07 Aug Human Rights Without Foundations
Joseph Raz of Oxford University has published on SSRN a short essay entitled “Human Rights Without Foundations” that is getting a lot of play, with over 150 downloads in less than a month.
He offers a theory of human rights that rejects the notion that human rights must encompass universal norms and instead argues for a political approach to human rights. Here is a key excerpt:
“Following [John] Rawls I will take human rights to be rights which set limits to the sovereignty of states, in that their actual or anticipated violation is a (defeasible) reason for taking action against the violator in the international arena…. [W]hile human rights are invoked in various contexts, and for a variety of purposes, the dominant trend in human rights practice is to take the fact that a right is a human right as a defeasibly sufficient ground for taking action against violators in the international arena, and is to take its violation as a reason for such action. Such measures set limits to state sovereignty for when states act within their sovereignty they can, even when acting wrongly, rebuff interference, invoking their sovereignty… Violation of human rights disables this response, which is available to states regarding other misdeeds….
One immediate consequence of the political conception is that human rights need not be universal or foundational. Individual rights are human rights if they disable a certain argument against interference by outsiders in the affairs of a state. They disable, or deny the legitimacy of the response: I, the state, may have acted wrongly, but you, the outsider are not entitled to interfere. I am protected by my sovereignty. Disabling the defence ‘none of your business,’ is definitive of the political conception of human rights. They are rights which are morally valid against states in the international arena, and there is no reason to think that such rights must be universal….
Human rights are moral rights held by individuals. But individuals have them only when the conditions are appropriate for governments to have the duties to protect the interests which the right protect. A good example is right to education. The right lacks universality for it exists only where the social and political organisation of a country makes it appropriate to hold the state to have a duty to provide education. Hence while the right to education is an individual moral right the considerations which establish it are complex and not all of them relate to the interest of the right holder….
[Human rights] derive from three layers of argument: First, some individual interest often combined with showing how social conditions require its satisfaction in certain ways … establishing a moral right… [Second,] under some conditions states are to be held duty bound to respect or promote the interest (or the rights) of individuals identified in the first part of the argument. The final layer shows that they do not enjoy immunity from interference regarding these matters. If all parts of the argument succeed then we have established that a human right exists…. So understood human rights enjoy rational justification. They lack a foundation in not being grounded in a fundamental moral concern but depending on the contingencies of the current system of international relations.
There is a lot to unpack in those reflections. One of the most important questions raised by Raz’s argument is precisely what he means when he says that a human right is one in which a sovereignty claim is “disabled.” It would appear that he means more than simply the legal understanding of exceptions to sovereign immunity. If it were simply a legal disabling of immunity, then most business and commercial rights would be human rights while most civil and political rights would not. (Most foreign sovereign immunity laws remove immunity for the former but not the latter). But if he means a claim of sovereignty is disabled in the purely political sense, then exactly what kind of interference is justified? I would need a clearer understanding of what Raz means by “outside interference that is authorized when a sovereignty claim is disabled” to fully understand the theory of human rights he is expounding.
But I think his argument is particularly useful for treaty-based human rights claims. If one state enters into treaty obligations with another state to respect certain rights, then a claim of sovereignty may be disabled (at least in the political sense) when a state violates that commitment to the other state. Other states are entitled to raise objections to violations of the human rights treaty (i.e., to interfere with an otherwise valid claim of sovereignty) by virtue of the broken promise to respect the right.
What sort of interference? What would the states whose promises have been broken be allowed to do?
The educational example is duly understood, one can not demand say, an agricultral based society to provide education for all and for some its not going to happen, nomads, etc., come to mind.
Raz has been at the cutting edge of the liberal perfectionist political philosophy for a while now.
His liberalism privileges autonomous freedom without the vapid methodological individualism of libertarianism, which is vulnerable to the standard objections of communitarians. Indeed, his Morality of Freedom is about as robust as you can imagine against that kind of critique of atomism.
Though he has long distanced himself from right-based morality, and rights in the primary, it is good to see he is developing the relationship between the state’s sovereignty and his form of “political rights.” I use that word with some hesistation because it is inevitable that some natural rights crusader will come in a accuse us all of being moral relativists, with contingent commitments to freedom.
Raz’s explanation of universality is useful in that regard.
As you say, there is a lot to unpack.
Professor Alford,
I think the essence of your final observation is encompassed in Thomas Franck’s humanitarian intervention discussion in “Recourse to Force”. On the merits of the Raz excerpt, universality would seem to be essential in the absence of a treaty-based claim.