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A sufficiently political orthodoxconception of human rightsVioletta Igneskiaa Department of Philosophy, McMaster University, 1280 Main StreetWest, Hamilton, ON, CanadaPublished online: 04 Jul 2014.

To cite this article: Violetta Igneski (2014) A sufficiently political orthodox conception of humanrights, Journal of Global Ethics, 10:2, 167-182, DOI: 10.1080/17449626.2014.933441

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A sufficiently political orthodox conception of human rights

Violetta Igneski∗

Department of Philosophy, McMaster University, 1280 Main Street West, Hamilton, ON, Canada

(Received 8 October 2013; accepted 8 June 2014)

The traditional conception of human rights, or the orthodox conception (OC), has, over thelast few years, been vigorously challenged by the political conception (PC) of humanrights. I have two main aims in this paper: the first is to articulate and evaluate the mainpoints of disagreement between the OC and the PC in order to provide a clearer picture ofwhat is at stake in the debate. The second is to argue that the OC has the resources torespond to the PC’s most challenging criticism; namely that it is not sufficiently political.

Keywords: human rights; natural rights

1. Introduction

The traditional conception of human rights, or the orthodox conception (OC), has, over the last

few years, been vigorously challenged by the political conception (PC). Though there is signifi-

cant variation among the views on each side, most philosophers writing on human rights today

can be said to fall into one of these two camps.1 Most recently, Raz, a PC defender, has harshly

criticized the OC for adopting a theory of human rights as moral rights that are ‘so remote from

the practice of human rights as to be irrelevant to it’ (2011, 323). Orthodox theorists, such as

Griffin, have responded by warning against adopting an account of human rights that is too dis-

connected from ethics (2011). I have two main aims in this paper: the first is to articulate and

evaluate the main points of disagreement between the OC and the PC in order to provide a

clearer picture of what is at stake in the debate. We will see that, in some ways, the distinction

between the two camps has been drawn too sharply.2 The second is to argue that the OC has the

resources to respond to the PC’s most challenging criticism; namely that it is not sufficiently pol-

itical. Before turning to the disagreement between the two sides, I will give a brief outline of

each.

A conception of human rights is part of the orthodox tradition if it understands human rights

as moral rights that are possessed by all human beings, (simply) in virtue of their humanity

(Nagel 1995; Buchanan 2004; Griffin 2008; Tasioulas 2011). At least some of these rights

exist even in the absence of political and legal institutions. For the OC, international human

rights law and practice realize these moral rights through legal and political institutions. Particu-

lar accounts justify human rights in terms of different features of human beings, including nor-

mative agency, universal human interests, equality, dignity, inviolable moral status or the

conditions necessary for a minimally decent life. In what follows, I will not adjudicate

between these different justifications since what unites the OC camp is that they take the justi-

fication of a human right (whatever it turns out to be) to be an essential element of the concept.

The PC, on the other hand, does not primarily look to features of human beings for an under-

standing of human rights, but looks to our current legal and political practices.3 If we look to our

# 2014 Taylor & Francis

∗Email: igneski@mcmaster.ca

Journal of Global Ethics, 2014

Vol. 10, No. 2, 167–182, http://dx.doi.org/10.1080/17449626.2014.933441

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current practices, we see that human rights serve two main functions; they set the conditions of

legitimacy of a state (i.e. a state is legitimate only insofar as it respects the human rights of its

citizens) and their violation provides defeasible reasons for international intervention into the

internal affairs of a sovereign state.4 This idea of human rights is to be understood as quite dis-

tinct from our more general moral rights and should be understood as a new concept that

emerged post WW II. While there are a number of different ways a conception of human

rights can be political, most accounts share one or more of the following features: they reject

the existence of pre-institutional rights; they view human rights as necessarily institutional

and mainly as claims individuals have against institutions; and they argue that the function of

human rights is part of the concept whereas the justification of human rights is not.5

A survey of the philosophical literature reveals a sometimes uncharitable characterization of

these opposing conceptions. For example, it is neither true that the PC is incapable of endorsing a

moral justification of human rights nor that it understands human rights to be a purely conven-

tional legal concept. It is also not true that the OC is a straightforward application of utilitarian or

deontological moral theory. The camps are closer together than this: the PC may, and, in some

cases, explicitly does, include moral elements, and the OC, to varying degrees, engages directly

with the political and practical.6 In order to get clearer on the differences between these two

camps, I will examine four main points of disagreement: (1) the origin of the concept, (2) the

necessity of working out a justification of human rights in order to properly explain them, (3)

the connection between the function of human rights and the concept, and (4) the place and pri-

ority of the current practice of human rights in our understanding of the concept. Each of these

points of disagreement raises concerns the PC has with the OC’s more traditional understanding

of human rights. I will conclude that none of these is especially devastating for the OC, but that

all versions of the OC would be wise to take the PC’s criticism that their account is not suffi-

ciently political seriously. That said, I will show that the most compelling contemporary OC

accounts already do this to some extent. It will be important to consider, however, if they do

this in the right way or if they go far enough in the political direction.

1.1. The origin of human rights

A good first place to look to locate a stark difference between the OC and PC camps is their

views about the origin of the concept of a human right. Broadly speaking, the OC understands

the concept as continuous with the natural law tradition and the PC understands human rights as

a new concept that emerged after WW II, with the adoption of the Universal Declaration of

Human Rights (UDHR). If the PC is correct and human rights are a brand new concept, then

we would have good reason to abandon the OC. I aim to show that the OC can surely accept

that the concept of human rights has undergone changes over time, particularly with the

changes in political culture and international institutional capacity post WW II, while maintain-

ing that there was always moral reason to protect these important human interests and ensure

their implementation. Once new institutions are in place, the concept will inevitably evolve.

The PC does not gain much argumentative ground by denying the pre-institutional moral

roots of human rights.

In his chapter on human rights in the Routledge Companion to Philosophy of Law, John

Tasioulas presents the views of two historians, Samuel Moyn and Brian Tierney, who trace

the historical origin of the human rights tradition (Tierney 1997; Moyn 2010). At one

extreme, Moyn claims that the concept only emerged as a significant historical force in the

1970s, some decades after the UDHR (1948), while at the other extreme, Tierney interprets

our concept of human rights as being strongly continuous with the natural rights tradition – a

tradition that, he contends, originates in the humanistic jurisprudence of the twelfth century.

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Even if one were to reject Tierney’s thesis and instead associate the birth of natural rights with

late medieval or early modern thinkers such as Ockham, Grotius, and Locke, Tasioulas (2012,

348) reiterates that ‘the orthodox view about the concept of a human right, at least among phi-

losophers, has long been that it is broadly equivalent to that of a natural right’.

At the beginning of his book On Human Rights, Griffin provides a historical account of the

concept of a human right that dates back to the late Middle Ages and the idea of a natural right.

While we may be able to trace the roots of natural law back as far as Aristotle or the Decritists,

the natural law tradition is most often traced back to Thomas Aquinas.7 Once we get to the period

of the Enlightenment, the theological content of the idea of a natural right is replaced with a

secular idea of a human right, an idea available to human reason not requiring a belief in God

(Griffin 2008, 1). According to Griffin, the use of the term ‘human rights’ ‘began at the end

of the eighteenth century such as in the French Declaration of the Rights of Man and of the

Citizen (1789), but gained wide currency only in the middle of the twentieth century’ (2008,

9). His point is that both concepts, ‘natural rights’ and ‘human rights’ come from the same con-

tinuous tradition.

PC defenders, on the other hand, are in closer agreement that the concept of a human right

originated after WW II, particularly with the formation of the United Nations and the adoption of

the UDHR (Beitz 2009, 14). According to Wenar:

[b]efore the Second World War there were virtually no commonly accepted standards for justifiableinterference into what was called the internal affairs of a state . . . After the Holocaust it became clearthat standards were required for official conduct toward citizens, such that violation of these stan-dards could license or even necessitate an international response. The language that postwarleaders used to describe these standards was the language of human rights. Human rights weremeant to fill the void in the space of moral evaluation and action that was created by the conceptof state sovereignty, given that this void had become morally intolerable. (2005, 286)

The main motivating reason for the establishment of human rights was the protection of individ-

ual liberty against the state, but some views will cite additional reasons such as identifying and

securing the social conditions for living minimally decent lives or perhaps, more robustly, dig-

nified lives (Beitz 2009, 57).

Beitz similarly traces the origins of human rights practice to the settlement of WW II and the

adoption of the UDHR (2009, 14). Considering the conditions under which the UDHR was

drafted, Beitz, like many others, notes that there was a shared commitment to the idea of

human rights but no shared philosophical view about the reasons why it should be thought

urgent that these rights should be internationally recognized (2009, 20). What was important

was that there was a shared view about the norms, and so the concept of human rights, not

the grounds of these norms. In fact, as we will see, one of Beitz’s main problems with the

OC is that it is at odds with the historical development of international human rights doctrine

which embarked on a process intended to gain endorsement from many points of view

despite deep disagreement on questions about the conception of human nature and the good.8

It is worth considering whether this is a very productive debate and what is at stake. The PC

wants to look to the practice first and believes that therein lies the key to understanding the

concept. Clearly with the creation of the UN and the adoption of the UDHR there was a

public shift in how far we considered the sovereignty of states to extend, our understanding

of the standards for the actions of officials toward their citizens and the appropriateness of inter-

national concern or response to the violations of these standards. Individuals could appeal to

internationally recognized rights, making demands, or seeking redress. States could appeal to

these same rights to justify their criticisms of, or interference into, the internal affairs of other

sovereign states. These marked great changes in the public political culture and in international

law. The OC need not deny any of this just because they believe that these newly created

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international legal rights are the political expression of a moral concept that evolved from the

concept of a natural right. That is, the OC can both accept the naturalistic origins of the

concept while at the same time acknowledge the important changes, particularly in terms of

its political function and institutional legal status.

1.2. The justification of human rights

Another main point of disagreement between the OC and the PC is about the significance and

necessity of working out a (moral) justification for human rights. The camps disagree about

what exactly is needed in order to work out a concept of human rights that does not suffer

from an extensive indeterminateness of sense.9 An important part of this task, for the OC, is

to look to the justification or what grounds our human rights. The PC, on the other hand, does

not see examining the justification as a very enlightening exercise and moreover raises signifi-

cant worries about demanding a common justification given our diverse moral, cultural, and phi-

losophical commitments. My aim in this section is to support the OC claim that the justification

of human rights is necessary for criticizing the current practice and for advancing arguments for

the specific application of rights and their correlative duties.

Beitz claims that there is ‘no need for a commonly agreed justification of human rights’ as

adherents of diverse ethical traditions would be drawn to them for their own reasons (2004, 202).

It is no surprise that the framers of the UDHR deliberately refrained from proposing a compre-

hensive moral foundation, apart from the vague and indeterminate concept of ‘dignity’. Mari-

tain, a member of the UNESCO committee that was advising the committee drafting the

UDHR, famously reported a comment made at one of the meetings, ‘yes’, they said, ‘we

agree about the rights but on condition that no one asks us why’ (1948, 2).

While there is a great deal of agreement in the world about how states and state officials may

or may not treat their citizens, there is nowhere near the same level of agreement when we con-

sider their justifying reasons. In a pluralistic world with a great variety of religious, philosophi-

cal, and metaphysical beliefs, reasonable people will disagree. If we are to articulate any shared

standards, we must limit ourselves to those standards that all reasonable persons could endorse

from within their own views. Theorists and practitioners alike have been very skeptical of the

claims to universal moral foundations, charging that the current long list of human rights

expresses liberal and Western values not shared by all.10 This concern with parochialism has

been a major motivating force behind the PC, leading Rawls, and many others, to explicitly

object to grounding human rights in any way that is based on a theological, philosophical, or

moral conception of the human person (see Rawls 2001; see also Rawls 1985). Not only is

the reliance on a single or comprehensive moral foundation questioned, but more generally

the reliance on ordinary moral reasoning. The underlying idea is that, if we are to respect

persons and are to cooperate with them on fair terms, our political principles must be grounded

in public reason and values that we share (or could reasonably endorse).11 Put another way,

human rights must be justifiable to all reasonable persons.12 We will see that one consequence

of holding this type of political view is that the list of human rights that could reasonably be

endorsed will not resemble the robust list that forms the UDHR.

Agreeing to some extent with Rawls, Beitz shares the view that the concept of human rights

is compatible with different justifications. For Beitz, in order to get clear on the concept and

know how to use it correctly, what is important is not understanding the moral foundations, if

there are any, but rather looking to the function. According to Beitz, there is ‘no assumption

of a prior or independent layer of fundamental values whose nature and content can be discov-

ered independently of reflection about the international realm and then used to interpret and cri-

ticize international doctrine’ (2004, 197). That said, Beitz adds that it does not follow that

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practical views must deny that there are ‘intelligible moral grounds’ for international human

rights (2004, 197).

A key element of the OC is maintaining a degree of independence between the existence of

human rights and their recognition by the legal order. But this is not incompatible with also

recognizing a degree of interdependence between them. Buchanan makes this point well:

[a]s moral rights, human rights exist independently of whether they are enshrined in legal rules ornot. Indeed, it is only because they have meaning and validity independent of any particular legalsystem that human rights norms can serve as a critical touchstone for reforming the law. . . . Never-theless, it is misleading to think of our understanding of human rights and the attempt to implementthem as entirely independent. Even if the existence and basic character of human rights can be deter-mined by moral reasoning without reference to the particular features of any legal system, institutio-nalized efforts to monitor and improve compliance with these rights are needed to specify theircontent, if they are to provide practical guidance, and these must be context specific. (2004, 119)

Griffin also warns against considering the list of human rights to be authoritative and seeing

international law as autonomous, by which he means independent of ethics or, more to the

point, independent of a justification in ethics. He looks to ethics, and philosophy more generally,

to make our conception of human rights more determinate, that is, to provide us with criteria for

when it is used correctly and incorrectly. Griffin worries that taking the practice as authoritative

leaves us without the necessary resources to argue about the validity of certain human rights: ‘it

is a bad bargain to purchase autonomy for international law at the cost of a severe loss of expla-

natory power or of action-guiding weight’ (2011, 340; see also Liao and Etinson 2012).

Griffin seems to be worried that an account that considers the practice of human rights as

authoritative is entirely conventional. He characterizes Raz’s position as one that focuses on

the real world of legal and political practice and advocacy, where one finds that the term

human rights either relies on the legal recognition of human rights as limiting state sovereignty

or constitutes a claim that they should be so recognized.13 However, if we look closely at the

particular views of Raz, Beitz, or Rawls, it is clear that none of them holds a thoroughly conven-

tional view. Raz very explicitly includes moral considerations and even Rawls, who perhaps

holds the most morally minimal position of the three, accepts the constraint of reasonableness

on determining the list of the most urgent human rights.

It is interesting to note that, even though Raz finds the lack of a moral foundation for his

approach a central feature (consider the title of his article, ‘Human Rights without Foun-

dations’), he gives a very deliberate and explicit argument for human rights that has a very foun-

dational place for morality and moral rights.14 He claims that human rights ‘lack a foundation in

not being grounded in a fundamental moral concern’ but rather depend on ‘the contingencies of

the current system of international relations’, and also acknowledges that they are moral rights

held by individuals (Raz 2011, 334–336). Consider the rational justification he provides for

human rights that he divides into the following three stages:

. Start with an individual interest combined with showing that social conditions require its

satisfaction in certain ways, establishing an individual moral right.. Show that under some conditions states are to be held duty bound to promote this moral

right.. Show that states do not enjoy immunity from interference with respect to this right (Raz

2011, 336).

Raz ultimately does not reject the prominence of the place of moral rights or, more generally,

universal evaluative truths in his account of human rights, though he emphasizes that one

must go beyond the moral. The traditional account is ‘wrong in assuming that moral rights

can be established only by reference to other rights’ (2011, 335). His view is not foundational,

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not because it does not rest on any moral grounds, but because it depends on the contingencies of

the system of international relations.15 Thus, Raz serves as a good example of a theorist who

combines the moral and political, even though he makes a great deal out of the distinction.16

The account we accept must have the resources to justify, identify, and partly determine the

content of human rights. If the PC is going to be able to do this, it will have to be significantly

supported by moral reasoning and to some extent a moral justification. Some political theorists

will resist this more than others (e.g. where Raz explicitly adopts a partly moral justification,

Beitz is more agnostic about this focusing instead on their distinctively political role). The

worry is that, without a significant place for moral reasoning, we are simply talking about pol-

itically declaring something to be a right. This leaves us with fewer resources to criticize the

existing practice or explain what it is about human rights that give them their special role.

With a moral justification in place, we are in a better position to argue about some of the

more contentious rights and possibly persuade states that they ought to behave in certain

ways even if doing so is not in their direct national interest – for instance China’s one child

policy or prohibitions against selling our body parts (to use Griffin’s examples).

1.3. The function of human rights

Another main point of disagreement between the OC and PC is whether we should consider the

function of a human right as part of our understanding of the concept of a human right, as the PC

claims, or as a political implication of a moral concept, as the OC claims. I take it that there is

some measure of agreement between the OC and the PC on the political function of human

rights. They will agree that human rights should be understood as setting limits on the ways

sovereign states and their officials may treat their citizens and that violations of these rights

are everyone’s concern. Grave and persistent violations of human rights will undermine a

state’s legitimacy and will give other states reason, though defeasible reason, to intervene in

that state’s affairs.17 My aim in this section is to show that both camps generally adopt a

similar account of the function of human rights but that the OC will resist (and for good

reason) too closely tying our understanding of the function to our understanding of the concept.

Beitz provides a strong statement of the connection between the function of human rights and

the concept of human rights:

the functional role of human rights in international discourse and practice is regarded as definitive ofthe idea of a human right, and the content of international doctrine is worked out by considering howthe doctrine would best be interpreted in light of this role (emphasis added).18

Looking to the practice to understand what the role and function of human rights is does not

merely help us to understand how to apply a moral concept in the political domain but it

helps us to ‘grasp the concept’ and infer ‘the meaning of the idea of a human right’ (Beitz

2009, 8–10). One of Beitz’s most important contributions to the debate between the OC and

the PC is to clearly draw this line between the function and the justification of human rights.

It is not that Beitz does not think that there is a justification for human rights, even a moral

one, but rather that he thinks that an exploration of the justification is beside the point. If our

task is to get clearer on the concept, then we need look no further than the practice. It is in

this vein that he critiques the OC (what he calls ‘naturalistic’ conceptions) for seeing human

rights ‘as having a character and basis that can be fully comprehended without reference to

their embodiment and role in any public doctrine or practice’ (Beitz 2009, 50). For Beitz,

human rights derive their identity and authority from the practice and not from the moral

values that ground them.

But not everyone has the same account of the political function of human rights, particularly

their function in light of a changing conception of sovereignty and responsibility to intervene.

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This gives us a good reason to be concerned about tying the understanding of the concept of

human rights too closely to any particular function. Griffin, questioning Rawls and Raz, asks

why we should understand human rights as establishing rules of war and conditions for interven-

tion when they have many other intra-national roles as well, such as ‘to justify rebellion, to

establish a case for peaceful reform, to curb an autocratic ruler, [and] to criticize a majority’s

treatment of racial or ethnic minorities’.19 While he agrees that human rights, or at least some

of them, will have the function of triggering international intervention, he considers this a con-

tingent or at least derivative feature that is ultimately grounded in their more basic justification.

But Raz criticizes the OC for failing to make the necessary connection between human rights

and sovereignty (2011, 323).On Raz’s view, human rights are rights that set limits on state sover-

eignty and any argument for human rights must show that they have this feature. This is a con-

ceptual connection that builds sovereignty and intervention into the very meaning of human

rights. One would only consider a moral right to be a human right if it disabled arguments

against interference. This is the reason we would not consider the moral right to the performance

of promises to be a human right. In most cases, we might acknowledge that breaking a promise is

a morally bad thing, but it is not the kind of thing that should trigger international intervention.

Certain promises that are part of a binding contract are the kinds of things that states have a duty

to protect and so are the kinds of things that must be protected by a right, but even this typically

remains a matter internal to the state.20 On these issues, a state would be well within its rights to

tell external parties to ‘mind their own business’.

But how closely do we really want to tie the concept of a human right to the concept of state

sovereignty? The concept of sovereignty has changed significantly from the time of the Peace of

Westphalia (1648), the founding of the UN (1945), and the widespread endorsement of the

Responsibility to Protect Doctrine (2005).21 Past experiences with war, colonization, and aggres-

sion have served as the context from within which states viewed a strong concept of sovereignty

(i.e. a state’s autonomy over its own affairs) as both intrinsically valuable, as an expression of

autonomy and self-determination, and also instrumentally valuable, as necessary for achieving

peace and stability. With growing interdependence among states, the proliferation of transna-

tional entities and the globalization of social, political, and legal institutions, in addition to an

increasing recognition that states have a moral obligation to intervene into the affairs of other

states that do not pass a minimal threshold of respecting the basic rights of their citizens, the

concept of sovereignty has undergone dramatic change. The current state of international

relations widely recognizes that there is a responsibility to assist and intervene using coercive

measures (sometimes military, as a last resort) to halt genocide, war crimes, crimes against

humanity, and ethnic cleansing. Failures to intervene, such as in the Rwandan genocide, have

been widely condemned and met with blame and guilt.

My point is not to provide a full rationale for the changing conception of sovereignty but to

merely point out that if the conceptual link between human rights and sovereignty is as strong as

the PC claims, then a significant change in the concept of sovereignty will lead to a significant

change in the concept of human rights. I suggest it is more plausible to suppose that it is not that

we had (or should have had) fewer human rights in the past, but rather that the subset of human

rights that had the function of limiting state sovereignty was smaller given the different under-

standing of the state and international relations. The moral argument and the political consider-

ations that justify and set limits to state sovereignty are, to some extent, independent of the

argument and justification for human rights. It does not follow that our changing conception

of sovereignty will exactly mirror and result in a changing conception of human rights. The

intense criticism over Rawls’s very anemic list of human rights supports this point. For

example, we might think that there is a human right to freedom of expression and that in

2013 it functions in a way such that its serious violation serves as a reason in favor of (some

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type of) intervention, whereas that same right in 1913 did not function in that way given the

different conception of sovereignty that was dominant at that time. The alternative is to say

that it was not a human right back then but became one when the dominant conception of sover-

eignty changed. If, as Rawls and Raz (and others) claim that, human rights are just those rights

that trigger intervention, we should not be surprised if their list is quite slim, but we may be sur-

prised that the length of the list will fluctuate significantly. The stronger the PC of sovereignty is,

the shorter the list of human rights will be because fewer rights (or none at all) will justifiably

trigger intervention.

The PC can respond by claiming that the contingent or changing nature of the function of

human rights is not something to worry about. In fact, its responsiveness to the political situation

is a strength and what one should expect. It is not as though human rights would disappear in a

world where states had reason to reject any and all interference with their sovereignty. All one

would have to say in this case is that it is the current function of human rights, whatever that

might be, that conveys its meaning. However, the OC would resist the idea that human rights

have such a contingent nature. Is it the case that the human rights we had in 1945 are so radically

different than the ones we have now? And what would one say in a possible future stateless

world, one in which both our political situation and priorities change? Human rights would

not have the same function they now have; they would have to have a very different function;

and so, have to be something radically different from what they are now. But could it ever be

the case that there would be no significant political role for human rights to play? And if so,

would they no longer exist?22

We need not go to such hypothetical or extreme situations before we question the soundness

of a position that views the concept of human rights in such a contingent way. The human rights

of my ancestors, may have, for practical reasons, been specified differently than mine and the

same will go for my descendants. We may one day have to articulate specific norms for the

respectful and dignified treatment of embryos, whereas the same questions did not arise for

more primitive societies. But the basic rights to life, freedom from religious persecution, insti-

tutionally recognized or not, surely would be something we have in common. While this in itself

does not show that the concept of human rights should instead be more tightly tied to the justi-

fication (as the OC would have it), it does suggest a reason to loosen the connection between the

concept and any particular function.

While the OC is willing to acknowledge a link between human rights and state sovereignty, it

is unwilling to accept Beitz’s view that its functional role is definitive of the very idea of a human

right. An advantage of the OC is that it can accept a functional understanding of human rights to

an extent while at the same time being able to independently define what counts as a human right

and so what counts as something that has the function of limiting sovereignty.

1.4. Fidelity to the practice of human rights

Another point of disagreement between the OC and the PC is the relationship between the

concept of a human right and the practice of human rights. In fact, Beitz, drawing attention to

a perceived weakness of the OC account, claims: ‘[w]e do better to approach human rights prac-

tically, not as the application of an independent philosophical idea to the international realm, but

as a political doctrine constructed to play a certain role in global political life’ (2009, 48). The

issue here is not whether fidelity to the practice of human rights is a positive feature, nor whether

there should be some correlation between what we as theorists take to be human rights and what

the UDHR lists as a human right – no one denies this. My aim in this section is to consider this

important criticism the PC raises and show that the practice of human rights plays an important

role in contemporary OC accounts.

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In ‘The Nature of Human Rights’, Wenar defends what he calls the practical approach, and

quickly puts the OC aside since he considers it to be a straightforward application of moral

theory: ‘[t]his orthodox conception is familiar from the philosophical literature on human

rights, and any philosopher will know how to construct an orthodox theory of human rights

using the standard tools of a consequentialist or deontological moral theory’ (2005, 285).

These moral theories make no mention of the function or political role of human rights, or

even for that matter, the extent to which practical and institutional factors are needed to deter-

mine their content. Contemporary OC accounts clearly go further than Wenar suggests; none I

know derives an entire list of human rights solely from its moral foundation. Normative agency,

dignity, and the like must be made determinate and this is not possible without the addition of

practical, social, and institutional factors.

On Griffin’s account, for example, human rights are rights that persons have simply in virtue

of being human; they are protections of our human standing. The distinctive and special feature

of human beings is that they form and pursue conceptions of a good life and it is this status of

agency or personhood that we highly value and see as privileged and protected. This moral foun-

dation, grounded in ‘personhood’ or normative agency, includes the capacity for and exercise of

autonomy (i.e. forming a conception of a worthwhile life), liberty (i.e. freedom to pursue one’s

conception), and minimal provisions (i.e. resources and capabilities needed to form and pursue

one’s conception) (Griffin 2008, especially chapters 2 and 8.). On this view, human rights are

rights to whatever is needed for this important human status.

But for Griffin, this is only one part of the story. An equally important element that grounds

human rights are what he calls ‘practicalities’. He recognizes that personhood, on its own, would

leave his account of human rights too indeterminate for practice. In order to fix the content of

human rights, we must consult empirical information about our human nature and the nature

of society (including the limits of human understanding and motivation, how societies actually

work, etc.) (Griffin 2008). For example, on the basis of the conditions necessary for normative

agency, we can justify a human right to the freedom of expression, but at this point, the human

right justified is at a high level of abstraction and does not provide much guidance. In order to

concretely determine its content, we must look to the empirical circumstances of society. This

right will, in some societies, include freedom of the press, but not in all (Griffin 2008, 38).

Beitz concedes that Griffin attempts to align his account with the current practice but he

notes that social and institutional contingencies only come in when he attempts to derive

second-order rights (such as privacy or democracy) and not at the level of first-order rights

where we have autonomy rights, liberty rights, and welfare rights. The problem with this strategy

is that if an account is going to be coextensive with current human rights doctrine, the level of

first-order rights must be broad enough to derive the second-order rights. Beitz is skeptical that

the concept of humanity ‘as such’ or normative agency will get us anywhere near the list of

human rights that currently exists. But even if Beitz’s criticism were to be successful against

an account such as Griffin’s, there is no reason to think that a pluralistic orthodox account

such as Tasioulas’s that expands the number of basic human interests that ground human

rights would face the same challenges.23

Not all proponents of the PC will gain much argumentative ground here because the worry

about there not being a close enough match between the philosophical account and the practice

can be raised against the political side as well. Consider the list of human rights that Rawls ends

up with:

[the] right to life (to the means of subsistence and security); to liberty (to freedom from slavery,serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensurefreedom of religion and thought); to property (personal property); and to formal equality asexpressed by the rules of natural justice (i.e., that similar cases be treated similarly). (2001, 65)

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Rawls only recognizes a very stripped down set of rights because he thinks that they are the only

ones that liberal and decent societies could reasonably agree to. Given his narrow reading of the

function of human rights as triggers for international intervention (with a focus on military inter-

vention), it is not surprising that his list is so short. A right to periodic holidays with pay certainly

is not the kind of right that anyone would reasonably think should trigger (any sort of) interven-

tion and so, on Rawls’s account, is not a human right.

If we consider less controversial human rights around which there is currently much agree-

ment, such as the right to education or the freedom of expression, we may still be hesitant to

claim that their violation should trigger intervention (especially military) but we may be unwill-

ing to reject them as being human rights. The point is that there is widespread agreement on these

human rights in practice, so if we look to the practice for our cues, we would be compelled to

expand upon Rawls’s list. Even though Rawls is credited with being the first to develop a pol-

itical conception of human rights, this would be an inaccurate characterization if a requirement

of holding a political view is that it gives conceptual priority to the practice of human rights.

The sense in which Beitz, Raz, and Wenar are political is that they look to politics or the

practice of human rights in order to understand the concept. Rawls’s account is political in

terms of its justification, relying on the method of public justification rather than on grounding

human rights in any thick or comprehensive moral or philosophical view, but we should question

its fidelity to the practice. We may need to rethink the force and significance of this supposed

difference between the OC and PC if it leads us to question Rawls’s place in the political camp.

But is one camp better positioned to resolve disputes about the content of a particular human

right or its existence? There is much debate about particular rights such as the human right to

democracy or welfare rights. Recently there has been debate about whether or not there is a

human right to contraception and what kinds of duties such a right would confer on states

that do not have the resources to provide the necessary contraceptives. Can such a duty be

imposed on a religious society that has principled concerns about the morality of using contra-

ception? Then there are the rights that are not in dispute, such as the right to life, but for which

there are serious questions about its extension – does it imply a right to assisted death or a right

to rescue?

To answer these questions, the OC would look to the justification of the right but certainly

does not stop there. Discussions of practicalities and feasibility among others need to take place.

Determining the specific content of human rights is not merely a matter of moral theorizing but

will require political discussions to work out the principles. A benefit of this approach is that

there will be some latitude for different cultures to specify the rights in a way that respects

the underlying general principle but diverges to some extent from the way it is specified by

other cultures. It is not clear that the PC can help itself to these underlying principles (or if it

would want to) and it is not clear how else to advance the discussion. The OC must do this in

a way that is engaged with the practice and not, as Wenar suggests, by merely applying abstract

moral theory.

To this point, I have surveyed some of the most significant points of disagreement between

the OC and PC. I have endeavored to present each camp in its best light rejecting the standard

mischaracterizations one commonly finds in the literature. Insofar as these differences can be

seen as challenges the PC has raised against the more traditional OC, I have shown that none

of them has succeeded in undermining the OC. That is, (1) the OC acknowledges the political

significance of the post WW II era and the UDHR while maintaining that, though it has under-

gone changes, the concept of a human right is continuous with the natural rights understanding of

human rights; (2) the OC rejects the PC claim that the justification of human rights is not a

necessary part of specifying the content of human rights and their corresponding duties; (3)

the OC can agree with the PC about what the function of a human right is, even though they

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reject tying the function of human rights so closely to the concept; and (4) the OC agrees that it is

important to stay faithful to the practice of human rights, rejecting a top-down approach that

simply applies moral principles, while at the same time ensuring that it is not completely prac-

tice-dependent keeping sufficient critical distance between it and the current practice. In what

follows, I will look more closely at the specific ways in which the OC does (or is able to)

adopt political and practical elements into its account, thus showing that it is able to accommo-

date the PC’s most serious concern about not being sufficiently political.

2. In what respects is the OC sufficiently political?

At this point, I think it is reasonable to ask if OC accounts, such as Griffin’s, are political enough.

While Griffin mounts a formidable argument to this end, Raz and others remain skeptical. In

what follows, I will address any remaining skepticism by expanding on two main points: (1)

the OC appreciates the necessity of institutions and (2) the OC relies on political and practical

considerations to make general rights more determinate.

2.1. The necessity of institutions

The OC may well believe that some rights are pre-institutional but they certainly do not think

that all human rights in existence today are pre-institutional nor that institutions are not necess-

ary in an account of human rights. There is no reason the OC could not adopt a view of the cen-

trality of institutions in either a strong sense (i.e. they are essential for realizing and determining

the content of specific human rights) or a weak sense (i.e. they are essential for implementing and

enforcing human rights), both of which address the PC’s criticism to some extent.

Among political philosophers, there is much disagreement about the significance and role the

state and its institutions ought to play in a theory of (human) rights. Some accounts, such as

Kant’s in The Doctrine of Right conceive of the state as necessary for our rights, in a very

strong sense. I say a strong sense because an individual’s right to freedom (and all other

rights derived from it, such as the right to property) is only consistent with this same right in

others if public legal institutions are in place.24 Another understanding of the state and our

legal institutions is that they are necessary, but instrumentally necessary, for achieving indepen-

dently desirable ends. Among the instrumentalists, there is John Locke who sees (some) rights as

pre-political, that is as natural rights persons have fully formed in the state of nature. But instru-

mentalists need not deny that some rights require institutions. Locke and other moderate instru-

mentalists recognize that some human rights are pre-institutional (e.g. the right not to be

murdered or tortured or raped); while others require institutions (e.g. the right to own property,

the right to a nationality, or the right to education). Without the state and its legal institutions,

these latter rights could not even exist; moreover, the state makes these rights determinate,

implements them, and enforces them. On both instrumental and non-instrumental accounts,

legal and political institutions have an essential role.

A further strength of the OC is that it generates strong moral reasons to establish the necess-

ary institutions to make human rights determinate, to adjudicate conflicts, and ultimately to

enforce rights. In a state of nature, we may not have all the rights listed in the UDHR, but the

basic general right to dignity or equal freedom puts constraints on how we may interact with

others (constraints that will be specified by the appropriate institutions we ought to set up).

Thus on the OC we have reason, in the absence of global or international institutions, to treat

persons outside of our borders with respect and we have moral reason (or more strongly a

moral obligation) to put certain institutions in place that will make our duties to persons

outside our borders and their rights against us determinate and potentially enforceable.

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2.2. Making indeterminate human rights determinate

The PC charges that because the OC strictly relies on very general concepts such as freedom or

dignity rather than on politics and practice, it is unable to generate the familiar list of human

rights. But we need not expect these general concepts to generate a complete and specific list

of rights on their own; all that is required is that they guide the process of determining these

specific principles.25 Starting with broader and more indeterminate concepts, such as dignity,

for example, we can tease out more determinate norms to govern our interactions with the

state and other individuals. These more determinate norms will be based on empirical circum-

stances (geographical, historical, cultural, etc.) and so to some extent will vary from state to state

as each interprets the requirements of respecting human dignity. However, there are limits on

what would count as a reasonable or legitimate interpretation and all states (and individuals

within states) will share some norms and these are the norms that apply to all humans and are

what we call human rights. The concept of dignity, though broad, will serve to constrain what

can plausibly count as respecting and specifying a more general human right.26 For example,

state laws permitting the rape of a spouse could not in any context be understood as respecting

human dignity; while laws permitting some types of inequality may.

If we take the freedom of expression to correspond to a human right that everyone has, we

quickly see that it does not provide sufficient guidance in terms of what we are at liberty to do or

to claim, nor that this would be the same for every living human being. To take a modern liberal

democracy as an example, part of the freedom of expression is having a free press (or media,

more generally). Given the role of the media in a democratic society, it is impossible to

imagine that freedom of expression, which in turn protects equal moral status, is being properly

upheld if the government is placing substantive controls on what the media may publish. That

said, if one considers a different context, one of an isolated rural village, it makes no sense to

even talk about the members having a right that their media be free if they do not have a

press. But having a right to express their views and opinions does make sense. In such a

society, if a person was punished for disagreeing with the ruling group, we would judge that

she was denied the freedom of expression and has had her equal moral status and human

rights violated.

A remaining challenge for the OC is to provide an account that explains the difference

between general moral rights and human rights, especially since they can be justified in

similar ways. Not all violations of our human dignity are human rights violations. For

example, we could agree that lying or breaking a promise, especially for no good reason, fails

to respect a person’s dignity. Certainly, lying is not morally on par with denying a person reli-

gious freedom or the right to vote. Not all violations of dignity will be candidates for institutional

protection, though some will be. For example, Griffin would argue that lying does not undermine

normative agency while religious persecution does. Someone else could do the same with basic

needs. Importantly, practical considerations will also play a role in drawing the line.27

Not only can the OC give an account in which practical considerations make our general

rights determinate, but it can go deeper than this to show that, to some extent, the moral foun-

dation is contextually and politically sensitive. It is open to the OC to interpret the moral foun-

dation as organic and to some extent socially constructed. It is commonly accepted that not only

are our particular political and moral norms constructed by society but that our social inter-

actions shape our agency and capacity for reasoning. If one were to admit this, one would

also have to admit that the list of human rights is not static and timeless.28 In this way, the

OC can be responsive to our changing political circumstances to some extent; and can acknowl-

edge that, as our social and political situation changes, so do the contours of the foundation. But

to say this is not to say that, as a matter of political will, we could recognize anything as a human

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right. The strength of the OC is that it is able to respect the social nature of the foundation while

at the same time relying on it to set constraints on the rights and obligations we have.

3. Conclusion

Affirming our commitment to universal basic human rights through various international politi-

cal instruments has been an important step forward in acknowledging the equal dignity of

persons. Much more needs to be done. Millions of people do not enjoy even the most basic

human rights. There is significant indeterminacy with respect to what rights are owed to

whom, what the content of these rights are and how to best realize these rights in practice. To

move forward, we must continue our investigation of the concept of a human right. Otherwise

we would not know exactly what needs protecting and how best to go about doing so. This is

where theorists and philosophers have a role to play in the debate among other important

players such as lawyers, practitioners, and activists. But before we can make any strides in

making the concept more determinate, I suggested that it is important to evaluate the debate

between the two main philosophical camps, the OC and the PC.

The PC has advanced the debate by emphasizing just how important it is to ensure that the

concept of human rights stays faithful to the practice. I argued that the OC does, in important

respects, rely on institutions to allocate and realize human rights in practice and also to

specify the content of the duties that correspond to human rights which cannot be done

without embedding them in politics and practice. The advantage of this approach is its ability

to accommodate different cultural interpretations especially at the point where the norms get

specified and operationalized. But the OC is right not to concede to the PC demand to down-

grade, or render superfluous, the role of the (moral) justification of human rights. Leaving

space between the concept and the practice leaves us the necessary space for criticism, to

allow us to clearly formulate norms and distinguish them from what is, in fact, the current prac-

tice. It is true that there is only consensus on the vague notion of dignity as a ground for human

rights and that correspondingly there is an indeterminateness of sense. But this does not make the

approach wrong-headed – it merely indicates that there is more philosophical work to be done in

interpreting the justification in a sufficiently robust and acceptable way. In some sense the

dispute between the OC and PC has been productive because it has forced theorists to clarify

their positions and hopefully this puts us in a stronger position to move forward in this important

task together.

Acknowledgements

Many thanks to Wil Waluchow, Stefan Sciaraffa, Kit Wellman, Tracy Isaacs, the students in my

2011 graduate seminar at McMaster University and the audience, especially Imola Ilyes, at the

Canadian Philosophical Association meeting in 2012.

Notes on contributor

Violetta Igneski is an Associate Professor at McMaster University in Hamilton, Canada. Her currentresearch interests are in human rights, global justice and collective responsibility.

Notes

1. I follow John Tasioulas by characterizing these main camps as orthodox and political. The politicalview has also been called practical and functional. The orthodox view has also been called traditional,naturalistic, and foundational.

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2. There have been a few very recent attempts to deflate the strong distinction, each of which attempts toreconcile the camps in their own unique way. My approach is also somewhat conciliatory but it ulti-mately identifies with and defends the OC. See Gilabert (2011), Liao and Etinson (2012), Valentini(2012), and Barry and Southwood (2011).

3. The main proponents of the political (or practical) view are Beitz (2009), Rawls (1999), Raz (2011),and Wenar (2005).

4. I use the concept of intervention broadly to capture diplomatic pressure, economic sanctions, supportfor human rights NGOs and, sometimes, military intervention.

5. On Gilabert’s interpretation, the political perspective views human rights as claims that individualshave against certain institutional structures. By adopting a fairly narrow view of the political perspec-tive, there are fewer obstacles in the way of a merger between the two camps. I understand the PC con-ception more broadly and so think it is less able to accommodate central features of the humanistperspective, even if the humanist perspective can appreciate the important role institutions play in spe-cifying and allocating human rights.

6. Liao and Etinson make a similar point in a different way. Their strategy is to show that the PC and OC(or the Naturalistic Conception) can be compatible at the formal level insofar as they can agree aboutwho the duty-bearers of human rights are. They argue that the PC is essentially a formal account that isnot very helpful in saying much about the content of human rights – it is here that the OC can be seen assuperior or at least useful to the PC.

7. There is certainly no agreement on whether Aquinas had our modern concept of a natural right. For anaccount that argues that he does, see Finnis (1998).

8. For an excellent discussion of the debates among the drafters of the UDHR about whether the UDHRshould be grounded in nature or God, or neither, see Morsink’s (1999), especially chapter 8.

9. This is Griffin’s main concern in On Human Rights.10. Nussbaum (2004) argues that dignity is not merely a Western value but is embraced by many non-

Western states and traditions.11. Rawls (1985) admits: Although this conception is a moral conception, it is not as I have said, intended

as a comprehensive moral doctrine (245).12. This is entirely consistent with a related criticism that could be directed against the PC for ‘imposing’

political standards on those who are deemed unreasonable on their account. Thank you to a reviewer ofJGE for raising this point.

13. Griffin (2011, 344). See also Liao and Etinson (2012). Griffin is quoting from Raz (2011, 337).14. I suspect that one reason underlying the debate between the OC and PC is that they use the terms ‘foun-

dation’ and ‘foundational’ in different ways. Contemporary OC views do not rest on deep metaphysicalgrounds, but rather refer to a moral justification or moral grounding of human rights.

15. Beitz (2004, 197) admits that practical views do not necessarily deny that ‘there are intelligiblemoral grounds for international human rights’ but says that the problem for them comes inbecause they ‘treat the justification of international human rights as internal to the conception ofa human right’ whereas practical views separate questions of their justification from questions oftheir nature.

16. Griffin makes the same point when he says that authors of functional accounts (e.g. Dworkin, Rawls,and Raz) ‘do not themselves think that their accounts are fully stated without some contribution fromethics’ (2008, 351).

17. There is general political disagreement about whether or not military intervention is ever justifiable inpractice and about which violations trigger which types of international response.

18. Beitz (2004, 197). In Beitz (2009, 103), he says ‘we take the functional role of human rights in inter-national discourse and practice as basic: it constrains our conception of human rights from the outset’.

19. Griffin (2011, 343) also notes that they are used by the UN and other non-governmental organizationsto issue human rights reports and to criticize institutions within a society.

20. These would fall under the category of rights extended only to citizens of a particular state.21. Though there is some debate about the historical accuracy of tracing the origins of the sovereign state

system to the Peace of Westphalia (referring to the treaties of Munster and Osnabruck signed in 1648 toend the Thirty Years War), it is certainly the common conception. For a discussion of the debate see,Croxton (1999). For an official statement of the three pillars of the responsibility to protect see theOutcome Document of the 2005 United Nations World Summit (A/RES/60/1), 138–140.

22. Barry and Southwood develop a ‘structural pluralist’ account that responds to weaknesses in Griffin’sand Beitz’s accounts. I accept many of the criticisms they raise and the solutions they suggest, exceptone. Their account is political in the sense of conceiving of human rights as rights against political

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agents (not more narrowly states as Beitz and Rawls suggest). The consequence of this that they accept(but I cannot) that a world without any political entities is a world without human rights. I thank areviewer of JGE for drawing my attention to this political view and also Barry and Southwood’s excel-lent article.

23. Nickel (2007) develops a pluralistic justificatory framework for human rights. One advantage of a plur-alistic account is its ability to generate a broader list without appearing ‘shaky and derivative.’ Seeespecially chapter 4.

24. Valentini’s Kantian-inspired account is strongly institutional in this non-instrumental sense.25. Even Aquinas, whose natural law theory is as foundational as it gets, develops a theory of determi-

nation of common notions which gives an account of how the primary and secondary principles aremade specific and often vary with the circumstances of society. See Summa Theologica.

26. This idea can be traced back to Aristotle in his discussion of the house-builder who works withincertain limitations inherent in the notion of a house, but has wide latitude, within these inherent limit-ations, as to how he constructs the final product. It is an idea that Aquinas incorporates in his naturallaw theory (Regan and Baumgarth 2003).

27. Using Tasioulas’s threshold of feasibility, one could say it is not feasible to have a human right not tobe lied to.

28. Tasioulas (2010) makes a related point when he says that human rights are not timeless and apply inconditions of modernity.

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10 0

7 O

ctob

er 2

014