Published online by Cambridge University Press: 26 March 2019
This article is an intervention in recent debates about conceptual and normative theorisations of human rights, which have been increasingly characterised by a divide between ‘moral’ and ‘practice-based’/’political’ understandings. My aim is to articulate an alternative, pragmatist understanding of human rights, one that is importantly distinct from the practice-based account with which it might be thought affiliated. In the first part of the article, I reveal the fundamental flaw in the practice-based account of human rights: I argue that it is undermined by the ontological thesis at its heart, which naturalises and reifies political arrangements and institutions that are radically contingent. In the second part, I identify, and outline the attractiveness of, a pragmatist normative account of human rights. In contrast to the practice-based approach, this pragmatist account construes human rights in ideational terms. The pragmatist understanding accepts both the contingency of our practices and the cultural limits to moral justification, while nevertheless retaining a commitment to the enterprise of normative philosophical conversation. I argue, in contrast to prevailing interpretations, that the international theory advanced by John Rawls exemplifies a pragmatist account of human rights and points a way forward for theoretically fruitful but appropriately circumscribed analysis of the concept.
1 See the contributions to Etinson, Adam (ed.), Human Rights: Moral or Political? (Oxford: Oxford University Press, 2018)CrossRefGoogle Scholar; Cruft, Rowan, Liao, S. Matthew, and Renzo, Massimo (eds), Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015)CrossRefGoogle Scholar.
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3 Buffachi, ‘Theoretical foundations’, p. 601.
4 Jeremy Waldron, ‘Human rights: a critique of the Raz/Rawls approach’, in Etinson (ed.), Human Rights, pp. 117–38 (p. 136).
12 He maintains that his theory does not offer ‘a derivation of human rights from normative agency’ (ibid., p. 4), but seeks to unpack a coherent conceptual account that overcomes worries about its indeterminacy.
16 Beitz, The Idea of Human Rights, p. 7.
22 ‘Human rights are standards for domestic institutions whose satisfaction is a matter of international concern’ (ibid., p. 128). See also pp. 7–12 and pp. 126–41.
24 Sangiovanni, Andrea, ‘Justice and the priority of politics to morality’, The Journal of Political Philosophy, 16:2 (2008), pp. 137–64CrossRefGoogle Scholar. Sangiovanni has subsequently tempered his affiliation to the practice-based approach (Sangiovanni, Andrea, ‘How practices matter’, The Journal of Political Philosophy, 24:1 (2016), pp. 3–23 (p. 15, n. 32)CrossRefGoogle Scholar; see also Sangiovanni, ‘Beyond the political-orthodox divide’). For critical discussions of Sangiovanni's original account, see Erman, Eva and Möller, Niklas, ‘What distinguishes the practice-dependent approach to justice?’, Philosophy and Social Criticism, 42:1 (2016), pp. 3–23CrossRefGoogle Scholar; Erman, Eva and Möller, Niklas, ‘How practices do not matter’, Critical Review of International, Social, and Political Philosophy, 22:1 (2019), pp. 103–18CrossRefGoogle Scholar.
25 Sangiovanni, ‘Justice and the priority of politics’, p. 156.
27 Raz, Joseph, ‘Human rights in the emerging world order’, Transnational Legal Theory, 1 (2010), pp. 31–47 (p. 44)CrossRefGoogle Scholar. See also Raz, Joseph, ‘Human rights without foundations’, in Tasioulas, J. and Besson, S. (eds), The Philosophy of International Law (Oxford: Oxford University Press, 2010), pp. 321–39Google Scholar.
28 Beitz, The Idea of Human Rights, pp. 128–9.
30 Beitz, The Idea of Human Rights, p. 9, n. 13; Searle, John, The Construction of Social Reality (New York: The Free Press, 1995), pp. 79–112Google Scholar.
31 Searle, The Construction of Social Reality, pp. 37–43.
32 In his discussion of institutional facts, Searle mentions the existence of human rights, which he regards as an ‘amazing’ example of the phenomenon, because the relevant ‘status-function’ is the sole criterion of being human (ibid, p. 93). See also Searle, John, Making the Social World: The Structure of Human Civilization (Oxford: Oxford University Press, 2010), pp. 174–98CrossRefGoogle Scholar.
33 Searle, The Construction of Social Reality, p. 94.
37 As Searle points out, the US government was anxious to cast the Korean War as the ‘Korean conflict’ because it did not satisfy the legal definition of war (ibid., p. 89).
38 It seems possible, for example, to endorse the central thesis that the creation, maintenance, and reform of social and institutional reality depends on human intentionality, while nevertheless rejecting some of the apparently quasi-naturalistic tendencies of his theory (see, for example, ibid., pp. 86–7) and resisting or rethinking his sanguinity about the role of power in social and political relations (ibid., p. 94).
39 Beitz, The Idea of Human Rights, p. 55, emphasis added.
40 For a comprehensive analysis of the varied contributions of pragmatism to themes in contemporary political philosophy, see Festenstein, Matthew, Pragmatism and Political Theory (Cambridge: Polity Press, 1997)Google Scholar, and particularly pp. 2–11 for discussion of the difficulties of constructing a singularly labelled intellectual tradition from its diverse affiliates. Rawls's relationship to pragmatism remains underdeveloped in scholarly work, presumably because of the still influential reading of him as an orthodox Kantian, though the recent work of Daniele Botti is addressing this lacuna. See Botti, Daniele, ‘John Rawls, Peirce's notion of truth, and White's holistic pragmatism’, History of Political Thought, 35:2 (2014), pp. 345–77Google Scholar; Botti, Daniele, ‘Rawls on Dewey before the Dewey Lectures’, Journal of the History of Ideas, 78:2 (2017), pp. 287–98CrossRefGoogle ScholarPubMed.
41 Festenstein, ‘Pragmatism, realism, and moralism’, p. 42.
42 Beitz, The Idea of Human Rights, pp. 3–7.
45 Griffin, On Human Rights, pp. 32–9, 116–20.
46 Beitz, The Idea of Human Rights, p. 6. For analysis of the historical use of the idea of natural/human rights in the justification of colonial expansion, see Pagden, Anthony, The Burdens of Empire: 1539 to the Present (Cambridge: Cambridge University Press, 2015)CrossRefGoogle Scholar. For a critical discussion of the paradoxical role of the concept of human rights as one of ‘the normative sources of empire’, see Douzinas, Costas, Human Rights and Empire: the Political Philosophy of Cosmopolitanism (London: Routledge, 2007)CrossRefGoogle Scholar.
50 Rorty, ‘Human rights’, p. 170, emphasis added.
52 Rorty, ‘Introduction’, in Rorty, Truth and Progress, p. 12. See also Rorty, Contingency, Irony, and Solidarity.
53 Rorty, ‘Human rights’, p. 185. It is important to stress that Rorty rejects any oppositional understanding of rationality and sentimentality, and so does not see philosophical and literary enterprises as straightforwardly involving only one or the other. See Rorty, Richard, ‘Justice as a larger loyalty’, in Rorty, Philosophy as Cultural Politics: Philosophical Papers, Volume 4 (Cambridge: Cambridge University Press, 2007), pp. 42–55, esp. pp. 51–3CrossRefGoogle Scholar.
54 Rorty, ‘Human rights’, p. 171.
55 For a robust critical assessment of Rorty's approach to normative political philosophy, which offers a usefully precise account of his ‘substantive ethnocentrism’, see Festenstein, Pragmatism and Political Theory, pp. 109–44. For a more sympathetic interpretation of Rorty's pragmatism, see Bacon, Michael, ‘Rorty and pragmatic social criticism’, Philosophy & Social Criticism, 32:7 (2006), pp. 863–80CrossRefGoogle Scholar.
56 Rorty's seminal critique of analytic philosophy is Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1979)Google Scholar. For some of his most powerful, later statements on the analytic tradition, which express his suspicion towards any strict understanding of philosophical method and his rejection of a scientistic expert culture among professional philosophers, see ‘Analytic and conversational philosophy’ and ‘A pragmatist view of contemporary analytic philosophy’, in Rorty, Philosophy as Cultural Politics, pp. 120–30, 133–46.
57 Rorty's tendency to use analytic philosophy to criticise analytic philosophy makes him a slippery writer to deal with, even for those sympathetic to pragmatism. For a powerful critique of his political philosophy, see Talisse, Robert, ‘A pragmatist critique of Rorty's hopeless politics’, The Southern Journal of Philosophy, 39 (2001), pp. 611–26CrossRefGoogle Scholar.
58 Rorty also has no qualms about referring to Rawls's ‘pragmatism’ (Rorty, Contingency, Irony, and Solidarity, pp. 57–8).
59 That Rawls reaches this conclusion in this text should not have been a surprise to those familiar with the ‘political’ rearticulation of his theory from the 1980s onwards. In his 1995 ‘Reply to Habermas’, Rawls writes ‘Justice as fairness is substantive in the sense that it springs from and belongs to the tradition of liberal thought and the larger community of political culture of democratic societies. It fails then to be properly formal and truly universal’ (Rawls, John, ‘Reply to Habermas’, The Journal of Philosophy, 92:3 (1995), pp. 132–80 (p. 179)Google Scholar.
60 Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), p. 38Google Scholar. As well as defending the normative significance of bordered peoples, Rawls invokes the Kantian rejection of the practical possibility of world government to reject full political cosmopolitanism (The Law of Peoples, p. 36).
61 See, for example, Caney, Simon, ‘Cosmopolitanism and the law of peoples’, The Journal of Political Philosophy, 10 (2002), pp. 95–123CrossRefGoogle Scholar. For a compelling defence of the coherence and consistency of Rawls's position, see Meckled-Garcia, Saladin, ‘On the very idea of cosmopolitan justice: Constructivism and international agency’, The Journal of Political Philosophy, 16 (2008), pp. 245–71CrossRefGoogle Scholar.
62 Rorty, ‘Justice as a larger loyalty’, pp. 50–1.
63 Rawls, The Law of Peoples, pp. 78–9.
64 Beitz, The Idea of Human Rights, p. 96. Etinson describes Rawls as ‘the original proponent of this view’ that ‘human rights practice ought to be evaluated under the light of a faithful understanding of what it is that the practice aims to do’ rather than on moral terms (‘Introduction’, in Etinson (ed.), Human Rights, p. 4), though he provides no textual evidence for this claim. Such interpretations are commonplace: a far from exhaustive list includes, Beitz, The Idea of Human Rights; Tasioulas, John, ‘Are human rights essentially triggers for intervention?’, Philosophy Compass, 4:6 (2009), pp. 938–50CrossRefGoogle Scholar; Gilabert, ‘Humanist and political perspectives’; Valentini, Laura, ‘In what sense are human rights political? A preliminary exploration’, Political Studies, 60:1 (2012), pp. 180–94CrossRefGoogle Scholar; Waldron, ‘Human rights’. Meckled-Garcia is one of few scholars who also rejects the practice-based/political interpretation of Rawls as a misunderstanding of his theory (Meckled-Garcia, Saladin, ‘The practice-dependence red herring and better reasons for restricting the scope of justice’, Raisons Politiques, 3 (2013), pp. 97–120CrossRefGoogle Scholar).
65 Rawls, The Law of Peoples, pp. 68, 79.
68 Meckled-Garcia makes the related observation that ‘the idea of interpreting a practice by attributing a function to it does not feature in Rawls's method at all. He uses the notion of a role for institutions … However, the notion of a role in these cases is that of playing a role within a coherent overall theory of how the elements of a political order should fit together. It is a normative notion of role, not a descriptive interpretive one’ (Meckled-Garcia, ‘The practice-dependence red herring’, p. 115, emphasis suppressed).
69 Rawls, The Law of Peoples, pp. 59–60.
73 Rawls, The Law of Peoples, p. 25. Rawls is explicit that the content of the idea of reasonableness he invokes is not a deduction from a Kantian account of practical reason (The Law of Peoples, pp. 86–7). For his distinction between the moral idea of reasonable conduct and the non-moral idea of rational conduct, see Rawls, John, Justice as Fairness: A Restatement (Cambridge, MA: Belknap Press, 2001), pp. 6–7Google Scholar.
74 Rawls, The Law of Peoples, p. 27.
78 Beitz, The Idea of Human Rights, p. 99. As Rawls himself puts it, ‘human rights honored by both liberal and decent hierarchical regimes should be understood as universal rights in the following sense: they are intrinsic to the Law of Peoples and have a political (moral) effect whether they are supported locally. That is, their political (moral) force extends to all societies, and they are binding on all peoples and societies, including outlaw states’ (Rawls, The Law of Peoples, pp. 80–1).
79 This fits with how the later Rawls regards the boundaries of normative theorising, where ‘we try to work up, from the fundamental ideas implicit in the political culture, a public basis of justification’ for our arguments (Justice as Fairness, p. 29, emphasis added).
80 Griffin, On Human Rights, pp. 23, 137. See also, pp. 48–51.
81 Rawls, The Law of Peoples, p. 82.
84 Beitz, The Idea of Human Rights, p. 98.
86 Griffin, On Human Rights, p. 143.
87 The human rights generated in his localised and idealised theory depend upon universal agreement and ‘cannot be rejected as peculiarly liberal or special to the Western tradition’ (Rawls, The Law of Peoples, p. 65).
91 ‘One step to ensure that their claims are appropriately taken into account may be to arrange that a majority of the members of the bodies representing the (previously) oppressed be chosen from among those whose rights have been violated’ (ibid).
95 For discussion of this worry about reification of cultural attitudes towards human rights, see Sen, Amartya, ‘Human rights and Asian values’, New Republic, 217:2–3 (1997), pp. 33–40Google Scholar.
96 Rawls, The Law of Peoples, p. 57. See also p. 10.
98 Rawls, The Law of Peoples, p. 121.