The Political View

However one judges the respective merits of N, N*andN**, all remain firmly within the orbit of the Orthodox View. In recent years, howev-er, a significant number of philosophers have argued that orthodoxy ne-19 Sen offers the following nice example: “[T]he moral or political entitlement, which can easily be seen as a human right, of a somewhat slow speaker not to be snubbed in an open public meeting by a rudely articulate sprinter may well be important both for the self-respect of the leisurely speaker and for pub-lic good, but it is not likely to be a good subject for punitive legislation. The protection of that human right would have to be sought elsewhere. The effec-tiveness of the human rights perspective does not rest on seeing them invariably as putative proposals for legislation” (Sen 2004, 345).

glects the essentiallypoliticalcharacter of human rights. Advocates of this Political View advance one or both of the following broad theses. First, that human rights perform a distinctive political function or set of func-tions, and that it is the omission of any reference to this political role in the specification of the core concept of a human right that undermines the Orthodox View. This claim is primarily motivated by considerations relating to the distinctive importance of human rights as opposed to other standards, including the rights that properly feature in a liberal democratic constitution, and by considerations of fidelity to the wider human rights culture. Moreover, since this view is likely to result in a more parsimonious list of human rights than N or its variants, it is also presented as comparatively non-parochial. Second, human rights stand in need of a special kind of justification. It is neither necessary nor sufficient that they be grounded by ordinary moral reasoning, as re-quired byO; instead they must have a basis in an autonomous form of

“public reason”. Only in this way, it is claimed, can the global advocacy of human rights escape the charge of parochialism. Some advocates of the Political View endorse both claims (e. g. Rawls), others only one (e. g. Raz). In the rest of this chapter, I limit myself to addressing the first claim.

The labels I have used risk conveying the mistaken impression that the Orthodox View is “apolitical”. However,Nis certainly compatible with the proposition that, as a contingent matter, human rights have se-rious political implications in particular circumstances, e. g. they may re-quire us to create and maintain powerful and costly political institutions, such as the state. Indeed, a proponent ofNcan even accept certain nec-essary truths concerning the political significance of human rights. Thus, N together with the arguably necessary truth that states should respect principles of justice leads to the conclusion that they should respect human rights, assuming the latter constitute a sub-set of the principles of justice. The dispute between Orthodox and Political accounts of human rights pivots, instead, on whether a political role belongs to the essence of a human right, so that an adequate understanding of what a human right is involves conceiving of it as a right that plays the specified political role.

We can distinguish two importantly different versions of the Polit-ical View: thesub-set and the sui generisapproaches. Proponents of the sub-set approach rejectN-type accounts as seriouslyincomplete specifica-tions of the nature of human rights; instead, they regard human rights as a sub-set of the general class of universal moral rights picked out byNor

its variants, a sub-set distinguished by the political role such rights per-form. Because they presuppose a conception of universal moral rights that broadly conforms to an N-like specification, sub-set approaches are not root-and-branch deviations from orthodoxy. Advocates of the sui generisapproach, by contrast, do not presuppose a conception of uni-versal moral rights that broadly conforms to N; instead, they either re-ject, or are non-committal towards, the thesis that human rights are to be understood in terms of an underlying layer of universal moral rights.

This is because they wish to avoid encumbering the concept of human rights with various commitments that N-type rights supposedly bring with them, commitments they regard as alien to the contemporary human rights culture. Some proponents of the sui generis approach go even further, being sceptical or agnostic about the idea that human rights are helpfully understood as falling under the general concept of an individual moral right. Sui generis theories of this latter sort can be conceived as building a political element into a reductive account of human rights, whereas standards sub-set theories inject such an element into an Orthodox account.

What, then, are the political role(s) that various advocates of Polit-ical Views have attributed to the very nature of human rights? One fo-cuses on the addressees of human rights norms:

PV1. It belongs to the very nature of human rights that the primary re-sponsibility for compliance with them rests – on some versions, rests ex-clusively – with the officials of states, or state-like entities, or at least co-ercive institutional schemes. By “primary responsibility” is meant a re-sponsibility associated with the human right that does not have as its subject-matter some other responsibility associated with that right.

The state’s primary responsibilities under human rights can therefore in-clude the responsibility to prevent, make reparation for, punish, etc.

certain types of misconduct on the part of its subjects, provided that the misconduct is not itself characterized as a human rights violation.

If the relevant political entity bearing the primary responsibility fails to discharge it, other agents – citizens of the relevant state, other states, international institutions, etc. – may incur secondary responsibilities to respond to this initial breach in various ways.

Some variant of PV1 appears to be accepted by Charles Beitz (2009) and, prior to a change of heart, by Thomas Pogge (Pogge 2002, ch. 7, subsequently recanted in the 2007 edition). On Pogge’s version

of PV1, a “human rights” violation only exists when some failure on the part of officials of a coercive institutional scheme is present. Hence, we cannot automatically infer from the fact thatAhas torturedBsimply for the pleasure the former derives from doing so thatB’s human rights have been violated. A may well have violated a right of B’s not to be tor-tured, even an N-type right. But the act of torture will only be a human rightsviolation ifAis an official of the state or his conduct is suit-ably connected to a coercive institutional order inhabited byAand B.

One form of connection, stressed by Pogge, emerges from an affirma-tive answer to the question of whether the act of torture is a foreseeable and reasonably avoidable upshot of the imposition of that order. How-ever, it is doubtful that we have sufficient reason to countenance a dual-ism of human rights and universal moral rights of this sort unless the for-mer notion is given some additional, and more specific, political dimen-sion.

We should therefore turn to two other political functions in terms of which the Political View has been framed. Internally, human rights are interpreted as bearing on the legitimacy of a state or comparable insti-tution, constraining its right to rule (PV2); externally, they operate as standards whose violation is capable of triggering a case for international action (PV3):

PV2. It belongs to the very nature of human rights that they bear on the legitimacy of states or state-like entities, or at least political institutions of some more generally specified kind. “Legitimacy” is to be understood as justified authority, such that a political institution is legitimate to the extent that its laws (and other official acts) generate apro tantoobligation of compliance on the part of its putative subjects that is additional to whatever obligation they have to do what the law requires independent-ly of the existence of the law in question.

PV3. It belongs to the very nature of human rights that their violation is capable of generating apro tanto justification for some form of interna-tional response on the part of outside agents, such as other states, inter-national and regional institutions, non-governmental organizations, and so on. The nature of the international response that is the distinguishing mark of human rights is variously understood by different theorists: for some it is specifically military intervention, or sovereignty-limiting in-tervention more broadly construed, whereas for others it constitutes

an even more diverse group of responses, some of which are not aptly assimilated to the category of “intervention”.

Now, there is a general objection to the Political View in all three of its guises: it construes human rights as conceptually parasitic on the idea of some kind of political institution, whether it be the state (Beitz 1999;

Raz 2010a; 2010b), state-like entities (Rawls’ “peoples”), or coercive institutional schemes (Pogge).²⁰ PV3 goes beyond this by building into the notion of human rights the idea that they regulate certain ac-tivities within a system of states, or at least a system of political institu-tions of a specified kind – hence Beitz’s strikingly deflationary character-ization of human rights as “revisionist appurtenances of a global political order composed of independent states” (Beitz 2009, 197). But the lan-guage of human rights is often employed by people who do not accept the desirability of states (e. g. anarchists), or who reject any global order that is a system of states or state-like entities (e. g. cosmopolitans who favor a unitary world government). What is more, they often appeal to human rights principles in order to defend their views about the state and the state system. Why should we interpret their invocation of human rights standards in terms of institutions they reject, and reject precisely on human rights grounds? Of course, it is true that use of the concept of human rights, on a Political View, does not necessarily in-volveendorsingeither states or state systems. It may be that even though the distinctive nature of human rights is given by reference to their bearing on states in the ways specified by PV1-PV3, one can invoke them as standards of assessment without endorsing either states or the state system within at least ideal theory. But it would be peculiar, to say the least, to defend a version of PV if one did not believe that the language of human rights achieves its fullest expression in the context of assessments of states or relations within the state system.

Reflecting on anarchists and cosmopolitans who believe in human rights throws into sharp relief the difficulties arising from the statist character of Political Views. But it would be misleading to present those difficulties as stemming from the need to accommodate eccentric or minority ethical and political opinions. Even those who endorse the institution of the state may intelligibly see themselves as doing so on the basis of human rights principles that do not essentially incorporate any reference to that institution. Hence the ease with which they are pre-20 To save words, I shall mainly refer to “states” in characterizing PVs.

pared to make judgments involving human rights in situations in which a state dimension is totally absent or extremely tenuous. Orthodoxy bet-ter enables us to accommodate these possibilities by giving us a purer, moral concept of human rights, free of any such specific institutional entanglements. Insofar as an (additional) institutional dimension poten-tially enters into human rights discourse, it does so in a non-conceptual, flexible and context-dependent ways, for example: as part of the spec-ification of the socio-historical conditions over which particular human rights claims are supposed to hold,²¹and in deliberation concerning the concrete specification and practical implementation of human rights.

This is a preferable way of registering the human rights significance of the state or other political institutions, as opposed to the tight concep-tual linkage between human rights language and the state or state system enjoined by PV1 – 3. It maintains an important distinction between moral principles and the political structures that embody them, thereby respecting the great diversity of ways in which the language of human rights operates in ordinary discourse.

I have outlined PV1 – 3 in very broad terms. Individual theorists en-dorse more specific versions of them. Moreover, the three theses are logically independent. Some apparently endorse versions of all three (e. g. Beitz 1999; Cohen 2004 and 2006 and perhaps Rawls 1999), oth-ers are unambiguously committed to only two (e. g. Dworkin 2011 seems to combine PV1 and PV2) or just one (e. g. Raz 2010a and 2010b explicitly endorses PV3 and repudiates PV2, but may be commit-ted to some weak version of PV1). The combination of PV2 and PV3, according to which human rights are characterized as both conditions of internal legitimacy and limitations on immunity from international inter-vention (e. g. Rawls and Cohen), presents special difficulties. There ap-pears to be a discrepancy between the conditions of internal legitimacy and those of international intervention, such that the self-same list of rights is incapable of discharging both functions. Whether a state pos-sesses legitimacy depends on the morality of its actions in relation to its putative subjects. But whether it is liable, even in principle, to exter-nal interference depends on other considerations, including the value of political self-determination and facts about the geo-political environ-21 Thus, as I have already argued, most discussions of human rights claims today presuppose a context of modernity, and one of the facts of modernity is the ex-istence (or at least the availability though not necessarily the ultimate desirabil-ity) of something like the state system, see II.(b), above.

ment, such as the incidence of predatory behavior among states. In con-sequence, the mere fact that a state oversteps the bounds of its legitimate authority does not give rise to a reason, in any circumstances, for inter-ference by other states, just as not every personal wrong-doing gives others reason to prevent or punish it (Raz 2010a, 330). Subscribers to the combination of PV2 and PV3 might respond by specifying more precisely how human rights operate asdefeasibletriggers for external in-tervention, rather than all-things-considered justifications. However, leaving PV2 to one side, in the remainder of this chapter I offer some reasons for endorsing N over the versions of PV3 elaborated by John Rawls and Joseph Raz (sub-set theorists) and Charles Beitz (asui generis theorist). I will focus in particular on the desideratum of fidelity, since in the case of Raz and Beitz at least it is a major motivation for their em-brace of PV3.

Whether we accept PV3 will depend, in part, on the availability of a concrete and illuminating specification of the kind of “international re-sponse” the violation of human rights is said to justify. One such spec-ification is Rawls’ two-level view of political rights. To the extent that Rawls acknowledges rights possessed by all human beings simply in vir-tue of their humanity, they are the rights integral to a liberal conception of justice.²²Let us call themliberal constitutional rights.The universality of these rights follows from the Rawlsian claim that the most reasonable political conception of justice is a liberal one. Even though he describes some non-liberal societies – decent hierarchical peoples – as well-or-dered, and hence as equal members in good standing of the Society of Peoples, their deviation from political liberalism renders the concep-tions of justice upheld by these societies only “not fully unreasonable”

(Rawls 1999, 74). In terms of content, Rawls’ liberal constitutional rights map fairly well onto the schedule of rights in the Universal Dec-laration of Human Rights. But they are not human rights, which for Rawls are only a sub-set of liberal constitutional rights (both a sub-set of the rights themselves and, in some cases, of the content of particular rights). They are those liberal constitutional rights capable of generating 22 A liberal conception of justice consists of three “characteristic principles” that:

(a) enumerate “basic rights and liberties of the kind familiar from a constitution-al regime”, (b) assign these rights and liberties “a speciconstitution-al priority, especiconstitution-ally 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” (Rawls 1999, 14).

a defeasible orpro tantojustification for forceful intervention by well-or-dered societies against any society responsible for severe and widespread violations of those rights.

What is “forceful” intervention? Passing over the details of some ex-egetical controversies, I shall take Rawls to mean “military interven-tion”.²³ Under the heading of the kinds of “intervention” that can be justified by human rights violations Rawls includes not only military in-tervention 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 (Rawls 1999, 80). But on my interpretation, the coercive inter-vention account accords criterial status in characterizing human rights only tomilitary intervention. On this view, what it is for a right to be a human right is partly that its violation can act as a defeasible trigger for military intervention against the society that perpetrates the viola-tions. However, a society’s compliance with the full schedule of human rights apparently has the effect of ruling outall forms of inter-vention against it, including the non-military variety (Tasioulas 2002, 380 – 390).²⁴

Consider how Rawls’ theory fares against our desiderata. As defea-sible triggers of military intervention, human rights play an undeniably important role. Moreover, they are a proper sub-set of all rights – a

“special class of urgent rights” (Rawls 1999, 79) – and therefore occupy a distinctive place among the principles of justice. The comparative minimalism of Rawls’ schedule of human rights ministers to the non-parochialism requirement (Rawls 1999, 65). By admitting only a hand-ful of urgent rights as human rights, he markedly enhances the prospects of their finding favor among non-liberal societies. However, an obvious problem with Rawls’ view is a lack of fidelity to the wider human rights culture, since it results in a notoriously parsimonious schedule of human rights, limited to the following:

23 For a more detailed discussion of the interpretative issues, see Tasioulas 2009.

24 Rawls’ view on this last issue is not entirely clear, since he does not adequately spell out what he means by “justified and forceful intervention”. Thus, it is un-certain whether, according to Rawls, purely verbal criticism counts as a “dip-lomatic sanction”. For a persuasive argument that it does, see Nickel 2006, 271 f.

[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

[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