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Philosophy & Social Criticism
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DOI: 10.1177/0191453708102091
2009 35: 371Philosophy Social Criticism
Kenneth Baynes
Toward a political conception of human rights
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Kenneth Baynes
Toward a political conception
of human rights
Abstract Human rights have become a wider and more visible feature of
our political discourse, yet many have also noted the great discrepancy
between the human rights invoked in this discourse and traditional philosophical
accounts that conceive of human rights as natural rights. This
article explores an alternative approach in which human rights are conceived
primarily as international norms aimed at securing the basic conditions of
membership or inclusion in a political society. Central to this ‘political conception’
of human rights is the idea of human rights as special (in contrast
to general) rights that individuals possess in virtue of specific associative
relations they stand in to one another. This view is explored and defended
through a critical review of four recent political conceptions – Michael
Ignatieff, John Rawls, Thomas Pogge and Joshua Cohen.
Key words Joshua Cohen · human rights · Michael Ignatieff · law of
peoples · natural rights · Thomas Pogge · political conception of rights ·
John Rawls
The last several decades have witnessed a dramatic increase in the attention
given to human rights. There are clearly many reasons for this,
including the exponential rise in the number of governmental organizations
and NGOs within the international arena, debates about the role
of the nation-state in a ‘post-Westphalian order’, the post-cold war
debates about the grounds and limits of ‘humanitarian intervention’ and
the emergence of a ‘global civil society’ as one important aspect of the
wider process of globalization. These and other factors have contributed
to a condition in which human rights discourse has become the ‘lingua
franca’ of the international community.1 In this article, I want to explore
the philosophical interpretation of this human rights phenomenon. In
particular, I want to examine a more recent approach to human rights
that has been called a ‘political conception of human rights’ and my aim
PSC
PHILOSOPHY & SOCIAL CRITICISM • vol 35 no 4 • pp. 371–390
Copyright © The Author(s), 2009.
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is to address two broad concerns that have been raised in connection with
it. The first concern is that at least some who have argued for a political
conception – I am thinking especially of Michael Ignatieff – have correspondingly
proposed a rather thin and limited account of the content of
these rights. The idea is roughly as follows: we can only have any hope
of securing broad political agreement on human rights if we adopt a
minimalist approach regarding their content. This is sometimes referred
to as the ‘lowest common denominator’ approach: in order to secure
broad political agreement, one looks to the content of various traditions
in order to find where they intersect or overlap with one another on basic
values and it is this overlapping set – the lowest common denominator
– that is then presented as at least the core set of human rights.2 A second
concern is sometimes raised in response to the first: The objection is that
a ‘political conception of human rights’ must be based on a compromise
that will inevitably be suspect. Human rights, however, should not be the
product of a compromise but should rather be based on the best (or even
truest) philosophical account that can be given.3 In some cases, however,
these two concerns can be combined: it is then argued that the politically
most appealing account of human rights is minimalist but that this is
also the most philosophically satisfying account as well. This widespread
position generally equates human rights with natural rights. By contrast,
the political conception of human rights I wish to defend resists this
identification of human rights with natural rights.
As I just noted, within philosophy – and within much popular understanding
as well – human rights are viewed as ‘natural rights’ or ‘the
rights of man’ or at least as the direct heirs to this tradition of rights.4
There are certainly good historical reasons for this association and there
are other considerations that speak in its favor as well: for example, like
natural rights, human rights are taken to be rights whose existence does
not depend upon any legal or political recognition. On the contrary,
they provide an independent standard or measure for judging the success
or legitimacy of any particular political society. However, in this article
I want to consider the view that this identification of human rights with
natural rights is mistaken and can lead to significant misunderstandings
about the nature and the function of human rights. Various labels for
this alternative view can be found in the literature, but I shall refer to
it as a political conception of human rights.5
An initial puzzle posed by the identification of human rights with
natural rights becomes evident as soon as one reflects on the wide discrepancy
between the set of human rights found in many leading human
rights documents (such as the Universal Declaration of Human Rights
[UDHR] or the twin 1966 Covenants on Civil and Political Rights and
on Economic, Social and Cultural Rights) and the set of rights that
has traditionally been called natural rights. Of course, many others have
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noted this discrepancy as well and the frequent response, at least by many
philosophers, has been to conclude that most of the rights contained
in human rights documents are indeed not genuine human rights.6 A
favorite example here is article 24 of the UDHR which lists a right to
‘periodic holidays with pay’ and the suggestion is that we should return
either to the tradition of natural rights or some other philosophical
account in order to settle which of the listed rights are genuine. In this
same context, it is often suggested that since all natural rights are
negative rights one important test for a genuine human right is whether
that right is indeed a negative right: a right to periodic holidays with
pay is certainly not a negative right.
However, simply because one finds this dismissal of existing human
rights discourse too hasty, one is not thereby obliged to take onboard
every right listed in the leading human rights documents as a genuine
human right. Many human rights that have a more secure and established
standing in human rights practice cannot be understood as negative
rights – the right to a standard of living adequate for the health and
well-being of the person (art. 25.1) or the right to a fair and public trial
(art. 10) are prominent examples. Other tests are available than the test
of whether the supposed human right is a negative and hence natural
right.7 So, unless a separate argument is given for why human rights
should be conceived as negative rights – and this argument must again
confront the discrepancy with human rights discourse and practice – the
traditional identification of human rights with natural rights should not
be uncritically accepted.8
The discrepancy between natural rights and the rights found in
human rights discourse extends beyond the fact that all natural rights are
negative rights. There are other significant differences as well. According
to the traditional conception, natural rights are rights that an individual
possesses apart from and prior to membership in any political society,
they are ‘general’ in nature and they are ones individuals possess ‘simply
in virtue of their humanity’. Similarly, natural rights are rights possessed
equally by all, universal in scope, and they have a timeless and ahistorical
character. Thus, the right to liberty belonged to the Greek slave as
much as to John Locke and the right to property belonged to Robinson
Crusoe even though no political authority existed to recognize it. A. John
Simmons, a contemporary natural rights theorist, offers the following
characterization:
Human rights are rights possessed by all human beings (at all times and
in all places), simply in virtue of their humanity. . . . They will have the
properties of universality, independence (from social or legal recognition),
naturalness, inalienabilty, non-forfeitability, and imprescriptibility. Only so
understood will an account of human rights capture the central idea of
rights that can always be claimed by any human being.9
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Again, it would be odd to describe many of the rights in the leading
human rights documents as ‘pre-social’ or as rights individuals possess
‘simply in virtue of their humanity’. Many of these rights are rather
claims that only make sense within the context of definite social and
political institutions: thus, the UDHR states that ‘everyone has the right
to take part in the government of his country, directly or through freely
chosen representatives’ (art. 21.1), the right to employment, the right to
form and to join trade unions (art. 23), the right to education (art. 26),
as well as ‘the right to recognition everywhere as a person before law’
and to the equal protection of the law (arts 6 and 7). These rights require
social institutions for their fulfillment and are based on an understanding
of the history and practice of specific institutions, so it seems strange
to refer to them as ‘pre-social’. It might be argued that these more
concrete ‘institutional’ rights, at least if they are genuine rights, can
nonetheless be viewed as a specification of a more natural right – such
as the right to life or liberty. I do not wish to argue that it is impossible
to interpret some human rights in this way. However, I do want to claim
that it is not the most natural way to interpret the rights found in the
leading human rights documents. And it does not appear to be a plausible
strategy for some widely recognized human rights, such as a right
to nationality (or membership in a political society) (art. 15). Similar
considerations apply to the claim that human rights are ‘general’ rights,
that is, rights individuals possess ‘simply in virtue of their humanity’ and
apart from any (special) relationship they stand in to others.10 Again,
this is a peculiar claim to make concerning many established human
rights and it seems much more plausible to view them as ‘special’ rights
that individuals acquire on the basis of specific associative relations they
have to others. In other respects, of course, the features of human rights
favored by the political conception do coincide with the features found
in more traditional accounts, e.g. urgency, weightiness, universality and
broad shareability.11 However, the fact that these features of human rights
are shared with natural rights should not lead us to identify the two.
As I mentioned above, in recent years an alternative interpretation of
human rights has been proposed that has been called a ‘political conception’
of human rights.12 In general, this approach looks first to the treatment
of human rights within the already existing discourse and practice
of human rights or what has been called the ‘human rights regime’.13
The guiding idea is not to assess this regime by its conformity to the
tradition of natural rights or some other philosophical conception, but
rather to clarify the understanding (or understandings) of human rights
with respect to its own aims and purposes. Despite differences among
individual theorists within this alternative approach, there is a shared
conviction that human rights are not usefully conceived as natural rights.
Rather human rights are understood primarily as international norms
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that aim to protect fundamental human interests and/or secure for individuals
the opportunity to participate as members in political society.14
These international norms also provide a standard for assessing the conduct
of political societies and other governmental and non-governmental
bodies. As such, the account of human rights is not simply a description
of the practices of the human rights regime, but a normative framework
of its own assessment. According to some theorists, human rights are to
be viewed as part of a ‘realistic utopia’, according to others as constraints
obligating any coercive social institution, and others still as basic conditions
for membership in any political society. I refer to each of these
approaches as political for several loosely related reasons. According to
each, human rights are primarily (though not exclusively) claims against
political institutions and their officials as opposed to claims against
arbitrary individuals; secondly, human rights are understood primarily
in connection with the basic conditions of membership in a political
society (rather than as ‘general’ rights individuals possess ‘simply in
virtue of their humanity’);15 and, finally, and most importantly, human
rights are political in that the type of justification given for them is determined
by their political role or function. Since they are norms for the
assessment or evaluation of political societies and, possibly, even for the
justified imposition of sanctions on them, it is important that the norms
be ones that it is reasonable for political societies to acknowledge. To be
sure, this is perhaps the most controversial claim in the political conception
and one that is tied to what Rawls calls the fact of reasonable pluralism
and I will offer some support for it below. Now I want to consider
in turn four political conceptions – Ignatieff, Rawls, Pogge and Joshua
Cohen.
In a highly informative review of several books marking the 50th
anniversary of the UDHR, Michael Ignatieff offers some reflections on
the contemporary discourse and practice of human rights that aim to
avoid both of two extremes.16 On the one hand, he rejects the view that
the UDHR has become the sacred text of what Elie Wiesel has called a
‘world-wide secular religion’. On the other hand, he also dismisses an
opposing position which claims that human rights cannot stand on a
secular foundation alone but require ‘transcendent moral laws’. According
to the legal theorist Michael Perry, for example, the idea of human
rights is ‘ineliminably religious’ and any notion of the dignity of the
human person is at risk if its religious origins are denied.17 For Ignatieff,
by contrast, it is a noteworthy feature of the UDHR that it remains
silent on the question of the deeper foundations of human rights. This
silence was no doubt in part the result of political compromise on the
part of the drafting committee (headed by Eleanor Roosevelt), but it has
its own virtues as well.18 One practical consequence is illustrated by
what another legal theorist, Cass Sunstein, has called an ‘incompletely
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theorized agreement’: by refraining from the search for agreement on a
single overarching theoretical account of human rights, the drafting committee
made it possible for member nations to agree to the document
even though they may have given different rationales for the list.19 On
this view, it is a strength and not a weakness that the UDHR does not
attempt to provide one single deeper rationale for the rights that are
contained in it. Rather, anticipating Rawls’ own idea of an overlapping
consensus, the signatories to the Declaration could each do so from
within the framework of their own more comprehensive viewpoints. As
such, Ignatieff argues, the UDHR makes it possible for human rights to
become ‘less imperial’ and at the same time ‘more political’ (Human
Rights as Politics and as Idolatry: 20). It is not an attempt to proclaim
ultimate truth, or even a definitive and comprehensive list of all the
desirable ends of human life’ (ibid.), and it is certainly not presented as
a new credo for a ‘secular religion’. Rather, it creates a ‘common framework’
for deliberation among parties who might otherwise disagree
(ibid.). According to Ignatieff, human rights should accordingly not be
seen as ‘moral trumps’ that are above politics, but rather as a continuation
of politics by other means. They may serve to establish a ‘common
ground’ for argument and debate about political conflicts, but they are
also thoroughly political themselves and so not able to bring political
disputes to any definitive closure or conclusion (ibid.: 21). With these
last remarks, Ignatieff seems to imply that human rights are part of a
modus vivendi, an expedient and perhaps temporary compromise, rather
than as a potentially more stable moral agreement as suggested by Rawls’
notion of an overlapping consensus. (I will return to this point below.)
On the basis of this observation that human rights are a product of
political compromise, Ignatieff also defends the view that they should be
minimal in content. He defends what above I called the ‘lowest common
denominator’ approach. There is, he claims, a tendency to inflate the
language of human rights so that it begins to look like a laundry list of
human aspirations – indeed, this is Ignatieff’s view concerning many of
the rights in the UDHR. The danger is that this inflation will weaken the
value of rights language. Ignatieff thus proposes that the list of human
rights should be restricted to a minimum – the protection of human life
and liberty more or less as found within the natural rights tradition and
as outlined by Isaiah Berlin in his defense of negative liberty. Thus, in
order to bring as many people on board as possible, and in order to
preserve the stronger condemnation associated with a human rights
violation (including the real threat of military intervention as a response)
human rights should be based on what Ignatieff calls a ‘minimalist
anthropology’. They should be limited to the protection of the very basic
conditions of agency and based on a thin conception of moral reciprocity:
the idea that others should be protected from the pain and humiliation
that we could not imagine having inflicted on ourselves.
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Though I find Ignatieff’s attempt to develop a political conception
of human rights appealing, I want to mention two related problems in
his particular approach. First, his suggestion that his minimalist set of
rights should be construed as a modus vivendi makes his political
conception ‘political in the wrong way’ (to borrow Rawls’ phrase) and
diminishes the likelihood that his rights could be supported for diverse
but recognizably moral considerations. Such an appeal to a political
compromise also threatens the stabilizing role human rights might play
as a ‘common ground’ for debate. Ignatieff himself seems to recognize
this point when he defends his set of rights by appeal to a ‘minimalist
anthropology’. However, this move itself runs contrary to the idea of an
undertheorized agreement in that it appeals to a particular (and controversial)
account of human nature. On the other hand, Ignatieff’s ‘lowest
common denominator’ approach seeks to gain wide support by looking
for an empirical or de facto consensus on rights among the dominant
traditions. However, this strategy is not likely to succeed as there is
no guarantee that such a consensus exists or that its content would be
especially compelling. As Joshua Cohen convincingly argues, the aim for
broad agreement by appeal to a justificatory minimalism should not be
confused with a substantive minimalism about the content of human
rights.20 Ignatieff’s lowest common denominator approach leads in the
end to an unnecessary substantive minimalism and to a justificatory
strategy that reflects a compromise to existing political powers. Thus, I
think Ignatieff’s political conception should be rejected.
The best-known political conception of human rights is the one presented
by John Rawls in The Law of Peoples. In that work Rawls also
defends a fairly minimal set of basic rights (though not as minimal as
Ignatieff’s). However, the method by which he arrives at his preferred
set of rights differs importantly from Ignatieff’s. Rawls does not view his
set as the ‘lowest common denominator’ that reflects an existing overlapping
consensus. Such an approach would be for Rawls ‘political in the
wrong way’ (Political Liberalism: 142). It would be precisely a compromise
with the status quo or existing power relations and, according to
Rawls, objectionable for that reason. Though Rawls indeed proposes a
‘realistic utopia’, the realism is focused on what is feasible given human
nature as we know it – a clear reference to Rousseau – and not on a
compromise with existing power relations.21 Nonetheless, it remains
a political (and not metaphysical) conception and the originality of his
account lies in seeing how (or whether) he can avoid the charge of
compromise raised against him by Pogge and others.
Central to Rawls’ approach is what he calls the ‘fact of reasonable
pluralism’ or the fact of reasonable disagreement. The phrase can be
misleading though for it is not simply an empirical fact to which he
appeals, but rather a claim about our (normative) reasoning capacities
given certain background conditions. In the absence of coercive social
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institutions, people will disagree with one another about matters of deep
moral and religious value, and this disagreement cannot be chalked up
to error or objectionable bias: even people reasoning in good faith and
with a commitment to basic principles of sound reasoning, etc., will
continue to disagree. Rawls thinks this feature of our human condition
has important political consequences; in the political arena we need to
find a different common ground or basis for dialogue than a ‘search for
truth’ or a belief that one’s view is true. The further details of his argument
are not important here. The upshot, however, is that for purposes
of public political reasoning, the framework for debate in a liberal
democracy should be a set of political values that are constitutive for
liberal democracy and not a deeper claim about the truth of those values.
This is not skepticism, for Rawls does not deny that there may be a truth;
but it is an exercise in self-restraint, given the fact that citizens who argue
in good faith will disagree.
Rawls’ defense of a limited set of basic human rights in The Law of
Peoples has been the target of much criticism and confusion. In that work,
he introduces a second use of the original position at the international
level that parallels its role in the domestic case. However, according to
his proposal, at the international level the deliberating parties are representatives
of ‘peoples’ (or, roughly, liberal nation-states) rather than
representatives of individual citizens and the ‘veil of ignorance’ imposed
on them is less thick. The representatives, for example, are aware of
their own respective domestic conception of justice and their aim is to
find a set of foreign policy guidelines for a liberal polity so that their own
domestic conception of justice will be secure and their own political
independence or capacity for collective self-determination protected (Law
of Peoples: 34). Given that design and aim, Rawls claims that the parties
will agree to only a fairly minimal set of basic human rights (e.g. rights
to subsistence, physical security, personal property, formal equality under
the law and freedom of religion and thought) as well as to a duty of
assistance to ‘burdened societies’, and not to a more robust set of liberal
and democratic rights (see Law of Peoples: 65). Rawls is often criticized
at this point for making an unacceptable compromise to what he calls
non-liberal but ‘decent societies’ – that is, societies that realize some
conception of their common good but which are nonetheless not liberal.22
(As an example, he seems to have in mind a form of constitutional theocracy
where a common good conception is widely shared but where full
liberal and democratic rights are not recognized.) However, that this
interpretation is mistaken is, I think, clear given that he believes that even
a society of only liberal peoples will agree to the same set of basic human
rights as a society that includes non-liberal but decent societies as well.23
Or, at least if there is an unacceptable concession to the viewpoints of
non-liberal societies, it must somehow be built in at a deeper level.
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Rather, Rawls seems to have two different arguments for the more
minimal set of human rights, neither of which obviously relies on an
unacceptable concession to non-liberal societies. First, there is an argument
based on the particular function of human rights: since the parties
to the international original position already know that their basic
interests are secured by their own domestic conception of justice, this
is not what motivates them. Rather, their interest is to find a set of ‘international
norms’ for governing the interactions between ‘peoples’. On this
view, the function of human rights is not to provide a list of basic human
entitlements necessary, for example, to achieve an adequate level of
human flourishing or well-being. Rather, a primary function of human
rights is to specify the limits of internal sovereignty (Law of Peoples: 79).
And Rawls’ argument at this point (whether convincing or not) is that
even liberal peoples will set the limits to their sovereignty at a threshold
lower than a full set of liberal democratic rights.
There is also, I believe, a second and initially more compelling argument
to be found in the text. Rawls states that human rights specify a
‘necessary, though not sufficient standard for the decency of domestic
political and social institutions’ (Law of Peoples: 79). He also seems to
think that insofar as a political society is a genuine system of social cooperation,
rather than a society based on command by force, the political
authority must be committed to some common good conception and
make some reasonable claim to govern in the name of its members (Law
of Peoples: 68). Were that not the case, no genuine moral obligations
could arise among its members. Further, in such a society at least some
principle of reciprocity must be at work in which the terms of cooperation
are justifiable to its members for reasons they can accept. Rawls’
position, then, seems to be that a minimal set of human rights specifies
the conditions for membership in a society conceived as a system of social
cooperation and that only such a society is able to make a plausible
claim to political self-determination.24 So, another way to view Rawls’
account of human rights is that they set the necessary conditions for
the right to collective self-determination as found in article 1 of the
International Covenant on Civil and Political Rights. Further, a political
society that is based on mutual cooperation and not force must have
reasonably broad support among its citizenry and must possess some
‘common good’ conception; as such, it is not likely (or at least less likely)
to present a threat to peaceful international relations and so can be tolerated
by a liberal people.
Among the many criticisms directed at Rawls, as this point, I want
to mention only two (more or less familiar) concerns about Rawls’ political
conception of human rights since others will be addressed in my
discussion of Cohen below. First, as many critics have noted, although
Rawls’ Law of Peoples does move beyond a Westphalian world order
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in some respects – for example, in its recognition of limits to internal
sovereignty and to a right of assistance – his conceptual framework
nonetheless is committed to a ‘thin statism’.25 This is, of course, most
visible in his decision to make the parties in the second original position
peoples rather than individuals. However, it also appears in other contexts
as well, as in his assumption that the interests of a political society with
a common good conception and the interests of individuals sufficiently
coincide so that a further concern about individual human rights need
not play any significant role. The rationale for this commitment is disputed
and can be passed over here.26 What is less in dispute, however,
is that this commitment has a clear impact on the set of human rights
that the parties will agree to even in the first stage of agreement between
liberal peoples. The result is that, once a liberal people is assured of its
peaceful relation with other peoples, there is no motivation to secure
further rights for individuals. Indeed, although Rawls moves beyond
Ignatieff’s minimalism, his account of human rights does not seem to
leave much room for the emergence of new rights and obligations on
the political terrain beyond the nation-state.27 This objection to Rawls’
‘thin statism’ is not simply the claim that he assumes that nation-states
will continue to be major players in the new global order – this assumption
is widely shared by many cosmopolitans as well. Rather, the objection
is that, by assuming ‘thin statism’ in his theoretical construction, his
account of human rights is unjustifiably compromised.
Second, more briefly, as we saw in the first argument above, Rawls
links his account of human rights to a very specific function: they set the
limits of internal sovereignty. The account of human rights is meant to
provide a standard for the imposition of sanctions (or even intervention)
on those societies that violate human rights. Although this is arguably
an important function, it is not the only one. Human rights also play
an important role in social critique and in social persuasion in global
civil society, and they play an important role as a resource in international
debate and discussion. Thus, without a compelling argument
for restricting rights to this function, it is not clear that the account of
human rights should in turn be restricted in this way.28
A third political conception of human rights has been proposed by
Thomas Pogge in connection with his argument for a basic human right
to be free from poverty. His approach begins with a distinction between
an ‘interactional’ and an ‘institutional’ account of morality. On an interactional
account, moral obligations apply directly to individuals, whereas
on an institutional account they initially apply to institutions and their
corresponding practices. (The idea here is close to Rawls’ view that the
basic structure of society can be a primary subject of justice and that the
relevant account of social justice need not be the same as the account of
justice between individuals.) Individuals then have a derivative obligation
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not to participate in (the imposition of) unjust institutions and, when
they do, they also have further obligations to work toward its reform
and/or to aid those who are harmed by the institution.29 Human rights,
on this account, are primarily claims that individuals make on institutions
and those who participate in them – they are then a form of special
rights that are, to use Pogge’s term, ‘activated’ by the presence of specific
social institutions.30
According to Pogge, this institutional approach has several advantages
over other accounts. To begin, it is able to sidestep the age-old debate
between positive and negative rights and duties. On the one hand, the
primary moral obligation is an obligation not to participate in unjust
institutions; on the other hand, it creates special obligations on the part
of those who do toward those who are harmed by those institutions –
and, in this respect, the account parallels negative rights theorists, like
Nozick, who defend a principle of rectification. Further, at least in principle,
it has the advantage of specifying more directly who has responsibility
for fulfilling rights claims. Finally, though I will not pursue the topic
here, Pogge also argues that his institutional account has the additional
virtue of underscoring the interconnectedness of basic rights.31
In support of his institutional account, Pogge also offers a novel
interpretation of article 28 of the UDHR which states: ‘everyone is
entitled to a social and international order in which the rights and
freedoms set forth in this declaration can be fully realized’.32 Pogge does
not interpret this article as specifying a further right but rather as a more
general background condition. On the ‘weak’ version (which he endorses)
individuals have a claim that social institutions imposed on them should
secure access to their human rights. He contrasts this with a stronger
reading according to which individuals have a claim to establish a social
order in which humans rights would be secure. Pogge rejects this stronger
reading because, in such a supposed ‘state of nature’, it would again be
unclear on whom the responsibility to bring about such an order fell.
In any case, given the presence today of a global institutional order or
‘global basic structure’ (as he claims there is) the obligation to secure
human rights now falls on everyone who collaborates with it.
Pogge’s argument that human rights – including, in particular, the
right to be free from poverty – are claims on institutions and those who
participate in them is powerful and appealing. It has the advantage of
providing a basis for broad shareability and more clearly delineating
lines of responsibility for their fulfillment. Government leaders and other
officials bear the greatest responsibility for securing rights for those
affected; but significant responsibility also falls to those who participate
in them. Moreover, what makes them distinctively human rights (as
opposed to the political rights that citizens can claim against their
respective governments) is that they are rights ‘activated’ by the presence
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of a global unjust institutional order (Law of Peoples: 177). Nonetheless,
some questions can be raised in connection with his analysis.
Although Pogge makes a strong case for the claim that we have a
duty not to participate in unjust social institutions, it is not clear that
this duty provides the best basis for understanding what rights individuals
are entitled to claim. Rights to an adequate standard of living,
to health care or even to be free from poverty can equally be seen as
conditions for membership in a society and not primarily as claims activated
by the imposition of an unjust institution. This is even more the
case for many of the other rights in the UDHR such as rights to legal
standing, participation and association, etc. Similarly, a more straightforward
reading of article 28 would also be to see it as a demand for
inclusion and not primarily as a remedy for the consequences of unjustly
imposed institutions. One strength of Pogge’s analysis is that it more
clearly defines lines of responsibility for human rights fulfillment: those
in official positions bear primary responsibility, and others share responsibility
based on the extent of their own collaboration. However, it might
be that a good answer to the question ‘Who are the agents of human
rights?’ – ‘who bears responsibility?’ – is not at the same time the best
approach for answering the question of what human rights we have
(and why). In fact, I would suggest that these questions can be somewhat
distinguished from one another, even if an answer to one provides some
guidance for an answer to the second. (I will return to this ‘claimability
objection’ in my discussion of Cohen below.) Finally, although Pogge is
also correct to claim that an account that reveals the interdependence
of human rights strengthens the claim for each, it is again less clear that
the interconnected effects of the imposition of unjust institutions is the
most straightforward way to argue for this interdependence. If human
rights are indeed interconnected, then it will not be surprising that the
imposition of unjust institutions will have an impact on many of them.
But it is not obvious that the best explanation of the interdependence
of human rights is the fact of the combined impact of unjust institutions
upon them. I now turn to what I believe is ultimately a more satisfactory
account, though one that is consistent with many of Pogge’s insights.
A final political conception of human rights I would like to consider
has been proposed by Joshua Cohen and Charles Beitz. Both of these
theorists place a priority on fidelity to the leading human rights documents
and the developing human rights regimes. One important task of
philosophy is to clarify the place of human rights and their rationale in
this wider discourse and sets of practices. Both also accept, like Pogge, a
broadly associational account of human rights: rights and corresponding
duties are created by the special relationship that individuals stand in
to one another, rather than as claims individuals have ‘simply in virtue
of their humanity’. The development of new global institutions with
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definite consequences for the opportunities and welfare of others creates
new relations that transform the normative terrain beyond the borders
of the nation-state. Unlike Ignatieff and Rawls, however, Cohen and Beitz
argue for a more expansive set of human rights and, indeed, suggest that
as the global terrain is altered, different conditions for effective inclusion
in the political community are likely to follow in its wake. I will limit
myself here to Cohen’s account.
On Cohen’s view, human rights are, inter alia, international norms
that specify the basic conditions for membership or inclusion in a political
society (‘Minimalism about Human Rights’: 197; and ibid.: 237).
This view can be understood in either of two ways. On the one hand,
the norms appear to specify (minimal) conditions of membership in a
political society which any political society must satisfy if it is to be
entitled to recognition as a member within the international community.
This reading is close to Rawls’ position that treats human rights as
minimal conditions for a society that makes a plausible claim to political
self-determination. Also like Rawls, this set of rights is less demanding
than the full set of rights required for a liberal-democratic society.
However, Cohen also seems to understand inclusion in a second sense:
human rights specify not only terms of inclusion in this more traditional,
territorially limited notion of political society, but also conditions of
membership for individuals (and perhaps other moral persons) in an
international political society.33 Indeed, it could be argued that the
specifically cosmopolitan aspect of human rights only emerges at this
point: they are then global norms that protect individual interests and
to which individuals can appeal. On this second reading, the idea is
that, beyond the traditional nation-state, transnational institutions have
created associative relations with others that in turn give rise to normative
obligations more demanding than basic humanitarian concerns.34
These global or supranational complexes of institutions or ‘regimes’
(including regional organizations, transnational corporations and economic
institutions, various governmental organizations and an increasingly
influential and vast array of NGOs) implicate individuals – through
the consequences of their activities and through the involvement of their
wills – such that specific rights and corresponding obligations are established.
Further, these rights are human rights in the sense that they are
(or should be) recognized as international norms that bind the respective
regimes. Although these two senses of membership or inclusion are
not incompatible, there are possible points of tension between them.
The first, for example, largely conforms to the Westphalian idea that the
territorial nation-state is responsible for and accountable to those living
within its territory and that it must satisfy conditions to be a member
in good standing of a society of societies. The second reading, by contrast,
allows for a much more differentiated notion of (political) sovereignty
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in which the state is one important actor among others, but is not solely
responsible for the welfare of its citizens nor accountable only to those
living within its borders.35
Cohen’s account raises a number of important and difficult questions.
To begin, in viewing rights as norms that secure conditions of membership
or inclusion, Cohen moves beyond the minimalism of Ignatieff while
at the same time addressing his concern that human rights should be
articulated apart from deeper metaphysical commitments. The distinction
between substantive minimalism and justificatory minimalism, introduced
by Cohen and mentioned above, is centrally important here. The
idea is that membership in a political society is a concern that can be
embraced from the perspective of many different comprehensive views
and, indeed, is also one that can stand on its own. That is, considerations
that appeal to conditions of membership can be embraced either for a
variety of more comprehensive reasons or for (proper) political considerations
alone. On the other hand, Ignatieff’s substantive minimalism,
where the concern is to restrict basic rights to the de facto overlap among
comprehensive views, does not look promising in its own right. There
is no particular reason to suppose that other influential comprehensive
views already contain even minimal liberty rights let alone minimal
conditions for membership in political society. Cohen’s task, by contrast,
is to challenge comprehensive views to find a way from within their own
respective traditions to embrace the good of political membership. The
hope is that by focusing on conditions of inclusion or membership, the
justification of human rights can find a wider basis – and one that can
be supported from a variety of different viewpoints – than it can by appeal
to the inviolability or inherent dignity of the (pre-social) individual alone.
Second, and again in ways analogous to Ignatieff’s conception,
according to Cohen, human rights provide ‘a terrain of deliberation and
argument’:36 different accounts of human rights do not necessarily mean
people are talking past one another, nor should human rights talk be
viewed as mere ‘window-dressing’ for different power constellations.
Rather, human rights have a practical role, on Cohen’s view, in that they
can be the focus of debate on the necessary or minimal conditions for
membership in political society. As such, human rights also ‘represent
a partial statement of the content of an ideal of global public reason’
(‘Minimalism about Human Rights’: 195). By this, Cohen means that
human rights are part of ‘a broadly shared set of values and norms for
assessing political societies’ (ibid.). Consequently, though the aim is to
build a convergence on them, human rights should not be seen as ‘a
determinate and settled doctrine awaiting acceptance or rejection’ (ibid.).
Rather, deliberation and argument about human rights have an inherently
reflexive character. In broad outline, the debate will be over the
basic conditions for membership in a political society (in either of the
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two senses I noted above). Such a debate, however, will appeal to the
nature and function of the particular institutions (and their interrelations)
that emerge, in particular, at the international level. It will involve
consideration about the nature of the associations in question and the
kinds of special obligations to which they give rise. However, there is
no reason not to think that, as the terms of membership and inclusion
become more demanding and complex, the set of human rights will need
to be modified as well. Perhaps even, in contrast to Cohen’s own position,
human rights will eventually include a right to democracy itself.37
Various objections can be raised against this political conception of
human rights. I will briefly consider three, none of which, I think, ultimately
presents a decisive challenge. One objection is that a ‘political’
account of human rights such as those considered here, simply misses the
point of human rights – the protection of basic or fundamental human
interests. Traditionally, human rights have been defended on the grounds
that they secure basic human liberties or fundamental interests. And the
good or value of these liberties or interests in turn rests on some appeal
to the inviolability of the person or a claim about the basic dignity or
worth of the person. Indeed, the preamble of the UDHR itself makes
reference to the ‘inherent dignity’ of all members of the human family.
So, the objection continues, a ‘political, not metaphysical’ account, which
expressly avoids appeal to the moral dignity or worth of the individual
and prefers instead to focus on conditions of membership, must lose
sight of the fundamental point of human rights. In short, it takes the
human out of human rights.38 In response, I believe that this criticism
misses the point of a political conception. On the one hand, it is certainly
true that the point of human rights is to secure basic human needs and
interests and Cohen, for example, is quite clear that inclusion or membership
is important because it will protect basic human interests.39 On the
other hand, however, this objection itself loses sight of the idea of justificatory
minimalism. If a focus on conditions of membership offers a
basis for reflection and debate on basic human rights that in turn is
capable of achieving wide political agreement, then a way has been found
to protect fundamental human interests while remaining silent on the
deeper metaphysical story to be told about human interests. This, to
repeat, is an example of an ‘undertheorized agreement’ and not a denial
that a deeper truth might exist. It might be possible to provide a justification
of rights that secure basic human interests without its being necessary
for that justification to appeal directly to the ‘inherent dignity’ of
the individual or some other contested value.
A second objection to a political account, especially one like Cohen’s,
is that it runs afoul of the ‘claimability condition’. Onora O’Neill,
among others, has argued that for a human right to be a bona fide right,
it must be possible to identify clearly those against whom the right may
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be claimed. ‘Unless obligation-bearers are identifiable by right-holders,
claims to have rights amount only to rhetoric: nothing can be claimed,
waived or enforced if it is indeterminate where the claim should be
lodged, for whom it may be waived or on whom it could be enforced.’40
Applied to Cohen, the objection would be that in the post-Westphalian
scheme of differentiated sovereignty, the question of who bears the
obligation to fulfill a right simply remains too indeterminate. O’Neill is
certainly correct to point out that, once the list of human rights is not
restricted to universal (negative) liberty rights, the question of who bears
responsibility for their fulfillment becomes more complicated. (Although
it should also be noted that even in the first case of negative rights, the
answer is not always obvious: who, for example, is responsible for providing
for a police force to protect against the violation of rights and
how far does that responsibility extend?)41 At the same time, the view
that a right is only a bona fide right if it is claimable seems too strong:
it is possible that, under different institutional arrangements, different
lines of responsibility could be devised and it does not seem to be the
case that a determinate agent has to be identified in advance to establish
a right. Rather, what the claimability condition does show, on a more
modest reading, is that mechanisms or processes for assigning responsibility
should be in place (or at least be reasonably conceivable) if a right
is claimed. The membership account would seem to be in a good position
to meet that constraint.
Finally, there are difficult questions that must be addressed about the
relationship between the function of rights and the preferred set of
human rights. Cohen himself seems to be somewhat ambivalent on this
issue: on the one hand, he expresses some sympathy for the view that
human rights provide a set of limits on internal sovereignty (‘Minimalism
about Human Rights’: 195). However, as we saw in our discussion
of Rawls, assigning this function to human rights tends to weigh in favor
of a more restrictive list. On the other hand, as we just noted, Cohen
also speaks of human rights as part of the content of an ideal of global
public reason. So conceived, it is clear that human rights can have a much
broader role than that of a standard for determining when sanctions
might legitimately be imposed. This wider role for human rights is also
clearly an important part of current human rights discourse and practice:
human rights provide guidance for the proper conduct of political
societies, they shape the development of international law, they serve as
norms for monitoring and shaping the behavior of transnational corporations
and other international organizations, they are ‘weapons of
critique’ in a transnational civil society – a ‘third force’ in the words of
Thomas Risse, and they also can serve as an aspirational and motivational
resource.42 Indeed, this latter has clearly been one important role
of the UDHR itself. Unfortunately, then, I do not have a ready answer
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to the question about the proper function of human rights, perhaps
because I harbor the hope that these functions can, if not converge, at
least work in tandem. At any rate, noting the wider function of human
rights, I think, supports the virtues of a political conception and weighs
against any identification of human rights with the more traditional and
limited set of natural rights.
Syracuse University, USA
Notes
1 See Michael Ignatieff, ‘Human Rights: The Mid-Life Crisis’, New York
Review of Books (20 May 1999).
2 See R. J. Vincent, Human Rights and International Relations (New York:
Cambridge University Press, 1986), pp. 48–9; A. Milne, Human Rights and
Human Diversity (Basingstoke, Hants: Macmillan, 1986); and, for convincing
criticism, Joshua Cohen, ‘Minimalism about Human Rights: the Most
We Can Hope for’, Journal of Political Philosophy 12 (2004): 190–213.
3 There are many versions of this response. A particularly clear and forceful
case is found in John Tasioulas, ‘The Moral Reality of Human Rights’, in
Freedom from Poverty as a Human Right (New York: Oxford, 2007),
pp. 75–102.
4 See, for example, Maurice Cranston, What are Human Rights? (London:
Bodley Head, 1973), p. 1; Maurice Cranston, ‘Are There Any Human
Rights?’, Dadaelus 112 (1983): 1–17; and A. John Simmons, ‘Human Rights
and World Citizenship’, in Justification and Legitimacy: Essays on Rights
and Obligations (New York: Cambridge University Press, 2001).
5 Charles Beitz and Leif Weinar prefer the label of a ‘practical’ conception
of human rights.
6 See, for example, James Griffin, ‘Discrepancies Between the Best Philosophical
Account of Human Rights and the International Law of Human
Rights’, Proceedings of the Aristotelian Society CI (2001): 1–28.
7 See, for example, Alistair Macleod, ‘The Structure of Arguments for Human
Rights’, in Universal Human Rights, ed. D. Reidy and M. Sellers (Totowa,
NJ: Rowman & Littlefield, 2005), pp. 17–36, who proposes a ‘fairness’
test and the ‘public reasons’ test recently proposed by Amartya Sen, ‘Elements
of a Theory of Rights’, Philosophy and Public Affairs 32 (2004): 315–56.
See also William Talbott, Which Rights Should be Universal? (New York:
Oxford University Press, 2005).
8 One such argument, sometimes called the ‘claimability objection’, has been
made by Onora O’Neill. The idea is that to be a valid right it must be
claimable against identifiable agents, and only negative rights clearly have
this feature. See discussion below.
9 Simmons, ‘Human Rights and World Citizenship’, p. 185.
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10 The idea that natural (or human) rights must be ‘general’ in kind was
defended by H. L. A. Hart in ‘Are There Any Natural Rights?’ (in Theories
of Rights, ed. J. Waldron [New York: Oxford University Press, 1984]); this
view is strongly rejected by Charles Beitz in ‘What Human Rights Mean’,
Daedalus 132 (2003): 36–46.
11 For a discussion of these features of human rights, see Thomas Pogge,
‘Human Rights and Human Responsibilities’, in Global Justice and Transnational
Politics, ed. C. Cronin and P. DeGreiff (Cambridge, MA: MIT
Press, 2002), p. 159.
12 Recently, see, especially, Charles Beitz, ‘Human Rights and the Law of
Peoples’, in The Ethics of Assistance, ed. D. Chatterjee (New York:
Cambridge University Press, 2004), pp. 193–214; Cohen, ‘Minimalism
about Human Rights’; and Peter Jones, ‘International Human Rights:
Political or Metaphysical?’, in National Rights, International Obligations,
ed. S. Caney, D. George and P. Jones (Boulder, CO: Westview, 1996),
pp. 183–204; for earlier political conceptions of rights see Attracta Ingram,
A Political Theory of Rights (Oxford: Oxford University Press, 1994),
Claude Lefort, ‘Politics and Human Rights’, in The Political Forms of
Modern Society (Cambridge, MA: MIT Press, 1986) and Kenneth Baynes,
‘Rights as Critique and the Critique of Rights’, Political Theory 28 (2000):
451–68.
13 On the idea of a ‘human rights regime’, see, for example, A. Moravscik,
‘Explaining International Human Rights Regimes: Liberal Theory and
Western Europe’, European Journal of International Relations 1 (1995):
157–89; Charles Beitz, ‘What Human Rights Mean’, Daedalus 132 (2003):
36–46 (40); John Ruggie, ‘Human Rights and the Future International
Community’, Daedalus 112 (1983): 102–4; and Thomas Risse, ‘The Power
of Norms versus the Norms of Power’, in The Third Force (Washington,
DC: Carnegie, 2000), p. 190.
14 John Rawls, The Law of Peoples (Cambridge, MA: Harvard University
Press, 2001), pp. 27 and 78–81; and Beitz, ‘Human Rights and the Law of
Peoples’, pp. 193–214.
15 On this point, see, especially, Beitz, ‘Human Rights and the Law of Peoples’.
16 Ignatieff, ‘Human Rights: The Mid-Life Crisis’; see also Michael Ignatieff,
Human Rights as Politics and as Idolatry (Princeton, NJ: Princeton University
Press, 2001), hereafter page references to this work follow in parentheses.
17 Michael Perry, The Idea of Human Rights (New York: Oxford University
Press, 1998).
18 For a history, see Mary Ann Glendon, A World Made New: Eleanor Roosevelt
and the Universal Declaration of Human Rights (New York: Random House,
2001).
19 Cass Sunstein, Legal Reasoning and Political Conflict (New York: Oxford
University Press, 1996).
20 Cohen, ‘Minimalism about Human Rights’.
21 Rawls, The Law of Peoples, pp. 13 and 6, n. 8; John Rawls, Political Liberalism
(New York: Columbia University Press, 1993).
22 See, for example, Thomas Pogge, ‘An Egalitarian Law of Peoples’, Philosophy
and Public Affairs 23(3) (1994): 195–224; and Allen Buchanan,
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‘Rawls’s Law of Peoples: Rules for a Vanished Westphalian World’, Ethics
110 (2000): 697–721.
23 See David Reidy, ‘Political Authority and Human Rights’, in Rawls’s Law
of Peoples, ed. Rex Martin and David Reidy (Oxford: Blackwell, 2006),
p. 171 and Samuel Freeman, ‘The Law of Peoples, Social Cooperation,
Human Rights and Distributive Justice’, in Justice and Global Politics, ed.
E. Paul et al. (Cambridge: Cambridge University Press, 2006), p. 36 for a
similar reading of Rawls.
24 A similar interpretation of Rawls can be found in Reidy and Freeman
(above).
25 Andrew Kuper, ‘Rawlsian Global Justice’, Political Theory 28 (2000): 640–74.
26 See, for example, the conflicting interpretations of Pogge, ‘An Egalitarian
Law of Peoples’, and Freeman, ‘The Law of Peoples, Social Cooperation,
Human Rights, and Distributive Justice’.
27 See the exchange between Thomas Nagel, ‘The Problem of Global Justice’,
Philosophy and Public Affairs 33 (2005): 113–47, and Joshua Cohen and
Charles Sabel, ‘Extra Rempublicam Nulla Justitia?’, Philosophy and Public
Affairs 34 (2006): 147–75.
28 See James Nickel, ‘Are Human Rights Mainly Implemented through Intervention?’,
in Rawls’s Law of Peoples, ed. by Martin and Reidy; and John
Tasioulas, ‘From Utopia to Kazanistan: John Rawls and the Law of Peoples’,
Oxford Journal of Legal Studies 22 (2002): 367–96.
29 Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity Press,
2002), p. 66 and 171; and Thomas Pogge, ‘Human Rights and Human
Responsibilities’, in Global Justice and Transnational Politics, ed. Pablo De
Greiff and Ciaran Cronin (Cambridge, MA: MIT Press, 2002), p. 166.
30 Pogge, World Poverty and Human Rights, p. 170.
31 ‘Human Rights and Human Responsibilities’, p. 181; on the importance of
the interconnectedness of rights, see also James Nickel, ‘Human Rights’
(Stanford Encyclopedia on-line) and Henry Shue, Basic Rights (Princeton,
NJ: Princeton University Press, 1980), pp. 74 ff.
32 For Pogge’s discussion, see ‘Human Rights and Human Responsibilities’,
pp. 164 ff.
33 See Cohen and Sabel, ‘Extra Rempublicam Nulla Justitia?’.
34 See ibid.
35 On the idea of differentiated (or dispersed) sovereignty, see Thomas Pogge,
‘Cosmopolitanism and Sovereignty’, in World Poverty and Human Rights;
David Held, The Global Covenant (Cambridge: Polity Press, 2004); and
Jürgen Habermas, The Divided West (Cambridge: Polity Press, 2006).
36 Cohen, ‘Minimalism about Human Rights’, p. 195.
37 Joshua Cohen, ‘Is there a Human Right to Democracy?’, in The Egalitarian
Conscience, ed. Christine Sypnowich (Oxford: Oxford University Press,
2006), pp. 226–48.
38 See Allen Buchanan, ‘Taking the Human out of Human Rights’, in Rawls’s
Law of Peoples, ed. Martin and Reidy.
39 See Cohen, ‘Minimalism about Human Rights’, p. 197.
40 Onora O’Neill, Towards Justice and Virtue (Cambridge: Cambridge University
Press, 1996), p. 129.
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41 Tasioulas, ‘The Moral Reality of Human Rights’.
42 See Nickel, ‘Human Rights’, p. 270, for a list of the various roles human
rights fulfill.
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