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 is essential to political and legal philosophy:
Utopian thought performs three related political functions. First, it guides our deliberation, whether in devising courses of action or in choosing among exogenously defined alternatives with which we are confronted. Second, it justifies our actions; the grounds of action are reasons that others ought to accept and—given openness and the freedom to reflect—can be led to accept. Third, it serves as the basis for the evaluation of existing institutions and practices. The locus classicus is the Republic, in which the completed ideal is deployed in Plato’s memorable critique of imperfect regimes.
‘Utopian thought attempts to specify and justify the principles of a comprehensively good political order. Typically, the goodness of that order rests on the desirability of the way of life enjoyed by the individuals within it; less frequently, its merits rely on organic features that cannot be reduced to individuals. Whatever their basis, the principles of the political good share certain general features:
First, utopian principles are in their intention universally valid, temporally and geographically.
Second, the idea of the good order arises out of our experience but does not mirror it in any simple way and is not circumscribed by it. Imagination may combine elements of experience into a new totality that has never existed; reason, seeking to reconcile the contradictions of experience, may transmute its elements.
Third, utopias exist in speech; they are “cities of words.” This does not mean that they cannot exist but only that they need not ever. This “counterfactuality” of utopia in no way impedes its evaluative function.
Fourth, utopian principles may come to be realized in history, and it may be possible to point to real forces pushing in that direction. But our approval of a utopia is not logically linked to the claim that history is bringing us closer to it or that we can identify an existing basis for the transformative actions that would bring it into being. Conversely, history cannot by itself validate principles. The movement of history (if it is a meaningful totality in any sense at all) may be from the most desirable to the less; the proverbial dustbin may contain much of enduring worth.
Fifth, although not confined to actual existence, the practical intention of utopia requires that it be constrained by possibility. Utopia is realistic in that it assumes human and material preconditions that are neither logically nor empirically impossible, even though their simultaneous co-presence may be both unlikely and largely beyond human control to effect.
Sixth, although utopia is a guide for action, it is not in any simple sense a program of action. In nearly all cases, important human or material preconditions for good politics will be lacking. Political practice consists in striving for the best results achievable in particular circumstances. The relation between the ideal and the best achievable is not deductive. [….] Thus, the incompleteness of utopia, far from constituting a criticism of it, is inherent in precisely the features that give it evaluative force. As has been recognized at least since Aristotle, the gap between utopian principles and specific strategic/tactical programs can be bridged only through an inquiry different in kind and content from that leading to the principles themselves. If so, the demand that utopian thought contain within itself the conditions of its actualization leads to a sterile hybrid that is neither an adequate basis for rational evaluation nor an accurate analysis of existing conditions.’ (From William Galston’s Justice and the Human Good, 1980)
And there are, in fact, some individuals well-versed in both international law and philosophy: Allen Buchanan, Larry May, Martha Nussbaum, Simon Caney, Robert Hockett, David Luban, and Jeremy Waldron come quickly to mind. Given the nature of the academic division of labor and consequent professional training and socialization, it’s not surprising if we find few individuals with competence in, let alone an aptitude for, both international law and philosophy.
Larry May’s recent books are exemplary in this regard, and the first in his four volume series, Crimes Against Humanity: A Normative Account (2005), has an excellent treatment of jus cogens norms and a more-than-plausible account of a “minimalist” conception of secular natural law that I find quite compelling.
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 and informal logic, as well as contextual forms of reasoning, This latter mode of philosophical exposition relies on appeals to “values and appraisals–and above all [to] an appeal to fittingness and coherence within the overall scheme of things.” Thus foundational justifications are not, strictly speaking, foundational but they are no less “justified:” by their consequences, by their coherence or fit with other values and principles that are part of our worldviews (individuated as ‘lifeworlds’). There is thus, in some sense or measure, an unavoidably “arbitrary” character to our “first principles,” which is perfectly consonant with the plurality of secular and religious worldviews “out there.”
Yet at least one seemingly insuperable difficulty that presents itself comes courtesy of those who are committed to some species of metaphysical realism or a correspondence theory of truth, viewing the implications of the aforementioned as corrosive of their commitment to a fundamental belief in realism or truth. And thus one needs to show how it might be the case that allowing for a de facto metaphysical pluralism of sorts (i.e.. first principles formulated with presuppositions and assumptions from disparate worldviews) does not necessarily result in the demise of realism or a correspondence theory of truth. Until this is done, the argument (or fact) that “an ethical concept can be justified by different religious and intellectual traditions,” will not prove satisfactory or persuasive to those who believe these alternative justifications entail the abandoment of metaphysical commitments fundamental to their worldview orientation.
With that in mind, I proffer several philosophical strategies that attempt to reveal how one might entertain a belief in (or at least allow the possibility for) a metaphysical pluralism of a kind without abandoning realism or a correspondence theory of truth (the two usually of a piece):
We could, with Hilary Putnam, consider an analogical lesson from the Copenhagen School in physics, specifically, Neils Bohr’s Copenhagen Interpretation, which enables us to appreciate the concept and possibility of complementarity, for “even ‘the empirical world,’ the would of our experience, cannot be adequately or completely described with just one picture, according to Bohr. Instead, we have to make a ‘complementary’ use of different classical pictures—wave pictures in some experimental situations, particle pictures in others—and give up the idea of a single picturable account to cover all situations.” An appreciation of complementarity may require setting aside or rejecting the more robust versions (what Kitcher calls the ‘grander doctrines’) of metaphysical realism in science (as distinguished, say, from a more modest and minimal realism like Kitcher’s), or we might even go so far as to argue for metaphysical pluralism, as Michael Lynch has done in Truth in Context: An Essay on Pluralism and Objectivity (1998). For Lynch, such metaphysical pluralism is in fact compatible with realism of a kind, for he argues that we need not be anti-realists in claiming that propositions and facts concerning the nature of reality are relative to conceptual schemes of worldviews. A comparable lesson concerning the value of metaphysical and epistemological modesty might be drawn from Kurt Gödel’s demonstration that one cannot definitively prove the formal consistency of an axiomatic system from within the principles of that system. At any rate, foundationalist epistemic projects and exclusively Euclidean approaches to cognitive systematization are no longer plausible in epistemology. We now realize the significance of categorial and conceptual mediation in our descriptions of the world, a realization that commits us to neither a thorough-going relativism nor a subectivist conception of truth. In the words of my dear friend and former teacher, Nandini Iyer:
To affirm that there can be several different systems all giving us, at the same time, varying and yet legitimate ‘true’ metaphysical descriptions of the world does not…necessarily entail that there are many realities, that nothing is absolutely real, or, put less dramatically, that there is no such thing as a single, context neutral description or account of the world, that is, as the world really is. It only means that no metaphysical description of it can be outside every possible conceptual framework, but Reality itself is. Nor does it follow that any assertions about this ‘real’ or ‘true’ world beyond all conceptual frameworks, are nonsense. [….] The conceptual frameworks we build in the realm of rational thought are not useless just because they cannot describe Ultimate Reality. Serious examination of, reflection on, these explanatory and interpretive schemes, their differences and overlaps, are crucial to expanding and deepening our understanding of reality, even if these conceptual frameworks (any or all possible combinations and collections of them) cannot bring us the Absolute Truth. If nothing else, they enable us to understand the relativity of conceptual truths and structures, and make us see what Pascal meant when he said that the highest function of reason is to show us the limitations of reason.
Thus, it’s possible to hold onto realism, to believe in “absolute truth,” and yet recognize the possiblity of metaphysical pluralism such that “No one perspective can claim to be the only or ultimate justification, but each foundation nonetheless provides a plausible justification.”
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 of a process of academic socialization determined largely by the intellectual specialization intrinsic to the professional nature of our disciplines of inquiry there will always be those threatened or intimidated by any attempts to sketch, let alone think about (the inter- or trans-disciplinary) “big picture.” Academic disciplines in both the natural and social sciences are increasingly specialized and fragmented in spite of the oft-expressed sentiment on behalf of the necessity or value of transdisciplinary work. In any case, to go outside one’s area of training typically requires uncommon talent in tandem with the freedom of tenure and the combination of the two may be rare indeed. There are of course exceptions, owing perhaps to a sufficient time outside the academy, but in any case there remains some individuals who have not grown overly attached to or hypnotized by the community’s norms and thus are able to reflect more critically on their meaning or scope. In other words, given the nature of the existing institutional constraints and the manner in which we pursue intellectual inquiry, truly transdisciplinary work will be rather rare and those with the requisite ability to assess its worth will be equally few and far between. The paradox or irony of course is that the “context of application” is invariably of a piece with the nature of social reality, which is increasingly more complex and many-sided (not unlike the recent exponential growth in technologies), as it were, yet we lack the cognitive cultivation conducive to the best appreciation of such a reality.
In addition, and in the end, insofar as we want to place law itself in that proverbial bigger picture (as in ‘Law and Humanities’), we’re faced with the fact that
We learn most of what we know about what makes life worth living, and how to live it well, from non-scientific [or, if you prefer, non-legal] sources–biography, narrative history, serious journalism, and religious texts [I would add ‘philosophy’], not to mention novels, poetry, drama and the visual arts. For Europeans at least, there is more insight to be got from a single volume by Jane Austen or Gustave Flaubert than a whole shelf of treatises on the social psychology of bourgeois love and marriage. (John Ziman)
But of course there are some, whose work is “closer to the ground” than others and thus those like, say, Larry May (a practicing lawyer and philosopher) or Robert Hockett (worked for the IMF) write in a manner that one can readily infer the consequences and implications of their both their explanatory and normative work. But even Allen Buchanan writes in a manner close to if not in keeping with “practical” or applied ethics and thus I would think his work is considerably less than utopian. Martha Nussbaum (on occasion) and Simon Caney, on the other hand, are rather more cosmopolitan and utopian, although for me that in no way counts against them. The fact that one cannot readily or obviously detect the immediate implications or practical consequences of such work does not mean that it’s bereft of possible “real world” implications and applications or that it cannot shed some light on our more purely explanatory endeavors .
Incidentally, when one speaks of “visions” here I don’t think of these utopian vistas as being in the unique possession or proprietary interest of those who articulate and give shape to them. Frequently they are formulating in an attractive if not persuasive manner the dreams, inchoate thoughts, or dim intuitions of others of their time and place, so I’m resistant to the attempt to characterize what you term “grand schemes” as somehow unique to those who pen them, as in the case of those (few individuals) who historically believed their utopias served as blueprints to be realized here and now, damn the socio-political conditions or the reigning social psychologies of the the vast majority of men and women. Indeed, it was usually those who came after the great utopians who interpreted these “schemes” in such a way that would be (and was) anathema to those who bequeathed them to us. (And so I would not want to characterize the explanatory endeavor as somehow more ‘objective’ in orientation.)
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 no – or at least very few – absolutes in humanity. One must identify the bodies to be examined (nation, kingdom, province, tribe) and the internal and external rules adopted. One must then extract the principles underlying these rules. Of course, the rules adopted stem from different sources. Indeed, the rules and philosophies resorted to, and the ultimate moral judgments made, may be heavily dependent on context. At some times and places, consequentialism prevails. At other times, deontology prevails. The application of and adherence to both forms of moral evaluation is affected by the metaphysical understandings of the relevant actors.
At some point, it becomes necessary to more or less subjectively value a society, it members and its rules based on extrinsic assessments of their intrinsic value – to engage in virtue ethics. The approach has evolved from looking to the rules of “civilized nations” to those of “developed legal systems” but the underlying thought is the same. One must make a subjective assessment of what data “counts” and why before one can theorize the “objective” reality. This suggests, perhaps, that there isn’t one (or much of one) in objective fact – only in theory. This hard truth may be why the rhetoric of human rights is stronger than its substance, at least unless and until that rhetoric bears fruit in the culture of humanity.
For a much deeper (and better, and more accurate, etc.) analysis identifying numerous scholars working in this area, see Joseph Raz, Human Rights Without Foundations (available on the web). Raz would have it that we discuss the topic primarily in terms of universal political rights or a political conception of human rights. I think he makes a valid point.
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.