University of Amsterdam Faculty of Humanities, June 2014
Philosophy and Public Affairs
Nonsense upon stilts?
The conceptual justifications, rejections, legal pitfalls, and future prospects of
universal human rights theory
I.L. Braber, 0411035
Dr. R. Celikates
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Contents
Introduction
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1. The historical concept of human rights
1a. Enlightenment ethics
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2. What are human rights?
2a. On the substance of human rights
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3. About the source of human rights: how can these rights legitimately exist?
3a. Moral universalism: The philosophical foundation of human rights justified
by the concept of human dignity
I. Kant
II. Habermas
III. Benhabib
IV. Other contemporary attempts to justify human rights theory:
the interest approach and the will approach
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4. Criticisms on human rights theory
4a. Hierarchy of rights
4b. Universalists and believers in natural rights: problematic aspects
4c. Early epistemological human rights criticism
I. Burke
II. Bentham
4d. Human rights and moral absolutism: criticizing the historical basis and
addressing the utopian character
I. Moyn
II. Gray
4e. Contemporary epistemological critiques of human rights doctrine
I. Moral relativism
II. Arendt
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5. Human rights problems in practice
5a. Kennedy
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6. Human rights legitimacy: a different approach
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Conclusion
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Bibliography
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Introduction
As a plethora of contemporary academics have stated, we live in a human rights culture, 1 with which
they mean that global politics, jurisprudence and social affairs of recent years are increasingly based
on theories of so-called universal human rights, mainly originating from Western philosophy. In the
contemporary world, the language of human rights has become ubiquitous, for instance shaping
legally binding international human rights documents and transnational institutions as the
International Criminal Court. Human rights have gained a stronghold in the sphere of international
law.2 This language of human rights is understood and utilized by many peoples in very diverse
circumstances, so that human rights seem to have become indispensable to contemporary
understandings of how human beings should be treated, both by one another and by national and
international political bodies.3 However the concept of human rights is in itself not uncontroversial;
while to some these rights promise a firm foundation for healthy and equitable societies, to others,
they imperil age-old values at the cores of people's identities.
Defenders of Western human rights theory often make it appear like the concept of human rights is
founded on very old and profound historical ideas about human dignity and the intrinsic value of the
individual, historically tracing these concepts back to Enlightenment philosophers like Kant, Grotius,
Locke, Spinoza or even Plato. Regarding the merits of this development, as Dworkin superlatively
observes, human rights straddle the line between morality and justice; they enable us to judge the
legitimacy of law.4
Interestingly, several critical writers do not necessarily celebrate the emergence of the international
human rights program, but merely regard it as a very specific kind of present-day utopia. The most
prominent of these are John Gray, Samuel Moyn, and Slavoj Zizek, who respectively claim that the
faith we place in human rights is symptomatic of modern humanity’s conventional but very mistaken
belief in the possibility of progress, that theories of universal human rights have only a
philosophically very insubstantial and recent origin, and that, perversely paradoxical, the ‘bearers’ of
‘universal’ human rights who actually need the exercising of these fundamental rights to life the
most are precisely the most vulnerable ones, namely stateless people and refugees, who, deprived
of their citizenship are also deprived of a state who can effectively secure protection of these rights.
In this respect, also Hannah Arendt, Jeremy Bentham, and Edmund Burke spring to mind, who in the
past have allowed themselves to be quite sceptical about the whole notion of human rights for
similar reasons.
1
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See e.g. Ed Bates, ‘Foundations: History’ in Daniel Moeckli Sangeeta Shah Sandesh Sivakumaran (eds) International Human Rights Law (1 edn, Oxford
University Press 2010) 17
2
Legal sources of international human rights law are, roughly in order of importance, -treaties, conventions, covenants and charters, which are binding
instruments of international law for the state parties who signed and ratified them; -customary law (based on both state practice and opinio iuris); -general,
underlying legal principles, such as for example ‘good faith’; -judicial decisions (jurisprudence case law); -legal academic teachings. Other international legal
human rights instruments such as declarations, resolutions and recommendations are conventionally called ‘soft law’, which is not legally binding but still
plays an important role in the international sphere, perhaps more in international human rights law than in the rest of publi c international law.
3
Andrew Fagan, ‘Human Rights’ (2005) The Internet Encyclopedia of Philosophy http://www.iep.utm.edu/hum-rts/#H6, first published 5 July 2005, edition
accessed 21 February 2014 ‘Conclusion’
4
Seyla Benhabib, ‘The Legitimacy of Human Rights’ (2008) 137 Daedalus 102; Ronald Dworkin, ‘Taking Rights Seriously’ (1978) in Taking
st
Rights Seriously (1 edn, Harvard University Press(Cambridge Mass.) 1978) 184
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Additionally, there is a wide-ranging disagreement among jurists and philosophers about the exact
nature and scope of so-called universal human rights. Several perspectives range from arguing that
these rights constitute the ‘core of a universal thin morality’5, or claiming that they form the
‘reasonable conditions of a world-political consensus’6, while others still narrow the concept to ‘a
minimum standard of well-ordered political institutions for all peoples, cautioning the need for a
sharp distinction between this minimal understanding and the extensive list of rights enumerated by
the United Nations’ 1948 Universal Declaration of Human Rights.
The subject of this research is the presumed philosophical foundation of human rights: whether
these rights indeed do possess a substantial theoretical basis. More accurately, I wish to study the
problems I perceive in contemporary human rights discourse and the sceptical response to it. More
than an independent philosophical investigation of the normative justification of rights, I will
comparatively describe various positions in general human rights discourse and present the difficult
aspects I encountered regarding the philosophical legitimacy of human rights.
One could ask whether human rights actually need a special justification, since human rights are a
central part of international law today. Therefore, one might think that they raise no special moral or
philosophical issues; after all, their existence and role within international affairs can be already
settled by simply consulting relevant legal documents and judicial decisions, leaving one solely to
wonder about the eventual moral merits or philosophical foundations of human rights law.
However, since human rights claim to apply everywhere and trump cultural and political practices,
they need strong considerations to justify the values founding them. Several human rights purport to
be binding whether or not they are recognized by a state in its domestic laws or through the
ratification of human rights treaties7, suggesting that at least some human rights are universal moral
rights binding states and individuals both apart from and prior to domestic and international law.8
According to more than one writer, the notion of human rights is inherently utopian. For example
Gray regards, as mentioned, belief in progress as a foolish myth. Meliorism, the idea that eventually
things can get better, is to him merely a faith broadly shared by ‘the progressive intelligentsia: if only
humankind could bring itself to be reasonable, the future would be so much better than the past.’ 9
5
Michael Walzer, Thick and Thin, Moral Argument at Home and Abroad (University of Notre Dame Press 1994) 54
Martha Nussbaum, ‘Capabilities and Human Rights’ (1997) 66 Fordham Law Review 273
E.g. the prohibition on torture, which is well-established under customary international law as ius cogens
8
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James Nickel David Reidy, ‘Philosophy’ in Daniel Moeckli Sangeeta Shah Sandesh Sivakumaran (eds) International Human Rights Law (1 edn, Oxford
University Press 2010) 42-43 HB
9
John Gray, ‘Philosophy for the all-too-common man’ (2010) The National Interest 2010
This highly interesting ‘myth of progress’ and, on the other side of the coin, human’s endless capacity for barbarity, is an essential theme in Gray’s writings. It
is quite neatly summarized in the following excerpt on John Stuart Mill’s groundbreaking On Liberty: ‘‘Mill held to *...+ a belief in the practical irreversibility of
the condition of freedom – a belief which, in Mill’s case as in that of the other liberals, was linked with a historically optimistic doctrine of progress. This is to
say that, in common with the French positivists as well as most of the English Utilitarians, Mill saw human history as a whol e evincing an inherent tendency
(though not, perhaps, an inexorable law) to moral and intellectual progress. Unlike the French Positivists and some at least of his utilitarian ancestry, however,
Mill never envisaged further progress as involving any curtailment of the liberal freedoms he argued for in his own day. It is this conviction of the inherently
progressive character of man and history that is hardest to give any rational credibility. It is not clear why the condition of freedom should have the aspect of
irreversibility Mill attributed to it. That men accustomed to making their own choices will prefer to go on making them for themselves can only be for Mill an
inductive wager, grounded in social-psychological conjecture. It could attain the status of an apodictic certainty only if Mill were ready to forswear empiricism
and nail his colours to the mast of an essentialist definition of man. It may well be that this latter move is his only recou rse if his conviction of the inherent
progressive character of human history and his belief in the irreversibility of the condition of liberty are to be sustained. We will be going one step further
than Mill, who allowed that the Doctrine of Liberty applied only when a definite stage of civilisation had been achieved, by acknowledging (as Mill rarely did)
that we have no assurance that civilisation can always be maintained. Barbarism remains a permanent possibility, and where th e social and moral psychology
of barbarism prevails, the conditions demanded by the Doctrine of Liberty are no longer met. It seems to me that severing the Doctrine of Liberty in this way
from the larger claims of Mill’s liberalism is an unavoidable strategy for anyone unwilling to have recourse to the desperate essentialist expedient of simply
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This doctrine, according to him, is the cornerstone of liberal secular humanism, which he deems the
present dominant ideology in the West. To summarize his approach, the experience of human life is
unlikely to get better.10 Though Gray recognizes the historic fact of scientific improvement, there is
no direct, parallel connection with ethical progress, since ‘there is no power in the world that can
ensure that technology is used only for benign purposes’, especially when taken the underlying,
inherently barbaric nature of humans into account as Gray does. 11 To Gray the most remarkable kind
of utopia in the present time is the contemporary belief in the existence of universal human rights
and consequently, the dream of achieving ultimately equality, liberty and justice on a universal scale.
The flip side of utopian thinking thus seems to be disappointment when the grand aspirations do not
turn out to be as hoped for. As is the case with human rights, discontent is never far away, as will be
pointed out in the following pages.12 As Moyn also notices, human rights have indeed come to define
the hopes of the present day.13
This is not to say that overall the concept of human rights is valueless. Human rights codification
aims to banish out or at least diminish suffering and could quite possibly be the most well-founded
and expedient means to ultimately enable a decrease in human misery and tragedy. One can defend
the good in this from a range of philosophical positions, spanning the gamut from utilitarianism, to
Kantianism, to virtue ethics. Also, as Gray notes, the human rights project may have played a part in
helping to frame a universal moral minimum.14 What is strikingly important to note though is that in
practice, as mentioned, the legal subjects who actually need human rights the most in fact do not
possess anything other than these theoretical ‘bare rights to life’ and at the same time, in reality
these rights are not attainable. This ontological paradox is a painful contrast with their proclaimed
universality and the lip service being paid to global equality and justice. As Arendt profoundly
articulated it, the actual rightless people lack the initial ‘right to have rights’. 15 As pointed out earlier,
perhaps one of the greatest both practical and theoretical problems is the question of universal
application. Ideally and legally, human rights seem to apply to all but, in reality, the universality of
human rights is not a fact. At best, human rights universalism is a possibly utopian aspiration.16
And the actual deplorable situation of factually rightless people is not the only harmful circumstance
surrounding the endeavour of theoretically endowing individuals with universal, ‘inalienable’ rights.
defining human flourishing as bounded by the condition of freedom. For if this latter course were adopted, Mill’s argument would indeed ceas e to be a
utilitarian one in which only the claims of want-satisfaction are considered.’ John Gray, Mill on Liberty, A Defence (Routledge and Kegan Paul 1983) 119
10
However, it should get a bit more tolerable if people could let go of the eventually frustrating expectation they can control their lives.
11
Be that as it may, in this disquisition remains open the question whether a –presumably faulty- belief in ‘progress’ is actually harmful, but Gray attributes
the harm created by the grand totalitarian schemes, and now in the capitalism adage of growth, partly to this faith.
12
However, as Gray and his peer pessimist philosophers would respond, hopes are false and fortune and rights are exceptional; that the world is not how it
ideally should be is not that astonishing.
13
Samuel Moyn ‘Human Rights In History’ (2010) The Nation 36
14
John Gray, ‘What Rawls Hath Wrought’ (2011) The National Interest 89
15
With this phrase Arendt means that, in order to effectively be a subject of human rights, one needs first and foremost to pos sess the prior ‘right to have
these rights’. The most famous argument for this is when a human being is reduced to bare life, for instance when he is a refugee without any security or
possessions, ideally and theoretically human rights attach to him ‘simply for being human’ – but without real membership as citizen of some political structure
such as a state, these supposed rights prove to be powerless. This person is hence denied a state necessary to enjoy his human rights. I will elaborate on this
in part 4e-II. See also David Ingram, ‘What Is a "Right to Have Rights"? Three Images of the Politics of Human Rights’ (2008) 102 The American Political Science
Review 401-416
16
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Marie-Bénédicte Dembour ,‘Critiques’ in Daniel Moeckli Sangeeta Shah Sandesh Sivakumaran (eds) International Human Rights Law (1 edn, Oxford
University Press 2010) 76
7
Regarding the other side of the resource distribution spectrum, the West, some argue that citizens
rely too much on their professed human rights, indeed abuse the notion.17
It needs hardly defending that a state adhering to the rule of law and founded on a human rights
corpus is not the greatest of all possible evils, and probably is able to achieve a relatively greater
amount of ‘social justice’ among its population, vague though this term might be, and can at least try
its hand at protecting the weaker of its citizens. The importance and merits of the rule of law and the
protection of general rights of a state’s population can hardly be too much emphasized. However it
is by far not astonishing that the human rights programme isn’t able to erase all social and existential
problems, since it seems unfathomable how a legal structure alone could do so. After all, laws alone
do not lead to virtue. And though via laws ideally each and every right has a corresponding duty18,
the burden of these duties disproportionately falls upon such an abstract entity as ‘the state’, whose
resources and potential are limited.
However obvious it may seem, it should not be left unsaid that a significant distinction between the
philosophical concept of ‘human rights’ and the (legal) doctrine of ‘universal human rights’ exists.19
Benhabib for instance points to the discrepancies between the philosophical account of human
rights (as fundamental moral principles) and the international law of human rights, in her view
reflecting the confusion relating to the exact nature and scope of human rights. 20 And even if the
supposed content of basic human rights would be sufficiently clear, basic human rights require
becoming legal rights by their embodiment and instantiation in a specific legal framework. 21 More
precisely, there is a gap between morality and positive law. These concepts are interrelated though,
and when trying to find a justification for human rights, several philosophers share interesting
theories on what constitutes the ‘conceptual hinge’ connecting these components, some of which I
will elaborate on further in this thesis.
In this philosophical approach to the issue of human rights, I will examine some of the problematic
aspects of the human rights concept. Starting with a description of how the unfolding of the Western
doctrine of human rights has gained momentum and a short discussion of Enlightenment ideas
about natural law (chapter 1), I will elaborate on the corpus of human rights as supposedly founded
on Grotius and Locke (chapter 1), and Kant’s concept of human dignity (chapter 3), during which I
will elaborate on the essence of human rights (chapter 2). Then I will address 20st-century
proponents of the moral universalism of human rights theory, specifically critical theorists Habermas
and Benhabib (chapter 3), and address two other contemporary approaches attempting to justify
human rights (chapter 3). Subsequently, I will investigate the supposed legitimacy of universal
human rights based on both classic critiques (chapter 4) and on the more sceptical observations of
Moyn, Arendt, and to a lesser extent today’s pessimist philosopher Gray (chapter 4); Kennedy
17
Arguably, also these experiences result from the logical impossibility of the human rights doctrine, as will be duly showed. Related, a number of
philosophers have proposed the view that human rights are minimal in the sense that they should not be too numerous or demanding.
18
The duty-right dialectic, see also David Wiggins (1991).
19
See also Samuel Moyn, The Last Utopia, Human Rights in History (Harvard University Press 2010) 43
20
Benhabib (n4) 96. Benhabib presents that the core content of human rights would ‘minimally include the rights to life; liberty; some form of personal
property; and equal freedom of thought including religion, expression, association, and representation. Furthermore, liberty requires provisions for the ‘equal
value of liberty’ (Rawls) through the guarantee not only of basic socioeconomic goods/provisions but also through the right of self-government’. 102
21
Benhabib (n4) 102
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(chapter 5); and Rorty (chapter 6), ending with the latter one’s alternative perspective on
understanding human rights.
However, the question whether if human rights do indeed possess philosophical legitimacy does not
necessarily mean that they are unable of merely constituting a utopian ideal. Vice versa, as Rorty
argues, even without a legitimate theoretical foundation the moral superiority and desirability of
fundamental human rights is not immediately to be denied. Nevertheless, the actual execution of a
human rights program is imaginably harder to achieve when a sufficiently large part of society is not
fully convinced of their inherent ‘rightness’. Then again, humans are of course capable of doing
wrong even when they know so.
The doctrine of human rights does not automatically protect against barbarism, precisely because
believing so would reduce the dispute to purely legalistic arguments. Moreover, even with a
philosophical justification, the problem of who in fact is the actual bearer of human rights is not
solved. Therefore I do not pretend to solve even a slight issue in this intricate object of study.
Undoubtedly human rights do exist, leading many people to act according to the obligations they
entail, and in this respect they may be perceived as empirical facts about the present world.
However, many take the validity of human rights for granted, since they seem too obviously to
appear to rest upon universally valid and self-evidently true moral principles. But in the philosophy
of ethics one does not automatically enjoy licence for epistemological complacency by simply
pointing to the fact some rights seem to be just there. I therefore remain concerned by the question
of the theoretical foundation of human rights. Since the debate around human rights is very complex,
I do not dare to attempt to make overly general claims about the nature or philosophy of human
rights as such. Rather, I wish to address the seemingly ever more pressing problem whether human
rights theory indeed does need a solid philosophical justification. To investigate this topic, I will
assess the validity of a few positions in this discussion, namely conventional approaches of moral
universalism and mainly the Kantian notion of human dignity, and balance this with slightly sceptical,
relativist, and postmodern stances.
A related question to answer this main problem is: what are fundamental societal problems, and
with what means, and especially in which way not, is the human rights program able to solve these.
Additionally, I will briefly address the issue whether the criticism on the Western human rights
culture is justified by examining contemporary complaints that the West is stretching the limits of
human rights theory too far which results in too great a sense of entitlement and correspondingly
grave discontent among its citizens. Interlinked to this is again the question whether the theory of
fundamental human rights through intellectual history is merely utopian or actually contributing to
progress.
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1. The historical concept of human rights
The notion of ‘human rights’ today evokes the concept of essential moral principles, protecting the
fundamental interests of all people everywhere. Seemingly based on broadly shared norms
regarding life, liberty and equality, human rights seem at once a utopian ideal and, by means of their
codification in (semi-)binding domestic and international law, a realistic practice for implementing
that ideal; they are a sort of self-fulfilling moral prophecy.22 As human rights historian Moyn remarks,
when people hear the phrase ‘human rights’, they think of the highest moral precepts and political
ideas, and have in mind a familiar set of indispensable liberal freedoms, and sometimes more
expansive principles of social protection. But human rights also mean something more: the phrase
implies an agenda for improving the world, and bringing about a new one in which the ‘dignity’ of
each individual will enjoy secure international protection. In this, the human rights program is
recognizably utopian.23
The belief in the undisputed existence in human rights has in the past century given rise to what we
can deem a doctrine of universal human rights in the international social, legal and political sphere.
In the twentieth century, human rights theory have been given a boost by Rawls’ inventive
perspective in determining principles of social justice and when laying the philosophical groundwork
for a global political order.24
Often the existence of human rights is defended by pointing at their, indeed, fundamental ‘essence’
of human dignity and morality.25 Also in legal documents an appeal is made on this ultimate asset of
being a human: Article 1 of the Universal Declaration of Human Rights proudly proclaims that ‘all
human beings are born free and equal in dignity and rights’, and the two major international human
rights covenants state that human rights ‘derive from the inherent dignity of the human person’. 26
Human rights exist, according to this conventional justification, because they are apparently selfevident. However, this almost seems tautological: today’s definition of a human right is a right that
one has simply for being a human. This justification would then be based upon the supposed
intrinsic value of humanity. Indeed, a common justification for the existence of human rights is an
appeal on Kant’s concept of human dignity. Many writers have attempted to show how human
rights and human dignity are connected with each other. Habermas offers a remarkable historical
perspective, claiming that since human rights developed in response to specific violations of human
dignity, they can be conceived as specifications of human dignity, their moral source. 27 In his
understanding, human dignity as a modern legal concept these days conveys the egalitarian idea
that all humans belong to the same, very high rank, contrary to the meaning dignity once had (i.e. as
associated with hierarchical differentiation of status). This idea of the unique worth of each person,
to Habermas, finds its source in Judeo-Christian philosophical tradition28 and seems to be shaped
22
Jack Donnelly, ‘Human Rights’ in John Dryzek Bonnie Honig Anne Phillips (eds) The Oxford Handbook of Political Theory(Oxford University Press 2008) 603
Moyn(n19) 1
24
See A Theory of Justice (1971) and The Law of Peoples (1993), in which Rawls delineates a restricted account of human rights that is binding on all people
25
See for example Berkowitz, who perceives the foundation of human rights in ‘Immanuel Kant’s philosophical grounding of human dignity’. Roger Berkowitz
‘Hannah Arendt on Human Rights’ in Thomas Cushman (ed) Handbook of Human Rights (Routledge 2011) 60
26
See e.g. the Preambles of the ICCPR and the ICESCR
27
Jurgen Habermas, ‘The Concept of Human Dignity and the Realistic Utopia of Human Rights’ (2010) 41 Metaphilosophy (Blackwell Publishing Ltd Oxf ord) 472
28
Id est human beings’ creation in likeness to God
23
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further by Grotius’ and Pufendorf’s moralization of the concept of individual liberty, and eventually
fine-tuned by Kant who developed this understanding into a deontological concept of autonomy. 29
1a. Enlightenment ethics
Returning to a conventional approach of the human rights doctrine, this rests upon a specific
philosophical claim, namely that a rationally identifiable moral order exists, whose legitimacy
precedes the contingent historical and social conditions, and applies to all human beings regardless
of time or location. More fundamentally, in this view moral confirmations are capable of being
objectively validated as universally true. This renders the contemporary theory of human rights a
particularly universalist moral approach. Moral universalism thus posits an existence of rationally
identifiable moral truths, surpassing cultural or historical variations. Human rights are founded upon
the claim to moral objectivity, whether by appeal to interests or the will. Any critique of moral
objectivism is therefore bound to have repercussions for the philosophical defence of human rights.
However, more political approaches towards human rights theory are at least as significant as moral
universalism. Exponents of this school are Benhabib, Habermas, and Rorty, to whom I will devote
attention later.
Historically, the philosophical development and origins of the human rights doctrine seem
nevertheless inextricably related to the unfolding of moral universalism in ethics. In this universalism
one can distinguish several philosophical, essential prerequisites which defend the contemporary
doctrine of human rights. Included in them is a perspective on justice and morality as emanating
from some pre-social domain, identification of which serves to provide a basis for the distinction
between merely conventional and ‘true’ moral beliefs. Another prerequisite that serves the human
rights doctrine is conceiving of the individual as a bearer of certain natural rights, which is tied to a
particular view of the intrinsic and equal moral worth of each rational being.
Recuperating, the doctrine of universal human rights originates in the belief in the existence of a
universal moral community, which was, in Europe, maintained by Christianity over the ensuing
centuries. Arguably, references and thoughts towards the notion of general rights can be discerned
in some of the works by Aristotle and the Stoic philosophers, but a clearer and more approximate
concept of rights emerged during the Enlightenment’s so-called doctrine of natural law, with Locke
as its quintessential 17th-century exponent, who believed that the purpose of the government is to
secure supposed pre-existing natural rights.30 Enlightenment philosophy’s belief that reason should
guide all human affairs and concepts of individualism and the social contract inspired as one of the
first substantial human rights documents the French 1789 Declaration of the Rights of Man and
Citizen. Social contract theorists as Hobbes and Locke seem to assume the existence of rights
anterior to government: individuals form a society and choose a government through the alienation
of certain of their rights. The basis of the natural law doctrine is, concisely, the conviction of the
29
Habermas (supra) 474
In particular, Locke’s argument outlined in Two Treatises of Government (1689) contains the assumption that natural rights are ultimately valid irrespective
of whether they have achieved the recognition of any given political assembly or ruler.
30
11
existence of a ‘natural’, moral code, which rests upon the identification of certain objectively
verifiable and fundamental human basic goods. The enjoyment of these goods has to be secured by
humans possessing parallel, equally verifiable and fundamental ‘natural’ rights. An important
exponent of this 17th century natural law philosophy is Hobbes, who formulates the first principle of
natural law being to seek peace, in which is self-preservation, according to him the most
fundamentally human drive. This principle eventually translates into the guiding principle for
modern law generally that all persons are allowed to act or refrain from acting as they wish within
the confines of the law.31 Hobbes precisely differs from Locke however in not assuming that there is
a set of moral norms already valid in the state of nature, since the natural law is a precept of reason.
As stated, tracing the origins of human rights theory back in the history of philosophy is however a
controversial endeavour. One can discern notions of natural rights in the works of Locke, and
Grotius32, but whether this corresponds roughly to actual human rights remains disputed. For
example, Grotius bases his theories on international law entirely on natural law, and to Locke,
according to natural law the ruler of a people has to protect the life, liberty and property of his
citizens, which are not coincidentally also very basic concepts protected in human rights law. 33
However, in legal academics ‘human rights’ has replaced the term ‘natural rights’, which arguably
entails that the debate on human rights boils down to a debate around the correct interpretation of
natural law, which leads some to adopt the position that human rights themselves are a positive but
reductionist expression thereof.34 Also, the contemporary concept of ‘human dignity’, often referred
to as a foundation for human rights and on which more later, is in its moral absolutism related to the
natural law approach.
To summarize, even though the conventional approach towards human rights is not founded on
natural law theories, to a certain extent it bases human rights on a ‘natural’ moral order (which
could be also religious) independent on human traditions or transitory laws. I will elaborate on the
concept of human dignity in due time. It appears to be the case that this referring to an inherent
human value is one of only a few very similar justifications for the undoubted existence of human
rights, having its origins in natural law ideas originating in Enlightenment philosophy.35 Before I enter
into this discussion on moral universalism however, it will be necessary to first briefly sketch what is
commonly meant when one uses the term ‘human rights’.
31
Habermas (n27) 471
While the expression ‘human rights’ is not associated with any publicist before the twentieth century, Grotius's concept of law starts with the individual,
since to him international society does not consist of states alone, but of a great society of humankind. Nevertheless, Groti us is ambiguous on the rights of the
individual as against the state, and seems to deny individuals the right of resistance against unjust acts of their own ruler s.
As Grotius says, ‘the mother of right—that is, of natural law—is human nature’ (Prolegomena p.16). He clarifies this with ‘The law of nature is a dictate of right
reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and
that, in consequence, such an act is either forbidden or enjoined’. (I.1.10.1). If an action agrees with the rational and social aspects of human nature, it is
therefore permissible; if it does not, it is impermissible (cf. I.1.12.1). That is to say, the source of the natural law is the (in)compatibility of actions with
human’s essence as a rational and social being. Hugo Grotius, Prolegomena to the Law of War and Peace (1625) in 65 The Library of Liberal Arts 1955
33
John Locke, Two Treatises of Government (1689) http://www.efm.bris.ac.uk/het/locke/government.pdf
34
Jakob Cornides, ‘Natural and Un-Natural Law’ (2010) 2 Catholic Family Legal Studies Series 17
35
See for example legal theorist H.L.A. Hart, who believes that there is one basic natural law from which we derive the moral relationship which we have with
each other, and claims that if one can recognize the existence of at least one basic or natural right, it is the equal right to liberty. This right is implied
negatively as a basis for justifying interference in the freedom of others to ultimately be able to protect the liberty of all persons. Based upon this idea of the
freedom of humans being a natural right emerge two principle concepts that make this right to liberty function. In essence Hart contends that firstly, there is a
‘right to forbearance on the part of all others from the use of coercion or restraint against him (the individual)’, and secondly that the man ‘is at liberty to do
any action which is not one coercing or restraining or designed to injure other persons.’ Interestingly these two principle concepts are what establish moral
and natural relationships between individuals of what is ‘right’ and what is ‘wrong’.
32
12
2. What are human rights?
The modern doctrines of morality and law that claim to rest on human reason alone share the
concepts of individual autonomy and equal respect of everyone.36 The doctrine of human rights,
overarching, unites both the fundamental ambitions for liberty and equality, translated in,
respectively, predominantly ‘negative’ and ‘positive’ rights, on which more later.
Rights in general focus on a freedom, protection, status, or benefit for the holders of these rights. 37
The moral doctrine of ‘high priority’ human rights aims at identifying the fundamental, both the
necessary negative and positive prerequisites for each human being leading a minimally good life.
The most widespread exemplary notions of these conditions are the right to life and liberty, and
condensed in human rights, legal human rights documents address a variety of specific problems
resulting from these prerequisites, such as ending genocide, guaranteeing fair trials, ensuring the
availability of education, stipulating formal equality before the law, and ending slavery.
In general, the human rights doctrine primarily sets out to identify a basis for determining the scope,
content, and shape of fundamental public moralities (i.e. imperative norms of behaviour backed by
reasons and values). This aspiration has been enshrined in various declarations and legal
conventions issued during the past fifty years, initiated by the 1948 United Nations-adopted
Universal Declaration of Human Rights, and perpetuated by most importantly the 1954 European
Convention on Human Rights and both the International Covenant for Civil and Political Rights (1966)
and the International Covenant for Economic, Social and Cultural Rights (1967). 38 Together, these
treaties form the centrepiece of a moral doctrine considered by many to be capable of providing the
contemporary geopolitical order with what amounts to the international bill of rights. Then, arguably,
a large part of other ‘minor’ rights codified in national laws, which regulate the smallest crevices of
conduct between a state and its citizens and between citizens towards each other ultimately are
derived from these fundamental rights.39
Theoretically, the universalist dogma of human rights entails that these rights are said to be
possessed equally, by everyone. The conventional corollary of this claim is that states or otherwise
political authorities have a duty to promote and protect the human rights of its citizens. Though also
these citizens are required by law to respect the rights of others, in reality, the obligation to secure
these rights usually falls upon the state (being the norm addressee of human rights conventions) 40:
on both national governments and international, intergovernmental bodies. According to several
expert sources on the subject, as pointed out in the introductory remarks, arguably the moral
burden for protecting human rights falls disproportionately upon such institutions because they are
the most able to effectively perform this task. 41 Though in legal documents human rights are first
and foremost generally considered to reflect a vertical relation (the state has a duty to secure its
36
Habermas (n27) 471
Charles Beitz, The Idea of Human Rights (Oxford University Press 2009) 28
38
Some examples of fundamental rights are the right to life, to liberty, and to security of person (UDHR art.3); the prohibition of torture (UDHR art.5), and the
right to a fair trial (UDHR art.10)
39
For example, the criminal law system in a lot of Western countries taps into the notions of reasonability and equity.
40
In a prime example of social contract theory.
41
James Nickel ‘Human Rights’, The Stanford Encyclopedia of Philosophy E Zalta ed. http://plato.stanford.edu/archives/spr2014/entries/rights-human/ first
published 7 February 2003, substantive revision 15 January 2014 Spring 2014 edition accessed 15 March 2014
37
13
individual citizens’ rights), nevertheless, the more deeply civil rights permeate the legal system as a
whole, the more often their influence stretches beyond this vertical relation and permeates the
horizontal relations between individuals.42
However, as Arendt demonstrates, in practice institutions such as states are actually the only ones
able to execute this duty, and the obligation of everyone else (the citizens) to secure the human
rights of others is not even enforceable without such establishments, with dire consequences as will
be explained in chapter 4.
2a. On the substance of human rights
As I mentioned, the philosophical notion of human rights and the legal doctrine of these rights are
distinct. 43 An example that immediately springs to mind is the fact that though theoretically
fundamental rights are supposed to be self-evident, inalienable, universal and permanent, in
practice these rights can be easily temporarily set aside if for instance a state of emergency or
situation of armed conflict deems that necessary to do so. Through intellectual acrobatics, some
writers have succeeded in reasoning that the apparent universality of human rights does yet not
automatically imply their being absolute and never to be overridden by pressing considerations;
indeed, their holders can lose them temporarily or even voluntarily give them up, which renders it
doubtful that human rights are inalienable in the absolute sense of the term. 44 Though theoretically
human rights are deemed paramount,45 a sceptic would remark that in reality human rights are
arbitrarily protected at best.46 The disagreement among legal philosophers about the nature and
scope of human rights, as pointed out in the introduction, inevitably raises doubts on what
specimens should be considered as counting as a human right and invites the danger of scepticism
that perhaps the corpus of presumed universal and inalienable human rights is too extensive, with
inevitable clashes between incompatible human rights as a result. Interesting to note here is also the
existence of so-called ‘ius cogens’ norms of international law, which trump ideally all other legal
norms.47 Nevertheless, one cannot help but cynically noticing that apparently also the linguistic
notions of ‘fundamental’ and ‘universal’ rights are subject to inflation. However, many legal theorists
seem to think we should take ius cogens norms very seriously.48
As mentioned, legal theorists disagree to a great extent about the exact nature and scope of the
human rights corpus. Arguably, a minimal account of envisioned human rights is easier to defend,
42
Habermas (n27) 469
See also Moyn (n19) 43
44
E.g. in a state of war or emergency.
45
See for example the fact that in the majority of countries human rights are guaranteed in the national constitution, thereby gaining priority over ‘lesser’,
‘plain’ rights.
46
See for example officially sanctioned mass human rights violations in Guantanamo Bay (the right to liberty).
47
Ius cogens rules are substantive international legal rules recognised to be of a higher status as such; these peremptory norms reflect superior principl es in
international law. The amount of ius cogens norms is quite limited; examples are the prohibition on genocide, unlawful use of force, piracy or slave trading. In
practice their higher status means for example that a treaty will be void if at the time of its conclusion, it conflicts with a peremptory norm of general
international law (Vienna Convention on the Law of Treaties, 1969 (Article 53)). Such a peremptory norm is defined by the Vienna Convention as one
‘accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same character’. As Shaw notes, ‘the concept of ius cogens is based upon an accept ance of
fundamental and superior values within the system and in some respects is akin to the notion of public order or public poli cy in domestic legal orders’. In this
th
sense, the concept also reflects influences of natural law thinking. Malcolm Shaw, International Law (6 edn, Cambridge University Press 2008) 124
48
See for example Shaw, Bassiouni, or Bianchi and Naqvi.
43
14
because a restricted amount of ‘real’ fundamental rights seem less arbitrary and overdone; in other
words, make the concept less subject to inflation. 49 Certainly, the most provocative proponent of
limiting human rights to a minimum standard of well-ordered political institutions for all peoples has
been Rawls, who limits human rights to the right to life, the right to liberty, the right to personal
property, and the right to formal equality as expressed by the rules of natural justice.50 However,
Benhabib wonders, given that the Universal Declaration of Human Rights is the closest document in
our world to international public law, how one can explain the attempt on the part of many
philosophers to restrict the content of human rights to a fraction of what is internationally agreed to.
However, it is plausible that also these formal documents itself may be philosophically confused,
since they are by definition produced as a consequence of political compromises.51
Likewise, though rights are usually mandatory in the sense of imposing duties on their addressees
(hence the term ‘right’, which cannot exist without a corresponding duty to uphold this right), some
legal human rights seem to do little more than declaring high-priority goals and assigning
responsibility for their progressive realization.52
Also, as an expert source on the subject warns, starting with the generic concept of human rights
does not commit one to treating all kinds of human rights in a single unified theory, and one should
not attempt to theorize together universal moral rights and international legal human rights.53
Conceptually, both moral and legal human rights and ‘old’ and ‘new’ human rights are not entirely
similar. 54 In short, the latter legal doctrine aspires to provide an allegedly post-ideological,
contemporary geopolitical order with a shared, common framework for determining the basic social,
political and economic conditions required for all individuals to lead at least a minimum of a good
life. However, it is beyond questioning that these two distinct concepts are very much interrelated
and that the legal doctrine of human rights is pretty much a condensation of the philosophical
concept of human rights.
Nevertheless, this practical inclusion of human rights in the field of politics – as driving motives and
forces, which means indeed that they cannot remain at the level of moral principles or values and
which thus retrieves something of the Kantian notion of Weltbürgerrecht (which is already a political
or a meta-political notion) but with a new capacity to challenge and in fact destabilize the
constitution of existing states – is bound to remain controversial.55
49
I will reflect on this further in chapter 5 part a. See also the heated academic discussion around the stretched limits of ius cogens norms.
Benhabib (n4) 95
Benhabib (n4) 95
52
Nickel (n41)
53
Nickel (n41). Also, a conventional linguistic subtlety is worth noting, since when these basic rights are embedded in international law they are usually
referred to as ‘human rights’, while when they are enacted in national law they are more frequently described as civil or constitutional rights. Insignificant as
this discernment may seem, interestingly Arendt also resorts to these two phrases but attaches a more substantial difference between them, as will be
demonstrated in subsequent pages.
54
Ibid.
55
See also Balibar, who describes that after the category of human rights was universalized and codified as the horizon of international law and the program
of action of international institutions after the Second World War in the framework of reflections on a recent genocide and a growing awareness of the
unacceptability of racism main debates have led to problematizing the notion of a ‘politics of human rights’, leading to various crises, eventually highlighting
crucial phenomena like elimination, radical exclusion, and disposable ‘superfluous’ humans. Etienne Balibar, ‘Gewalt’ (2002) in Wolfgang Fritz Haug (ed) 5
Historisch-Kritisches Wörterbuch des Marxismus (Hamburg 2002)
50
51
15
3. About the source of human rights: How can these rights legitimately exist?
The principal philosophical foundation of human rights is the belief in the existence of a form of
justice valid for all peoples, everywhere. In this form, the contemporary doctrine of human rights has
occupied the centre stage in geopolitical affairs. It is probably not hard to intuitively make a case for
why human rights should exist. On this account, insisting for instance that there should be a human
right against torture is mainly asserting that there are strong reasons for believing that it is always
wrong to engage in torture and that protections should be provided against its practice. However, a
problem with this view is that existence as solely ‘kind of a good reason’ seems a very thin form of
justifying the existence for human rights. This position would perceive the Universal Declaration of
Human Rights as attempting to formulate a justified political morality and not as merely trying to
identify a pre-existing moral consensus. The drafters of the UDHR also tried to create a consensus
that could be supported by rather plausible moral and practical reasons. But this approach requires
commitment to the objectivity of such reasons and indeed depends on a form of moral universalism,
believing that there are objective ways of finding out what individuals may justifiably demand of
each other and of governments. This form of moral universalism presupposes that even if unanimity
about human rights is currently lacking, rational agreement is available to individuals if they will
commit themselves to open-minded and serious moral and political inquiry. However, this also
implies that if moral reasons exist independently of human construction, they can—when combined
with premises about current institutions, problems, and resources—generate moral norms different
from those currently accepted or enacted. 56
3a. Moral universalism: The philosophical foundation of human rights justified by the concept of
human dignity
I. Kant
Besides inter alia, Locke, Grotius, and Hobbes, in contemporary philosophical justifications of human
rights, several of the central themes first expressed within Kant’s Enlightenment ethics remain quite
prominent. First and foremost are the ideals of both moral autonomy and equality of rational beings.
In this sense, Kant ‘bestows upon contemporary human rights theory the ideal of a potentially
universal community of rational individuals autonomously determining the moral principles for
securing the conditions for equality and autonomy.’57 Kant’s moral philosophy provides thus also a
means for justifying human rights as the basis for self-determination (moral autonomy) grounded
within the authority of human reason, based upon an appeal to the formal principles of ethics.
Since the majority of modern legal human rights sources link the supposed self-evidency of these
rights to the existence of inherent human dignity, this particular branch of moral universalism
deserves a fair share of attention. However, in challenge of the following theories, it should be
mentioned that to establish the legitimacy of any moral doctrine founded upon accounts of basic
56
57
Nickel (n41)
Fagan (n3)
16
‘human nature’, it is perhaps more adequate to achieve a degree of consensus about what exactly
constitutes this ‘core’; reducing it to a supposed essence has proven to be a highly controversial
philosophical endeavour, as I will explain using Rorty’s theories in chapter 6.
An example of an essentialist approach is offered by Kant, who developed the concept of human
dignity by perceiving human beings as essentially different from other creatures, having an intrinsic
worth (id est dignity) which makes them valuable above all price. Kant stated the ultimate law of
morality thus as such: humans may never be treated merely as means. From this follows his ultimate
principle, the categorical imperative: act only according to that maxim by which you can at the same
time will that it should become a universal law; act so that you treat humanity, whether in your own
person or in that of another, always as an end and never as a means only. 58 To Kant, humans have an
intrinsic worth or dignity exactly because they are rational agents, i.e. free agents capable of making
their own decisions and goals, and guiding their conduct by reason.
As Habermas interprets this, the relationship of rational beings to each other is ruled and
determined by the reciprocal recognition of each person’s legislating will, where each individual
should treat itself and others never merely as a means but always as an end in themselves.59
II. Habermas
The Kantian categorical imperative seems thus plausible as a basis for the construction of human
rights. However, Habermas considers Kant’s view on morality as too transcendental and individualist.
A more modern elaboration of the Kantian concept of human dignity supporting human rights
theory therefore we find in Benhabib and Habermas. The latter postulates the thesis that in the legal
category of human rights two elements are united, namely both the (Kantian idea of) the
internalized, rationally justified morality anchored in the individual’s conscience but due to Kant
‘entirely withdrawn into the transcendental domain’, 60 and the concept of positive, coercive,
enacted law, serving the rulers of the modern state to construct its institutions. Here one returns
again to the difference between morality and law, supposedly entwined in human rights doctrine.61
Habermas then attaches human rights justification entirely to the concept of human dignity and
indeed understands these rights as developed in response to specific violations of human dignity. 62
He proclaims that ‘today ‘human dignity’ features prominently in human rights discourse and in
judicial decision making’.63 According to him, it acquired indeed its current ‘canonical expression’ in
Kant, but the appearance of the use of the concept of human dignity itself in human rights
58
Immanuel Kant Foundations of the Metaphysics of Morals (1785) (Cambridge University Press 1998)
Habermas (n27) 474, Kant (supra)
Habermas (n27) 470
61
Interesting to note is Habermas’ version of this functional distinction: The common foundation of morality and law on the concepts of individual autonomy
and equal respect for all obscures the difference that whereas morality imposes duties concerning others, modern law creates well-defined domains of private
choice for the pursuit of an individual’s life of one’s own’. Habermas (n27) 471. Rather than duties, subjective rights are t hus the starting point for modern
legal systems. This anticipates on Dalrymple (chapter 5 section a), who laments the contemporary chaos and sense of self-entitlement, grown out of the
revolutionary premise that everything is permitted which is not explicitly prohibited.
62
Habermas (n27) 464
63
Habermas (n27) 464. See for example Article 1 of the Universal Declaration of Human Rights, which begins with the phrase ‘all human beings are born free
and equal in dignity and rights’.
59
60
17
codification is quite recent: ‘one way or another, there is a striking temporal dislocation between the
history of human rights dating back to the seventeenth century and the relatively recent currency of
the concept of human dignity in codifications of national and international law, and in the
administration of justice, over the past half century.’64 This neatly links to Arendt’s critique on the
actual power of human rights theory as I will explain later.
Remarkable about dignity however is its original meaning: human dignity is a noteworthy
generalization of the particularistic meanings of the dignities that once were attached to specific
honorific functions and memberships. Human dignity has now assumed an abstract meaning, but it
still retains the connotation of depending on the social recognition of a status, which is in this case,
according to Habermas, democratic citizenship.
As Habermas illustrates, only very recently Kant’s categorical imperative could be perceived almost
literally once again in the words of the German Federal Constitution Court when it declared the
Aviation Security Act, designed in response to 9/11 terrorist threats, unconstitutional, when it
argued that the duty of the state (according to Article 2.2 of the Federal Constitution) to protect the
lives of the potential victims of a terrorist attack is secondary to the duty to respect the human
dignity of the passengers.65 ‘With their lives being disposed of unilaterally by the state, the persons
on board the aircraft . . . are denied the value which is due to a human being for his or her own
sake.’
Another remarkable fact is that, as Habermas observes, only after the Second World War this
philosophical concept of human dignity appeared literally into sources of international and national
law, most prominently in the founding documents of the United Nations. In this respect, Moyn’s
critique strikes an important note. In his work Human Rights, the Last Utopia, he presents the theory
that human rights are a product of United Nations machinery only, along with regionalist initiatives,
without an independent meaning of their own. Indeed, to him, before the 1970s human rights were
not even an especially prominent idea in international politics and that, from a global perspective,
the brief career of human rights in the 1940s is the story of how the Allied nations elevated language
about human rights as they reneged on the earlier wartime promise –made in the 1941 Atlantic
Charter- of the self-determination of peoples. According to Moyn, human rights turned out to be a
substitute for what many around the world wanted, namely a collective entitlement to selfdetermination. On this, I will write more in chapter 4 section d. Nevertheless, according to Habermas
the human dignity concept already existed in antiquity, but since only during the past few decades
talk of ‘human dignity’ has played a central part in international jurisdiction, Habermas raises the
question why the concept of human rights featured a lot earlier in legal affairs than the human
dignity concept. As proof, he cites McCrudden who claims that the notion of human dignity featured
as a legal concept neither in the 18th-century classical human rights declarations, nor in 19th-century
codifications.66 Leaving aside for a moment the question whether this is indeed the case, Habermas
assumes that the appearance of human dignity in post-war legal documents is a reaction to the
64
Habermas (n27) 460
Bundesverfassungsgericht, 1 BvR 357/05 15 February 2006, no. 124.
http://www.bundesverfassungsgericht.de/entscheidungen/rs20060215_1bvr035705en.html
66
Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655
65
18
‘moral catastrophe’ of the early 20th century wars, pondering on the theory that the idea of human
rights became thus retrospectively morally charged. Possibly this could be the case, but it cannot be
left unmentioned that an intimate, if initially only implicit, conceptual connection between the
notions of human rights and human dignity has existed since quite a long time.67 As Habermas puts it,
‘our intuition tells us anyway that human rights have always been the product of resistance to
despotism, oppression and humiliation (...) the appeal to human rights feeds off the outrage of the
humiliated at the violation of their human dignity. If this forms the historical starting point, traces of
a conceptual connection between human dignity and human rights should be evident from early on
in the development of law itself’.68 Nevertheless, this supposed historical development does not
satisfactorily answer the question whether human dignity signifies a substantive normative concept
from which human rights can be deduced by specifying the conditions under which human dignity is
violated, or whether the expression provides merely an empty formula that summarizes a catalogue
of individual and unrelated human rights. But even if the latter, cynical, situation would be the case,
this at least hints to a certain degree of importance and reverence involuntarily attached to the
notion of human dignity.
Be that as it may, the keyword to arrive at human dignity as underlying justification for human rights
seems to Habermas thus to be the experience of hurt and humiliation, which give cause for the
concept of dignity to rise to the surface of thought: in extreme human challenges and suffering,
different aspects of the meaning of human dignity emerge from the plethora of experiences of what
it means to be humiliated and deeply hurt. Remarkably, Habermas reasons that ‘the features of
human dignity specialized and actualized in this way can then lead both to a more complete
exhaustion of existing civil rights and to the discovery and creation of new ones.’69 With regard to
the latter remark, as a legal expert writes, human rights orthodoxy has been moving from conceiving
human rights as a given (the old or ‘natural school’) to conceiving them as values and principles
which are agreed upon (the new or ‘deliberative school’).70
Returning for a moment to his main subject, it seems to be clear that Habermas regards human
dignity as the moral source from which all of the basic rights derive their meaning. Though risking
appearing reductionist, he supports this theory with a conceptual history of the idea of human
dignity which played a ‘catalytic role’ in the construction of human rights out of the components of
on the one hand rational morality and on the other the form of subjective rights. Moreover, to cut
moral relativists short, this notion of human dignity to Habermas also assumes a ‘concrete function’
and is more than merely a smokescreen erected to obscure fundamental moral differences several
civilizations could have regarding their understanding of human rights. Or as political theorist
Donnelly puts it, today it is generally accepted that the categorical exaltation or subordination of one
set of rights cannot sustain political practices that support a plausible conception of human dignity.
The underlying vision of human dignity is comprehensive and integrated, the whole being much
67
Habermas (n27) 466
Ibid.
Habermas (n27) 467-8, emphasis added
70
Dembour (n16) 65
68
69
19
more than the sum of the parts, with each set of rights contributing essentially to the realization of
the others.71
The notion of human dignity, Habermas insists, thus clarifies, facilitates compromises, and
neutralizes differences,72 but this function does by far not extinguish its full juridical meaning, which
is helping to reach an overlapping consensus on disputed themes related to human rights. Since
basic human rights have by definition an abstract character, in each particular practical case they
need to be spelled out concretely.
Besides his mentioning the option of both discovering and creating human rights, another
controversial issue is as stipulated the presumed utopian nature of the human rights program.
Indeed, when Habermas utters declamatory phrases such as ‘the guarantee of human rights gives
rise to the status of citizens who, as subjects of equal rights, have a claim to be respected in their
human dignity’, it is hard to not accuse him of a lack of pragmatism. But he himself traces also the
cause of this scepticism to ‘the origin of human rights in the moral notion of human dignity’ which
‘explains the explosive political force of a concrete utopia’, and he desires to defend against ‘the
blanket dismissal of human rights’ and ‘recent attempts to blunt their radical thrust’.73
To summarize, Habermas seems to construct a bridge between Kantian transcendental universalism
and Arendt’s pragmatism by wielding the concept of dignity to describe and achieve practical results:
he links dignity to an actual state of affairs by insisting that only membership in a constitutional
political community can protect, by granting equal rights, the equal human dignity of everybody. As
mentioned, he regards the dignity concept not only as a vague placeholder but as an actually
relevant tool in judicial decisions, a kind of absolute touchstone, since when human rights claims
compete, a justified decision in such cases often is only possible, he insists, by ‘appealing to a
violation of human dignity whose absolute validity grounds a claim to priority’.74 Returning to the
need for concrete interpretation of abstract basic rights, universal legal concepts facilitate
negotiated compromises. In Habermas’ words appealing to the concept of human dignity therefore
makes it easier to reach an overlapping consensus, e.g. during the founding of the United Nations,
and when generally negotiating human rights conventions and international legal agreements
between for instance parties from different cultures. 75 According to Habermas, everyone should in
this way accept that human dignity is central in human rights theory, which is however not a very
disputed concept. The normative substance of equal dignity of every human being, only spelled out
by human rights, was inscribed implicitly in human rights from the outset, he claims. For this
purpose, he distinguishes four generations of human rights, with human dignity as the heuristic key
to the logical interconnections between them: liberal rights; democratic rights of participation; and
social and cultural rights. Here again the magic phrase ‘human dignity’ proves its worth, since to
Habermas a balance is essential between these categories of rights, which ‘necessarily supplement
each other’. The understanding of human dignity, once more, is capable to effect this balance:
71
Donnelly (n22) 613
Habermas (n27) 467
Habermas (n27) 466-7
74
Habermas 469. In legal terms, this sounds more like the ‘extremely fundamental’ human rights which have assumed ius cogens st atus.
75
Habermas (n27) 467
72
73
20
‘human dignity, which is one and the same everywhere and for everyone, grounds the indivisibility
of all categories of human rights; only in collaboration with one another can basic human rights fulfil
the moral promise of respecting the human dignity of every person equally.’76
And as mentioned, human dignity also functions as the ‘conceptual hinge’ between the distinct
concepts of morality and positive law.77 The concept of human dignity, according to Habermas,
transfers the content of a morality of equal respect for everyone to the status order of citizens who
derive their self-respect from the fact that they are recognized by all other citizens as subjects of
equal actionable rights. As we will see, this is an important notion since it recognizes the paramount
importance of real-world institutions actually securing, promoting and protecting human rights, a
fundamental human rights critique of Arendt as will be explained in chapter 4, section e-II. However
it differs not that much from the classical natural law philosophy of Locke since Habermas still seems
to presuppose the pre-existence of rights, to be protected by the government; in other words, rights
have a validity independent of state institutions or the political sphere. Essential in this context is
that that status order can only be established within the framework of a constitutional state, and
does not emerge of its own accord, but is created by citizens themselves using the means of positive
law.78
III. Benhabib
Also Benhabib offers a contemporary dignity-based perspective on the legitimacy of human rights.
Though she recognizes the problematic aspects of both human rights practice and the risks of both
too strict moral universalism and ultimate relativism, she describes herself as advocating legal
cosmopolitanism, which combines the view from ‘moral cosmopolitanism’ that each and every
person deserves equal moral respect and concern, with the opinion that this attitude needs to be
translated in actual doctrine. She attempts to avoid the pitfalls of moral imperialism attached to
human rights absolutism with an appeal on ‘democratic iterations’, observing that democratic
people are not only the subjects but also the objects of the laws. Ultimately democratic iterations
are not concerned with the question ‘which norms are valid for human beings at all times and in all
places’ but rather with questions such as ‘in view of our moral, political, and constitutional
commitments as a people, and our international obligations to human rights treaties and documents,
what decisions can we reach that would be deemed both just and legitimate’. As such, to her,
democratic iterations aim at democratic justice and mediate between a collectivity’s ‘constitutional
76
Habermas (n27) 468
This is significant since it relates to a shift in history. See again Habermas: ‘The American Founding Fathers, too, recogniz ed that human rights,
notwithstanding their purely moral justification, need a democratic ‘declaration’ and must be applied in constructive ways within an established political
community. Human dignity forms the ‘portal’ through which the egalitarian and universalistic substance of morality is imported into law. (…) Because the
moral promise of equal respect for everybody is supposed to be cashed out in legal currency, human rights exhibit a Janus face turned simultaneously to
morality and law; an exclusively moral content with the form of enforceable subjective rights granting specific liberties and claims. Human rights circumscribe
precisely and only that part of humanity which can be translated into the medium of coercive law and become political reality in the robust shape of effective
civil rights.’ Habermas (n27) 469-71 Human dignity thus has an essential mediating duty in the shift of perspective from moral duties to legal claims. See also
Klaus Günther: the transition from morality to law calls for a shift from symmetrically intertwined perspectives of respect and esteem for the autonomy of the
other to raising claims to recognition for one’s own autonomy by the other. Concern for vulnerable is replaced by self-confident demand for legal recognition
for the subject of self. Klaus Günther, ‘Menschenrechte zwischen Staaten und Dritten: Vom vertikalen zum horizontalen Verständnis der Menschenrechte’
(2009) in Nicole Deitelhoff Jens Steffek (eds) Was bleibt vom Staat? Demokratie, Recht und Verfassung im globalen Zeitalter ( Frankfurt Campus, 2009) 275
78
Habermas (n27) 473
77
21
and institutional responsibilities’ and the ‘context-transcending universal claims of human rights and
justice to which such a collectivity is equally committed’. 79
The appeal to human dignity founding human rights is in its simplicity quite an interesting angle.
However, possibly a slightly different, more political perspective is more convincing, as Rorty argues
and as I will explore in chapter 6. Meanwhile, with regard to other contemporary attempts to award
human rights theory philosophical legitimacy, today, the two theories that dominate the human
rights debate are the interest theory and the will theory, which are again attempts to justify the
existence of human rights.80 Though less transcendental than Kant’s understanding, they also have
universalist characteristics, adhering to the concept of ‘human nature’ and reducing it to a particular
essence.
IV. Other contemporary attempts to justify human rights theory: the interest approach and the will
approach
The interest theory variation postulates that the principal function of human rights is to protect and
promote certain essential human interests, while the will theory attempts to establish the validity of
human rights based on the unique human capacity for freedom, in which one can discern the
concept of human dignity.81 Briefly summarized, the quite pragmatic interest theory perceives the
securing of human beings’ ‘essential interests’ as the principal ground upon which human rights may
be morally justified, thus being primarily concerned with identifying the both social and biological
prerequisites for human beings leading a minimally decent life. The universalism of the interest
theory is reflected in the conviction that there are some basic and indispensable attributes for
human well-being, deemed necessarily to share by all.82
However, defending human rights from an interests-based approach does not immediately answer
the question of how appealing to these basic interests could provide a legitimate reason for
respecting and actively promoting other individuals’ interests. Possibly one can put forward
Hobbesian self-interest considerations for this, not consisting of mere altruism but as Nickel writes,
‘a prudential argument from fundamental interests attempts to show that it would be reasonable to
accept and comply with human rights, in circumstances where most others are likely to do so,
because these norms are part of the best means for protecting one’s fundamental interests against
actions and omissions that endanger them.’83 The philosophically strongest argument in favour of
the interest theory is the Hobbesian fact that protecting one’s own fundamental interests requires
79
Benhabib (n4) 98-99-100
Two other modern kinds of approaching the legitimacy of human rights are described by Cohen as ‘substantive’ and ‘justificatory minimalism’. Substantive
human rights minimalism concerns the content of human rights, and is more broadly about norms of global justice; justificatory minimalism on the other hand
is about how to present a conception of human rights as an essential element of global justice for an ethically pluralistic w orld as a basic feature of global
public reason. Also these approaches resulted out of a concern with finding an overlapping consensus. Though they are, in a Rawlsian tradition, ‘freestanding’
and thus (counter-universalist and counter-imperialist) not based on a dominant comprehensive worldview, they however could lead to liberal indifference.
See also Joshua Cohen, ‘Minimalism about Human Rights: The Most We Can Hope For?’ (2004) 12 The Journal of Political Philosophy 192
81
Fagan (n3)
82
Ibid. Also Finnis (1980) argues that human rights are justifiable on the grounds of their instrumental value for securing the necessary conditions of human
well-being and, as such, serve to justify claims to corresponding rights, whether they be of the claim right or liberty right vari ety. John Finnis, Natural Law and
Natural Rights (Oxford Clarendon Press 1980) 53
83
James Nickel, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (Berkeley University of California Press
1987) 84
80
22
the willingness of others to recognize and respect these interests, which, in turn, requires reciprocal
recognition and respect of their core interests. The function of establishing government institutions
in this approach is thus not promoting the common good, but the adequate promotion and
protection of the fundamental self-interest of individual citizens.
Another merit of the interests theory is that it possibly solves the dispute of which human rights
should be prioritised, since one could for instance identify the specific object of each right and
hierarchically order the corresponding interest.
Nevertheless, also the interests approach knows philosophical claims, the first of which is the –again
universalist- appeal to human nature, of which interests’ theorists make at least an implicit account,
despite the mentioned fact that essentialist assumptions regarding ‘true’ human nature have shown
to be very controversial. In reality, the matter will be complicated by social and cultural diversity,
necessitating complicated compromises regarding the conditions for a minimally good life. And also,
even if one is capable in distilling essential interests which are more or less identical for all, the
problem of practical translation into effective rights is not solved: adequately protecting these
interests will have to go beyond the mere specification of some purportedly general prerequisites
for satisfying individuals’ fundamental interests.84 Additionally, the fundamental interests of all
humans cannot be entirely identical since individuals do not occupy a condition of relatively equal
vulnerability to one another. It seems therefore that the call to pure self-interest cannot provide an
ultimate basis for securing the universal moral community at the heart of the human rights doctrine.
Finally, arguably constructive human agency is a fundamental component of morality generally, but
the interests theory seems to neglect this capacity and tends to construe human’s basic interests as
pre-determinants of human moral agency, possibly with the effect of subordinating the importance
of the exercise of freedom as a principal moral ideal. Even though it is possible to include freedom as
a fundamental human interest, freedom is in the vein of the interest theory not constitutive of
humans’ interests on this account.85
This last aspect is what is at the core of the will theory: the capacity for freedom as a distinctively
human attribute, which ought to constitute the core of any human rights account. So ultimately,
according to will theorists human rights originate in a single, constitutive right (or alternatively a
limited set of purportedly fundamental human attributes). 86 This right can most likely assume the
form of the right to liberty, but some extend it to include security from violence, and the necessary
material conditions for personal survival, thus grounding human rights upon liberty, subsistence, and
security.87 The philosophical basis of the will theory can be found in Gewirth, who presents the
general distinguishing characteristic of human beings as the capacity for rationally purposive agency,
in which the possession of fundamental rights is the necessary means to enable this action.88
Gewirth grounds this essence on the equally essentialist and reductionist Enlightenment claim that
84
Fagan (n3)
Fagan (n3)
See for example Hart, who inferentially argues that all human rights can be reduced to the single, fundamental right of all humans to be free: the equal right
to liberty. H.L.A. Hart, ‘Are There Any Natural Rights?’ (1955) 64 Philosophical Review (Cornell University) 177
87
nd
Henry Shue, Basic Rights: Subsistence, Affluence, And U.S. Foreign Policy (2 ed. Princeton University Press 1996) 182
88
Alan Gewirth, Reason and Morality (Chicago University Press 1978) 23
85
86
23
all human acting is rationally purposive i.e. done for a particular reason, and in rationally endorsing a
certain end, one must therefore rationally endorse the means to that end. Freedom is then the
necessary prerequisite to achieve this and thus essential to being human, leading him to state that
each individual human is entitled to this freedom. Nevertheless when enjoying and enacting this
freedom it is of course necessary to exercise due concern for the freedom of others; to Gewirth, this
deliberation grows into the maxim that each individual’s claim to the basic means for rationally
purposive action is based upon an appeal to a general, rather than, specific attribute of all relevant
agents; so there exists an absolute right to life possessed separately and equally by all humans. A
‘right is absolute when it cannot be overridden in any circumstances, so that it can never be
justifiably infringed and it must be fulfilled without any exceptions.’89 So in will theory, the validity of
human rights is attempted to establish upon an ideal of personal autonomy, in which human rights
are manifestations of the exercise of this autonomy.
89
Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago University Press 1982) 92
24
4. Criticisms on human rights theory
Then again, to a pragmatist it would seem that also these two more modern approaches found a
justification of human rights solely on the basis that they would be desirable; additionally, they are
not entirely inclusive of all humanity; for instance, not each and every person is in fact capable of
making rationally informed decisions.
However, it is beyond the scope of this thesis to discuss all the shortcomings of these approaches. I
wish to proceed with a more fundamental critique on the concept of universal human rights, but will
first introduce some problematic aspects of human rights theory.
4a. Hierarchy of rights
Having taken the conventional, universalist philosophical basis into account, I will introduce and
clarify some of the main points of current debate around human rights by shedding light upon a few
problematic characteristics and attributes. For a start, human rights are, their being in name
‘inalienable’ and ‘universal’, typically understood to be of formal equal value. However, few would
question that some human rights are more fundamental than others, for example the right to life
would ‘trump’ the right to form one’s own family. However, there are also human rights which one
could consider to be of equal value, such as for example the right to privacy versus the right to nondiscrimination versus the right to freedom of religion. These rights usually are not ranked in order of
prominence. Be that as it may, conflicts between fundamental rights occur all the time, and treating
these human rights as equal complicates addressing these clashes. To resolve such conflicting rights,
one needs an external, ‘higher’ moral order against which one can assess and measure ultimately
the relative value of particular rights, which would lead to the creation of substantive distinctions
between separate human rights. In practice, this is unavoidable. One merely has to regard the order
and formulations in which specific rights are listed in a few of the primary human rights conventions
(usually starting with the most basic ‘life’ and ‘liberty’ rights, followed by more applied rights, which
are to greater extent subject to exceptions, such as for example the right to family life) which reflect
the relative importance attached to them but also whether a right can be abrogated due to concern
about the protection of other, more pressing surrounding rights. Often, one can discern this
hierarchical distinction also on the basis of ‘liberty’ (‘negative’) versus ‘claim’ (‘positive’) rights.
Negative or liberty rights are on a general level considered as the most traditional, basic human
rights and effectively aim to ensure the withdrawal of an otherwise interfering state in civilian’s
private sphere. Claim rights on the other hand oblige a state to provide certain basic standards for its
population. This dichotomy is extensively described by Berlin in his lecture Two Concepts of Liberty;
however, to other authors the distinction is not that sharp (the right to life, for example, is a
complex combination of both a ‘claim’ and a ‘liberty’ right, since a state has to refrain from actively
killing its citizens, but also has to provide them with at least very minimal means in order to enable
them to survive). Also, most if not all human rights could be considered as ‘claim’ rights that impose
25
duties or responsibilities on their addressees, and the duties associated with human rights often
require actions involving respect, protection, facilitation, and provision.90
In order to decide upon which rights should in certain cases deserve priority, Berlin attempted to
design a meta-ethical tool, the concept of value pluralism, which anticipates on relativist approaches
towards human rights I will describe in the following parts. The ethical ontology of objective value
pluralism relates to the idea that fundamental values can and in some cases do conflict with each
other prominently reflected in Weber (which this latter one captured in the notion of polytheism).
Value pluralism is thus an alternative to both moral relativism and moral absolutism and combines
elements of these two stances. In value pluralism, moral values are incompatible, but cannot be
subjected to a purely rational measure of which is preferable. However it is not entirely relativist
since value pluralists accept limits to differences, such as for example when vital human needs are
violated. Value pluralism requires rejecting the notion that any single value can serve as a
foundation for universal human rights; nevertheless, it also points toward what is both distinctively
and universally human, to wit the fact that humans are moral beings who can coherently espouse
conflicting and incommensurable values within conflicting and incommensurable systems of value.
However, value pluralism is universalist to the extent that it still provides a universal foundation
upon which to ground a defence of human rights.
Additionally, this form of pluralism creates certain parameters on the negotiation of human rights
claims that, even though they rule out some grounds for rights and certain types of claims,
simultaneously hold a potential to significantly recast several elements of contemporary human
rights discourse in order to open ways for a greater engagement across cultural, religious, and moral
divides on issues relating to the content, interpretation, and application of human rights.
4b. Universalists and believers in natural rights: problematic aspects
As demonstrated in the first pages, undoubtedly a legal framework of human rights exists. The most
obvious proofs of this are the norms of national and international law, created by judicial decision,
legislative enactment of these rights, and international treaties and customary law turning human
rights into (inter)national law.
But pointing solely to this phenomenon is possibly a retroactive, empty justification. Though stated
earlier that one should not conflate the philosophical concept of human rights and the legal doctrine
of universal human rights, what might be termed the ‘philosophically naïve’ view of human rights
effectively construes these rights solely as legal rights. Notwithstanding the fact that the validity of
human rights is closely dependent upon the legal codification of these rights, such an approach is
not sufficient to justify human rights. As concisely outlined by (http://www.iep.utm.edu/humrts/#SH4b ), while the practical efficacy of promoting and protecting human rights is significantly
aided by individual nation-states’ legally recognising of the doctrine, the ultimate validity of human
rights is characteristically thought of as not conditional upon such recognition. Thus, the moral
90
Nickel (n41)
26
justification of human rights is thought to precede considerations of strict national sovereignty and
the underlying aspiration of doctrine is to provide a set of legitimate criteria to which all nationstates should adhere.91
Quite simply, arguments in support of the validity of any moral doctrine can hardly ever be settled
by simply pointing to the empirical existence of particular moral beliefs or concepts, since morality
is essentially concerned with what ought to be the case, and this cannot be settled by appeals to
what is (or is perceived to be) the case. Therefore one cannot confuse the law with morality, per se,
nor consider these two to be simply co-extensional.
Additionally, even if it were the case that human rights exist only because of enactment, this would
mean that their validity is completely contingent on domestic and international political
developments. However, the political conception of human rights can be a convincing alternative to
the moral conception, to the legal one, and to the rejection of human rights entirely.
For moral universalists, looking for roots deeper and less subject to human whims and decisions than
legal enactment, that is an unsatisfactory approach. I already mentioned the idea of basic human
dignity as the foundation for human rights. Another variation on this theme is the secure
metaphysical idea that people are born with rights that somehow constitute an innate, God-given
part of them.92 Another version of the idea, in which human rights can exist apart from divine decree
or human enactment, is as norms accepted in nearly all actual human moralities. However, although
in recent decades worldwide acceptance of human rights has rapidly increased, global moral
unanimity relating to human rights does not really exist. And even if they would, or if one would
assume that humans are indeed divinely endowed with natural rights, this does not explain how one
could get from those abstract, general rights to the quite specific rights found in contemporary legal
declarations.93 So, legal enactment at international and national level provides a more solid status
for practical purposes. However, again this is avoiding the central issue whether human rights do
indeed have a theoretical fundament, also when taking into account that these ‘hard and fast’
human rights legislation in the form of declarations, conventions, and treaties is intended to change
existing norms, and not just to describe the existing moral consensus. One then returns to trying to
identify a deeper ground for justifying human rights. Yet another way of defending the existence of
human rights is claiming that their essence appears basically in ‘true’ or ‘justified’ ethical outlooks,
which is again a universalist moral approach.
As mentioned, in conventional notions on human rights, one frequently finds the postulate that
human rights originate as moral rights, and that human rights claim validity ‘everywhere and for
everyone, irrespective of whether they have received comprehensive legal recognition, and even
irrespective of whether everyone is in agreement with the claims and principles of human rights’.94
As an authority on the subject almost sentimentally-heroic phrases it: ‘All living humans—or perhaps
all living persons—have human rights. One does not have to be a particular kind of person or a
91
Fagan (n3)
See the United States Declaration of Independence (1776), which claims that people are ‘endowed by their Creator’ with natural rights to life, liberty, and
the pursuit of happiness.
93
See for example the right to a free trial [legal source], which presupposes also the availability of contemporary judicial institutions
94
Nickel (n41) 2
92
27
member of some specific nation or religion to have human rights. Included in the idea of universality
is some conception of independent existence. People have human rights independently of whether
they are found in the practices, morality, or law of their country or culture.’ 95
However, this supposed absolutism is one of the most problematic and controversial issues about
the notion of fundamental human rights. But when entering into several serious qualifications
necessary to add to this idea of universality, most sources do not proceed further than the
obligatory, saccharine hat-tip to diversity and political correctness: ‘First, some rights, such as the
right to vote, are held only by adult citizens or residents and apply only to voting in one's own
country. Second, the human right to freedom of movement may be taken away temporarily from a
person who is convicted of committing a serious crime. And third, some human rights treaties focus
on the rights of vulnerable groups such as minorities, women, indigenous peoples, and children.’96
Nevertheless, human rights orthodoxy is a highly contested concept, since the gap between the
promise that every human being enjoys a number of fundamental rights and a world where human
rights violations abound and many people are excluded from the enjoyment of human rights cannot
be denied; that is, a gap between the human rights ideal and practice. This gap can be thought to
exist either because the practice has, so far, failed to live up to the theory, but without this affecting
the validity of the concept of human rights, or because human rights cannot be what they are said to
be, rendering the concept invalid. Differently put, critiques of human rights can either require
human rights to be true to the letter, or dismiss them as constructed on unsound premises.
4c. Early human rights criticism
As demonstrated, main philosophical support for human rights is, as mentioned, necessarily
committed to a form of moral universalism. Challenges to the philosophical validity of human rights
as a moral doctrine aim mainly to show both the philosophical fallacies of this universalist moral
claims and the presumed objective character of principles of human rights.
I. Burke
Two of the earliest critiques of the concept of universal human rights are by Burke and Bentham
respectively.97 The first wrote his conservative attack on human rights, Reflections on the Revolution
in France, as a reaction on the French 1789’ Declaration of the Rights of Man and Citizen. Burke’s
main objections are directed to the declaration’s drafter’s abandonment of the existing
establishment. For Burke, the legitimacy of rights cannot be derived from a Rousseau-inspired
doctrines of general will or human dignity, but descend from a form of inherited wisdom. 98 In
anticipation of Arendt, Burke emphasizes the ultimate importance of actual constitutional structures.
For him it is the government of a state that as a result of a lengthy social evolution transforms
95
Nickel (n41) 3
Ibid.
See also Gray, who notes about the historical development of human rights theory that ‘There were versions of utilitarianism, some scornful of rights (with
Jeremy Bentham describing them as “nonsense upon stilts”), others that accepted that rights have important social functions (as in John Stuart Mill), but none
of them asserted that R were fundamental in ethical and political thinking.’ Gray (n14) 81
98
Francis Canavan, The Political Reason of Edmund Burke (Duke University Press London 1960) 131
96
97
28
fundamentally rather meaningless ‘natural rights’ into practical assets and advantages which are
afforded to that state’s citizens.
Contrary to the Enlightenment natural law philosophers, Kant, and Habermas, Burke thus not
presupposes the existence of certain rights, and does subsequently not believe that the purpose of
government is to safeguard these rights, but reasons that the ‘primitive rights of man undergo such
a variety of refractions and reflections, that it becomes absurd to talk of them as if they continued in
the simplicity of their original direction.’99 To Burke, the rights attributed to individual citizens are
always to be assessed in the context of the social order and framework. He goes so far as to actually
consider the presupposition of these rights and the placing of them above governmental power
dangerous, framing it as such: ‘those who pull down important ancient establishments, who
wantonly destroy modes of administration, and public institutions… are the most mischievous, and
therefore the wickedest of men.’100 Burke feared the attractiveness of the Declaration’s simplicity
and its corresponding ability to undermine the status quo, and had as greatest objection the
conventional Enlightenment assumption that politics and the world know simple answers in the
form of overarching, universal maxims such as those expressed in the Declaration of the Rights of
Man and Citizen. The absolute nature of these abstract right principles could of course very well be
inherently revolutionary; to Burke they seemed uncompromising, and any derogation from
principles a reason to rise up in arms. This is problematic because according to Burke ‘all
government is founded on compromise and barter. We balance inconveniences; we give and take;
we remit some rights, that we may enjoy others; and we choose rather to be happy citizens, than
subtle disputants’. 101 Presumed natural rights ‘against which there can be no prescription; against
these no agreements is binding’102 could thus very well give revolutionaries the tools to destroy the
very society that Burke stated afforded them with civil rights. The human rights outlined in the 1789
Declaration would, Burke was convinced, lead to a social breakdown: ‘the antagonist world of
madness, discord, vice, confusion, and unavailing sorrow.’ This sorrow would be caused, Burke
envisioned, since a precondition for the exercise of liberty is the willingness and ability of humans to
place limits on their own appetites. But this is by far not a standard and easily-executed capacity,
thereby risking a world in which great masses of people live solely by the maxim ‘I want’. Another
important aspect of Burke’s critique is the supposedly artificial character of universal human rights in
opposition to the supposedly natural traditions that shape politics in specific contexts.
II. Bentham
Also Bentham regarded these newly-proclaimed rights suspiciously. Dismissive accounts of the
concept of ‘natural rights’ appear throughout is work, especially in ‘Anarchical fallacies’. In this
polemical attack on the declarations of rights issued in France during the French Revolution he
rejects human rights as ‘nonsense upon stilts’ and criticises the 1789 Declaration both for the
99
Edmund Burke, Reflections on the Revolution in France (1790)
Ibid.
Ibid.
102
Ibid.
100
101
29
adopted language and the posited theories, insisting ‘Look to the letter, you find nonsense; look
beyond the letter, you find nothing.’103 This scepticism is rooted in Bentham’s understanding of the
nature of law, positively reasoning that all rights are created by the law and the law is simply a
command of the ruling institutions. Hence the existence of both law and rights requires government.
Also, rights are usually correlative with duties determined by the law and, as in Hobbes, are either
those which the law explicitly attributes to us or those within a legal system where the law is silent.
Bentham rejects the position that there could be rights not based on a ruler’s command, pre-existing
the establishment of government. In this sense, the linguistic term ‘natural right’ is perverse: both
ambiguous, sentimental, and figurative, with anarchical consequences, since at most such a natural
right can advise what one ought to do, but can impossibly serve as a hard legal restriction. To
Bentham, the ambiguity of the term ‘natural right’ lies in the fact that it suggests that there are
general rights—that is, rights over no specific object—so that one would have a claim on whatever
one chooses. Therefore, the actual effect of exercising such a universal, natural ‘right’ would be to
extinguish the right altogether, since ‘what is every man’s right is no man’s right.’ As no legal system
could function with such a broad conception of rights, to Bentham there cannot be any general
rights in the sense suggested by the French declarations.104
The figurative character of the term ‘natural rights’, additionally, Bentham perceives in the fact that
there properly speaking exist, as explained, no rights (in the sense of positive law) prior to a
government. Hence he dismisses social contract theories as explanations of political authority, since
he regards governments as arising either by force or by habit, and for contracts -specifically, some
original contract- to bind, there must already be a government in place to enforce them.
As a utilitarian philosopher, it is to be expected that Bentham levels against essentialist accounts of
human nature and the reverence of grand metaphysical concepts such as human dignity. One of his
main points of critique against the French Declaration is indeed that it asserts rights in the shape of
absolute, universal norms, which Bentham identified as both meaningless and undesirable. I will
elaborate upon a more recent account of similar critiques when addressing both Arendt and
Dalrymple’s thoughts on human rights. Also, to Bentham, a theory of natural rights could call for
anarchy, since absolute rights entail freedom from all legal restraint. Again with regard to the
language, he strikes a valid point when he warns of the legal dangers of formulating rights in
absolute terms. Though seemingly sympathetic and inclusive, in the past decades we have seen that
this can indeed lead to hitherto unforeseen complications, as I will describe in chapter 5 section a
(Kennedy).
Since natural rights would pre-exist law, this law could not possibly limit them and, echoing Burke,
since human beings are motivated by self-interest, if everyone had such freedom, the result would
be pure anarchy. Logically, having a right in any meaningful sense entails that it cannot be
legitimately interfered with by others, implying that rights must be capable of enforcement – which
is the exclusive domain of the law. ‘Real’ rights to Bentham are thus fundamentally legal, specific (i.e.
103
104
Jeremy Bentham, Anarchical Fallacies; Being an Examination of the Declaration of Rights Issued During the French Revolution (1816) line104
William Sweet, ‘Jeremy Bentham’, Internet Encyclopedia of Philosophy consulted on 16 May 2014 http://www.iep.utm.edu/bentham/#SH5b
30
having both a particular object and subject) rights, which, in a utilitarian vein, ought to be
constructed because of their conduciveness to the general mass of felicity.
Bentham further luminously observed that the presumed ability of a government to protect each
person’s basic rights both equally and absolutely is not more than a utopian aspiration, even though
the French Declaration holds this as a basic condition for its legitimacy.105 So far as rights exist in law,
they are protected; outside of law, they are at best ‘reasons for wishing there were such things as
rights.’106 Though he acknowledges that it may be desirable for humans to possess rights, he insists
that this desire alone is not a good enough reason to assert the existence rights established by
nature: ‘a reason for wishing that a certain right were established, is not that right; want is not
supply; hunger is not bread.’ This is logically not untrue and makes some sense, of course, but it also
reduces the world to some very basic, minimal principles; indeed it renders it hard to come up with
something that essentially does exist. When one stretches the parallel to other abstract concepts
such as for example compassion, one can just as easily state that, though probably convenient, it is
by far not to be said that there exists such a thing.107
Regarding the theoretical faults, Bentham thus reasons that natural rights were a construction
adopted to pursue the selfish aims of the drafters, of which no logical basis could be found. In his
view, it is logically sound to establish rights by virtue of laws enacted by a ruler or sovereign, but one
cannot seek them in nature. In Bentham’s aphorism: ‘A natural right is a son that never had a father.’
And Bentham does not only denies the logical basis for natural human rights theory, but actively
asserts, like Burke, that the individualistic approach generated by these rights is harmful for a
society.108 The theory of human rights thus effectively impairs his utilitarianist motive, promoting
peoples’ ability to pursue the greater good, since he regards the advancement of natural rights as
celebrating selfishness, and focusing on satisfying short-term desires, meanwhile providing a means
to the destruction of the social community that renders human life bearable. In seeking the common
good utilitarians such as Bentham thus oppose the granting of individual rights, regardless of the
eventual profitable consequences for the common good, and are convinced that it is impossible for
human rights to be absolute and inalienable.
Nevertheless Bentham does not reject the general notion of rights altogether. Since there are some
things essential to the happiness of humanity, which are impossible to be left to others to fulfil as
they see fit, people must be compelled to fulfil them – simply put, respect the rights of others. So,
Bentham does allow that the term ‘rights’ is useful, though largely assigning a stipulative rather than
a descriptive meaning to them. 109 Concluding, Burke and Bentham do not find a convincing
justification for the existence of human rights and actually consider their notion dangerous.
105
“Against every government which fails in any degree of fulfilling these expectations, then, it is the professed object of thi s manifesto to excite insurrection”.
Sweet (n104)
107
Which some philosophers try to do, of course, but to me this line of reasoning leaves much to be desired; exactly in the case of desirable concepts, one
could safely assume that at least there exists some capacity in humans to attempt to attain them.
108
Bentham (n103) line 64: ‘The great enemies of public peace are the selfish and the dissocial passions – necessary as they are – the one to the very existence
of each individual, the other to his security… What has been the object, the perpetual and palpable object, of this declaration to pretended R? To add such
force as possible to these passions, but already too strong, - to burst the cords that hold them in, - to say to the selfish passions, there – everywhere – is your
prey! - to the angry passions, there –everywhere- is your enemy. Such is the morality of this celebrated manifesto.’
109
See A General View of A Complete Code of Laws, in which Bentham enumerates a large number of rights
106
31
4d. Human rights and moral absolutism: criticizing the historical basis
Next to these suspicious approaches, modern human rights critiques are first and foremost directed
against the philosophical moral absolutism prominent in human rights doctrine.
Except for the scattered assertions that human rights derive from the intrinsic dignity of a human
being, the legal documents referred to are silent about a more thorough intellectual basis.110
Likewise when returning to the philosophical fathers of natural law one perceives more guessing
than a strong substantial argument in favour of their existence. The theory of social contract from
Locke through Rawls has been closely associated with natural rights ideas, but studying this closely
one perceives simply assumptions on the existence of natural rights instead of solid reasoning.
Furthermore, even in Kant’s writings, systematic as they typically are, a serious argument proving
the legitimacy of natural rights is lacking: they are absent from his Grundlegung, and when devoting
thought to the issue of them, he assumes rather than argues for the existence of these rights.
I. Moyn
This leads legal theorists to the remark that ‘human rights are absent from the traditions of Western
moral theory, among deontologists and teleologists alike.’111 Also historicist Moyn presents an
especially sceptical account of the supposed centuries-old origins of the human rights concept.112
Though he is not actively opposing human rights doctrine per se, he argues that our contemporary
human rights culture is strikingly recent, created by United Nations machinery 113 , without a
thorough historical basis. As Moyn discerns it, although the ‘eternal rights of man’ were proclaimed
in the era of the Enlightenment, they were so profoundly different in their practical outcomes, up to
and including bloody revolution, as to constitute another conception altogether as what one now
understands as human rights.114 To him, the ‘drama’ of human rights is that they emerged in the
1970s ‘seemingly from nowhere’, when the ‘moral world of Westerners shifted’.115 Before this
period, Moyn argues, human rights were not even an especially prominent idea.116
Moyn attaches to this historically flimsy basis another negative dimension of human rights, namely
its utopian nature as a ‘survived political ideology’.117 He perceives the development of human rights
culture in a resolutely anti-Hegelian light: ‘(US) historians, in recasting world history as raw material
for the progressive ascent of international human rights, have rarely conceded that earlier history
110
Donnelly (n22) 604
Ibid.
112
‘History, in fact, is a very sudden thing and never has this been truer than when it comes to the history of human rights’. Moyn (n19 ) 4; ‘When it comes to
human rights, *history+ is not a persistent stream but a shocking groundswell that has to be explained’. Moyn (n19) 42
113
In the early years of which, according to Moyn, great power diplomacy was far more important than developing the concept of human rights.
114
Moyn (n19) 1-2
115
Ibid. ‘In the early 1970s, the human rights idea had yet to arouse the curiosity of the intellectual, to stir the imagination of the social and political reformer
and to evoke the emotional response of the moralist nation.’ Moyn (n15) 36
116
Ibid.
117
Moyn (n19) 4-5
111
32
left open diverse paths into the future, rather than paving a single road toward current ways of
thinking and acting’.118
This aforementioned powerful utopian dimension consists to Moyn of the image of another, better
world of dignity and respect that underlies the appeal of human rights, even when these rights seem
to be about slow and piecemeal reform – they emerged as ‘the last utopia’ because other political
visions ‘imploded’.119 But according to Moyn, human rights have to be merely treated as a human
cause, rather than one with the long-term inevitability and moral self-evidence that common sense
assumes.120 ‘Though they were born as an alternative to grand political missions –or even as a moral
criticism of politics- human rights were forced to take on the grand political mission of providing a
global framework for the achievement of freedom, identity, and prosperity. They were forced,
slowly but surely, to assume the very maximalism they triumphed by avoiding’, but ‘few things that
are powerful today turn out on inspection to be longstanding and inevitable. And the human rights
movement is certainly not one of them.’121 What Moyn perceives as the ‘true key to the broken
history of rights’ however, and in which Arendt resonates, is the move from the politics of the state
to the morality of the globe, which now defines contemporary aspirations.122
Noteworthy though Moyn’s critical appraisal is, it seems to me that some of his arguments are not
entirely unshakable. For example, Moyn omits the Enlightenment’s rights of man which are
enunciated in both the American Declaration of Independence and the French Declaration of the
Rights of Man and Citizen, which documents suggest a more solid historical basis for human rights
conceptions.123 On a more general note, a universalistic conception of humanity is perceptible
through history, starting with universalism in Greek philosophy and rising to the surface during
several historical incidents, such as Zola’s J’Accuse, and Woodrow Wilson’s foreign policy attempts
at global peace. The theory that human rights have a historical basis in a universalistic conception of
humanity is to me therefore not immediately to be refuted.
II. Gray
However, Moyn finds resonance in Gray, who already for several years warns against our inherently
wrong and dangerous faith in progress. To him, the belief in the potential benefits of what he calls
the ‘contemporary cult of human rights’ is the epitome of our widespread clinging to utopian
illusions. Similar to Moyn, Gray finds fault in the belief of ‘most people’ 124 that the prominence of
rights is an almost inevitable conclusion of a long process of moral development – ‘indeed, the
118
Ibid.
Ibid.
Moyn (n19) 9
121
Ibid.
122
Moyn (n19) 43
123
Also the American Declaration of Independence mentions human rights; likewise the nineteenth- and twentieth century campaigns for inter alia the rights
of women, workers, Jews, black people and immigrants; and the anti-slavery movement and the development of the humanitarian laws of war. With regard to
the twentieth century before 1970, one can find human rights elements in the post-World War II Universal Declaration of Human Rights. Furthermore, the
development of the legal concept of ‘crimes against humanity’ during the first half of the twentieth century reveals a universalistic impulse in international
law.
124
Gray (n14) 81
119
120
33
primacy of this ideal is very recent’. 125 Boldly he asserts that historically, in utilitarianist thinking and
Enlightenment philosophy, the notion of human rights was never fundamental in ethical and political
thinking, deeming the development human rights theory thus a very recent shift, and not an
inevitable conclusion of a long process of moral development.126 This notion that human rights are
the foundation of society came according to Gray only with the rise of Rawls’s vastly influential A
Theory of Justice, and in the years following, it ‘slowly came to be accepted that human rights were
the bottom line in political morality’. 127 As Gray argues, early modern political theorists like Locke
may have asserted the importance of rights in ways that helped shape the American Constitution;
nevertheless these rights were dictates of natural law, which had to be obeyed because they
emanated from God, and according to Gray is Kant’s view essentially the same. From this he
concludes that the belief that rights are fundamental in political ethics is a late twentieth-century
fancy.
Looking at human rights politics realistically, Gray elaborates on Arendtian themes by accusing the
human rights movement of promoting a type of liberal legalism in which the rule of law was simply
assumed, while politics was virtually ignored. The most ‘damaging’ effect of Rawls’s work is to Gray
indeed the neglect of the state that it produced: ‘human rights might in some sense exist prior to the
state, but without the state they count for nothing. This is made clear in the practice of the United
Nations: The Universal Declaration of Human Rights, which ‘seems to embody the modern-day
utopia’, encouraged visionaries to look to a time when rights would transcend sovereign states, but
still the focus on individual countries remained.128 Without a state to protect them, human rights are
empty, and also democracy cannot protect human rights when the most powerful political forces in
the country reject them as illegitimate.129
Human rights for this reason do, according to Gray, nothing more than providing ‘a moral alternative
to bankrupt political utopias’, a replacement for the universal political projects –communism,
national socialism- that shaped much of the dark history of the twentieth century. 130 And the
intrinsically utopian nature of the human rights project lies in what its advocates most prize about
their movement—its anti-political orientation, since the role of politics is to devise a modus vivendi
among rival liberties envisioned in fundamental rights that are, as described, often at odds with one
another. Even though at the back of the rights movement there is a vision of an ideal constitution
that could in principle be installed everywhere, such a framework is impossible even in theory, for
there are ethical and political conflicts that ‘admit no single rights solution’.131
125
Ibid.
‘Originating in Greco-Roman philosophy and Judeo-Christian religion, so the story goes, the idea of human rights expressed a cosmopolitan vision of
universal humanity, which went on to find expression in modern times in the English Civil War, the French and American Revolutions, various antislavery
movements, the Second World War, and struggles against colonialism and racism. The history of the West is a continuous unfolding of this majestic idea, and
if contemporary Western societies are superior to others, past and present, it is because of their respect for personal liberties.’ Gray (n14) 81
127
Gray (n14) 83
128
Gray (n14) 84
129
Gray (n14) 85-86
130
Gray (n14) 86
131
Gray (n14) 88
126
34
4e. Contemporary epistemological critiques of human rights doctrine
Indeed, even the most diligent contemporary theorist in favour of the establishment of basic human
rights, Rawls, understands them as a ‘political conception of justice’ rather than as a comprehensive
religious, philosophical, or moral doctrine. 132 Because a political conception of justice only addresses
the constitutional structure of society, defined as far as possible independently of any particular
moral or religious theory, adherents of different comprehensive doctrines may, despite other
profound differences, come to an ‘overlapping consensus’.133
I. Moral relativism
Another, fundamental epistemological, criticism of human rights theory is that, to moral relativists,
moral principles and concepts are inherently subjective in character. Hence, this position rejects the
principal ground upon which the moral universalist concept of human rights rests, namely the
supposed existence of rational and a priori moral principles upon which a plausible and legitimate
moral doctrine is to be founded. Since relativists view morality as a historical and social
phenomenon, moral beliefs can therefore be regarded as historically and socially contingent.
Empirical proof for this stance is the vast array of diverse moral principles and practices apparent in
the contemporary world, shaping complex societies which increasingly assume a pluralist and
multicultural character.134 However, one could counter that even in very diverse cultures, the same
basic moral principles are entwined within the societal fabric. The general prohibition on murder in
almost all countries’ legal codes is a well-used example. Also, merely pointing to moral diversity and
the presumed integrity of individual cultures and societies does not, by itself, provide a philosophical
justification for relativism, nor a sufficient critique of universalism.
However, rather than a correct determination of a rationally purposive will, to moral relativists,
moral beliefs are fundamentally expressing the partial preferences of individuals. Though this
argument is most closely associated with Hume, Rorty defends a recent version of it, arguing that
human rights are, or should be, not based not upon the exercise of reason, but upon a sentimental
vision of humanity.135 I will elaborate on this in chapter 6.
With regard to this presumed multicultural character of the world, for moral relativists this
fundamentally restricts both the scope and the substance of regulative political principles governing
diverse societies. Pollis and Schwab’s critique presents international human rights standards as an
instance of false universality, claiming that human rights are a ‘Western construct with limited
132
John Rawls, Political Liberalism (New York Columbia University Press 1996) 11-15 and 133-176; John Rawls, The Law of Peoples (Cambridge Mass. Harvard
University Press 1999) 31-32 and 172-173
133
Ibid.
134
See also Jeffrey Flynn’s recently published Reframing the Intercultural Dialogue on Human Rights: A Philosophical Approach (Routledge 2013), which is
aimed at the central issues raised as actors around the globe grapple with the apparent tension between the universal aspirat ions of human rights and our
manifest differences.
135
Richard Rorty, ‘Human rights, rationality, and sentimentality’ (1993) 3 Truth and Progress: Philosophical Papers (Cambridge U niversity Press 1998)
35
applicability’.136 A common reproach regarding human rights universalism is indeed the threat of
moral imperialism, inspired partly by the presumed individualist character of the human rights
doctrine.137 See for instance the practical problems surrounding the human rights program that
Benhabib reveals: ‘The robust language of human rights can usher in moral imperialism’, 138 to the
point where military force intervention is generally considered in the West as ‘essential’ to maintain
any allegiance to basic moral principles in frequent cases of grave human rights abuses 139. Indeed,
the discourse of human rights has often been exploited and misused by political moralists.140 Moral
human rights universalism in this way leads to a slippery slope for international affairs, since the
grounds for humanitarian intervention are expanding into the ‘obligation to protect’, opening the
gates for interventionism as an acceptable option creeping in.141 However, as Benhabib remarks,
choosing between moral absolutism and moral relativism equals a choice between the ‘Scylla and
Charybdis of moral imperialism and moral indifference’. 142 However, the problem of moral
absolutism regarding a Western human rights doctrine in practice is mitigated by the right to selfgovernment of various states (who have after all in most cases willingly become parties to human
rights treaties), through which each juridical tradition of each human society shapes the legal
articulation of human rights, therefore a legitimate range of variation even in the interpretation and
implementation of basic rights such as equality before the law.143
Another theoretical relativist challenge for human rights justification is the position that there is not
a real categorical difference between professed ‘civil and political’ and ‘economic and social’ rights,
in other words, the so-called ‘negative’ (freedom) and ‘positive’ (provision) rights do not actually
match up with these categories of economic, social, civil and political rights; as said, the right to life
for example is in itself a complex combination of negative and positive (state) obligations.
Furthermore, a practical concern related to criticism on moral universalism is the contemporary
tendency to rely excessively on the human rights doctrine in pursuing the ends of social justice and
human well-being, in other words shoehorning all important social goods into a human rights
framework, which means that governments implicitly treat internationally recognized human rights
as a one-size-fits-all solution for all political and social problems, which can choke off more creative
thinking about the meaning of and strategies for realizing social justice and human emancipation. 144
136
Adamantia Pollis Peter Schwab, ‘Human Rights: A Western Construct with Limited Applicability’ in Pollis Schwab (eds.) Human Rights: Cultural and
Ideological Perspectives (New York Praeger 1980)
137
Arguably, human rights are unduly biased towards morally individualist societies and cultures, ‘at the necessary expens e of the communal moral
complexion of many Asian and African societies. At best, some HR’ articles may be considered to be redundant within such soci eties, at worse they may
appear to be positively harmful if fully implemented, replacing the fundamental values of one civilization with those of another and thereby perpetuating a
form of cultural and moral imperialism.’ Fagan (n3)
With regard to its individualist character, this is in large part due to the Western origins of human rights, leading to the principal bearer of human rights as the
individual person. See also Donnelly (n22) 614: ‘All the rights in the Universal Declaration and the Covenants, with the exce ption of the rights of peoples to
self-determination, are rights of individuals. The fact that much of the suffering in the world is rooted in group membership has led many to advocate
establishing new collective human rights. Many groups with strong protective and expressive claims, however, are incapable of effective agency, especially
where the group is large, geographically dispersed, or heterogeneous.’
138
Benhabib (n4) 98
139
Benhabib (n4) 102. See for example the Genocide Convention, and Article 51 of the Charter of the United Nations, on the basis of which intervention is
often justified
140
Benhabib (n4) 104
141
Benhabib (n4) 103. See also Habermas (n27) 477, emphasizing the half-hearted and incompetent, short-sighted military interventions in Somalia, Rwanda,
and Darfur in the name of human rights policy.
142
Benhabib (n4) 98
143
Benhabib (n4) 100
144
Donnelly (n22) 611, 613. He calls this the ‘hegemony of human rights, insinuating itself more deeply in more and more places’.
36
II. Arendt
Finally, a more realist critical school rejects the idea that human rights are natural, simply existing
out there to be recognized and implemented, since human rights cannot be ‘above’ or ‘beyond’ the
state but necessarily originate from and are enmeshed within the state. 145 In this tradition,
ultimately, to me, the most compelling refutation of the legitimacy of human rights is offered by
Arendt. Though she also is of the opinion that a basis of human rights is absent in both history or
nature,146 she underlines the, in her eyes, failure and vapidity of ‘human rights’, dismissing them as
mere phantoms, based on a more fundamental logical fault in its theory. As mentioned in the
introductory remarks, her main issue with human rights theory is the problem that it can not deliver
its promise of universal protection, because people who are deprived of a citizen-like state like
refugees and therefore no longer belong to any kind of community do not have any means to
demand their human, or rather civil, rights.147 Essentially, this means that ‘human rights’ speak the
language of victimization: they are a symbolic right of exception necessary for those who have
nothing better to fall back upon.148 So, the stateless refugee introduces into the nation-state a class
of persons who are denied the equal rights of citizenship, the very rights upon which the legitimacy
of the nation-state depends. However, stateless refugees are by their highlighting the limits and
contrast central to the nation state and so unveil the tragic flaws of the modern nation state system.
To be a rights-bearing person means first and foremost to be a member of a sovereign polity in
which one’s right to have rights is protected
As she phrases it pointedly: ‘The true calamity of the rightless (in the middle of the twentieth
century) is not that they are deprived of life, liberty, and the pursuit of happiness, or of equality
before the law and freedom of opinion, but that they no longer belong to any community
whatsoever.’149 This leads her to describe the pre-emptive ‘right to have rights’ as the correct
intellectual foundation of human rights doctrine. 150 In the Origins of Totalitarianism, she presents a
number of perplexities that attach to human rights that show the limits, weaknesses, and
incoherence of this concept.
To start with some of the perplexities, the first one is that human rights claim to express something
in humans worthy of absolute protection, and yet they only emerge at a time in history (i.e. the
twentieth century) when human’s dignity and freedom could only be understood as relative values,
145
Dembour (n16) 66. For a parallel discussion, see also the New Haven School of Law approach towards the sources of law: states are created by rules of
(international) law, but these same states are the creators of legal rules themselves. See Myres S McDougal Harold D Lasswell, ‘The Identification and
Appraisal of Diverse Systems of Public Order’ (1959) 53 American Journal of International Law
146
To Arendt, the only possible foundation of human rights is that the right of every individual to belong to humanity be grounded by humanity itself. How
humanity can ground human rights however is not clear to her, since the sphere of humanity, unlike the nation-state, does not yet exist.
147
Interesting to note here is also that the first human rights documents place an accent on civil rights as proven by their tit les, for example the French
Declaration on the Rights of Man and Citizen.
148
Hannah Arendt, The Origins of Totalitarianism (Houghton Mifflin Marcourt 1973 (1951)) 293
149
Arendt (n148) 295
150
See also Ingram (n15), in which he extensively explains how one should read this right in the contemporary world.
37
defined as the modern age is by both Darwinism and liberalism.151 To Arendt, Darwinism and
liberalism together expose the contingency of all contemporary claims to human rights. Also, she
remarks that human rights notions arise only once it is seen that humanity, instead of either
commands from God or the customs of history, should be the source of law – in her own words, ‘‘To
declare that men have human rights is to put in mortal hands the absolute guarantees that were the
traditional provenance of gods, ancestral traditions, and timeless customs’.152
Another ‘perplexity’ is caused by her observation that even though human rights conventionally in
the contemporary age are hailed as a sign of humanity’s progress, she considers them as a
particularly frightening and specifically modern form of rightlessness. This is so because she regards
the all-encompassing religious, social, spiritual, and traditional orders, from which human rights
theorists claim to be liberated (since human rights are on paper independent from these
institutions), as a useful protection against power abuse of sovereign states. She therefore
understands human rights not as a progressive advance, but as a necessary rear-guard action, a kind
of futile shield for individual and emancipated humans against potential state excesses.
Then there is her analysis that ‘human rights’ are both indistinguishable from and incompatible with
the ‘rights of peoples’153, since outside these groups of peoples, there solely exist factually rightless
people (being refugees or otherwise stateless), deprived of any legal status. Though human rights
were supposed to be absolute and independent of government, when emancipation started to mean
also national self-determination, the absence of a government left certain human beings without
any authority to protect their individual human rights.154 This renders ‘human rights’ essentially
‘second-class’ rights, being less meaningful than civil rights (i.e. those rights applicable for members
of a political community), which are at least spelled out in tangible and enforceable laws. Even
though human rights could acquire this field by means of codification in binding legal human rights
documents, they are however still vaguely and fluffy phrased.155 Even when they can be effectively
invoked and enforced, for example before the European Court of Human Rights, this step is in
practice not easy to take for stateless people. Only those who have no confidence in the civil and
legal institutions of their state abandon the concrete protections of civil liberties for the abstract
hope of human rights, which emerge only as a desperate plea once the claim for civil rights has failed.
However, as mentioned, the most important weakness of human rights theory is to Arendt that
human rights generally are embraced as being inalienable156, but they are in fact unenforceable. As
she describes the problem of stateless people, whenever people appeared who were no longer
citizens of a sovereign state, these refugees might appeal for the protection of their human rights,
but these were guaranteed by no institution with the power to enforce them.157 Although human
151
Implicating respectively that humanity is merely one species among many and the idea of absolute and inviolable human dignity hence is vulnerable; and
that the rationalist, determined political thinking of humans is governed by power rather than reason, and since the desire f or power is unlimited, there can
be no absolute values. See also Berkowitz (n25) 61.
152
Arendt (n148) 290
153
Also Moyn (n19) points to human rights originally meaning nothing more than peoples’ right to self-determination.
154
See also Berkowitz (n25) 62
155
See e.g. the European Convention on Human Rights.
156
Though framed as ‘universal’ and ‘inalienable’, as earlier mentioned, human rights are not ‘absolute’ in the sense that they never can be overridden by
pressing considerations of for example safety. Rather than solid, they are more like ‘especially strong norms’, but not inflexible. However, these conditions
placed on their supposed ‘inalienability’ render the philosophical concept even more fragile.
157
Arendt (n148) 293
38
rights were to attach to humans simply in their being human, the truth is, to Arendt, that without
membership as citizens of a polity, human rights prove to be powerless. Though it should be the case
that when a human being loses his political status and becomes ‘nothing but human’, he would be
protected by the very human rights advanced by human rights discourse, but the opposite is the
case.158 This leads to her describing the final paradox of human rights theory: both the emergence
and the loss of human rights coincide with the instant when a person becomes a human being in
general -without profession, citizenship, opinion, deed- with which to specify and identify himself.
Human rights thus pave the way for the emergence of humans so deprived of what makes them
human that they can be considered as nothing more than barbarian and savage.159 This leaves not
much left of the supposed Kantian dignified traditional foundation for the Rights of Man.
Additionally, more specific, she complains that the typical basic human rights (i.e. the right to life
and to freedom) are not actual inalienable human rights because they can be revoked during certain
situations, such as for instance during wars, or when one is legitimately detained as a criminal.
These theoretical faults have, in Arendt’s experience, lead to serious tragedies. As she describes it in
The Origins of Totalitarianism, disasters such as the Holocaust, and concentration and refugee camps
are at least in part made possible because the ‘rights of man’, which had never been philosophically
established but merely formulated and never politically secured but merely proclaimed, have in their
traditional form lost all validity.160 As Berkowitz notes, to advocate for human rights in the face of
their obvious invalidity is therefore to risk bringing attention to their powerlessness and therefore
unintentionally to further their abuse.161
Summarized, to Arendt, human rights reflect the legalized exclusion of human beings from civilized
communities. The rights of freedom and justice are thus merely rights of citizens, but the right to be
a citizen and to have rights is much more fundamental. 162 As Berkowitz explains Arendt, the rights of
humans in other words are not revealed by the deprivation of specific rights, but by the plight of
those who are expelled from all rights; the truly rightless are those who are so oppressed that they
are deprived of legal status so that no one will even oppress them.163
The one truly human right manifests itself therefore as ‘the right to have rights’, even though this
formulation is quite enigmatic.164
To Arendt, the only truly human rights are the rights to act and speak in public, in other words, the
right to speak and act as a member of a community.165 She limits human rights thus properly to
158
Arendt (n148) 300: it seems that a man who is nothing but a man has lost the very qualities which make it possible for other people to treat him as a
fellow-man.
159
Ibid.
160
Arendt (n148) 447
161
Berkowitz (n25) 59
162
Arendt (n148) 296
163
Berkowitz (n25) 64
164
Benhabib reads this primary right as an evocation of a moral imperative, and the other ‘rights’ as civil and political rights of citizens.
39
those activities that concern the humanity of persons, and views human rights as not to be invoked
to protect people’s freedom or even their lives. Her arguments are that though it is human to fight
for and die for freedom, these rights are not had simply by being human. Following this line of
reasoning, one arrives at the conclusion that also Arendt regards human dignity, which she reads as
the essential quality of humans, as a fundamental basis of rights.166
Arendt has found a contemporary defender of her basic critique on human rights doctrine in Zizek,
who remarks that indeed one should problematize the very opposition between universal or ‘prepolitical’ human rights belonging to every human being ‘as such’, and the specific political rights of a
citizen i.e. a member of a particular political community. 167 As Zizek interprets Arendt, the
conception of human rights based upon the assumed existence of a human being as such, broke
down at the very moment when those who professed to believe in it were for the first time
confronted with people who had indeed lost all other qualities and specific relationships except that
they were still human – the stateless. To Zizek, this line leads straight to a notion of ‘homo sacer’ or a
human being reduced to ‘bare life’: ‘in a properly Hegelian paradoxical dialectics of universal and
particular, it is precisely when a human being is deprived of his particular socio-political identity
which accounts for his determinate citizenship, that he, in one and the same move, is no longer
recognized and/or treated as human.’168 In other words, paradoxically one is deprived of human
rights precisely when one is effectively, in one's social reality, reduced to a human being ‘in general,’
or without citizenship, profession, religion, gender, ethnic identity, or other distinguishing
characteristics. This is to say, exactly when one effectively becomes the ideal bearer of ‘universal
human rights’, belonging to one independently of all ‘fluff’, one loses these rights.
To Zizek, one thus arrives at an anti-essentialist position: ‘human’, as a bearer of human rights, is
generated by a set of political practices which materialize citizenship. He regards the gap between
the universality of human rights and the political rights of citizens therefore not as a gap between
the universality of humans and a specific political sphere; but invokes Rancière, who Hegelian puts it
thus: it rather separates the whole of the community from itself. So, universal human rights are to
Zizek not pre-political but rather designate the precise space of politicization proper, amounting to
the ‘right to universality as such, the right of a political agent to assert its radical non-coincidence
165
The human condition underlying that right, i.e. the ability of speaking and acting, Arendt calls natality, or the ‘capacity t o be born’. As Berkowitz explains
this right, confusion over this point – and thus the efforts of human rights advocates to extend human rights to life and liberty (and also to second and third
generation rights like economic prosperity) – cleaves human rights from its foundation in the human condition and risks, therefore, exposing the entire edifice
of human rights as vapid nonsense. Berkowitz (n25) 65
166
Arendt (n148) 297: ‘Man can lose all so-called rights of man without losing his essential quality as man, his human dignity. Only the loss of a poli ty itself
expels him from humanity.’
167
See also Balibar, who regards the term ‘politics of human rights’ as a quasi-tautological notion, since human rights are not really different from civic rights
(or ‘Rights of Man’ from the ‘Rights of the Citizen’): apart from politics, or without a political system of institutions and actions, not only is there no
implementation of human rights, but there is also no ‘right’ within these ‘rights’. Though this does not mean to Balibar that one should shift foundations,
exchanging a humanistic-naturalistic-universalistic ‘ideal’ foundation (the kind adopted by Natural Rights theorists) for a political-historical-institutional
‘positive’ foundation, but rather that one must give up the intention of ‘founding,’ while not giving up the objectives of a politics of human rights; hence, the
idea of a foundationless politics of rights and the idea of rights being themselves without foundation, whether ontological or transcendental, but with a
conflictual history of conquests and resistances. In this sense, Balibar argues for a reversal of the theoretical relationship between ‘human’ and citizen’,
proceeding by explaining how humans are created by citizenship, and citizenship is not made by humans. What Balibar means wit h this last sentence is not
entirely clear to me; does he envision citizenship as emerging ex natura, or always just as already ‘being there’ wherever there are humans? Slavoj Zizek, ‘The
Obscenity of Human Rights: Violence as Symptom’ (2005) 34 New Left Review 18
168
Zizek (supra)
40
with itself (in its particular identity), i.e., to posit itself as an agent of universality of the Social as
such.’169
Also Green reflects Arendt in stating that ‘Whether a society has a legal system depends on the
presence of certain structures of governance, not on the extent to which it satisfies ideals of justice,
democracy, or the rule of law. What laws are in force in that system depends on what social
standards its officials recognize as authoritative; for example, legislative enactments, judicial
decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never
sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise,
inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a
matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a
more modern idiom, positivism is the view that law is a social construction.’ 170 Or in other words, in
any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of
that system, depends on its sources, not its merits.171
However, though I consider Arendt’s analysis quite convincing and resounding, I would like to place
some side notes to her various points. First of all, according to international legal academics, the
human rights corpus is meant to reconcile the effectiveness of state power with protection against
this very same state power. Though Arendt calls this a ‘rear-guard action’, it is hard to imagine how
this practice could be more safe or adequate. See also Benhabib, who substantiates that the most
important human rights documents of international public law, such as the Genocide Convention,
the Refugee Convention, the ICCPR, the ICESCR, and the CEDAW, have introduced a crucial
transformation in international law.172 Even though it may be too utopian to name them steps
toward a world constitution, these instruments are ‘certainly more than mere treaties among states
but are becoming constituent elements of a global civil society, in which individuals are rightsbearing not only in virtue of their citizenship within states but in the first place in virtue of their
humanity. Though states remain the most powerful actors, the range of their lawful activity is
increasingly limited.’173 It would in this case probably be more adequate to speak of a dialectical
relationship between states and (human) rights.
Regarding her fundamental issue, the factual lack of rights for people outside any kind of political
structure, Benhabib offers an attempt at reconciliation with the remark that the ‘right to have rights’
could become a part of the core content of human rights itself. 174 Also Habermas hints at the notion
of wrapping the ‘right to have rights’ in terms of the right to democratic participation and social and
cultural participation as a supplement to realize classic civil (liberty) rights acquiring (Rawlsian)
169
Jacques Rancière, ‘Who is the Subject of Human Rights’ (2004) 103 South Atlantic Quarterly 297
Leslie Green, ‘Legal Positivism’, The Stanford Encyclopedia of Philosophy E Zalta ed. http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/
first archived 21 March 2003, minor correction 21 September 2009, Fall 2009 edition consulted 21 May 2014
171
John Gardner, ‘Legal Positivism: 5 ½ Myths’ (2001) 46 American Journal of Jurisprudence 199
172
But indeed, as Moyn states, only post-Cold War (after the Origins of Totalitarianism) did human rights begin to afford a glimpse of the rule of law above the
nation-state.
173
Benhabib (n4) 97
174
With regard to statelessness, Benhabib wishes to diminish the problems attached to this state by advocating a world with ‘porous borders’, i.e. envisioning
a lack of possibility to even be ‘stateless’. However, this rings as quite a utopian endeavour; moreover, it is hard to imagi ne how she pictures this, since how
could human rights be enforced in merely a ‘sphere of humanity’ or a ‘global community’, without adversaries or other entities to create a system of checks
and balances (entailing sanctions in cases of violations)?
170
41
‘equal value’175, since ‘the point of the legal character of human rights is that they protect a human
dignity that derives its connotations of self-respect and social recognition from the status of
democratic citizenship’.176
That said, this is merely shifting the problem; this core content still needs to be actually accessible. A
better solution perhaps is the Rawlsian ‘right to formal equality as expressed by the rules of natural
justice’.177 But more concretely, there also is a legal positivism-approved answer, namely the fact
that the rights of refugees are protected after all - by conventions specifically addressing them.178
The most substantial refutation however is the notion that legally speaking, since human rights
purport to be binding whether or not recognized by state, suggestion that universal moral rights
binding prior to and apart from law.179
Also, Habermas points to the beneficiary results an effective human rights corpus can have on the
essentially rightless. He acknowledges that from the outset a dialectical tension has existed between
human rights and established civil rights, but argues that ‘the first human rights declaration set a
standard that inspires refugees, those people who have been trust into misery, and the ostracized
and humiliated’180, thereby assuring them that ‘suffering is not a natural destiny’.181 Since the
translation of human rights in positive law gives rise to legal duties to realize exacting moral
requirements; these duties become engraved into the ‘collective memory of humanity’,182 only
constituting a ‘realistic utopia insofar as they no longer paint deceptive images of a social utopia that
guarantees collective happiness, but anchor the ideal of a just society in the institutions of
constitutional states themselves’.183
175
Habermas (n27) 468
Habermas (n27) 475
See also again Hart’s theory based upon the idea of the equal right of all humans as being a natural right; Hart reckons that equality is a natural right for
two reasons, being that all people have this right and it is not restricted on conditions of what society one belongs to or i n what special relation one stands to
others; and this right does not arise from men’s voluntary action; and: the right to equality therefore can be deemed natural because it is based upon
universality for all humans, which one does not need to gain as one automatically and ‘naturally’ is in possession of the right.
178
See the United Nations 1951 Refugee Convention.
179
Nickel and Reidy (n8) 43
180
Habermas (n27) 476
181
Ibid.
182
Ibid.
183
Ibid.
176
177
42
5. Human rights problems in practice
Besides rejecting human rights as constructed on unsound premises, as presented in the prior pages,
one can also accept the idea of human rights and regard the concept as not irretrievably defective,
but demand that they are made to work better in the face of challenges – in other words, perceive a
glaring gap between theory and practice. I already described here and there some problematic
effects of the human rights doctrine in practice. For instance, the international human rights
program is not equipped to solve all issues of inequality and arguably therefore not the best way to
try to implement the ides of justice, equality, and humanity.184
As Donnelly claims, human rights are in an important sense ‘above’ or ‘prior to’ ordinary politics and
in many ways, their point is to take these guaranteed goods, services, and opportunities out of the
day-to-day give and take of politics. Nevertheless, human rights represent a kind of politics, far more
than a politically neutral humanitarianism, and they rather reshape the contours of, instead of
eliminate, politics. According to several writers, this can be taken too far, with unfortunate
consequences for human dignity, social justice, and human rights.185 See also Gray again: ‘By the
nineties, human rights had become central to the thinking not only of liberals but also of
neoconservatives, who urged military intervention and regime change in the faith that these
freedoms would blossom once tyranny was toppled. From being almost peripheral, the human rights
agenda found itself at the heart of politics and international relations. In fact, it has become
entrenched in extremis (…) as if the only options that exist in political thought are rights-based
liberal universalism or out-and-out moral relativism.’186 But does the notion of human rights actually
lead to another kind of problems in society? A substantial account of the factual downsides of a toostrict adherence to human rights in the international legal sense of the word is presented by
184
See also Francis Fukuyama, ‘Dealing with Inequality’ (2011) 22 Journal of Democracy 79, on the relationship between modern liberal democracy and de
facto socioeconomic inequality. ‘Liberal democracies are based broadly on the twin principles of liberty and equality, but the meaning of this equality to which
such regimes are committed is not entirely clear – is this simply juridical equality, equality of opportunity, or are democratic societies committed to achieving
some degree of de facto social equality, either through redistribution of resources or through guarantees of equal outc omes with regard to education, health,
housing and the like? If there is tradeoff between individual freedom and de facto social equality, how does society achieve suitable balance? These questions
answered on basis of theoretical first principles, or should actual democracies take more pragmatic approach?’ 83: ‘In most liberal democracies, there is a
consensus that excessive inequality is a bad thing, but considerable disagreement as to the practicality and likely effects of policies that governments can
implement to mitigate it. One profound question left unaddressed here is whether deep structural inequalities of the sort plag uing many developing
democracies can ever be solved through democratic means alone. It is hard, for example, to find many instances of thoroughgoing land reform that occurred
without some degree of coercion.’
185
Donnelly (n22) 617. See also the Tanner lectures by Ignatieff on ‘human rights idolatry’ delivered at Princeton University in 2000.
186
Gray (n14) 82
43
Kennedy, who in The Dark Sides of Virtue presents the undesirable, unintended consequences of an
excessively enthusiastic pursuit of human rights.187
5a. Kennedy
Kennedy is concerned that, even though he emphasizes that the human rights movement has been
very meritous by freeing individuals from great harm and raising the standards by which
governments are judged, it cannot keep its promises. He gives an extensive list of these, among
others its promise to ‘engage individuals directly, as activists and as victims, giving a global voice to
individual pleas for justice; to give the nongovernmental institutions of civil society a voice on the
global stage, establishing a humanitarian profession; and, most important, to establish a universal
vocabulary for ethics—a value orientation for international law and foreign affairs.’188 P3 He realizes
however that although these are enormously appealing ideas, when translated into governance,
they also create costs or ‘dark sides’, and according to him human rights professionals rarely place
these costs centre stage, where they can be assessed and either refuted or taken into account. 189
Summarized, these ‘dark sides’ consist of inter alia the fact that the international human rights
movement crowds out other ways of pursuing social justice and other emancipatory vocabularies
that may sometimes be more effective; and moreover, that human rights, given its origins and its
preoccupations, have often been a vocabulary of the centre against the periphery, or in other words
a vehicle for empire rather than an antidote to empire. Additionally, problems that are hard to
formulate as rights claims for individuals—collective problems, economic problems, problems of
poverty or health—are easy to overlook.
Echoing Dalrymple190, furthermore, Kennedy emphasizes that emancipating people as rights holders,
moreover, stresses their individual claims and their personal relationship with the state, which can
187
Also Zizek ventures into this terrain, calling problematic the ‘very depoliticized humanitarian politics of ‘human rights’ as the ideology of military
interventionism serving specific economico-political purposes.’, and which humanitarianism ‘presents itself as something of an anti-politics - a pure defence of
the innocent and the powerless against power, a pure defence of the individual against immense and potentially cruel or despotic machineries of culture,
state, war, ethnic conflict, tribalism, patriarchy, and other mobilizations or instantiations of collective power against individuals.’ Zizek (n167)
188
David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press 2008) 2
189
Kennedy (n188) 3
190
Dalrymple in his conservative social critiques understands that the doctrine of human rights is partly responsible for the present sense of exaggerated
individualism, discontent, disappointment, and resentment in the West, following from a wrongful sense of entitlement invoked by the presence of the
concept of ‘universal’ and ‘inalienable’ human rights, leading e.g. to an expectation of the right to everlasting happiness, and if this is not fulfilled, a sense of
being a tragic victim of unfair circumstances, while to Dalrymple life inherently is a struggle. I offer this amusing though slightly vitriolic assessment: ‘moral
discourse has increasingly been reduced to questions of the rights of the individual. The notion of rights, at least when carried beyond the broadest
generalities contained in the American Declaration of Independence, is highly inflammatory to weak minds. There are, of course, philosophical problems with
even the rights enumerated in the Declaration. If they were self-evident, why did it take so long to discover them? The self-evidence of a proposition is itself
rarely self-evident until someone points it out. Self-evidence, in other words, is usually a posteriori rather than a priori. And could the existence of anything
that was self-evident be denied or contested? (...) A right cannot be abrogated, for then it would not have been a right in the first place; nor can it be hedged
around by any kind of restrictions, for then, too, it would not have been a right. People who are endowed with rights – and almost every day we hear of new
ones – are naturally inclined to think of themselves as supremely important beings. First the heliocentric theory of the solar system, and then the theory of
evolution, may have knocked man off his self-erected pedestal, but the doctrine of human rights has put him back there, but with this difference: that
whereas it was once mankind in general that was on the pedestal, now it is every individual personally who is on it. (..) A p erson who is aware that he is
endowed with rights, beyond the very elementary ones, develops certain characteristics. He becomes self-regarding. When his rights become extensive
enough, when they encompass most aspects of human existence, he is deprived of the experience and therefore the attitude and expression of gratitude: for
everything that he has, he has by right and is therefore merely the fulfilment of an entitlement. If, on the other hand, he b elieves himself to have been
deprived of what is his by right (and the more extensive his rights, the more likely he is to feel like this), he feels aggrieved. The person endowed with rights
therefore oscillates between ingratitude at best and resentment at worst. It is in the nature of man that disappointment should accompany him on his earthly
journey; but when disappointment is felt also as an injustice, rather than as an inevitable consequence of having been born a self-conscious being, it is doubly
painful. Self-importance, together with a sense of injustice having been done to one, is not a recipe for easy sociability. Anger and bitterness are never far
below the surface; and since one’s own dissatisfaction with life is believed to be the consequence of one’s rights having been violated or denied, the apparent
happiness or good fortune of others is also the consequence of an unjust world. In fact, they are to blame. Thus the world is full of provocations on every
44
‘encourage a politics of queue-jumping among the disadvantaged, propagating attitudes of
victimization and entitlement while making cross-alliances and solutions that involve compromise
and sharing more difficult’. 191 Vice versa, using the ‘human rights’ umbrella can often excuse
government behaviour by setting standards below which mischief seems legitimate, for instance it
can be easy to sign a treaty and then do what one wants; but even compliance to a human rights
treaty may do more harm than good: a well-implemented ban on the death penalty, for example,
can easily distract from general conditions of incarceration. Most importantly to Kennedy, criticism
on the inadequate human rights adherence by others can ‘get one into things that one is not able to
follow through on, such as by triggering interventions in Kosovo, Afghanistan, and even Iraq with
humanitarian promises that it cannot deliver. The universal vocabulary of human rights can seem to
promise the existence of an ‘international community’ that is simply not available.’192 Human rights
discourse according to Kennedy defines justice as a relationship to the state rather than simply a
condition in society, therefore distracting attention from background norms and economic
conditions that could do far more damage to human well-being. This brings Kennedy to what he
deems most disturbing, namely that ‘the international human rights movement often acts as if it
knows what justice means, always and for everyone; all one needs to do is to adopt, implement, and
interpret these rights. But justice is not like that. People must build it anew each time, struggle for
it.’193 Yet when human rights initiatives succeed, and when the movement gains power in the world,
invariably ‘winners’ and ‘losers’ are created, which is all the more harrowing since ‘human rights can
be intoxicating precisely because it often works. ‘Human rights’ has succeeded in becoming a
vocabulary of power.’194
Dembour adds to this some other problems identified by practical human rights critiques, such as
the existence of double standards in the application of human rights as shown for instance in the
contemporary overzealous responses to terrorist threats, neglecting their human rights; and the fact
that powerful non-state actors largely remain outside the human rights compass.195
hand, and rage is only awaiting an occasion to express itself. The slightest frustration caused by another person is felt as a challenge to one’s rights that must
be met and faced down, or else one will lose one’s absolute sovereignty altogether.’ Theodore Dalrymple, Litter: How Other People's Rubbish Shapes Our Life
(Gibson Square Books 2011) 62-64
191
Kennedy (n188) 3
192
Ibid.
193
Kennedy (n188) 4
194
Ibid.
195
Dembour (n16) 65
45
6. Human rights legitimacy: a different approach
Though the focus on human dignity in human rights theory, as presented in the first parts of this
thesis, has, despite the aforementioned sceptical approaches, not lost its appeal, I would think that
Rorty offers eventually the most compelling philosophical justification of human rights. Instead of
trying to look for overarching, universally human moral principles, he critically appraises this what he
calls ‘outmoded, irrelevant human rights foundationalism’196 itself and attempts to find another way
of making people treat their fellow humans in a just manner by appealing to the sentiments.
His theoretical objections hence are directed against philosophical rational attempts to specify what
is essential to being a human. Since Plato, a profound endeavour in philosophy is trying to answer
the question what exactly defines humankind. However, to Rorty in contemporary philosophy there
is a growing willingness to neglect the question ‘what is our nature?’ and to substitute it for ‘what
can we make of ourselves’. Thus, not the ontological question ‘what are we’ is essential, since,
according to Rorty, the main lesson of both history and anthropology is the extraordinary
malleability of humans. If he would venture into a claim about the essence of human nature, it
would thus be that people are extremely ‘malleable creatures’, leading him to state that one of the
many possible shapes that humanity has recently assumed is that of a human rights culture. 197
Nevertheless, to Rorty it is not clear why respect for ‘human dignity’ (i.e. our sense that the
differences between us and the other should not matter) must presuppose the existence of a
distinctively human attribute.198
Very pragmatically, Rorty thus proceeds with wondering how this global human rights culture, which
he indeed deems superior to other cultures 199 -though to him this need not be based on the
supposed existence of a universal human nature-200, would be best served. Insisting that human
196
The hopes of ‘foundationalist’ philosophers like Plato, Aquinas, and Kant, were directed on inferring further premises about human nature from
summarizing generalizations, but these claims to knowledge are to Rorty probably in vain, since ‘if the activities of those who attempt to achieve this sort of
knowledge seem of little use in actualizing this utopia, that is a reason to think there is no such knowledge. If it seems that most of the work of changing moral
intuitions is being done by manipulating our feelings rather than increasing our knowledge, that is a reason to think there is no knowledge of the sort that
philosophers like Plato, Aquinas, and Kant, hoped to get. (...) We pragmatists argue from the fact that the emergence of the human rights culture seems to
owe nothing to increased moral knowledge, and everything to hearing sad and sentimental stories, to the conclusion that there is probably no knowledge of
the sort Plato envisaged. Further, such metaethical questions *‘is there such knowledge?’] presuppose the Platonic distinction between inquiry that aims at
efficient problem solving and inquiry that aims at a goal called ‘truth for its own sake’. Rorty (n135) 172 -3
197
Rorty (n135) 170
198
Rorty (n135) 171
199
However this superiority does not necessarily counts in favour of the existence of a universal human nature: ‘respect for human dignity’ does not
presuppose the existence of this essence. Rorty (n135) 168
200
‘Nothing relevant to moral choice separates human beings from animals except historically contingent, cultural facts of the world.’ Ibid.
46
rights are not rationally defensible, Rorty argues that one cannot justify the basis of human rights by
a mere appeal to moral theory and the canons of reason since, according to him, moral beliefs and
practices are not ultimately motivated by an appeal to reason or moral theory, but emanate from a
sympathetic identification with others. As he puts it, claims to knowledge about the nature of
human beings201 are largely irrelevant, since a sentimental approach, focusing on the manipulation
of feelings, is far more useful and legitimate.202
Human rights would be therefore better served by emotional appeals to identify with unnecessary
suffering of others, than by arguments over the correct determination of reason. For the essential
issue with regard to human rights violations, discrimination, exclusion etcetera, is to Rorty not
whether human rights aren’t properly adhered to, but that transgressors do not see their victims as
actual humans but as pseudo-humans.203 And only by an appeal to their sentiments can these
perpetrators start perceiving the other as a fellow human.204 The problem is thus not whether
human rights do or do not exist, since they indeed have become thoroughly ingrained in our culture
and consciousness.205 What is essential is creating and nurturing a moral sense of obligation in
people to apply these rights to all others. Though humans are indeed rational animals, they can feel
as well as know, and according to Rorty the human capacity to feel for each other is far more
important when creating this sense of moral obligation. 206 Why rational appeals to morality are not
really effective is, Rorty argues, because the opposition between self-interest and morality, created
by Kant and Plato, is a false one. According to Rorty, the relevant question is not ‘why is it rational
and thus in one’s interest to be moral’, since the way to get people to be better to each other is not
to point out what they all have in common, i.e. rationality. As described, everything turns on who
counts as a fellow human being, as a rational agent in the only relevant sense – the sense in which
rational agency is synonymous with membership in one’s moral community. And this membership is
more readily extended to the other if one –sentimentally- empathizes with them and hence more
easily trusts them. 207 Possibly this concept of empathy could be regarded as a sentimental
interpretation of Rawls’ veil of ignorance.
As previously mentioned, Gray’s pessimist approach to human rights theory denies its historical
justification and rejects its possibility to contribute to human progress. Though Rorty recognizes
several problems attached to human rights theory and the practice of the doctrine, he dismisses the
201
As different from animals because humans for example should possess dignity instead of mere value, or, in a Nietzschean tradi tion, are unique in that they
are merely driven by will to power.
202
Rorty (n135) 171
203
Rorty describes three main ways in which paradigmatic humans conventionally distinguish themselves from ‘borderline’ cases: t he human-animal
distinction (for example dismissing black people as primitive), the adults-children distinction (for example granting some classes of citizens not full rights), and
the male-nonmale difference. Rorty (n135) 168-9
204
‘Outside the circle of post-Enlightenment European culture, the circle of relatively safe and secure people who have been manipulating one another’s
sentiments for two hundred years, most people are simply unable to understand why membership in a biological species is suppo sed to suffice for
membership in a moral community. This is not because they are insufficiently rational. It is, typically, because they live in a world in which it would be just too
risky –indeed, would often be insanely dangerous- to let one’s sense of moral community stretch beyond one’s family, clan, or tribe - most people simply do
not think of themselves as first and foremost a human being. Instead they think of themselves as being a certain good sort of human being, a sort defined by
explicit opposition to a particularly bad sort, they have little else than pride in not being what they are not to sustain their self-respect. ‘Human being’ is thus
always synonymous with ‘member of our tribe’ and Eurocentric intellectuals suggest that they have overcome this primitive parochialism by using the
paradigmatic human faculty ‘reason’ and say that failure to concur with this is due to prejudice.’ Rorty (n135) 178
205
‘There is little resonance and point in the question ‘do human beings in fact have the rights listed in the Helsinki Declarat ion’ Rorty (n135) 174
206
Rorty (n135) 175
207
Rorty (n135) 176-7. Prejudice, according to Rorty, grows therefore not from irrationality, but from the drive for self-preservation arising out of a state of
being deprived of both security (conditions of life sufficiently risk-free as to make one’s difference from others inessential to one’s sense of worth and selfrespect) and sympathy.
47
significance of such ‘foundationalist’ validation208 and also avoids the option that human rights are
nothing more than a utopian illusion by optimistically emphasizing humanity’s capacity to shape,
recreate and improve itself. ‘To say that we are clever animals is not to say something philosophical
and pessimistic but something political and hopeful – namely, if we can work together, we can make
ourselves into whatever we are clever and courageous enough to imagine ourselves becoming.’209
Humanity reaching the Enlightenment utopia of a just and fair society seems to Rorty indeed not
that far-off a possibility: ‘Hume is a better adviser than Kant about how we intellectuals can hasten
the coming of the Enlightenment utopia for which both men yearned because Hume held that rulecorrected sympathy and not law-discerning reason is the fundamental moral capacity.’210
However, even though intuitively it would indeed seem that the goal of people behaving in a decent
and just manner is more attainable with this sentimentalist appeals, Rorty’s own account of the basis
and scope of moral knowledge ultimately prohibits him from claiming that human rights are a
morally desirable phenomenon, since he explicitly rules out the validity of appealing to the
independently verifiable criteria required to uphold any such judgement.
Although I find Rorty’s appeal on empathy rather persuasive, it still seems that his philosophical
validation of human rights rests solely on an appeal to empirical observations about the world. So
human rights do have legitimacy, without a very clear basis. He appears to weasel himself out of
philosophical demands to present a thorough, logically correct and rational argument structure for
his thesis by largely dismissing the importance of ratio in this domain – human right simply are there,
therefore they are there? Indeed, human rights merely ‘feel’ so self-evident, and the whole world
participates in its program.
208
He is possible to dismiss this because, according to Rorty, knowledge has become much less important to humanity’s self-image than it was two hundred
years ago; the attempt to found culture on nature, and moral obligation on knowledge of transcultural universals, also seems less important than it seemed in
the Enlightenment; ‘in short, moral philosophy has become a very inconspicuous part of our culture’, partly because of Darwin (human beings do not contain a
special added ingredient) and the historicism that dominated the intellectual world of the early nineteenth century had created an anti -essentialist and antitranscendental mood, with Hegel niche looking to the future rather than to eternity; this lead to new ideas about how to change things over stable criteria for
determining the desirability of change preferred in this tradition. Rorty (n135) 174
209
Rorty (n135) 175
210
Rorty (n135) 180-1. See also Annette Baier, A Progress of Sentiments: Reflections on Hume’s Treatise (Cambridge Mass. Harvard University Press 1991) 312
48
Conclusion
To paraphrase a certain comrade, ‘what is to be done?’ Based on the above, one can tentatively
conclude that, even though the human rights debate is lively and profound, there are too many
contentious areas to find agreement on essential issues relating to human rights theory. Having
studied the problems in contemporary human rights discourse and the critical responses to it, it is
difficult to envision which direction current human rights discussion will take. A promising
constructive attempt was taken by Flynn, who in a recent publication synthesizes Habermas’ work
on human rights with Rawls’ Law of Peoples and the concept of ‘unforced consensus’, trying to
evade the common accusations of Western human rights imperialism by decentering the West in
framing intercultural human rights dialogue. Necessary for this is both an openness to genuinely
learn from the other, and realizing that the current economic and political global inequality pose a
tough obstacle to any symmetrical dialogue on international human rights, especially since Rawls
influentially insisted on characterizing relations with other societies in terms of toleration, rather
than as potential partners from whom one could learn valuable things. As Flynn explains, the most
that the rational reconstruction of human rights constitution-making can show is that certain ‘core
but very abstract elements of the idea of human rights’ (i.e., the human rights principles) are
anchored within the practice of constitutional democracy. This grounding of the legitimacy of human
rights as a system must be supplemented by ‘the actual elaboration of specific rights in particular
contexts,’ which requires specific moral arguments .211
As Rorty puts it, perhaps the most philosophy can hope to do is to summarize our culturally
influenced intuitions about the right thing to do in various situations, and this summary is
effectuated by formulating a generalization from which these intuitions can be deduced, with the
help of noncontroversial lemmas, such as Rawls’s Difference Principle. Formulating such
summarizing generalizations increases the predictability, and thus the power and efficiency, of
governmental and international institutions, thereby heightening the sense of shared moral identity
that brings people together in a moral community.212
But if we are to believe the pessimists, fundamentally man is flawed. Humanist theory, the
conventional wisdom of the time, is not accurate, but solely a faulty belief. However, it does offer
hope, if not really extracting ourselves but to help dealing with our inevitable wallowing in the
swamp of our own making from which neither faith nor reason can extricate us; perhaps we should
just accept with good grace this destiny.213
Nevertheless, this, the possible absence of a plausible or even remote possibility of universal
progress effected by universal human rights doctrine, is not to say that one cannot lead a good life. It
is not necessary to believe that humans have the power to remake profound aspects of the world to
have a satisfactory life. Dienstag suggests that one should endorse the pessimistic philosophers who
call attention to the bleak state of existence and rather than hiding from the ugliness of the world, in
211
Flynn (n134) 101
Rorty (n135) 171
213
Theodore Dalrymple, Second Opinion: A Doctor's Dispatches from the British Inner City (Monday Books 2009) 129
212
49
order to perhaps discover how one can best withstand it.214 The aim of life does not have to be to
change the world, but to see it rightly.215 Or, as Habermas puts it, accepting the challenge to think
and act realistically without betraying the utopian impulse.216 After all, the proper place of human
rights discourse, though often abused by moralists, is to guide the moral politician, be they citizens
or leaders. All that philosophers can offer is a clarification of what we can regard as legitimate and
just in the domain of human rights themselves.217
214
Joshua Dienstag, Pessimism: Philosophy, Ethics, Spirit (Princeton University Press 2006)
John Gray, Straw Dogs (Granta Books 2002), introduction
Habermas (n27) 478
217
Benhabib (n4) 104
215
216
50
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