Human Rights as Moral Rebellion and Social Construction

Abstract

This paper describes and defends a moral constructivist theory of human rights which characterizes them as an historically-evolved, socially-constructed ethico-legal paradigm designed to prevent and ameliorate systematic or institutionalized forms of oppression. After describing this theory and comparing it with alternative accounts of the nature, origins, and justifications of human rights, I argue that by grounding a common understanding of human rights within this framework, the global human rights community can better address the challenge of effectively protecting “all human rights for all” through the development of a more empirically grounded and cosmopolitan conception of human rights.

The author wishes to thank Sandy Coliver, Ken Harrow, Pierre Le Morvan, Louis Pojman, Thomas Pogge, Bill Schulz, John Sisko, and James Taylor for their helpful comments on earlier drafts of this essay

Notes

1. A pragmatic, as opposed to a philosophical, justification for human rights also has the advantage of being intelligible to the proverbial “man on the street” who wants to know why Westerners feel that they have the right to impose “their values” on other people. This kind of wider challenge is also internalist in that those who pose it generally accept the liberal value of tolerance and respect for diversity of religious, cultural, and political opinion but wonder why human rights norms are thought to be universal.

2. In fact, this phrase does appear in the Vienna final document in the following context: “All human rights are universal, indivisible and inter-dependent and inter-related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms” (Vienna Declaration, Part II, paragraph 3).

3. We commonly use the term “human rights” as a collective noun to refer to a network or system of particular and specific norms such as are found in the Universal Declaration of Human Rights, the International Bill of Rights, the various regional human rights conventions, and the dozens of separate international human rights declarations, treaties, and covenants. I refer to all of these documents collectively as the contemporary canon of human rights.

4. The issue concerning the equal treatment of homosexuals was not on the radar screen of the UN Human Rights Committee in 1948 when it drafted the Universal Declaration of Human Rights. But the contemporary human rights movement, by and large, now recognizes this category of rights and many arguments have been constructed as to why the rights of gay, bisexual, and transgendered persons to equal treatment should be regarded as legitimate ethical claims, even though it is difficult find a direct textual basis for them within the human rights canon. A number of countries have now formally recognized this right in their national laws, for instance Canada and South Africa, and the European Union has added sexual orientation to the prohibited grounds for discrimination in Article 21 of the Charter of Fundamental Rights of the European Union.

5. I purposefully employ the overused term “paradigm” because I want to emphasize the sociological and institutional aspects of the contemporary human rights movement. When Thomas Kuhn introduced the idea of scientific revolutions consisting of the replacement of one scientific paradigm with another, he was intending the term paradigm to be understood in two different senses: “One the one hand, it stands for the entire constellation of beliefs, values, techniques, and so on shared by members of a given community. On the other, it denotes one sort of element in that constellation, the concrete puzzle-solutions which, employed as models or examples, can replace explicit rules as a basis for the solution of the remaining puzzles of normal science” (Kuhn 1970: 175). Human rights are an ethical-legal paradigm in that they represent a constellation of shared values, beliefs, and commitments to institutional arrangements among members of the global human rights movement, and also, in the second sense, because “rights” are the principal solution deployed by this community in order to solve the problem of preventing oppression. In fact, Kuhn himself compares scientific revolutions to political ones and argues that “Like the choice between competing political institutions, that between competing paradigms proves to be a choice between incompatible modes of community life…. When paradigms enter, as they must, into a debate about paradigm choice, their role is necessarily circular. Each group uses its own paradigm to argue in that paradigm's defense” (94). If this is correct, then we should also expect this to be the case when human rights norms impinge on traditional forms of community practice in various cultures, and, of course, it is.

6. My moral constructivist account of human rights views persons as relational and interdependent rather than as independent autonomous social atoms. In this respect it departs from traditional liberal theories of justice and more resembles the ethics of care (Held 2006).

7. This example also illustrates one of the important reasons why a legal conventionalist account of human rights is incorrect. The documents contained in the contemporary canon of international human rights are the product of negotiations among delegates representing sovereign governments, and in many cases the texts adopted in such negotiations depart significantly from what might be regarded as an ideal moral account of the human rights in question. Thus, one cannot simply assume that the legal embodiment of a norm is an adequate normative defense against the forms of oppression it is supposed to prevent.

8. I borrow the term “moral rebellion” from Albert Camus (1956).

9. This is not only a feature of theories in the moral domain but applies generally to other kinds of values. When we call something a “disease” we also describe it and attach a value to it, so too when we call a particular manufacturing process “inefficient.” The logical positivist account of meaning under which it was thought possible to sharply separate statements of fact from statements of value turns out to be wrong.

10. This model is an elaboration of a similar account of the emergence of human rights norms offered by Ann Marie Clark who distinguishes four main phases in the process of constructing new norms: 1) Fact-finding, 2) Consensus Building, 3) Principled Norm Construction, and 4) Norm Application. She illustrates this model of standard setting by means of a detailed account of the development of the UN Convention Against Torture (Clark 2001).

11. This kind of account is what Thomas Pogge has characterized as an “institutional” (as opposed to an interactional) conception of human rights. In Pogge's characterization, “An institutional conception postulates certain fundamental principles of social justice. These apply to institutional schemes and are thus second order principles: standards for assessing the ground rules and practices that regulate human interactions. An interactional conception, by contrast, postulates certain fundamental principles of ethics. These principles, like institutional ground rules, are first-order in that they apply directly to the conduct of persons and groups” (Pogge 1992: 50) Universal human rights, on this view, reflect the idea of moral cosmopolitanism, that is “that every human being has a global stature as an ultimate unit of moral concern,” but assigns direct responsibility for protecting human rights not to individuals but rather to institutional schemes. The concept of a human rights regime, in my view, includes not only the legal codification of norms but the institutional schemes for implementing and enforcing them.

12. While moral constructivist views in general are consistent with a variety of “top-down” accounts, my particular preferred “top-down theory” is a version of rule consequentialism similar to that found in J. S. Mill's discussion of the relationship between justice and utility in which Mill says that “When we call anything a person's right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law or by that of education and opinion”(Mill [1863] 1971: 50). My main quarrel with rule utilitarianism concerns the theory of the good. Human rights have as their goal eliminating particular kinds of systematic oppression, but this good is but a particular (albeit very important) good among many other valuable goods. Different kinds of valuable goods have different means by which they are protected by society and their enjoyment secured. If one combines pluralism about ultimate values or interests with a rule consequentialist view of norms, and a theory about the institutional regimes that are designed to implement them, one gets something like my constructivist account.

13. Consilience is the property of some scientific theories to be supported by a number of independent and distinct lines of evidence or reasoning. It is an important notion in science because the presence of consilience gives theories the “ring of truth” (Wilson 1998). One can, I believe, extend this concept to the normative realm and speak of moral and legal norms as anchored by means of the multiple independent values they promote or protect.

14. By “cosmopolitan” I mean a system that treats the entire planet as a single nation and all human beings as its citizens. The current system created by the United Nations is based on the assumption of a world order consisting of sovereign independent territorial nation states that are supposed to cooperate to enforce internationally recognized human rights and humanitarian norms but, generally speaking, do not effectively do so.