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Published online by Cambridge University Press: 30 October 2015
The main point of contention between “naturalistic” and “political” theories of human rights concerns the need to invoke the notion of moral human rights (i.e., rights that all human beings have simply by virtue of their humanity) in justifying the system of human rights included in the international practice. Political theories argue that we should bypass the question of the justification of moral human rights and start with the question of which norms and principles should be adopted to regulate the practice. Naturalistic theories, by contrast, claim that a convincing answer to the latter question will have to presuppose some answer to the former. An adequate justification of the system of human rights included in the international practice, according to naturalistic approaches, will ultimately have to rely on some appeal to moral human rights. I call this view the “Priority of the Moral over the Political.” In this essay, I argue that the Priority of the Moral is harder to dismiss than political theories of human rights suggest, and that before we can assess the plausibility of these theories, they need to say more in defense of their claim that they can do without this view. I then consider the two main objections that seem to have motivated many philosophers to abandon the naturalistic approach to the justification of human rights in favor of the political one. I conclude by suggesting that a variant of naturalistic justification, the basic-needs account, has the resources to address these objections.
1 Tasioulas, John, “The Moral Reality of Human Rights,” in Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? ed. Pogge, Thomas (Oxford: Oxford University Press, 2007), 75 Google Scholar; Beitz, Charles R., The Idea of Human Rights (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar, ix; Raz, Joseph, “Human Rights Without Foundations,” in The Philosophy of International Law, ed. Besson, Samantha and Tasioulas, John (Oxford: Oxford University Press, 2010), 321.Google Scholar
2 Buchanan, Allen notices this ambiguity in his recent book The Heart of Human Rights (Oxford: Oxford University Press, 2013), 10–11.CrossRefGoogle Scholar
3 Griffin, James, On Human Rights (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar; Miller, David, National Responsibility and Global Justice (Oxford: OUP, 2007)CrossRefGoogle Scholar; Miller, David, “Grounding Human Rights,” Critical Review of International Social and Political Philosophy 15 (2012): 407–27CrossRefGoogle Scholar; Tasioulas, John, “On the Foundations of Human Rights,” in Philosophical Foundations of Human Rights, ed. Cruft, Rowan, Matthew Liao, S., and Renzo, Massimo (Oxford: Oxford University Press, 2015), 45–70.CrossRefGoogle Scholar
4 Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 2002)Google Scholar; Beitz, The Idea of Human Rights; Raz, “Human Rights Without Foundations”; Raz, Joseph, “Human Rights in the Emerging World Order,” Transnational Legal Theory 1 (2010): 31–47 Google Scholar; Cohen, Joshua, The Arc of the Moral Universe and Other Essays (Cambridge, MA: Harvard University Press, 2010)Google Scholar, chaps. 9, 10. It is worth mentioning that Rawls does not focus so much on the practice of international human rights, but on the way in which the foreign policy of liberal societies should be organized.
5 See below, pp. 144–45.
6 Some draw the distinction between naturalistic and political justifications of human rights in a different way. According to Pablo Gilabert, naturalistic justifications are those that identify human rights with claims that individuals have against each other, whereas political justifications are those that that identify human rights with claims that individuals have against specific institutional structures, such as governments or states ( Gilabert, Pablo, “Humanist and Political Perspectives on Human Rights,” Political Theory 39 [2011]: 439–67Google Scholar, at 439–40). According to Allen Buchanan, naturalistic approaches are interested in the justification of moral rights, whereas political ones are interested in the justification of international legal rights ( Buchanan, Allen, “Human Rights,” in The Oxford Handbook of Political Philosophy, ed. Estlund, David [New York: Oxford University Press, 2012], 279–97Google Scholar, at 280–81). Both of these characterizations seem to me misleading. In response to Gilabert, it is worth noticing that defenders of the naturalistic approach do sometimes subscribe to the view that human rights are primarily held not against individuals but against states or governments (e.g., Miller, National Responsibility and Global Justice). In response to Buchanan, we should notice that political approaches are not exclusively interested in the question of legal rights. They are open to the idea that certain human rights are justified because they trigger specific responses by given agents operating at the international level, but should not become legal rights. As Beitz makes clear, the “repertoire of strategies of action that might be open to these various agents is heterogeneous, ranging from the legal to the political and from the coercive to the persuasive and consensual” (Beitz, The Idea of Human Rights, 198. See also pp. 38–41).
7 Remember that I am here using the expression “moral human rights” as a term of art to refer to important moral rights that can be attributed to human beings simply in virtue of their human nature.
8 Beitz, The Idea of Human Rights, 102.
9 Nickel, James W., Making Sense of Human Rights (Malden, MA; Oxford:Blackwell, 2007).Google Scholar
10 Buchanan calls this the “mirroring view” (Buchanan, The Heart of Human Rights; Buchanan, Allen, “Why International Legal Human Rights?” in Philosophical Foundations of Human Rights, ed. , Cruft, , Liao, and , Renzo, 244–62).Google Scholar I prefer to avoid this label because it suggests that our list of human rights will have to mirror our list of moral rights. This is not true for the reasons mentioned in the text. I should stress that Buchanan is aware of the problem and does not intend to invite this misunderstanding. However, the label he chooses seems to encourage it, as do some of Buchanan’s formulations.
11 This is how theories that subscribe to the Priority of the Moral normally proceed. However, accepting the Priority of the Moral does not commit one to accept i–v. The Priority of the Moral simply states that human rights are ultimately grounded in a group of fundamental moral rights that individuals possess simply by virtue of their humanity.
12 Griffin, On Human Rights, 240.
13 Ibid., 195–96.
14 Buchanan, “Human Rights,” 281.
15 Buchanan, “Why International Legal Human Rights?” 246.
16 Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts.
17 As Griffin correctly points out, matters of justice can be important without thereby being matters of human rights. His example (which he brings up in the context of his discussion of fairness) is that of two top executives who are equally competent and efficient, but receive different pay in virtue of the fact that one of them is related to the company’s CEO. While a significant injustice, this does not seem to be a human rights violation (Griffin, On Human Rights, 41–42).
18 Of course, saying that the notion of human rights should be abandoned by philosophers is not saying that it should also be abandoned by human rights activists, lawyers, and politicians. To the extent that appealing to the rhetoric of human rights helps these actors to prevent serious harm and further the cause of justice, they are justified in doing so, but the existence of human rights could not be vindicated in this way any more than the existence of the tooth fairy could be vindicated by appealing to the value of tooth fairy talk for the well–being of children. For a defense of this view, see Victor Tadros, “Rights and Security for Human Rights Sceptics,” in Philosophical Foundations of Human Rights, ed. Cruft, Liao, and Renzo, 442–58.
19 Rawls, The Law of Peoples, 67. One way to challenge the claim that respect for human rights is the criterion for membership in the Society of People is to point out that Rawls does not grant membership to what he calls “benevolent absolutisms,” i.e., regimes where human rights are respected out of the benevolence of the rulers, but not legally guaranteed. (Thanks to Yann Allard-Tremblay for pressing this point.) Different strategies can be employed to resist this challenge. Some argue that the exclusion of benevolent absolutisms is unwarranted: to the extent that benevolent absolutisms respect human rights, they should be recognized as members in good standing of the Society of Peoples, alongside liberal and decent societies ( Tan, Kok-Chor, Toleration, Diversity, and Global Justice [University Park, PA: Penn State Press, 2010], 38 Google Scholar). Others explain the fact that benevolent absolutisms should be treated differently by appealing to the idea that what warrants membership in the Society of Peoples is robust respect for human rights, i.e., respect “guaranteed by stable institutional constraints” ( Valentini, Laura, Justice in a Globalized World [Oxford: Oxford University Press, 2011], 82 CrossRefGoogle Scholar). These complications can be bracketed for the purposes of this paper, but see Reidy, David, “Political Authority and Human Rights,” in Rawls’s Law of Peoples, ed. Martin, Rex and Reidy, David (Malden, MA: Blackwell, 2006), 169–88CrossRefGoogle Scholar, for an interesting discussion of the problem.
20 Rawls, The Law of Peoples, 81.
21 Beitz, Charles R., “Rawls’s Law of Peoples,” Ethics 110 (2000): 669–96CrossRefGoogle Scholar, at 685.
22 Rawls, The Law of Peoples, 79.
23 Beitz, The Idea of Human Rights, 110.
24 At least at times, Beitz seems to be taking this view (ibid., 10–12, 104–6).
25 As I mention above, the role that political approaches attribute to human rights within the international practice is not limited to justifying interference with state sovereignty. It might be argued that the distinctive role of human rights is rather to set conditions for the legitimate authority of states. (According to this view, states lose their power to create moral obligations for their subjects when they violate or fail to protect human rights). For ease of exposition, in the rest of the essay I will focus the role of human rights as triggers for international intervention, but my arguments will apply mutatis mutandis to views that understand human rights as benchmarks of political legitimacy.
26 Raz defends a version of this view.
27 Beitz, The Idea of Human Rights, 103.
28 Beitz seems aware of this problem and makes clear that we should not simply assume that the human rights practice should be treated as morally binding. Whether we have reasons to treat it in this way is a question to be examined in its own right (ibid., 11).
29 But see Sangiovanni, Andrea, “Justice and the Priority of Politics to Morality,” Journal of Political Philosophy 16 (2008): 137–64CrossRefGoogle Scholar, for an interesting attempt to defend the idea of a critique “immanent to the practice,” one that does not presuppose the existence of pre-institutional standards of justice.
30 Raz, “Human Rights Without Foundations,” 328; Beitz, The Idea of Human Rights, 109, 115–20.
31 Ibid., 110, italics mine.
32 For a discussion of how the presence and the strength of pro tanto reasons can be identified in this context, see Sangiovanni, Andrea, “Beyond the Political-Orthodox Divide: The Broad View,” in Human Rights: Moral or Political? ed. Etinson, Adam (Oxford: Oxford University Press, forthcoming).Google Scholar
33 I am grateful to Joseph Raz for pressing this point in conversation.
34 This is how Raz characterizes the political view in his “Human Rights Without Foundations,” 322.
35 Ibid., 328.
36 Particularly if we follow Raz and Beitz (as I think we should) in understanding human rights as triggers not only for military intervention but also for weaker responses (such as diplomatic sanctions and acts of formal censure), the view that violations of human rights are a necessary condition for such responses seems implausible. Suppose, for example, that Italy decided to allow the torture of nonhuman animals, or the destruction of all of its art collections. If so, international intervention by way of formal censure would be permissible, although no human rights would be violated.
37 Nagel, Thomas, “Personal Rights and Public Space,” in Concealment and Exposure (New York: Oxford University Press, 2002), 31–52 Google Scholar, at 33–34. The view that rights can have this sort of noninstrumental value is also defended by Frances Kamm and Warren Quinn ( Kamm, F. M., Intricate Ethics [New York: Oxford University Press, 2007]CrossRefGoogle Scholar, chap. 7.8; Quinn, Warren, Morality and Action [Cambridge: Cambridge University Press, 1993]Google Scholar, chap. 7).
38 Hampton, Jean, The Intrinsic Worth of Persons (New York: Cambridge University Press, 2007)Google Scholar, chap. 4.
39 Renzo, Massimo, “Human Needs, Human Rights,” in Philosophical Foundations of Human Rights, ed. Cruft, , Liao, , and Renzo, , 570–87.Google Scholar In this paper, I defend the view that human rights in addition to having instrumental value, also have noninstrumental value. John Tasioulas pursues a similar strategy, since his justification for human rights appeals both to interests (though these interests for Tasioulas are not limited to the opportunity to fulfill basic needs) and to the importance of human status; John Tasioulas, “Human Rights, Legitimacy and International Law,” American Journal of Jurisprudence, 58 (2013): 1–25, at 3–6.
40 The different roles that the notion of human dignity can play as a foundation of human rights are examined in Waldron, Jeremy, “Is Dignity the Foundation of Human Rights?” in Philosophical Foundations of Human Rights, ed. Cruft, , Liao, , and Renzo, , 117–37.Google Scholar
41 I should make clear that in my view, naturalistic accounts are also constrained by the requirement of being sufficiently faithful to the practice of human rights as we know it. However, these accounts can be more revisionary given that the practice does not play a central role in how they approach the questions of the nature and the justification of human rights. Since the practice plays such a role within the political view, it is particularly troubling for this view when its implications are at odds with the practice.
42 Rawls, The Law of Peoples, 68.
43 Raz, “Human Rights Without Foundations,” 323.
44 I borrow these examples from Tasioulas, John, “On the Nature of Human Rights,” in The Philosophy of Human Rights Contemporary Controversies, ed. Ernst, Gerhard and Heilinger, Jan–Christoph (Berlin: De Gruyter, 2012), 17–59.Google Scholar
45 Griffin, On Human Rights, 133.
46 Renzo, “Human Needs, Human Rights,” 575–76.
47 Tasioulas, “On the Nature of Human Rights,” 40.
48 Raz, “Human Rights Without Foundations,” 323.
49 The reason why the basic needs account requires that we have the opportunity to have our basic needs met, as opposed to requiring that those needs are actually met, is that people can decide not to avail themselves of the opportunity without failing for this reason to have a minimally decent life. To see this point, contrast the case of someone who decides to join a religious order that requires her not to leave a certain building with the case of someone who is forced not to leave the same building against her will.
50 I further defend the basic needs view in my paper “Human Needs, Human Rights.” The philosopher who has done the most to develop the view is David Miller (Miller, National Responsibility and Global Justice, chap. 7; Miller, “Grounding Human Rights”). The view overlaps to some extent with the capabilities approach defended by Nussbaum, Martha (Women and Human Development: The Capabilities Approach [Cambridge: Cambridge University Press, 2000]CrossRefGoogle Scholar; Creating Capabilities: The Human Development Approach [Cambridge, MA: Belknap Press of Harvard University Press, 2011]) and Sen, Amartya (“Elements of a Theory of Human Rights,” Philosophy and Public Affairs, 32 [2004]: 315–56).CrossRefGoogle Scholar
