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ABSTRACT
I respond to a broad range of challenges that the seven articles of this special issue raise for the theory of a human rights state. The first two articles address the theory as a whole. The first reconfigures the human rights state as an analytical tool for measuring implementation. I counter that such measurement is not possible without normative interpretation. The second article insists that any human rights project can only be valid if valid transcendentally. By contrast, I advocate validity as a this-worldly project undertaken by the addressees themselves. The next three articles examine what happens when the model is deployed empirically. One imagines a Mexican human rights state for indigenous peoples that would develop local structures of autonomy and self-governance. While the author proposes communal agency and cultural unity, I discuss the danger that collective rights pose to the rights of individual members. Another article sketches a Brazilian human rights state that would diminish social authoritarianism, incorporate international human rights law within the state, and transform an authoritarian culture. But if the human rights in question are self-authored, as I advocate, then they are not gifts of international law, as the author asserts. The last of this set describes a Bosnian-Herzegovinian human rights state that would preclude the ethnic instrumentalisation of religion. But the common ethos sought by this model is itself open to manipulation and could undermine individual autonomy. The final two articles probe the possibility of a moral universalism that both regard as simply given. One champions a human right to democracy and finds that right embedded in various international human rights instruments. I contend that the rule of law, more so than democracy, facilitates the human rights project. The other article draws on a human rights cognitive style yet rejects what, given the practical imperative of localism, I argue is key to that approach: moral relativism. I conclude by sketching the variety of future research programmes on the idea and practice of a human rights state that flow from the contributions to this special issue.
Acknowledgements
I would like to acknowledge the unfailingly thoughtful and unusually helpful guidance that René Wolfsteller provided to every participant in this project, every step of the way, from the original vision to fine-grained copyediting concerns. Without his extraordinary investment, this special issue would not have been possible.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Benjamin Gregg (BA Yale University, PhD Princeton University) teaches political and social theory, informed by political science and sociology, at the University of Texas at Austin but also in Germany, Japan, China and Austria. Two of his books, Thick Moralities, Thin Politics (2003) and Coping in Politics with Indeterminate Norms (2003), confront challenges of social justice in complex modern societies, especially in liberal democratic states. Another two books, Human Rights as Social Construction (2012) and The Human Rights State (2016), analyse problems and prospects for justice across national borders. His current book-in-progress, Human Nature as Cultural Design: The Political Challenge of Genetic Enhancement, explores core issues in bioethics: rapid advances in genetic engineering, particularly of human embryos and foetuses, pose difficult social, political, moral and legal questions that challenge a range of different conceptions of a just society. His current research was supported by a Fulbright Professorship at the University of Linz, Austria, Spring 2016; by Visiting Scholar positions at The Hastings Center (Garrison, NY) and the Yale Interdisciplinary Center for Bioethics, Summer 2016; and by a Visiting Scholar position at the Oxford Uehiro Centre for Practical Ethics, University of Oxford, 2018. In 2016 he delivered invited lectures on this project in Sweden, Iceland, Norway, Finland, Spain, Austria and the USA.
ORCID
Benjamin Gregg http://orcid.org/0000-0001-9510-6147
Notes
1. Benjamin Gregg, Human Rights as Social Construction (New York: Cambridge University Press, 2012); Benjamin Gregg, The Human Rights State: Justice Within and Beyond Sovereign Nations (Philadelphia: University of Pennsylvania Press, 2016). All in-text citations in this article refer to one or the other of these two books.
2. René Wolfsteller, ‘The Institutionalisation of Human Rights Reconceived: The Human Rights State as a Sociological “Ideal Type”’, The International Journal of Human Rights, this issue.
3. Yingru Li and John McKernan, ‘“Achieved Not Given”: Human Rights, Critique and the Need for Strong Foundations’, The International Journal of Human Rights, this issue.
4. Richard Georgi, ‘The Human Rights Project and the Transformation of Social (B)orders: On the Political Nature of Human Rights Activism in the Wake of the Zapatista Uprising’, The International Journal of Human Rights, this issue.
5. Ulisses Terto Neto, ‘Democracy, Social Authoritarianism, and the Human Rights State Theory: Towards Effective Citizenship in Brazil’, The International Journal of Human Rights, this issue.
6. Gorana Ognjenović and Jasna Jozelić, ‘The Human Rights State and Freedom of Religion in South-eastern Europe: The Case of Bosnia-Herzegovina’, The International Journal of Human Rights, this issue.
7. Johannes Hendrik Fahner, ‘Revisiting the Human Right to Democracy: A Positivist Analysis’, The International Journal of Human Rights, this issue.
8. Olga Bezbozhna and Helena Olsson, ‘Note from the Field: Applying a “Human Rights Cognitive Style” in the Raoul Wallenberg Institute’s Work on Human Rights Education with Universities’, this issue.
9. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2010).
10. Wolfsteller, ‘The Institutionalisation of Human Rights Reconceived’, 239.
11. Ibid., 238.
12. Ibid., 239.
13. Ibid., 239.
14. Note as well that the goal of replacing the nation state (2012) is more ambitious than modifying it (2016) – just as extirpating nationalism (2012) is more ambitious than reworking it into a human rights-based patriotism (2016).
15. Wolfsteller, ‘The Institutionalisation of Human Rights Reconceived’, 239.
16. Ibid., 239.
17. Ibid., 239.
18. Ibid, 239.
19. Ibid., 239.
20. Ibid., 243.
21. Ibid., 243.
22. Ibid., 243.
23. Ibid., 243.
24. Ibid., 244.
25. It may be undercomplex in another respect as well. Lundberg and Strange acknowledge the significance of institutionalising human rights but then stress the need for a complementary, non-institutionalist approach that captures other types of human relations relevant to the human rights project. They do so with specific reference to a human rights state in the context of ‘irregular migration’ and popular sanctuary movements in Sweden. See Anna Lundberg and Michael Strange. ‘Who Provides the Conditions for Human Life? Sanctuary Movements in Sweden as both Contesting and Working with State Agencies’ Politics (October 2016): 1–16, doi:10.1177/0263395716661343.
26. Li and McKernan, ‘“Achieved Not Given”’, 253.
27. Ibid., 253.
28. Ibid., 257. The very possibility of a critical normative stance presupposes some point beyond human activity and imagination, they insist.
29. By valid I mean that which, within a culture, marks an idea, belief or practice in ways that members to some degree recognise and identify with. Further, I do not distinguish local from state-based, federal or national. I use the term flexibly. Locally valid human rights would be more than the rights of citizens; even as positive state-based law, they would treat the law’s addressees as potential members of a world republic of shared moral claims. Local then refers to state-based rights but in the unusual sense of state-based human rights.
30. Li and McKernan, “‘Achieved Not Given’”, p. 257.
31. Ibid., 257.
32. Ibid., 257.
33. Ibid., 257.
34. Citing Forst (2015:226). Rainer Forst, ‘A Critical Theory of Politics: Grounds, Method and Aims’, Philosophy & Social Criticism 41 (2015): 225–34.
35. Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (New York: Columbia University Press, 2012), 19.
36. Ibid., 61.
37. Li and McKernan, ‘“Achieved Not Given”’, 261.
38. Ibid., 261.
39. Ibid., 261.
40. W.E.B. Du Bois, The Souls of Black Folk (Chicago: A. C. McClurg & Co., 1903).
41. Li and McKernan, ‘“Achieved Not Given”’, 261.
42. Ibid., 262.
43. Ibid., 262.
44. Ibid., 262.
45. Ibid., 262.
46. Ibid., 264.
47. Ibid., 264.
48. Ibid., 254.
49. In the spirit of extending the theory of a human rights state beyond the political sphere to corporations, I elsewhere urge powerful Western nation states to extend the notion of a human rights state to organisations in which they wield great power, such as the World Bank, the International Monetary Fund, and the World Trade Organization. (See Benjamin Gregg, ‘Human Rights as Metaphor for Political Community Beyond the Nation State’, Critical Sociology 42 (2016): 897–917.) Nation states here perform the role of a human rights state by committing these organisations to human rights. Such a human rights state would demand that these organisations consider the impact of their activities on human rights. It would call for mitigating or precluding negative impacts, and for encouraging positive ones. It would refuse to support any activities that threaten human rights or contribute to their violation. In effect, institutions such as the World Bank would use their influence to support the human rights project domestically, for example through the human rights-compatible implementation of development projects. Such institutions could support the project by monitoring legal and financial aspects of all projects for human rights compatibility. And they could support it by sustainable development that includes a human rights commitment, such as a commitment to eradicate poverty without violating human rights. These institutions could support human rights by analysing the human rights impact throughout the life cycle of a project and beyond (after all, human rights violations can impact victims’ lives in enduring ways). They could promote it by what might be called human rights due diligence: considering how each of an institution’s activities ‘may create human rights problems or exacerbate existing ones in order to determine how to constructively and proactively mitigate those risks’ and how to ‘aim at maximizing positive human rights impacts’. Jessica Evans, ‘Abuse-Free Development: How the World Bank Should Safeguard Against Human Rights Violations’, Human Rights Watch (2013): 301.
50. Georgi, ‘The Human Rights Project and the Transformation of Social (B)orders’, 271.
51. Ibid., 271.
52. Ibid., 271.
53. Ibid., 271.
54. Ibid., 271.
55. Ibid., 274, 271.
56. Ibid., 276.
57. Ibid., 276.
58. Ibid., 276.
59. Ibid., 282.
60. Ibid., 283.
61. Ibid., 284.
62. Ibid., 284.
63. Ibid., 284.
64. Ibid., 280.
65. Ibid., 280.
66. Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley: University of California Press, 2003), 220.
67. In Benjamin Gregg, ‘A Socially Constructed Human Right to the Self-Determination of Indigenous Peoples’, Deusto Journal of Human Rights 1 (2016): 105–43, I attempt something similar. I propose a human right to self-determination for indigenous peoples as something in each case developed by an indigenous people and valid only if embraced by that people. I identify ways in which the indigenous, as a nation, are constituted through their recognition by the non-indigenous nation. I show how individual rights for the indigenous can support their collective rights and examine the abiding need to insure that collective indigenous rights do not undermine individual rights. I focus on how an indigenous people might design its own human right to self-determination and how it might seek to realise that right within the nation state by means of a human rights state.
68. Terto Neto, ‘Democracy, Social Authoritarianism, and the Human Rights State Theory’, 291.
69. Ibid., 291.
70. Ibid., 289.
71. Ibid., 294.
72. Ibid., 295–96.
73. Ibid., 298.
74. Ibid., 298.
75. Ibid., 299.
76. Ibid., 290.
77. Ibid., 298.
78. Ibid., 298.
79. Different Roma communities do not all follow the same religion(s).
80. Ognjenović and Jozelić, ‘The Human Rights State and Freedom of Religion in Southeastern Europe’, 313.
81. The authors point to ‘centuries of co-existence of various religious communities and ethnic groups’ that have contributed to a ‘common Bosnian national identity’. Ibid., 319, endnote 47.
82. Ibid., 311.
83. Ibid., 311.
84. Ibid., 311.
85. Ibid., 310.
86. Ibid., 310.
87. Ibid., 311.
88. Ibid., 308.
89. Ibid., 317.
90. Ibid., 312.
91. Ibid., 312.
92. Fahner, ‘Revisiting the Human Right to Democracy’, 332. One wonders: How can international instruments generate a human right if a human right is independent of legal instruments?
93. Fahner also observes that ‘Although the term democracy is understood in widely divergent ways, international law provides a normative standard that obliges states to govern in accordance with the will of the electorate.’ Ibid., 332. International law is rarely able to oblige sovereign states; it can never oblige powerful states; and it certainly obliges no nation to practice democracy (and would be undemocratic if it did).
94. ‘That the will of the people is to be the basis of the authority of government is as good a summary as any of the basic democratic idea.’ Ibid., 325.
95. Ibid., 327.
96. Ibid., 327.
97. Ibid., 328.
98. Ibid., 331.
99. Ibid., 331.
100. Ibid., 331.
101. Ibid., 332.
102. Ibid., 332.
103. Bezbozhna and Olsson, ‘Note from the Field’, 351.
104. Ibid., 342.
105. Ibid., 343.
106. Ibid., 349.
107. Ibid., 349.
108. Ibid., 350.
109. Ibid., 350.
110. Ibid., 350.
111. Ibid., 350.
112. Ibid., 350.
113. Ibid., 350–51.
114. Ibid., 351.
115. Ibid., 351.
116. Ibid., 351.
117. Ibid., 351.
118. Ibid., 351.
119. Ibid., 351.
120. Ibid., 351.
121. Ibid., 351–52.