Human Rights, Moral Not Political

HUMAN RIGHTS, MORAL NOT POLITICAL

by John Tasioulas*

Draft only for Oslo workshop – not to be quoted or circulated without permission 15th June 2008

1 Orthodox and Political Conceptions of Human Rights Even though it does not command unanimous assent, there is a conception of human rights that probably merits the epithet ‘orthodox’, at least in philosophical circles. It consists in two broad tenets that receive widely divergent interpretations at the hands of their adherents. The first addresses the essential nature of human rights, the conceptual question of what distinguishes human rights within the broader category of normative standards. In a familiar formulation, it holds that they are moral rights possessed by all humans simply in virtue of their humanity. They are not, like legal or conventional rights, generated by some institutional norm or practice. Nor, like moral rights grounded in desert, promises or marriage, do they depend on an accomplishment of the right-holder or a transaction in which they have engaged or a relationship to which they belong. The second tenet relates to the grounds of human rights, the considerations that constitute a norm as a human right. If we accept the first tenet as an accurate characterization of human rights, the second identifies which feature of our shared ‘humanity’ confers such rights on all humans. According to this second tenet, this feature – whether it be personhood or dignity, human interests or needs, or some other salient ethical notion - falls to be determined by ordinary moral reasoning. Let us call these tenets, respectively, WT and GT. By casting the combination of WT and GT as philosophical orthodoxy, I mean to underline its prevalence among the great majority of philosophers who otherwise disagree quite sharply on the answers to many other important questions about human rights. These further questions include the identity of the rights that properly count as human rights and the ethical notions that properly justify them. It is adherence to this orthodox conception that binds together philosophical writers on human rights as otherwise diverse as Aquinas, Grotius and Kant, and, in our own day, Alan Gewirth, James Nickel, Onora O’Neill, Allen Buchanan, and James Griffin. Agreement on the two tenets offers reassurance that these theorists are engaging with a common subject- matter, and not simply talking past each other. More optimistically, perhaps, it also fosters the hope that their disputes are amenable to a non-arbitrary resolution. In recent years the orthodox account has been challenged by a newly emergent family of ‘political’ theories of human rights that repudiate one or both of WT and GT (since WT and GT are logically independent, it is possible to accept one whilst rejecting the other). WT is rejected because it neglects the distinctively political character of human rights. On one view, the focus is on the primary bearers of the duties correlative to human rights. For example, Thomas Pogge has argued that it belongs to the essence of human rights that they regulate the behaviour of the officials of a state or other such political institution. In the absence of this connection with official conduct, no human rights issue arises.1 Alternatively, it may be the regulation of certain kinds of distinctively political status or activity that is treated as definitive

1*Fellow and Tutor in Philosophy, Corpus Christi College, Oxford; Associate Professor, Centre for Applied Philosophy and Public Ethics, Australian National University. of their nature. In this vein, some regard human rights as essentially benchmarks of political legitimacy, the fulfilment of which is a condition for a moral duty to obey the law of any given political community. For others, the are norms governing justifiable intervention among independent political communities: what is distinctive about them is that their violation, if sufficiently grave and widespread, generates a pro tanto justification for intervention by one community against the other. In opposition to GT, some adherents of the political conception of human rights reject the unmediated appeal to ordinary moral reasoning as either necessary or sufficient to establish the existence of human rights. On their view, it must be possible to justify human rights within a distinctively political form of discourse, one that appeals to considerations that reasonable others – whether fellow citizens or members of other societies – can and should acknowledge irrespective of radical divergence in religious, moral and philosophical beliefs. Human rights, proponents of this sort of view often contend, are to be established by appeal to public reason that appeals to distinctively political standards, not by invoking the purported deliverances of correct or objectively true morality simply as such. For all the differences between orthodox and political conceptions of human rights, two considerations soften the contrast between them. The first is that proponents of both views unite in rejecting interpretations of human rights according to which it is a condition of their existence that they already be institutionally recognized or actually enforceable. Both can accept, for example, that the institution of slavery in ante-bellum America constituted a gross human rights violation, even though the human right not to be enslaved was neither enforceable nor legally enshrined. The second is that there are myriad senses in which the orthodox conception recognizes the ‘political’ character of human rights and of the reasoning that establishes them. Consistently with accepting WT, one may acknowledge that human rights typically have serious political implications for the duties of officials, the legitimacy of states, political membership and the justifiability of intervention. But the orthodox view does not identify the essential nature of human rights by reference to specifically political duty-bearers or roles. Equally, orthodox theorists need not deny that the reasoning that establishes human rights must appeal to considerations such as the fact that some kind of political community is ordinarily a sine qua non of a decent human life. The political dimension here forms part of the subject-matter of deliberation about human rights; contrary to the opponents of GT, it does not constitute a plateau of ‘public reason’ distinct in kind from the terrain in which ordinary and philosophical moral controversy is played out.

2 Three Desiderata: Distinctive Importance, Fidelity and Non-Parochialism In adjudicating between the orthodox and political conceptions of human rights, we should keep in mind some desiderata that an adequate account of human rights must satisfy. Here I want to elaborate three of them, each of which plays an important role in motivating political theories of human rights. First, an adequate account of human rights must reflect their distinctive importance. Both terms are crucial, and a proper insistence on them gives us reason to oppose the thesis, advanced by Leszek Kolakowski,2 that the assertion of a human right is reducible to the claim that some principle forms part of natural law (or, more

See T Pogge, ‘How Should Human Rights be Conceived?’ and my criticism in J Tasioulas, ‘The Moral Reality of Human Rights’, in T. Pogge (ed), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor (Oxford University Press, 2007), pp.95-98 generally, part of an objective morality whose dictates are discoverable by reason). Not every requirement of objective morality is important (e.g. fairly trivial promises), but human rights are generally thought of as important, even if we need not go so far as to claim that they are the most important moral norms or, with Ronald Dworkin and Bernard Williams, that their violation is the worst thing that governments do. Equally, not everything that has importance in morality is a matter of human rights. The distinctiveness of human rights within the class of important moral considerations is normally articulated in two stages. First, human rights are a subset of the broader category of moral rights. However else we understand rights, they belong to the individualistic part of morality, in that the violation of a right necessarily wrongs a specific other person, the right-holder, in the way that violations of other norms, e.g. ‘imperfect’ duties to give to charity, which have no correlative right-holder, do not. But human rights are not simply to be equated with the class of all moral rights, with the result that they monopolize the entire province of justice. On the orthodox view, they are the subset of moral rights possessed by all simply in virtue of their humanity. On the political conception, by contrast, reference must be made to the distinctive political nature of such rights when picking them out within the class of all rights. Second, a credible account of human rights must exhibit an appropriate level of fidelity to the human rights culture that has flowered post-1945, especially as it is crystallized in what is known as the International Bill of Human Rights: the Universal Declaration of Human Rights of 1948 (UDHR) and the International Covenants on Economic, Social and Cultural Rights (ICESCR) and Civil and Political Rights (ICCPR), both of which came into force in 1976. This is a complex criterion, seems the culture of human rights is itself complex and is subjet to rival self-understandings on the part of its adherents. Therefore, meeting this desideratum had better be compatible with offering a critical perspective on the legal, political and other manifestations of the existing human rights culture. So, for example, it is not the case that an adequate theory must rubber-stamp all the ‘human rights’ that can be gleaned from the key human rights declarations and conventions. Perhaps there are compelling reasons for not recognizing some of them, including the oft-derided human rights to ‘the highest attainable standard of physical and mental health’ (ICESCR, Art 12(1) and to ‘periodic holidays with pay’ (Art. 24 UDHR). However, it would be a mistake to regard the demand for a critical perspective as simply in tension with the pursuit of fidelity. As a general matter, any criticism of existing human rights practice is bound to strike us as pointless – or, at the very least, premature – if it does not reflect an appreciation of the ideals that motivate that practice; an element of fidelity provides the necessary critical purchase on the discourse of human rights. Keeping faith with the human rights culture also requires a sensitivity to widespread anxieties about it that are felt by its more reflective participants, including concerns about the seemingly unprincipled proliferation of human rights claims. Indeed, there is a tension within the human rights culture between widespread beliefs about the distinctive importance of human rights, on the one hand, and the endless proliferation of human rights claims, on the other. Still, a compelling, non-sceptical account of human rights must endorse a sufficient number of the rights widely recognized as such in the human rights culture, especially those judged to be most central. And it must give an account of the nature, significance and justification of human rights that furnishes a general backdrop against which the post-

2 ‘There is no substantial difference between proclaiming “the right to life” and stating that natural law forbids killing’. L Kolakowski, Modernity on Endless Trial (1990) p.214. 1945 human rights culture is broadly intelligible, irrespective of the substantial errors and distortions it may also contain.3 Finally, a successful account of human rights must offer a cogent response to the widespread anxiety that the morality of human rights is simply an ethnocentric universalization of ‘Western’ or ‘liberal’ values, one that illegitimately marginalizes the no less valid claims of non-Western and non-liberal traditions. Call this desideratum that of non-parochialism. Bernard Williams has articulated something like it by saying: “It seems to me sensible, both philosophically and politically, to make our views about human rights, or at least the most basic human rights, depend as little as possible on disputable theses of liberalism or any other particular ideology.”4 Although compliance with Williams’ suggestion is one way of satisfying the non-parochialism desideratum, it is unduly constraining if taken to be a formulation of the desideratum itself. For this would apparently rule out ab initio, a liberal cosmopolitan viewpoint according to which liberalism is not only objectively correct, but universally mandatory, regardless of how controversial it may be. If the thought is that not all the rights liberals are apt to endorse count as human rights, then it is presumably already catered for by the need to elucidate the distinctive importance of human rights within the broader category of moral rights. Instead, the real demand in this vicinity is a weaker, yet still exacting, one: that an account of human rights must be such that people who subscribe to a diversity of cultures might all reasonably come to endorse those rights, hence it cannot simply be an appeal to the rights recognized as universal by adherents to any particular ethical culture. This desideratum rules out, or at least creates seemingly insuperable difficulties for, avowedly ethnocentric interpretations of human rights, such as the one advocated by Richard Rorty.

3 Rawls and the Coercive Intervention Account (CIA) The most prominent defence of a thoroughgoing political conception of human rights is to be found in some sketchy and scattered remarks in John Rawls’ The Law of Peoples. Although Rawls rejects both WT and GT, in this paper I shall focus on his rejection of the former. For Rawls it is inaccurate, or at best misleadingly incomplete, to characterize human rights as rights possessed by all humans simply in virtue of their humanity. To the extent that he acknowledges rights of this kind, they are the rights upheld by societies that adhere to a liberal conception of justice.5 This follows from his thesis

3 According to Joseph Raz, ‘political’ conceptions of human rights are those which aim ‘(a) to establish the essential features which contemporary human rights practice attributes to the rights it acknowledges to be human rights; and (b) to identify the moral standards which qualify anything to be so acknowledged’. J Raz, ‘Human Rights without Foundations’, in S Besson and J Tasioulas (eds.), The Philosophy of International Law (OUP, forthcoming), p.10. On this view, even orthodox theories count as ‘political’ provided they aspire to exhibit a due fidelity to the existing human rights culture, since condition (a) broadly recapitulates the desideratum of fidelty. Rather than identify political theories by reference to any such meta-theoretical condition, I identify them in terms of a substantive commitment to a ‘political’ conception of the nature and grounds of human rights that conflicts with WT and/or GT. This seems to me to capture what is most radical about such political theories; by contrast, many of the orthodox or ‘traditionalist’ theorists, including the two that Raz takes as his main targets in his paper (Gewirth and Griffin), would likely subscribe to (a) and (b). 4 B Williams, In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton University Press, 2005), p.74. 5 A liberal conception of justice consists of three ‘characteristic principles’ that: (a) enumerate ‘basic rights and liberties of the kind familiar from a constitutional regime’, (b) assign these rights and that the most reasonable political conception of justice is a liberal one. This conclusion holds universally, for all societies irrespective of differences in political and cultural traditions, although unfavourable socio-economic conditions may prevent that conception being implemented immediately. Even though he describes some non- liberal societies – decent hierarchical peoples – as well-ordered, and hence as equal members in good standing of the Society of Peoples, their deviation from political liberalism renders the conceptions of justice upheld by these societies only “not fully unreasonable”. Now, in speaking of the rights recognized under a liberal conception of justice, Rawls thinks it is unnecessary to introduce the locution ‘human rights’. Instead, we can refer with greater accuracy to ‘liberal constitutional rights’, i.e. rights that should form part of the constitutional structure of a polity informed by a liberal conception of justice. Why, then, do we need to speak of human rights at all, given that the mantle conferred by orthodoxy on human rights seems to be inherited by liberal constitutional rights? The answer is that the idea of human rights singles out a proper sub-set of liberal constitutional rights (both a sub-set of those rights and, in some cases, of their normative content). It does so by reference to the political role that this category of rights performs in regulating certain relations among societies (more precisely, certain relations between well-ordered peoples – liberal and decent societies – and non-well- ordered societies). Specifically, it belongs to that component of political morality that regulates forceful (i.e. armed or military) intervention among distinct political communities. Although Rawls is not sufficiently clear or explicit about the matter, the following conception of a human right emerges: a human right is a moral right (a) possessed by all human beings, and (b) susceptible to such grave and widespread violations by a political community, that it can generate a defeasible or pro tanto justification for forceful intervention by well-ordered societies in order to bring the violations to an end. Let us refer to this as the Coercive Intervention Account of human rights, or CIA for short (the acronym is nicely evocative of a certain influential strand of human rights thinking in recent US foreign policy). An exegetical problem we strike up against here is uncertainty as to what exactly Rawls means by ‘forceful intervention’. Under the heading of the kinds of ‘intervention’ that can be justified by human rights violations he includes not only military intervention but also, for example, diplomatic and economic sanctions. Thus, a society that complies with human rights (and is non-aggressive) is immune from ‘justified and forceful intervention’, whether this takes the form of diplomatic or economic sanctions or, at the limit, military force.6 But on my interpretation, the CIA accords criterial status to only one kind of intervention, i.e. military intervention. On this view, what it is for a right to be a human right is that it is a right whose violation can act as a defeasible trigger for military intervention against the society that perpetrates the violations; however, a society’s compliance with the full schedule of human rights has the effect of ruling out all forms of intervention against it, including the non-military variety.7 liberties ‘a special priority, especially with respect to the claims of the general good and perfectionism values’, and (c) guarantee to all citizens ‘the requisite primary goods to enable them to make intelligent and effective use of their freedoms’. J. Rawls, The Law of Peoples (Harvard, 1999), p.14. Because Rawls thinks there is a variety of conceptions of justice that count as liberal, in this sense, it is possible that they will differ in the rights they recognize. On the other hand, he also believes that justice as fairness, the specific liberal conception of justice worked out in A Theory of Justice, is the most reasonable such conception – so, presumably, the rights recognized by it enjoy a canonical status. 6 J Rawls, The Law of Peoples, p.80. Some commentators dispute this interpretation, insisting that Rawls has the more expansive interpretation of ‘intervention’ in mind throughout.8 And, indeed, it may seem odd to make only those rights whose violation is capable of generating a defeasible case for military intervention the sole human rights-based grounds for justifying any kind of intervention at all, as Rawls does. But not only does my interpretation fit Rawls’ text better at crucial points,9 it also seems to provide an explanation for the notoriously truncated list of human rights that he endorses. These are limited to the following:

[the] right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly).10

Had Rawls adopted a wide reading of ‘intervention’ in his characterization of human rights, then a rather more generous schedule of human rights would have been the natural upshot. Of course, Rawls does almost nothing to establish that if human rights are conceived as triggers for military intervention, his list would emerge as the correct one. But, pre-reflectively, a number of individual entitlements touted as human rights in major international instruments are not human rights on Rawls’ interpretation. For example, it is rather hard to conceive of circumstances in which even a defeasible case for military intervention would arise simply because a state’s laws flouted entitlements to equal pay for equal work (UDHR, Art 23(2)), entry to higher education on the basis of merit (UDHR, Art 26(1) or enjoyment of the arts (UDHR, Art 27(1)). Still, we should not underestimate the difficulty of justifying any tolerably precise list of human rights even on the account of the latter that I am attributing to Rawls. After all, assuming we believe that military intervention can ever be pro tanto justified in response to rights violations, it is not obvious that we have access to reliable judgments as to when this is the case. How clear is it, for example, that rights against discrimination of the grounds of sex, race and religion, which are absent from Rawls’ list, could never generate a respectable pro tanto case for military intervention? What if a state that engages in systematic discrimination, say by excluding women from higher education, the professions and government jobs, has a small population and only trifling military power at its disposal? What if, in addition, its rulers are unelected and unpopular, and there is a readily identifiable and enlightened alternative leadership that with external military intervention could assume power decades earlier than would otherwise be the case?11 I do not say the

7 A similar view appears to be advanced by Ronald Dworkin, in Is Democracy Possible Here? (Princeton, 2006), pp.______. However, he seems to make the pro tanto justifiability of either military intervention or economic sanctions the litmus test of a right’s character as a human right. 8 W Hinsch and M Stepanians, ‘Human Rights as Moral Claim Rights’, in R Martin and D A Reidy (eds), Rawls’s Law of Peoples: A Realistic Utopia? (Blackwell, 2006). 9 For example, in one crucial passage the phrase ‘forceful intervention’ is contrasted with economic sanctions: “Is there ever a time when forceful intervention might be called for [against a non-aggressive society that upholds slavery and ritual human sacrifice]? If the offences against human rights are egregious and the society does not respond to the imposition of sanctions, such intervention in the defense of human rights would be acceptable and called for”. J Rawls, The Law of Peoples, p.94 n.6. 10 J Rawls, The Law of Peoples, p.65. 11 Conversely, is it so clear that a state that abolished private property would, in virtue of that fact alone, be an eligible target for military intervention? Perhaps Rawls intends to limit human rights to answer in such a case is clear-cut; on the contrary, the point is precisely that it is not, which only serves to underscore the argumentative lacuna in Rawls’ account. Putting these difficulties to one side, consider how Rawls’ theory fares against the desiderata set down in section 2. As defeasible triggers of military intervention, human rights play a vital role. Moreover, they are a proper sub-set of all rights – a ‘special class of urgent rights’12 – and therefore occupy a distinctive place among the principles of justice. The brevity of Rawls’ schedule of human rights ministers to the non-parochialism requirement. As Rawls puts it: “Human rights, as thus understood, cannot be rejected as peculiarly liberal or special to the Western tradition. They are not politically parochial”.13 Rawls is committed to the idea that his list of human rights would be endorsed both in an original position comprising only liberal peoples and in a subsequent original position that includes decent but non- liberal peoples. Of course, he does little to vindicate these claims. However, by admitting only a handful of urgent rights as human rights, the prospects of their finding favour among non-liberal societies is presumably markedly enhanced. And Rawls’ realistic utopia, the ‘Society of Peoples’, is correspondingly pluralistic: not only liberal societies, but also decent societies, are equal members in good standing, both types of society being able to affirm the Law of Peoples (including the doctrine of human rights) not merely as fixing the terms of a modus vivendi, but for moral reasons generated by their respective conceptions of political justice. Indeed, under the Rawlsian dispensation, even benevolent despotisms, although not well-ordered because they fail to give their members an adequate role in political decision-making, also benefit from the norm of non-intervention, insofar as they respect human rights. Still, in the context of Rawls’ overall theory, the verdict on the non- parochialism count is not unequivocal. Against the gain achieved by its minimalist content, one must weigh three other factors. First, the doctrine of human rights is an extension of a broader liberal conception of justice according to which there are universal rights possessed by all humans – albeit not called human rights, but liberal constitutional rights – many of which are rejected by non-liberal societies. Second, according to the liberal conception of justice from which the doctrine of human rights is elaborated, even those non-liberal societies that can affirm the list of human rights endorsed by Rawls (decent hierarchical peoples) or at least reliably conform with them (benevolent despotisms) turn out to be, at best, only “not fully unreasonable”. Third, the category of states Rawls designates “outlaw states”, which are aggressive or engage in widespread violations of human rights against their own members, would not accept the Law of Peoples and its doctrine of human rights. Yet these are precisely the states that are most vulnerable to military intervention according to that doctrine. There is a serious question, then, whether the gain secured by its minimalist content is, so far as non-parochialism goes, outweighed by the parochialism of the liberal pathway Rawls follows in justifying his schedule of human rights. The question is exacerbated when we observe that, in line with his rejection of GT, he does not claim that political liberalism is an objectively correct doctrine; instead, the conception of reasonableness Rawls deploys is derived from a liberal democratic public political culture that is the fixed horizon of his inquiry.14 But to deal with this question those rights whose extensive and grave violation not only generates a pro tanto case for forceful intervention, but where in addition there is some significant likelihood in modern conditions that the pro tanto might mature into an all-things-considered case. 12 J Rawls, The Law of Peoples, p.79. 13 J Rawls, The Law of Peoples, p.65. 14 See J Tasioulas, ‘From Utopia to Kazanistan: John Rawls and the Law of Peoples’, Oxford Journal of Legal Studies (2002), pp.390-395. adequately, one must engage with the Rawlsian case contra GT, which I shall not attempt to do in this paper. Finally, Rawls’ theory fails to track important dimensions of the human rights culture. Most obviously, many rights that figure in the International Bill of Rights are not included in his schedule of human rights: the freedom of opinion, expression and the press, the freedom of assembly and association, rights to political participation, education, health care and social services, rights against sex-based discrimination, among others. Many of these excluded rights are characterized by him as ‘liberal aspirations’ rather than human rights proper.15 This translates as the claim that they are genuinely universal rights possessed by all – liberal constitutional rights – but not strictly speaking human rights, because their violation by a political community, no matter how extensive or grave, does not generate a defeasible case for military intervention against it. Now, it might be countered that Rawls’ theory, in spite of initial appearances, exhibits a significant level of fidelity to the tradition. After all, the documents that comprise the International Bill of Human Rights have been accepted by many states only subject to deep-going reservations. Moreover, the minimalism of his account addresses the widespread sentiment internal to the human rights culture that the proliferation of human rights claims needs to be reined in on some principled basis. Rawls’ theory, it might be suggested, offers fidelity together with an urgently needed dose of criticism, but criticism that draws on the inner well-spring of the human rights culture in order to address some of its deepest problems. Obviously, the force of this claim will depend on a comparative judgment; we will need to examine whether other accounts of human rights, including those that adhere to WT, can offer greater fidelity without unduly sacrificing critical purchase. The accusation of infidelity can assume another form, however, one that relates not to the meagre number of human rights countenanced by Rawls’ theory, but rather its account of their nature. The complaint is that his theory fails to recognize that the discourse of human rights fulfils many important functions besides that of providing a justification for forceful intervention. To this, the reply will come that human rights do much more in Rawls’ theory than justify forceful intervention. They also, inter alia, play an important role in (i) justifying intervention short of military intervention, e.g. economic sanctions, diplomatic criticism, etc, (ii) setting a bench- mark for the internal legitimacy of societies, (iii) fixing the target and cut-off point of the duty of assistance owed to burdened societies. Moreover, nowhere does Rawls suggest that the duties correlative to human rights, or their normative implications more generally, bear exclusively on peoples or state-like political communities. Human rights also constrain and guide the activities of individuals, corporations, non- governmental organizations and regional and international organizations. All this despite the fact that it is precisely their role in justifying military intervention by liberal and decent peoples that distinguishes them as human rights. So, the second objection should be revised: in light of the great variety of functions performed by human rights standards in the ordinary culture of human rights, does not the CIA distort our understanding of human rights by conferring criterial status on the justification of forceful intervention? Although human rights violations have recently formed a key part of the justification offered for foreign

15 For Rawls’ discussion of human rights instruments, see The Law of Peoples, p.80, n.23. Among his contentions is that only Articles 3 to 18 of the Universal Declaration of Human Rights are human rights proper. For the discrepancy between Rawls’ schedule and that extractable from leading human rights covenants, see J Tasioulas, ‘From Utopia to Kazanistan: John Rawls and the Law of Peoples’, Oxford Journal of Legal Studies (2002), pp.381-383. intervention in Haiti, Somalia, Kosovo and Iraq, humanitarian intervention remains comparatively rare, and its justification sits alongside many other functions performed by the language of human rights. This objection is compounded by an additional observation: that Rawls is ill-served by his military-interventionist account of human rights when he attempts to explain other important roles played by human rights, e.g. in assessing the internal legitimacy of political regimes or setting the cut-off point of the duty of assistance owed to burdened societies.16 And this is hardly surprising: why should an account of human rights fashioned with the justification of military intervention in mind offer suitable guidance when addressing other problems to which human rights are ordinarily thought to be relevant? At this point in the dialectic, I am strongly inclined to diagnose Rawls’ deviation from WT as largely verbal, but not therefore inconsequential. For Rawls does seem committed to the existence of a category of rights aptly characterized by WT, i.e. liberal constitutional rights. Human rights, for him, are only a sub-set of these rights. But this creates serious problems of fidelity, since the human rights culture approximates more closely to his much ampler list of liberal constitutional rights, partly because it seems to form no part of the understanding of human rights within that culture that they are essentially triggers for military intervention. This gives us reason to adopt the following piece of verbal legislation: Rawls’ liberal constitutional rights should be re-labelled ‘human rights’, while his minimalist list of human rights, being a proper sub-set of the former, should be named ‘basic human rights’, with the adjective ‘basic’ conveying the thought that their distinctive importance within the general class of human rights consists in the fact that they are triggers for military intervention. This would exonerate Rawls from the accusation that he is illegitimately commandeering the notion of a human right, which is widely thought of as a right possessed by all in virtue of their humanity, in order to assign it a technical role within the context of his theory. After all, it is not as if he thinks that those human rights instruments that recognize rights beyond those on his list should be amended. Accepting this solution has the upshot that the most fundamental debate between Rawls and orthodox human rights theorists turns on the acceptability of GT. Not that this means that WT would now be immune from attack. On the contrary, the process of rejecting GT may provide the political theorist with new ammunition against WT. One way this might be so is as follows. Rejecting GT in favour of a grounding of human rights in ‘public reason’ might be shown to be the best way of satisfying the non-parochialism desideratum. But a public reason-derived doctrine of human rights might validate a smaller number of human rights norms than are ordinarily treated as such, and the nature of these norms in turn may be aptly characterized by the CIA. The argument will, therefore, turn on a trade-off of non- parochialism against fidelity. It is just such a trade-off that Rawls’ doctrine of human rights can be seen as recommending: a curbing of the traditional aspirations of the human rights movement (in terms of the number and content of human rights) in order to secure a non-parochial account of the human rights that remain.

4 Raz and the Broad Intervention Account (BIA) But there is another, more moderate, line of response to the problems we have identified with Rawls’ theory. This retains the Rawlsian idea that intervention is the

16 The first claim is advanced in J Raz, ‘Human Rights without Foundations’, the second in J Tasioulas, ‘Global Justice without End?’. key to the nature of human rights – therefore, it persists in the rejection of WT – but seeks to cure the deficiencies of fidelity created by Rawls’ CIA by adopting a more expansive account of intervention. A number of philosophers have recently endorsed this approach, which we may call the Broad Intervention Account (BIA).17 However, in what follows I shall focus on the version advanced by Joseph Raz in a wide- ranging and provocative article entitled ‘Human Rights without Foundations’. I focus on Raz partly because he contends that the real issue between orthodox and political accounts of human rights turns on the acceptability of WT (and certain related issues), not GT, and that the rejection of WT is best justified without repudiating GT. This runs directly counter to my provisional conclusion in the previous section. We may usefully begin by contrasting Raz’s position with Rawls’. Raz preserves what he considers to be Rawls’ key insight, the conceptual yoking together of human rights and state sovereignty:

I will take human rights to be rights which set limits to state sovereignty, in that their actual and anticipated violation is a (defeasible) reason for taking action against the violator in the international arena, even when – in cases not involving (the) violation of either human rights or the commission of other offences – the action would not be permissible, or normatively available on the grounds that it would infringe the sovereignty of the state. (p.10).

Although this is broadly the Rawlsian idea, two points are worth registering. First, Rawls does not endorse the proposal of linking human rights to ‘state sovereignty’ as such, since he identifies the latter notion with the crude realist idea that states are normatively unencumbered both domestically and externally. This is why, in the Law of Peoples, he refers to well-ordered societies as ‘peoples’ that do not claim, let alone enjoy, sovereign status. And it is also why the word ‘state’ is used only in connection with ‘outlaw states’, which insist on their ‘sovereignty’ by virtue of their willingness to violate the Law of Peoples should they judge it in their interests to do so. Still, for all these terminological differences, Rawls essentially conceives of human rights as setting limits to a society’s freedom from non-intervention by external agents, and it is ultimately this role that Raz aims to invoke in characterizing human rights. Second, Raz appears to move rapidly from claiming that the violation of human rights is capable of generating a pro tanto case for intervention to the idea that the legal norm of state sovereignty should reflect this limitation on the freedom of states. Otherwise put, he seems to assume that the moral doctrine of state sovereignty should also be the operative legal standard (p.12). But, insofar as the latter is a norm of public international law, it may quite appropriately need to reflect other considerations (including systemic considerations concerned with the promotion of a tolerably stable international environment), so that intervention is legally precluded even in situations in which there is a pro tanto moral case in its favour. This might be because, for example, such a case would almost invariably be defeated all things considered or because permitting such interventions would unintentionally encourage unjustified, self-serving interventions, and so on. The significance of this last point is somewhat diminished, however, by the first major way in which Raz’s theory differs from Rawls’. He operates with a far more expansive interpretation of ‘intervention’ in characterizing the nature of human rights, one that encompasses the whole gamut of interventionary acts, from the most

17 Beitz; Hinsch & Stepanians; Skorupski; Dworkin. coercive (military invasion) to non-coercive acts (purely verbal admonitions).18 Acts of intervention would therefore presumably include not only military action or economic sanctions, but also such activities as the formal condemnation of rights violations, the making of compliance with human rights a condition of aid, calling on states to report on their human rights record, and so on. Because Raz interprets ‘intervention’ broadly when characterizing the nature of human rights, he avoids the peculiar implication of Rawls’ theory we previously noticed, i.e. that compliance with human rights, understood as triggers for military intervention, renders a society immune from all forms of intervention. Raz’s second difference from Rawls is that he repudiates the way the latter attempts to employ the intervention-based account of human rights as a key criterion of the internal legitimacy of a regime. The point here is that the question whether the putative subjects of a state have an obligation to obey its laws is not to be answered by reference to the same standards as the question whether outside powers have a pro tanto case for intervening against that state. Whether or not Raz is justified in claiming that Rawls elides this distinction, he is surely right to distinguish the two questions and to suggest that different standards apply in answering them. Finally, although the title of his paper is apt to obscure this, Raz still cleaves to the orthodox view that human rights need to be established by means of ordinary moral reasoning, albeit reasoning that takes into account the features of the geo- political environment that bear on the fashioning of an appropriate norm of state sovereignty. He therefore embraces GT and, in so doing, rejects Rawls’ thesis that human rights must be vindicated by a conception of public reason that is discontinuous with ordinary moral reasoning. Instead, human rights are to be identified by means of a three-step procedure, that involves establishing: (a) the existence of a universally held individual moral right (in broadly contemporary circumstances), (b) that this right imposes duties on states under some conditions, and (c) that states do not enjoy immunity from interference by other states regarding their compliance with those duties (p.24). In sum:

Individual rights are human rights if they disable a certain argument against interference by outsiders in the affairs of a state. They disable, or deny the legitimacy of the response: I, the state, may have acted wrongly, but you, the outsider are not entitled to interfere. I am protected by my sovereignty. Disabling the defence ‘none of your business’, is definitive of the political conception of human rights. They are rights which are morally valid against states in the international arena, and there is no reason to think that such rights must be universal. (p.18)

One immediate reaction to Raz’s BIA is that its difference from the orthodox view, with respect to the desiderata set out in section 2, is insignificant. The latter begins and ends at step (a), whereas the former also encompasses (b) and (c). Like Rawls, therefore, Raz is committed to a fairly extensive list of universal (in contemporary circumstances) moral rights, but he withdraws the label ‘human rights’ from some of them, although presumably far fewer than in the case of Rawls. Yet what do steps (b) and (c) really add? It is hard to think of any human right advocated

18 “Unlike Rawls who took rights to be human rights only if their serious violation could justify armed intervention, I take them to be rights whose violation can justify any international action against violators, provided that they are actions which normally would be impermissible, being violations of state sovereignty”. (p.11, fn 20) by orthodox theorists which imposes no duties whatsoever on states, not even the second-order duty to refrain from interfering with attempts by the primary duty- holders to comply with their duties. But if (b) entails that the primary bearer of the duties correlative to human rights must be the state, then it is susceptible to familiar objections.19 And, as for condition (c), the interpretation of ‘intervention’ is now so expansive, it might be thought to introduce little that an orthodox theorist could not accept. I shall return to this question in the final part of this article, which responds to attempts to show that the BIA exhibits greater fidelity to the tradition of human rights than the orthodox account. Here is a second, less conciliatory, line of response. Condition (b) and, especially, (c) make the existence of human rights dependent on ‘the contingencies of the current system of international relations’ (p.22). The worry is that their existence is thereby rendered excessively dependent on such contingencies. Consider (b). As Raz observes, ‘[w]ith the growth of multinational corporations, and of transnational law and organisations, this… condition will be bypassed in many cases’ (p.24). But is it plausible to suggest that a universal moral right ceases to be a human right simply because the primary responsibility for its fulfilment has shifted to non-state organizations? This seems to put the institutional cart before the normative horse, rendering human rights an excessively superstructural notion by binding it too closely to changes in systems of global governance. Shifts in geo-political conditions may also exert a profound influence on judgments bearing on (c). For example, the sudden acquisition of nuclear weapons by most states would presumably justify an increase in the level of state immunity from intervention and, correspondingly, an attenuation of the number of human rights norms or of their content. Conversely, the emergence of more stable geo-political environment, one super-intended by a benevolent and widely-trusted hegemonic state, might justify significantly lower levels of state immunity and a corresponding increase in the number and demandingness of human rights norms. It seems peculiar to suppose that human rights are at the mercy of shifting and adventitious geo-political conditions to such an extent. A way round this last problem, suggested by John Skorupski, is to make the existence of human rights depend on an in-principle judgment as to the justifiability of intervention in response to extensive violations of the right in question. The in- principle judgment would itself have to be keyed to certain geo-political conditions (e.g. the existence of a state system, relatively enduring facts about the behaviour of states, etc), but it would not be sensitive to all of the many and fluctuating factors that bear on an all-things-considered judgment as to the proper extent of state immunity. This response has merit, not only as a solution to the problem identified, but as part of an insistence that, in order to be effective moral norms with the kind of importance we usually ascribe to them, human rights standards must exhibit a sufficient level of generality. Yet it is questionable that this response really disposes of the original objection. One way of renewing the latter is by observing that, in virtue of (b) and (c), human rights are conceptually tethered to the existence of a system of states and the regulation of intervention among them. Only if there exist states that can be the bearers of correlative duties, and only if the issue of intervention by one state against

19 For a powerful critique of the statist thesis that the primary bearers of the duties correlative to human rights are states, see O. O’Neill, ‘Global justice: whose obligations?’, in D.K. Chatterjee (ed), The Ethics of Assistance: Morality and the Distant Needy (CUP, 2004). This critique seems to apply a fortiori to the attempt to import the statist assumption into the very characterization of what a human right is. another on the grounds of rights violations can arise, does it make sense to speak of human rights. But why should this be so? It would have the consequence that certain quite intelligible, if not widely adopted, positions in political philosophy would manifest conceptual error. Those guilty of such error would include believers in human rights who were also political anarchists or advocates of a cosmopolitan global state. Where the anarchism or cosmopolitanism was itself justified by such proponents by an appeal to human rights norms, the conceptual error would only run deeper.20 Of course, this consideration is hardly decisive: opponents of WT, like Rawls and Raz, could respond that the anarchist and cosmopolitan arguments can be easily re-cast as appealing to ‘liberal constitutional rights’ or ‘universal moral rights’ without any real loss of content. But this terminological constraint heightens the suspicion that political theorists are illegitimately commandeering the term ‘human rights’, making it play a technical role in their theory of intervention, rather than using it with the sense it has in the human rights culture.

5 A Dilemma of Fidelity Our provisional conclusion is that, insofar as its difference from the orthodox conception is not trivial, the BIA binds the concept of a human right to commitments that ordinary users of that term need not incur or, indeed, may consciously reject, without betraying any misunderstanding of that concept. In this section, I wish to consider a response on behalf of the proponent of the BIA which denies that the difference between the two conceptions is insignificant. According to this response, WT impales its adherents on a dilemma of fidelity: read one way, it leads to an unduly meagre list of human rights, while read another way, it is over-inclusive. If so, the difference between the orthodox and political conceptions of human rights is not negligible and tells in favour of the latter. The first objection to the orthodox conception depends on reading it as importing a commitment to an ahistorical universality: ‘moral rights possessed by all humans simply in virtue of their humanity’ must mean that there is an invariant set of moral rights possessed by all human beings at all times throughout history. Whatever the relevant schedule of human rights is, therefore, it must be just as imputable to Stone Age cavemen as to denizens of advanced, twenty-first century societies. Perhaps we can intelligibly conceive of cavemen as possessing a right not to be tortured, but how can we reasonably ascribe to them rights that refer to activities that are simply not conceivable or feasible in their historical epoch, such as rights to a fair trial, to an adequate standard of living, or to political participation? The orthodox account, therefore, suffers from a problem of fidelity: ‘natural rights’, those that are meaningfully possessed even in a state of nature, are not to be equated with ‘human rights’. Defenders of the political conception of human rights, by contrast, by linking human rights to the regulation of intervention among states in broadly contemporary geo-political conditions, reject the requirement of ahistoricity that supposedly precludes the orthodox account from encompassing some of the rights that have been fundamental to the human rights tradition.21 Now, defenders of the orthodox account have various responses to this objection, even if they endorse the ahistorical interpretation of universality. One is a

20 A version of this problem arises for Rawls’ theory, as well, insofar as it is premised on the existence of state-like entities, such as peoples. Moreover, Rawls has a problem with a certain kind of pacifist who does not countenance even a pro tanto case for military intervention, and refuses to do so on human rights grounds. 21 (ref to Beitz, ‘What human rights are’). move towards highly abstract specifications of authentic human rights. Some orthodox theorists believe that, ultimately, human rights boil down to a handful of very general norms which are genuinely ahistorically valid. James Griffin, for example, refers to three ‘highest-level human rights’, those of autonomy, liberty and minimum provision. The more specific rights familiar from human rights instruments can usually be treated as implications of these rights in the circumstances of modernity. Another response engages in idealization. Even cavemen, the argument goes, possess a right to a fair trial, because the existence and content of human rights is fixed by reference to the ideal (but humanly attainable) conditions for furthering the interests that underlie them. It is just that the duties potentially associated with a given individual’s right may never crystallize – never come to apply to anyone – because the circumstances do not arise (for the reason that they cannot do so). Neither response is free of difficulties. The abstraction strategy carries the unwelcome implication that almost all of the standard rights in human rights documents are not ‘really’ human rights at all, since they lack the requisite universality. Instead, they are at best only more specific rights derived from a handful of bona fide human rights. To avoid this implication, it is necessary to develop an interpretation of WT that eschews the atemporal rendering of universality for the lower-level human rights. But then atemporal universality will cease to be an essential feature of human rights. The idealizing strategy, on the other hand, severely attenuates the connection between rights and duties. It is one thing to contend that a human right exists even if the duties associated with it have not been allocated or their precise content determined at any given time.22 It is quite another to say that a certain kind of right can be possessed by individuals even if there is no prospect of any correlative duties arising for many centuries. Moreover, its appeal to ideal conditions invites the accusation that the determination of the existence and content of human rights is rendered hopelessly indeterminate, hostage to the play of inarbitrable utopian fantasies about possible future developments in science and technology and in forms of social, economic and personal life. The shortcomings of both responses lead me to favour a different response to the challenge of under-inclusiveness, that of abandoning the requirement of an ahistorical universality. On this view, when speaking about the rights possessed by all humans simply as human, it is appropriate to impose, whether explicitly or implicitly, constraints on the historical period to which reference is being made. My proposal, then, is that in understanding the human rights referred to by the contemporary human rights movement, the relevant historical period should normally be taken to be that of modernity. This does not mean that ancient Greek slaves or medieval serfs did not have human rights, since on a number of eligible and illuminating specifications of the relevant historical period they clearly did. Of course, it must be admitted that the nature of ‘modernity’ is itself an endlessly contested matter. Nevertheless, one advantage of this view, in contrast with the idealizing approach, is that it furnishes a more determinate context within which to make the assessments of feasibility that most theories of human rights deem to be necessary. It is therefore less susceptible to the accusation of utopianism than the idealizing interpretation of WT, an accusation Bernard Williams memorably rendered by observing that ‘one can imagine oneself as Kant at the court of King Arthur, disapproving of its injustices, but exactly what grip does this get on one’s ethical or political thought?’23

22 See J. Tasioulas, ‘The Moral Reality of Human Rights’ 23 B. Williams, ‘Human Rights and Relativism’, in In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton, 2005), p.66. Now, Joseph Raz asserts that my temporally-constrained account of universality effectively amounts to a form of the BIA rather than a renovated version of WT: ‘In this way accounts of human rights become almost indistinguishable from accounts of international political morality in so far as they involve respecting some individual rights’ (p.19). But this is not so, as the points made in the last three paragraphs of the previous section show. Preparedness to relativize talk of human rights to the conditions of modernity is a far cry from conceiving of their essential nature as justifying interventions that would otherwise be precluded by the principle of state sovereignty. Another criticism of the temporally-constrained interpretation of WT, which is also discernible in Raz’s essay, is that it is impaled on the second horn of the dilemma of fidelity that confronts orthodox theories. By allowing human rights to be indexed to a specified historical time-frame – in particular, by indexing them to the conditions of modernity – the theory issues in a conception of human rights that is overly permissive, one that amounts to a general theory of the rights-based norms that apply in the modern world. One result, for example, is that rights that do not standardly feature in canonical human rights instruments, such as the right to have promises performed, end up counting as human rights. This is, most obviously, an apparent problem of fidelity. But it is also a problem regarding distinctive importance of human rights, especially when the norms in question, such as the right not to be pinched, are generally thought to be too trivial to count as human rights.24 And, looking ahead, it may also render compliance with non-parochialism harder to achieve insofar as it expands the number of human rights norms beyond figure prominently in the International Bill of Rights. But I think that this line of argument is multiply flawed. To begin with, it is vulnerable to an ad hominem observation: given the very wide-ranging interpretation of ‘intervention’ deployed by adherents of the BIA, it is hardly obvious that they too are not impaled on the second horn of this dilemma. More positively, we can say the following. First, even within a given historical time-frame we can distinguish moral rights that people possess simply in virtue of (the relevant aspect) of their humanity from those they possess as a result of membership of a particular community or some transaction in which they have engaged or relationship to which they belong. Along these lines, we may reasonably expect to distinguish between human rights and the rights that one enjoys as a member, say, of a liberal state, as well as allowing for diversity in the schedule of rights that may be recognized by liberal states. Second, we should show greater care than Raz does not to conflate the question which human rights exist as a matter of morality with which rights have figured, or should figure, in legal and political human rights instruments. In particular, we need a suitably flexible understanding of the demands imposed by the desideratum of fidelity. It seems perfectly intelligible, for example, for someone to believe that there is a human right to have promises performed without believing that this right, or all of its normative implications, should be protected by the state. Some promises are just not the state’s business, such that the state does not even have a pro tanto reason to monitor their performance, let alone any such reason to enforce compliance. Moreover, the rights that are enshrined in human rights instruments, even if they are the state’s business, are likely to be those that have been grossly violated in the past, or against whose possible future violation it is felt necessary to erect some institutional barriers, or regarding which it is thought that there is a real likelihood of achieving international consensus. Hence the absence of the right to breath from human rights instruments, along with the right to have promises performed. So, even if the position I have

24 See K Eddy article. described is committed to a human right to have promises performed, it does not follow that this results in a troubling lack of fit with the human rights culture, as there may be compelling reasons why this right has not figured in the International Bill of Rights. Another way to put the point is as follows. A moral theory of human rights should exhibit fidelity to the legal culture of human rights, but only in light of a suitable theory of the legalization (and, more broadly, the politicization) of human rights. We conspicuously lack any adequate theory of this kind. But even so, we may be able to give a plausible explanation of why some rights that count as human rights on an orthodox view have not figured in leading human rights instruments that is compatible with their being human rights as a matter of morality. But even if this is true of the right to have promises performed, what about the right not to be pinched? Doesn’t it strain credulity to call this a human right? It doesn’t figure in canonical lists of human rights (lack of fidelity), and the best explanation for this seems to be its comparatively trivial nature (lack of distinctive importance). Now, it seems very doubtful that the right not to be pinched is a trivial right, as many women who have had to endure incorrigibly sexist work environments would readily testify. But even if we think of it as not an especially important right, this is not a debilitating criticism. In the first place, we probably best treat this right as an emanation of a more general right to bodily security, and the latter is an important right, even if not all its normative implications are especially important, let alone of equal importance.25 Secondly, there is the ad hominem consideration that proponents of the political conception, such as Beitz and Raz, themselves recognize that it is a consequence of their theory that human rights do not all have great importance. Defenders of the orthodox view should, I think, embrace a similar view, rejecting Raz’s stipulative characterization to the contrary of traditional accounts of human rights. Instead, they should distinguish between more important and less important human rights, as well as more important and less important human rights violations. Nor does this entail a cavalier approach to the first desideratum, that of articulating the distinctive importance of human rights. For surely it is distinctive importance enough that, on the interest-based account of human rights that I favour, they constitute a category of rights marked by the following feature: that the interests of each individual right-holder suffice, within a given historical time-frame, to impose a duty on others variously to protect, respect or promote those interests.

6. Conclusion The rejection of WT by the proponents of political theories of human rights considered in this paper is unacceptably revisionist. Its radical version, the CIA, suffers from a lack of fidelity to the human rights culture, a defect only exacerbated by the fact that its chief proponent, John Rawls, propounds a doctrine of liberal constitutional rights that is far more congruent with the long-standing aspirations of that culture. Its watered-down version, the BIA, renders the idea of human rights overly superstructural, binding human rights too tightly to shifting geopolitical circumstances and contingent institutional structures. Of course, its motivation for doing so is to achieve greater fidelity to the contemporary human rights culture, thereby correcting the chief drawback of the CIA. But I have argued that with a historically-sensitive interpretation of universality, fidelity can be secured without embracing a specifically political understanding of human rights, whether in line with either the CIA or the BIA. In other words, sensitivity to historical circumstances is an independent feature of a theory of human rights and not necessarily the outgrowth of a

25 Cf Raz on ‘core rights’ in TMF. prior commitment to a political characterization of their nature that focusses on their supposed role as triggers for interventions that would otherwise be prohibited by a norm of state sovereignty. Of course, I do not claim to have provided a conclusive vindication of WT against the swelling tide of political theories of human rights. The proponents of such theories may well be able to re-launch their attack on WT. But my suspicion is that, taking their cue from Rawls, they should do so as part of a combined assault on WT and GT. For example, as I suggested towards the end of section 3, it may be that the non-parochialism desideratum is best satisfied by rejecting GT and that, in light of that rejection, the best account of the nature of human rights turns out to displace WT in favour of a political characterization. But the defensibility of GT is a topic for another occasion. What I have attempted to show in this article is that the stand-alone attack on WT by the two leading political theorists of human rights does not pose a serious threat to orthodoxy. It also follows from our discussion that those moderate political theorists of human rights who are attracted to the rejection of WT, but do not wish to take the radical step of rejecting GT, should re-consider the tenability of their position.