, rights have a distinct role. They are a kind of
secondary international remedy, i.e. standards for intervention (persuasive or
even coercive) into the domestic affairs of another state whenever that state is
guilty of the most serious violations of human dignity. Human rights address the
problem of international justice that may be acceptable to both liberal and illiberal
societies. This means that international human rights are not the same thing as
basic political rights, although they share a common form of institutional
expression and a common form of justification, namely the idea of rights as
recognitions of equal moral status.
This is why Rawls’ list of international human rights includes only rights
against slavery, involuntary servitude, a right against religious persecution, a right

31
Human Rights Council, Combating Defamations of Religions, Resolution 10/22, 27 March 2009.

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to hold personal property, a right to emigrate, a right to resources to subsistence
and a very limited right to political participation in a ‘consultation hierarchy’.32
This list does not replace the list of basic rights that is defended in Political
Liberalism.33 It just applies to a different question: the question of the legal
relations among states that could be seen as legitimate by all. This does not mean
that for a Rawlsian non-Western states should not be liberal. It only means that
we cannot set up a mutually acceptable set of international legal institutions on
the basis of narrow liberal ideals. A liberal will criticise and condemn decent but
illiberal societies for their failure to fully respect liberty and equality, even if he
welcomes them into the society of peoples. The point is that an acceptable law of
peoples cannot ‘require decent societies to abandon or modify their religious
institutions and adopt liberal ones’.34 This abandonment is precisely what
Professor Raz’s theory of rights requires.
I believe that the same argument, and the same universality, is now
endorsed by Ronald Dworkin. Dworkin’s recent argument on human rights
shows that the international domain is not to be treated in exactly the same way
as the political domain even though the values involved are the same.35 Dworkin
contrasts rights that are internal to a political society which he calls political rights
and rights that are to be invoked internationally which he calls human rights.
Political rights mark off and protect particularly important interests, in such a
way that ‘it would be wrong – morally wrong – for the community to sacrifice
those interests just to secure an overall benefit’.36 Human rights, by contrast,
achieve something different. They are based on the ‘fundamental human right to
be treated with a certain attitude: an attitude that expresses the understanding that

32
John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999) 71-78
33
John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
34
Rawls, Law of Peoples, 121. Rawls also says: ‘the Law of Peoples proceeds form the international
political world as we see it, and concerns what the foreign policy of a reasonably just liberal
people should be’ (p. 83).
35
See Dworkin, Is Democracy Possible Here? (Princeton: Princeton University Press, 2006) 30-45.
36
Dworkin, Is Democracy Possible Here? 31. Dworkin elaborates on his theory of rights in his
Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press,
2000), 120-210.

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each person is a human being whose dignity matters’.37 This means that the
mistakes that a political society may make in outlining rights, may be a violation
of political rights but not a violation of human rights, if the mistaken
interpretation still exhibits the required attitude.
Dworkin gives as an example the free speech rules of Germany, where
pro-Nazi statements are forbidden. This rule may be morally mistaken (and
legally unacceptable in the United States and the United Kingdom), but because it
is a genuine interpretation of the ideals of dignity, it is not in itself a violation of
human rights. The difference between domestic political rights and international
human rights is explained by the difference in context. When we debate
international sanctions or interventions, we take into account the variety of
political cultures and systems and the overriding requirement for peaceful
coexistence. The question is different from the domestic case.
By failing to take into account the specific institutional domain of
international human rights, Professor Raz has not really offered any argument
that affects human rights. He has just told us that the ways in which we may think
of interpersonal moral rights as attempts at satisfying value, all things considered,
cannot support a universal right to health and education. Well, we knew that. But
this is because such human rights are not interpersonal rights, but rights with an
institutional role and function. It follows that their justification must be
appropriate to their institutional context.

CONCLUSIONS

Moral rights, political rights and international human rights are all interpretations
of the same basic idea, namely that to have a right is to enjoy a moral status of
equal dignity requiring respect from all individuals and institutions. Rights are not
lists of directions or permissions nor are they summaries of the balancing of
values. They are practical reasons that ground clusters of legal relations by means
of interpretation, in ways determined by the techniques of legal reasoning and
argument. They do so in order to protect the inviolability of persons. This

37
Dworkin, Is Democracy Possible Here? 35.

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inviolability has different effects in institutional settings and interpersonal
relations, hence the distinction between public and private law.
The universality of rights will succeed not if all the legal relations that stem
from rights come to be identical, but if we can show that the same type of
arguments and justifications can be acceptable to both liberal and illiberal cultures
in institutional settings.38 What is universal is the type of derivation from a
universal reason, not the conclusions that we may reach as a result. The
appropriate domain is the domain of institutions, not interpersonal relations. This
is true both in political philosophy and in legal practice. In effect, by reducing
rights to summaries of values Professor Raz fails to account for both their
practical and their legal distinctness.

38
I say more about this in Eleftheriadis, ‘The Universality of Rights’ 3 Indian Journal of Constitutional
Law (2009) 52-73.

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