The Idea of Justice
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social tensions but also a deep upheaval of thought. The American Declaration of Independence also reflected a transformation of social and political ideas. ‘Government, Jefferson wrote, was self-evidently a mere instrument, more or less useful, by which men, born equal, seek to secure their lives and liberties and their right to pursue happiness; when a government violates these purposes, it is, he said in a phrase that would ring through the palaces of Europe, ‘‘the right of people to alter or to abolish it’’ ’ (Bernard Bailyn, Faces of Revolution: Personalities and Themes in the Struggle for American Independence (New York: Vintage Books, 1992), p. 158).
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w h a t a r e h u m a n r i g h t s ?
It is important to consider seriously the questioning of the nature and basis of human rights, and to respond to the long – and well-established – tradition of precipitately dismissing these claims. Bentham’s diagnosis that ‘the rights of man’ are just ‘nonsense’ (if not
‘nonsense upon stilts’) is merely a muscular expression of general doubts that are shared – mildly or strongly – by a great many people.
The doubts demand serious analysis both for ascertaining the status of human rights and for understanding their relevance to the idea of justice.
What exactly are human rights? Are there, as is often asked, really such things? There are some variations in the ways in which the idea of human rights are invoked by different people. However, we can see the basic concerns behind these articulations by examining not only the contemporary practice of utilizing the concept, but also the history of its use over a very long period. That substantial history includes the invoking of ‘inalienable rights’ in the American Declaration of Independence and similar affirmations in the French declaration of ‘the rights of man’ in the eighteenth century, but also the relatively recent adoption by the United Nations of the Universal Declaration of Human Rights in 1948.
The ‘existence’ of human rights is obviously not like the existence of, say, Big Ben in the middle of London. Nor is it like the existence of a legislated law in the statute book. Proclamations of human rights, even though stated in the form of recognizing the existence of things that are called human rights, are really strong ethical pronouncements as to what should be done.* They demand acknowledgement of
* The subject of ‘fact-value entanglements’ in the language we use was discussed in general terms in Chapters 1, ‘Reason and Objectivity’ and 5, ‘Impartiality and Objectivity’, and it is important here to see that the force of the assertion about the existence of human rights lies in the recognition of some important freedoms that, it is claimed, should be respected, and correspondingly in the acceptance of obligations by the society, in one way or another, to support and promote these freedoms. I shall have more to say on these ethical connections in what follows. On the methodological issues related to such entanglements, see Hilary Putnam, The Collapse of the Fact/
Value Dichotomy and Other Essays (Cambridge, MA: Harvard University Press, 357
t h e i d e a o f j u s t i c e imperatives and indicate that something needs to be done for the realization of these recognized freedoms that are identified through these rights. One thing they are not are claims that these human rights are already established legal rights, enshrined through legislation or common law (Bentham’s confounding of the two different issues will be discussed presently).2
If this is the way we understand human rights, then two questions immediately arise, concerning content and viability. The issue of content is the subject of the ethical assertion that is being made through the declaration of a human right. To answer briefly (on the basis of what is theorized and what is practically invoked), the ethical assertion is about the critical importance of certain freedoms (like the freedom from torture, or the freedom to escape starvation) and correspondingly about the need to accept some social obligations to promote or safeguard these freedoms.* Both of these claims – about freedoms and obligations – will have to be examined more fully (at this time I am just identifying the kind of claims that the ethics of human rights tries to present).
The second question concerns the viability of the ethical claims that are involved in a declaration of human rights. Like other ethical claims that their proponents promote, there is an implicit presumption in making pronouncements on human rights that the underlying ethical claims will survive open and informed scrutiny. This is where the understanding of what is being discussed here relates to the exercise of ‘open impartiality’ discussed earlier in this book. Indeed, the invoking of such an interactive process of critical scrutiny, open to argu-2002); see also Willard Van Orman Quine, ‘Two Dogmas of Empiricism,’ in his From a Logical Point of View (Cambridge, MA: Harvard University Press, 1961). Attempts to evade these entanglements have been a source of considerable difficulty in economics, on which see Vivian Walsh, ‘Philosophy and Economics’, in John Eatwell, Murray Milgate and Peter Newman (eds), The New Palgrave: A Dictionary of Economics (London: Macmillan, 1987), pp. 861–9.
* As Judith Blau and Alberto Moncada have pointed out in their powerfully argued book, Justice in the United States: Human Rights and the US Constitution (New York: Rowman & Littlefield, 2006), the Declaration of Independence in 1776, with its recognition of certain basic rights, ‘was like a cueing card for everything that came next – independence, writing a constitution, and setting up the machinery of governance’ (p. 3).
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ments coming from others and sensitive to the relevant information that can be obtained, is a central feature of the general framework of ethical and political evaluation already explored in this work. Viability in impartial reasoning is seen, in this approach, as central to the vindication of human rights, even if such reasoning leaves considerable areas of ambiguity and dissonance.* The discipline of scrutiny and viability has to be applied to the specific field of human rights, and I shall return to that issue towards the end of this chapter.
The ethical pronouncements, with distinct political content, that belong to a declaration of human rights may come from persons or from institutions, and they may be presented as individual remarks or as social pronouncements. They can also be rather prominently asserted by particular groups of people charged to examine these issues, such as the drafters of the American Declaration of Independence and of the French rights of man, or by the United Nations committee that authored the Universal Declaration (led by Eleanor Roosevelt). These group articulations may also receive some kind of an institutional ratification, as happened, for example, in the vote in 1948 in the newly established United Nations. But what is being articulated or ratified is an ethical assertion – not a proposition about what is already legally guaranteed.
Indeed, these public articulations of human rights are often invitations to initiate some fresh legislation, rather than relying on what is already seen as legally installed. The framers of the Universal Declaration in 1948 clearly hoped that the articulated recognition of human rights would serve as a kind of a template for new laws that would be enacted to legalize those human rights across the world.† The focus was on fresh legislation, and not just on more humane interpretation of existing legal protections.
* Partial dissonance is not an embarrassment to the approach used in this work for reasons discussed earlier, particularly in the Introduction and in Chapter 4, ‘Voice and Social Choice’. It will be further considered in the next and final chapter, ‘Justice and the World’.
† Eleanor Roosevelt, in particular, had such expectations when she led the young United Nations to adopt the Universal Declaration in 1948. That extraordinary history of a momentous global pronouncement is beautifully recounted by Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001).
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o f j u s t i c e Ethical proclamations of human rights are comparable to pronouncements in, say, utilitarian ethics – even though the substantive contents of the articulation of human rights are altogether different from utilitarian claims. Utilitarians want utilities to be taken as the only things that ultimately matter and demand that policies be based on maximizing the sum-total of utilities, whereas human rights advocates want the recognition of the importance of certain freedoms and the acceptance of some social obligations to safeguard them. But even as they differ on what exactly is demanded by ethics, their battle is on the same – and shared – general territory of ethical beliefs and pronouncements. And that is the point at issue here in answering the question: what are human rights?
Thus understood, an assertion of a human right (for example in the form: ‘this freedom is important and we must seriously consider what we should do to help each other realize it’) can indeed be compared with other ethical proclamations, such as ‘happiness is important’, or
‘autonomy matters’, or ‘personal liberties must be preserved’. The question, ‘Are there really such things as human rights?’ is thus comparable to asking, ‘Is happiness really important?’ or ‘Does autonomy or liberty really matter?’* These are eminently discussable ethical questions, and the viability of the particular claims made depends on the scrutiny of what is being asserted (the discipline of investigation and assessment of viability are subjects to which I shall presently return).† The ‘proof of existence’ that is often demanded from
* However, in seeking answers to these critical questions, we do not have to search for the existence of some ethical ‘objects’ that are identifiable as human rights. On the general issue of ethical evaluation, see Chapter 1, ‘Reason and Objectivity’. See also Hilary Putnam, Ethics without Ontology (Cambridge, MA: Harvard University Press, 2004).
† The assertion of the importance of a ‘right’ must not be confused with the interpretation that Ronald Dworkin chooses, and Thomas Scanlon supports, that a right must, by definition, ‘trump’ every contrary argument based on ‘what would be good to happen’ (Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), and Scanlon, ‘Rights and Interests’, in Kaushik Basu and Ravi Kanbur (eds), Arguments for a Better World (Oxford and New York: Oxford University Press, 2009), pp. 68–9). I would argue that taking rights seriously requires us to recognize that it would be bad – sometimes terrible – if they were violated. This does not imply that the recognition of a claim as a right requires us to assume that it must always overwhelm every other argument in the contrary direction (based, for example, on 360
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human rights activists is comparable to asking for the validation of ethical claims of other types – from the utilitarian to the Rawlsian or Nozickian. This is one way in which the subject of human rights relates closely to the focus of this book, since public scrutiny is central to the approach that is being taken here.
e t h i c s a n d l aw
The analogy between articulations of human rights and utilitarian pronouncements as ethical propositions can help to address some of the confusion that has plagued discussions on human rights for a long time. The basic similarity between these two approaches as alternative
– but very different – routes to social ethics is easy to see. However, the great founder of modern utilitarianism, Jeremy Bentham, managed to miss the connection altogether in his classic hatchet job on the French declaration of the ‘rights of man’. Rather than understanding the perspective of human rights as an ethical approach (an alternative to, and competitive with, his own approach of utilitarianism), Bentham took the appropriate comparison to be that between the respective legal status of (1) declarations of human rights, and (2) actually legislated rights. He found, not surprisingly, the former to be essentially lacking in legal standing in the way the latter obviously had.
Armed powerfully with the wrong question and the wrong comparison, Bentham dismissed human rights with admirable swiftness and breathtaking simplicity. ‘ Right, the substantive right, is the child of law; from real laws come real rights; but from imaginary laws, from
‘‘law of nature’’,’ can come, Bentham argued, only ‘ imaginary rights’.3
It is easy to see that Bentham’s rejection of the idea of natural ‘rights well-being, or a freedom not included in that right). It is perhaps not surprising that the opponents of the idea of human rights often thrust on them remarkably all-conquering pretensions and then dismiss these rights on the grounds that these pretensions are highly implausible. Mary Wollstonecraft and Thomas Paine did not attribute unconditional all-conquering pretensions to the rights of human beings; nor do most of the people today who can be seen as human rights activists. They do, however, insist that human rights be taken seriously and be included among the powerful determinants of action, rather than being ignored or easily overwhelmed.
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t h e i d e a o f j u s t i c e of man’ depends entirely on the rhetoric of privileged use of the term
‘right’.
Bentham simply postulated that for a claim to count as a right, it must have legal force, and any other use of the term ‘right’ – no matter how common – is simply mistaken. However, in so far as human rights are meant to be significant ethical claims, the pointer to the fact that they do not necessarily have legal force is as obvious as it is irrelevant to the nature of these claims.4 The appropriate comparison is, surely, between a utility-based ethics (as championed by Bentham himself), which sees fundamental ethical importance in utilities but none – at least directly – in freedoms and liberties, and a human rights ethics that makes room for the basic importance of rights seen in terms of freedoms and corresponding obligations (as the advocates of
‘rights of man’ did).*
Just as utilitarian ethical reasoning takes the form of insisting that the utilities of the relevant persons must be taken into account in deciding what should be done, the human rights approach demands that the acknowledged rights of everyone, in the form of respecting freedoms and corresponding obligations, must be given ethical recognition. The relevant comparison lies in this important contrast, not in differentiating the legal force of legislated rights (for which Bentham’s phrase ‘the child of law’ is an appropriate description) from the obvious absence of any legal standing generated by the ethical recognition of rights without any legislation or legal reinterpretation. Indeed, even as Bentham, the obsessive slayer of what he took to be legal pretensions, was busy writing down his dismissal of the ‘rights of man’ in 1791–2, the reach and range of ethical understanding of rights, based on the value of human freedom, were being powerfully explored by Thomas Paine’s Rights of Man (1791, 1792), and by Mary Wollstonecraft’s A Vindication of the Rights of Men (1790)
* The importance of freedoms and rights can of course be combined with giving weight to well-being, on which see Chapter 13, ‘Happiness, Well-being and Capabilities’. However, in incorporating the priorities of utility and liberty in ethical reasoning, some consistency problems can arise, which have to be specifically addressed. That issue was discussed in Chapter 14, ‘Equality and Liberty’; see also my Collective Choice and Social Welfare (1970), Chapter 6, and Kotaro Suzumura, ‘Welfare, Rights and Social Choice Procedures’, Analyse & Kritik, 18 (1996).
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and A Vindication of the Rights of Woman: with Strictures on Political and Moral Subjects (1792).5
An ethical understanding of human rights clearly goes against seeing them as legal demands, and also against taking them to be, as in Bentham’s view, legal pretensions. Ethical and legal rights do, of course, have motivational connections. There is, in fact, a different approach that is also law-oriented and which avoids Bentham’s mis-apprehension, and sees the recognition of human rights as moral propositions that can serve as grounds for leg
islation. In a justly famous essay ‘Are There Any Natural Rights?’, published in 1955, Herbert Hart has argued that people ‘speak of their moral rights mainly when advocating their incorporation in a legal system’.6 He added that the concept of a right ‘belongs to that branch of morality which is specifically concerned to determine when one person’s freedom may be limited by another’s and so to determine what actions may appropriately be made the subject of coercive legal rules’. Whereas Bentham saw rights as a ‘child of law’, Hart’s view takes the form of seeing human rights as, in effect, parents of law: they motivate specific legislations.*
Hart is clearly right – there can be little doubt that the idea of moral rights can serve, and has often served in practice, as the basis of new legislation. It has frequently been utilized in this way, and this is indeed an important use of claims of human rights.† Whether or not the language of human rights is employed, claims that certain freedoms should be respected, and if possible guaranteed, have been the basis of powerful and effective political agitation in the past, for example in the suffragist movement that demanded voting rights for women, ultimately with success. Providing inspiration for legislation is certainly one way in which the ethical force of human rights has been constructively deployed, and Hart’s qualified defence of the idea
* Joseph Raz has developed this perspective of seeing human rights as moral bases of legal initiatives. See his largely critical but ultimately constructive essay (‘Human Rights without Foundations’, forthcoming in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford: Oxford University Press, 2009)).
† That, for example, is precisely the way the diagnosis of inalienable rights was invoked in the American Declaration of Independence and reflected in the subsequent legislation, a route that has been well trodden in the legislative history of many countries in the world.