How did you become interested in human rights?
I became interested in human rights through two other previous interests. one was an interest in moral philosophy, in particular the question of relativism: whether there are genuinely objective and universal standards of morality. that’s what really fascinated me as an undergraduate and that’s what i wrote my doctoral thesis on at oxford. the other topic that always interested me was international law. had I not become a philosopher, I would have been strongly tempted to become an international lawyer. he appealed to human rights because he brought together both concerns: the concern about whether there is a universal objective morality and, if there is, how it could be realized through an international legal order that ascribes rights to all individuals. So, that’s the backstory. the more specific explanation is that two events set me off in this direction. one is that i moved into a teaching job in oxford in 1998 and one of my colleagues was james griffin, who was starting to write a book on human rights that eventually came out about ten years later, a very important book. The other event was in 1999, a year later, when John Rawls published The Law of Peoples. Central to that book was a doctrine of human rights. Very soon after I went on sabbatical leave, my first leave of absence after eight consecutive years of teaching, and I thought this was a topic I really wanted to get into.
You are reading: Books on human rights
You were recently appointed Director of the Center for Politics, Philosophy and Law at King’s College London. could you tell us a bit about that?
yes. King’s is extremely fortunate to have received a seven million pound gift from the family of a former student, Mark Yeoh, to establish a center for politics, philosophy and law. it’s a wonderful opportunity to bring together different parts of the king’s college community to address what are clearly common concerns but require different kinds of skills, different kinds of disciplinary competencies, to address. I see my role here as someone who can be a focal point for that kind of multidisciplinary activity.
Are human rights at the core of that?
They are, oddly enough, but that’s not by design. As it happens, that is one of the topics in which there is a lot of shared interest, not only in law but in philosophy, in politics, in war studies, etc. human rights are central to issues such as migration, surveillance or torture; all these current political issues have this important ethical and legal dimension. human rights are at the center of that discourse both among academics and in the culture in general.
let’s go to your first book which is the universal declaration of human rights (1948). that’s a good place to start. could you say something about that book?
The significance of the universal declaration is that it ushers in a whole new period of thinking about human rights. there is something very significant in that text, after the second world war, after the atrocities that were committed, and the powerful reaffirmation that it implies of the idea of the inherent dignity of the human being and the universality of his rights. the fundamental position of that text is a recognition of pre-existing rights. it does not intend to confer rights on anyone, it is saying that human beings already have these rights and the objective of the document is to affirm an existing moral reality. that’s very evocative.
“human rights are fundamental to issues such as migration, surveillance or torture; All of these current political issues have this important ethical and legal dimension.”
A number of other features are worth noting: one is the strong emphasis on socio-economic rights alongside the historically more familiar civil and political rights. much of the potential of those rights has yet to be fully explored. think, for example, of the implications of article 23, which establishes the right to work, at a time when we are told that artificial intelligence threatens to displace human effort. another right that interests me, which is not very well known, is the right to participate in cultural life, even to participate in science and benefit from its advances, in article 27. again, in a technological context where it is possible for Ordinary folks get together to conduct clinical trials under the heading of citizen science and so on, we’re just beginning to appreciate its implications. in fact, there was a visionary unesco report back in 1952 that this right would have potentially massive repercussions, empowering ordinary people to do their own scientific research. there is also an interesting question about how that right might conflict with some of the extensive intellectual property regimes that have emerged in recent years. therefore, it is not that these articles are now just established truths, fully understood. it remains a fertile document that can stimulate future developments.
The other thing I would like to mention is that it is genuinely the product of intercultural dialogue. For example, socioeconomic rights were not, as many people think, a simple demand of the Soviet Union: the Latin American countries played a leading role. the Indian delegation strongly supported the emphasis on non-discrimination, particularly in relation to gender. Therefore, in addition to having universal pretensions, the way in which the declaration was constructed reflected the contribution of a dialogue that involved a diversity of cultures. For all those reasons, I think it is a seminal and enduring document.
I am intrigued by the idea that this document reflects pre-existing rights. Do you mean that these pre-existed in the sense that they were recognized in other countries, or that they are somehow naturally present in the fabric of the world?
I guess both are true, if by the “cloth” metaphor you mean objectively true or valid. in the construction of the universal declaration, part of that process involved gathering constitutions from various countries around the world and examining the rights they incorporated. But philosophers, such as Charles Malik, were involved in this elaboration process. his thought included the idea that humans have a dignity, recognized or not, and that humans also have rights, recognized or not. there is special value in having a document that publicly affirms these things, particularly in light of the terrible experiences of recent history.
what would you say to jeremy bentham’s thought that the idea of natural rights (naturally occurring rights) is “nonsense on stilts”?
I think you’re on dangerous ground, personally. the implication seems to be that you cannot have any rights unless they are creations of the law, that only the law can confer rights. there can be no rights simply as a matter of morality. but then the question is: why not? Bentham himself affirms a moral principle independent of the law, that is, the principle of utility, that happiness should be maximized. well, if you can have a normative principle independent of the law, why can’t we have another one that confers rights? I suppose Bentham’s answer would be that the principle of rights would not fit into his general principle of utility. at this point, one needs to engage in a substantive ethical argument. It will not be enough to say that the only real rights will be those that are enshrined in the law. So, I agree with Hla Hart, himself a Bentham scholar, who wrote that “the idea that there might be rights that are not creatures of positive law seems to have filled him with a kind of unreasonable fury, possibly because this idea threatened to question utilitarianism as an adequate moral theory.”
do you think the universal declaration is the kind of text that ordinary readers would get something out of just picking it up and reading it?
yes, I think so. it is very accessible. apparently, it is the most translated document in the world. there are also versions that have been produced for children to read. Someone—I think it was Gadamer—said that the mark of a classic is inexhaustibility. you come back to it and find new things every time. that’s what I would say about the universal declaration, in part because, of course, many of the articles in it are framed quite broadly. but reflecting on them individually, and also as a group, can stimulate interesting developments in his thinking about all sorts of problems we face today. for example, the right to science. Who would have imagined that there is an individual right to participate not only in politics but in the wider culture, including scientific practice? it is very prophetic.
presumably that’s aimed at governments who want to stop people from progressing through science, maybe in the name of religion, shut down science itself, not citizen science, do people doing experiments in your back gardens?
no, I think it was meant to be about ordinary individuals, not just professionals, who are engaged in scientific research. the unesco document I mentioned makes that very clear. another question is whether the document itself is aimed exclusively at states as duty bearers. that was one of the interesting themes that came up in his framing. the delegate of the soviet union insisted that after each article there should be a sentence of the type “and this will be applied by the state”. this proposal was rejected. the idea was that, of course, the state will have a vital role in realizing human rights, but there was a deeper understanding that if rights were really to be realized, the state would be one actor among others, they would have to be realized by individuals. in their daily behavior, by groups within the state context, by organizations above the state level, etc. it is one of the great strengths of the document that, although it seems to be aimed primarily at the states, its ultimate goal is the creation of a culture of human rights that goes far beyond the states. As Eleanor Roosevelt, who chaired the declaration’s drafting committee, put it, human rights begin “in small places, close to home, so close and so small that they cannot be seen on any map of the world. however, they are the world of the individual person; the school or university you attend; the factory, farm or office where you work.”
Another thing that is important is that it was meant to have meaning despite not being legally binding. the declaration was not a treaty, it did not legally bind anyone. indeed, if it had been legally binding, it is highly doubtful that as many states would have signed it. the idea was that a simple political declaration of these rights would have great meaning. what alerts us is that not only should we not pin all our hopes on human rights in the state, but we should not pin all our hopes on the institution of law. we must be open to a diversity of means through which human rights can be realized. An important recent example of a human rights document that also breaks with statist and legalist assumptions is the UN Guiding Principles on Business and Human Rights, which was approved in 2011. The document places human rights responsibilities directly on corporations, and considers that the law is only one mechanism among others to provide redress for human rights violations.
Let’s move on to his second book, which is James Nickel’s Sense of Human Rights (1987), which is what we’re trying to do, in a sense, through this interview. So what kind of writer is James Nickel?
james nickel is an american philosopher. When he wrote this book, he was working in the Philosophy Department at the University of Colorado and is currently at the University of Miami School of Law. many people would trace his early philosophical engagement with human rights back to this book. I have always used it as a kind of aluminum foil with my students. there is always a tendency among graduate students to work on fashionable topics, particularly what the leading philosophers of the day are writing. When James Nickel first conceived the idea of writing philosophically about human rights, he was told by many in the profession that it was a waste of time. Despite receiving this advice, including from Jules Coleman, a famous legal philosopher, he was not intimidated. I like that aspect: the complete independence of mind, the willingness to work in an important area that his peers avoided. nickel has been greatly vindicated ever since.
The other aspect I want to emphasize is the methodology, as revealed in the title: making sense of human rights. by “human rights” nickel means that culture inaugurated by the universal declaration of human rights. Thus, while there are many things you can mean by “human rights,” what nickel means for the purposes of this book is the universal declaration and the ethical-political-legal culture it has given rise to. your question is: how can we make philosophical sense of this, instead of thinking of it purely as some kind of political compromise or simply as a matter of rhetoric or a move in power politics? I still think, to this day, that this book is the best introduction to the philosophy of human rights. he is extremely clear and approaches the subject in a spirit of critical sympathy. he does not want to show how smart he is compared to the editors by making fun of certain human rights of the udhr, such as the right to rest and leisure. he is doing his best to find the kernel of good sense in the universal declaration. I think he does a great pioneering job on this.
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that’s what I’d call using the principle of charity: trying to argue the most plausible version of a theory you could build from the evidence there.
It’s partly the principle of charity, but it’s also partly a question of what your ethical instincts are. Is it your instinct that the concept of human rights has been valuable in helping to articulate important claims that individuals may have against the state and others? Or do you think it’s a matter of ideological window dressing? clearly, nickel belongs to the first category. he believes it is a valuable ethical idea. that is his starting point, and the book is an attempt to unfold exactly what this idea is in the most compelling way possible to clarify and guide our thinking about human rights in the future.
I completely agree with the idea that there are some things that are abhorrent and others that are just basic human requirements. but I don’t think I can justify a statement like ‘you should never torture anyone’ to someone who completely rejected my philosophical framework. on some level, it feels very real to me, but there are people who say, “well, there are circumstances and conditions where it becomes the right thing to do.”
We have to distinguish between justifying something and persuading someone. there can be a perfectly good justification, and yet we know that despite having a perfectly good justification for a certain proposition, say that climate change is happening or that astrology doesn’t accurately predict your future, there will be people who they will not be convinced. I think that’s part of the story. however, the other part of the story is that the first person you need to justify something to is yourself. you find commitments not to torture people and so on, but can you justify to yourself why you believe these things? That is the first step. One of the interesting things that we find in the nickel book is that there is no unique and privileged way of justifying these rights. There has been a tendency to assume that if one is going to engage with human rights philosophically, one is simply engaging them as a by-product of some engagement with a larger moral theory, like utilitarianism or deontology or whatever. nickel defies that. he says, ‘look, here are some rights that have gotten a lot of traction and a lot of us believe in them. there is no need for a privileged philosophical explanation of its justification. there may be overlapping threads leading to the justification of each right.’ he pioneered that approach, and I guess if you follow him, one of the things you have to take less seriously is the philosophical desire to reduce everything to a system where everything follows from some neat little set of principles.
then, it is an eclectic in the source of justification. he’s not saying that there is what isaiah berlin (unfortunately) called a “final solution”: a correct answer about how you should behave, that it’s written in the stars somewhere that you have to be a utilitarian or you have to be a kantian. there are many possible ways to be moral and there may be overlapping justifications that arise for any human right and we should take advantage of all of them.
yeah, I think what you could say is that there may or may not be a correct way to justify human rights, according to the correct moral theory, but we don’t need to be in possession of that theory in order to proceed responsibly with human rights. humans. there are a series of justificatory strategies that we can apply. it is important to remember that he was, in a sense, more concerned with those rights that end up being incorporated into the law. I think it’s true that if you’re thinking about rights that belong in law, there’s often no particular justification path for something to become law. so perhaps some rights that are in the law, for example the right not to be tortured, could be mapped quite directly into a substantive moral right. there is a moral right not to be tortured, if there is any moral right. but there may be other legal rights that do not bear exactly this direct justifying relation to another moral right. they may be justified on the basis of considerations of the common good, for example, or considerations related to the current state of the world. you could say, ‘look, if you’re looking at this from a purely moral perspective, then maybe the death penalty isn’t always a violation of human rights.’ but, given the reality of how the death penalty is used, there is a good case for legally enshrining the right not to be subject to the death penalty’, so you could have a more pragmatic and ecumenical approach to justification because your main focus is on those rights that end up being legally enacted.
presumably that also implies having some kind of methodology to reconcile rights conflicts?
That’s right. As far as I know, your current project is to examine the relationships between rights. it was a good investment, back in 1987, to publish this book because it is one thing to establish the existence of rights. then questions must be asked about exactly what its content is and how the content of a right relates to other rights, and how the content of any given right relates to non-rights-based considerations. at that point, the possibility of conflict, compensation or balance can enter the scene. is one of many fundamental human rights questions that needs further investigation.
what is your third choice book?
is the idea of natural rights (1997) by brian tierney. this is from a medieval historian, but well versed in contemporary philosophy of rights. that’s interesting because it’s often assumed that you can write the history of a topic without taking a position on what you’re talking about. you could do a history of Nazism, say, without necessarily taking any kind of moral stand. that’s a very problematic approach, in my opinion. You cannot write a worthwhile history of science without acknowledging that one of the reasons scientific advances occurred is precisely because some scientific theories were actually better than others. people at the time recognized this, and this is why some theories became obsolete and others became prominent. the same is true, I think, of the history of ethical and political ideas. Tierney is sympathetic to the ethical idea of human rights, but his immediate issue is: when did the notion of natural rights emerge as a distinct notion in our thinking? there is a lot of controversy about it. many people believe that the language of natural rights was born in early modern europe, with the rise of individualism within nascent capitalist society and the selfish, perhaps even egotistical, nature of that individual, and that the idea of natural rights natural is in deep tension. with the Aristotelian tradition that focuses on virtue and the common good. What is revealing about Tierney’s book is that he says that natural rights thinking arose much earlier, in the twelfth century, in writings by canon lawyers attempting to reconcile the body of Roman law with the body of canon law. in his comments, he detects a momentous semantic shift. they were talking about ‘good’ (or, in Latin, ‘ius’), in the sense of what is right as opposed to wrong and then, at a certain point, there is this modulation. they begin to write not only about what is the right thing to do, but about the rights that people possess: subjective rights in the sense that some subject has the right—rights as powers or capacities of that individual—independently of positive law.
“There may or may not be a correct way to justify human rights, according to the correct moral theory, but we do not need to be in possession of that theory to proceed responsibly.”
Tierney’s natural rights story is important in a number of ways. If, like me, you believe that human rights are objective moral norms, then it is highly unlikely that we had no idea about them until modernity or, as some claim, as recently as the 1970s. Tierney’s book is to make you see that our current concerns about rights were foreshadowed in a very different time and cultural setting. Second, many people argue that we have to dissociate human rights from natural rights: they think that natural rights are strongly metaphysical in character, perhaps even inherently religious. the human rights we now affirm, however, cannot be any of this: they cannot play their part in a pluralistic society if we see them metaphysically charged in this way. One of the great features of Tierney’s book is that it makes it very clear that natural rights thinking did not originate in metaphysics. In particular, it did not originate, as people like Richard Rorty have claimed, from some antiquated Aristotelian essentialist conception of human nature that is historically invariant and from which human rights can be derived. Tierney says that in the writings of these canonists, natural rights emerge from certain qualities that human beings characteristically possess: in particular, their rationality and their need for integration into a society in order to prosper. You can believe in these qualities without believing in any notion of metaphysical essence, in exactly the same way that John Locke, who was skeptical about essences, believed in these qualities and thought that they gave rise to certain rights independent of legal enactment. therefore, the idea that there is a big difference between wanting to be metaphysically light and the metaphysically heavy natural rights tradition is an oversimplification.
a third thing that is important in this book is that tierney emphasizes that for the authors he talks about, natural rights were just one element of morality among others. natural rights do not exhaust the whole set of moral considerations. there are also other considerations, such as unrequited duties, for example, duties of charity, and considerations of the common good. these ideas had to be integrated together into a global vision. There is no thought here that rights are somehow intrinsically antagonistic to the common good, or that if you are someone who asserts rights, then you are against notions of charity or benevolence towards other people. rights are simply one thread in our ethical scheme among others. that is a lesson that we really need to learn today, because in contemporary times there is a tendency for human rights to aspire to ideological hegemony. we try to formulate all our moral arguments in their terms. I have even heard arguments that saving the whale is about guaranteeing human rights. That’s got to be wrong. What Tierney teaches us is that when natural rights arise in Western consciousness, they emerge as one important consideration among others, but they don’t monopolize the field of moral concern. if, in the process of trying to elevate their importance, we fail to grasp this, we will end up losing control over the distinctive meaning of human rights.
just to clarify: a natural right gives other people responsibilities towards me, something I can justifiably expect from them?
That’s right. Typically, the types of rights discussed are “claim rights,” meaning that my possession of this right implies that others have various obligations, for example allowing me to make and pursue certain choices without interference or to provide me with certain goods and services.
Tierney’s book sounds fascinating.
This book is deeply inspiring to me. Although I am not a historian, I get a lot of inspiration and support for the work I am doing when I see it as part of this larger tradition. I entered philosophy as someone who was attracted to Aristotelian ethics, and when I was a college student, one of the main writers who implemented an Aristotelian approach was Alasdair Macintyre. Macintyre notoriously asserted in later virtue that human rights are like witches and unicorns: no good argument has ever been given for their existence. the idea seemed to be that if you subscribed to some Aristotelian approach to ethics that involved a conception of human flourishing and the virtues, you had to be hostile to human rights. human rights were, in this view, part of a misguided enlightenment project that sought to vindicate moral standards without relying on a rich and objective description of human flourishing, of what makes a human life go well. Tierney, historically, belies that notion. He shows that, in fact, there is a natural rights tradition that follows in the footsteps of Aristotle. It is not necessary to be a Kantian, nor to reject the idea that ethics is rooted in the promotion of human good, to endorse human rights. It is encouraging that Macintyre, in recent years, seems to have abandoned the old hostility towards him.
And your fourth book?
The fourth book is The Law of Peoples by John Rawls (1999). In a way, this is the opposite story of the nickel book. Jim Nickel’s book entered an unpopular camp where people told him there was no philosophical benefit to discussing human rights. john rawls’s influence is so wide and deep that as soon as he embarked on this subject, although he only occupied a few pages in the law of nations, suddenly, for many philosophers, he legitimized human rights as a matter of philosophical concern . It was now acceptable to work on human rights, in fact, in a way, perhaps it even became mandatory to work on human rights because John Rawls had worked in this area. perhaps that is too cynical a view of how my philosophical colleagues operate. I too was influenced, so I can’t say I’m immune to this, but it’s remarkable that there has been a real flourishing of human rights work since 1999, the year Rawls’s book was first published. this cannot be entirely a coincidence.
sounds like when a famous art collector starts collecting jeff koons and then everyone else has to follow suit.
proves that philosophers are human, like everyone else, and subject to fashions and various forms of underground influence. Rawls made thinking on issues of global justice and human rights respectable, but he was also influential in two other extremely important ways. his discussion of human rights is very brief, so the degree of impact given the amount of writing is phenomenal. Rawls was very concerned with the problem of ethnocentrism: whether the rights we assert as human rights are just Western parochial ideals unjustifiably imposed on other cultures. he tried to address that concern through two kinds of narrowness. he first came up with a very short list of human rights, which was largely a small subset of the rights that would be guaranteed in a liberal democratic society. human rights included rights such as freedom from slavery and servitude, freedom of conscience, security from mass murder and genocide, and a few others. many of the rights in the universal declaration would not count as human rights for him, they would be mere liberal aspirations. he would say, for example, that a robust freedom of religion is not a human right. there is a right to be free from religious persecution but not equal to freedom of religion. there is no right to freedom of expression or to work. there is only the right to subsistence, not the right to an adequate standard of living. this is a very meager list of human rights. that’s one way to approach the issue of ethnocentrism: narrowing down the list of human rights.
The second way he approaches it is by saying that we should not publicly assert these rights on the basis of some controversial metaphysical or philosophical doctrine. We should not say, for example, that all human beings possess human dignity or are created in the image of God, or that human flourishing or the most fundamental interest of human beings leads to these rights. this is because other people, especially those in other cultures, might unreasonably reject these views. he tries to give a thin base for human rights through a two-step procedure: (i) we can imagine a social contract in which liberal states would agree to the minimum program of human rights; and (ii) we can imagine some decent but not liberal states that also accept these rights. the fact that the second step is imaginable, that a decent illiberal society can also, for its own reasons, adhere to these rights is what is supposed to show that human rights are not ethnocentric. but nowhere did we need to appeal to some claim about ‘objective truth’ in religion, philosophy, or ethics to provide them with a public justification.
That sounds like going to the lowest common denominator. you risk watering down the rights into something so thin that they can’t do any work. it would be bleak for human existence if that’s all we can guarantee in the overlap between different cultural stances.
That is a legitimate concern, and I am not a supporter of Rawls’s attempt to separate human rights from an appeal to objective ethical truths. I think I would press two things in response to your concern. One is to say that we cannot realistically expect a world made up exclusively of liberal democracies that uphold the rich array of rights that such societies should uphold. So the question is, what is the kind of illiberal society that, intuitively, an illiberal democracy should be able to get along with without the need to pressure it, intervene against it, etc.? he thinks that decent but non-liberal societies fit into this bill, and would respect its minimum human rights program.
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The second point addresses your concern about what labor rights are doing when we soften them to this point. Rawls argues that they fulfill two fundamental roles. The first is that any society that does not comply with this limited list of rights cannot be legitimate. its citizens have no moral obligation to obey its laws. this minimal list of human rights is a touchstone of a regime’s internal legitimacy. the second role is that the short list of rights regulates when intervention against other societies is justified. In particular, in my interpretation of Rawls, what he is saying is that this list of rights is very short because it captures the distinctive importance of human rights for foreign relations. its distinctive importance is that only the rights on this list are those that are capable of generating a case for coercive intervention if they are widely violated. His position is that if he wishes to know the rights that would be guaranteed in an ideally just society, he should look at his main political work, A Theory of Justice, which sets out the rights guaranteed by a full-fledged liberal democracy. Of course, such a democracy does not exist in the world, but those are the rights to which, in terms of full justice, we would be entitled.
human rights, for him, answer different questions. one is a question of what rights must be respected in order for a society to be internally legitimate, and the other is what rights must be respected in order to be free from justified forced intervention by others. internal legitimacy and freedom from external intervention are two incredibly important issues. those are the questions that Rawlsian human rights address. he has been very influential in stating that we must interpret human rights in terms of these two political functions. Not everyone buys both elements of the story, but, for example, Charles Beitz and Joseph Raz certainly accept the view that human rights are some kind of trigger for international intervention or concern in their important work on human rights. Meanwhile, Ronald Dworkin agreed with Rawls that human rights are essentially tied to conditions of legitimacy. So Rawls has had a huge influence on some of the leading political philosophers of our time. have followed clues established in these meager pages dedicated to human rights in the law of nations.
Is this an implicit criticism of the universal declaration that has reduced human rights to this little concentrated liquid at the bottom?
I have a feeling he probably wasn’t too worried about the universal declaration. many of us who write about human rights are like a nickel, concerned with making sense of human rights understood as something like the familiar list in the universal declaration. Rawls was more interested in completing his liberal theory of justice. when he thinks of the rights that would ideally be granted to people in the most just kind of society, he has already answered that question without resorting to the universal declaration in a theory of justice and political liberalism. So the question that remains is: what extra work is the distinctive notion of human rights doing? believed to pertain fundamentally to the foreign policy of a liberal society, they help us determine those societies that are internally legitimate and properly immune from coercive intervention. Some might say that this is a distinctively American approach to human rights: that human rights are not so much rights that we have to fulfill as rights that others have to fulfill under penalty of external coercion. However, in fairness to Rawls, he would insist that the United States is a long way from being a fully just liberal democracy.
So, the limits of humanitarian intervention are marked by the thin rights?
The limits of coercive intervention certainly are. If a society is involved in widespread and persistent violations of human rights, according to Rawls, in principle, it is subject to coercive intervention. if it respects the minimum human rights calendar, then it is immune from such intervention, even if it is in several respects highly illiberal, for example by denying women the vote or excluding religious minorities from public office. however, non-coercive forms of humanitarian assistance also exist. Rawls envisions a type of society he calls a “burdened society,” one that is unable for various reasons (cultural, lack of resources, etc.) to aspire to be liberal or decent in the short term. As for overwhelmed societies, liberal and decent societies have a “duty of assistance” to help them become liberal or decent, which is more than just complying with the minimum human rights calendar.
let’s move on to your final choice of books.
the latest book is the most sophisticated philosophical treatment of human rights since the universal declaration and is james griffin’s book on human rights (2008).
james griffin was your graduate supervisor at oxford?
When I was a doctoral student, he supervised me during a period when my official supervisor, joseph raz, was on leave. Some years later, I became a friend and colleague of his at Corpus Christi University, Oxford, where he held the chair of White Moral Philosophy. during that time he was writing about human rights and we often talked about human rights and gave classes together on political and legal philosophy. so I feel like I enjoyed privileged access to this book compared to the other four on my list.
Knowing someone, even at the level of having met them and heard them speak, profoundly affects how you read their work. does meeting james griffin affect the way you read his book?
probably yes, especially to the extent that I feel I have an understanding of the larger philosophical agenda animating your project. if there’s any book where i feel like i really know what’s going on, then it would be griffin’s book, although he inevitably disagrees with my interpretations of some of the things he says. The reason this is such an important book is that Griffin, unlike Nickel and Rawls, really tries to connect human rights with moral philosophy. the danger of doing that is that you simply impose a pre-existing grid, some pet general moral theory, on human rights and distort the issue from the top down. Griffin, however, is highly skeptical of contemporary moral theory, especially the aspiration to systematic unity that he embodies. in his accounting value judgment, he is very skeptical about the three main contemporary moral theories: consequentialism, deonology, and virtue ethics. has an attractively pluralistic, “bottom-up” approach to ethics, and this allows it to deal with human rights in a much more compelling and interesting way because it is not distorted by these prior commitments to the idea that ethics is it reduced to virtue or, really, is it about maximizing well-being.
The value of this “anti-theory” approach emerges most strongly in his chapter on human rights conflicts, which is one of the best in the book. Among other things, that chapter helps inoculate us against a widespread misconception. this is the misconception that only a utilitarian can believe that emergency situations can arise in which a human right can be justifiably overridden. this is a profound mistake, because avoiding disaster should not be equated with maximizing welfare. the potential need to sacrifice at least some human rights in emergency situations does not show the ultimate correctness of utilitarianism.
to clear this up, is griffin’s book about moral rights? it’s not specifically about justifying legal rights the way some of the other works we’ve been talking about have done.
That’s right. in nickel’s book there is a focus on human rights understood as rights that must be enshrined in law. In Rawls there is a focus on rights that perform certain political functions, triggering intervention and operating as reference points for legitimacy. On the contrary, Griffin has the more classical view, closer to the discussions that he describes in Tierney, of human rights as natural rights. human rights can be legalized and can perform certain political functions, but this is not part of what makes them human rights. There are two ways in which the continuity between human rights and natural rights can be articulated. One is to say that they are universal moral rights: rights that all human beings possess simply by virtue of their humanity. second, the way we discover them is by engaging in ordinary moral reasoning. We discover them not by examining the law, or by some special process of public reason that does not aspire to objective truth, as Rawls would insist, but by whatever normal form of moral reasoning we engage in to establish duties to keep promises and refrain from doing so. to kill people. that is the same form of moral reasoning that he uses to identify human rights primarily as moral concerns. then, of course, there would be more questions about the extent to which these now-identified moral concerns should be incorporated into law; which institutions might be best able to carry them out; if we need a judicial review or some other process, how they affect political legitimacy, when their violation warrants some kind of external response, etc. Answers may vary from society to society, but one of the things I find refreshing about Griffin’s book is that he doesn’t think there is a short cut to asserting the existence of a human right to any immediate prescription regarding these other questions. . that is one more step that should be taken and not a logical conclusion of the existence of law. I think he is right to conceive of human rights as fundamentally moral rights in this way.
So, you’re talking about universal rights? if you talk about a human right, it sounds like it applies to all human beings.
yes, it is. Griffin argues that human rights are protections of the value of personhood, and he breaks down the value of personhood into a series of values: autonomy, which is being able to choose a conception of the good life from a range of options, and liberty, which is being able to follow the choices he has made without the interference of others. he also identifies some sort of minimal material provision to enable him to be in a position to choose and pursue the choices he has made. he argues that these three values are the three superhuman rights, and they apply throughout human history to all human beings who qualify as agents capable of choosing and pursuing their conception of a good life.
And yet there are many cultures where only a few people can enjoy those rights and that is built into the fabric of their society.
That is the problem of cultural variation in the face of supposedly universal moral demands. there is a very powerful contrast here with rawls. Rawls tries to deal with the problem of cultural variation by retreating to a minimal foundation, to the common ground between true liberal democracies and the decent illiberal societies that they should be willing to tolerate. Griffin, by contrast, gives the traditional answer to ethnocentrism: namely, that it is a misnomer if human rights principles are objectively justified. They may have been first discovered in the West, and Griffin attaches great importance to an enlightened tradition of natural rights thought, but that does not prevent them from being universally valid. using a somewhat strained analogy, it is similar to the way in which medieval Arab mathematicians made important discoveries that are not only valid for the Arabs. They are universally valid. Griffin’s answer is that personality is a valuable quality, exemplified by all human beings, that deserves certain kinds of protection through rights. This is our “human dignity” for Griffin, the capacity for normative agency that elevates us above non-human animals. The first thing to say to a culture that doesn’t agree with that idea, and the most respectful thing to say, is, ‘You’re wrong. These are the reasons why you are wrong. Now show me why you think I’m wrong. but, again, there is one more step. Having seen that the other culture is wrong by not recognizing the rights that emanate from human dignity, nothing follows automatically from what we can lawfully do to lead it on the right path. it may be that there is very little, or perhaps nothing, that we can do.
would it be fair to characterize rawls as a pragmatist and griffin as a realist?
The way I would characterize it is that rawls is a functionalist. it considers that human rights perform defining political functions and that they can and should perform these functions without recourse to a foundation that claims to be objectively correct. Griffin, by contrast, is a foundationalist. he wants to link human rights with certain fundamental ethical values, in particular this general value of personality which, of course, causes him problems because it is not clear that human rights refer always or exclusively to the protection of personality. this becomes especially evident when it comes to human beings who do not have the capacity to choose, or who may never acquire it, or have it, or have irretrievably lost it. however, such human beings (infants, people suffering from the advanced stages of senile dementia) appear to be full-fledged holders of at least some human rights, such as the right not to be tortured. This is a conclusion that Griffin contests in his book, pointing out that we can criticize the mistreatment of non-agent humans without resorting to the language of human rights. I am not convinced in my own work, I have argued that the values that underlie human rights go beyond the value of personality, they include values such as the absence of pain and certain types of humiliation. When we expand the values protected by human rights in this way, we can legitimately speak of human rights held by humans who are not agents.
This is an area that really matters. With human rights, we’re talking about protecting people from harm, about giving people the kind of life where they can really fulfill their potential. these are deeply important concerns within every society. but, in some societies, basic human rights are clearly threatened. if we can’t justify to ourselves what a human right is and why it matters, how can we justify serious military or other intervention? this is a fundamental philosophy that can have practical results. As an academic activity, thinking about human rights is different from much philosophical and legal theory: it is not a pure activity in that sense, like pure mathematics, it is applied philosophy.
I agree that this is an area that easily lends itself to enforcement, in part because people are receptive to discussions in terms of human rights. but we need to put that responsiveness under some scrutiny because people will often deploy human rights rhetoric, because it sounds good, because it makes what a government or an international organization is doing sound admirable. but when you start pressing them on what exactly is going on beyond saying they’re achieving the results they value, they often can’t tell you. people seem to be engaged in the rhetoric of human rights, and this can be a lever for them to think a lot about what a human right actually entails. I recently attended an event at the world bank in washington dc and it became abundantly clear that many of those present thought about human rights in predominantly economic terms, terms that are deeply influenced, whether they realize it or not, by utilitarianism. it is very challenging within that kind of framework to make sense of human rights. Precisely for this reason, Bentham tried to get rid of the idea and today he has many supporters who say that human rights thinking should be replaced by the tools of development economics. again, what is true for economists is also true for some lawyers. it becomes clearer, once you scrutinize it, that when they talk about rights, they are really talking about interests, which is why they are so willing to tolerate trading one right for another. well, you trade one interest for another, but the idea that you have a right that is subject to trades regularly, rather than exceptionally, is self-defeating. Due to the great vogue for human rights as rhetoric in our culture, it provides an opportunity for philosophers who have something to say about the normative meaning of human rights, how to establish their content, and how they relate to other moral concerns. the world has given philosophers a convenient entry point to introduce greater rigor and reflection into how one reasons about these important questions.
See Also: Ben Kane – Book Series In Order