Towards a Philosophy of Human Rights

Two important trends are discernible in the contemporary philosophy of human rights. According to foundationalism, human rights have importantly distinctive normative grounds as compared with other moral norms. An extreme version of foundationalism claims that human interests do not figure among the grounds of human rights; a more moderate version restricts the human interests that can ground human rights to a sub-set of that general class, eg basic needs or our interest in freedom. According to functionalism, it belongs to the essence of human rights that they play a certain political role or combination of such roles, eg operating as benchmarks for the legitimacy of states or triggers for intervention against states that violate them. This article presents a view of human rights that opposes both the foundationalist and the functionalist trends. Against foundationalism, it is argued that a plurality of normative values ground human rights; these values include not only the equal moral status of all human beings but also potentially all universal human interests. Against functionalism, it is argued that human rights are moral standards—moral rights possessed by all human beings simply in virtue of their humanity—that may perform a plurality of political functions, but that none of these functions is definitive of their nature as human rights. The ensuing, doubly pluralistic, account of human rights is one that, it is claimed, both makes best sense of the contemporary human rights culture and reveals the strong continuities between that culture and the natural rights tradition. Distorted Projections The propensity of human beings to depict the gods, in both their appearance and manner of life, after their own image was a phenomenon well known to the philosophers of ancient Greece. One of them, Xenophanes of Colophon, jokingly observed that horses and cattle, given hands and the ability to draw, would no doubt portray the gods as horses and cattle * Quain Professor of Jurisprudence, Faculty of Laws, UCL, London, UK. Email: [email protected]. This is a moderately revised version of my inaugural lecture as Quain Professor of Jurisprudence, delivered at University College London, 19 January 2012. I am grateful to Ronald Dworkin, David Wiggins, Jeff King, and two anonymous referees for helpful written comments on the original lecture, although I have not been able to address all of the criticisms and suggestions they made. Current Legal Problems, Vol. 65 (2012), pp. 1–30 doi:10.1093/clp/cus013 The Author 2012. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] like themselves. On a rhetorical level at least, the idea of human rights has emerged as a ruling idea of our age, one that is often invested with a quasi-religious significance by its devotees. It should not surprise us that it too has not escaped distortion through a similar process of projection. And so one finds lawyers who unapologetically declare that a human right is nothing more than any norm denominated as such in a formally valid legal source, such as an international treaty. But this superficial view lacks both breadth and depth. It lacks breadth because many of the human rights laid down in law are not universally binding or are subject to eviscerating qualifications and reservations. More importantly, it lacks depth, because it passes over in silence the justification for including any item in human rights law in the first place. A supposed right does not automatically become a genuine demand of human rights morality merely by being set down in an official instrument, however impressive or widely adhered to, any more than a judicial decision constitutes a requirement of justice simply because it is issued by a body designated as a Court of Justice. This crude, legalistic reduction of human rights fails on its own terms, since the human rights laws it invokes typically presuppose an extra-legal conception of human rights, one that is a benchmark against which the laws themselves are to be assessed. It is no sufficient improvement on this uncritical legalism to construe human rights as embryonic legal rights of a certain kind, as defeasible grounds for legislation or legal rights-in-waiting, as it were. As Amartya Sen has argued, incarcerating human rights within a legal framework obscures the tremendous diversity of ways in which they are given shape and force in everyday life. These include non-legal channels through which ordinary citizens and non-governmental organizations, such as Amnesty International and Human Rights Watch, exert pressure on governments, transnational corporations, and international institutions. It also jars with the realization that some apparent human rights, such as the right to have a say in important family decisions, are only dubiously bases for the enactment of legal rights with matching content. Later I shall return to the limitations of conceptually tethering human rights to some institutional structure or role, whether specifically legal or not. But let me first introduce another tribe that has displayed unmistakable projectivist tendencies in relation to human rights. 1 AK Sen, ‘Human Rights and the Limits of Law’ (2006) 27 Cardozo Law Review 2913–27. See also J Tasioulas, ‘On the Nature of Human Rights’, in G Ernst and J-C Heilinger (eds), The Philosophy of Human Rights: Contemporary Controversies (Walter de Gruyter 2012) 17–59, 40–43. 2 John Tasioulas