Electronic copy available at: http://ssrn.com/abstract=1090350
William Talbott’s Which Rights Should be Universal?
David A. Reidy
# Springer Science + Business Media B.V. 2007
Abstract In this review essay, I first set out and then subject to criticism the main
claims advanced by William Talbott in his excellent recent book, “Which Rights
Should be Universal?”. Talbott offers a conception of basic universal human rights
as the minimally necessary and sufficient conditions to political legitimacy. I argue
that his conception is at once too robustly liberal and democratic and too inattentive
to key features of the rule of law to play this role. I suggest that John Rawls’s
conception of human rights comes closer to hitting the mark Talbott sets for himself
and that Talbott incorrectly rejects Rawls’s view. I conclude that what likely divides
Talbott and Rawls is that Rawls, but not Talbott, explicitly frames the inquiry into
the minimally necessary and sufficient conditions to political legitimacy in terms of a
liberal democratic people attempting to determine, as a matter of its just foreign
policy, whether or not to recognize other organized polities as independent and selfdetermining
within the international order.
Professor Talbott begins his very engaging Which Rights Should be Universal? by
distinguishing among three different kinds of account of human rights. First, there
are “shock the conscience” accounts. In this paper, human rights are just those rights
in which the violation of which would and does shock the conscience of any morally
competent person. Discussions of humanitarian intervention, international duties to
protect, and international criminal liability typically proceed from accounts of this
sort. Second, there are “overlapping consensus” accounts. In this paper, human
rights are just those rights that diverse peoples happen, as a matter of contingent fact,
all to affirm, either now or in the future. Discussions of human rights as ingredient in
positive international law via treaty making, reflective acquiescence to customary
practice, or some other instance of voluntary undertaking typically proceed from
accounts of this sort. Third, there are “minimal legitimacy” accounts. In this paper,
the idea is that human rights are those rights necessary and sufficient to the
Hum Rights Rev
DOI 10.1007/s12142-007-0038-y
D. A. Reidy (*)
Department of Philosophy, University of Tennessee,
801 McClung Tower, Knoxville, TN 37996, USA
e-mail: dreidy@tennessee.edu
Electronic copy available at: http://ssrn.com/abstract=1090350
legitimacy of any polity within the international order and thus to its right to
nonintervention. Discussions of international recognition and toleration typically
proceed from accounts of this sort. Professor Talbott indicates that we need not
choose between these three kinds of account, for they may each play a valuable role
in different domains of international political theory, practice, and law. I agree.
Professor Talbott devotes his book to offering a “minimal legitimacy” account of
human rights. He recognizes that his main rival here is John Rawls. In The Law of
Peoples, Rawls characterizes basic human rights as just those necessary and
sufficient to the legitimacy of any polity within the international order, to its right to
recognition and thus to nonintervention. However, on Talbott’s view, Rawls’s list of
human rights is too thin. Although basic human rights are, for Rawls, a proper subset
of rights essential to liberal democratic constitutionalism, they are a subset. There is,
for Rawls, no basic human right to the full range of liberal freedoms, to liberal
nondiscrimination norms, to full gender equality, to democratic decision procedures
or universal suffrage, or to the sort of welfare provisions familiar to advanced liberal
democracies. On Talbott’s view, Rawls offers no principled basis for his distinction
between basic human rights and the rights essential to liberal democratic
constitutionalism. Indeed, Talbott thinks that Rawls’s distinction reflects an
unprincipled compromise between liberal and communitarian commitments and
rests on little more than Rawls’s own all-too-Westphalian intuitions regarding the
right to toleration and nonintervention within the international order.
I think Professor Talbott is wrong here. I think Rawls’s list of basic human rights
is neither as thin as Talbott thinks it is nor too thin overall as an account of those
rights necessary and sufficient to minimal legitimacy and thus a right to
nonintervention within the international order. Nor do I think Rawls’s view little
more than an ad hoc invocation of intuitions or an unprincipled compromise between
liberalism and communitarianism (Talbott 11–12). However, I do not want to devote
my time here to reconstructing and defending the Rawlsian position. I have been at
that task in several recent essays. I want here to focus on Professor Talbott’s
position. He sets out to do better than Rawls. He offers a principled consequentialist
argument for a conception of human rights substantively more robust than Rawls’s.
On Talbott’s conception, all persons have a basic human right to life in what
amounts roughly to a liberal democracy. Thus, non-liberal or non-democratic polities
have no right, even if they are well-ordered and decent constitutional republics, to
recognition or nonintervention within the international order. Liberal democratic
states might tolerate them for various strategic or prudential reasons, but they have
no right to recognition or nonintervention.
I will proceed by setting out the key features of Professor Talbott’s view and then
trying to put some pressure on it by noticing some matters to which he does not
attend and which, once attended to, seem to press us back in a more Rawlsian
direction. In the end, my worry about Professor Talbott’s position does not so much
concern his arguments as it does the way he understands and sets up the problem the
solution to which his arguments are meant to point.
I want first to notice an irony. Talbott finds Rawls’s view insufficiently liberal and
democratic in content, insufficiently oriented toward autonomy as a necessary
ingredient in or means to human well-being. Yet Rawls explicitly develops his view
from the practical point of view of a liberal democratic people concerned, as a
D.A. Reidy
corporate moral agent, to identify the principled moral constraints on its foreign
policy. Thus, it is in a way surprising that Rawls’s view would turn out to be
insufficiently liberal and democratic. It is also surprising, given his own point of
departure, that Talbott claims for himself the more liberal and democratic view. Talbott
takes as his own point of departure that of the individual person theoretically
concerned to identify universal moral truths regarding what may and may not be done
to, or must and must not be done for, others. Given all the obstacles to establishing
such truths as a theoretical matter, one might expect Talbott to arrive at a thinner, a less
liberally or democratically inclined, conception of human rights than does Rawls.
However, Talbott is optimistic about making significant theoretical progress along the
path to universal moral truths of a fairly robust liberal and democratic character.
Furthermore, Rawls is too willing, on Talbott’s view, to forsake this progress and these
truths, to ignore what we know, for the practical allure of an accommodationist
toleration and a non-comprehensive political liberalism.
Talbott is rightly unmoved by two alleged bases of skeptical worries regarding
universal moral truths sufficient to underwrite universal human rights. The first
worry arises out of skepticism toward the existence of self-evident, universal first
principles of morality from which one might deduce universally true moral
propositions. On Talbott’s view, this sort of skepticism is a problem only if we
assume what he calls the “proof paradigm” of epistemic justification of moral beliefs
(Talbott, 22–6). However, we need and ought not assume this paradigm (according
to which mathematical and moral knowledge must both conform to the same
epistemic constraints of deductive proof from self-evident first principles). Instead,
we may and ought adopt what Talbott calls the “discovery paradigm” (Talbott, 33–5).
On this latter model, we discover universal moral truths as we search for the best
explanation and justification of our most enduring considered moral judgments in
concrete cases. Proceeding in this way, starting from the bottom and moving up, as it
were, and aiming always at wide and full reflective equilibrium, we will never arrive at
“self-evident” first principles or at moral truths about which we can be “absolutely
certain” as if we were infallible. However, we can arrive – and on Talbott’s view, have
already arrived – at some universal moral truths about which we can be as certain as
any fallible beings engaged in reflective moral inquiry can be. Some of these truths are
likely to be – in fact are – sufficiently general and abstract to count as basic moral
principles or human rights. Their normative force and reach is no different from that of
the “self-evident first principles” assumed by the “proof paradigm.” Indeed, they apply
to all possible beings with the requisite cognitive and affective capacities in all
possible worlds (Talbott, 32). As Talbott puts it, his “discovery paradigm” couples
“metaphysical immodesty” (that aspect of the “proof paradigm” most attractive to
Talbott) with “epistemic modesty” (that aspect of moral skepticism most attractive to
Talbott) in the domain of moral judgment and belief.
The second skeptical worry we might have about the possibility of arriving at
universal moral truths sufficient to underwrite universal human rights arises out of a
relativist anxiety generated by the manifest moral diversity in the world and the
apparent impossibility of anything like a neutral universal standpoint from which to
identify universal moral truths. To avoid moral imperialism or ethnocentrism, then,
we must renounce all moral claims with a universal reach. Or so the worry goes. But
following arguments by now familiar to most, Talbott argues that extreme forms of
William Talbott’s which rights should be universal?
cultural relativism collapse under the weight of their own incoherent moral
insistence on universal toleration in the absence of universal moral truths.
Of course, one might argue for the kind of broad tolerance favored by relativists
not from the rather extreme and doubtful premise that there are no universal moral
truths, but rather, from the more modest premise, that there is some universal moral
truth from which such tolerance may be deduced as a moral requirement. For
example, one might argue that it is universally true that cultures or polities cannot
make mistakes regarding the moral soundness of their own norms, or that different
cultures or polities embody incommensurable moral visions or values or orders of
value, or that it is simply impossible to judge the internal norms of another culture or
polity in anything like an unbiased way, and that the tolerance favored by relativists
simply follows from one or more of these truths. If universally true, any of these
premises might be thought sufficient to justify a very broad and far reaching moral
principle of toleration incompatible with anything like universal human rights.
However again, following arguments by now familiar to most, Talbott rightly rejects
these more modest, or less extremely skeptical, arguments against the possibility of
universal human rights (Talbott, 39–47).
Furthermore, Talbott offers his own positive argument for the possibility of our
making reliable, although not infallible, moral judgments true from any moral point
of view and thus universal in reach. Making judgments of this sort is no small
matter. We need well-developed moral sensitivity and empathy as well as a
disciplined ability to identify and remove familiar sorts of obstacles that prevent us
from seeing moral truths – for example, self-serving biases and moral blind-spots.
However, Talbott insists, it is not beyond our ability to discover moral truths reliably
true from any moral point of view and thus universal in their normative reach
(Talbott, 48–86). Talbott’s discussion of the ways in which we can run off the rails
when justifying our moral judgments is highly instructive.
I do not want here to engage Talbott’s positive arguments for the possibility of
genuine moral knowledge except to note that one need not subscribe to the sort of
moral realism to which he seems to subscribe to affirm universal or objective
standards of moral correctness and thus to reject those species of moral relativism
that refuse all such standards. For example, moral constructivists reject moral
relativism without subscribing to any sort of robust moral realism. In any event, I am
willing for the time being to allow Talbott his way of conceiving human rights –
namely as expressing somewhat general or abstract moral principles objectively and
universally true from any moral point of view and discovered through critical
reflective inquiry into our more enduring individual moral judgments at the level of
interpersonal morality.
On Professor Talbott’s view, “We now have sufficient understanding of the nature
of human beings and of the moral constraints on how they should be treated to
realize that governments everywhere ought to guarantee certain basic rights to
everyone within their borders” (Talbott, 3). Okay, but which rights?
Those that make possible the development and exercise of individual autonomy,
Talbott answers (Talbott, 11, 88, 105–7, 112, 172, etc.). Okay, but why these rights?
One possibility is given by familiar non-consequentialist arguments based on the
respect owed the capacity for autonomy itself, based on its dignity or supreme
intrinsic value. Talbott neither explores nor rejects arguments of this sort. Instead, he
D.A. Reidy
offers a consequentialist argument according to which the development and exercise
of individual autonomy are always either instrumental to or ingredient in each
person’s good and thus securing the rights necessary to the development and
exercise of individual autonomy is essential to maximizing the good.
From a consequentialist perspective, polities, and hence governments, exist to
secure and promote the good or well-being of their members (in a “distributively
appropriate” manner, as Talbott routinely acknowledges, distancing himself from
crude maximizing forms of aggregative utilitarianism). However, Talbott argues,
following John Stuart Mill, we now know that normally competent adults know best
when it comes to their own good or well-being. Indeed, this discovery of first-person
authority with respect to judgments regarding the good or well-being of individuals
is, Talbott says, the most important moral discovery of recent centuries (Talbott, 174).
Normally competent adults may have many reasons to affirm and accept political
authority – It is necessary to solve coordination problems or underwrite cooperation
subject to a determinate and public conception of distributive justice. However, on
Talbott’s view, that their good or well-being is better or best understood by political
leaders is never among the reasons normally competent adults have to affirm and
accept political authority. Political rulers may try to justify paternalist state policies or
non-democratic decision procedures on the grounds that they better or best understand
the good or well-being of the citizens or subjects they rule. Furthermore,
consequentialists cannot rule out this kind of reasoning in principle. However, as a
matter of empirical fact, it is never a good reason. This is a universal moral truth we
have only recently discovered. Accordingly, political authority is always unjustifiable
and illegitimate when such paternalistic considerations constitute its sole or primary
justification, at least with respect to normally competent adults.
Given every normally competent adult’s first-person authority over matters
concerning her own good or well-being, every polity must cultivate the ability of its
members to exercise good judgment as competent adults and then solicit and reliably
respond to those judgments in the formulation (and ongoing reformulation) of government
policies. Where individuals can be left free to act on their own judgments
regarding their good or well-being, they should be so left (Talbott, 134). And where
collective decisions are necessary and unavoidably constrain individual liberty, those
making them must receive democratic input and be subject to democratic accountability
(Talbott, 140–1). A polity or government cannot justifiably believe that it is
acting so as to secure and promote the good or well-being of its members (appropriately
distributed), and therefore cannot, on Talbott’s view, justifiably claim recognition as
legitimate or a right against intervention, unless these conditions are satisfied.
Therefore, all persons have basic human rights to the material, social, and
institutional conditions necessary both to the development and exercise of their
capacity for good judgment regarding their own good and to a government or polity
reliably responsive to those judgments as feedback regarding government policy.
Human rights depend, then, only on our capacity for, and the first-person authority
of our, rational judgments regarding our own good (Talbott, 175). Our capacity for
what Rawls calls reasonableness – the ability to propose and honor fair terms of
social cooperation – is undeniably essential to our ability to realize an institutional
order faithful to our basic human rights. But, Talbott maintains, even if we had no
capacity for reasonableness, no sense of justice, we would still have the basic human
William Talbott’s which rights should be universal?
rights he sets out (although the universal moral truths they express would remain
unrealized or unfulfilled in our social, institutional world).
The universal human rights Talbott identifies are:
1. A right to physical security
2. A right to subsistence (including the right to earn subsistence)
3. A right to that which is necessary for normal physical, cognitive, emotional, and
behavioral development during childhood
4. A right to an adequate education, including a moral education (which includes
cultivating moral sensitivity and the capacity for empathetic understanding)
5. A right to a free press
6. A right to freedom of thought and expression
7. A right to freedom of association
8. A right to privacy or personal autonomy and hence against paternalistic
government policy
9. A right to democratic government and an independent judiciary empowered to
enforce rights against majoritarian decision-making (Talbott. 178).
These, and not Rawls’s list of rights essential to a well-ordered and decent
constitutional republic (roughly those set out in Universal Declaration of Human
Rights Articles 3–18 as well as the Conventions against Genocide and Apartheid),
mark the conditions necessary and sufficient, on Talbott’s view, to be met by any
polity possessed of a right to recognition as legitimate and thus to nonintervention
within the international order. As with any “minimal legitimacy” conception of
human rights, they do not guarantee the justice of any polity. However, they do
guarantee that all polities will be more or less liberal, democratic, anti-paternalist and
anti-perfectionist, and constituted so as reliably to better secure the good or wellbeing
of their members and to better approximate justice over time (Talbott, 13,
160–163). So as to avoid the risk of particularly strong polities using human rights
as a moral pretext for acting on essentially imperialist ambitions (and ignoring
familiar worries about any centralized global coercive authority), Talbott recommends
the international enforcement of these rights through something like an
international judiciary and police force (Talbott, 182).
Now, it’s hard to know exactly what to make of this list of basic human rights, as
it is pitched at such a very high level of abstraction. Is the right to gay marriage
covered by the right to freedom of association? Is the right to the production and
distribution of pornography covered by the right to freedom of thought and
expression? Is there a universal human right to first term abortions on demand under
the right to privacy or personal autonomy? Is the death penalty consistent with the
right to physical security? Does the right to subsistence include a right to hold and
transfer property? What about property in the means of production?
Professor Talbott cannot simply waive these questions off by saying that they
concern matters to be resolved locally through the national self-determination of
distinct states, or at least, he cannot do so without begging the question as to whether
the right to gay marriage is entailed by the basic right to freedom of association, or
the right against the death penalty is included in the basic right to physical security.
For these matters to be legitimately resolved locally as a matter of national selfD.A.
Reidy
determination, on Talbott’s view, the polities resolving them must honor those basic
human rights essential to minimal legitimacy and thus to a right to nonintervention
or national self-determination. But then, the right to gay marriage or against the
death penalty cannot be a basic human right on Talbott’s conception.
If we focus on the less controversial core of each right, Talbott’s list is surely an
attractive list. We ought all to hope for a world within which all these rights are
incorporated to some substantial degree into positive international law by way of
treaty making between or the reflective acquiescence of polities recognized as
legitimate within the international order. But of course this is not, indeed cannot be,
what Professor Talbott means when he says that these rights “should be universal.”
He is offering a “minimal legitimacy” conception of human rights and thus a
conception of human rights already normatively universal before and apart from any
positive voluntary undertaking via treaty or reflective acquiescence.
As a list of such “minimal legitimacy” rights, I think Talbott’s list misses the
mark, and it misses it in both directions. On the one hand, it is too robustly liberal
and democratic. On the other hand, it omits key rights essential to the rule of law and
thus to the legitimacy of any system of political and legal authority. But if he is to
correct these defects, I think Professor Talbott will find himself being pushed toward
a conception of basic human rights much closer to Rawls’s. In what follows, I
endeavor to push Talbott in this direction by raising a series of questions each of
which poses a difficulty, I think, for his view.
Professor Talbott makes what essentially comes to liberal state neutrality a
condition of recognitional legitimacy and the right to nonintervention within the
international order. This is remarkable, as liberals themselves are still reasonably
divided over issues of liberal state neutrality, with some claiming legitimacy or
justice requires it and others claiming neither legitimacy nor justice requires or is
served by it. It is remarkable also in that many liberals who do endorse liberal state
neutrality do so not because they see it as required by the universal truth of “firstperson
authority,” but rather because they see it as entailed by the so-called
“endorsement thesis.” Unlike the claim of “first-person authority,” the “endorsement
thesis” is not a claim about who is best qualified to judge what is objectively good
for any person. Rather, it is a claim about the phenomenological conditions
necessary for any person’s life, no matter how objectively good, to be good for the
person living it, to be subjectively their own life.
Now, if liberals themselves reasonably disagree over whether state neutrality is a
necessary condition of legitimacy or justice within their own polities, and if it is,
then why it is, then how can liberal polities reasonably insist on liberal state
neutrality worldwide as a minimal condition of recognitional legitimacy and a right
to nonintervention? To put it the other way around, do the members of liberal
democratic polities not have a principled right to resolve this issue for themselves as
an exercise of their own collective self-determination? Of course they do. But then,
liberal state neutrality cannot be a necessary condition of recognitional legitimacy
and a right to nonintervention within the international order, and cannot underwrite
human rights within a “minimal legitimacy” conception. By building liberal state
neutrality into his conception of basic human rights, Talbott has rendered his
conception too liberal or democratic to serve as a “minimal legitimacy” conception
of human rights within the international order.
William Talbott’s which rights should be universal?
If Professor Talbott is right about the basic human rights necessary and sufficient
to recognitional legitimacy and a right to nonintervention within the international
order, then there are far fewer legitimate states with a right to nonintervention than
many people think there are. Indeed, legitimate states entitled to recognition and
nonintervention would be an extremely recent phenomenon. Of course, there can be
no doubt that there are today many illegitimate states with no right against
intervention. But are Oman, the United Arab Emirates, and Kuwait really among
them?
Perhaps, as an empirical matter, these states are much worse than a quick review
of the US State Department profiles or a 2-week visit would suggest. Perhaps, if we
were fully informed, we would share Talbott’s intuition that these are indeed among
the illegitimate states today without any right to recognition or nonintervention
within the international order. But what, then, about some imagined non-aggressive
constitutional, rule of law, republican polity well-ordered by a public (although
perhaps common good) conception of justice, within which all adult members are
treated as responsible persons (although not free and equal citizens) participating in a
system of social cooperation (to produce a range of goods, including religious virtue
and solidarity)? Suppose this imagined polity secures for all its members a
contextually adequate social minimum so that they all have meaningful access to
the material resources necessary to fulfill their station and exercise the legal rights
extended to them. Suppose this imagined polity, while not a democracy, has
institutional mechanisms for insuring that members can express their interests. In
particular, its institutional structure secures to a meaningful degree a right to petition
the government and to express dissent. Dissenters are not jailed or tortured; they are
tolerated. Meaningful fora exist for the public, even if regulated, expression of
dissent. In addition, the government officials of this imagined polity recognize and
honor an obligation to publicly and regularly justify their official actions.
Furthermore, suppose there is a limited but not insignificant right to freedom of
religion (for example, there is no religious persecution, there are no undue
prohibitions on private religious practices, and religious affiliation is largely
irrelevant within the economy) and more generally to liberty of conscience, although
there is a state religion – Certain political offices are reserved for religious leaders,
and the state is not neutral in its policies regarding various conceptions of the good;
it acts purposefully, although within the foregoing constraints, to promote religious
virtue and solidarity. Finally, suppose the vast majority of citizens comply with the
vast majority of laws voluntarily – because they internally accept them – and without
significant state exercises or threats of force.
On Professor Talbott’s account, this imagined polity would and should have no
right to recognitional legitimacy and nonintervention within the international order.
However, what exactly would be the consequences of adopting this view? A nonconsequentialist
might dismiss this question, but insofar as Professor Talbott offers a
consequentialist account of those human rights necessary and sufficient to minimal
legitimacy within the international order, I do not think he can.
To be sure, Professor Talbott might argue that there will usually be good prudential
reasons for treating polities in substantial although not complete compliance with his
list of basic human rights, like the polity just imagined, as if they were legitimate and
thus possessed of a principled right against intervention. For example, it may be that
D.A. Reidy
non-toleration, intervention, public refusals of recognition, and so forth simply
generate more costs than benefits. Still, polities or states treated as if they were
legitimate and possessed of a right to nonintervention will know that they are being so
treated. They will know that they fall short of full compliance with the universal moral
truths Talbott seeks to capture with his minimal legitimacy conception of basic human
rights. They will know that they are not respected as full members within the
international community, but are rather treated as if they were full members for various
strategic and prudential reasons. They will know this in part because, in their
interaction with liberal democratic states, liberal democratic states will not restrict
themselves to acting only on and from moral principles these states could affirm as
free and equal members of the international community.
A state so treated will likely commit to the international community and its
normative order only as a modus vivendi. Accordingly, it will likely prove an
unreliable ally to liberal democracies as they endeavor to contain and transform
malevolent despotisms and other outlaw states. Further, a state so treated will likely
feel drawn to devote substantial domestic resources to military uses so as to insure
that the costs to liberal democratic polities of refusing it recognition or undertaking a
coercive intervention remains sufficiently high, to insure that liberal democratic
polities continue to be treat it as if it were in fact legitimate and possessed of a right
to nonintervention. Finally, a state so treated will likely prove an unenthusiastic
partner in the development of international law and international legal institutions. In
short, by setting the bar for recognitional legitimacy and a right to nonintervention
within the international order too high, Talbott likely may leave liberal democracies
with too few or insufficiently reliable and enthusiastic partners to join in some of the
most pressing work to be done within the international order. Perhaps paradoxically,
lowering the bar just enough to extend genuine recognition to polities like the one
imagined above or, in the real world, to polities like Oman, United Arab Emirates, and
Kuwait, may have consequences for human rights, international peace and the
development of international law superior to holding the bar as high as Talbott holds it.
Professor Talbott thinks that, when it comes to setting out those human rights
necessary and sufficient to recognitional legitimacy and a right against intervention
within the international order, it is enough to know the truth about the legitimacy of a
body politic from the universal standpoint. Others may reject that truth, but, as he says,
sometimes we must be willing to say that others are simply mistaken (Talbott, 50).
Now Professor Talbott is surely right that sometimes others are simply mistaken
and we should be unafraid to say so when they are. However, there is a difficulty
here. First, sometimes others can be reasonably rather than simply mistaken. Liberal
communitarians who worry about liberal state neutrality may be mistaken, but I
doubt that they are simply mistaken. Their disagreement with proponents of liberal
state neutrality is (at least typically) a reasonable disagreement, even if ultimately it
is the proponents who have the truth on their side. Remarkably, given his
commitment to “epistemic modesty,” Professor Talbott never discusses reasonable
disagreement or its implications for a “minimal legitimacy” conception of human
rights. I do not doubt that there are moral judgments over which there can be no
reasonable disagreement; those who reject them are simply mistaken. In addition,
Talbott’s conception of basic human rights ranges over many such judgments.
However, it ranges also others over which, even if Talbott has truth on his side, I
William Talbott’s which rights should be universal?
think there can still be and indeed often is reasonable disagreement. And given this
fact of reasonable disagreement, I am not sure how much is gained in moral life by
insisting on the “truth” of one’s position.
For example, I can easily imagine the members or leaders of the sort of wellordered
and decent, but non-liberal and non-democratic, constitutional republic
imagined above reasonably rejecting Professor Talbott’s conception of human rights
on the ground that, in any well-ordered and decent constitutional republic, the rulers
and members are bound as moral persons one to another by their natural duty to
justice in a particularist but morally significant system of political–legal obligation
and authority that is theirs to improve and perfect on their own terms and in their
own time, even if through acts of civil disobedience. Nonparticipant outsiders are not
morally bound to participant insiders in the same way participant insiders are bound
one to another. In addition, it is this moral asymmetry that underwrites the claim by
participant insiders to recognitional legitimacy and the right to nonintervention as a
polity.
Now, whatever else we may say of persons tendering such a view, I do not think
we can say that they are simply wrong. It is surely not unreasonable, even if it turns
out to be false, to claim that within a decent constitutional, rule-of-law, republic
persons are morally bound one to another in a shared and particularist undertaking
that is in the first instance theirs, as a matter of their own collective selfdetermination,
to control and direct. And if it is not unreasonable, then no amount of
Talbott’s shouting “but it is false,” will advance the ball very far, morally speaking.
For the moral question is not what is true, but what reasonable others might
reasonably affirm from their own point of view, without pressure, coercion,
deception, manipulation, and so on. At least, that is the moral question for liberals,
and hence liberal democratic polities, committed to an ideal of reciprocity.
The question liberal democratic peoples face in the international order is when to
recognize other polities as legitimate and thus to engage with their leaders in good
faith and to refuse coercive intervention. A “minimal legitimacy” conception of
human rights should answer this question. It should do so by tying basic human
rights to a conception of political and legal authority. This conception should be one
of political and legal authority as sufficient to underwrite particularist obligations of
prima facie moral force, placing insiders and outsiders in an asymmetric moral
relationship. Furthermore, it should be one that liberal democracies cannot
reasonably reject.
It is remarkable, then, that Professor Talbott never discusses at length the nature
or normative structure of political and legal authority in his book except to note that
minimally legitimate states will empower their citizens or members to make reliable
judgments about their own good and then solicit feedback from them so as to
determine how state policies might better advance their good. I do not have the space
to discuss the nature or normative structure of political and legal authority at length
here, but I think it likely that any plausible account will make central the rule of law,
the universal realization of what Hart called “the minimum necessary natural law
content,” the institutional mechanisms essential to a political and legal order rooted
in reason-giving rather than mere force or power (legal protections for dissent, the
right to petition the government, the legal requirement that officials justify their
official conduct, etc.), and the conditions minimally sufficient to render a polity a
D.A. Reidy
rule-governed system of social cooperation. I find it a startling omission, then, that
Professor Talbott does not include on his list of basic human rights those typically
associated with the rule of law. Due process rights, for example, do not appear on his
list (although in fairness Professor Talbott might think them presupposed by one or
more of the rights he does include).
Had Professor Talbott framed his inquiry into the question of which rights should
be universal from the point of view of a liberal democracy, committed to its own
right to recognition and nonintervention in the international order and concerned as a
practical matter to identify the principle that it ought reasonably to use in extending
that same right to other polities claiming it for themselves, he would have been
drawn directly into an inquiry into the conditions necessary and sufficient for
persons to become bound to one another in a morally significant but particularist
system of political and legal authority. Then, I suspect, not only would
constitutionalism, the rule of law, and a rule-governed politics of reason-giving
rather than force or power have figured more prominently in his thinking about and
account of basic human rights, but also antipaternalist liberal state neutrality and the
merits of democratic government might have figured a bit less prominently. But
then, his position would likely have approximated Rawls’s.
A “minimal legitimacy” account of basic human rights must mark the line
dividing a politics of power and coercive force from a politics of respectful
persuasion and reason-giving. Legitimate states do not force one another into
reforms. They recognize the right of each to self-determination. In addition then,
they give reasons. They persuade. They hold themselves out as examples. They do
not manipulate, bribe, sanction, or otherwise coerce.
I do not think Professor Talbott’s conception of human rights is very plausible as
a minimal legitimacy conception, but I do think it is plausible and attractive as a
conception of those human rights liberal democracies ought to work for within a
peaceful international politics of human rights. I look forward to a world within
which all legitimate polities voluntarily affirm, through treaty or reflective
acquiescence to customary practice, Talbott’s basic human rights as universal
human rights within positive international law. In this sense, I agree with Talbott –
The rights he identifies “should be universal.”
Notwithstanding my criticisms, I must conclude by stating that Professor Talbott
has written a very fine and engaging book from which I learned a good deal and
which I enjoyed reading. For the most part, it is a book written for the non-specialist
and accordingly will prove very useful as an assigned text in courses on global
justice and human rights, as well as moral epistemology. Those not engaged in
academic or professional philosophy will find the book especially useful as a good
point of entry into philosophical debates too often pursued in ways that leave behind
not only those working in other disciplines interested in them but also the general
educated public.
William Talbott’s which rights should be universal?