Online research in philosophy

Human rights law proclaims that all persons are the same, and have the same rights. Yet this revolutionary claim, which has overturned political regimes and confounded conventions, has itself been criticised. The criticisms have often come from a non-legal disciplinary background - anthropology, philosophy, sociology or others. Sceptics, postmodernists, feminists, cultural relativists and multiculturalists argue that this universalist view is too simple, or even invidious and oppressive and should be rejected. This chapter explores the universalist pretensions of human rights, the criticisms of this universalism, the legal modification of the simple universalist claim and finally discusses a proposal to resolve some of the tensions between these views.

There has been growing interest in, and scholarly attention to, issues and questions that arise within the subject matter domain we may call "human rights theory". See, in particular, Amartya Sen, "Elements of a Theory of Human Rights," 32 Philosophy & Public Affairs 315 (2004); James W. Nickel, Making Sense of Human Rights (rev. ed. 2006); Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts (2007); James Griffin, On Human Rights (2008); Nicholas Wolterstorff, Justice: Rights and Wrongs (2008). This essay - a version of which will appear in a multi-authored collection of essays to be published by Oxford University Press in 2009 - is intended as a contribution to human rights theory. These are the principal questions, or sets of questions, I address in the essay:1. What is the morality of human rights - by which I mean the morality that, according to the International Bill of Human Rights, is the principal warrant for the law of human rights?2. How does the morality of human rights warrant the law of human rights?3. Some human-rights-claims are legal claims, but some are moral claims, and some are both. What does a human-rights-claim of the legal sort mean? A human-rights-claim of the moral sort? And when does it make sense to think of a right that only some human beings have - children, for example - as a human right?4. Is there a plausible secular ground for the morality of human rights?5. At the end of the proverbial day, what difference does it make - why should we care - if there is no plausible secular ground for the morality of human rights?Comments and questions welcome.

The work of Jürgen Habermas has long been regarded as central to the development of social and political theory and philosophy in the late 20th century. With the publication of his latest book Between Facts and Norms, Habermas has signalled the importance of exploring modern legal theory to our understanding of democratic society. Habermas, Modernity, and Law brings together leading scholars from around the world to provide a clear introduction to this key development in Habermas's work. With chapters ranging from the possibility of valid law to discourse ethics and human rights, the contributors successfully integrate a broad range of Habermas's writings with his most recent thoughts on the place of the law in contemporary theory. Habermas, Modernity, and Law provides a fascinating overview to the work of Habermas and will be particularly valuable to students and professionals in the fields of European philosophy and social, political, and legal theory.

Introduction: the foundation of justice -- Practical reason and justifying reasons: on the foundation of morality -- Moral autonomy and the autonomy of morality: toward a theory of normativity after Kant -- Ethics and morality -- The justification of justice: Rawls's political liberalism and Habermas's discourse theory in dialogue -- Political liberty: integrating five conceptions of autonomy -- A critical theory of multicultural toleration -- The rule of reasons: three models of deliberative democracy -- Social justice, justification, and power -- The basic right to justification: toward a constructivist conception of human rights -- Constructions of transnational justice: comparing John Rawls's the law of peoples and Otfried Höffe's democracy in an age of globalisation -- Justice, morality, and power in the global context -- Toward a critical theory of transnational justice.

This essay is about the difficulties connected with grounding human rights philosophically in a multicultural context. These difficulties are argued to derive from the tension between our aspiration to universal validity and our shared belief in the constitutive role of life-forms, traditions, cultures, and vocabularies vis-à-vis our conceptions of justice. Rawls's and Habermas's approaches to the justification of human rights are then briefly reconstructed and assessed. A symmetrical distribution of strong and weak points is argued to obtain. In the light of this reconstruction, the author explores the potential of his judgment view of justice for providing a justification of the universality of human rights not vulnerable to the difficulties of the other examined approaches.

National Identity: Some Reflections on the Future of Europe,"(1) Habermas's specific theme is the `legitimation crisis' arising from the current situation within the European Community.(2) But the deeper philosophical point of the article is to develop a fundamental implication of Habermas's analysis of democracy in his new work, Between Facts and Norms (in which the article is included as an appendix):(3) Habermas argues that the normative content of democratic citizenship can be institutionalized without identity-formation in by a `national state' of the kind that still dominates our geopolitical landscape. The concept of democracy cannot be restricted to nationalist contexts; instead, by its very nature it points beyond such restrictions, and ultimately towards a global government that would ensure fundamental human rights worldwide. In the process, Habermas develops several ideas from his much earlier analyses of social integration and links them in revealing ways to his universalist conception of human rights. Finally, Habermas explicitly criticizes communitarian arguments that particularist criteria in immigration are permissible or required to maintain a political culture adequate for democratic citizenship.

Abstract. A special legal status is accorded to human rights within Western liberal democracies: They enjoy a priority over other human goods and are not subjected to the majoritarian principle. The underlying assumption—the idea that there are some human values that deserve special protection—implies the need for both a normative and a conceptual justification. This paper claims that neither can be provided. The normative justification is needed to support the priority of human rights over other human goods and to rank and balance conflicting human rights, but it can't be provided because of the fact of pervasive value pluralism, the fact that human values are many, incompatible and incommensurable. The conceptual justification is needed to avoid arbitrariness in the interpretation of human rights at the adjudication stage. Such a justification is impossible, however, as the concept of human rights, and the concepts used to justify them and to solve their conflicts are "essentially contested concepts." The paper concludes that, provided that the interpretation of human rights presupposes value judgements and political choices, the special legal status accorded to human rights is not justified.

The Rawls–Habermas debate is having a revival. In this article I argue that both philosophers develop different freestanding conceptions of political legitimacy, and show how they diverge when it comes to how political legitimacy can be justified. Habermas is looking for a deeper justification than Rawls will allow for. I then proceed to show how the different meta-ethical positions yield two different versions of democratic theory, focusing in particular on rights and popular sovereignty. I demonstrate how both conceive of the co-originality of private and public autonomy, and subsequently take issue with Habermas’ reading of Rawls. I argue that Rawls should not be understood as a natural rights theorist, that Habermas misunderstands the role of the original position, and that Rawls cannot be considered a strong constitutionalist. Thus, the real difference between Rawls and Habermas revolves around their different conceptions of political legitimacy.

Discourse ethics is originally conceived as a programme of philosophical justification of morality. This depends on the formal derivation of the moral principle (U) from non-moral principles. The moral theory is supposed to fall out of a pragmatic theory of meaning. The original programme plays a central role in Habermas's social theory: the moral theory, if true, provides good evidence for the more general theory of modernization. But neither Habermas nor his followers have succeeded in providing a formal derivation. This essay shows how and why Habermas's proposed derivation is impossible. As if aware of the lacuna, Habermas has recently suggested that (U) can be derived by 'abduction' rather than deduction. The proposal draws heavily on modernization theory; hence the only justification for (U) now available to him rests on premises drawn from that theory. The original programme of the justification of morality has thus given way to the weaker programme of the philosophical elucidation of morality. Further, since Habermas's moral theory is no longer justified independently of modernization theory, but at least partly by it, the moral theory cannot without circularity provide evidence for the modernization theory.

I argue that Habermas's proposed system of rights fails to offer an adequate account of the relation between rights and moral injury. In providing a non-moral justification for rights, Habermas's functional-normative argument excludes the moral intuition that persons are worthy of being protected from a class of injurious actions (i.e. false imprisonment, religious persecution). Habermas does offer clearly stated reasons for his proposed normative, yet non-moral foundation for a legitimate legal order, including the claim that the functional imperatives of modern legal systems cannot be reduced to morality. My positive thesis is that at least some rights are moral norms whose content and justification derive from a moral point of view informed by the idea of persons as free and equal. Key Words: autonomy • deontological reasons • Habermas • moral injury • proceduralism • rights.