The Philosophical Underpinnings of Human Rights Norms

In response to the book, Does Human Rights Need God, there is an interesting discussion over at Mirror of Justice (see here, here, and here) about the source of international human rights. As excerpted in this post, Robert George argues that

“Most, but not all, natural law theorists are theists. They believe that the moral order, like every other order in human experience, is what it is because God creates and sustains it as such…. The absence of a divine source of the natural law would be a puzzling thing, just as the absence of a divine source of any and every other intelligible order in human experience would be a puzzling thing…. Anybody who acknowledges the human capacities for reason and freedom has good grounds for affirming human dignity and basic human rights. These grounds remain in place whether or not one adverts to the question: “Is there a divine source of the moral order whose tenets we discern in inquiry regarding natural law and natural rights?” I happen to think that the answer to this question is “yes,” and that we should be open to the possibility that God has revealed himself in ways that reinforce and supplement what can be known by unaided reason. But we do not need agreement on the answer, so long as we agree about the truths that give rise to the question, namely, that human beings, possessing the God-like powers of reason and freedom are possessors of a profound dignity that is protected by certain basic rights. So, if there is a set of moral norms, including norms of justice and human rights, that can be known by rational inquiry, understanding, and judgment even apart from any special revelation, then these norms of natural law can provide the basis for an international regime of human rights.”

In a book review of Mark Janis and Carolyn Evans’ splendid book, Religion and International Law, I wrote a few years ago that this debate over the philosophical underpinnings of international norms has raged over the centuries, in a sort of Hegelian dialectic. We started with the original 16th and 17th-century thesis of Grotius that international law is the product of “Christian civilization” and that international law is derived from immutable natural laws of God. We then had a 19th-century antithesis, represented by Oppenheim’s positivist argument that “we know nowadays that a Law of Nature does not exist” and that “only a positive law of nations can be a branch of the science of law.” With the birth of modern human rights, we seem to be at a point of synthesis. Fathered by 20th-century American idealism, we no longer believe that international law is simply a collection of rules about the “is” with no concern for the “ought.” We have discarded theology, but remain smitten by teleology. Such a synthesis embraces the prevailing view that international law is a secular discipline that requires positive evidence for its source material, but also reclaims elements of the Grotian tradition that recognize that in a pluralistic society natural law plays a far more significant and nuanced role in international theory and state practice than is traditionally acknowledged.

But you did not hear many human rights lawyers or scholars openly admitting this synthesis. In particular, to me at least one of the great jurisprudential questions in the modern age of international human rights is how does one argue for jus cogens norms without embracing natural law? Article 53 of the Vienna Convention offers a non-solution, providing that preemptory norms are those norms from which the international community permits no derogation. But this has always struck me as hopelessly question-begging. It represents a type of unrefined natural law positivism that offers no answer to the predicate question of why and how such norms would fall into the preemptory norm category, while others would not.

It seems that today we have a thick layer of positivism that represents the broad corpus of human rights law, and then a thin layer of natural law on top that reflects our highest ideals and norms. But here’s the rub. The current agenda for expanding human rights is to move more and more rights into the jus cogens category. This is done for expedient reasons: to prevent consistent objector dissension. But it is not done with any careful articulation of why this or that international norm deserves to migrate from consensual positivist justification to non-consensual natural law obligation. And if it is non-consensual, then does that not at least somewhat undercut its natural law foundation? If enough states in their collective reason, judgment, and rational choice choose to depart from the norm, then does natural law really require it? Finally, for those who maintain that it’s really all just positivism, does not the existence of some minimum number of consistent objectors suggests that the international community as a whole does not wish to require non-derogation? Unless we are all marching to the beat of the same drummer, it would seem that both positivism and natural law would logically support an argument for a narrow band of jus cogens norms. Where is the philosophical basis for a significant expansion of jus cogens norms?