13 Sep The Uncertain Foundations of Human Rights
1. All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Universal Declaration of Human Rights (1948)
It is a curious feature of international human rights that we are reluctant to speak about foundations. As Jacques Maritain put it with respect to the UDHR, “the nations should and could reach practical agreement on basic principles of human rights without achieving a consensus on their foundations.” As discussed here, the early drafts of the UDHR included references to “endowed by nature” and that “all human beings are created in the image and likeness of God.” Had such language remained in the Universal Declaration it would have been in keeping with other great historical declarations, including the Declaration of Independence (1776) and the Declarations of the Rights of Man (1789). But such language was removed upon the recommendation of the Chinese delegate, P.C. Chang, who insisted that a truly universal declaration should not import ideals of the Christian West, any more than it should import Chinese ideals. So they bracketed the question in the UDHR and sixty years on we continue to bracket it.
This weekend I was in Princeton for a two-day colloquium on foundational questions of human rights norms. The colloquium is sponsored by the Princeton Center for Theological Inquiry, and includes an eclectic group of theologians (Robin Lovin, Esther Reed, David Gushee, William Storrar), legal philosophers (Jeremy Waldron, Amanda Perreau-Saussine), and international law scholars (Mary-Ellen O’Connell, Nick Grief, Roger Alford). One of the fundamental questions considered was whether modern notions of human dignity have their origins in Judeo-Christian understandings of imago Dei–the idea that all humans are made in the likeness and image of God.
On the one hand it is appealing to reach such a conclusion, particularly if one takes an historical approach to argue that the doctrine of human dignity has its roots in the Western Enlightenment tradition, including the Judeo-Christian tradition from which it was born. On the other hand, such an approach is problematic because one can legitimately object to making universal claims grounded on such particularized foundations.
Another approach is to suggest that the positive law is an alternative foundation for a universal norm such as human dignity, in that positive law reflects principles grounded in fundamental rights. Under this approach, one can determine what is foundational by examining what is uniformly reflected in ordered societies. The existing legal architecture is an image of the philosophical foundations.
A third approach, and one that I find particularly appealing at an abstract level, is what one participant described as the German theory of begründungsoffen, the idea that an ethical concept can be justified by different religious and intellectual traditions. No one perspective can claim to be the only or ultimate justification, but each foundation nonetheless provides a plausible justification. The Declaration of Independence, for example, divined the endowment of human rights in “Laws of Nature and of Nature’s God.” The Declaration of the Rights of Man articulated consequentialist arguments that “contempt of the rights of man are the sole cause of public calamities and of the corruption of governments.”
I left the discussion at Princeton convinced that there is a tremendous amount of philosophical, religious, and historical work that should be done to address these foundational questions. It is a feature of the current state of international scholarship that philosophers are not well versed in international law, and international law scholars are not comfortable addressing fundamental philosophical or religious meta-questions. We throw around terms like jus cogens, universal jurisdiction, and obligatio erga omnes without serious philosophical reflection. Meanwhile, legal philosophers imagine utopian societies without attempting to justify or even explain the international society in which they live.
Having been around academic theology circles, I find that many are not able to show empathy to suffering poor people. And this could also a problem in international law circles. I don’t know for sure.
It’s certainly important to distinguish the religious and philosophical roots of certain concepts from attempts at grounding them and thus even if notions like human rights have specific origins in Hellenistic (e.g., the Stoics) and Judeo-Christian ideas, we can nonetheless find various justifications (or ‘rationalizations’ in the generic sense) outside these worldviews (i.e., reasons to support them with presuppositions and assumptions from disparate religious and philosophical tradition). Alas, very few people are knowledgeable of worldviews outside the ones in which they have been reared (and even then, of course, their knowledge may relatively meager), and thus are unable to appreciate, let alone assess, the significance of these alternative justifications. We throw around terms like jus cogens, universal jurisdiction, and obligatio erga omnes without serious philosophical reflection. Meanwhile, legal philosophers imagine utopian societies without attempting to justify or even explain the international society in which they live. I wonder if this is in fact true. I’ve read a decent amount of material, for instance, dealing with the question of universal jurisdiction that has struck me as fairly sophisticated, especially considering how much of it has been written by those outside of professional philosophy proper. As to the charge of utopianism, one should keep in mind the function of utopian thought, which… Read more »
In the letter and spirit of Roger’s post, I find no need to apologize for the philosophical tenor of the following comment. Re: No one perspective can claim to be the only or ultimate justification, but each foundation nonetheless provides a plausible justification. One reason this is true has to do with the logical character of first principles, which are not self-validating or self-justifying. Nicholas Rescher reminds us that philosophy cannot provide a rational explanation for everything, rationalizing all of its claims ‘all the way down.’ Sooner or later the process of explanation and rationalization must, to all appearances–come to a halt in the acceptance of unexplained explainers. [….] And this means we must accept some contentions prospectively –not because they rest on solid established grounds, but because they lead to promising results–because they have a certain systemic plausibility about them within the overall setting in which they figure. Rescher, I think rightly, concludes from this that “philosophical exposition cannot in the end operate satisfactorily in the linear manner of an axiom system proceeding from a starter-set of self-evident truths….” And thus philosophy relies not only inference or formal logic to make its claims, but also on the rhetoric of persuasion… Read more »
Patrick,
Those comments are all very helpful. I especially like your second comment thread presenting a coherent theory for metaphysical pluralism.
Thank you also for identifying scholars who are conversant in both legal philosophy and international law. Is it your sense that all of these authors are trying to explain our existing international society from a philosophical perspective? Or are they primarily focused on grand schemes for transforming international society in their own vision? I’m much more interested in legal philosophers who do the former than the latter. I know that utopian visionaries have their place, but they are of limited use to international lawyers and scholars who work in the weeds.
Roger Alford
Roger, In perhaps a very unsatisfactory answer to your question, because I’m a firm believer in the fact/value entanglement thesis (a la Hilary Putnam, for one), I think the “explanatory” project has ineluctable normative presuppositions and assumptions and thus if you have in mind something purely descriptive and expanatory, I don’t think such a thing exists, as the debates about “Realist” theory in international law and relations and those surrounding “positivism” in law generally make plain (or think of those who still debate the question of to what extent something like international law truly exists!). In short, explanatory pretense often becomes by default self-fulfilling prophecy of a sort (what is ‘described’ becomes an insidious ex ante justification for what could or might be). What is thus essential, at least from my perspective, is that one attempt to come as clean as possible about one’s philosophical assumptions in any explanatory endeavor. All the same, I’m not wholly skeptical about the social sciences as a field of intellectual inquiry, I just think they’ve accomplished very little to date that can help us here (e.g., the case of rational choice theory in international law or the law and economics genre in legal studies). As a result… Read more »
I find Patrick’s second post the most relevant to this issue. Metaphysical and ethical pluralism are the only worthwhile approaches to discovering any objective reality (required by legal positivism) regarding the existence (and scope) of universal human rights. We briefly discuss this in my international law class, with a focus on natural law of course. The underlying thoughts are the same. Patrick enlightens us in his first post with philosophical views that might inform the issue. I bring the focus of discussion, here and with my students, back to the context of international law (as I think Roger is inclined to do). I firmly believe that the answers to these questions lie not in the discovery or development of an ethical or philosophical viewpoint that encompasses them, but in the study and synthesis of the culture of humanity to discover them. For me, it is the search for the ultimate “general principles of law” or perhaps of “humanity” that underlie all forms of human social interaction and governance. This is obviously a dangerous business because humanity does, at certain times and places, adopted fairly extreme measures. When one starts to look for evidence of these universal general principles, one will probably confront the idea that there are probably… Read more »
human dignity has its roots in the Western Enlightenment tradition, including the Judeo-Christian tradition from which it was born.
The struggle for human rights has been long and arduous. Some pinpoint its beginning with Hammurabi’s Code in 1700 B.C
I think human dignity rooted far from what stated above, back to Babylonians to Hammurabi’s Code of Laws.