How did you get interested in human rights?
I got interested in human rights through two other prior interests. One was an interest in moral philosophy, in particular the question of relativism: whether there are genuinely objective and universal standards of morality. That’s what really fascinated me as an undergraduate and that’s what I went on to write my doctoral thesis on at Oxford. The other topic that always interested me was international law. If I hadn’t become a philosopher, I would have been strongly tempted to be an international lawyer. Human rights appealed because it brought together both of these preoccupations: the concern about whether there is a universal objective morality and, if there is, how that might be realised through an international legal order ascribing rights to all individuals. So, that’s the background story. The more specific explanation is that two events set me off in this direction. One is that I moved to a teaching job at Oxford in 1998 and one of my colleagues there was James Griffin who was just starting to write a book on human rights that was eventually published some ten years later — a very important book. The other event was in 1999, a year later, when John Rawls published The Law of Peoples. Central to that book was a doctrine of human rights. Very soon after that I had some sabbatical leave, my first leave after eight straight years of teaching, and I thought this was a topic that I really wanted to get stuck into.
You’ve recently been made head of the Centre For Politics, Philosophy, and Law at King’s College, London. Could you just say a little bit about that?
Yes. King’s is extremely fortunate that we received a gift for seven million pounds from the family of an alumnus, Mark Yeoh, to establish a centre for politics, philosophy, and law. It’s a marvellous opportunity to bring together different parts of the King’s College community to address what are clearly common concerns but require different sorts of skills—different sorts of disciplinary competencies—to address them. I see my role here as someone who can be a focal point for that kind of multi-disciplinary activity.
Are human rights at the centre of that?
They are, strangely enough, but that’s not through any design. It just so happens that that is one of the topics where there is a lot of shared interest, not just in law but in philosophy, in politics, in war studies and so on. Human rights are central to issues like migration, surveillance or torture — all these topical political issues have this important ethical and legal dimension. Human rights are at the centre of that discourse both among academics and in the wider culture.
Let’s go on to your first book which is The Universal Declaration of Human Rights (1948). That’s a good place to start. Could you just say something about that book?
The significance of the Universal Declaration is that it inaugurates a whole new period of thinking about human rights. There’s something very significant about that text, coming after the Second World War, after the atrocities that were committed, and the powerful reaffirmation it involves of the idea of the inherent dignity of human beings and the universality of their rights. The fundamental posture of that text is a recognition of pre-existing rights. It’s not purporting to confer rights on anyone, it’s saying human beings already have these rights and the point of the document is to affirm an existing moral reality. That’s very evocative.
“Human rights are central to issues like migration, surveillance or torture — all these topical political issues have this important ethical and legal dimension.”
A number of other features are worth pointing out: one is the strong emphasis on socio-economic rights alongside the historically more familiar civil and political rights. A lot of the potential of those rights is yet to be fully explored. Think, for example, about the implications of Article 23, which sets out the right to work, in an age where we’re being told that Artificial Intelligence threatens to crowd out human endeavour. Another right that interests me, that isn’t well-known, is the right to participate in cultural life, including to participate in science and benefit from its advances, in Article 27. Again, in a technological context where it’s possible for ordinary people to get together to conduct clinical trials under the heading of citizen science and so forth, we’ve only just begun to appreciate its implications. In fact, there was a visionary UNESCO report way back in 1952 that talked about this right as having potentially massive repercussions, empowering ordinary people to conduct their own scientific research. There’s an interesting question, also, about how that right might be in conflict with some of the extensive intellectual property regimes that have emerged in recent years. So it’s not as if these Articles are now just settled truths, fully understood. It’s still a fertile document that may stimulate future developments.
The other thing I would like to mention is that it’s genuinely the product of intercultural dialogue. For example, socio-economic rights were not, as many people think, a demand simply of the Soviet Union: Latin American countries played a leading role. The emphasis on non-discrimination, in particular in relation to gender, was heavily supported by the Indian delegation. So, in addition to having universal pretentions, the way in which the Declaration was constructed reflected the input of a dialogue involving a diversity of cultures. For all those reasons, I think it’s a seminal and enduring document.
I’m intrigued by the idea that this document reflects pre-existing rights. Do you mean these pre-existed in that they were recognised within other countries, or that they are somehow naturally there in the fabric of the world?
I suppose both are true, if by the ‘fabric’ metaphor you mean objectively true or valid. In constructing the Universal Declaration, part of that process did involve gathering constitutions from various countries around the world and examining the rights that they incorporated. But philosophers, like Charles Malik, were involved in this framing process. Their thinking included the idea that humans have a dignity, whether or not it’s recognised, and that humans also have rights, whether or not they’re recognised. There is a special value in having a document that publicly affirms these things, particularly in the light of the terrible experiences of recent history.
What would you say to Jeremy Bentham’s thought that the idea of natural rights—naturally occurring rights—is ‘nonsense on stilts’?
I think he’s on dangerous ground, personally. The implication seems to be that you can’t have any rights unless they’re the creations of law, that only law can confer rights. There can’t be rights simply as a matter of morality. But then the question is: Why not? Bentham himself affirms a moral principle independent of law, that is, the principle of utility, that you should maximize happiness. Well, if you can have one normative principle independent of law, why can’t we have another that confers rights? I guess Bentham’s answer would be that the principle of rights won’t fit under his overarching principle of utility. At this point, one needs to engage in substantive ethical argument. It’s not going to be enough to say that the only real rights will be those that are embodied in the law. So, I agree with HLA Hart, himself no mean Bentham scholar, who wrote that “the whole idea that there could be rights which were not creatures of positive law seems to have filled him with a kind of unreasoning fury, possibly because this idea threatened to bring into question utilitarianism as an adequate moral theory.”
Do you think that the Universal Declaration is the kind of text that ordinary readers would get something out of by just picking it up and reading it?
Yes, I think so. It’s very accessible. Apparently, it’s the most translated document in the world. There are versions of it that have been produced for children to read, as well. Someone—I think it was Gadamer— said that the mark of a classic is inexhaustibility. You go back to it and find new things in it every time. That’s what I would say about the Universal Declaration, partly because, of course, many of its articles are framed in a rather broad way. But reflecting on them individually, and also as a group, can spur interesting developments in your thinking about all sorts of problems that we confront today. For example, the right to science. Who would have imagined that there is an individual right of participation not just in politics but in the wider culture, including scientific practice? It’s very prescient.
Presumably that is directed at governments who want to stop people making progress through science—perhaps in the name of religion they shut down on science itself—not on citizen science, individuals conducting experiments in their back gardens?
No, I think it was meant to be about ordinary individuals, not just professionals, engaging in scientific inquiry. The UNESCO document I mentioned makes that very clear. Another question is whether the document itself is directed exclusively at states as duty-bearers. That was one of the interesting issues that arose in its framing. The delegate from the Soviet Union insisted that after each article there should be a sentence along the lines of, ‘And this shall be enforced by the state’. This proposal was rejected. The thought was that of course the state will have a vital role in realising human rights, but there was a deeper understanding that if rights were truly to be realised, the state would be one actor among others, they would have to be realised by individuals in their day-to-day behaviour, by groups within the state context, by organizations above the state level, and so forth. It’s one of the great strengths of the document that though it may seem to be primarily addressed to states, its ultimate objective is the creation of the human rights culture that goes well beyond states. As Eleanor Roosevelt—who chaired the drafting committee for the Declaration—famously said, human rights begin “in small places, close to home — so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the school or college he attends; the factory, farm, or office where he works.”
Another thing that is important is that it was meant to have significance despite not being legally binding. The Declaration wasn’t a treaty, it didn’t legally bind anyone. In fact, if it had been legally binding, it is very doubtful so many states would have signed on to it. The thought was that a simple political declaration of these rights would have great significance. What that alerts us to is that not only should we not pin all our hopes about human rights on the state, but we should not pin all our hopes on the institution of law. We should be open to a diversity of means through which human rights can be realised. An important recent example of a human rights document that also breaks with statist and legalist assumptions is the UN’s Guiding Principles on Business and Human Rights, which was approved in 2011. The document imposes human rights responsibilities directly on corporations, and it regards law as only one mechanism among others for providing remedies for violations of human rights.
Let’s move on to your second book which is James Nickel’s Making Sense of Human Rights (1987), which is what we’re trying to do, in a sense, through this interview. So, what kind of writer is James Nickel?
James Nickel is an American philosopher. When he wrote this book he was based at the University of Colorado’s philosophy department and he’s currently in the law school at the University of Miami. A lot of people would trace their first philosophical engagement with human rights back to this book. I have always used it as a kind of foil with my students. There is always a tendency amongst graduate students to work on fashionable topics, in particular what the leading philosophers of the day are writing about. When James Nickel conceived the idea of writing philosophically about human rights, he was told by many in the profession that it was a waste of time. Despite getting this advice, including from Jules Coleman, a famous legal philosopher, he was undeterred. I like that aspect of it: the sheer independence of mind, the willingness to work on an important area that was shunned by his peers. Nickel has been hugely vindicated since.
The other aspect I want to stress is the methodology, as revealed in the title: Making Sense of Human Rights. By ‘human rights’ Nickel means that culture inaugurated by the Universal Declaration of Human Rights. So, although there are many things you might mean by ‘human rights’, what Nickel means for the purposes of this book is the Universal Declaration and the ethical-political-legal culture to which it has given rise. His question is: how we can make philosophical sense of this, rather than thinking of it purely as some kind of political compromise or merely as a matter of rhetoric or a move in power politics. I still think, to this day, that this book is the best introduction to the philosophy of human rights. It’s extremely clear and it approaches the subject matter in a spirit of critical sympathy. He doesn’t want to show you how smart he is compared to the drafters by making fun of particular human rights in the UDHR, like the right to rest and leisure. He’s doing his best to find the kernel of good sense in the Universal Declaration. I think he does a great, pioneering job of this.
That’s what I would call using the principle of charity: trying to discuss the most plausible version of a theory that you could construct from the evidence there.
It’s partly the principle of charity, but it’s also partly a matter of what your ethical instincts are. Are your instincts that the concept of human rights has been a valuable one that helps to articulate important demands that individuals may have against the state and against others? Or do you think it’s a matter of ideological window-dressing? Clearly, Nickel belongs to the former category. He believes that it’s a valuable ethical idea. That is his starting-point, and the book is an attempt to unfurl exactly what this idea is in as attractive a way as possible so as to clarify and guide our thinking about human rights in the future.
I’m completely sympathetic to the idea that there are some things which are abominable and some things which are just basic human requirements. But I don’t think I could justify a claim like ‘you should never torture anyone’ to somebody who completely rejected my philosophical framework. At a certain level, it feels so true to me, but there are people who say, ‘Well there are circumstances and conditions where it becomes the right thing to do.’
We have got to distinguish between justifying something and persuading someone. There may be a perfectly good justification and yet we know that, despite having a perfectly good justification for a given proposition—for example that climate change is happening or that astrology doesn’t accurately predict your future—there will be people who remain unpersuaded. I think that’s part of the story. The other part of the story, though, is that the first person you need to justify something to is yourself. You find yourself commitments not to torture people and so on, but can you justify to yourself why you believe these things? That’s the first step. One of the interesting things that we find in Nickel’s book is that there isn’t a single, privileged form of justification for these rights. There’s been a tendency to suppose that if you’re going to engage philosophically with human rights, you’re simply engaging with them as a by-product of some commitment to a broader moral theory, such as utilitarianism or deontology or whatever. Nickel challenges that. He says, ‘Look, here are some rights that have achieved a great deal of traction and many of us believe in them. There’s no need for a privileged philosophical account of their justification. There may be overlapping strands that go towards justifying each right.’ He pioneered that approach, and I guess, if you follow him, one of the things you have to take less seriously is the philosophical desire to reduce everything to a system where everything follows from some small, elegant set of principles.
So, he’s an eclectic in the source of justification. He’s not saying there is what Isaiah Berlin (unfortunately) called a ‘final solution’ — one right answer about how you ought to behave, that it’s written in the stars somewhere that you have to be a utilitarian or you have to be a Kantian. There are many possible ways to be moral and there may be overlapping justifications that emerge for any human right and we should draw on all of those.
Yes, I think what he might say is that there may or may not be the one correct way of justifying human rights, according to the correct moral theory, but we don’t need to be in possession of that theory in order to proceed responsibly with human rights. There are a number of justificatory strategies that we can bring to bear. It’s important to remember that he was, in a sense, more concerned with those rights that end up being incorporated into law. I think it’s true that if you’re thinking about the rights that belong in law, often there isn’t one particular justificatory route to something getting into law. So, maybe some rights that are in law—for instance the right not to be tortured—might map fairly directly onto a background moral right. There is a moral right not to be tortured, if there is any moral right. But there might be other legal rights that don’t bear quite this direct justificatory relationship with another moral right. They might be justified on the basis of considerations of the common good, for example, or considerations to do with the current state of the world. You might say, ‘Look, if you’re examining this from a purely moral perspective, then maybe the death penalty isn’t always a violation of human rights. But, given the reality of how the death penalty is used, there’s a good case for legally enshrining a right to not be subjected to the death penalty.’ So he could have more of a pragmatic, ecumenical approach to justification because his primary focus is on those rights that end up being legally enacted.
Presumably that also involves having some kind of methodology for reconciling conflicts of rights?
That’s right. As far as I know, his current project is to examine relationships between rights. It was a good investment, back in 1987, to publish this book because it’s one thing to establish the existence of the rights. Then you’ve got to get into questions about what exactly their content is and how the content of one right relates to other rights, and how the content of any given right relates to non-rights-based considerations. At that point, the possibility of conflict or trade-offs or balancing can come into the picture. It’s one of the many fundamental questions about human rights that needs deeper investigation.
What is your third book choice?
It’s The Idea of Natural Rights (1997) by Brian Tierney. This is by a medieval historian, but one who is extremely well read in the contemporary philosophy of rights. That’s interesting because there’s often an assumption that you can write a history of a topic without taking a stand on what you’re talking about. You could do a history of Nazism, say, without necessarily adopting any kind of moral stance. That’s a very problematic approach, in my opinion. You couldn’t write a worthwhile history of science without recognising that one of the reasons scientific developments happened as they did is precisely that some scientific theories genuinely were better than others. People at the time recognised this, and that’s why some theories became defunct and some became prominent. The same goes, I think, for the history of ethical and political ideas. Tierney is sympathetic to the ethical idea of human rights, but his immediate topic is: When did the notion of natural rights emerge as a distinct notion in our thinking? There’s a huge controversy about that. Many people believe the language of natural rights was born in early modern Europe, with the emergence of individualism within nascent capitalist society and the self-regarding—maybe even selfish—nature of that individual, and that the idea of natural rights is in deep tension with the Aristotelian tradition that focuses on virtue and the common good. What’s revelatory about Tierney’s book is that he says natural rights thinking emerged much earlier, in the 12th century, in writings of canon lawyers who were trying to reconcile the body of Roman law with the body of canon law. In their commentaries, he detects a momentous semantic shift. They were talking about ‘right’ (or, in Latin, ‘ius’), in the sense of what is right as opposed to wrong and then, at a certain point there’s this modulation. They start writing not just about the right thing to do, but about rights possessed by people: subjective rights in the sense that some subject has the right—rights as powers or capacities of that individual— independently of positive law.
“There may or may not be the one correct way of justifying human rights, according to the correct moral theory, but we don’t need to be in possession of that theory in order to proceed responsibly.”
Tierney’s history of natural rights is important in a number of ways. If, like me, you believe that human rights are objective moral norms, then it’s highly unlikely that we had no inkling of them until modernity or, as some claim, as recently as the 1970s. One of the things that Tierney’s book does is make you see that our present-day preoccupations with rights were foreshadowed in a very different era and cultural setting. Secondly, many people argue we have to disassociate human rights from natural rights: they think of natural rights as heavy-duty metaphysical, maybe even inherently religious, in character. The human rights we affirm now, however, can’t be anything like this: they can’t play their role in a pluralistic society if we see them as metaphysically freighted in this way. One of the great features of Tierney’s book is that he makes it very clear that natural rights thinking did not originate from metaphysics. In particular, it did not originate, as people like Richard Rorty have claimed, from some outmoded Aristotelian essentialist conception of human nature that is historically invariant and from which human rights can be derived. Tierney says that in the writings of these canon lawyers, natural rights emerge from certain qualities that human beings characteristically possess: in particular their rationality and their need for integration into a society if they are to flourish. You can believe in these qualities without believing in any notion of metaphysical essence, in exactly the same way that John Locke—who was sceptical about essences—nonetheless believed in these qualities and thought that they generated certain rights independently of legal enactment. So, the idea that there is a great difference between us wanting to be metaphysically lightweight and the metaphysically heavyweight natural rights tradition is an over-simplification.
A third thing that’s important in this book is that Tierney stresses that for the authors he talks about, natural rights were just one element of morality amongst others. Natural rights did not exhaust the whole set of moral considerations. There are also other considerations, such as duties without counterpart rights, for example, duties of charity, and considerations of the common good. These ideas had to be integrated together into an overarching vision. There’s no thought here that rights are somehow intrinsically antagonistic to the common good, or that if you are someone who affirms rights then you are against notions of charity or benevolence towards other people. Rights are simply one strand in our ethical scheme amongst others. That’s a lesson that we really need to learn today, because in the contemporary era there’s a tendency for human rights to aspire to ideological hegemony. We try to formulate all of our moral arguments in their terms. I’ve even heard arguments that saving the whale is all about securing human rights. That has to be wrong. What Tierney teaches us is that when natural rights emerge in Western consciousness, they emerge as one important consideration amongst others, but they don’t monopolise the field of moral concern. If, in the process of seeking to elevate their importance, we fail to grasp this we will end up losing our grip on the distinctive significance of human rights.
Just to clarify: a natural right gives other people responsibilities towards me, something I can justifiably expect of them?
That’s right. Typically the kinds of rights that are talked about are ‘claim-rights’, which means that my possession of this right entails that others come under various obligations, for instance to allow me to make and pursue certain choices without interference or to provide me with certain goods and services.
Tierney’s book sounds fascinating.
This book is deeply inspirational to me. Even though I’m not a historian, I get a lot of inspiration and support for the work I’m doing when seeing it as part of this broader tradition. I came into philosophy as someone who was attracted to Aristotelian ethics, and when I was an undergraduate one of the leading writers deploying an Aristotelian approach was Alasdair MacIntyre. MacIntyre notoriously claimed in After Virtue that human rights are like witches and unicorns: no good argument has ever been given for their existence. The thought seemed to be that if you signed up to some Aristotelian approach to ethics involving a conception of human flourishing and the virtues you had to be hostile to human rights. Human rights were, on this view, part of a misguided Enlightenment project that sought to vindicate moral standards without relying on a rich and objective account of human flourishing, of what makes a human life go well. Tierney, historically, gives the lie to that notion. He shows that, in fact, there is a natural rights tradition that is following in Aristotle’s footsteps. You don’t have to be a Kantian, or to reject the idea that ethics is rooted in the promotion of human good, in order to subscribe to human rights. It is encouraging that MacIntyre, in recent years, appears to have abandoned his former hostility.
And your fourth book?
The fourth book is John Rawls’s The Law of Peoples (1999). In a way, this is the opposite story to Nickel’s book. Jim Nickel’s book entered into an unpopular field where people were telling him that there was no philosophical pay-off in discussing human rights. John Rawls’s influence is so widespread and profound that as soon as he embarked upon this topic, though it only occupied a few pages in The Law of Peoples, it suddenly, for many philosophers, legitimised humans rights as a subject of philosophical concern. It was now acceptable to work on human rights, in fact, in some ways, it maybe even became compulsory to work on human rights because John Rawls had worked in this area. Perhaps that’s an overly cynical view of how my philosophical colleagues operate. I too was influenced, so I can’t say that I’m immune to this myself, but it is remarkable that there has been a real flowering of work on human rights since 1999, the year Rawls’s book was first published. This can’t be entirely a coincidence.
It sounds rather like when a famous art collector starts collecting Jeff Koons and then everybody else has to follow.
It proves that philosophers are human, like everybody else, and subject to fashions and various forms of subterranean influence. Rawls made thinking about issues of global justice and human rights respectable, but he was also influential in two other extremely important ways. His discussion of human rights is very brief, so the degree of impact given the amount of writing is phenomenal. Rawls was very exercised by the problem of ethnocentrism — of whether the rights we affirm as human rights are just parochial Western ideals unjustifiably imposed on other cultures. He tried to address that worry by two kinds of narrowness. First he came up with a very short list of human rights, which was very much a small sub-set of the rights that would be guaranteed in a liberal democratic society. Human rights included rights such as freedom from slavery and serfdom, liberty of conscience, security from mass murder and genocide and a few others. Many of the rights in the Universal Declaration would not count as human rights for him, they would be merely liberal aspirations. He would say, for example, a robust freedom of religion is not a human right. There’s a right to be free from religious persecution but not equal to freedom of religion. There’s no right to free speech or to work. There’s only a right to subsistence, not a right to an adequate standard of living. This is a very exiguous list of human rights. That’s one way of dealing with the question of ethnocentrism: by slimming down the list of human rights.
The second way he deals with it is by saying we shouldn’t publicly affirm these rights on the basis of some controversial metaphysical or philosophical doctrine. We shouldn’t say, for example, that all human beings possess human dignity or are created in the image of God, or that human flourishing or the most fundamental interest of human beings lead to these rights. This is because other people, especially those in other cultures, might not unreasonably reject these views. He tries to give thin foundations for human rights by a two-step procedure: (i) we can imagine a social contract in which liberal states would agree to the minimal schedule of human rights; and (ii) we can imagine some decent but non-liberal states also agreeing to these rights. The fact that the second step is imaginable, that a decent non-liberal society could also, for its own reasons, sign up to these rights is what is supposed to show that human rights are not ethnocentric. But nowhere did we need to appeal to some claim about ‘objective truth’ in religion, philosophy or ethics to provide them with a public justification.
That sounds like resorting to the lowest common denominator. It runs a risk of diluting rights into something so thin that they can’t do any work. It would be grim for human existence if that’s all we can guarantee in the overlap between different cultural stances.
That’s a legitimate worry, and I am not an adherent of Rawls’s attempt to detach human rights from an appeal to objective ethical truths. I think he would press two things in response to your worry. One is to say that we cannot realistically hope for a world composed exclusively of liberal democracies upholding the rich array of rights such societies should uphold. Then the question is, what’s the sort of non-liberal society that, intuitively, a non-liberal democracy should be able to get along with without needing to pressurise it, intervene against it and so forth? He thinks that decent but non-liberal societies fit this bill, and they would respect his minimal schedule of human rights.
The second point addresses your concern about what job rights are doing when we water them down to this extent. Rawls argues that they perform two fundamental roles. The first is that any society that isn’t complying with this limited list of rights can’t be legitimate. Its citizens do not have a moral obligation to obey its laws. This minimal list of human rights is a touchstone of the internal legitimacy of a regime. The second role is that the short list of rights regulates when intervention against other societies is justified. In particular, on my interpretation of Rawls, what he’s saying is that this list of rights is so brief because it captures the distinctive importance of human rights for foreign relations. Its distinctive importance is that only the rights on this list are those that are capable of generating a case for coercive intervention if they are extensively violated. His position is that if you want to know about the rights that would be guaranteed in an ideally just society, then look at his main political work, A Theory of Justice, which sets out the rights secured by a fully-fledged liberal democracy. Of course, no such democracy exists in the world, but those are the rights that, in terms of full justice, we’d be entitled to.
Human rights, for him, answer different questions. One is a question of which rights have to be respected if a society is to be legitimate internally, and the other is which rights need to be respected to be free from justified forcible intervention by others. Internal legitimacy and freedom from external intervention are two incredibly important matters. Those are the questions that Rawlsian human rights address. He’s been very influential in claiming that we should construe human rights in terms of these two political functions. Not everyone buys both elements of the story but, for example, Charles Beitz and Joseph Raz certainly accept the view that human rights as some sort of trigger for intervention or international concern in their important work on human rights. Meanwhile, Ronald Dworkin agreed with Rawls that human rights are essentially bound up with the conditions of legitimacy. So Rawls has been hugely influential on some of the major political philosophers of our time. They have followed leads established in these meagre pages devoted to human rights in The Law of Peoples.
Is it an implicit critique of the Universal Declaration that he’s boiled human rights down to this little concentrated liquid at the bottom?
I’ve got a feeling that he probably wasn’t too concerned about the Universal Declaration. Many of us writing on human rights are like Nickel, we’re concerned to make sense of human rights understood as something like the familiar list in the Universal Declaration. Rawls was more interested in completing his liberal theory of justice. When he thinks about the rights that would ideally be accorded people in the most just kind of society, he’s already answered that question without any resort to the Universal Declaration in A Theory of Justice and Political Liberalism. So, the remaining question is: What extra work is the distinctive notion of human rights doing? He thinks they belong fundamentally to the foreign policy of a liberal society, they help us determine those societies that are internally legitimate and properly immune from coercive intervention. Some might say that this is a distinctively American approach to human rights – that human rights are really not so much rights we have to comply with as what others have to comply with on pain of being liable to external coercion. To be fair to Rawls, however, he would insist that America is a long way from being a fully just liberal democracy.
So the limits of humanitarian intervention are set by the thin rights?
The limits of coercive intervention certainly are. If a society is engaged in widespread and persistent violations of human rights, then according to Rawls it is, in principle, liable to coercive intervention. If it respects the minimum schedule of human rights, then it is immune from such intervention, even if it is in various respects highly illiberal, for example, by denying a vote to women or excluding religious minorities from public offices. However, there are also forms of non-coercive humanitarian assistance. Rawls imagines a type of society he calls a ‘burdened society’, one that is incapable for various reasons— cultural, lack of resources and so on—to aspire to being either liberal or decent anytime soon. Regarding burdened societies, liberal and decent societies have a ‘duty of assistance’ to help them become liberal or decent, which consists in more than just complying with the minimum schedule of human rights.
Let’s move to your final book choice.
The last book is the most sophisticated philosophical treatment of human rights since the Universal Declaration and that is James Griffin’s book On Human Rights (2008).
Was James Griffin your PhD supervisor in Oxford?
When I was a doctoral student he supervised me for one term when my official supervisor, Joseph Raz, was on leave. Some years later, I became a friend and colleague of his at Corpus Christi College, Oxford, where he held the White’s Chair of Moral Philosophy. During that time he was writing On Human Rights and we would often talk about human rights and give classes together on political and legal philosophy. So I feel I enjoyed privileged access to this book compared to the other four on my list.
Knowing somebody, even at the level of just having met them and having heard them speak, deeply affects how you read their work. Does knowing James Griffin affect how you read his book?
It probably does, especially insofar as I feel I have a grasp of the wider philosophical agenda that animates his project. If there’s any book where I feel I really know what’s going on, then it would be Griffin’s book, although he inevitably disagrees with my interpretations of some of the things he says. The reason this is such an important book is that Griffin, unlike Nickel and Rawls, really does try to connect human rights to moral philosophy. The danger in doing that is that you simply impose some pre-existing grid, some favourite general moral theory, onto human rights and distort the subject in a top-down way. Griffin, however, is very sceptical about contemporary moral theory, especially the aspiration to systematic unity that it embodies. In his book Value Judgement, he is very sceptical about the three leading contemporary moral theories: consequentialism, deonology and virtue ethics. He has an attractively pluralist and ‘bottom-up’ approach to ethics and this enables him to deal with human rights in a much more compelling, interesting way because it’s not distorted by these prior commitments to the idea that, really, ethics comes down to virtue or, really, it’s all about maximising welfare.
The value of this ‘anti-theory’ approach emerges most forcefully in his chapter on conflicts of human rights, which is one of the best in the book. Among other things, that chapter helps to inoculate us against one very widespread misconception. This is the mistaken idea that only a utilitarian can believe that emergency situations may arise in which a human right may be justifiably overridden. This is a profound error, because the avoidance of disaster is not to be equated with the maximization of welfare. The potential need to trade-off at least some human rights in emergency situations does not show the ultimate correctness of utilitarianism.
To get this clear, Griffin’s book is about moral rights? It’s not specifically about justifying legal rights in the way that some of the other works we’ve been talking about have been.
That’s right. In Nickel’s book there is a focus on human rights understood as rights that ought to be embodied in law. In Rawls there is a focus on rights performing certain political functions — triggering intervention and operating as benchmarks for legitimacy. By contrast, Griffin has the more classical view—closer to the discussions that Tierney describes—of human rights as natural rights. Human rights may be legalized, and they may perform certain political functions, but this is not part of what makes them human rights. There are two ways that one can articulate the continuity between human rights and natural rights. One is to say that they’re universal moral rights: rights that are possessed by all human beings simply by virtue of their humanity. Second, the way we discover them is by engaging in ordinary moral reasoning. We don’t discover them by examining the law, or by some special process of public reason that does not aspire to objective truth, as Rawls would insist, but by whatever normal forms of moral reasoning we engage in to establish duties to keep promises and to refrain from killing people. That’s the same form of moral reasoning you use to identify human rights primarily as moral concerns. Then, of course, there would be further questions about the extent to which these moral concerns now identified should be embodied in law; which institutions might best be able to realise them; whether we need judicial review or some other process, how they bear on political legitimacy, when their violation justifies some kind of external response, and so on. The answers might vary from society to society, but one of the things that I find refreshing about Griffin’s book is that he doesn’t believe there’s a shortcut from affirming the existence of a human right to any immediate prescription regarding these other questions. That’s a further step that would have to be made and not a logical conclusion from the existence of the right. I think he is correct to conceive of human rights as fundamentally moral rights in this way.
So, is he talking about universal rights? If you talk about a human right, that sounds as if it should apply to every human being.
Yes, he is. Griffin contends that human rights are protections of the value of personhood, and he breaks down the value of personhood into a number of values: autonomy, that is being able to choose a conception of the good life from a range of options and liberty, which is being able to pursue the choices that you’ve made without interference from others. He also identifies some kind of minimum material provision in order to enable you to be in a position to choose and to pursue the choices that you’ve made. He argues these three values are the three super-human rights, and they apply across human history to all human beings who qualify as agents capable of choosing and pursuing their conception of a good life.
And yet there are many cultures where only some people get to enjoy those rights and that’s built into the fabric of their society.
That is the problem of cultural variation in the face of putatively universal moral demands. There’s a very powerful contrast here with Rawls. Rawls tries to deal with the problem of cultural variation by retreating to minimal foundations, to the common ground between true liberal democracies and the decent non-liberal societies they ought to be prepared to tolerate. Griffin, by contrast, gives the traditional response to ethnocentrism: namely, that it is a misnomer if human rights principles are objectively justified. They may have been first discovered in the West—and Griffin accords great significance to an Enlightenment tradition of thought about natural rights—but that does not prevent them from being universally valid. Using a somewhat strained analogy, it’s akin to the way that medieval Arab mathematicians made important discoveries which are not only valid for Arabs. They are universally valid. Griffin’s response is that personhood is a valuable quality, exemplified by all human beings, meriting certain kinds of protection through rights. This is what our ‘human dignity’ consists in for Griffin, the capacity for normative agency that elevates us above non-human animals. The first thing to say to a culture that disagrees with that idea, and the respectful thing to say is, ‘You’re mistaken. Here are the reasons you’re mistaken. Now show me why you think I’m wrong.’ But, again, there’s a further step. From having seen that the other culture is mistaken in not acknowledging the rights that flow from human dignity, nothing automatically follows about what we may permissibly do to get them on the right path. It might be that there’s very little, or perhaps nothing, that we can do.
Would it be fair to characterise Rawls as a pragmatist and Griffin as a realist?
The way I would characterise it is that Rawls is a functionalist. He sees human rights as performing defining political functions and that they can and should perform these functions without resort to a foundation that claims to be objectively correct. Griffin, by contrast, is a foundationalist. He wants to tie human rights to certain foundational ethical values, in particular this overarching value of personhood which, of course, gives him problems because it’s not clear that human rights are always or exclusively about protecting personhood. This becomes especially apparent when you’re dealing with human beings who do not have the capacity for choice, or may never acquire it, or have it, or have irretrievably lost it. Such humans—infants, people suffering from the advanced stages of senile dementia—nonetheless appear to be fully-fledged holders of at least some human rights, such as the right not to be tortured. This is a conclusion that Griffin contests in his book, pointing out that we can criticise the bad treatment of humans who are not agents without resorting to the language of human rights. I am not persuaded. In my own work, I have argued that the values that ground human rights go beyond the value of personhood, they include values such as freedom from pain and certain kinds of humiliation. When we expand the values protected by human rights in this way, we can legitimately speak of human rights possessed by humans who are not agents.
This is an area that really matters. With human rights, we’re talking about protecting individuals from harm, giving people the kind of life where they can actually fulfil their potential. These are profoundly important concerns within every society. But, in some societies, basic human rights are clearly threatened. If we can’t justify to ourselves what a human right is and why it matters, how can we possibly justify serious military or other kinds of intervention? This is fundamental philosophy which can have practical outcomes. As an academic activity thinking about human rights is different from a lot of philosophical and legal theory: it’s not an activity which is pure in that sense—like pure mathematics—it’s applied philosophy.
I agree this is an area that readily lends itself to application, partly because people are receptive to discussions in terms of human rights. But we need to put that receptiveness under some scrutiny because often people will deploy the rhetoric of human rights, because it sounds good, because it makes what a government or international organization is doing sound admirable. But when you start pressing them on what exactly is going on here beyond saying that it is achieving outcomes they value, often they’re not able to tell you. People seem to be committed to the rhetoric of human rights, and this can provide leverage to get them to think hard about what a human right really entails. Recently, I attended an event at the World Bank in Washington DC and it became very clear that many present thought of human rights in predominantly economic terms, terms which are deeply influenced, whether they realise it or not, by utilitarianism. It’s very challenging within that sort of framework to make sense of human rights. That’s precisely why Bentham tried to jettison the idea and he has many followers today who say that human rights thinking should be replaced by the tools of development economics. Again, what is true of economists is also true of some lawyers. It becomes clearer, once you subject it to scrutiny, that when they’re talking about rights they are really talking about interests – which is why they’re so ready to countenance trading off one right against another. Well, you trade off one interest against another, but the idea that you have a right that is regularly, rather than exceptionally, subject to trade-offs is self-defeating. Because of the great vogue for human rights as a rhetoric in our culture, it provides an opportunity for philosophers who have something to say about the normative significance of human rights, how to establish their content, and how they relate to other moral concerns. The world has given philosophers a convenient entry point to introduce greater rigour and reflectiveness into how one reasons about these important questions.
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