Matching Human Rights Morality With Human Rights Mechanisms[1]

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meaning, purpose, content, practical implications moral justification. 2 While there is

considerable cross cultural agreement on abstract statements of human rights, this

agreement does not extend to their specific content, their practical implications, or

how they ought to be institutionalised and implemented.3

In consequence, while thereis widespread goodwill towards human rights, there is considerable doubt about how

they should be conceptualised, and how to settle moral disagreements as to their

content and scope, the political purposes they serve, and the legal and other

mechanisms appropriate to their implementation. 4

A comparatively recent response to such human rights scepticism is the emergence of

what has become known as political 5 or practical 6 or functional 7, as opposed to

2 For instance, Mary Ann Glendon, Rights Talk: the impoverishment of political discourse (New York:Free Press 2001); Richard J. Arneson, Against Rights Philosophical Issues 11 (2001): 172; TomCampbell, K. D. Ewing and Adam Tomkins (eds.) Sceptical Essays on Human Rights (Oxford: OxfordUniversity Press, 2000); Raymond Guess, History and Illusion in Politics (Cambridge: CambridgeUniversity Press, 2001); Costas Douzinas, Human Rights and Empire: the political philosophy of cosmopolitanism (London: Routledge-Cavendish 2007); and Sonu Bedi, Rejecting Rights (Cambridge:Cambridge University Press, 2009).

3 Examples include the debate over human rights-based judicial review of legislation within democratic polities (see J. Waldron, The Core Case against Judicial Review, Yale Law Journal ; 115 (2006), 1346and Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitution of

Democracy (Cambridge: Cambridge University Press 2007), and the human rights rationale for humanitarian intervention (see Ned Dobos, Insurrection and Intervention: the two faces of sovereignty (Cambridge University Press, 2012).

4 Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999); Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001). Conor Gearty,Can Human Rights Survive? (Cambridge: Ca m bridge Universi ty Press, 2006); an d Tom Campbell, K.D. Ewing and Adam Tomkins, eds, The Legal Protection of Human Rights: Scepti cal Essays (Oxford:Oxford University Press, 2011);

5 Joseph Raz, Human Rights without Foundations in Samantha Besson and John Tasioulas, (eds) The Philosophy of International Law (Oxford: Oxford University Press, 2010), pp. 321-338 at p. 327:The

task of a theory of human rights is (a) to establish the essen tial features which contemporary humanrights practice attributes to the rights it acknowledges to be human rights; and (b) to identify the moralstandards which qualify anything to be so acknowledged. I will say that accounts which understandtheir task in that way manifest a political conception of human rights. See also Andrew Vincent, The

Politics of Human Rights (Oxford: Oxford University Press 2010).

6 Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), p.8: I want toexplore a different approach, one we might describe as practical. It aims to exploit the observation thatthe human rights enterprise is a global practice. The practice is both discursive and political. As a firstapproximation, we might say that it consists of a set of norms for th e regulation of the behaviour of states together with a set of modes or strategies of action for which violations of norms may count asreasons.

7 Beitz 2009, op. cit., p. 6: the functions that the idea of a human right is meant to play, and actuallydoes play, in the practice. See James Griffin, On Human Rights (Oxford: Oxford University Press,2008), p.27:Why have recent writers (for examples, Feinberg, Dworkin, Nozik) so favoured structuralor (Rawls, Beitz) legal-functional accounts of rights?


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traditional 8 orthodox 9 or natural law 10 approaches to identifying the distinctive

nature of human rights. On the political approach, human rights are understood as

socio-political constructs characterised by their distinctive functions or roles in

various political arena. This is based on the contention that human rights are acontemporary political phenomenon which has developed out of the human rights

practice arising from the Universal Declaration of Human Rights (1948) and the

subsequent human rights activities associated with the various human rights

conventions and treaties adopted since 1968. 11

Overtly without foundations and firmly practice-oriented, the political approach

renounces free-standing moral debate and abstract philosophical reflection on the

issues which trouble human rights sceptics. Instead, the political approach

concentrates on the human rights doctrines which operate within the political practice

of human rights, particularly the functional roles which human rights norms play in

the sphere of global politics and constitutional law. The normative program of the

political approach directs our attention to what is primarily a sociological analysis of

the current practice of human rights in politics and law, and commends that

empirically informed moral reflection be directed to understanding and deploying the

existing functions of human rights, principally from the perspective of those involved

in these processes. This approach requires examination of the working assumptions

concerning the meanings and purposes of human rights which feature in the discourse

of those who are knowledgeable about or involved in, what Charles Beitz calls the

public political project of human rights. 12 This discourse is held to have a certain

authority deriving from its historical connection with the post World War II origins of

human rights and the generally beneficial ou tcomes of current human rights practice.

More particularly, human rights are conceived of as rights the violation of which

merits international concern and may legitimate some degree and type of intervention

8 Raz op. cit, pp. 322-27.

9 John Tasioulas, Taking Rights our of Human Rights, Ethics 120 (4) (2010): 647-78 at 673.

10 Beitz op. cit., ch. 3.

11 Moyn op. cit., ch. 1; Beitz op. cit, ch. 2; Vincent op. cit., ch. 4.

12 Beitz op. cit , ch. 2.


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in the internal affairs of a state, which would otherwise be regarded as an

infringement of the sovereignty of that state. This human rights intervention is related,

in a variety of ways, to the special responsibility of states to protect and promote the

interests of their citizens as identified in human rights declarations, conventions andtreaties. 13

This article explores both the advantages and the limitations of the political approach

to human rights, making particular reference to global justice, particularly the

controversial doctrine that freedom from poverty is a human right. 14 In brief, the

perceived advantages of the political approach include (1) Providing a relatively clear

empirical paradigm as to what human rights are all about, thus assuring the practical

relevance of philosophising about human rights; (2) Highlighting the contexts in

which is possible to formulate the content and scope of human rights at a level of

specificity that is appropriate for their operationalisation in legal and political

decision-making; and (3) By-passing some of the intractable philosophical

disagreements concerning the conceptualisation and justification of human rights. The

perceived limitations of the political approach relate (1) to the distancing of human

rights from the moral imperatives underpinning their political salience and, in some

cases, (2) its withdrawal from critical engagement with the purposes human rights are

taken to serve and adequate evaluation of the mechanisms that have come to be

associated with their implementation.

Further, a case is made for a compromise, more interactive philosophical approach

which, while keeping in focus the political purposes and institution al mechanisms of

current and emerging human rights practice, retains significant continuity with those

aspects of traditional human rights philosophy that involve the elucidation and

13 Beitz o p. cit., p. 13: The central idea of international human rights is that states are responsible for satisfying certain conditions in their treatment of their own people and that failures or prospectivefailures to do so may justify some form of remedial or preventative action by the world community or those acting as its agents. Similarly, Raz op. cit., p. 328: Following 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) reasons for taking action against the violator in the international arena.

14 Thomas Pogge (ed.) Freedom from Poverty as a Human Right (Oxford: Oxford University Press,2007).


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application of characteristic human rights values, such as life and liberty, which are

indelibly associated with, and incorporated in, the discourse of human rights. The

proposed, more interactive, approach endorses the contention, associated with the

political approach, that the specific content, scope and form of human rights cannot bedetermined outside of a particular context which takes into account the actual

processes and concrete mechanisms that are available and likely to be involved in its

application. These mechanisms include judicial review of legislation, the legitimation

of foreign intervention as well as less dramatic institutional processes such

monitoring, publicity and diplomatic pr essure. In contrast to a purely political

approach, the interactive model involves wh at I will call human rights values in the

conceptualisation of human rights, and give more prominence to critique of the

purposes and mechanisms embedded in existing human rights practice. More

tentatively, it is suggested that existing institutionalised purposes and operative human

rights practices together with the context in which they are to operate should be taken

into account not only in terms of their instrumental roles but also as potential source

of reasons for modifying the specific articulation and prioritisation of the human

rights values involved.

Thus, with respect to freedom from poverty as a human right, on the interactive

approach attention must be paid to the implications of adopting such a human right in

the contexts of current human rights practice, both domestically and internationally, as

well as the sometimes competing moral foundations of the putative right to freedom

from poverty, such as the relief of suffering, 15 the enhancement of autonomy 16, the

rectification of past and present wrongs 17 and the securing of peace.

In addition to considering which mechanisms most effectively serve the human rights

values and purposes involved, awareness of existing human rights practice may

prompt us to give greater emphasis to the moral significance of , for instance,

15 Peter Singer, One World: The Ethics of Globalization (New Haven, CT: Yale University Press,2002); Tom Campbell, Poverty as a Violation of Human Rights: Inhumanity or Injustice in ThomasPogge (ed.) Freedom from Poverty as a Human Rights: Who Owes What to the Very Poor ? (Oxford:Oxford University Press, 2007), ch. 2

16 Griffin op. cit., ch. 8.

17 Thomas Pogge, Severe Poverty as a Human Rights Violation, in Pogge op. cit. ch. 1.


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humanity (or benevolence) and rather less emphasis to justice (or culpability and

wrongfulness) when determining the sense in which freedom from poverty might be

adopted as a human right. 18 Viewing this process from the polar extremes, neither the

justifying purposes nor the existing mechanisms in their current contexts are fixedgivens. Accordingly, normative reflection concerning human rights involves matching

human rights values to human right mechanisms without giving unconditional

conceptu al or normative priority to either type of consideration.

I Human Rights Scepticism

The political approach to the philosophy of human rights may be seen as a respon se

to growing scepticism about human rights. In this respect, human rights have become

victims of their own success. Now the preferred moral discourse of politics, the

human rights bran d attracts an ever widening variety of adherents and gives rise to an

increasingly broad range of strategies and mechanisms. This, in turn, makes it more

and more difficult to develop an overarching conceptualisation of human rights which

has sufficient precision to provide adequate practical guidance as to what human

rights are, what human rights are for, and how we should go about determining their

content and scope. 19

Thus, in relation to poverty, while there is broad agreement that poverty is an

undesirable phenomenon and that states have the primary responsibility for

eliminating extreme poverty within their own borders, it is unclear how this can be

achieved and what difference it makes to designate freedom from poverty as a human

right, particularly if the causes of poverty include factors external to the state in

question. 20 When it comes to implementation mechanisms, freedom from poverty is

18 See Tom Campbell, Justice, Humanity and Prudence in Jonathan Boston (ed) Ethics and Public Policy (Canberra: ANU E-Press, 2010).

19 Raz goes as far as to assert that There is not enough discipline underpinning the use of the termhuman rights to make it a use ful analytical tool. The elucidation of its meaning does not illuminatesignificant ethical or political i ssues. Raz op. cit., pp.336f.

20 Henry Shue, Basic Rights (Princeton NJ: Princeton University Press, 2 nd edn, 1996); ElizabethAshford,, The Duties Imposed by the Human Right to Basic Necessities, in Thomas Pogge (ed.)2007, op.cit., pp. 183-218.


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highly controversial as, for instance, a criterion for use in judicial review of

legislation, 21 and is rarely proposed as a justification for systematic coercive

international intervention. Indeed, freedom from poverty may be an unsuitable goal

for which to provide any of the guarantees or enforcement mechanisms which might justify its description as a right of any sort. 22 Hence current scepticism surrounding

the extension of human rights to incorporate considerations of global justice.

Examination of disagreement on such matters reveals underlying conceptual, moral

and epistemological uncertainty about the very idea of human rights. Cumulatively,

extensive cultural diversity and political disagreement with respect to the function and

content of human rights diminishes the credibility of their claimed universality,

overriding importance and purported self-evidence. As a result, the still powerful

rhetoric of human rights is in process of losing much of its former appeal. This

unsettles the theoretical and practical understandings of both the nature and the

functions of human rights. This is exacerbated b y the fact that no philosophical

position on the nature of human rights has achieved an ascendancy that stands above

the trends in intellectual fashion, and no policy program is able to operationalise

human rights in ways that are uncontroversial even amongst human rights adherents.

This is a difficult situation for a terminology that is thought to operate in a realm that

transcends political disagreement through an appeal to basic moral certainties.

The sort of human rights scepticism that prompts more political and less moral

approaches to human rights focuses on certain strands within the philosophy of

human rights, including what may be called (1) moral monism, (2) descriptive

naturalism, and (3) formal conceptualism. Moral monists seek out a normative

thread that leads back to the single moral basis for the idea of human rights, usually

drawing on the natural rights tradition with its emphasis on individual autonomy and

the associated idea of respect for persons, as derived from enlightenment

21 James W. Nickel , Making Sense of Human Rights , (Oxford: Blackwell, 2 nd edn. 2007), ch 9; SandraFredman, Hu man Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford UniversityPress, 2008), ch. 2.

22 Onora ONeill, The Dark Side of Human Rights, International Affairs 81 (2005): 427-39


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philosophers, such as Immanuel Kant. 23 Descriptive naturalists pursue a mainly

secularised version of the sort of natural law theory which seeks to identify a number

of authentic human characteristics, capacities or needs derived from our knowledge

and understanding of human nature and human circumstances.24

Formalconceptualists, in their concern with the meaning of rights discourse and the

categorisation of human rights within an analytical scheme, seek to identify what

they claim to be the content-neutral distinctiveness of rights in general and human

rights in particular, on the basis of such factors as their (human) universality and their

normative overridingness.. 25

As advocates of the political approach, such as Beitz, point out that these sorts of

approach run into serious difficulties. Moral monists come up against the evident

connection between many generally accepted human rights and a broad conception of

human wellbeing which cannot be reduced to one single value, such as autonomy or

dignity, to the exclusion of other values, such as freedom from suffering and material

security. Thus, as has been pointed out above, poverty may be viewed as unacceptable

because of the suffering it involves or because of its impact on human autonomy.

Descriptive naturalists, in their approach to the empirical realities of human nature

and human needs, inevitably have to pick and choose between what is natural in the

sense of what is normal in human societies and what is natural in terms of what is

wholesome, fulfilling or uncorrupted. The first lacks normative force and the second

raises moral questions that cannot be settled by an appeal to nature. This is manifest

in the tension between con ce ptions of poverty that are based on relative deprivation

23 Examples include Alan Gewirth, Human Rights (Chicago: University of Chicago Press, 1982), andJames Griffin op. cit.

24 Examples include John Finnis, Natural Law and Natural Rights (Oxford : Oxford University Press,1980), and Martha C. Nussbaum, Human Rights Theory: Capabilities and Human Rights , Fordham

Law Review 66 (1997), pp. 273-300.

25 Examples abound in definitions of human rights in terms of their universality and overriding moralimportance. Thus Jack Donnelly, Universal Human Right in Theory and Practice (Ithaca: CornellUniversity Press, 2 nd edn. 2003), p.10: Huma n rights are, literally, the rights one has simply becauseone is a human being. Donnelly himself ado pts a more inclusive view.


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within a society and those which incorporate a standard conception of material

existence health that applies to all societies.

Formal conceptualists, in their attempts to define human rights in a content-neutralway, find it difficult to persuade others that the conceptual necessities to which they

are committed, such as the existence of correlativity duties and effective enforcement

mechanisms, apply to all types of human rights. Nor can they convincingly

demonstrate, for instance, that universality is sufficient to distinguish human rights

from other rights, perhaps because universality does not imply moral importance, and

moral importance is not dependent on universality.

These thumb-nail sketches provide some indication why theoretically minded persons

engaged with the practice of contemporary politics are keen to distance themselves

from the philosophical morass of contemporary human rights philosophy. Placing on

hold the search for a general moral theory of human rights enables them to emphasise

the historical distinctiveness of human rights, in contrast to what they see as the now

outdated concept of natural rights, and look instead to existing opportunities for

articulating, implementing and developing the current practical discourse of human

rights.

While this rejection of seemingly intractable abstract philosophising is

understandable, fastening purely on the historically distinctive current human rights

practice has both intellectual and moral downsides. Intellectually it appears rather ad

hoc and piecemeal. Morally it lacks a clear basis for the critique of existing practice.

Further, it tends to fracture the moral integrity of human rights into a plurality of

diverse political arrangements based on a range of ill-defined values such as justice

(legal and social), equality (formal and substantive), autonomy (individual and

collective) and wellbeing (negative and positive), thereby calling into question the

distinctiveness of the human rights justifications for the development and deployment

of mechanisms relating to international intervention, constitutionalised democracy

and mandatory humanitarianism.


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Such scepticism may, of course, turn out to be precisely what is required to rescue the

understanding of human rights from the theoretical impasse reached within traditional

human rights philosophy. At one extreme, human rights fundamentalisms, based on

the ultimately untestable claimed moral insights which are used to legitimate theexercise of global power, or limit democratic institutions in novel ways, are certainly

suspect. To some extent the same problems beset more sophisticated and less

dogmatic monist philosophies of human rights. A measure of epistemological humility

regarding the moral foundations of human rights and some political suspicions arising

from the selective enforcement of recognised human rights, may be seen as healthy

consequences of attending to the issues at stake in the contemporary practice of

human rights, especially where this involves enacting constitutional rights and

legitimating international interventions, both of which can provide a cloak for morally

suspect power politics. On the other hand, at the other extreme, there are clear

drawbacks to acquiescing in open-ended extensions of the range of moral groundings

that are used to legitimate the political mechanisms that are currently associated with

human rights practice.

The challenge here is to develop philosophical approaches to human rights which

centre on the diverse and developing functional roles of human rights in the political

arena and the associated mechanisms used for their institutionalised implementation,

while placing less emphasis on contentious affirmations as to what is and what is not

natural or in accordance with claimed conceptual intuitions, and drawing on a

restricted variety of moral grounds that have legitimate bearing on the articulation of

human rights, indicating how these might be prioritised within a characteristically

human rights morality. This has to be achieved, I argue, by channeling rather than

undermining the politically powerful moral content embedded in the discourse of

human rights.

II The Political Approach to Human Rights

Political or practical approaches take human rights to be socio-political-legalconstructs for definable political purposes, in contrast to timeless natural law


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approaches which hold that human rights are fundamental moral rights that all people

at all times possess on account of their common or intrinsic humanity. This

perspective is usually traced to John Rawls 26, and labeled political by some, 27 and

practical by others28

. This section identifies the distinctive features of the politicalapproach and raises some questions regarding its novelty within human rights

philosophy, thus opening the way for exploring its claimed detachment from moral

foundations.

In a recent article, Laura Valentini asks In what sense are human rights political? and

identifies three possible answers: (1) they are institutional , in that human rights are

meant to evaluate political institutionsrather than personal conduct, (2) they are

public , in that human rights appeal to reasons that are or can be publicly endorsed in

that they can be justified from within a variety of different ethical and moral outlooks,

and (3) they are feasible , in that the content of a human right depends on what is

reasonably feasible in current political circumstances. 29

Together these three senses of political neatly characterise the pragmatic

conceptualisation commended by Beitz when he critic ises the sort of foundationalism

which seeks to ground human rights in a moral philosophy that is detached from

current human rights practices. Beitz presents what Valentini calls a narrow version

of the first (institutional) way in which human rights may be political. He takes the

distinctive political function of human rights to be setting the threshold for

legitimating the intervention of foreign powers in the internal affairs of a human

rights violating state: [h]uman rights are standards for domestic institutions whose

26 J. Rawls, The Law of Peoples (2nd edn) (Cambridge, MA: Harvard University Press, 1999), p.79:Human rights specify limits to a regimes internal autonomy.

27 Raz op. cit. p. 327;

28 Beitz op. cit., p.102: I shall call a conception of human rights arrived at by this route a practicalconceptionA practica l conception takes the doctrine and practice of human rights as we find them ininternational political lif e as the source of the materials for constructing a conception of human rights.

29 L. Valentini, In What Sense are Human Rights P olitical? A Preliminary Exploration, Poli tical Studies On line: DOI: 10.11 11/j.1467-9248.2011.00905.x. Valentini, making the assumption thatthese senses are all to be regarded as preconditions for inclusion as a human right, expresses somedoubts about the second and further doubts about the third answer. My thanks to Laura Valentini for her comments on this article.


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satisfaction is a matter of international concern 30 . Intervention is, here, not so

narrowly defined as to include only coercive intervention, but restricts its analysis to

specific inter-state activities which would otherwise be considered an improper

intervention in the affairs of another state.

Beitzs pragmatic conceptualism also fits Valentinis second political criterion,

according to which the determination as to whether such intervention is legitimate

depends on whether this is capable of being endorsed from within a variety of

different overall ethical and moral outlooks and therefore can be viewed as part of

public discourse. 31 For Beitz, satisfying the public criterion requires understanding

the polit ical nature of human rights though knowing the practice of human rights.

Those engaged in a common effort to develop standards that apply to all nations on a

global scale. This excludes appeal to particular religious traditions and to narrow self-

interest. What is left is still very broad. Clearly the undesirability of poverty would

be a relatively easy topic on which to reach a political agreement, as would the

assumption that states have correlative economic duties towards their citizens, but, as

Beitz points out, 32 reaching public agreement on the extent and the ascription of

responsibility for the intervention on the basis of failure to fulfill such duties is

another matter. On the latter issue, and with respect to public discourse more

generally, he looks to the emergence of a progressive consensus between those

participants in human rights practice who are reasonable , competent and fair

minded 33 requirements which are rather more selective than the normally accepted

bounds of public d iscourse.

30 Beitz op. cit., p. 128. While Beitz includes in his account of the political role of human rights thatthey set standards which limit the activities of all governments domestically, he regards the special roleof human rights as pertaining to intervention when a state fails to provide protection of human rights.See Beitz op. cit, p137 and C. R. Beitz, Human Rights as a Common Concern, American Political Science Review 92 (2001): 269-82 at 277.

31 Valentini op. cit. This also derives from Rawls. Compare Beitz 2009 op.cit, p.21: This conception of international human rights as a public doctrine open to a variety of justifications is indispensable to a

proper appreciation of its historical uniqueness.

32 Beitz 2009 op. cit., p.166f.

33 Beitz 2009 op. cit., pp. 106ff. Thus, p 106: It would make explicit the kinds of linguisticcommitments one would undertake if one were to participate in good faith in the discursive practice;and p.107: First, in identifying the central elements of th e practice, the model should seek to representa consensus among competent participants.


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Valentinis third sense in which human rights can be political(feasibility) is central

to Beitzs practical model 34 in which the factors to be considered include not only the

feasibility of implementing the protection in typical circumstances but also the likelycost of making the protection effective. 35 Therefore, if intervention in the

circumstances in question would not, for instance, typically assist the poverty-stricken

citizens involved then they cannot be said to have a human right to such an

intervention. The limits that the requirement of efficiency places on the cir cumstances

required for recognising a human right provides Beitz with one of his reasons for

holding that contemporary human rights are neither universal nor indefeasible.

Even if, as I argue, Beitzs conceptualisation of human rights is political in all three

senses of the term identified by Valentini, this does not by itself clearly distinguish his

position from that to be found in the traditional or natural law approaches. As Beitz

himself notes, Enlightenment theories of natural rights were developed and deployed

for political purposes, particularly legitimating opposition to oppressive governments,

although, of course, these political purposes are not identical with, and not so

specifically institutionalised, as those of contemporary international human rights

practitioners. 36 This is true of Hobbes as much as of Locke, Rousseau and Kant, all of

whom were concerned with political morality more than individual morality. Indeed,

while proponents of the contemporary political approaches are right to indicate that

there are some very different political issues which arise in a more globalised world,

some of these, such as the legitimacy of political rebellion against rights violating

governments, remain important ingredients of contemporary human rights politics, as

is demonstrated by the role of human rights discourse in the Arab Spring. 37 Social

34 As indeed it has for some time in most traditional analyses of human rights from Maurice Cranston,What are Human Rights (London: Bodley Head, 1973), p.43 to Griffin op. cit., p: 44: I propose,therefore, only two grounds for human rights: p ersonhood and practicalities.

35 Beitz 2009 op. cit., p.110.

36 Beitz 2009 op. cit., p.57: Natural rights theories, at least in modern variants such as Lockes, were primarily attempts to formulat e constraints on the use of a governments coercive power incircumstances of religious and moral diversity.

37 For a different view, see Moyn op. cit., pp.1f: The eternal rights of man were declared in the era of Enlightenment, but they were so profoundly different in their practical outcomes up to and including

bloody revolution as to constitute another conception altogether. Also Vincent, op. cit., ch. 4.


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contract theorists are all to some extent pre-political in that their reflections start

from the hypothesis of social circumstances prior to political institutionalisation, but

these reflections are all ultimately directed towards the determination of what

constitutes morally legitimate political authority.38

There is also a great deal in common between the public discourse criterion adopted

by contemporary political approaches and the attempts of the classical social contract

theorists, who all sought to provide a more secular basis for medieval natural law and

the emerging natural rights in order to solve the problem of religious divisions in the

causation of internal conflict and international war. Hobbesian subservience, Lockean

toleration and Rousseaus general will are all attempts at reasoned public discourse

in the relevant sense of reaching beyond cultural and religious differences in a search

for a common interest in political cohesion and the common good. Indeed, the

development of public discourse is in many respects a defining feature of the

Enlightenment.

As to feasibility, the entire Hobbesian enterprise can be viewed as a rather

exaggerated realism in which the natural rights established reflect a powerful

awareness of the practical limitations as to what can and what cannot be done about

tyrannical government. Further, the Enlightenment focus on the importance of

property can be seen as a recognition of the poitifcal prerequisites of personal and

collective material security. Overall, therefore, granting that the historical contexts of

Enlightenment natural rights and contemporary human rights are significantly

different, they both share the characteristics of being political, in all of the three

meanings senses of politics to which Valentini draws our attention.

However, Beitzs distinction between human rights and traditional rights

philosophies is aimed less at the classical Enlightenment theorists and more at those

contemporary philosophers, such as Alan Gewirt h and James Griffin, whom may,

perhaps, be more accurately described as bypassing detailed reference to the current

38 My thanks to Ben Saunders for drawing my attention to these points. It is worth noting that theacknowledge initiator of the contemporary political approach, John Rawls, is a social contract theorist.


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practice of human rights. Thus, Beitz criticises what I have labeled the moral monist

assumption that the definition and justification of human rights requires reference to

only one particular moral value (agency in the case of Gewirth 39 and personhood in

the case of Griffin40

). Also, Beitz objects to analyses of human rights, like Gewirths,in terms conceptual categories, such as universality, that are used to deduce the

content of human rights partly by the application of these categories, a dubious

methodology I have referred to as formal conceptualism. 41 However, as I note

above, it has been a common feature of orthodox human rights philosophy to include,

as does Griffin, a requirement of practicality within the concept of human rights, so

there is little novelty there.

However, although Beitzs criticisms do have some basis with respect to their chosen

targets this does not apply to all moral focused theories, many of which embrace both

the moral pluralism of human rights justifications and the defeasibility of human

rights when they conflict with other considerations, and few of which depend on

deductions from the allegedly defining formal characteristics of human rights to

establish their content. Perhaps, therefore, the distinctiveness of the political approach

lies, less in the novelty of giving a central place to the political nature of human

rights, and more in the attempt to exclude moral foundations from the key features

used to identify human rights. This takes us to the question of whether or not the

political approach can be detached from the moral foundationalism which is said to

be a characteristic of traditional theory.

III Can the Political Approach Dispense with Moral Foundations?

Knowing the currently accepted institutional implications of acknowledging the

existence of a human right is clearly crucial to how we should go about determining

39 Gewirth op. cit.

40 Griffin op. cit. p.33: In what should we say human rights are grounded? We ll, primarily in personhood. Out of the notion of personhood we can generate most of the conventional list of humanrights.

41 See p.


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the specific content and scope of human rights. We need to know whether what we are

talking about is, for instance, the purpose of protecting minorities through the

mechanism of judicial review, or the purpose of eliminating poverty through

including adherence to human rights standards in international trade agreements, or the limitation of corporate power through expanding corporate criminal liability. 42 It

makes little sense to try and answer whether or not poverty is a violation of human

rights unless we know the sort of mechanisms that will be triggered by adopting it as

a human right. Will it feature in human rights based judicial review of welfare

legislation? Does it legitimate the invasion of a country that tolerates extreme poverty

for its citizens? Is it to be used as a basis for compulsory international aid? Will it

form the basis of a new type of international criminal law?

There are, therefore, good reasons to criticise any philosophical approach to human

rights which neglects to identify and take into account the political purposes and

mechanisms that featured within human rights practice. The proper substantive

content and scope of human rights cannot be determined without recourse to

knowledge of the practice of human rights. It is not just that uncertainties arise if we

do not know the range of mechanisms that may be used to implement a human right.

Moral as well as empirical reasoning is needed to refine the particular objectives as

well as the operational mechanisms that may be adopted. Any analysis of human

rights is, therefore, incomplete without identifications of their characteristic moral

justifications and practical mechanisms, both of which must be included within any

comprehensive analysis of the very idea of human rights.

That there is a complex process of moral argumentation in the determination of what

rights are human rights is not denied by either Beitz or Raz. Indeed both insist on the

significance of the morally legitimating public arguments that must be involved in

determining the content, scope and mechanisms of particular human rights. Thus Raz

outlines how human rights are derived from three layers of argument, first by

42 Tom Campbell, The normative grounding of corporate social responsibility: a human rightsapproach, in Doreen McBarnet, Aurora Voiculescu and Tom Campbell, The New Corporate

Accountability (Cambridge: Cambridge University Press, 2007) pp. 529-564


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identifying an individual interest or other rock-bottom consideration that establishes

an individual moral right, second, holding that under some conditions states are to

be held duty bound to respect or promote the interest and, third, showing that they

do not enjoy immunity from interference regarding these matters.43

In similar terms,Beitz presents a schema for justifying claims about the content of human rights

doctrine with three parts. First, That the interest that would be protected by the right

is sufficiently important when reasonably regarded from the perspective of those

protected that it would be reasonable to consider its protection to be a political

priority. Second, [t]hat it would be advantageous to protect the underlying interest

by means of legal or policy instruments availa ble to the state and, third [t]hat in the

central range of cases in which a state might fail to provide the protection, the failure

would be a suitable object of international concern. 44

So, despite the title of Razs paper, he is not arguing that human rights cannot or do

not have moral foundations in the sense of moral ju stifications. Beitz takes the same

line, insisting that moral argument about the proper content of human rights is indeed

part of the contemporary practice of human rights and adding that there is reason to

hold that this practice is on the whole a good thing, 45 a view Raz shares despite a

greater measure of cynicism as to some of its operations. 46

What then is at stake in the current debate about the foundations of human rights?

Beitz accepts that moral reasons are required to justify human rights practice and that

his position is, in this sense, foundationalist. 47 Raz accepts the substance of this

position when he agrees that vindicating any evaluative position relies, among other

43 Raz, op. cit., p. 336.

44 Beitz 2009 op. cit., p. 137.

45 Beitz op. cit., p.11: we have a prima facie reason to regard the practice of hu man rights as valuable.On the face of it, its norms seek to protect important human interests against thr eat of state-sponsoredneglect or oppression which we know from historical experience are real and can b e devastating whenrealized.

46 Raz op. cit., p. 322

47 Beitz op. cit. p.103. Compare p. 137.


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facts, on universal evaluative truths. 48 His point seems to be not that human rights

lack foundations but that human rights (or some other sort of moral rights) are not, or

at least are not always, themselves those foundations. There can be sound moral

reasons which justify and hence constitute the existence of human rights, but thesemoral reasons are not always moral rights, human or otherwise. A further reason Raz

has for holding that human rights are not foundational is that the reasons which

explain where human rights come from are contingent on the realities of

international relations: they [human rights] lack foundations in not being grounded in

a fundamental moral concern but depending on the contingencies of the current

systems of international relations. 49 Raz is not a rguing here, against moral monists,

that there is more than one moral concern involved in the justification of human

rights. Rather, he is pointing out that the justification of most human rights requires

reference to instrumental factors as well as intrinsic values. However all instrumental

moral reasoning eventually terminates in an affirmation of the desirability of the

outcomes of the instrumentality. Moreover, the undoubted relevance of

consequentialist considerations to the determination of human rights does not entail

that human rights are not constituted in part by some moral foundations in the shape

of the non-instrumental values which play necessary and diverse roles in their

justification. Seeing human rights as a type of political mechanism may undermine

the view that they or their justifications are purely foundational, and hence, perhaps,

self-evident and even pre-political, but it does not establish that human rights are

without moral foundations - in the sense of the non-derivative values in which even

their more consequential justificati ons terminate. 50

On the above analysis, the political approach to human rights is not detachable from

the sort of reasoning associated with the traditional philosophies of human rights, and

which feature, for instance, in the first level of justification in Razs model, namely

48 Raz, op. cit., p.335.

49 Raz, op. cit., p. 336.

50 Raz is not as concerned as Beitz to identify what is conceptually distinctive about human rights,

although his anti-foundationalist position would appear to explain why he fastens on political functionsas the more stable basis for identifying what human rights are about, namely marking the limits of sovereignty .


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the selection of important interests that are deemed to generate correlative political

obligations. Further, although Beitz does frequently emphasise the evident variety of

moral reasons current in the human rights community as a basis for not

conceptualising human rights in terms of their moral justification s, the issue of whether human rights are in some sense with or without foundations can hardly be

reduced to the issue of whether or not human rights justifications are ultimately

multiple or monist, since both positions accept the existence of moral foundations.

The most explicit reason Beitz gives for saying that human rights are not

foundational is that [f]or any particular human right it is always possible to ask why

this right should be part of a global normative doctrine and to expect a reply that

brings forward further moral (and other) considerations. 51 This is a sound enough

point about the pluralism which characterizes the moral justification of human rights,

but it does not exclude the possibility that there is something characteristic about

these moral justifications, and it certainly does not establish that the political role(s)

of human rights serve as a more secure conceptual foundation for the idea of human

rights, since it is also always possible to question the efficacy and morality of a

particular human rights function or role.

The most effective defence of Beitzs conceptualisation of human rights in terms of

their role in international politics political is his claim tha t this is the shared

understanding of the international political community, or at least that part of it that is

conducted utilising the discourse of human rights. On this basis, he makes a whole

series of claims about human rights which he takes to be implicit in the practice of

human rights as a historical phenomenon. This enables him to affirm a range of

doctrines that are contentious in the domain of traditional human rights philosophy.

These include (1) that human rights doctrine is of broad normative reach and not

limited to a set of minimal standards, and (2) that not all of the human rights of

contemporary doctrine can plausibly be regarded as peremptory. 52 Without

51 Beitz 2009, op. cit., p. 127.

52 Beitz op. cit., ch. 29-31. Other general features put forward are heterogeneity of implementation,relativity to social circumstances, and that human rights are evolutionary, not static.


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questioning the accuracy of these reports on practitioners assumptions, there can be

no doubt that they are all open to moral challenge. We cannot, therefore, appeal solely

to doctrines within the parameters of the existing discourse of practitioners to mark

the boundaries of the type of moral consideration that are relevant to thedetermination of human rights.

In the event, Beitzs discussion of anti-poverty rights is not significantly different

from those of orthodox theorists. Beitz commences his discussion with the textual

basis found in Article 25(1) of the UNDR: Everyone has the right to a standard of

living adequate for the health and well-being of himself and his family, including

food, clothing, housing, and medical care, and necessary social services, and the right

to security in the event of unemployment, sickness, disability, widowhood, old a ge, or

other lack of livelihood in circumstances beyond his control. He then neatly

summarises how this cluster of rights is interpreted within the human rights

community. Some of this involves using legal-style interpretation in terms of plain

meaning, the original context and the known intentions of the authors, to conclude (1)

that the subsistence interests involved are absolute, rather than relative to the

comparative situation of others; (2) that they do not require the creation of

constitutional welfare rights, and (3) that it involves the contemplation of some

unspecified sort of international role, so that [a] choice of means would be a

complex judgment of policy, not a direct inference from the assertion of a right. 53

Within this framework Beitz identifies what he regards as hard questions for his

theory. He points out that since the causes and cures of poverty are complex it is not

easy to identify where to locate the remedial duties correlative to anti-poverty rights

when governments have failed in their primary preventive role. He goes on to

discusses the kind of reasons that might justify such an allocation of duties, pointing

out that the amelioration of poverty is a complex matter relating to economic and

social development in ways that cannot be readily reduced to moral or legal duties.

For this reason, the first hard question he addresses is whether subsistent interests can

53 Beitz op. cit., p.163.


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be categorised as human rights in domestic contexts. The second hard question is

whether there could be sufficiently strong reason for there to be a moral requirement

that one state must come to the aid of the poor within another state, especially since

beneficence is not generally regarded as an adequate basis for international duties.

Beitz answers these questions with persuasive practical moral arguments. First,

Article 25(1), he suggests, should be read as guide for policy development and not

interpreted legalistically in terms of its authors intentions. Second, he deploys a

moral argument, along the lines commended by Peter Singer, that there are

circumstances of strong beneficence in which those who are able to come to the aid

of the poor have particularly weighty moral reasons to provide aid in a world which is

marred by significant unnecessary poverty. He then goes on to state that there are

many possible moral reasons for accepting anti-poverty obligations, including a

history of exploitation, unfair trading practices, and lack of natural resources. These

reasons raise a variety of different moral considerations and suggest different

remedial mechanisms. Nevertheless, he contends, there are anti-poverty rights even

if there is no single distinctive reason or category of reasons for action that explains

why eligible agents should contribute to the relief of severe poverty wherever it

occurs 54 .

In all this, Beitz is engaging in the forms of reasoning that are common in traditional

theory of human rights. Neither the relevance of empirical data related to the

implementing of the identified values, nor the importance of identifying the

mechanisms available for implementing these values, excludes this part of his

analysis from the category of moral reasoning, albeit with shifting foundations. The

two positions Beitz considers may be characterised, as humanity (or benevolence)

and justice (or culpability), the issue being whether the situation of that portion of the

worlds people who lack an adequate standard of living establishes correlative

obligations which are based on appropriate feelings of humanity on the part of those

in a position to assist them, or on the ascription of responsibility to those who have

54 Beitz op. cit., p. 193.


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contributed to or benefited from the poverty of those who need assistance. 55 Beitz

makes much here of his previous point that there can be multiple types of moral

reason that support a human right and it is indeed the case that both humanity and

justice may be in play, but they do not necessarily lead to the same content and scopein the right for which they supply the moral foundations. Thus the humanity

justification is likely to regard poverty as relating to a minimum standard of living,

while justice relates more to the comparative situation of those who have been harmed

and those who have caused the harm. 56

Moreover, in the case of both humanity and justice, in so far as these two foundations

are in conflict, this conflict s over which has the sort of peremptory priority that

Beitzs account of contemporary human rights doctrine discounts. With respect to

both these considerations, Beitz would appear to operate beyond the borders of the

assumptions he attributes to the international human rights community and be

engaging in the sort of foundational moral debate which features in traditional human

rights philosophy.

Some of these points can be met by redescribing the doctrine of human rights which is

alleged to be embedded in their practice, although this weakens the case that human

rights public reasoning is characterised by a limited range of reason types. More

important, however, is the fact that the two broad justifications in question (humanity

and justice) have very different implications as to who should be assisted and who

should shoulder the obligations in question. Further the two moral foundations point

to different mechanisms for implementation, with humanity directing attention to the

organisation of aid and justice pointin g more to the correction of unfair trading

practices. The overlap of their practical implications is considerable, nevertheless the

relative weight we give to humanity over justice, or vice versa, has significant

practical implications for establishing priorities with respect to reforming global and

55 Tom Campbell, Poverty as a Violation of Human Rights: Inhumanity or Injustice, in ThomasPogge, ed, World Poverty and Human Rights (Cambridge: Polity, 2001).

56 This bears on and seems to negate his earlier claim that human rights doctrine is not confined to prescribing minimum standards and has a broad normative reach.


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domestic economic systems and implementing redistributive practices. Anti-poverty

rights therefore provide a good example of the way in which human rights have

characteristic, although evidently not unique, moral foundations which are just as

significant as their characteristic roles and functions when it comes to the conceptualanalysis of what does, or ought to, constitute a human right and the normative

assessment of what those rights should be. This raises the question of whether a more

morally inclusive and dialectical approach to human rights philosophising should be

preferred to more narrow interpretations of the political approach to the human rights

theorising.

IV An Interactive Approach to Human Rights

The prime advantages of the political approach to human rights are that it encourages

bringing priority moral considerations to bear on clearly identifiable and immediately

significant political issues and practicalities, and casts reasonable doubts on abstract

theorising, which usually relies on dubious factual claims and unwarranted conceptual

stipulations, which oversimplify the practice of human rights and neglects to take into

account their institutionalised purposes and typical contexts. In particular, some

traditional theories of human rights detach the identification of those interests

considered to be of sufficient moral weight to justify the existence of a human right

from what they present as the completely distinct question of who if anyone has the

duty to provide that protection and how this should be done in concrete

circumstances.

Nevertheless, given the limitations of the political approach to which I have drawn

attention, there may be both conceptual and practical advantages in taking human

rights discourse to be the coming together of moral considerations and political

factors on, as it were, a more equal footing. The moral considerations are human

rights values, that is values adopted and deployed for the purpose of establishing

human rights as mechanisms for protection and furtherance of the core interests of all

human (albeit in different circumstances), as identified by the values in question. The political factors are those involved in the creation and sustenance of doctrines,


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institutions and mechanisms for furthering this process in a realistic way through a

process of public reasoning and political decision-making in specific social and

political contexts.

The complexities of the interaction between human rights values and human rights

practice cannot be adequately explored here. However, one crucial issue arising from

the political approach is the extent to which human rights practice has a normative

and not just an instrumental bearing on the interpretation of human rights values and

their prioritisation. Advocates of practice-dependence 57 argue that taking account of

practice is not simply about devising mechanisms for the implementation of

previously identified moral goals, but includes consideration of how the existing

purposes, practices and relationshi ps bear on the justification of the right as a whole,

including its characteristic moral values or foundations. How this is to be understood

is not as yet clear. Thus, sometimes the practices in question are taken to be those at

work in the social and political relationships which generate different sorts of moral

response, or whether they are the practices at work in the procedures and mechanisms

involved in seeking to respond to the generated moral responses. Also it is not clear

whether the normativity of existing human rights practice is ultimately grounded in

the availability and effectiveness of different remedial mechanisms, or whether it is

claimed that these practicalities have independent normative force, as the language of

justification would seem to imply. 58

It is clear, however, that, while abstract and general affirmations of human rights

values need not be associated in the first instance with a commitment to any one

purpose or any particular mechanism for bringing about, for instance, the mitigation

of severe material deprivation on a global scale, the articulation of a human rights at a

level of specificity which makes evident what its implementation involves cannot be

57 Andrea Sangiovanni, Justice and the Priority of Politics to Morality, Journal of Political Philosophy 16 (2008): 137-64. See Aaron James, Constructing Justice for Existing Practice: Rawlsand the Status Quo, 33 Philosophy and Public Affairs (2005): 281-316. I am indebted to AndreaSangiovanni for his comments on an earlier version of this article.

58 Sangiovanni (2008) 138: Practice-dependent Thesis : The content, scope, and justification of aconception of justice depends on the structure and form of the practices that the conception is intendedto govern.


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satisfactorily achieved without attending to the institutionalised mechanisms that may

be available and the nature and causes of the poverty in question. Uncontroversially,

this requires taking into account the available practical mechanisms for bringing about

social and political change, not only as instruments for the implementation of humanrights but as a basis for determining the particular mix of human rights values that are

most relevant the question of whether, for instance, freedom of poverty should be

adopted as a human right in these circumstances.

On the practice dependent approach, the question of whether there is, or should be, a

human right, such as the right to freedom from poverty, goes beyond this largely

instrumentalist view of human rights practice, to a consideration of the human

relationships which exist within the wider social and economic context, for it is these

that generate the urgent practical moral issues to which human rights, as a practice, is

addressed. Thus, for Sangiovanni, [T]he reasons we might have for rejecting or

endorsing a certain understanding of human dignity or human needs as apart of a

justification of a particular conception of human rights will be fundamentally s haped

by the role human rights are intended to play in current international practice. 59

However, the difficulty in identifying just what these intentions might be, and the

need to question whether these intentions are justifiable, are matters of concern

characteristic of purely political approaches to human rights.

Although their scope and relevance is not made entirely clear, practice-dependent

considerations of this sort fit readily into interactive approaches to human rights and

constitutes an interesting and original element within emerging political approaches to

the philosophy of human rights. The suggestion is that properly assessing whether or

not there is, or whether there should be, a human right to this or that requires

interactive reflection involving foundational human rights values, the implicit

purposes underlying current human rights practice, the currently institutionalised

mechanisms for their implementation, and the social and economic circumstances and

relationships to which human rights practice is addressed.

59 Sangiovanni, op. cit., p.151.


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Another contribution to the conceptual analysis of human rights which hhelpsw to

inform the interactive approach, with its interplay between a pluralist morality of

human rights and the functions and accommodations of their political and legalinstitutions, derives from the work of Richard Arneson, for whom rights occupy an

intermediate pl ace between political values and concrete applications, there being

differing level of abstraction and degrees of concretisation. On this model, human

rights come in a variety of modes, ranging from abstract statements of value (such as

life and liberty) to very specific legal requirements stating precise and authoritative

legal obligations (such as prohibitions on state inflicted capital punishment). Thus,

many human rights may be viewed as mediating between value affirmations and

specific rule-governed implementation. Human rights discourse may, therefore, be

taken as inclding a variety of interactive mediating roles between morality and

politics. One of these roles is to state the basic goals and acceptable methods of

political organisations in the broadest and briefest manner. Some human rights

declarations, bills or conventions do no more than affirm fundamental moral values

on the basis of which, it is held, political policies and methods should be developed.

These abstract and indeterminate statements of human rights can also have the

function of affirming the political values of particular communities or regional

international associations. Such human rights affirmations characteristically are

lacking in precision and in the clear correlative obligations that would make them

appropriate for use in mechanisms within human rights law.

Then there are more specific statements and decisions fulfill another intermediate role

somewhere between the affirmation of important values in need of protection and the

specification of institutional rules and mechanisms of a juridical, administrative or

military nature. 60 Still others statements of human rights take the shape of rights

which have the characteristics of good legal rules: clarity and specificity with respect

to both form and content. It is as we approach the latter than more practice-oriented

60 See R. J. Arneson, Against Rights Philosophical Issues 11(2001): 12-21, and Beitz 2009, op.cit., p.170: Within the practice, human rights operate in the same way as middle-level principles operate inother branches of political discourse.


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interactive human rights discourse is required, of the sort that features, or ought to

feature, in the legal adjudication of human rights charters and conventions.

Affirmation of human rights in the form of human rights values is important for political debate and provides a basis for education, for persuasion, for legislative

scrutiny of existing and proposed laws by legislative assemblies and for political

culture generally, even if they are only rights in the sense that they are important

moral values calling for institutional recognition. It is argued that the right to freedom

from poverty is a manifesto right of this sort, 61 although it may in fact be amenable

to being developed into a more precise set of norms that can reasonably serve within a

range of different mechanisms, such as those used in welfare states to combat poverty

and could be used in what might be called global welfare law. At this point issues of

feasibility are unavoidably and morally relevant, but this does not mean that there is

no useful political role for manifesto human rights in which issues of feasibility play a

less prominent role.

Abstract statements of human rights values without accompanying specification of

concrete correlative obligations undoubtedly contribute to scepticism regarding the

epistemological status of human rights discourse, particularly when these statements

are made to serve roles to which they are unsuited by reason of their abstraction, such

as human rights-based judicial review. However, once distinctions are made between

different levels of human rights specification and account is taken of the diverse roles

of human rights there is no reason to give up on utilising human rights values in the

conceptualisation and articulation of human ri ghts as a whole, and within moral

debate relating to political decision-making. One aspect of this challenge is the

exploration of how the human rights morality evident in contemporary public

consciousness can be brought into a closer working relationship with the mechanisms

currently envisaged as appropriate to the institutionalisation of human rights and the

sort of social and political situations to which they are characteristically applied.

61 The term comes from Joel Feinberg, Social Philosophy (Englewood Cliffs: Prentice Hall 173). Itcan be understood as referring to the rights that ought to exist, or moral values which are candidates for

being the basis for real rights which have correlative specific and located correlative duties.


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Similar points may be made about the traditional defining features of human rights

such as universalism, absolutism and minimalism, variations of which occur at

different levels of abstraction and modes of practical functioning. Thus, all human beings are, according to Beitz, subjects of global concern within the core doctrines

of human rights practitioners. This is a form of moral universalism that can

reasonably be claimed to characterise human rights and which can be taken to

establish a moral orientation to all political issues. Again, some human rights, even

when stated in general terms at a very general level can reasonably be regarded as

absolute because their violation is so immediately evident and almost never infeasible

to avoid. In most other cases this can be revised to identify an element of priority,

which can also claim to be characteristic of human rights. A mix of human rights

minimalism and peremptoriness does have a place in relation to some human rights,

such as the right not to be tortured, where there is a universal correlativity with

respect to the allocation of correlative duties and an evident connection to particular

mechanisms. Others, such as the right to freedom from poverty are caught up in the

complexities of feasibility, the accompanying uncertainty as to its mix of moral

foundations and the concomitant indeterminacy of the content and ascription of its

correlative duties and their possible enforcement mechanisms. And yet torture and

extreme poverty share a high degree of moral peremptoriness which is, in traditional

human rights philosophy, contra Beitz, a major factor in the conceptualisation of what

it is to have a human right.

Conclusion

Contemporary analytical philosophy is not confined to the discovery of the

conceptually necessary features of basic concepts. What is often of more concern to

philosophers is the capacity to clarify the ambiguities and confusions embedded in

over used and over extended political discourse so as to make explicit the contending

and overlapping meanings which feature in public political discourse. Provided the

appropriate distinctions are made and speakers and their audiences are clear as towhat they mean when using the terminology of rights in all their variety, those


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involved should be in a better position to make decisions about the types of human

rights they consider ought to be in place and how the moral values they express ought

to be matched to the mechanisms that are, in the circumstances, best to achieve the

goals in question and, perhaps, vice versa. It should be possible, for instance, toembrace an idea of freedom from poverty as a manifesto human right without

committing to whether or not the inclusion of such a right in the mechanism of strong

judicial review or assuming that violation of this right delegitimates governments and

justifies foreign intervention, provided we then go on to work out its practical

implications in the light of the interaction of their foundational values, the feasibility

of different mechanisms and the necessary balances with other moral considerations,

including, perhaps, those embedded in existing human rights practice. The fact that

the mechanisms adopted differ radically from those connected with, say, torture may

be seen as a difference that does not diminish its status as a human right, any more

than whether the justificatory emphasis is on justice rather than humanity.

A modified political approach, which includes criticising current human rights

practice and rejecting the attempts of a practitioner elite to determine what counts as

an acceptable reason for adopting a human right, has the great advantage of enabling

those within and beyond the confines of human rights participants to maintain the

connection between human rights and the powerful moral beliefs that energise human

rights movements and provide their popular political support. It may be seen as a

setback to the political approachs strategy of diminishing human rights scepticism by

side-lining the analytical and moral debates which are part of traditional philosophies

of human rights. Yet, the way forward may be to endorse those aspects of human

rights scepticism that call for more careful analysis of human rights discourse and

reject simplistic forms of moral reasoning unrelated to practical institutionalisation of

moral ideals. This can be done without giving give up on the task of matching human

rights morality to human rights mechanisms and vice versa.

Thus we should not put to one side such questions as whether or not human rights are

rights at all because, for instance, they may lack both effective means of


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enforcement 62 and/or clearly located and defined correlative obligations. 63 Instead we

should work to distinguish human rights discourse at the abstract level of

indeterminate moral claims from its role in the human rights institutions which

specify the operational content of human rights and the practical mechanisms for their implementation. These distinct poles of human rights articulation can, indeed should,

proceed together, with neither being treated as a given that the other must simply

accept. This means conducting a simultaneous interactive debate on the moral bases

of, for instance, global justice and the real life political and legal mechanisms that are

in place of may be available for its instantiation.

This modified approach does not contest the sort of scepticism that is directed toward

a human rights fundamentalism which holds to the self-evident, absolute and

literally universal model of human rights which can be derived from one core human

rights value, such as autonomy, or a readily identifiable and well-defined set of human

needs. It does, however, provide a framework for an orderly and politically reasonable

way of conducting democratic debate as to the sort of rights that all (or nearly all)

humans ought to possess, in the light of the sort of mechanisms that ought to be

deployed in seeking to guarantee the interests which these rights are intended to

promote and even guarantee.

With respect to freedom from poverty as a human right, the modified political

approach is likely to generate a well constructed conceptual framework within which

to engage in public debate as to the moral foundation(s) of that right, whether it be

humanity, justice or simply collective prudence, and the interactive way they are

related to the variety of mechanisms that might be used to promote the sometimes

very different goals that these moral foundations suggest, both domestically and

globally. Just one of the many proposals that has emerged from this debate involve the

prioritisation of humanity over justice, in association with the adoption of a global

humanitarian levy that is voluntary with respect the involvement of particular states

62 Beitz 2009 op. cit., p.3

63 Raz, op. cit., p. 336.


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but compulsory within the states that opt to participate. How the funds raised by such

a levy should be spent and who should be responsible for coordinating the efforts is

one of the many questions to be determined through such appropriate international

organisations as can be found or created, most of which are contingent on a multitudeof complex causal factors, none of which make it conceptually inappropriate to claim

that the adoption of such a proposal involves the recognition or creation of freedom

from poverty as a human right.

9414 words 10 March 2012

Matching Human Rights Morality With Human Rights Mechanisms[1]

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