Are Human Rights Liberal?

Abstract

This paper provides a liberal critique of paternalistic tendencies in the contemporary human rights concept. In contrast to familiar arguments that the paternalism of human rights comes from a false universalism, concealing a culturally specific normativity or gender inequality, I critique what I take to be the way contemporary human rights thinking reconceives of the rights-bearer. First, the theory reconceives of the rights-bearing subject not as a self-willing moral agent but as a needy individual whose vital interests need protection. Second, this reconceptualization of rights opens the door for a paternalistic political practice, in which an external, third party “exercises” the rights rather than the rights-bearing subject himself. Together, these moves are at odds both with the emphasis in earlier liberal thought on the self-willing moral agent as the foundation of rights, and with the antipaternalistic politics connected to this view of the rights-bearer. The thrust of the argument is not that universal human rights embody a false universalism or have an inherent tendency to violate their own pretensions to liberty and equality, but rather that there is something problematic in the generalization of a recent, but predominant, view of the rights-bearer. This critique bears some similarity with a radical criticism of human rights common today, but, in contrast to these anti-liberal critics, I wish to show why a liberal should be concerned with the ascendant way of thinking about the rights-bearer. In the first two sections of this paper I discuss the modernity of rights and outline the classic liberal view. In the third section I analyze the way contemporary human rights depart from earlier liberal conceptions of the dignity of the rights-bearing subject. In the fourth, I discuss how this reconceptualization has paternalistic implications that liberals should find troubling.

Acknowledgement

The author would like to thank Jean Cohen, James Ingram, David Johnston, Peter Ramsay, and Jeremy Waldron for their very thoughtful comments on earlier drafts.

Alex Gourevitch is a PhD student in political theory at Columbia University, and a Tutor in Social Studies at Harvard University. His research interests include democratic theory, theories of law and sovereignty, and American political thought. He is writing a dissertation on the revival of republicanism in political and legal thought, and is the coeditor of Politics Without Sovereignty: A Critique of Contemporary International Relations (London: Routledge, 2007).

Notes

1. The classic argument that social rights are consistent with liberal citizenship is (Marshall 1950). See also the earlier statements by British liberals (Green 1998/1861; Hobhouse 1911). For a contemporary version of the argument see Shue (1996) and Donnelly (2003).

2. The founding and still enduring statements on the gendered nature of liberal thought in general, and human rights in particular, are (Pateman 1988; Okin 1989; Mackinnon 1987, 1989). I have taken the language of sexual contract and patriarchal right from Pateman. For a good introduction to the feminist debates on liberalism see Kymlicka (2002: Chapter 9).

3. For a defense of human rights as “ethnocentric” ideals that the West should impose on others, see Rorty (1993). For a more critical take on the culturally specific and potentially paternalistic dimensions of liberal rights, see Mehta (1999).

4. See also Heartfield (1996). Heartfield's emphasis is on the erosion of the legal subject in feminist and poststructuralist critiques and reformulations of liberal rights. Along with Heartfield and Chandler, I seek to extend this analysis of the separation of rights-bearing capacity and agency in the reconceptualization of human rights.

5. For one account of how the introduction of money into the state of nature transcends the scarcity and waste provisions see Macpherson (1964: Chapter 5).

6. Hegel is a borderline figure in the liberal tradition. But for the issues raised in this paper, particularly given his view of right and freedom, he is fairly included.

7. See Hegel's comments on the “rabble of paupers” (Hegel 1991/1821: 150).

8. In the division between “Part I: Abstract Right” and “Part II: Moralitat,” Hegel organizes Philosophy of Right such that welfare lies outside the sphere of right. While discussing that the indigent might understandably steal bread to survive, acting out of necessity places him outside the sphere of freedom, and is still a violation of right: “an intention to secure my welfare or that of others… cannot justify an action which is wrong” (Hegel 1991/1821: 85).

9. For instance, Kant's rejection of the principle of happiness as the positive aim of government, and his desire to protect the system of right, does not mean he was a pure libertarian. As Alexander Kaufman has shown, Kant accepts certain forms of welfare provision insofar as they are necessary for or supportive of the system of right, or because they follow from the demands of justice. On this basis, Kant does recommend certain forms of welfare provision such as state-funded education, adequate health care, and income maintenance for the poor (Kaufman 1999).

10. There is more to the relation between welfare and liberty than can be address in this essay. However, some welfare provision is consistent with the understanding of liberal rights being advanced here so long as these goods are not confused with rights themselves. Hegel, for instance, suggests that welfare provision within the Corporation is not humiliating or demeaning because relations remain on a level of reciprocity and mutuality, rather than unequal paternalism (Hegel 1991/1821: 154). T. H. Green, in his “Lecture on Liberal Legislation And Freedom of Contract,” famously argued:

• Our modern legislation then with reference to labour, and education, and health, involving as it does manifold interference with freedom of contract, is justified on the ground that it is the business of the state, not indeed directly to promote moral goodness, for that, from the very nature of moral goodness, it cannot do, but to maintain the conditions without which a free exercise of the human faculties is impossible. (Green 1998/1861: 374)

Green thought various kinds of welfare may be necessary to make freedom effective, but not if this welfare is seen as specifying what is good for man. Such goods, moreover, are secondary to and derivative from rights, and a product of legislation, rather than something that attaches to individuals by their very nature as rights-bearers. Similarly, Rawls argues that a number of primary goods are necessary “to secure the fair value of the basic liberties” (Rawls 2001: 148). Like his predecessors, Rawls conceptually distinguishes these primary goods from basic liberties because he wishes to emphasize the primary character of rights, and their special function as a political morality protecting individual freedom. Unlike the contemporary human rights concept, or the interest-theory of rights, these welfare goods are not part of a comprehensive view of what it means to live a “dignified” life, or what are the fundamental needs of a human being. They are contingently related to what is necessary to make rights effective.

11. Hegel absorbs this point from earlier liberals when he argues that it is only in modern life that a contradiction between liberty and welfare appears. No matter how much the state provides for the well-being of the individual, if it cannot be traced back to his own efforts, then there is a way in which welfare provision, on its own, fails to respect the person's liberty: “that feeling of right, integrity, and honour which comes from supporting oneself by one's own activity and work is lost” (Hegel 1991/[1821: 266).

12. This does not mean liberalism is insensitive to any other moral language, but merely that rights are specially appropriate as a political morality, and that other moral ideas—perhaps humanitarian duties like the “duty to rescue”—should not be expressed in terms of rights.

13. It is important to note that there is a separate but related “capabilities” approach to rights, advanced primarily by Amartya Sen and Martha Nussbaum (Nussbaum 1997, 2007; Sen 1982, 1984). It is beyond the scope of this paper to give this approach full, independent treatment. In one sense, it is a freestanding conception of justice and policy standing outside conventional rights theories, but also is a different way of filling out what human rights are. See for instance (Nussbaum 1997: 273–288; Sen 2005). It is similar to the “dignity” approach insofar as it attempts to provide the grounds for thinking through the basis for social, economical, and cultural rights, but shares with the “liberty” approach the idea that what is at stake is securing the conditions for human freedom (e.g., Sen 1992, 1999). Since the central issue I am trying to draw out is how to conceive of the rights-bearer as someone worthy of bearing rights in the first place, and what sorts of capacities are required to be identified as having rights, I have focused on those rights-theories that have made this a central concern. That concern has been less central to the capabilities approach and, despite its many insights, it is not clear how much distinctive it has to say about that particular matter. Moreover, the capabilities approach has presented itself as a kind of synthesis and resolution to problems that this essay aims to show are not so easily resolved. Indeed, to the extent that the capabilities approach has offered itself as a superior way of thinking about “what is involved in securing a right” (Nussbaum 1997: 293), it shares with the interest-theory the potential problem of decoupling the rights-bearer's agency from the acts of power by which his rights are “secured,” and thus reintroducing a paternal dimension to the internationally exercise of power despite the avowed commitment of the capabilities approach to democratic government.

14. For an analysis of the dignity concept see Schachter (1983) and Neuman (2000). It is important to note that dignity and liberty are not inherently conflictual. Kant, for instance, saw the dignity of the individual to rest in his capacity for autonomy.

15. Raz suggests this individualism is also a limit of rights. For there are certain goods that can only be enjoyed collectively and that government may have a duty to provide even though they cannot be understood in terms of the individual rights of each of its subjects (Raz 1986: 202).

16. It is true that there are other accounts of the moral force of rights, not all of which can be addressed here; though I should want to maintain the connection to liberty here. Nussbaum, for instance, believes it is neither the relationship to formal properties of law, nor to the autonomous subject itself, but that it is simply the clearest vocabulary for expressing “the justified claim that all humans have to such things, by virtue of being human” (Nussbaum 1997: 196). Yet this way of putting it is a bit question begging, because the issue at hand is what exactly this “virtue of being human” is. For instance, is it that we just all accept, in some overlapping consensus, that human beings have dignity, and we express that dignity with a special political morality, called rights? Or is it that we use the concept of rights to express this “virtue of being human” because rights are conceptually linked to the moral agency of the person, as opposed to some other quality? It could also be that the moral force of the concept of rights derives from a deeper moral understanding of how it is right to live. In our society, it is a right to live a free life, and that is why human rights, at least insofar as they are fundamentally connected to liberty, appear inviolable. That might very well not conflict with the will-theory at all, so much as provide it extra moral depth. And again, the important question is still, if in modern society the right way to live is a free life (rather than a life that displays classical virtues, or submits to the authority of God and his representatives on earth), why is the language of rights the way in which to express that idea. I am grateful to an anonymous reviewer for having pointed me to this point.

17. For reasons of space I cannot here address Jurgen Habermas' distinctive approach to this question, which attempts to reconcile this conflict by suggesting human rights are moral in their mode of justification but juridical in their structure. The difference here is that Habermas' discourse-theoretic interpretation of rights displaces the foundation of rights from the qualities of the rights-bearing subject to the presuppositions of a prior, “higher” intersubjectivity (Habermas 2001a: Chapter 3).

18. Here I follow Jeremy Waldron's argument (Waldron 1993).

19. This also is one of Habermas' arguments regarding the “moral unburdening” effect of law (Habermas 2001a: 114–118).

20. The literature on the relation between liberal rights and democracy is vast. For recent, and opposing treatments on the subject contrast (Wolin 2004: 257–314; Habermas 2001b: 113–129; Waldron 1998).

21. It is impossible fully to redeem this claim, but it is the sort of argument Jeremy Waldron seems to have in mind with his critique of judicial review in Law and Disagreement (Waldron 1999: esp. Part III).

22. It is worth reiterating Waldron's point that though democracy, or more broadly the separation of the “political” and the “moral,” seems to have a relativistic dimension, it does not entail an abandonment of moral objectivity. It is a response to implacable disagreement about morality (Waldron 1998: 322).

23. On the unaccountability of NGOs, see Ignatieff (2001: 10) on “idolatry” passim.

24. The name “European Raj” comes from a widely distributed paper circulated some years ago by the European Strategic Initiative critiquing the current High Representative in Bosnia and Herzegovina Lord Paddy Ashdown (Knaus 2003: 14). Subsequently, a panel of senior politicians and experts called peacekeeping in the Balkans a failure. They argued instead for dismantling of the high representative's office and transferring administrative control to Brussels (Traynor 2005).

25. Ignatieff cites Shklar in the above quoted passage on “gross physical cruelty.”

26. Commentators will point to Locke's proviso that the “fundamental natural law… is to govern even the Legislative it self” (Locke 1996/1689: 356). See also Constant (1988/1815).

27. This is the view of those who see the Constitution as a kind of “precommitment” and an institution like the Supreme Court as entrusted to protect and enforce this precommitment against the vagaries of majoritarianism (Elster 1984; Ackerman 1993).

28. This is the issue Ignatieff addresses in Human Rights as Politics and Idolatry.

29. I must present this claim with some hesitancy since a full history of liberalism as a tradition, or combination of traditions, is beyond the scope of this paper. I seek to isolate a few very important aspects of this tradition. Besides evident differences amongst, say, Locke, Hobhouse, Dewey, and Hayek, the secondary literature on liberalism frequently identifies different strands, either in terms of different national/continental histories or normative emphases. See, for example, De Ruggiero (1981), Laski (1947), and Lowi (1969).