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Minimalism, Determinacy, and Human Rights

Published online by Cambridge University Press:  25 February 2021

Robert Mark Simpson
Robert Mark Simpson*
Affiliation:
Robert Mark Simpson, Associate Professor, University College London Philosophy Department, London, United Kingdom. [email protected]
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Extract

According to a widely-shared view, human rights encompass a very limited range of ethical concerns: not all human interests, only urgent interests;1 not our preferences, only our needs;2 not all wrongs, only severe injustices;3 not a good life in the fullest sense, but only a minimally decent or autonomous life.4 In short, human rights are not about realizing the best, they are about shielding us from the worst. I will call this general theoretical stance Minimalism.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 34 , Issue 1 , February 2021 , pp. 149 - 169
Copyright
© The Author(s) 2021

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Footnotes

For comments and feedback on earlier versions of this article I am grateful to an anonymous referee and the editors of this journal, as well as audiences at the Durham University Law School in 2019, the Australian Association of Philosophy Conference at Monash University in 2016, and the American Philosophical Association Pacific Division meeting in 2016. This paper started life as a co-authored piece of writing with Adam Etinson. Eventually he and I realized that our views were a bit too out of sync to make the co-authoring feasible. But I am immensely grateful to Adam for the many fertile discussions we had about these issues, and for the work he contributed to earlier versions of this paper. Of course I take full responsibility for the views in the paper and any problems with them.

References

1. Charles R Beitz, The Idea of Human Rights (Oxford University Press, 2009) at 110.

2. See David Miller, “Grounding human rights” (2012) 15:4 Critical Rev of Int’l Social and Political Philosophy 407.

3. James W Nickel, Making Sense of Human Rights (Wiley-Blackwell, 2007) at 36-37 and Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed (Princeton University Press, 1996) at xi.

4. Nickel, supra note 3 at 36; James Griffin, On Human Rights (Oxford University Press, 2008) at 53; Michael Ignatieff et al, Human Rights as Politics and Idolatry (Princeton University Press, 2001) at 56-57.

5. CESCR General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), UNESCOR, 1990, UN Doc E/1991/23.

6. Charles Beitz, “What human rights mean” (2003) 132:1 Daedalus 36 at 39.

7. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS No 14531, art 12.1, (entered into force 3 January 1976) [ICESCR].

8. Ibid at art 13.2 (c).

9. In 2016 the UN Human Rights Council issued a non-binding resolution condemning government disruption of internet access, which was reported in the media as an informal declaration of ‘the right to internet access’; see The Promotion, Protection and Enjoyment of Human Rights on the Internet, GA Res A/HRC/32/13, UNHCROR, 32nd Sess, (2016).

10. See UN Convention on the Rights of the Child, 20 November 1989, 1577 UNTS No 27531, (entered into force 2 September 1990), Preamble.

11. That is, “the gradual addition of new tasks or activities to a project so that the original purpose or idea begins to be lost”: Cambridge Dictionary, online at dictionary.cambridge.org/dictionary/english/mission-creep.

12. For influential theories of human rights underpinned by the Political Conception, see John Rawls, The Law of Peoples (Harvard University Press, 1999); Joseph Raz, “Human Rights without Foundations” in Samantha Besson & John Tasioulas, eds, The Philosophy of International Law (Oxford University Press, 2010) 321; Beitz, supra note 1.

13. For a brief overview, see James Nickel, “Human Rights” (2019) Section 2, online at Stanford Encyclopedia of Philosophy plato.stanford.edu/archives/sum2019/entries/rights-human/. To be clear, the Naturalistic Conception need not promise to deliver a completely abstract a priori theory of what human rights are. Some who favour this approach think that practical considerations have a secondary role to play in informing our understanding of what human rights are, e. g., Griffin’s view that human rights are about protecting people’s capacity for agency but in a way that is broadly practicable under existing conditions.

14. Adam Etinson & S Matthew Liao, “Political and Naturalistic Conceptions of Human Rights: A False Polemic?” (2012) 9:1 J Moral Philosophy 327 at 334-36.

15. See John Finnis, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 2011).

16. See Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press, 2010) at 227.

17. Nickel, supra note 3 at 98-103. See Ignatieff, supra note 4 for another description of Ultraminimalism. It is unclear exactly how few rights one would have to posit in order to qualify as an Ultraminimalist. We could say that a list of human rights is Ultraminimal if—like Rawls’s list, in The Law of Peoples—it has fewer entries than the articles of the Universal Declaration of Human Rights. See Rawls, supra note 12 at 65. But this seems arbitrary, in a way that any comparative numerical criterion is bound to replicate. Nevertheless, it does seem like a noteworthy feature of some theories of human rights, including Rawls’s, that instead of programmatically generating an open-ended list of rights claims, they insist upon a small (and non-open-ended) number of rights claims. In any case, my point here is simply that a Minimalistic account of human rights won’t necessarily possess this feature.

18. I am glossing over some complex questions about what it means for human rights to ‘realize’, ‘ensure’, or ‘facilitate’ a given standard of life. I have described Minimalism as the view that the realization of human rights standards doesn’t ensure people a good or flourishing life, but merely aims to facilitate a decent life. But these terms do not precisely capture the complexity of the relation in question. If we say that human rights are supposed to facilitate a decent life, this may suggest, misleadingly, that the general upholding of human rights in fact is sufficient for everyone to attain a decent life. But people can have flourishing lives while experiencing human rights violations, and people whose human rights are upheld can have an abject existence. Respect for a person’s human rights is thus neither necessary nor sufficient for that person attaining whatever positive state of existence human rights are supposed to enable; see Rowan Cruft, “From a Good Life to Human Rights: Some Complications” in Rowan Cruft, S Matthew Liao & Massimo Renzo, eds, Philosophical Foundations of Human Rights (Oxford University Press, 2015) 101. Matthew Liao tries to offer a more nuanced specification of the relation in question. Liao says human rights protect an adequate range of the fundamental conditions needed to pursue the basic activities that are essential to human beings qua human beings; see S Matthew Liao, “Human Rights as Fundamental Conditions for a Good Life” in Rowan Cruft, S Matthew Liao & Massimo Renzo, eds, Philosophical Foundations of Human Rights (Oxford University Press, 2015) 79. According to Cruft, Liao’s specification of the relation implies a controversial form of value pluralism. But my arguments ultimately do not hinge on the resolution of this issue, because what defines Minimalism is its claim about which standard of life human rights are supposed to enable, not a claim about the nature of the relation between human rights and the standard of life they’re supposed to enable. Whatever the best specification of the relevant relation is—exactly how human rights enable a given standard of life—we can use it to differentiate Minimalism from non-Minimalist approaches.

19. Nickel, supra note 3 at 36-37.

20. S Matthew Liao, The Right to Be Loved (Oxford University Press, 2015) at 39-73.

21. Ignatieff, supra note 4 at 56.

22. Griffin, supra note 4 at 53.

23. See Miller, supra note 2.

24. George Kateb, Human Dignity (Harvard University Press, 2011) at 17 and Katrin Flikschuh, “Human Rights in Kantian Mode: A Sketch” in Rowan Cruft, S Matthew Liao & Massimo Renzo, eds, Philosophical Foundations of Human Rights (Oxford University Press, 2015) 653.

25. Joshua Cohen, “Minimalism About Human Rights: The Most We Can Hope For?” (2004) 12:2 J Political Philosophy 190 at 192.

26. For instance, Nickel favours Minimalism because it ensures that human rights are concerned only with “very severe problems”; see Nickel, supra note 3 at 56. Griffin focuses on the Minimalist value of personhood partly because of its “special importance”; see Griffin, supra note 4 at 36. Miller focuses on things that are “an essential element in human life”, and thus he favours a Minimalist, needs-oriented account of human rights; see Miller, supra note 2 at 412.

27. Nickel, supra note 3 at 56; Beitz, supra note 1 at 109.

28. Maurice Cranston, “Are There Any Human Rights?” (1983) 112:4 Daedalus 1 at 13.

29. For further discussion of these complexities, see Pablo Gilabert, “The Feasibility of Basic Socioeconomic Human Rights: A Conceptual Exploration” (2009) 59:237 The Philosophical Quarterly 659 at 664-68.

30. Nickel, supra note 3 at 36-37.

31. We should distinguish the type of Minimalism that I am discussing—what Joshua Cohen calls Substantive Minimalism—from a related but different view, which Cohen calls Justificatory Minimalism. Whereas the former sets limits on the content of human rights claims, Justificatory Minimalism sets limits upon how we justify those claims. It says theories of human rights should provide us with “a conception of human rights without … connecting that conception to a particular ethical or religious outlook”; the Justificatory Minimalist “minimizes theoretical aspirations in the statement of the conception of human rights with the aim of presenting a conception that is capable of winning broader public allegiance”; see Cohen, supra note 25 at 192. A number of theorists see Justificatory Minimalism as integral to the idea of human rights; besides Cohen, see Rawls, supra note 12 at 121-22. (But for an opposing view, see Etinson & Liao, supra note 14 at 334-36.) There is also evidence that key human rights texts, like the 1948 Universal Declaration of Human Rights [UDHR], aspired to Justificatory Minimalism. Jacques Maritain famously reported that drafters of the UDHR were able to agree on the rights only “on the condition no one asks us why”; see Jacques Maritain, Human Rights: Comments and Interpretations (Wingate, 1949) at 9. The merits of Substantive Minimalism that relate to its focus on the morally uncontroversial are separable from whatever considerations may be invoked to argue for Justificatory Minimalism.

32. See, e. g., Ignatieff, supra note 4 at 56-57; Beitz, supra note 1 at 126-59; Rawls, supra note 12 at 65; Martha Nussbaum, Creating Capabilities: The Human Development Approach (Harvard University Press, 2011) at 101-112; John Tasioulas, “From Utopia to Kazanistan: John Rawls and the Law of Peoples” (2002) 22:2 Oxford J Leg Stud 367 at 390-95.

33. See, e. g., Cranston, supra note 28; Ignatieff, supra note 4. Shue is one author who questions the plausibility of distinguishing liberty and welfare rights by virtue of their positive or negative character. As he says, representative cases of both types of rights generate both positive and negative duties; see Shue, supra note 3 at 19. Still, the distinction that is conventionally marked by these terms is a helpful way of referring to two broad classes of rights we sometimes want to differentiate. My point here is that however we may try to formally distinguish those classes, it won’t be the case that Minimalism is only concerned with one of the classes.

34. Ibid.

35. Griffin’s agency-based account says that human rights shouldn’t only generate bare guarantees of non-interference in the exercise of one’s agency. Rather, Griffin says, they should also guarantee basic resources like food, education, and healthcare that are necessary for the actual realization of people’s agency; see Griffin, supra note 4 at 33. Nussbaum characterizes human rights as the essential requirements for pursuing ‘central human capabilities’—i.e. activities central to human life itself, like reasoning, affiliating with others, and engaging in some forms of recreation—and she says that the realization of these capabilities requires both negative rights of non-interference as well as positive forms of resource-provision; see Martha C Nussbaum, “Capabilities and Human Rights” (1997) 66:1 Fordham L Rev 273 at 287-88. Liao’s theory stresses the provision of the freedoms and resources necessary to pursue the basic activities which are fundamental to any good life—but not those needed in order to enjoy an excellent life; see Liao, supra note 20 at 41-46.

36. Shue, supra note 3 at xi.

37. On Michael Walzer’s alternative formulation, the moral minimum is a set of demands that all or nearly all cultures accept, despite their cultural differences; see Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (University of Notre Dame Press, 1994) at 9-10. One may argue that Minimalism is committed to the moral minimum in this sense. It is a condition of something being a human right that it is a right whose demands are accepted by nearly all cultures. But this also seems like it would be mistaking a contingent relation for a necessary one. We are more likely to find consensus across cultures about the demands of a minimally decent life, than about the nature of a good or flourishing life. But even if there are some demands accepted by nearly all cultures, there is no a priori guarantee that they will include the provision of the conditions needed to facilitate a minimally decent human existence.

38. See Onora O’Neill, “The dark side of human rights” (2005) 81:2 Int’l Affairs 427.

39. Eric A Posner, The Twilight of Human Rights Law (Oxford University Press, 2014) at 137.

40. Even in circumstances in which no actor can plausibly be nominated as the correlative duty-bearer for a particular rights claim, it doesn’t necessarily follow that the rights claim is illegitimate. Granted, it is no good postulating that there is a human right to x if we cannot specify any correlative duties for supplying or securing x. But to say that we must specify such duties doesn’t mean that we must also be in a position to assign those duties right away to particular duty-bearers. Instead, as Jeremy Waldron says, the postulation of a human right to x can provide us with impetus to seek out duty-bearers to assume the responsibilities that the right to x implies, e. g., by establishing institutions aimed at securing the provision of x; see Jeremy Waldron, “Duty-bearers for Positive Rights” (October 15, 2014) NYU School of Law, Public Law Research Paper No. 14-58, online at SSRN https://ssrn.com/abstract=2510506.

41. United Nations, “Universal Declaration of Human Rights” (1948), Article 25, online at https://www.un.org/en/universal-declaration-human-rights/.

42. For a discussion of these uses of abstraction, see Adam Etinson, “Human Rights, Claimability and the Uses of Abstraction” (2013) 25:4 Utilitas 463.

43. For example, Griffin says “we know perfectly well what makes an act ‘courageous’ or ‘considerate’”, whereas when it comes to the application of the term human right, “there are unusually few criteria for determining when the term is used correctly and when incorrectly”; Griffin, supra note 4 at 14-15. Griffin’s point isn’t merely that people disagree about the legitimacy of specific human rights claims. We may find ourselves looking at two rival accounts of human rights, offering different verdicts about the legitimacy of specific human rights claims, based on alternative sets of criteria for assessing what makes a human rights claim legitimate. That kind of disagreement about how to apply the concept of a human right would be perfectly fine and unremarkable. It is the kind of disagreement we have over the application of some of our most commonly-used concepts, like justice or wrongness. Griffin’s point, however, is that disagreements about the legitimacy of contested human rights claims generally isn’t like this. These disagreements owe largely to the fact that we often don’t posit clear criteria for assessing the legitimacy of human rights claims, and indeed, haven’t even properly settled the scope of the subject matter we are trying to advert to using the contested terminology. For an earlier discussion of similar concerns, see Philip Alston, “Conjuring Up New Human Rights: A Proposal for Quality Control” (1984) 78:3 Am J Intl L 607.

44. For arguments along these lines, see Alston, ibid at 618-21.

45. For further discussion, see Griffin, supra note 4 at 14; Allen Buchanan, “Human Rights and the Legitimacy of the International Order” (2008) 14:1 Legal Theory 39; Jürgen Habermas, “Remarks on Legitimation through Human Rights” in M Pensky, ed, The Postnational Constellation: Political Essays (MIT Press, 2001) 113. Obviously there are some complications lurking beneath the surface here. A philosophical account of human rights that resolves issues of scope determinacy is no good unless it also achieves a reasonable level of ‘fit’ with commonly held understandings about what human rights are. If an account of human rights fails in this regard, it will strike us as being a theory of something else—some philosophical construct that only nominally relates to ordinary discourse about human rights; see Adam Etinson, “On Being Faithful to the ‘Practice’: A Response to Nickel” in A Etinson, ed, Human Rights: Moral or Political? (Oxford University Press, 2018) 160.

46. To be clear, Supraminimalism thus defined is not a straw person. With respect to human rights practice and human rights law, it is a position that is reflected in the widespread acceptance of human rights claims that manifestly purport to facilitate something better than a minimally decent existence, including several of the examples mentioned in section 1, e. g., the ICESCR’s professed human right to the highest attainable standard of health. See ICESCR, supra note 7, art 12.1. Supraminimalism is further recommended by philosophical theories of human rights that take the contemporary Supraminimalist human rights practice as a guiding template for a theoretical specification of the scope of human rights, in particular Beitz, The Idea of Human Rights, supra note 1. And Supraminimalism is defended on independent theoretical grounds in a number of philosophical theories of human rights, including Greg Dinsmore, “Debate: When Less Really is Less: What’s Wrong with Minimalist Approaches to Human Rights” (2007) 15:4 J Political Philosophy 473 and Etinson, supra note 42.

47. Constitution of Ireland (last amended June 2004), 1 July 1937, art 42.3.2.

48. ICESCR, supra note 7, art 13.1.

49. Human rights express underlying values that are themselves subject to ongoing investigation. For example, if the right to privacy is underwritten by the value of dignity, then the requirements of the right depends on the nature of dignity. And the articulation of these connections is open-ended, because the nature of our underlying values is always open to philosophical debate, which leaves room for ‘judgment calls’ about the demands of the right—e.g., in the case of the right to privacy, whether it is compatible with various forms of ‘deep state’ surveillance. Although I have been emphasizing practical issues, we should also recognize that the practical indeterminacies facing a Supraminimalist approach aren’t just about the means that we use to pursue our ends, they are also about the content of the ends themselves: the nature of the values or goods that are secured by human rights, and the extent of people’s entitlement to them. For a discussion of how underlying values affect the practical specification of human rights claims, see Saladin Meckled-Garcia, “Specifying Human Rights” in Rowan Cruft, S Matthew Liao, & Massimo Renzo, eds, Philosophical Foundations of Human Rights (Oxford University Press, 2015) 300.

50. For further discussion of these burdens, see Posner, supra note 39 ch 2 & 3.

51. There are ways of cashing out this claim that would amount to an assertion of value pluralism, i. e. the view that there is “an irreducible plurality of values or principles that are relevant to moral judgment”; see Susan Wolf, “Two Levels of Pluralism” (1992) 102:4 Ethics 785 at 785. To be clear, I am not meaning to commit myself to this view in the argument I’m making here. Consider the non-pluralist—the monist—who believes that there is a singular value that is relevant to moral judgement, which, if clearly apprehended, could settle all debates about the requirements of an okay life. Even the most resolute monist should recognize that in disagreements about questions of value in the actual world, where foundational ethical issues are a matter of perennial debate, we are nearly always unable to identify considerations that rationally compel the assent of all sincere and well-informed parties on these questions. When I say that there is room for reasonable disagreement about the requirements of an okay life, all I mean to be committing myself to are these kinds of relatively uncontroversial points, about the inescapability of real-world moral disagreement between apparently reasonable people.

52. To express cautious optimism in this direction isn’t to accept any strong thesis about the universality of human rights standards. As my discussion indicates, I think adherents of different worldviews have genuine disagreements about the normative issues that human rights standards seek to address. Where consensus is achievable, it is to be achieved not by effacing these differences, but by finding compromises and adaptable normative standards that are acceptable to all parties. As Sen puts it, parochiality and partisanship in human rights standards can be avoided “not so much by taking either a conjunction, or an intersection, of the views respectively held by dominant voices in different societies across the world…, but through an interactive process, … examining what would survive in public discussion, given a reasonably free flow of information and uncurbed opportunity to discuss differing points of view”; see Amartya Sen, “Elements of a Theory of Human Rights” (2004) 32:4 Philosophy and Public Affairs 315 at 320.

53. There is a somewhat flat-footed reply available here. One might simply say: “it cannot be that hard to achieve agreement about these matters; after all, look at all these international human rights treaties that have been signed by most or all UN member states”. But this line of reasoning moves far too quickly. It is hard to tell what degree of common understanding about the nature of an okay human life is indicated by countries entering into human rights treaties. One complicating factor is that states often register formal reservations that limit their treaty obligations. Another complicating factor is that states often enter these treaties under various forms of external duress. (On both of these points, see Chapter 2 of Posner, supra note 39). There are too many complicating factors in the vicinity to suppose that the point I’m making in the main text can be easily undermined by this kind of flat-footed objection.

54. There are arguments against Minimalism that I haven’t discussed, including the argument that Minimalism is in a certain sense self-defeating. The argument, roughly, is that if human rights standards are only activated in the most urgent circumstances—in attempts to remedy atrocities, severe injustices, and moments of total political chaos—then they will seldom be realizable or enforceable. As one author says, then, “the minimalist conception of rights stakes its claims in precisely the situations where they are most likely to fail, further undermining the human rights project”; see Dinsmore, supra note 46 at 473.

55. See Etinson, supra note 45.

56. To quote Amartya Sen, echoing Marx, the appeal to human rights comes “mostly from those who are concerned with changing the world rather than interpreting it”; see Sen, supra note 52 at 317.