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Human Rights, Interpretivism, and the Semantic Sting

Published online by Cambridge University Press:  28 September 2023

Gabriel Costa Val Rodrigues*
Affiliation:
Brown University, Providence, Rhode Island, United States
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Abstract

What are human rights? What makes a particular human rights claim ‘genuine’ or ‘valid’? These are difficult questions with which current philosophical literature on human rights is concerned. They are also the same kind of questions that legal philosophers asked about Law throughout the 20th century. Drawing from the similarities between the two fields, I attempt to do with the concept of human rights something similar to what Ronald Dworkin accomplished with that of Law in Law’s Empire. First, I offer a critique of the two dominant perspectives on human rights—the Orthodox and Political views—that is similar in character to Dworkin’s Semantic Sting objection to Legal Positivism. Second, I sketch an alternative, Dworkinian-inspired framework that seeks to develop the notion of human rights as an interpretive concept. According to this framework, different accounts of human rights are to be understood as expressing different interpretations of the point (or purpose) of human rights practice.

Type
Research Article
Copyright
© The Author(s), 2023. Published by Cambridge University Press on behalf of University of Western Ontario (Faculty of Law)

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References

1. By ‘theoretical disagreement’, I mean disagreement over the criteria some human rights claim must satisfy to count as genuine or valid—that is to say, disagreement over the concept of human rights itself. See Ronald Dworkin, Law’s Empire (Belknap Press, 1986) at 5.

2. I am prepared to admit that the interpretation of the Orthodox-Political debate I advance in this paper—which relies on the claim that Griffin, Beitz, and many other theorists share the assumption that the concept of human rights is what I call a ‘criterial concept’—is a controversial one, and that it may be false. Still, I do think it is interesting and, at the very least, plausible enough to merit serious consideration.

3. See James Griffin, On Human Rights (Oxford University Press, 2008).

4. Ibid at 33.

5. Ibid .

6. See Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 [UDHR].

7. As a standard example, Griffin mentions the right not to be tortured. See Griffin, supra note 3 at 33.

8. Ibid at 38.

9. As an illustration, one could say that the right to a free press is an application, in the specific social circumstances of modernity, of the more fundamental right to freedom of expression, which in turn is derived from, as a necessary condition of, the basic right to autonomy.

10. See Charles Beitz, The Idea of Human Rights (Oxford University Press, 2009).

11. See John Rawls, The Law of Peoples (Harvard University Press, 1999).

12. Beitz, supra note 10 at 13.

13. Ibid at 8.

14. Ibid at 109.

15. Cf Griffin’s “minimum proximally necessary for normative agency.” Griffin, supra note 3 at 187.

16. Charles Beitz, “What Human Rights Mean” (2003) 132:1 Daedalus 36 at 39.

17. Beitz, supra note 10 at 109.

18. Beitz, supra note 16 at 38.

19. See Joseph Raz, “Human Rights Without Foundations” in John Tasioulas & Samantha Besson, eds, The Philosophy of International Law (Oxford University Press, 2010) 321 at 323.

20. Griffin, supra note 3 at 1.

21. James Griffin, “Human Rights: Questions of Aim and Approach” (2010) 120:4 Ethics 741 at 743.

22. UDHR, supra note 6 at Preamble.

23. Ibid at art 1.

24. Ibid at art 2.

25. See Lynn Hunt, Inventing Human Rights: A History (W W Norton, 2008); cf Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150-1625 (Scholars Press, 1997).

26. Whether the fact that the natural rights tradition has historically influenced the UDHR and its drafters is relevant to an account of human rights depends on one’s theory of interpretation. On the framework I’m advocating in this paper—‘constructive interpretation’—these considerations turn out to be of minor importance. What matters, ultimately, is whether the assertions made in the UDHR can be justified from within the practice, in light of an overall purpose which we take it as expressing.

27. See John Tasioulas, “Towards a Philosophy of Human Rights” (2012) 65:1 Current Leg Probs 1; Christian Barry & Nicholas Southwood, “What is Special About Human Rights?” (2011) 25:3 Ethics & Intl Affairs 369.

28. The example comes from Andrea Sangiovanni, Humanity without Dignity: Moral Equality, Respect, and Human Rights (Harvard University Press, 2017) at 186-87.

29. One may attempt to rebut this argument by claiming that the existence conditions for a human right do not depend on their providing an all-things-considered reason for international action, but only a pro tanto one. However, as Sangiovanni observes, it is far from clear what PV theorists mean by the term ‘pro tanto’. If it means that a violation would warrant an intervention under normal circumstances, then the objection still holds: why should the human rights we have vary with what counts as ‘normal’ at any given moment? If, on the contrary, it means that, under ideal circumstances, intervention would be justified, then a different problem arises: supposing intervention is frictionless—i.e., both costless and sure to succeed—why not extend it to the maximum number of cases one possibly can? In the end, one would be forced to conclude, equally implausibly, that all moral rights, even the most trivial ones, provide some reason for intervention, and should therefore be considered human rights. See ibid at 187-88.

30. See e.g. Allen Buchanan, “The Egalitarianism of Human Rights” (2010) 120:4 Ethics 679; Raz, supra note 19.

31. See Buchanan, supra note 30 at 693ff. Griffin himself acknowledges this difficulty in Griffin, supra note 3 at 194ff.

32. See e.g. Laura Valentini, “Human Rights, Freedom, and Political Authority” (2012) 40:5 Political Theory 573; Sangiovanni, supra note 28; S Matthew Liao & Adam Etinson, “Political and Naturalistic Conceptions of Human Rights: A False Polemic?” (2012) 9:3 J of Moral Philosophy 327.

33. Sangiovanni, supra note 28 at 190 [emphasis in original].

34. Ibid at 191 [emphasis in original, footnotes omitted].

35. For instance, Griffin and Tasioulas disagree about which human interests or values are capable of grounding human rights. See Griffin, supra note 3 at 51ff; cf John Tasioulas, “Human Rights, Universality and the Values of Personhood: Retracing Griffin’s Steps” (2002) 10:1 European J Philosophy 79. For a discussion on the different meanings PV theorists assign to the notion of concern, see John Tasioulas, “Are Human Rights Essentially Triggers for Intervention?” (2009) 4:6 Philosophy Compass 938.

36. There are also other reasons why Sangiovanni’s definition is objectionable. For one, it makes no distinction between human rights and other moral rights that are not possessed by human beings, but whose systematic violation could still plausibly garner universal moral, legal, and political concern. This would be the case, e.g., of some animal rights, and the rights of collective entities such as peoples, minorities, and corporations.

37. I will come back to the question of whether or not theoretical disagreements of this sort can be legitimate in section 4.

38. For a similar argument regarding the concept of justice, see Ronald Dworkin, Justice for Hedgehogs (Belknap Press, 2011) at 167.

39. See Dworkin, supra note 1 at 45.

40. Dworkin, supra note 38 at 158.

41. This example comes from Dworkin, supra note 1 at 45-46.

42. To mention two examples: whether or not there is a human right to democracy, and the extent to which non-state actors—most prominently, transnational corporations—can bear responsibilities to respect and promote human rights norms.

43. One reviewer pointed out that Griffin and Beitz may be talking past one another in the sense that they may be asking different questions about the same phenomenon. For instance, one could sensibly argue that Beitz is mainly concerned with the problem of the nature of human rights, while Griffin is concerned with the problem of the justification of human rights. I believe this is false. To me, the two authors are essentially concerned with the first problem: they want to understand what human rights are, and they hope that doing so will constrain our judgments on which human rights exist and what their content actually is. The false impression that Griffin is concerned with the second problem is caused by his specific approach: for reasons I will explain below, he thinks that the best way to go about accomplishing this task is to link the concept of human rights with the value of personhood. For textual support of these claims, see Griffin, supra note 3 at 1; Griffin, supra note 21 at 741; cf Beitz, supra note 10 at 10-11, 103-05, 126-27.

44. See Dworkin, supra note 1 at 90, making the same point regarding the distinction between legal philosophy and legal practice.

45. No 2346/02, [2002] III ECHR 155 [Pretty].

46. See Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) [ECHR].

47. “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Ibid at 6.

48. Pretty, supra note 45 at 185.

49. Ibid.

50. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ECHR, supra note 46 at 7.

51. Pretty, supra note 45 at 188.

52. Ibid at 185-86.

53. See Ronald Dworkin, Justice in Robes (Belknap Press, 2006) at 147ff.

54. Ibid at 148.

55. Dworkin, supra note 38 at 162.

56. Ibid at 160 [footnotes omitted].

57. Ibid .

58. For just such a different account, see J K Schaffer, “The Point of the Practice of Human Rights: International Concern or Domestic Empowerment?” in Reider Maliks & Johan K Schaffer, eds, Moral and Political Conceptions of Human Rights (Cambridge University Press, 2017).

59. Beitz, supra note 10 at 9 [footnotes omitted].

60. Ibid at 107.

61. Ibid at 106 [emphasis added].

62. See ibid at 117: “The two-level model is an interpretation of the idea of a human right found in contemporary human rights practice” [emphasis added].

63. Ibid at 108.

64. Ibid at 103.

65. See Section 4. Also, note that Beitz explicitly states in a footnote that he does not believe that the method of constructive interpretation—i.e., Dworkin’s method—is entirely suitable to the task of interpreting human rights practice. See Beitz, supra note 10 at 107, n 19.

66. See HLA Hart, The Concept of Law (Clarendon Press, 1961). I am not the first to notice the similarity between Beitz’s and Hart’s approaches. In a recent text, Davidovic claimed that “[w]e can, and I think should, think of Beitz’s account very much like trying to accomplish the same thing HLA Hart was trying to do with the concept of law in his [The] Concept of Law.” Jovana Davidovic, “A Practical Account of the Concept of Human Rights” in Tom Campbell & Kylie Bourne, eds, Political and Legal Approaches to Human Rights (Routledge, 2017) 40 at 55, n 39.

67. Hart, supra note 66 at 110.

68. I am referring here to one interpretation of Hart’s theory called ‘inclusive positivism’. On the difference between ‘inclusive’ and ‘exclusive’ legal positivism, see Leslie Green & Thomas Adams, “Legal Positivism” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy (Winter 2019), online: https://plato.stanford.edu/archives/win2019/entries/legal-positivism/.

69. On a side note, this analogy is also useful for thinking about one important difference between the practices of human rights and law, namely, that the former does not seem to incorporate the other kinds of secondary rules—rules of change and rules of adjudication—that one would expect to find in a mature legal system. This reflects one way in which international human rights is, as Beitz describes it, an emergent practice.

70. See David J Karp, “The Location of International Practices: What is Human Rights Practice?” (2013) 39:4 Rev International Studies 969 at 982.

71. Griffin, supra note 3 at 2.

72. James Griffin, “First Steps in an Account of Human Rights” (2001) 9:3 European J Philosophy 306 at 306.

73. Griffin, supra note 3 at 14-15.

74. Further evidence that Griffin thinks of all concepts as criterial in the sense I define it can be found in the following passage from one of his earlier works: “A word has meaning only in virtue of there being rules for its use, rules that settle whether the word is correctly or incorrectly used. And Wittgenstein argues that the rules cannot, in the end, be satisfactorily understood as a mental standard—an image, say, or an articulable formula—but only as part of shared practices.” James Griffin, Value Judgment: Improving Our Ethical Beliefs (Clarendon Press, 1996) at 7.

75. Griffin, supra note 3 at 4 [emphasis in original].

76. James Griffin, “Replies” in Roger Crisp, ed, Griffin on Human Rights (Oxford University Press, 2014) 206 at 221, 220.

77. I would like to thank the reviewer of this paper for changing my mind on this point. For a reading of Dworkin which treats him as an ‘inferentialist’, see Thomas Bustamante, “Is Protestant Interpretation an Acceptable Attitude Toward Normative Social Practices? An Analysis of Dworkin and Postema” (2021) 66:1 Am J Juris 1.

78. See Dworkin, supra note 1 at 83. Incidentally, Dworkin would, for this very reason, take issue with Griffin’s distinction between basic and derived rights. Setting aside the metaphysical issue of whether moral facts can be said to be ‘basic’ and ‘barely’ true, an interpretivist account would reject the view that one needs to appeal to abstract, non-historical, and immutable goods in order to fix/justify the concrete human rights recognized in the practice. Instead, the account would proceed by showing that this specific claim can be integrated with other human rights claims—and more broadly, other normative claims—in a larger, interpretive web of beliefs.

79. It will also be, accordingly, an exercise in substantive political morality.

80. See Dworkin, supra note 1 at 65ff. A good summary of the method can be found in Laura Valentini, “Global Justice and Practice-Dependence: Conventionalism, Institutionalism, Functionalism” (2011) 19:1 J Political Philosophy 399 at 403ff.

81. See Dworkin, supra note 1 at 90ff.

82. Ibid at 93.

83. Dworkin, supra note 53 at 169-70.

84. Ibid at 148. See also Dworkin, supra note 38 at 160-61.

85. These would include, among other things, the main instruments and mechanisms in international human rights law; key observations of critical public discourse, scholarly work, and political activism; comparative analysis in domestic law; and one’s own intuitions as a member of the broader human rights culture. A similar, though more restrictive, list is offered in Beitz, supra note 10 at 107.

86. See Mary A Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, 2001) at 174.

87. J A Wheeler, “How Come the Quantum?” (1986) 480:1 Annals of the New York Academy of Sciences 304 at 304.

88. It should be said at this point that the arguments I am advancing in this section are not contingent upon us finding a general statement of the practice of this sort, though it would certainly be desirable. No such convergence is available, for instance, in the case of the concept of justice, and yet, despite these difficulties, the theory and practice of justice have been flourishing for millennia.

89. See generally Jeremy Waldron in Meir Dan-Cohen, ed, Dignity, Rank, and Rights (Oxford University Press, 2012).

90. See Jeremy Waldron, “Dignity and Rank” in Meir Dan-Cohen, supra note 89 at 24.

91. Ibid at 34.

92. See Charles Beitz, “Human Dignity in the Theory of Human Rights: Nothing But a Phrase?” (2013) 41:3 Philosophy Public Affairs 259 at 286ff.

93. Ibid at 286.

94. I borrow the expression ‘makers of claims’ from Feinberg: “What is called ‘human dignity’ may simply be the recognizable capacity to assert claims.” Joel Feinberg, “The Nature and Value of Rights” (1970) 4:4 J Value Inquiry 243 at 252. One may call it the value of human dignity or human empowerment. See Jeremy Waldron, “Law, Dignity, and Self-Control” in Meir Dan-Cohen, supra note 89 at 60.

95. Beitz, supra note 92 at 288-89 [footnotes omitted].

96. See Dworkin, supra note 1.

97. See e.g. Dworkin, supra note 38.

98. See Dworkin, supra note 1 at 231.