In search of the normative core

What are we talking about, when we talk about human rights? No doubt various senses attach to the phrase “human rights”. Some are purely descriptive, characterizing human rights as features of psycholog-ical, social or institutional reality. In inquiries conducted by historians, sociologists, political scientists or lawyers, “human rights” may refer to a belief-system prevalent in certain Western cultural circles or to the rights ascribed by a positive legal order to all under its jurisdiction.

But there is another, and arguably explanatorily prior, way of concep-tualizing human rights, according to which they are normative, or rea-son-giving, standards of a certain kind. So understood, human rights need be neither widely-credited nor actually embodied in any social practice or legal institution. But even when construed normatively, might there not still be a multiplicity of concepts of human rights, each with a respectable foothold in ordinary usage? It would seem so.

However, this does not render futile the enterprise of seeking to identify the core or focal concept, the basic normative idea that enables us to make the best sense of what we pre-reflectively identify as the discourse and practice human rights – or the human rights culture, as I will some-times call it.¹This is the core concept insofar as it constitutes the under-lying normative idea that animates this culture in its diverse manifesta-tions, with many other prominent concepts of human rights being prof-itably interpretable as modifications of it or otherwise dependent upon it.

The desiderata to which we should attend in seeking to identify the core normative concept of a human right are a function of what it is for a philosophical theory to make sense of the culture of human rights. In the sort of philosophical project I wish to pursue, this consists in giving an account of the nature, grounds and practical significance of human 1 On focal concepts, see Finnis 2011, ch.1.

rights that both jibes with that culture and presents human rights as a defensible species of reason-giving standard, one that earns a place in our general repertoire of normative considerations. Under this general heading, three more specific desiderata have particular salience.

First, a theory of human rights must capture thedistinctive importance of this class of normative standards. Not every reason-giving consider-ation, or even moral considerconsider-ation, is important; nor is every important normative consideration a human right. Distinctiveness militates against equating the concept of human rights with some pre-existing normative concept, while importance excludes interpretations of human rights that make them readily defeasible by normative considerations of other kinds. The second desideratum is fidelity to the human rights culture that has emerged post-1945, especially as it is crystallized in the Interna-tional Bill of Human Rights: the Universal Declaration of Human Rights of 1948 (UDHR) along with the International Covenants on Economic, Social and Cultural Rights (ICESCR) and Civil and Polit-ical Rights (ICCPR) that came into force in 1976. Fidelity is a complex desideratum, not least because the culture of human rights is multi-fac-eted and harbors rival self-understandings, let alone outright deficien-cies. So its satisfaction had better be compatible with criticism of that culture. But if criticism is to get a grip on its intended object, it must reflect a grasp of the central normative idea that underlies the culture.

It is important to stress, however, that fidelity does not simply reduce to the quantitative matter of maximizing the number of items gleaned from the key human rights instruments that can be interpreted as broad-ly matching (or claiming to match) the content of norms properbroad-ly re-garded as “human rights” by the theory’s lights. Still, one would expect that norms roughly corresponding in content with the paradigmatic items in such instruments – for example, the human rights against tor-ture and enslavement – will be interpretable as (claiming to be) “human rights” according to a theory that displays the requisite level of fidelity.

Any discrepancies between the theory and the instruments are to be ex-plained in ways consistent with the hypothesis that the former captures the normative idea behind the familiar instruments. Finally, a successful, non-sceptical, theory of human rights will present such rights as stand-ards with genuine reason-giving force. Moreover, because of the claim to universality inherent in the discourse of human rights, a cogent re-sponse must be offered to the widespread anxiety that the discourse sim-ply imposes “Western” or “liberal” values in a way that unjustifiably

marginalizes or overrides the claims of non-Western and non-liberal tra-ditions. Call this desideratum that ofnon-parochialism.

Success in this philosophical project is by no means assured: the human rights culture might be found, in the end, not to be plausibly in-terpretable as reflecting any cogent underlying normative idea. Howev-er, a theory that satisfied these desiderata would generate not only an enhanced understanding of the discourse and practice of human rights, but also a framework in terms of which to evaluate and improve it, in light of its own underlying ideal.

This chapter addresses only one question that arises within a philos-ophy of human rights: the specification of the nature of such rights, identifying what it is that distinguishes the concept of human rights among other normative concepts. Another important question, not ad-dressed here, concerns theirgrounds: given what a human right is, under which conditions does a would-be human right genuinely merit that title? Taking either of these questions seriously does not commit one to the existence of any human rights. Even a sceptic about human rights, like a sceptic about the existence of unicorns, needs a tolerably clear idea of the nature of the thing whose existence he is sceptical about, before explaining his reasons for doubting that anything satisfies the conditions for being a thing of that sort. Disentangling the two questions, at least initially, promises two benefits. First, it enables us to characterize human rights in a way attuned to how the phrase “human right” is em-ployed and understood in the wider human rights culture. By respecting that characterization, we can avoid simply changing the subject, as phi-losophers are sometimes prone to do when they speak about human rights, thereby diminishing the wider relevance of their investigations.

Second, philosophers should aim to ensure that their disagreements about human rights, however apparently deep-going, are nonetheless genuine disagreements about a common subject-matter. Of course, the situation is complicated by the fact that the twin aims of broader relevance and genuine philosophical engagement may pull in opposite directions, especially when philosophical controversies acquire a direc-tion and momentum independent of the human rights culture. In any such conflict relevance should tend to prevail, at least in a philosophical investigation that takes fidelity seriously.

An additional complication is that our answers to the questions of the nature and grounds of human rights cannot be entirely sealed off from one another. One’s estimate of the best prospects for grounding human rights may properly bear on how one conceives of them, if

only because there is good reason to avoid the sceptical conclusion that hardly any sound moral principle is aptly characterized as a “human right”. Conversely, one’s conception of human rights may influence one’s views as to their grounds. For example, a religious grounding of human rights is arguably more attractive if we conceive of such rights as inhering in all members of the human species, rather than just those of its members that possess certain valuable qualities, such as the capacity for rational self-determination. This is because human rights might be thought to track the value bestowed on all human beings by God’s special love for them, irrespective of variations in their capacities (see e. g. Wolterstorff 2008 and Perry 2009). Moreover, one’s concep-tion of the nature of human rights might directly constrain the kind of grounding appropriate to them. Still, we should resist building into the nature of human rights anything like a complete account of their grounds. This maneuver risks obtaining victory over one’s philosophical opponents on the question of grounds by means of the dubious expedi-ent of treating them as addressing a differexpedi-ent subject.

It would be a mistake to infer from what has just been said that the nature of human rights is a relatively uncontested terrain on which other philosophical disputes about human rights – their grounds, the specifi-cation of their holders and the bearers of their corresponding duties, the appropriateness of giving them legal force, and so forth – are played out.

Even philosophers who agree on the importance of fidelity to the human rights culture often subscribe to widely differing views about their nature. This chapter outlines three broad families of approach to the nature of human rights – the Reductive, Orthodox and Political Views – and defends a version of the Orthodox View, according to which human rights are moral rights possessed by all human beings sim-ply in virtue of their humanity. Orthodoxy stakes out a conceptual ter-rain intermediate between its two rivals. Against the Reductive View, it insists that human rights belong to the more general category of moral rights. Against the Political View, it resists incorporating some specific political function – such as operating as benchmarks of political legiti-macy or triggers for international intervention – into the concept of human rights. Human rights may be properly invoked to perform myri-ad political functions, but whether and to what extent they should do so is a substantive matter, not something constitutive of an adequate grasp of their nature.