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Three Human Rights Agendas

Published online by Cambridge University Press:  20 July 2015

David A. Reidy
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Extract

In this paper I distinguish between three conceptions of human rights and thus three human rights agendas. Each is compatible with the others, but distinguishing each from the others has important theoretical and practical advantages. The first conception concerns those human rights tied to natural duties binding all persons to one another independent of and prior to any institutional context and the violation of which would “shock the conscience” of any morally competent person. The second concerns the institutional conditions necessary and sufficient for particularist legal and political obligations to take on prima facie moral force so that the members of different polities face one another in an asymmetric moral relationship, with each side having a rightful claim to political self-determination. The third concerns those human rights arising exclusively as a matter of positive international law out of the voluntary undertakings of legitimate polities within the international order. Each of these different conceptions is tied to a different human rights agenda. The second is tied to the struggle to realize recognitional norms of legitimacy within the international order. The third is tied to the ongoing effort to incorporate into positive international law through voluntary initiative an ever expanding moral consensus between legitimate polities. The first is tied to the emerging practice of humanitarian intervention and system of international criminal liability. Thus, while all human rights share certain features - they’re universal, and so on - human rights differ in important ways. Attending to these differences would likely improve both the theory and practice of human rights.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 19 , Issue 2 , July 2006 , pp. 237 - 254
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2006

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References

1. The alternative is Rawlsian, at least on my understanding of Rawls’s, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999)Google Scholar. I have taken some initial steps toward its articulation and defense in “Rawls on International Justice: A Defense” (2004) 32:3 Pol. Theory 291 Google Scholar; “An Internationalist Conception of Human Rights” (2005) 36:4 Phil. Forum 367 Google Scholar; “Global Economic Justice: In Defense of Rawls” Ethics, J. [forthcoming]Google Scholar; and “Political Authority and Human Rights” in Martin, Rex & Reidy, David, eds., Rawls’s Law of Peoples: A Realistic Utopia? (Oxford: Blackwell, 2006)CrossRefGoogle Scholar. I do not defend in this paper the Rawlsian pedigree of this alternative approach. My aim is instead to give it a fuller, deeper and more compelling articulation than I have been able to heretofore. Readers interested in whether it is genuinely a Rawlsian view should consult the works mentioned above.

I should note here also that certain central methodological aspects of my thinking in this essay have recently been given voice in two recent and highly instructive papers, the first by Nagel, Thomas, “The Problem of Global Justice” (2005) 33:2 Phil. & Pub. Affairs 113 Google Scholar, and the second by James, Aaron, “Constructing Justice for Existing Practice: Rawls and the Status Quo” (2005) 33:3 Phil. & Pub. Affairs 281 CrossRefGoogle Scholar.

2. I use the phrase “constructive interpretation” in the Dworkinian sense. See, Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 52–53 Google Scholar.

3. The idea that some obligations within the international legal order are erga omnes, while at least thirty five years old remains controversial and the object of disagreement. For discussion, see, Tams, Christian, Enforcing Obligations Erga Omnes in International Law (Cambridge: Cambridge University Press, 2005)CrossRefGoogle Scholar; Ragazzi, Maurizio, The Concept of International Obligations Erga Omnes (Oxford: Oxford University Press, 1997)Google Scholar; and Hoogh, Andre de, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (Boston, MA: Kluwer Law International, 1996)Google Scholar. See also, May, Larry, Crimes Against Humanity: A Normative Account (Cambridge: Cambridge University Press, 2004).CrossRefGoogle Scholar

4. Here I draw on Rawls’s idea(l) of well-orderedness. See, Rawls, John, Political Liberalism (New York: Columbia University Press, 1993) at 35.Google Scholar

5. Here I draw from, but do not follow in all particulars, arguments advanced by Raz, Joseph, “Authority and Justification” (1985) 14:1 Phil. & Pub. Affairs 3 Google Scholar; and Waldron, Jeremy, “Kant’s Legal Positivism” (1996) 109:7 Harv. L. Rev. 1535.CrossRefGoogle Scholar

6. The phrase is Rawls’s. See Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999) at 66–72 Google Scholar.

7. See, Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994) at 116-17Google Scholar.

8. Ibid. at 159-60.

9. Ibid. at 193-200.

10. Soper, Philip arrives at a similar conclusion in his A Theory of Law (Cambridge, MA: Harvard University Press, 1980).Google Scholar

11. For example, though not set out explicitly, the right against coerced self-incrimination is surely entailed by Article 11 of the UDHR, which affirms the right to be presumed innocent until proved guilty in a public trial.

12. Shue, Henry, Basic Rights: Subsistence, Affluence and US Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996)Google Scholar. It bears remembering, however, that Shue’s thesis is a conditional, namely that if there are any human (or in a domestic context, civil or constitutional) rights at all, then the basic rights he identifies must be among them since they are literally ingredient in any and every other right a person might enjoy. Shue’s focus is not on the institutional and social conditions necessary and sufficient for the natural duty of justice to deliver to political and legal obligations prima facie moral force qua political and legal obligations.