Part II - Justification

4 Far from Obvious The Quest for the Justification of Human Rights

Die Leute glauben, unser Tun und Schaffen sei eitel Wahl, aus dem Vorrat der neuen Ideen griffen wir eine heraus, für die wir sprechen und wirken, streiten und leiden wollten, wie etwa sonst ein Philolog sich seinen Klassiker auswählte, mit dessen Kommentierung er sich sein ganzes Leben hindurch beschäftigte – nein, wir ergreifen keine Idee, sondern die Idee ergreift uns.¹

Heinrich Heine, Vorrede zum ersten Band des Salons

Die Gesammt-Entartung des Menschen, hinab bis zu dem, was heute den socialistischen Tölpeln und Flachköpfen als ihr “Mensch der Zukunft” erscheint, – als ihr Ideal! – diese Entartung und Verkleinerung des Menschen zum vollkommenen Heerdenthiere (oder, wie sie sagen, zum Menschen der “freien Gesellschaft”), diese Verthierung des Menschen zum Zwergthiere der gleichen Rechte und Ansprüche ist möglich, es ist kein Zweifel! Wer diese Möglichkeit einmal bis zu Ende gedacht hat, kennt einen Ekel mehr, als die übrigen Menschen, – und vielleicht auch eine neue Aufgabe! …²

Friedrich Nietzsche, Jenseits von Gut und Böse

We must remember that Fascism and racism will emerge from this war not only with the bitterness of defeat but also with sweet memories of the ease with which it is possible to commit mass murder.

Vasily Grossman, The Hell of Treblinka

4.1 How to Justify Human Rights

4.1.1 An Idle Question?

The justification of human rights is no straightforward matter. This justification involves various problems that stem from different sources: Some issues are related to the specificities of human rights, some originate in fundamental questions of ethics and metaethics that are relevant for human rights but not limited to their justification, some stem from issues of human epistemology that cut across a range of fields and some even touch upon the question of the limits of human understanding.

To complicate matters yet further, there is some debate as to whether human rights require any justification at all. Maritain’s account of the by now proverbial summary of a postwar exchange of opinions on the foundation of human rights – “we agree about the rights but on condition that no one asks us why” – already has been recalled above. This summary could be interpreted as stating something even stronger than mere factual disagreement about the justification of human rights, accompanied rather luckily by a consensus about the list of rights to be protected; it could be interpreted as stating that agreement about their content is conditioned upon a lack of engagement with deeper background theories. One of the last decades’ most influential theories of political liberalism could be understood as claiming something to this effect: An “overlapping consensus” is all that is needed, and this can be achieved on the basis of different background theories within the framework of reasonable disagreement.³ Engaging with these background theories is unnecessary and may even impede such an overlapping consensus. Agnosticism about the deeper justification of human rights may turn out to be the high road to consensus about their content, which is all that matters, one could think.

When seeking to address these problems, it is useful to distinguish between justificatory theories, which will form the focus of attention in the following, and explanatory theories, some of which will be discussed in Part III below.

Justificatory theories provide normative reasons for the legitimacy of human rights, explanatory theories tell us about the causes of the existence of human rights. Many such causes can be imagined – social, historical, political, economic, anthropological, evolutionary and cognitive. There is theoretical work on the foundations of rights that combines explanations of human rights with statements about their legitimacy or illegitimacy – for example, in the genealogical revisionism discussed above as well as in other approaches that aim to defend the idea of human rights.⁴ However, none of the possible causes for the emergence of human rights as such has any bearing on the justification of human rights, as this justification ultimately is based not upon any causal account of the origin of human rights, but on the normative grounds of their legitimacy – a topic related to the intense debates about the is/ought distinction and thus full of intricacies to which we will return.

There are various justificatory theories of human rights, some with deontological or with consequentialist leanings, others from the quarters of virtue ethics or other philosophical background theories – from Marxism and Critical Theory to postmodern phenomenology. These theories naturally are very different and raise many difficult issues, both as to concrete arguments about human rights and as to theoretical background assumptions. These questions need not be necessarily linked – from a variety of theoretical points of view, conceptions of human rights can be entertained that may be open to criticism, but not because of their underlying theoretical orientation. For example, one can criticize the view that human rights should be understood solely as rights of international law and not also as rights of national constitutional law – a position that may be held from quite different theoretical points of view. Such critical analysis is possible without any need to engage with the theoretical background of this thesis. Other questions are different in kind and only can be answered if one tackles these underlying theories at least to some degree.

Accordingly, the following remarks will discuss not all but some of the currently most influential and (which is not always the same thing) the constructively most promising theoretical approaches to the justification of human rights. We will avoid theoretical overkill if a question can be answered without reference to wider theoretical frameworks, but we will not shy away from difficult philosophical questions if necessary.

The findings of our historical review form a useful starting point for this discussion. Studying the historical development of the human rights idea has given us substantial reason to believe that basic, not arbitrary intuitions about claims to fundamental human goods need to be transformed substantially before they can become ethical, political and legal principles akin to the idea of human rights. This transformation requires both a generalization of issues abstracted from the particulars of a specific case to form the material scope and a universalization of the status of being a rights-holder to establish the personal scope of these rights as moral principles. Their content needs to be determined impartially and thus objectified. Human rights have to be made the explicit objects of critical, reflective deliberation. Finally, they needed to be turned from moral ideas into political demands and finally into justiciable legal norms and working legal institutions.

Given these findings, the question is: How are we to justify such generalized, universal, objectified, impartial moral claims abstracted from specific cases that have been made explicit and turned into a transformative political agenda and ultimately powerful institutions of the law?

At least three fundamental problems can be distinguished that a theory of human rights seeking to answer this question has to deal with.

4.1.2 A Critical Theory of Human Goods

Human rights are, first, rights to something; they have a scope, an area of protection and a particular content. This protected something is of value, worth or importance to human beings – otherwise protecting it would not make any sense. The right to life, for instance, protects the good of human life, the right to freedom of speech protects the good of unfettered human expression and so on. The things protected by rights are taken (rightly or wrongly) to be important, precious, even of existential concern to human beings. Rights thus protect what this inquiry has called human goods. The term “goods” in the sense employed here encompasses anything that is of value for human beings, without any particular theoretical implications.

This starting point may seem straightforward enough, but there is a problem lurking in the background. There are important theories justifying human rights that appear to refrain from relying on such substantial theories of goods. This is hardly surprising – after all, it is widely assumed in various quarters of modern theory, not least in economics, that it is impossible to come up with any such theory because there can be no such account (or even an “objective list”) of such goods. The first line of argument against this stems from the idea of human beings’ historical and social malleability. There is obvious truth to this thesis: Human ways of living have changed radically through history and differ profoundly depending upon social circumstance. The honor of winning a knight’s tournament is currently not an important good for many people. There is a normative point as well, namely that any concrete image of what is central to being human, to human existence and to human good wrongly essentializes human beings and ossifies a certain parochial vision of human existence – say, of white male heterosexuals from elite groups of the Global North – and that this has profound illiberal consequences. These wrong conceptions of human life may serve to repress the full unfolding of new ways to pursue happiness and innovative experiments of living. From the point of view of influential theories, the prohibition of images of God thus has normative significance for the secular sphere, too, where not the image of a supreme being but the image of humans is of concern. The secular prohibition against forming a fixed image of human beings serves the demand not to reduce them to something they are not.⁵

The second line of argument against a theory of substantial human goods originates in the respect for human autonomy and diversity: How is a theory of goods possible if humans have very diverse ideas of such goods and by the basic principle of human autonomy are entitled to pursue their particular path to happiness? How can such a theory be constructed, given that this diversity seems to lead inevitably to the assumption that individual conceptions of the good are diverse and incommensurable?

Given these two assumptions of, first, a constantly changing, self-reinventing humanity and, second, the importance of autonomy, how can a theory of substantial human goods be formulated that is more than mere historical contingency and personal idiosyncrasy?

This clearly is a crucial question. What might encourage the inquiry is the recognition that such theories themselves presuppose a substantial theory of the good in their argument – the good of the liberty to invent and autonomously determine oneself. This illustrates the fact that the issue is not whether one needs a theory of human goods for a theory of human rights, but rather what the content of this theory of human goods is.

Undoubtedly, human rights protect not just any good, but a highly selective subset of all imaginable objects that are valuable to human beings in one sense or another. This is true both for moral and for legal human rights. There is neither a moral nor a legal human right to have freshly baked strawberry cake delivered to one’s office every afternoon because one (understandably) likes it so much and it fosters one’s work in the theory of law considerably, nor a moral or legal human right to see the right side (one’s own team, of course, incomparable as it surely is) always win the soccer World Cup, accompanied by a corresponding duty of the other (quite useless) teams to let it happen. Consequently, some kind of threshold criterion needs to be identified in order to determine whether a human concern is of such weight that it is a possible candidate for protection by human rights.⁶

The rights protected by law are subject to further qualifications and may be narrower than moral rights because the specific properties of legal rights need to be accounted for – for instance, institutionalized justiciability and enforceability.

Any theory of human rights therefore needs, first, a critical theory of human goods to account for the reasons for including particular goods in the catalogue of human rights in morality and law and not others. More precisely, such a theory must identify the reasons that qualify something as a potential good for protection in the first place as well as the reasons its weight is sufficient to be protected by the special means of human rights.

The details of the scope of human rights are highly contentious. They are shaped and refined daily through the work of thousands of lawyers, court decisions, legislative acts and legal, political and philosophical deliberations about old and new normative challenges. However, their core elements include respect for human beings’ particular, supreme and inalienable worth, their physical and mental integrity, freedom, equal treatment and – more controversially perhaps – the means for their physical subsistence and, more ambitiously, the minimum material conditions of a dignified life. A theory of human goods needs to consider closely why these goods are protected (in many cases uncontroversially), whether this protection is justifiable and which other goods could possibly qualify as worthy of protection.

4.1.3 A Political Theory of Human Rights

Human goods, including those that qualify as possible objects of protection as human rights, can be secured by more than one means, not only rights. Sometimes, rights are not even an option to achieve a given end, because the enjoyment of many goods very important to human beings obviously cannot be fostered by the specific normative tool of rights. For example, it is very important to be loved, but love cannot be secured by rights. The obligation of the addressee of the right and the correlative claim of the rights-holder presupposes the possibility of voluntary control of the obligatory act: ultra posse nemo obligatur. Therefore, nobody can have a duty to do something that is not a matter of their choice – as falling in love is not, if one is among the many unfortunate (or perhaps fortunate) individuals who do not possess Puck’s magic flower.

For the justification of rights, this means that we need a convincing account of the possibility and, if the possibility exists, the reasons to secure certain important goods of human beings by the particular means of rights. This is obvious for freely created, positive legal rights, which by their very nature imply a conscious choice on the part of the lawmakers. For moral rights the problem takes a slightly different turn, at least if one believes (as many do) that they are not freely created as positive legal rights but are somehow the object of cognition by thought bound by reasons and arguments, and that they are valid even if people do not think they exist – just as Jewish people’s right to life certainly existed even though many people around them in the Third Reich thought otherwise. But in the case of moral rights, too, one needs to answer the question of whether a supposed right serves morally justified ends or, on the contrary, defies such ends.

In many cases, the fact that rights do serve justified aims is not obvious. For example, one can be of the opinion that important democratic institutions should not be subjected to vilifying critique that is not based on facts. The integrity and stability of such institutions is an important good for human life – quite clearly so. But this does not mean that citizens should have a moral or legal right that others do not utter this kind of baseless, vilifying critique – at least, this is a thought upon which much of current free speech doctrine is based. One reason for this is the argument (given its canonical form by Mill) that reasonable decisions in a democracy in the long term are best served by the free exchange of ideas⁷ and not by their suppression, even if they “shock, offend and disturb,” as the ECtHR has put it.⁸ Another argument stems from the normative weight of free speech, which speaks – at least in many cases – against any control of the content of human expression because of its importance for human life.

This example shows that human rights imply prudential considerations, as in the first-mentioned argument for free speech based upon the instrumental value of the free exchange of ideas, and normative arguments – for instance, arising from the question of how to balance the normative value of individual freedom of expression and the normative value of democracy. The latter aspect already points to a problem to be discussed below: the problem of the normative principles implied in the justification of human rights.

These questions are far from trivial. In addition, on a more fundamental level, important theories forcefully deny that human rights contribute to the achievement of human goods. This is obvious for authoritarian theories of various ilk, vividly illustrated, for instance, by the critique of the ideas of the Déclaration des Droits de l’Homme et du Citoyen. This line of argument can be found in other contexts as well, however. Theories with a considerable impact on world history, such as Marxism, argued (at least in some classical forms) that freedom is an important good, even the ultimate aim of a unalienated society, but at the same time offered a radical critique of rights that still resonates today: Rights are held to be tools not for the liberation but for the repression of the working class in capitalist societies. Radical proceduralist democratic theory argues that the best way to secure human liberty is unfettered democracy, not a realm of rights. Deconstruction theories interpret rights as at best ambiguous tools to foster justice (among other reasons because of the abstract generality of rights), while at worst as forms of unjustified violence, if only in the sublimated residual form of performative force.

Given all this, the point of rights needs to be made. For legal rights, furthermore, the particularities of the legal form, such as justiciability and enforceability, need to be taken into consideration. This is even more obvious if one is familiar with the realities of legal rights in practice: Much hinges on the argument that a particular public good is actually fostered by specific legal rights, which is by no means always clear, even if one endorses the underlying moral right. Certain social rights are classic examples of this kind of difficulty. There is a very good case for a moral right to work. It is, however, an entirely different question whether the underlying aim – income and meaningful work – would be fostered if courts were entitled to allocate jobs on the basis of a fully-fledged subjective right of guaranteed employment. More complex mechanisms are therefore often sought to operationalize social rights as legal rights – for example, government action that fosters employment, institutions that secure sufficient benefits in case of unemployment and the availability of measures to assist reintegration into the workforce through vocational training and the like. Even if one is convinced that, despite all obstacles, courts should have the competence to decide on employment, this conclusion certainly requires more argument than the thesis that courts legitimately decide on problems of free speech.

As a consequence, one needs – and this is the second fundamental problem of a theory of human rights – a theory of the proper conditions for the realization of human goods in human societies and, in particular, a theory of the role of moral and legal rights in achieving this end. This theory of the possibility and desirability of the realization of human goods by means of rights will imply answers to intrinsically political questions and thus constitutes a political theory of the role of rights in a well-ordered society.

4.1.4 A Theory of Fundamental Normative Principles

The third problem is the problem of the normative principles constitutive for the justification of rights. There are two dimensions to this problem. The first dimension concerns the normative structure of rights. Rights are normative relations between persons and, more precisely, between a plurality of intricately connected persons and other rights-holders such as legal persons. Rights create a highly subtle web of such normative relations between agents – claims and privileges of the rights-holder towards the addressee, correlated duties and no-rights of the latter towards the former, powers and immunities, disabilities and liabilities, as explained above. The question that any theory of human rights has to answer is: What is the normative source of these intricate normative relations? How and why do they come into being? How, for example, are principles of justice related to rights? The answer to these questions is relevant for both moral and legal rights. In order to make sense of moral rights, one needs to be able to clarify the ground on which they come into existence. Otherwise, they may be regarded as metaphysical illusions, mere fictions without significance, nonsense upon stilts, as skeptics argue.

For legal rights, the answer may seem easier because they constitute positive law. The normative relations between rights-holder and duty-bearer(s) exist because the law posits them, one could say. The law, however, does not create the notions constituting a subjective right de novo and regularly either fails to define them or does so only in a highly limited, sometimes openly tautological manner.⁹ Instead, it presupposes the meaning of the term right, which is the very reason why the current analytical theory of rights developed: The practice of the law was insufficiently clear on what it understood as a right in different contexts. It is thus necessary to clarify the meaning of terms such as claim or obligation, privilege or no-right, and to establish whether this meaning is similar or the same as in in the moral domain. This is not a banal question. Terms like “obligation” are, after all, crucial concepts, the meaning of which “haunts legal reflection.”¹⁰ This analysis helps to solve the next problem, namely to determine whether these normative relations and concepts are mere legal artifacts or the legal equivalent of underlying fundamental moral notions turned into law. Ascertaining whether the positive law mirrors some deeper principles of a plausible theory of rights that clarifies in particular the relation between the fundamental normative categories constitutive of rights and normative principles like justice would be an insight of great interest.

The second dimension – unlike the first question, which relates to the normative structure of rights as a formal category independent of their content – is at the forefront of many debates. It concerns the material content of those normative principles that justify the ascription of rights to human beings. Human rights imply the idea of a justified distribution and allocation of central goods such as respect, status, freedom and resources. Which normative principles give rise to the particular kind of rights that persons possess and that justify the allocation of goods realized by rights? Can they be identified? If so – what are they? In particular, what is the role that basic principles of morality such as justice and altruism play in this respect? What about human dignity? Are these moral principles a key to the question of the origin of human rights? Or are other principles at play? Agency, perhaps? There seems to be something special about moral principles, as other principles do not lead to rights. For instance, the principle that everybody should strive to fulfill their wishes in order to be happy does not give rise to the right to see one’s wishes fulfilled. The principle that everybody should treat equals equally does create the right to such a treatment. Why?

As we will see, an explicit theory of normative principles as the foundation of human rights is of considerable importance. There are influential theories that do not address this problem, instead assuming that the identification of something as a legitimate, important concern for individuals suffices to give rise to rights (given that certain further conditions are satisfied, which are – and this is crucial – not related to normative principles). This is not the case, however. The fact that any concern of individuals creates claims towards others and related duties on their side – and that these individuals may enjoy privileges and are shielded from the demands of others because these others have no claim that they do or forbear something and thus only have no-rights – is something that can be explained only on the basis of normative principles. These principles are the reasons that oblige others in normative terms to act in certain well-defined ways that respect the interests of others and enable their actions. The fact that one person’s interest in free expression, for instance, is of such normative relevance for another person that the first person enjoys a right such as freedom of speech with the normative incidents implied can be explained only on the basis of normative principles that turn the concerns of others into the material of their rights and our obligations. It should be noted that not every normative principle gives rise to a right, however. Supererogatory acts are good examples of this. This is because such an act, which benefits others beyond the call of duty, while highly laudable in moral terms, is not required. The patient of this act has no claim to it. This example already indicates that rights do not exhaust the domain of morality. The task is therefore to identify not only justified normative principles, but also the members of that subset of justified normative principles that give rise to rights. Consequently, third, there is no full theory of human rights without a normative theory of the foundational principles of rights.

Thus, in sum, the first question is: What is a promising basis for determining the selective, highly qualified goods protected by human rights? The second is: Is there a convincing account of the political point of human rights? The third is: What are the normative foundations of human rights?

As a first step, we will turn now to core elements of current debates about the justification of human rights. This review should help us to ascertain whether these questions really direct reflection to the core of the matter, miss important points or already have been answered convincingly. For the sake of accessibility, we will distinguish affirmative human rights theories from revisionist human rights theories, the former making a case for, the latter against human rights. The former will be discussed first, and subsequently the Chapter 5 will turn to the possible sources of critique of these affirmative claims in the framework of political theories of human rights, thus addressing the question: Are human rights the proper tools of human liberation or, to the contrary, elements of humanity’s persistent repression?

In order to maintain an overview of the somewhat heterogeneous debate on human rights, it may be equally useful to group the affirmative theories according to certain theory clusters: Human rights are theorized with a focus on their functions, in particular for social differentiation, the efficient allocation of goods, the accommodation of bounded rationality and the maximizing of aggregate happiness. They are legitimized by procedures, such as by consensus or contract, if only in counterfactual thought experiments. Another approach is to refer to substantive elements of human existence as sources of legitimacy – autonomy, needs, interests and capabilities are examples of these. A political conception turns to the practice of human rights to clarify their point, whereas a eudemonistic perspective derives their importance from their role for a life lived well. These clusters serve expository purposes and do not possess deep theoretical meaning. As a whole, they promise to cover if not all, then at least a sufficiently wide range of topics that a critical theory of human rights needs to address.

4.2 The Functions of Human Rights

4.2.1 Human Rights as Tools for Social Integration

One way to look at the justification of human rights is to deny that they protect goods for the sake of individuals. Influential theories assert that human rights can only be understood as means to serve certain functions of society. The fact that they serve the interest of individuals is a mere by-product. The attraction of this view stems from the fact that it sidesteps questions about normative foundations and furthermore explains in functional terms why these quarrels about normative foundations occupy people in the first place. Marxist theory of law is a paradigmatic case, seeing human rights as a functional tool to preserve and perpetuate power both in concrete social terms and in the realm of epistemic regimes. More recent examples include post-structuralist theories of human rights. As these theories predominantly are critical of human rights, they will be discussed as part of our review of the critique of human rights.

Affirmative social functionalist theories argue instead that human rights are best understood on the basis of their function in successful social integration.¹¹ The most recent and arguably currently most influential theory of this kind stems from systems theory, which conceptualizes society as an autopoietic social system. It is regarded as autopoietic because the elements of this system reproduce themselves through the means of the system itself. In the case of the law, for instance, there are legal norms that regulate the creation of new law or court decisions that determine the content of law. In a systems-theoretical analysis, law creates law and thus is autopoietic.¹² The basic elements making up social systems – the atoms, so to speak, of society in general and of its subsystems like the law – are taken to be “communications,” not in the sense of meaningful human utterances, but as social incidents that convey meaning.¹³ The evolution of systems is driven forward by increased social differentiation – that which augments social differentiation is incorporated into the social system over the course of its historical evolution. This is the reason why things such as the rule of law or constitutional states evolved: They are functional tools that allow for social differentiation.¹⁴ Human rights, too, are held to have a particular function in such systems: They keep “the future open” for the self-reproduction of the autopoietic social system.¹⁵ They have this desirable effect, it is argued, because they give individuals space to act and thus to change the social system, which allows it to evolve.

This function of human rights is regarded as a powerful analysis of the reasons for the emergence of human rights. Human rights are interpreted as modern complex societies’ functional answer to the need for differentiated organization, and not as the renaissance of Natural Law or other forms of human societies’ normative orientation. Making individuals the normative center of legal systems means to engage in old-fashioned metaphysics of the person. In systems theory, individuals instead are regarded as “Funktionsträger,” as the “function bearers” of society.¹⁶ The social system allocates a function to the individual, namely to initiate social development, and provides the crucial tools required to fulfill this function, which are fundamental rights. Individual rights are protected not for the sake of the individual but for the functional sake of society – to enable its differentiated development. The classical idea of the relation between rights and society – that rights are secured because of the justified normative claims of the individual – is turned upside down or, as systems theorists would claim, is turned from its metaphysical head onto its social-functionalist feet.

The traditional view that anchors human rights in the goods of the individual is not only incorrect according to this perspective, however. In systems theory, this traditional view is regarded as a necessary product of social mechanisms and thus as the object of functionalist explanations itself. It is part of the “self-descriptions” created by social systems in the form of their members’ beliefs about the justification of the elements of the social world in which they live.¹⁷ These beliefs include, for example, the idea that human rights are justified by substantial, rationally defensible, valid reasons. According to systems theory, however, the belief that human rights are justified is false. From the point of view of social theory, there are no valid justifications, only social constructions that erroneously are regarded as reasons for the justification of human rights. In fact, these apparent reasons are nothing but contingent beliefs that depend on the given evolution of the social system. As it is useful for the system’s functioning that people entertain these beliefs – for instance, the belief that human beings enjoy human rights because of their human dignity – the system reproduces these beliefs. Human rights theorists and activists unwillingly and unwittingly are serving the functional needs of differentiated social systems. Accordingly, this theory is comparable to Marxist theories of a false consciousness that the class structure of society necessarily produces and that serves the functional purpose of preserving this society but has no claim to justification.

We need to address this argument, for if it is true, the aim of formulating something like a normatively relevant theory of human rights would fail to grasp the functional point of human rights. Moreover, the theory itself might be nothing more than the offspring of social mechanisms that normative human rights theory has failed to understand.

Social-functionalist theories are open to various forms of critique – from the idea that the atoms of social theory are “communications” (and not, as, for instance, Weber thought, the meaningful social action of individuals) to the idea that social systems such as the law are autopoietic. Is the law not rather the purposeful creation of human beings, applied by identifiable agents, institutionalized as social fact by the coordinated meaningful social action of persons, such as creating law, accepting certain norms by a legislature, applied by another institution called courts, as valid, binding and enforceable law?¹⁸

For the purpose of the theory of human rights, the following points are central, however: Systems theory claims to be purely explanatory. Because of its radical constructivism, it argues that there is no valid justification of normative propositions; every normative stance is taken to be historically and socially contingent. What remains are functional explanations of social institutions and accompanying justificatory beliefs. At first view, systems theory thus does not formulate any claims about legitimacy. However, the development of the preconditions for social differentiation is regarded as an essential tool of complex social organization. Societies with this level of differentiated organization can thus claim something like functional legitimacy: Living in a more differentiated society clearly is preferable to life in a less differentiated society, according to systems theory. This functional superiority then – against its own theoretical stance – tends to turn into a normative claim of the legitimacy of functionally differentiated societies organized around human rights – which brings us back to our question of the normative legitimacy of these rights.

Moreover, systems-theoretical approaches misunderstand the true function of human rights in wedding them to social functions of the kinds described. Human rights are about protecting central individual goods, irrespective of whether this serves a function for the differentiation of society or not. Free speech can be used for purposes that are quite dysfunctional in social terms but is rightly protected in principle even in such cases. This is because human rights are instruments to protect persons, not instruments to protect functions of society abstracted from the concerns of individuals. Regarding human rights as tools that instrumentalize individuals for social purposes is a profound misunderstanding of the function of human rights in modern societies. Their central function is the very opposite: to protect individuals against the intrusion of public authorities and other actors into their lives and ultimately to shield human beings against being used for purposes that denigrate their autonomous subjectivity.

There is a further fundamental problem for any social-functionalist theory of human rights. The aims of society are not simply a given. Societies are not natural kinds with fixed purposes. The word “society” is a term used for a variety of reasons. Usually, it designates associations of human beings who are connected in some kind of qualified manner – for instance, by the shared institutions of a state. Societies in the latter sense have one central kind of purpose – the purposes their members define. Rights formulate yardsticks, limiting conditions for these chosen aims of a society – whatever the aims are, they must not violate human rights in the first place. Erecting such limits to its own decision-making can in itself be a defining part of the wider aims of society – the protection of human rights signals human beings’ decision to take their humanity seriously. This is – at least in principle – the point of the project of creating public authorities bound by national, regional and international human rights. Human rights in this sense constrain and determine the purposes of society; accordingly, they are not just functional tools for achieving some given non-normative aim of social organization, such as the high-level differentiation of social interaction. Rather, they define the legitimate aims of society itself.

Because of this misconception, functionalist theories fail to address, let alone specify the normative principles underlying the allocation of rights and determining the social purposes these rights serve, which include the normative calibration of what societies are there for. The question of the criteria for the proper identification of the goods protected remains unanswered likewise because these are the goods of individuals, not of society as such. Whether there is an epistemologically convincing justificatory theory of human rights or not is something that the following discussion will reveal.

4.2.2 Engineering Social Efficiency?

Arguments for human rights from the perspective of the economic analysis of law point out that certain forms of human rights increase efficiency,¹⁹ based on a conception of human beings as utility maximizers who make rational choices.²⁰ Efficiency is defined as an allocation of resources in which value is maximized, value being measured by the willingness to pay. Willingness to pay is dependent on ability to pay, which creates an (unsolved) problem for this approach: The assessment of a thing’s value depends on the given resources of the agent.²¹ Not factoring an agent’s financial background out of the willingness to pay has the effect that potentially any good is more valuable for rich persons than for poor persons – because of the rich persons’ financial resources, they may be willing to pay more for everything.²²

Efficiency-based rights accounts have shortcomings comparable to those of functionalist theory: They fail to capture appropriately the central point of human rights, which is to provide normative principles beyond efficiency, understood in the terms of standard economic efficiency criteria.²³ Rights formulate limiting conditions for any efficiency regime and therefore presuppose a justification that transcends the limits of an efficiency-based cost–benefit analysis.²⁴ Making the value of a thing dependent on the contingent financial resources of an agent is already a very implausible analytical starting point for a theory of efficiency, utility, value and the law. Moreover, the worth of liberty or other goods protected by human rights is not what a person is willing to pay for them anyway. Their value is certainly not lower for the poor than for the financially affluent. It is a category error to try to assess the worth of a good such as liberty in monetary terms. Moral evaluation depends on moral principles – in Kant’s pithy words, “for that an object of justice is small does not prevent the injustice done to it from being great.”²⁵

A more promising approach stems from behavioral economics. Its main advance in comparison to classical law and economics is the attempt to base theories upon empirical research in human psychology, particularly in decision-making. Psychological research of this kind points to structures of bounded rationality: Under certain conditions, human decision-making is determined by other reasons than merely rational ones. Studies within prospect theory on psychological mechanisms such as heuristics, framing patterns and biases like risk aversion form the common starting points of such research.²⁶

Behavioral law and economics are no substitute for justified normative principles: Skewed decisions due to heuristics, framing effects or biases are important elements of a realistic theory of human decision-making. The findings on bounded rationality, however, lead to the question of what principles should guide human decision-making instead, not least which normative principles should be decisive in overcoming its shortcomings.²⁷

Sophisticated theories on behavioral law and economics factor a deontological threshold into the cost–benefit analysis, which aims at achieving harmony with common moral intuitions.²⁸ This move underlines the importance of normative principles. It invites us to consider closely the nature of common moral intuitions and their role in normative theory. In particular, it raises the question of why common moral intuitions should be decisive in normative terms.²⁹ As these theories formulate some of the currently most influential empirical hypotheses about the human mind, they will be discussed in more detail in the analysis of current theories of cognition that forms Part III of this study.

4.2.3 Human Rights and Maximizing of Happiness

There is a rule-utilitarian defense of human rights – despite Bentham’s proverbial critique of these norms. This argument holds that having human rights in the long run secures the greatest happiness of the greatest number and thus satisfies the basic utilitarian principle for justifying individual and social norms. This is the case, it is argued, because everybody will profit from the goods protected by rights as social rules, even though, in particular cases, the principle of utility could demand that the goods of the individual are sacrificed for the greatest happiness of the greatest number.

One good example for this kind of argument is the enslavement of a minority, because a classic counterargument to utilitarianism is that it offers no theoretical defenses against the justification of the enslavement of a group of persons if the happiness of the slaveholders outweighs the misery of the enslaved. Utilitarians answer that this is not so, because it is not clear that the misery of slaves is not so profound that the benefits for the slaveholders become irrelevant. Even if under very particular circumstances – for example, some kind of privileged form of household slavery where the slaves are treated well – this were not the case, as a rule the prohibition of slavery would still be justified: Overall, given the many forms of slavery and the experience of the cruelty it engenders in at least sufficiently many cases, it is reasonable to assume that the institution of slavery causes more suffering than well-being and thus as a rule is not justified according to the principles of utility.

Utilitarian support of this kind for the justification of human rights is certainly welcome. It is not a reliable defense, however. The central reason for this is that the point of ethics and justified law is not to maximize goods abstracted from individuals. Individuals cannot be factored out of a normative argument and be substituted by aggregate social goods. Rather, they are at the heart of it.³⁰ Thus, even if enslavement did promote the greatest happiness of the greatest number, it could not be justified.

There is another important point. What is good and admirable about utilitarian doctrine is its sense for the equality of human beings. Its central pillar is, after all, that the happiness (determined quantitatively³¹ or qualitatively,³² depending on the utilitarian outlook) of all humans should count equally. This is an important and, in many ways, a progressive doctrine. However, it presupposes the normative principle of the equality of human beings and thus normative content beyond the principle of utility itself.³³ The same is true for the radical selflessness that utilitarianism implies and that demands that individuals relinquish any good if it serves the greatest happiness of the greatest number. This presupposes a selfless, other-regarding moral motivation and not just the pursuit of pleasure and the avoidance of pain. As such, it shows that we cannot escape the question of the normative ideas that lie at the heart of the discussion of human rights and that therefore have to be confronted head on.

4.3 Justification by Agreement

4.3.1 Discourse and Consensus

A further influential approach stems from discourse theory. To many, this theory recommends itself because it seems to rely only on very thin theoretical preconditions. It consequently appears well adapted to a “post-metaphysical” age that is skeptical about substantial normative theory.³⁴ It starts from the assertion that neither a teleology of history, nor human nature, nor traditions are able to furnish the foundations of ethics and legal systems.³⁵ Instead, subjective practical reasons need to be replaced by communicative reason.³⁶ The core principle for the justification of any ethical principle, including human rights, is the discourse principle. According to this principle, those norms that all participants in rational discourses are able to agree upon are justified.³⁷ A discourse is rational when its outcome is determined solely by arguments and not skewed by the power of some participants. This deliberative process respects human beings’ foundational right to justification:³⁸ People are bound to principles that are not imposed upon them but rather prove to be justified once everybody’s interests are taken into account. It is only adhering to such principles that enables the self-endorsement of everybody’s subjectivity without domination by others.³⁹ Ultimately, the culture of reason-based argument is rooted in specific historically grown lifeworlds (Lebenswelten).

Discourse theory correctly highlights the importance of individual autonomy that is the non-negotiable yardstick of legitimate normative content.⁴⁰ This notwithstanding, it faces a substantial theoretical problem: A discourse that includes everybody’s concerns in the sense outlined above is a normatively charged enterprise. It presupposes equality, freedom and respect for other human beings. These normative principles are partly implied in any form of communication that is based on arguments between equals, as discourse theorists correctly maintain.⁴¹ However, this discursive practice is not the source of these normative principles. Morality is not the child of the structure of communication. Rather, equality, freedom and respect for human beings are the preconditions for the obligation to enter into such forms of communication with everybody in the first place. Doing so is not self-evident. Many people throughout history and in the present have not had and do not have a voice because they are not respected as free and equal subjects worthy of respect. The normative principles demanding equal respect for free individuals cannot then be the products of the application of the discourse principle, because these principles are the normative preconditions for the legitimacy of the discourse principle itself. The discourse principle is not normatively foundational but dependent on the acceptance of other, truly justifying norms of equality, liberty and respect for others. Thus, it is thin, but too thin.

Moreover, the norms demanding the kind of respect for human beings embodied by human rights reach beyond normatively structuring patterns of communication. Human life is not a discourse. A human life has many dimensions beyond communicating with others, and human rights take account of this fact. The right to bodily integrity, for instance, protects a pain-free existence, which is a value not only because it enables the rights-holders to enter into political deliberation. Freedom of faith protects belief for the sake of individuals, whether they want to share this belief with anybody or not. One cannot rely only on the supposed normative implications of communication to justify such rights, because these rights protect spheres of human life beyond such communication. Nor can one simply rely on a supportive lifeworld: Respect for other humans and their rights is the ultimate normative precondition for the historical and political creation of discursive and deliberative practices and lifeworlds. Such a lifeworld can only come into existence and persist over time if people feel obliged to respect others as free and equal individuals. Discursive and deliberative practices and lifeworlds thus cannot be the ultimate normative foundations of human rights – they depend on the cultural ethical appeal of these very rights.

Discourse theory professes ultimately to leave open the question of the normative principles that would be justified by a rational discourse. But precisely this is the central question to be answered for the topic at stake here: Are there any reasons why agents who are respectful of good reasons should regard human rights as justified, and if so, what are these reasons? The fact that discourse theory engages in this enterprise irrespective of its professed normative abstinence only underlines the importance of this point.⁴²

4.3.2 Justification by Contract

Another self-proclaimed thin normative theory is contractualism, which draws on the long tradition of social contract theories that majorly influenced normative thinking on modern constitutionalism and fundamental rights. In the history of thought, social contract theory has been a powerful tool for rationalizing, individualizing, secularizing and universalizing norms crucial to a body politic. The baseline is that norms, including those constitutive of the state, are justified by the consent of the parties to a contract. In contemporary approaches (as in most older social contract theories), this contract is not real but a thought experiment. It serves to test the legitimacy of norms by checking whether it reasonably could be assumed that these norms could be the result of agreement between free and equal individuals. The conditions under which such an agreement is reached can be very specific in order to highlight the importance of impartiality, as is the case, for instance, in Rawls’ theory.⁴³

This approach faces a problem related to that of discourse theory: Social contract theories presuppose the freedom, equality and right to respect of all human beings. Otherwise, there would be no reason to include them in the imagined contract. The very point of a contract is to honor human beings’ liberty, equality and equal worth by making their agreement the precondition of their obligations. As the norms underlying liberty, equality and respect for human worth form the foundations of the social contract, they ultimately cannot be its products. Contractualism leaves the question of the contract’s normative foundations open: Why is it legitimate that human beings are bound only by obligations that can be imagined as accepted by free persons of equal worth?⁴⁴ Where do the noncontractualist preconditions of contractualism stem from?

The problem of normative principles independent of and foundational for contractualist justification is the reason for an influential critique of contractualism that focuses on the formality of contractual principles, as this formality misses the decisiveness of material normative principles. The reason for the justification of normative principles is not that people would agree that certain principles are legitimate (under whatever specified conditions honoring their freedom and equality) but, contrariwise, that people could be imagined to agree upon the legitimacy of certain principles because these norms are justified by good substantial reasons. As J. J. Thomson stated pointedly:

For my own part, I cannot bring myself to believe that what makes it wrong to torture babies to death for fun (for example) is that doing this “would be disallowed by any system of rules for the general regulation of behavior which no one could reasonably reject as a basis for informed, unforced general agreement”. My impression is that explanation goes in the opposite direction – that it is the patent wrongfulness of the conduct that explains why there would be general agreement to disallow it.⁴⁵

The contractualists’ answer is that the contractualist formula is about “what it is for an act to be wrong. What makes an act wrong are the properties that would make any principle that allows it one that it would be reasonable to reject (in this case, the needless suffering of the baby).”⁴⁶ This answer, however, is not enough to save the contractualist paradigm. The answer itself underlines that material normative standards are crucial (those that would make any principle that allows, for instance, the torturing of babies, one that it would be reasonable to reject), not a formal, content-free, thin contractualist principle. Moreover, the hypothetical agreement that it is reasonable to reject a rule allowing certain actions is not “what it is for an act to be wrong.” “What it is for an act to be wrong” is the fact that it constitutes a violation of one of those moral principles that are justified. What it is for torturing babies to be wrong is the fact that torturing babies violates basic principles of human ethics. The agreement about this – whether hypothetical or real – is the consequence of the cognition of this state of affairs. This agreement does not, however, constitute the nature of wrongness.

One of the strengths of Rawls’ theory is that it acknowledges the limits of contractualism. According to Rawls, the original position in which the agreement is concluded is a device of representation.⁴⁷ This stance is important for contractualism in general. Through a formidable metaphor, it illustrates profound ethical intuitions that are crucial for the justification of modern constitutionalism and fundamental rights. It does not, however, substitute these normative principles by the foundational idea of a social contract. Instead, it derives this idea from these principles and therefore remains dependent on their justification.

4.4 Human Rights and Human Existence

4.4.1 The Rights of Autonomous Agents

Human rights are rightly associated with the protection of and the respect for autonomy as a central element of human existence. Accordingly, influential theoretical approaches that are both sophisticated and highly demanding in philosophical terms rely on agency as the foundation for the justification of human rights. There are basically two kinds of agency theories. One is based upon what one might want to call the logic of action. This theory relies on a variant of a transcendental argument by identifying the protection of human rights as the precondition for the possibility of agency.⁴⁸ The other variant refrains from statements about the logic of action and centers its argument on the normative consequences of what is called normative agency, the value of autonomously defining and pursuing one’s own course in life. We will look at these two theories in some detail in turn, as this will allow us to distill certain important systematic insights.

4.4.1.1 Human Rights and the Logic of Action

Two questions form the starting point of the argument for human rights from the logic of action perspective: “First, what logical or rational justification is there for attributing to self-interested individuals a concern for their own having rights or making rights-claims? Second, what logical or rational justification is there for a self-interested individual’s moving, or having to move, from an acceptance that she herself has rights to the much broader moral judgment that every individual has rights, so that there are human rights and correlative duties?”⁴⁹ The answer is found by a “dialectically necessary method”⁵⁰ deriving normative principles from human action, which is the foundation of a rational argument for morality and human rights.⁵¹ This foundation has a particular quality as nobody can escape the context of action, not even by committing suicide (which is itself an action).⁵² The key features of action are voluntariness or freedom and purposiveness or intentionality. As agents act to actually fulfill their purposes, purposiveness is extended to the general conditions for succeeding in this endeavor and thus to well-being.⁵³ Therefore, it is concluded, “freedom and well-being are the proximate necessary conditions and generic features of action and of generally successful action.”⁵⁴

Human rights are justified on this basis. It is argued that, first, “every agent must logically accept that he or she has rights to freedom and well-being” and, second, “that the agent logically must also accept that all other agents also have these rights equally with his or her own, so that in this way the existence of universal moral rights, and thus of human rights, must be accepted within the whole context of action or practice.”⁵⁵

To show that self-interested agents must (with logical necessity) attribute rights to themselves, eight steps are outlined that set out the argument very clearly.

The first step consists of the agents each setting an aim: “I do X for end or purpose E.” Second, E is identified as a good. Third, the agents must accept that their freedom and well-being are necessary goods, because they are the proximate necessary conditions of action and of acting successfully in general, and thus of attaining any purpose. Given this, the agents must, fourth, conclude that they must have freedom and well-being. The fifth step is of particular importance: The agents, it is argued, logically must accept not only that they must have freedom and well-being, but that they have rights to freedom and well-being. The alternative would be self-contradictory: It would amount to, sixth, rejecting the proposition that others ought at least to refrain from removing or interfering with the agents’ freedom and well-being. It would imply, seventh, that others are permitted to remove or interfere with the agents’ freedom and well-being. This in turn would mean, eighth, accepting that they may not have freedom and well-being, a proposition contradicting the conclusion of step four that the agents must have freedom and well-being as the proximate necessary conditions of action and of acting successfully in general.⁵⁶

The logical principle of universalizability⁵⁷ builds the bridge from these findings to the justification of moral rights for all: If any agents hold that they have rights by virtue of them being a prospective agent, they must grant this right to all.⁵⁸ This is an application of the central moral principle of this theory, the principle of generic consistency: “[A]ct in accord with the generic rights of your recipients as well as of yourself.”⁵⁹

From this foundation, particular rights are deduced, most prominently positive rights to welfare. These thoughts also set the stage for the important argument that rights and community are not opposed but that, on the contrary, rights establish a community – a community of rights.⁶⁰

4.4.1.2 Human Rights and Normative Agency

A different approach puts normative agency center stage.⁶¹ Normative agency as a qualified form of agency⁶² is understood as a rights-generating reason that at the same time offers a well-defining and content-limiting existence condition of moral human rights. This is taken to be crucial, as the “term ‘human rights’ is nearly criterionless,” it is argued.⁶³ There is a certain consensus about the term’s extension but not about its intension, at least not in a sufficiently thick sense, because “the fragment of intension we have – namely, a claim that we have on others simply in virtue of our being human – holds of moral claims in general, and not all moral claims are rights-generated. For example, the claim that one has on others that they not gratuitously cause one pain is not.”⁶⁴ That task is thus “to remedy the indeterminateness – to do what the Enlightenment failed to do.”⁶⁵

Normative agency is the proper starting point to achieve these ends, the argument goes. Normative agency and what it entails spell out the meaning of the term “human dignity,”⁶⁶ which is not human beings’ most important moral status, however.⁶⁷ Normative agency is of intrinsic value: “If normative agency is valuable, it is intrinsically valuable. One can only try to make it sufficiently clear what normative agency is and expect others to see that it is valuable.”⁶⁸ Such a teleological personhood theory is based on an “expansive naturalism” that justifies human rights because they are preconditions for human agency.⁶⁹

Normative agency consists in the possibility to form a conception of a worthwhile life and to pursue one’s life accordingly. Normative agency in this wider sense, it is argued, encompasses three elements: autonomy, liberty and minimum provision, which enable normative agency.⁷⁰ Autonomy concerns self-decision, “a capacity to recognize good-making features of human life, both prudential and moral, which can lead to the appropriate motivation and action.”⁷¹ Liberty refers to the possibility to follow one’s choices.⁷² With minimum provision, the important aspect of the material preconditions of real agency enters the picture – a plausible and classic thought of the justification of social and economic rights. From this basis, other human rights can be derived, the ensemble of which forms the well-founded bill of moral human rights.⁷³

According to its proponents, this approach allows the crucial critical function of human rights theory – namely to sharpen the vague contours of the term “human rights” – to be fulfilled. The human rights project is said to have led to an implausible proliferation of rights.⁷⁴ Given this development, one central driving force behind the normative agency account is the need for critical yardsticks to determine what is rightly called a human right and what is not. The agency account is thus deliberately restrictive. Human rights are not “anything that promotes human good or flourishing, but merely what is needed for human status.”⁷⁵ The personhood account “is deflationary in three related ways. It supplies a ground for rejecting certain actual declarations of rights. It tends to narrow the content of individual human rights. And it reduces the importance of human rights.”⁷⁶ This restrictive approach encompasses the personal scope of human rights as well. Contrary to current human rights practice, not all human beings, only “functioning human agent[s]”⁷⁷ qualify for protection by human rights,⁷⁸ excluding infants,⁷⁹ those with severe mental disabilities or people in an irreversible coma.⁸⁰ This does not mean that there are no moral obligations towards these persons. They just do not have human rights, it is argued.⁸¹ If the threshold condition is met, however, anybody above it counts as an agent without differentiation.⁸² According to this argument, the diminishing capacity for agency in the elderly can curtail their human rights – for example, to health care (e.g. when medical resources are scarce).⁸³ On the other hand, agency can provide reasons to accept new and hitherto contested rights – for example, to same-sex marriage,⁸⁴ or what are called positive rights; that is, rights to the provision of goods,⁸⁵ including welfare rights.⁸⁶

Practicalities are a second existence condition of human rights: Human rights must be suitable for real human individuals and social life. Therefore, practicalities encompass “features of human nature and of the nature of human societies.”⁸⁷ Knowledge constraints and a realistic account of human motivation play important roles in delineating the content of human rights.⁸⁸

It is stressed that the human rights thus justified do not encompass the whole domain of morality, which is identified with equal respect.⁸⁹ Other and equally important normative principles exist that are not identical to, related to or reducible to human rights.

The existence conditions of legal human rights are said to be different from moral rights. Nevertheless, the importance of a theory of moral human rights for the conception of the law is (quite plausibly) understood to be significant. Court decisions are no substitute for such a theory – on the contrary, they require this theory to solve some of the crucial puzzles of how to understand human rights law.⁹⁰

The normative agency account hopes to renew the argument, rightly taken to be a key element of the human rights tradition, “that these rights are grounded in natural facts about human beings.”⁹¹ The account is universalist: The existence conditions of human rights are taken to be valid for any human community.⁹² Changes in social and cultural circumstance are no counterargument because universality can be defended for higher-level rights that are, in turn, the foundation of derived rights relative to a certain time, like freedom of the press.⁹³ The challenge of relativism can thus be met.⁹⁴

These thought-provoking proposals resonate well with the uncontroversial connection of human rights and the respect for human autonomy. Let us consider, then, how promising these approaches are in making the case for human rights.

4.4.1.3 The Concept of Agency

The first step in assessing the reach of these theories is to clarify the different aspects of the concept of agency. One possible understanding of agency is that it refers to a particular property of human beings, the capacity of human subjects to initiate chains of events, undetermined and free, as uncaused causes, if you will. If so, this kind of capacity (if it exists) seems to be inalienable, and human beings cannot lose it (apart from certain extreme situations to be discussed shortly) as it is part and parcel of their existence. This is the understanding of agency in the sense relevant for the question of free will.

Only in rare cases is this capacity for autonomous decision-making as such endangered, restricted, made irrelevant or even extinguished. These cases are far from banal. The most obvious example is killing a person – there can be no agency if the agent is not alive. Another important example of such cases is torture. Among the many evils of this practice is the tortured human being’s loss of the ability to form an autonomous decision. To be sure, in a certain sense, a person who is being tortured can still decide about their course of action – for example, to remain silent. In practical terms, however, leaving ideas of superhuman willpower aside, this possibility is only theoretical – for every human being has a breaking point, everybody has their Room 101, where their autonomy is wrested from them by the pain and degradation inflicted. Other instances of this kind include brainwashing, drug-induced behavior, forced “reeducation” and the like.

The second understanding of agency is the possibility of acting in line with autonomous decisions. Agency can be rendered meaningless if there is no scope to act in a way that corresponds to the agent’s intentions, even if the possibility of making a decision as such remains unimpaired.⁹⁵

4.4.1.4 Agency and the Problem of Justificatory Underdetermination

It is far from clear whether all particular liberties and other important classes of human rights are in fact necessary preconditions for agency in the senses discussed by agency theories, which seem mostly related to agency as the possibility to act in line with autonomous decisions. Can one only be an agent in the sense of being the subject of action by acting according to one’s will if one enjoys freedom of expression, of religion, of assembly or the freedom to choose a profession? There are all kinds of repressive regimes that violate very many classic human rights but do not call agency as such into question, only certain uses of agency. For instance, the use of agency to criticize the government may be proscribed while other fields remain untouched – say, the agency as to one’s narrowly circumscribed (but still very important) private life. History is full of such regimes. This does not mean that human beings only became full agents after human rights were established. Consequently, the logic of action as such does not carry very far in justifying particular rights. By deducing a full set of rights from agency, the theory over the course of the argument in fact implicitly enriches the preconditions of agency to such a degree that it is not just the logic of action that carries the argument through but something else, namely the normative relevance of the minimum conditions of a meaningful life. This is an important point but no longer is based solely upon the logical necessities of being an agent.

The normative agency conception fares much better in this respect. But even in an illiberal society without much freedom, meaningful normative agency remains imaginable, as explained above.⁹⁶ In addition, human rights are more capacious than this argument implies – the freedom guaranteed by human rights, at least in some crucial cases, is not limited to the minimum of what is necessary to assure agency but to the maximum that is compatible with the same equal freedom for all human beings and some other constraining public interests – in the case of free speech, for instance, as much as in the case of freedom of religion.

Equality guarantees, a further building block of human rights thinking, raise some questions for an agency approach, too. Why is equal treatment as such a human right enlisted in every bill of human rights? Interestingly, equality guarantees are somewhat neglected in reconstructions of the legitimacy of rights in agency accounts. Filling in this gap in the spirit of agency theories, one may want to argue that equal treatment is important for agency in the normative sense if discrimination is such that it curtails or takes away certain freedoms. If you are unable to rent an apartment because of your skin color, your liberty is substantially limited because you cannot choose your preferred dwelling place. Such arguments are important, but not the whole story about equality guarantees. Another important reason for the protection of equality as a human right derives from considerations of justice,⁹⁷ yet another from the respect due to a person. Discrimination on the ground of race is forbidden (and thus equal treatment secured) at least partly to make sure that everybody is treated with such respect as is due to them.⁹⁸ It thus is not just agency that is at stake but these other normative considerations as well.⁹⁹

A further example for a lacuna in the theory is the widespread view that human rights provide yardsticks for just punishment, contrary to what agency theorists assume.¹⁰⁰ Personality rights including human dignity play an important practical role in this respect, and plausibly so. A system of sanctions that instrumentalizes human beings for the purpose of deterrence certainly creates a human rights issue. High-profile court cases underline the importance of this approach.¹⁰¹

Agency theories thus seem to have the problem of underdetermining the precise content of human rights. This problem is relevant both for the logic of action variant and for the more capacious normative agency approach, though the latter is less affected by it because it has the resources to legitimate at least some important substantial rights.

This leads to another critique of agency theories, which is the flipside of the argument just mentioned: They fail to include important goods other than agency that are protected by human rights. A good example is the right to life. Agency theories derive this right, as they do any other, from the importance of agency.¹⁰² However, life is protected not just as a precondition of action or to enable normative agency. It is protected as the precondition of the many things – including agency, of course – that make up a meaningful human life, from the possibility of enjoying a gentle spring breeze to the many other fruits to be reaped in the fertile gardens of human thought and sentiment. Not all of these goods of life are secured for the sake of agency: Falling in love (the sheer event, not the actions stemming from it) is not an exercise in autonomy. On the contrary, it is entirely beyond autonomous decision-making, which is the source of its bliss and sometimes of its tragedy. Nevertheless, it is something that many would regard as the prime gift (in a very deep and literal sense) of human life. Life consists of a myriad of other such good things that make it the precious thing it is. Life in this sense is of intrinsic value as such, not only in an instrumental sense as the precondition of action or normative agency.

The same seems to be true for the goods protected by other rights. Part of the point of freedom of expression is to satisfy an existential need: the desire to talk, to express thoughts and the many other aspects of one’s inner human life. One important dimension of freedom of religion is the possibility to live according to something that many people would regard as beyond personal choice – their particular faith and what it means for them. A normative agency theory may argue that these kinds of expression are covered by the capacious concept of agency, but this underestimates what is at stake, namely expression or belief as manifesting a form of exercising human potential that is valuable for humans as such and not only as the manifestation of a choice or the pursuit of an autonomously formed conception of a good life.

Even torture is an evil not only because it means a threat to or even the abrogation of agency in the sense discussed above. Part of the evil is the pain inflicted, whatever other goods are impaired as well.¹⁰³ The same holds for the protection of bodily integrity. To be sure, it is true that a violation of this right has consequences for agency, but avoiding the impairment of bodily integrity is a good in itself. A last example: Social rights, including to basic subsistence, are important preconditions of agency. In underlining this, agency theories have made a very important contribution. But not being hungry is a good in itself, too, irrespective of the further benefits of secured agency.

4.4.1.5 Why Protect Agency?

Another issue concerns the value of agency itself. Agency forms the fulcrum of the argument for human rights. Why is agency of such importance? Agency theories imply that enjoying agency is a central human good. This may not be obvious, at least for the logic of action variant. From the logic of action perspective, the agency-based argument for human rights appears to imply nothing about human goods. From this point of view, rights are a precondition for the possibility of action. As humans have to act, the precondition for the possibility to do so needs to be protected. This appears to be a straightforward and watertight argument. But is it valid? What if acting were nothing but a pain and burden for human beings? What if a life of wordless meditation, refraining from action as far as possible, were preferable to the vita activa? What if there is no good answer to the question of why not to be? After all, it is not only noble young men facing a rotten world of baseness and betrayal who take this question seriously. One may grant that human rights are the precondition of agency but nevertheless ask: What is the point of agency?¹⁰⁴

How, then, does the agency theory justify the fact that the existence of agents needs to be protected? This seems the most fundamental concern of human rights – to assert the intrinsic, inalienable, supreme value of human beings and spell out its normative consequences for human life and institutions. There are two possible answers to this. The first relies on some kind of argument that agency is of value as such irrespective of what human beings may think of it, independently of whether they enjoy it as a gift or curse it as a burden. Perhaps there is such an argument. Agency theories, however, seem not to be wedded to any such argument despite considering agency an intrinsic value.¹⁰⁵

Consequently, agency theory needs to base its justification of this right – and this is the second option – on the value of life for an (average) human agent, which brings us back to the most fundamental good: the good of human life.¹⁰⁶ Agency theory (correctly) presupposes the value of human life as lived by agents, which is not, however, an a priori truth but an evaluative stance that needs to be accounted for. In particular, there is a need to explain that not only some agents are protected (say men or whites or North Americans) but all human beings equally, because the value of life is equal for all. Agency theory thus is wedded to some egalitarian theory of human worth that argues for this equal value of human life. This indicates that the principle of equal respect is of great importance for a theory of human rights and that such a theory cannot do without it.¹⁰⁷

Furthermore, agency theories refer to the interests that people have and the qualified nature of some of these interests that justifies “ring-fenc[ing] them with the notion of human rights.”¹⁰⁸ This shows that agency does not do away with the need for a substantial account of interests or (more generally) human goods. This is all the more so if we bear in mind that human life, as indicated above, is valuable not just because it is a precondition for agency (though this is important, too), but because of the many other human goods it enables us to enjoy.

4.4.1.6 Is There a Bridge from Agency to Rights?

These findings lead us to the next problem. Agency theories – as we just have seen – presuppose that agency is so important that it should be protected by rights. This is certainly correct, but there is a gap in the reasoning, even if – for the sake of the argument – one assumes that the case for the importance of agency is fully made. It is an example of a structural problem for any justificatory theory of human rights and consequently merits close attention.

This problem concerns the concrete normative implications drawn from agency. Where does the right to agency (with its particular complex normative meaning) stem from? Why is the importance of something for agent A not just a reason for, say, the agent’s urgent wish to have this important thing protected, but rather an existence condition for a very specific normative position of the rights-bearer A and the addressee(s) of the rights – a claim obliging the addressee(s) of this right? It is plausible that individuals value their agency. But why should potential addressee(s) be concerned about these individuals’ agency? Why should they bother about the agency of others? Why should the importance of agency for a meaningful human life create a specific web of normative incidents – including a claim of the rights-holder and obligations on the part of the addressee(s)? A transformative step is taken from the self-interested perspective of an individual to the normative position called a right, a step that requires explanation. Why do the needs or interests of others obligate agents to respect the preconditions of agency of these others? Universalization is of no help in this respect. Universalization presupposes that others count morally – the very question at issue here.

The importance of this problem can be illustrated by the eight steps outlined in the logic of action argument. The issue arises when taking the step from the conclusion that agents must have freedom and well-being in order to pursue their goals to the assertion that they have rights to freedom or well-being. A right is a normative notion that implies duties on the part of the addressee. If only self-interest and no normative principles are relevant, the fact that agents must have freedom and well-being in order to attain their goals does not imply (with logical necessity) that they have a right to freedom and well-being. To begin with, another normative position of the agents is entirely possible: They could have a privilege, namely that attaining their freedom and well-being would not violate the rights of others, although they have no right that others do not interfere with them achieving their purpose.

In assuming that agents are motivated only by self-interest and not some moral principle, the logic of action argument aligns better, however, with a different view of the world, a world of adversarial, competing self-interest. It could even be a deeply antagonistic, survival-of-the-fittest world, where the agents understand that in order to be able to act, they have to fight for their freedom and well-being and can only realize their agency if they are victorious in this fight. It is a world not of rights, but of power. In such a world, the agents most probably would wish that other agents did not interfere with their attempt to achieve their purposes. Nevertheless, if only self-interest matters, this wish does not translate into a right just because it concerns important goods of the agents. For such a right, the agents need to recourse to a normative principle that entitles them to realize their agency and other goods of human existence and obliges other agents to refrain from obstructing their pursuit of these goods.

This does not imply that others are permitted to interfere with a person's freedom and well-being in this world, only that they can do it. Permission is a normative notion as much as a right. It cannot be derived from the self-interest of the agents either. In this amoral world of self-interest, the situation is simply that others can (and probably will) in fact interfere with a person’s freedom and well-being, not that they are permitted to do so. If they are stronger, they will succeed; if not, the person will prevail.

There is thus no contradiction if agents hold that they must have freedom and well-being and, at the same time, that others may in fact prevent the agents from enjoying these goods – if, as is assumed, normative principles do not play a role. What the agents must have specifies the factual preconditions of their acting but does not imply anything about their rights and about what others ought to do. The agents would contradict themselves if they held – at the same time – that they must have freedom and well-being and do not need freedom and well-being in order to act. They do not contradict themselves if they hold that they must have freedom and well-being but (unfortunately in this tough world) have no right to obtain either and that they consequently will not get what they need in order to act.

The fact that there is no connection between something necessary for human action and a right to this something can be illustrated by a practical example, too: There are cases where it is justified not to provide agents with something that they must have in order to be agents, even something that is of existential importance for them. For example, no person has a right to the lifesaving organ of another person, even if taking the organ from this latter person would not endanger that person’s life. This is because of normative principles that delineate the scope and limits of rights.

It is no counterargument to maintain that the action-based argument is formulated from a first-person perspective.¹⁰⁹ The argument starting from action concerns not just any kinds of possible, erroneous beliefs of agents, but logically necessary and thus justified beliefs. Given what has been said above, one cannot conclude from the fact that something is important to an agent (as a precondition for action) that they have a right to this something. This is true irrespective of the point of view.

This analysis highlights the importance for a theory of human rights of something already underlined above: the intrinsic value of human persons. While it is a grave inhumanity to deny others the possibility of becoming or continuing to be agents through slavery or even extermination, it is not a logical error to do so if one does not accept the key moral principle of the equal intrinsic value of human persons and certain basic principles of justice. If the perpetrator of such crimes denies the victims of his deeds either any or sufficient worth and assumes that whatever worth they have is outweighed by other considerations – such as the interests of a master race – he is not committing a logical fallacy. Victims may even agree (at least this is a theoretical possibility) that, given their properties, there is no point in protecting their agency because these properties make them (in their own eyes) worthless creatures. Only if any of the agents as individual persons are of intrinsic worth is there an argument for protecting the possibility to act as a right, and only if principles of justice count is there an argument for equal rights.

This raises difficult normative questions. The humanity of persons commands respect. Respect in this sense is a normative concept and differs from non-normative appreciation or admiration – for example, for a free kick into the corner of the goal from thirty meters away. As a consequence, one ought to respect persons, and one ought to treat them accordingly. But where do these normative demands stem from? The idea that there is something about human beings that commands this kind of respect is not self-evident and requires solid arguments, as illustrated by the many examples of contempt for human beings and the power of the forces that motivate inhumanity. The step from the precondition of being an agent to the right to act as an agent is therefore surely entirely justified, but only under much richer premises than the theories of agency identify.

4.4.1.7 The Objective Reason Argument

There is one important argument still to be considered, which we can call the objective reason argument or the argument from the perspective of (logical) universalization. This argument holds that we have to accept duties towards others as correlatives of their rights because the same reason that justifies the predication of value to us justifies the predication of value to others. The same normative conclusions – rights for us and others – thus follow, given that this objective reason is applicable to all.¹¹⁰ Griffin provides a concise formulation of this argument:

It is tempting to treat the reason-generating consideration that moves me when my autonomy is at stake as different from the one that moves me when yours is at stake. The obvious difference between these two cases is that in the one it is my autonomy, and in the other it is yours. But the most plausible understanding of the engine of these two judgements is autonomy: because a person’s quality of life is importantly at stake. The my and your are not part of the reason-generating consideration. The clause because a person’s quality of life is importantly at stake lacks reference to me or to you, but it lacks nothing of what we understand the reason to be. To try to deny “autonomy” its status as a reason for action unless it is attached to “my” would mean giving up our grasp on how “autonomy” works as a reason for action.¹¹¹

A related argument holds that one only respects the objective value of one’s own humanity if one respects the humanity of all – because the reasons for this respect are the same, a line of reasoning that is called “Kant’s argument” and that we will discuss below.¹¹²

In a certain sense, this is a good, important and valid argument. There is no discernible reason why some consideration X applicable to human being A should invest A with some kind of normative status, including rights, but the same consideration X should not invest human being B with the same normative status. It is thus contradictory to treat A (even if A is oneself) differently from B (some other person) if consideration X is the reason for this treatment.

There is still a fundamental problem here, however. As discussed, the implications of the logic of action or of the consideration “a person’s quality of life is importantly at stake” are not sufficient conditions for generating rights. Agency theories simply have not made the point that agency is a consideration applicable to A that gives rise to rights of A and there is thus no reason to accept that other agents to whom the same consideration applies also enjoy such rights. An argument insufficient to ground rights for an agent A is insufficient to ground the rights of other agents as well.

One further issue is a matter of substantial debate. As we have seen, the framework of agency theories provides insufficient reasons for the justification of human rights. If that were different, however, the following problem would arise. It is inconsistent to think that there are reasons for oneself having rights but not to accept that others – for the same reasons – also have rights. The nonacceptance of rights of others is, however, not only a logical error. It also is a violation of moral principles as one ought to treat others equally for moral reasons, not the least justice, not just because of the demands of consistent reasoning. This is a matter of analyzing the phenomenon properly.

In addition, there is a dimension at issue that leads to a problem haunting a substantial part of moral philosophy: the problem of moral motivation. An insight as such has no motivational force. One can agree that people have such things as rights, shrug one’s shoulders and go about one’s business without being affected by this insight, just as one does not need to be particularly affected by the insight that 1 + 1 = 2. The fact that an insight into the existence of rights has a different status – that to assert, “Yes, A has a human right to X” implies “Because of this right of A, I have an obligation to Z,” an obligation with a motivational effect – is a consequence of the normative nature of the right at issue, not a consequence of the demands of consistent thinking.

The gap in the argument from agency to human rights can only be bridged by normative principles, namely the respect for human beings, for egalitarian principles of justice and for basic obligations of human solidarity, as will be explained in more detail below.¹¹³

4.4.1.8 The Important Point of Agency Theories

In sum, agency theory encounters at least the following problems: First, the reference to agency fails to sufficiently determine the content of human rights, as the differentiated set of human rights transcends what is necessary to secure agency. Second, human rights protect goods other than agency for their own sake. Third, agency theories rely on a theory of human goods, which crucially includes the good of the life of a human agent, which they do not spell out. Fourth, agency theories imply but do not identify the normative principles that turn the existence conditions of agency and other goods important for human rights into the content of claims towards others and their correlated duties.

The critique of agency theories thus confirms the importance both of a theory of human goods and of normative principles for the justification of human rights. These findings may prove helpful with regard to a question of great practical importance, namely the question of who the bearers of human rights are. Agency theories sometimes determine this group quite narrowly, excluding human beings such as infants,¹¹⁴ who are protected uncontroversially in human rights law. If one is willing to relinquish the persuasion that agency alone is the key to understanding the foundations of human rights, the door may open to form an inclusive concept of human rights that is more convincingly justified and is a better match for the state of current human rights law.

The importance of normative principles does not mean that human rights and morality are coextensive. They are not. There are indeed “most heavyweight moral obligations”¹¹⁵ that are not part of human rights. However, this does not mean that these moral principles are not foundational for human rights theory. The fact that justice and human solidarity and human rights are not coextensive does not imply that justice and solidarity are not central for the foundations of human rights. This seems crucial to understanding the whole project of human rights. Human rights are a part of the language of justice and human solidarity, and this is what the further argument of this book will try to spell out.

Agency theories thus do not answer all questions that need to be answered concerning the justification of human rights. However, they do underline a central element of the edifice of human rights that needs accounting for: the importance of autonomy.

4.4.2 Needs and Interests as the Engine of Rights

4.4.2.1 The Argument Based on Needs and Interests

Need and interest theories share some common ground: Both hold that some needs or interests of human beings are so important that they give rise to human rights.¹¹⁶

Need theories argue that certain basic human needs are the reason for the existence of rights, at least for the fundamental ones. The need to live without bodily harm thus justifies the protection of bodily integrity by rights, for example. The need not to starve justifies certain social rights. Other rights are derived from these fundamental rights by further considerations that depend on the right in question. Due process rights, for example, can be derived from rights to bodily integrity or the protection of liberty, because due process rights are necessary preconditions if these fundamental rights are to have substantial content.

Current influential need theories face criticism on various grounds. One important critique argues that need theories are implausibly restrictive because not all rights are linked to true human needs.¹¹⁷

Interest theories provide an alternative. Joseph Raz’s influential version offers what is called a definition of rights, but in fact includes a theory of the justification of rights through interests:

Definition: “X has a right” if and only if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty. Capacity for possessing rights: An individual is capable of having rights if and only if either his well-being is of ultimate value or he is an “artificial person” (e.g. a corporation).¹¹⁸

From this perspective, interests are of sufficient importance to generate rights if a certain threshold criterion has been met. However, Raz’s theory is not clear on the argument’s crucial step, as it does not spell out how interests are transformed into normative incidents, into claims and corresponding duties, privileges and no-rights. It limits itself to asserting that some interests are of such a nature that they give rise to rights and duties: “Only where one’s interest is a reason for another to behave in a way which protects or promotes it, and only when this reason has the peremptory character of a duty, and, finally, only when the duty is for conduct which makes a significant difference for the promotion or protection of that interest does the interest give rise to a right.”¹¹⁹

The respect for persons, which plays a prominent role in the justification of human rights, also is derived from interests: “[A] person has an interest in being respected as a person. That shows that rights grounded in respect are based on interests.”¹²⁰ There is, however, another step in the argument that grounds it on something other than naked interest, namely the value of the well-being of persons: “It is, as was indicated before, the duty to give due weight to the interests of persons. And it is grounded on the intrinsic desirability of the well-being of persons.”¹²¹ The proposition about the “intrinsic desirability” itself seems not to be derived from interests, but from an evaluative judgment about the value of the well-being of persons.

John Tasioulas’ approach formulates a much more differentiated argument that is particularly helpful for understanding promising ways to justify human rights. Importantly, it is pluralistic in the sense that not only interests, but also other considerations play a justificatory role. In particular, the crucial role of human dignity for the justification of human rights is highlighted, which marks a major difference from other interest-based approaches.

The derivation of rights from interests takes the following shape:

1. (i) For all human beings within a given historical context, and simply in virtue of their humanity, having X (the object of the putative right) serves one or more of their basic interests, for example, interests in health, physical security, autonomy, understanding, friendship, achievement, play, etc.

2. (ii) The interest in having X is, in the case of each human being and simply in virtue of their humanity, pro tanto of sufficient importance to justify the imposition of duties on others, for example, to variously protect, respect or advance the interest in X.

3. (iii) The duties generated at (ii) are feasible claims on others given the constraints created by general and relatively entrenched facts of human nature and social life in the specified historical context. Therefore:

4. (iv) All human beings with the specified historical context have a right to X.¹²²

These steps are spelled out in helpful detail: The universal interests are objective, standardized, pluralistic, open-ended and holistic. They are objective in the sense that they exist independently of the attitude of the subjects of these interests. They are standardized because they abstract from individual cases and are derived from standard cases of ordinary human beings’ interests. There is an open-ended plurality of interests, meaning that there is no single overarching value underpinning all human interests and that the interests may change and evolve over time. Their holistic character leads to an interpenetration of different interests – the prudential value of freedom for agents, for example, is said to be dependent on moral values: “[M]ultiplying trivial or morally depraved options does not enhance their freedom.”¹²³ Freedom may have an important impact on other values, too: A partnership based on autonomous decisions is more valuable than one that is based on the decisions of others, as in the case of arranged marriages. However, freedom is not an element for every prudential value.¹²⁴

This theory includes the idea of human dignity in its account of the foundations of human rights:

The interests on which the pluralist account draws are always the interests of individual human beings, and understanding their normative significance requires that we grasp the intrinsically valuable status equally possessed by all human beings, one grounded in the fact that they are humans. What emerges is a form of the interest-based theory which regards the interests in question as generative of human rights in crucial part because they are the interests of human beings who possess equal moral status: human dignity and universal human interests are equally fundamental grounds of human rights, characteristically bound together in their operation.¹²⁵

The reference to dignity adds an important dimension to Tasioulas’ approach: In particular, it answers the question of why interests of persons cannot be aggregated to form a collective notion of interest that then is taken as the true yardstick for individual and social norms: “If human beings matter in themselves, as sources of ultimate moral concern, each potentially with their own life to lead, then it is a travesty simply to ‘detach’ their interests from them with a view to maximizing the overall fulfilment of interests across persons. The individuals with these interests count in themselves and not because the satisfaction or frustration of their interests is ultimately assimilated to some overarching aggregative concern.”¹²⁶

Tasioulas argues that this provides a key to the puzzle of why rights are hostile to trade-offs: Every individual counts, and their interests must be taken into due account.¹²⁷ The dignity of human persons is based on a set of particular properties of human beings, properties that are not limited to humans’ rational nature.¹²⁸

According to Tasioulas, the following criteria must be met for a qualified interest to give rise to a right: the possibility of fulfilling the duty imposed by the right, the limitation to duties that do not confound the point of the right and, importantly, the compossibility of this right with others’ rights of the same content and a burdensomeness test. If the overall duties imposed by human rights are too burdensome for the addressees of the rights, these rights are not justified.¹²⁹ Moreover, he argues, human rights are intrinsically connected to principles of justice.¹³⁰

4.4.2.2 The Reach of Need and Interest Theories

4.4.2.2.1 Needs or Interests – Or Something Else?

Need and interest theories make an important constructive point by underlining that there can be no theory of human rights without reference to and sufficiently detailed specification of the goods these rights protect – an account that explains why these specified needs or interests count and not others.

There is much intense debate between need and interest theorists. When reviewing these discussions and controversies, many of the arguments seem to be directed not at need or interest theories as such, just at certain versions of these theories. In addition, seen from a slight distance, there appears to be a considerable overlap between these theories. In particular, the real question at stake hinges not so much on the problem of whether needs or interests are the better starting point for theory, but on which particular human goods count as relevant for the justification of human rights. The main difference between the variants of the theories as they are formulated in contemporary discussions is that the term interests is taken to be more capacious than needs. For example, it is argued that freedom of religion cannot be derived from basic human needs, or at least that the protection of manifestations of belief that usually are included in the scope of this right cannot be.¹³¹ Is this indeed so? Can we be sure that at the base of the concern for the manifestation of one’s belief there really is not some kind of deep-seated human need not only to entertain religious beliefs, but also to live according to their commands? We can even go a step further and ask: Are there any independent interests that are not connected to human needs in one way or another?

It appears that the problem with some need theories is not the idea that needs are important for human rights but the concrete interpretation of what human needs are.

Interest theorists rightly criticize certain need theories for overly restricting the goods included in the set of goods worthy of protection by human rights.¹³² However, given what already has been said, there is no reason to assume that all need theories must be so restrictive. Furthermore, there is no reason not to include both needs and interests in a wider theory of human goods worthy of protection by human rights. This has the advantage that one does not have to answer the question of where precisely needs end and interests begin – if this is indeed possible at all. Consequently, this will form part of the approach developed over the course of the further argument, while taking on board the insights that the debate about needs and interests is offering. From this point of view, it is not crucial whether one calls the deep longing of human beings to manifest their religious beliefs a need or an interest (although much speaks in favor of seeing it as a fundamental need) as long as one agrees (as one should) that this longing is a human good worthy of protection by the special instrument of human rights.

4.4.2.2.2 Needs, Interests and Human Dignity

As we have seen, an important schism runs through the interest theory camp: One influential version of the interest theory bases respect for other people on interests by pointing to people’s interest in being respected. This argument is not sufficient, however. What needs to be explained is why one ought to respect others (and respect their interest in being respected). This cannot be achieved by pointing to the interest of the agent herself in being respected because a normative element is missing from the argument. This almost becomes explicit when Raz refers to the “intrinsic desirability” of the well-being of persons, which is an evaluative judgment.¹³³ Even if the theory referred to non-normative reasons for the interest in well-being (its intrinsic desirability in a non-normative sense), the question still remains of how the normative dimension of respect for others is derived. How is the intrinsic desirability of being respected as an aspect of well-being turned into one’s right (and the right of others) to be respected?

Tasioulas’ version of interest theories that includes human dignity therefore constitutes a major improvement, offering substantial insights into the justification of human rights. It correctly highlights the importance of the equal, supreme normative status of human beings that is the reason for respecting the interests of others. This paves the way to understanding the question of possible limitations of human rights or of trade-offs. The theory provides space for weighing and balancing rights with other rights and legitimate public concerns. Such weighing and balancing exercises are, however, limited by the rights of persons to be protected as ends-in-themselves. Weighing and balancing is no license to abrogate the intrinsic value of persons and instrumentalize them. This has entered into doctrinal findings – for example, that there is an essence of fundamental rights that needs to be protected and that there are nonderogable rights or absolute rights that cannot be limited. A prime, widely accepted example of the latter is the prohibition of torture, a ius cogens norm.¹³⁴

At this point, however, the theory of justification has to take one more step, a step already encountered in our discussion of agency theories. This step consists of introducing normative principles into the argument to transform interests that as such are of no moral concern to others into something that is the object of claims and correlated duties.

This step is indispensable because both need and interest theories face a common problem we have encountered before. How do certain needs or interests give rise to normative claims and privileges on the part of the rights-holder and obligations and no-rights on the part of the addressee of rights? This is far from obvious. All kinds of needs and interests have no normative consequences at all. Why is it different in the case of some needs and interests? There is a gap in the argument between the descriptive proposition that humans have certain (important, existential) needs or interests and the normative proposition that they legitimately have the right to have these needs and interests secured:

[R]educing human rights to universal interests is a category error. Interests belong to the domain of prudence or well-being, which concerns what makes a life better for the person living it, whereas human rights are moral standards that impose duties on others, where the violation of the duty entails wronging someone in particular – the right-holder. Our interests, by contrast, can be impaired in all sorts of ways without any moral wrongdoing being in the offing, let alone a directed wrongdoing of this specific kind.¹³⁵

To refer once again to a standard example: A person for sure has a need and interest of the highest order not to die. This does not mean, however, that this person has a right to any kind of medical treatment, even if treatment is available that could save this person’s life. No person has the right that another person relinquish involuntarily a kidney, even if this would save the life of the first person and the donor would still be able to continue their life.

This remains the case even if we qualify the theory with a (very helpful) threshold criterion, according to which one precondition for the justification of a human right is that the interest protected is possible to satisfy and the consequences of the right are not too burdensome for others.¹³⁶ However, the introduction of this criterion still leaves open the question of why these qualified interests entail normative consequences. The problem of the category error remains unsolved.

Among the threshold criteria, the importance of the compossibility of the content of rights is (correctly) underlined. This points in the same direction, revealing the importance of the principles of justice that are the ultimate reason for the justification of this demand: Justice demands the compossibility of the content of the right of one person with the rights of others because otherwise the agents would be treated unequally without any justified reason.

The constitutive role of dignity allows for similar conclusions: Human dignity is a central building block of the theory of human rights, as the pluralist interest theory rightly and importantly highlights. Dignity correctly is not derived merely from interests to be respected. It is a fundamental value status of persons. Moreover, it is the origin of a normative principle, namely the principle that one ought to respect a person who enjoys this value. Human dignity is an axiological judgment with prescriptive effect. Again, the importance of normative principles becomes manifest over the course of the argument.

Such normative principles are the reason why nobody is obliged to donate their organs to save the lives of others (laudable as this would be): Such a duty would violate normative principles, in particular the principle of equal respect for personhood that prohibits the instrumentalization of persons, even for the benefit of others.

In view of these findings, the best way to bridge the gap that still remains between needs and interests even if one considers sophisticated and convincing threshold criteria is to take one more step. This step consists of including among the justificatory reasons for human rights not only human dignity as a status, but also normative principles as further coeval grounds of human rights: Humans enjoy fundamental rights because of normative principles of justice, equal respect and human solidarity that prescribe the conditions under which the needs and interests of persons to enjoy certain goods are normatively relevant and may generate claims, privileges and obligations of the rights-holders and the addressees.¹³⁷

4.4.3 The Capability Approach

4.4.3.1 Determining Desirable Functionings

The capability approach has become a paradigm in various areas of research, from economics, where it originated, to philosophy. Its core concern is how to properly measure the advantages of persons in a society. As such, it concerns a central element of normative theory and is relevant to both distributive justice and human rights. Capabilities, it is argued by leading proponents like Amartya Sen and Martha Nussbaum, give the best answer to the question of how a person’s overall advantage is properly assessed.¹³⁸ They are “the relevant space within which to make comparisons of quality of life across societies.”¹³⁹ A person’s well-being consists of qualified “functionings,” of being able to act in certain manners (“doings”) and of certain states of being (“beings”). Capabilities are neither the functionings themselves nor the formal opportunity to do or be something. Rather, a capability is a “real opportunity to achieve valuable functionings.”¹⁴⁰ It is a comprehensive opportunity: One central element of capabilities is choice,¹⁴¹ because it is not only the opportunity to achieve something that is valuable; the possibility to choose already is valuable in itself (and crucially so).¹⁴² Given different circumstances, needs and interests, trade-offs between capabilities are necessary.¹⁴³

The focus on capabilities presents an alternative not only to welfare approaches, which foreground happiness, pleasure or utility as the basic units for assessing a human being’s advantage, but also to other influential theories in which primary goods¹⁴⁴ or resources¹⁴⁵ fulfill this function. Happiness, pleasure and utility are not the only things that are valuable, capability theorists argue.¹⁴⁶ What is valuable may even determine what brings human beings satisfaction and increases their utility¹⁴⁷ – a traditional argument already considered. From this perspective, freedom is of particular importance beyond welfare.¹⁴⁸ Capability theorists agree with the argument already encountered that aggregating across distinct lives and distinct goods, as in a utilitarian approach, overlooks the importance of the individual and the different values that certain goods hold for different persons. The aggregation of utility thus gives only a distorted image of persons’ advantages.¹⁴⁹

Primary goods and resources are only means to achieve valuable ends, not these ends themselves.¹⁵⁰ By contrast, capabilities offer the opportunity to directly assess freedom, rather than counting the means to achieve it. The capability approach thus provides a broader informational basis than its alternatives.¹⁵¹ Capabilities are assessed on an individual level, because capabilities of groups are reducible to capabilities of individuals.¹⁵² Capabilities are not “interests,” because choices may concern actions that are not in the interest of the agent.¹⁵³ Sen underlines that capabilities are not the only concern for a normative theory. There are other considerations as well, such as fairness or other demands of distributive justice.¹⁵⁴

The background of the capability theory is informed by a certain idea of human existence and the worth of persons flourishing according to their own choices. In Nussbaum’s version of the approach, it is interpreted as a “freestanding” Aristotelian argument, not “deduced from natural teleology or any non-moral source”¹⁵⁵ about “the human being as a dignified free being who shapes his or her life in cooperation and reciprocity with others.”¹⁵⁶ For Nussbaum, the core of dignity is to regard human beings as ends-in-themselves: “We want an approach that is respectful of each person’s struggle for flourishing, that treats each person as an end and as a source of agency and worth in her own right.”¹⁵⁷ The peron’s individual well-being therefore is not to be traded off for the well-being of others,¹⁵⁸ depriving the person of autonomous decision-making: “For it is all about respect for the dignity of persons as choosers.”¹⁵⁹

Nussbaum’s account identifies the ethically and politically relevant capabilities according to their importance in any human life.¹⁶⁰ There is an overlapping consensus about many such capabilities.¹⁶¹ In this respect, not only their instrumental value is relevant, but also their intrinsic worth for human flourishing. Depriving human beings of a basic level of capabilities constitutes a violation of political justice.¹⁶²

How does the argument build the bridge between capabilities as real opportunities for certain functionings and human rights? Human rights are “an especially urgent and morally justified claim that a person has, simply by virtue of being a human adult, and independently of membership in a particular nation, or class, or sex, or ethnic or religious or sexual group.”¹⁶³ Capabilities are the key to identifying and justifying those claims that in this sense are especially urgent and morally justified: “The importance of freedoms provides a foundational reason not only for affirming our own rights and liberties, but also for taking an interest in the freedoms and rights of others – going well beyond the pleasures and desire-fulfilment on which utilitarians concentrate.”¹⁶⁴

Threshold criteria identify those capabilities of such a nature that they qualify to be protected by human rights. The key is their importance and the possibility for others to bring about their realization: “For a freedom to be included as part of a human right, it clearly must be important enough to provide reasons for others to pay serious attention to it. There must be some ‘threshold conditions’ of relevance, including the importance of the freedom and the possibility of influencing its realization, for it to plausibly figure within the spectrum of human rights.”¹⁶⁵

The human rights thus justified include at least central liberties, equality and claims to material goods that assure that the agent has sufficient resources to pursue a fulfilling life. In Nussbaum’s view (unlike Sen’s), it is possible to formulate something like an “objective list” of desirable human capabilities.¹⁶⁶ The theory of capabilities argues for a social structure that enables agents to achieve their goals and does not place obstacles in their way. Human rights may contribute to assuring this. The discussion of capabilities and rights primarily concerns human rights as moral rights. However, these moral rights sometimes need to be turned into legal rights.¹⁶⁷

Sen’s account underlines the difficulty of justifying duties to act, not just reasons to act, for the benefit of others – a distinction already highlighted above. In Sen’s view, one particular fundamental other-regarding duty is key: “The basic general obligation here must be to consider seriously what one can reasonably do to help the realization of another person’s freedom, taking note of its importance and influenceability, and of one’s own circumstances and likely effectiveness.”¹⁶⁸ There is a duty to concern oneself with the well-being of others, particularly if an agent has the capability to reduce injustice. Power entails responsibility.¹⁶⁹ This duty is not based on considerations of reciprocity:

Unlike the contractarian argument, the case for duty or obligation of effective power to make a difference does not arise, in that line of reasoning, from the mutuality of joint benefits through cooperation, or from the commitment made in some social contract. It is based, rather, on the argument that if someone has the power to make a difference that he or she can see will reduce injustice in the world, then there is a strong and reasoned argument for doing just that (without having to dress all this up in terms of some imagined prudential advantage in a hypothetical exercise of cooperation).¹⁷⁰

This duty does not offer quick and simple solutions for practical questions but demands that the concern for others be included in the process of decision-making about what it is right to do: “There is a universal ethical demand here, but not one that automatically identifies contingency-free, ready made actions.”¹⁷¹

Nussbaum emphasizes the egalitarian thrust of her argument.¹⁷² Human beings have a capability to relate to others and should exercise it if they do not want to lead an impoverished life.¹⁷³ The “worth and dignity of basic human powers” forms the basis for “thinking of them as claims to a chance for functioning, claims that give rise to correlated social and political duties.”¹⁷⁴ She underlines the importance of “human rights language”: It serves as a reminder of legitimate and urgent claims of human beings, is rhetorically more direct than other ways of speaking, highlights autonomy and indicates a common ground in debates.¹⁷⁵

As mentioned above, capabilities are not the only concern of ethics. There are other topics that are taken to be relevant for human rights, too, such as fairness, although the consequences of such principles are not spelled out in any detail.¹⁷⁶

In Sen’s theory, the justification of his ethical theory rests on a particular concept of reason. Reason means viability in impartial reasoning, which allows for objectivity.¹⁷⁷ Sen denies that there is any reason to reduce rationality to the pursuit of self-interest and to exclude, for example, the commitment to alleviating the suffering of others.¹⁷⁸ The demand that people be seen as equals, which is a cornerstone of human rights theory, relates to “the normative demand for impartiality and the related claim of objectivity.”¹⁷⁹ This reasoning is central to the rational vindication of human rights.¹⁸⁰

4.4.3.2 Capabilities as Key?

The concern behind the concept of capabilities relates to a classic debate about the problems of equality of opportunity. One persistent theme in reflections on justice and equality concerns the shortcomings and sometimes even moral cynicism of conceptions of formal equality.¹⁸¹ In the theory of justice and in the legal field of equality and nondiscrimination law, one major thrust consequently is to overcome the deficits of identifying equality with mere formal opportunities. Women have equal opportunities in formal terms to achieve highly qualified positions, for example, but this does not mean that they actually reach these positions. The formal opportunity of a person with a foreign-sounding name to rent a flat does not mean that the person will not be denied access to housing because of this name. Having formal opportunities thus constitutes only the first step towards equality. Such opportunities must be made substantial and real, empowering agents to reach those aims that are the conditions for a meaningful life. By now, a sophisticated set of legal instruments and extensive case law dealing with this matter have developed.

The concept of capability has the broader purpose of enlarging the informational basis for assessing what advantages for human beings consist of beyond concepts such as utility, preferences, pleasure and resources. In this context, the capability approach convincingly insists that opportunities are central elements of human goods and should be understood in a way that makes them more than just hollow promises society does not keep. In many respects, its detailed analysis has fleshed out what opportunities that are not just formal and comprehensive mean in real terms. The capability approach therefore marks an important contribution to a theory of human goods. This should be borne in mind in the following.

Human rights are (explicitly or implicitly) understood as preconditions for the opportunity of persons to lead a flourishing life. Capabilities indexed to such a way of life are more capacious than the preconditions of agency, for instance. This allows the capability approach to provide reasons for the importance of a wide variety of rights. The arguments mustered against the agency approach in this respect consequently do not hold for the capability approach. More difficult to justify from this perspective are the demands of equality. Even an unequal freedom to live according to the demands of one’s faith still may be sufficient to live a meaningful life, albeit perhaps not to the utmost extent. This raises the question of the origins of the demands of equality – a problem we already encountered when discussing the agency approaches. It is therefore right to underline – as Sen does – that there is more to a normative theory of human rights than a foundational recourse to capabilities.

A certain liberty such as freedom of expression protects a particular human good – for instance, the need to express oneself without censure. The capability approach presupposes these kinds of needs and other sources of human goods – a capability is a capability for something, and the question is where these valuable somethings stem from. The answer to this question refers to a certain valuable form of existence, the existence of free, dignified human beings who lead a truly human life. It is argued that certain capabilities are important in any form of human life an agent may want to choose and that there is something like an overlapping consensus on what these capabilities are. These are further helpful observations on the way to a comprehensive theory of human goods, and they chime well with traditional arguments in the history of human rights – say, Las Casas’ defense of the value of freedom not only for Spaniards, but also for indigenous Americans. A question that remains to be answered, however, is what criteria determine which human capabilities are sufficiently important to generate rights and ultimately form such a consensus. This is particularly relevant for human rights because they are highly restrictive with respect to the goods they protect. This selectiveness needs to be justified.

A capability approach thus is no alternative to a theory of the sources of human goods. Rather, it depends on such a theory. Even if a capability approach were to interpret the capabilities protected in a formal fashion, not only (rightly) underlining the importance of choice, but also leaving it entirely up to the agents to autonomously determine what the content of a flourishing life might be, a statement about human goods is implied, as we already have seen. The protection of autonomy presupposes at least that human life is worth living and that freedom and autonomy as preconditions for making choices constitute elements of any meaningful life. Otherwise, there would be no reason at all for their protection. Here, too, the question of the reasons for this valuation of autonomy arises. This confirms a key insight of the discussion so far: A human rights theory implies a substantial theory of human goods.

One challenge that the capability approach faces as much as any other human rights theory stems from the fact that rights consist of claims towards others and create obligations. They impose normative burdens to be shouldered by all that often translate into real, material burdens on the addressees and are the price to be paid for respect for human rights. As we have seen, these claims and obligations cannot be derived solely from the importance of a good for agents – for example, the importance of the real opportunity to speak their mind. One can acknowledge readily the significance of such a good for oneself and others and still ask: “Why do I have any duties concerning things that are (admittedly) important for others?” Normative principles are thus required that can serve as the foundations of such other-directed claims and obligations.

The capability theory makes some very important theoretical moves that help to provide a deeper understanding of the issue. Particularly crucial in this respect is a more capacious and thus plausible concept of rationality and reason, which includes certain other-regarding principles that are not derived from self-interested, utility-based calculations. In addition, principles of obligatory respect for equality and equal treatment play an important role. Finally, the principle of human dignity and the worth of individuals as ends are highlighted, notions that play a central role in the wider discourse on human rights in both ethics and law and that indeed seem to be key to understanding the importance of the individual in the idea of human rights.

Nevertheless, based on these results further questions arise. In Sen’s account, the other-regarding duties result from the power to change the situation of another person for the better.¹⁸² This seems to presuppose some duty to be beneficent to others rather than explain the foundations and content of this duty. A power entails responsibilities only if others exposed to this power count in normative terms. As such, it does not entail any duties not to harm others or to promote their well-being. Grounds for these duties independent of the factual ability to influence the lives of others are required. The same holds for an argument based upon the importance of a good for others (or oneself): The importance of a good as such has no normative implications.

In Nussbaum’s account, these other-regarding duties seem to be equated with the capability to relate to others. This capability, however, important as it is, is something other than the normative duty to care for others. The ability to relate to others is not the same as the duty to care for their well-being. The powers of human beings, Nussbaum argues, give rise to claims to be able to exercise them. How can the transition of the fact of given human powers into normative claims be explained without committing the category error identified above?

Similar problems arise for the principles of justice invoked. The thrust is clearly egalitarian. But what exactly does the argument look like? How is equality as a normative principle to be understood? How does it provide foundations for human rights? Furthermore, what is the relation between human beings, viewed as ends because of their dignity, and the wider normative conclusions drawn about claims on others in the form of human rights? Is the dignity of “choosers” all there is at stake?

In this context, it should be underlined that human rights are not just about a “language of rights” in the sense of a rhetorical device or a way of speaking. The theoretical problem they pose is that of a particular, deontic status of human beings. This status has an identifiable content. The central problem of the justification of human rights is to account for the reasons to assume that human beings do in fact enjoy this particular status with its concomitant claims of the rights-holder and duties of the bearer of the rights. This deontic status is what the language of rights refers to – and correctly so, if this idea is successfully justified.

This leaves us with a task. The structure and content of the normative principles that render the importance of enjoying a rich set of capabilities normatively relevant need to be spelled out in more detail than the capability approach provides, as does the way that these normative principles translate into arguments for the justification of human rights. Only if these principles are exposed in the full daylight of critical reflection can answers be provided to the questions of their justification and their relation to human moral psychology and their epistemological status, a central concern of this inquiry. In this respect, it is interesting to investigate whether equality as a normative concern is wedded to impartiality and objectivity in reasoning, and if so, in which sense, or whether the normative principle of equality has different sources.¹⁸³ The origin of rights in normative principles, the coming into being of this intricate web of normative incidents that empowers the rights-holder through claims and privileges and entangles the addressee in obligations and no-rights under some apparently nonarbitrary conditions thus still needs to be fully accounted for, despite the many insights provided by the capability approach.

One last point: Sometimes capabilities appear as synonymous with effective human rights, contrasted to moral rights to something.¹⁸⁴ It is, however, important to distinguish the function of fully realized capabilities as yardsticks for human rights rendered effective (in particular in the legal domain) from the prior question of how to account for the normative content of human rights that is to be made effective. How to make the right to education effective for girls in the Global South is a highly important question, but it differs from the problem of why it is justified to think that such a right exists in the first place.

4.5 Political Conception

4.5.1 Human Rights and the Veil of Ignorance in the International Sphere

A prominent approach in human rights theory developed by Charles Beitz outlines a political conception of human rights. The starting point for this approach is Rawls’ transferal of his own contractualist theory of justice, already discussed in part above, to the international sphere. In this framework, human rights are understood as those rights that form a shared normative framework for liberal democracies and other “decent peoples,” in particular hierarchical, nondemocratic societies, the latter characterized by a conception of justice linked to an idea of the common good and a consultative, albeit nondemocratic process of political decision-making. This shared normative framework is based on public reasons, because there is a “duty of civility requiring that they offer other peoples public reasons appropriate to the Society of Peoples for their actions.”¹⁸⁵ Both kinds of societies form the set of “well-ordered peoples.”¹⁸⁶ These peoples need to be seen alongside “out-law states” without respect for human rights, “burdened societies,” which are poor, and “benevolent absolutisms.”¹⁸⁷ Human rights in the international sphere are the products of deliberation behind a “veil of ignorance,” Rawls’ famous tool for neutralizing bias and interest. This deliberation is performed not by individuals, however, as when determining the basic principles of justice, but by peoples, which are the moral subjects of international law.¹⁸⁸ The veil deprives the peoples of knowledge about the size of their territory, their number of inhabitants, their strength and the like, information that may skew their judgment about the appropriate international order.¹⁸⁹

Human rights are defined by being of international concern. One central indicator for this concern is the fact that these rights may justify an international intervention by other actors in the affairs of a state, in particular an outlaw state.¹⁹⁰ This approach to human rights thus is a functional account: The content of human rights is dependent on the function human rights serve, which is to determine the grounds for intervention. The list of rights derived from this starting point is considerably shorter than standard human rights catalogues – for example, it does not encompass a cornerstone of the international protection of human rights such as the equal protection of freedom of religion, among other liberties.¹⁹¹ The reason is that “decent hierarchical peoples” do not accept such rights and cannot be coerced into doing so.¹⁹²

4.5.2 The Political Conception Reframed

On this basis, Beitz outlines further arguments for a political conception of human rights, which in some important aspects breaks new ground and provides fresh insights into the problems of the nature and justification of human rights. This approach does not argue on the basis of some kind of abstract foundational normative principle: “We do better to approach human rights practically, not as the application of an independent philosophical idea to the international realm, but as a political doctrine construed to play a certain role in global political life.”¹⁹³

Consequently, this approach turns its attention to a political practice in which human rights count as reasons for a specific restricted set of actions – human rights are “transnational action-justifying norms.”¹⁹⁴ The content of human rights, Beitz argues, is best derived by understanding the meaning of this practice. The task consists of determining the concept of human rights that best fits the nature of this practice. The approach “tries to grasp the concept of human rights by understanding the role this concept plays within the practice. Human rights claims are supposed to be reason-giving for various kinds of political action which are open to a range of agents. We understand the concept of a human right by asking for what kinds of actions, in which kinds of circumstances, human rights claims may be understood to give reasons.”¹⁹⁵

The international practice of human rights is only emergent.¹⁹⁶ Its outline needs to be derived from an informal construction of its content.¹⁹⁷ Thus, admittedly, the properties of the practice of human rights are in many ways amorphous, but they are still sufficiently established for this approach to succeed.¹⁹⁸

The political conception of human rights allows their practice to be criticized from a normative point of view.¹⁹⁹ It argues, however, that one has “to distinguish between the problem of describing human rights [and] the problem of determining what they may justifiably require and identifying the reasons we might have for acting on them.”²⁰⁰ The approach intends as a crucial step to identify what agents commit themselves to if they participate in the practice of human rights.

The reasons for this approach are, first, that there undeniably is a substantial social practice connected with human rights.²⁰¹ Second, there is a “prima facie reason to regard the practice of human rights as valuable. On the face of it, its norms seek to protect important human interests against threats of state-sponsored neglect or oppression which we know from experience are real and can be devastating when realized.”²⁰²

Human rights are distinguished from other norms by being of global concern: “The central idea of international human rights is that states are responsible for satisfying certain conditions in their treatment of their own people and that failures or prospective failures to do so may justify some form of remedial or preventive action by the world community or those acting as its agents.”²⁰³

Importantly, human rights practice is not only a legal practice. On the contrary, it is argued, important dimensions of the international practice of human rights are political, not legal. Consequently, this account diverges from the legal paradigm.²⁰⁴

Beitz develops a two-level model²⁰⁵ that underlines the priority of the (legal and political) protection of human rights by states.²⁰⁶ The international protection of human rights adds a second level with its own particular features. Emphasizing that human rights are of international concern does not mean equating the practical expression of this concern with military intervention. On the contrary, military intervention represents an exceptional case of political action motivated by this international concern.²⁰⁷ The international community has at its disposal a variety of other legal and political means that are far more important in practical terms to enforce (or try to enforce) human rights.²⁰⁸

The political approach not only provides a piece of descriptive human rights sociology, but also aims to identify criteria to justify or criticize certain human rights contents.²⁰⁹ It tries to contribute to answering all of the questions identified above.²¹⁰ Its basis is a kind of interest theory of the justification of human rights: Human rights claims are justified, it is argued, if there is a qualified interest, if the state has effective means at its disposal to foster this interest and if the failure of a state to protect the interest would be a legitimate object of international concern.²¹¹

Such a justificatory account of human rights claims includes empirical generalizations about causes for grievances and effective policy means and thus about social behavior and the working of social institutions.²¹² Interestingly, “an empirical truth about human nature” also plays a central role: Following Rawls, Beitz argues that the ability of every human being to form a conception of the good constitutes such an empirical truth.²¹³

According to Beitz, this kind of account shows that human rights are not the whole but only a part of social justice.²¹⁴ The practical conception of human rights has a justificatory function that makes it possible to critically assess human rights claims – for example, as to welfare rights,²¹⁵ rights to political participation²¹⁶ or women’s rights.²¹⁷ This account is not called into question by the plurality of moral outlooks in different societies: The toleration of such divergent perspectives is (ultimately) conditional upon the respect for individual interests,²¹⁸ the most fundamental of which – like physical integrity – are by no means parochial Western concerns.²¹⁹

4.5.3 A Fresh Start?

The political conception of human rights hopes to offer a “fresh start” for human rights theory that is better than other accounts. But does it succeed in its aim to make the normative meaning of current human rights practice fruitfully explicit?²²⁰ And is this the key to the many riddles of human rights?

One problem that may be worth considering is the descriptive adequacy of the political conception’s account of human rights practice. As indicated above, important rights guarantees are found in constitutions and other national legal instruments. In addition, regional, international or (in a technical sense) supranational layers of human rights guarantees are added to this primary element of human rights protection. Finally, there are universal international law systems of human rights protection. The international system of human rights is consciously designed to be complementary to the initial municipal level of their protection, which is of crucial importance in practical terms.

Consequently, it is important that – unlike in Rawls’ own account – Beitz’s conception highlights the primacy of the domestic protection of human rights.²²¹ Despite this, however, there is no substantial engagement with regional or national systems of the protection of human rights and with what they may teach us about the concept of human rights. Human rights are certainly of international concern, but not only that. Considerations of reasons for international agents to take action highlight only part of the practice of human rights and only part of their function in political orders, and in fact not the most important ones.²²²

This focus runs the risk of obscuring important differentiations. The domestic protection of human rights and the complementary regional and international systems (ideally) share a common goal but follow their own rules in certain respects. For instance, one crucial (practical) debate concerns the deference of the international interpretation of human rights to national human rights practice – the doctrine of a “margin of appreciation” of states in the ECHR system illustrates this question’s content and key importance. Arguments are required to define the scope of such a “margin of appreciation” and – importantly – its limitations. This aspect of the practice of human rights may have important consequences for understanding the idea of human rights – for example, as to its universality and the manner in which it relates to the many ways of interpreting the concrete meaning of human rights. This example shows that just looking at human rights in international law does not tell us enough about the true practice of human rights.

Another element of the practice of human rights – from an international perspective – is its robust inclusion of private individuals and legal persons as addressees of human rights, although this takes place to varying degrees and in controversial ways. It thus is important for conceptions of human rights to account for the idea of such horizontal effects.

The most important point, however, is the following. The practice of human rights is understood as the key to determining what kind of actions in which kind of circumstances are justifiably demanded by human rights claims. The practice appears to be a settled given. The first question one can ask is: Why should one take the practice as it is as a starting point? A practice may be flawed, being based on error and ideology, for instance. There needs to be a way of addressing the challenge that the current human rights practice may make no sense at all, that it may be ill-conceived from its very beginning. The argument thus starts from the assumption that a practice makes sufficient sense from a normative point of view. It is not naked facticity that is the reason for forming a conception of human rights on the basis of a certain practice, but rather the (assumed) legitimacy of this practice.

A second question relates to and confirms this point: What kind of practice is actually taken as relevant? The current practice of human rights has very many, often conflicting aspects – even more so if one seriously considers its past and keeps the distinction between morality and law in mind. Human rights often do play the role they are supposed to play as normative demands with which human beings try to do justice to their human dignity. However, they very often also are no more than ideological talk used for political purposes, not least to camouflage narrow interests. They can serve as pawns in geostrategic conflicts, as during the Cold War, when human rights were deployed as useful tools against authoritarian enemies but considered of little relevance if an equally authoritarian regime was seen as an ally.

Identifying what counts as a practice of human rights properly speaking thus already is a normatively loaded enterprise. This identification is not independent of a philosophical, theoretical normative standpoint – it implies it. More concretely, it hinges on some kind of assessment of the importance of the goods protected, of the proper politics of rights and (at least) of some normative principles. It is therefore crucial to spell out the theory of goods (as agency, need, interest and capability theories rightly do), the political assumptions and the normative principles involved, as these are the sources of the idea that the particular practice is in fact legitimate and worth considering, as we will see in more detail below.

Let us take the example of humanitarian interventions that seek to protect human rights. There are certainly some elements here of an emergent practice, though its status under international law is far from clear. Why should this practice be able to determine the content of the concept of human rights? Perhaps the practice is in fact nothing but disguised imperialism and thus leads to a less than convincing conception of human rights. The question of whether or not human rights are of sufficient weight to be of international concern and may even justify intervention requires some kind of standards for assessing their importance. It is unclear how the weight of human rights can be assessed without (among other things) a principled account of the importance of the protected goods for human beings and of the human goods that may be at stake as a consequence of such an intervention. The political conception of human rights offers no alternative to a theory of goods – on the contrary, it presupposes such a theory. The same is true for the political evaluation of rights and for the normative principles involved. Would a practice of human rights distorted to the detriment and disadvantage of less powerful countries, as some claim the practice of humanitarian intervention is, not be an illegitimate violation of normative principles – for example, of international justice and equal respect for human beings, irrespective of the country in which they live? It is worth remembering that for many years the practice of human rights relied on the exclusion of a vast number of human beings from the protection of human rights – the colonial exception clause of the ECHR has been mentioned various times in this respect. The political and normative presuppositions of arguments challenging such exclusionary practices thus need to be identified and spelled out.

All of this points to a central conclusion: Only from a normative point of view can a human rights theory achieve its twofold aim, namely to refute skeptics who think that the whole practice makes no sense and to calibrate the concrete content of human rights. It is not a given practice that is the key to the concept of human rights; rather, a justificatory theory of human rights is the key to identifying (and building) a legitimate practice of human rights.

That this is indeed the case seems to be confirmed by the fact that the political conception of human rights explicitly states that the practice it considers serves prima facie legitimate normative aims.²²³ The reason for this can only be that the existing emergent practice gives due weight to the dignity, freedom and equality of human beings. Clearly, those elements of the international practice of human rights that are identified as the relevant parts of the overall social practice of human rights are chosen because they live up to the promise of protecting these core values. By contrast, the ideological use and the political abuse of human rights and the hypocrisy and window dressing practiced in their name are taken to be irrelevant for the central task of determining what the relevant practice really is because they violate the normative vision of human rights.

In addition, the political approach even outlines a theory of legitimacy, or, in more concrete terms, a modified interest theory of the justification of human rights.²²⁴ It underlines the critical power of the political conception of human rights,²²⁵ which is, after all, not just a descriptive sociology of certain facts of international political life.²²⁶ One example, and a telling one at that, is the Helsinki Process.²²⁷ This process and the transformative influence it had (in the circumscribed way this can be said in complex historical cases) upon Europe came about because a certain conception of human rights was made politically relevant – a conception that is not just a rhetorical facade but takes individual liberty, in particular political liberty, seriously. This example shows that the practice of human rights is a contested territory, shaped and continuously reshaped by the struggle over the meaning of human rights and the normative principles that should guide their understanding. Human rights practice is not a simple given that can be relied on to build a theory of human rights.

The same conclusion can be drawn from the discussion of the limits to the acceptable differentiation of normative terms or the demands of international tolerance. The argument that the concerns of individuals are central and may trump those of communities rests on a normative thesis, namely the importance of individual autonomy, an idea that guides the entire theoretical enterprise.

The political conception of human rights therefore relies on an argument without a completely explicit premise: Its conception of human rights is not just derived from a given identified practice and its content determined on other than normative grounds. A prior normative stance is itself the foundation upon which the identification and evaluation of the practice as justified prima facie unfolds.²²⁸ The possibility of determining the content of a legitimate set of human rights depends on this normative stance.²²⁹ Everything thus hinges on this normative theory. The attempt to leave the problems of justificatory philosophical theories behind leads right back to the very theories that the political conception of human rights had hoped to transcend.

This notwithstanding, the political theory provides many insights. One key point for the current argument is the fact that it highlights the “beneficiary-centeredness” of some of the discourse on human rights: Such a perspective does not provide sufficient reasons to normatively account for the duties implied by human rights.²³⁰ These theories focus on what is at stake for the rights-holder and go into far less detail on why the implied burden for the addressee (whoever that may be) is supposed to be justified. This burden can be substantial. The social price paid for the protection of human rights often is considerable; society may even incur great risks in their protection. Liberal rights entail the possibility of abusing of these liberties, with potentially severe consequences: “So there is the further question why an agent who is in a position to respect and protect the right should do so?”²³¹ This is the case for all levels of human rights protection. Why should human beings accept the rights of strangers who happen to share the same citizenship but perhaps nothing else? Why should they feel obliged towards people in faraway countries? Why does the suffering and well-being of individuals other than oneself matter in a particular manner that gives rise not only to pity or compassion, but also to rights and the duties they imply?

The reasons discussed for imposing such burdens are not entirely satisfactory, not least because attention is focused upon the international protection of human rights.²³² However, the formulation of the problem underlines a key finding of our discussion of justificatory theories of human rights so far: The burdens imposed by rights and the normative position the addressees of these rights find themselves in point to the relevance of normative principles. What else could be a promising candidate as the source of these sometimes-exacting duties?

4.6 Human Rights and the Art of Living Well

A theory pioneered by Ronald Dworkin understands rights as trumps in structural terms, analyzing them in terms of rules and principles (as discussed in Chapter 1 on the concept of rights). Substantially, Dworkin argues, human rights are a central pillar of lives lived well so that they become “tiny diamonds in the cosmic sands.”²³³ The foundational principle of human rights is human dignity. This obviously tallies with explicit statements of modern human rights law, though this is only a subchapter of his thought. For Dworkin, dignity in concrete terms means self-respect and authenticity.²³⁴ From this, explicitly following Kantian lines, he derives the guiding principle for ethics, political philosophy and (as part of the latter) law: “Kant’s principle,” as he calls it, holds “that a proper form of self-respect – the self-respect demanded by that first principle of dignity – entails a parallel respect for the lives of all human beings. If you are to respect yourself, you must treat their lives, too, as having an objective importance.”²³⁵ One only respects oneself if one respects the humanity of all. The moral standard derived from dignity therefore is equal concern for all and respect for personal responsibility – a standard that, unlike the concrete shape it takes in different systems of positive law, is universal.²³⁶ The canonical human rights can be derived from this principle. In light of this standard, norms that prohibit acts exhibiting a belief in the superiority of certain groups, the protection of basic liberties and the impermissibility of torture and punishing people for the benefit of others rightly are regarded as human rights.²³⁷ The exact details form the object of debate – for example, about the meaning of controversial concepts like dignity that are neither criterial (i.e. for which no set criteria of use applies) nor natural kind concepts but interpretative; that is, in need of interpretation to determine their content.²³⁸

Like the other theories discussed, this argument strikes an important note by emphasizing the connection between dignity and rights. In central aspects, it is an objective reason argument of the kind already encountered and therefore poses a related question: Why is dignity a source of the special normative status of having rights? Why does it create duties? Is dignity the only foundational principle in this respect, or are other normative standards important, too? Framing the theory in the terms of a eudemonistic concept of a life lived well does not solve this problem. Living well does not just mean to feel pleasure but to live according to a normatively loaded vision of life – which leads back to the content and justification of the normative principles defining this vision of life. The problems that seem to haunt the theory of human rights raise their heads once again.

4.7 Summary: Affirmative Theories of Human Rights

This discussion of some exemplary justificatory theories has not provided a full map of the theoretical landscape but has allowed for some constructive insights important for our inquiry. The discussion of social functionalist theories of human rights underlined that human rights prioritize the goods of individuals, not the functional imperatives of societies. Contrariwise, these functional imperatives themselves are dependent on the normative yardsticks of social organization, including human rights. The classic economic analysis of law faces a related problem: Rights are limiting conditions for any efficiency regime and therefore presuppose a justification independent of the efficient allocation of resources in society. Behavioral economics provides important insights into the psychology of decision-making to which we will return. The idea of bounded rationality, however, demands an answer to the question of what fully rational decision-making would mean and which normative principle should guide its exercise.

Rule-utilitarian defenses of human rights face at least two problems: First, it is not socially aggregated goods that are relevant for normative theory but individuals, who thus cannot be ignored when building a normative theory. Second, the power and many beneficial consequences of utilitarianism derive from its respect for the equality of human beings. This normative principle of equality is not itself derived from the principle of utility, however, but is its foundation.

Discourse theory relies on normatively loaded presuppositions that are the precondition, not the product of moral deliberation. Contractualism points to its own normative foundations that transcend a contractual compact. Theories discussing agency, needs, interests or capabilities as the foundation of human rights have illustrated the importance of the following point: It is a category error to draw normative conclusions such as the existence of rights from the importance of a human concern. Normative principles need to explicate why such concerns of individuals become the object of rights and the normative burdens of duties of the addressees. Moreover, they provide important insights for a plausible theory of human goods relevant to the theory of human rights.

The political conception of human rights reminds us of the weight of human rights: They are not just parochial concerns but central commitments of the entire human community. The political theory thus renders human rights theory a very important service: It reminds us of the stakes of justification. The practice of human rights is not a simple given but contested territory that takes its shape according to the normative theory of the human rights defended. Accordingly, it cannot become the ultimate foundation of the idea of human rights.

The derivation of human rights from a conception of a life lived well that is centered on human dignity, understood as authenticity and autonomy, underlines the importance of dignity for the theory of human rights, as the pluralist interest theory and the capability approach do as well. Among other questions, this derivation raises the issue of how to bridge the gap in the argument between the perceived worth of one’s own life and ensuing rights and duties of oneself and others. A normatively loaded vision of a life lived well does not offer an escape route from these questions.

These findings only scratch the surface of the sophisticated thoughts underlying these approaches. Much can be learned from these theories, and no one working in this field should feel confident to be able to produce anything remotely as thoughtful. This notwithstanding, none of these theories seem to answer the question of the justification of rights in an entirely satisfactory manner. Therefore, it may be useful to take a step back and once again consider how we can make some progress in this respect. This review seems to suggest that the problems initially identified are of real relevance. So far, there appears to be no way around a theory of human goods, a political theory of human rights and a theory of their normative foundations. Let us explore, then, how far we can travel along this path.

5 A Castle of Sand?

Man darf nicht vergessen, daß am Anfang dieses Krieges, der nicht 1939, sondern 1933 begann, die Abschaffung der Menschenrechte stand. “Die Menschenrechte sind abgeschafft”, verkündete damals Dr. Goebbels im Berliner Sportpalast, und zehntausend blöde arme Teufel brüllten ihren kläglich-widersinnigen Beifall. Es war eine geschichtliche Proklamation, die prinzipielle Grundlage für alles, was Nazi-Deutschland heute den Völkern, einschließlich des eignen Volkes, zufügt ….¹

Thomas Mann, BBC radio address, January 1942

Ob die anderen Völker in Wohlstand leben oder ob sie verrecken vor Hunger, das interessiert mich nur soweit, als wir sie als Sklaven für unsere Kultur brauchen, anders interessiert mich das nicht. Ob bei dem Bau eines Panzergrabens 10.000 russische Weiber an Entkräftung umfallen oder nicht, interessiert mich nur insoweit, als der Panzergraben für Deutschland fertig wird. … Das ist das, was ich dieser SS einimpfen möchte und – wie ich glaube – eingeimpft habe, als eines der heiligsten Gesetze der Zukunft: Unsere Sorge, unsere Pflicht, ist unser Volk und unser Blut; Dafür haben wir zu sorgen und zu denken, zu arbeiten und zu kämpfen, und für nichts anderes. Alles andere kann uns gleichgültig sein.²

Heinrich Himmler, Posener Rede, 4 October 1943

By every civilized and peaceful method we must strive for the rights which the world accords to men ….

W. E. B. Du Bois, The Soul of Black Folk

5.1 The Sources of Human Goods

5.1.1 No Foothold for Rights?

Our discussion of affirmative theories of human rights has clarified many of the aspects that a theory of the justification of human rights needs to address. Our review has shown that, in one way or another, the theory of human rights needs to determine the sources of the goods to be protected by human rights, outline the political theory of human rights and identify the normative principles that generate human rights. Our initial assessment to this effect in the last chapter proved to be correct. Accordingly, we will address these topics – goods protected, political theory, normative principles – each in turn. The question to be dealt with first is: Which goods are justifiably protected by the normative instrument of human rights?

The goods that rights protect are defined by the material scope of rights. This seems clear enough at first view: The right to free speech protects the freedom to express oneself as one pleases, freedom of religion the ability to pursue one’s own spiritual path in both thought and deed. However, it is important to note that such abstract definitions of the scope of rights leave many questions unanswered. The practice of fundamental rights law illustrates this vividly: The prima facie scope of these rights already is often unclear, failing to determine, for example, whether hate speech is part of the content protected by free speech rights or not. The different legal traditions are divided regarding this issue, as the different approaches in Europe and the USA show. In addition, the meaning of rights and thus the definition of the goods protected are not set in stone; they are shaped and refined daily in the sphere of law by the work of thousands of lawyers, by court decisions, by legislative acts and by public deliberation about new normative challenges.

In this context, it should be noted that if we seek to understand the full meaning of a right in a given legal framework, it is not enough just to look at the scope of this right as guaranteed in the respective catalogue of rights. The system of limitations is important as well. For instance, in German constitutional law there is no right derived from freedom of faith (which is a human right in the technical sense) not to be exposed to religious symbols of others – an important matter where the constitutionality of wearing, for example, a hijab as a teacher in state schools is concerned.³ Only in this concrete sense is freedom of religion protected all things considered.

To take another example illustrating why limitations matter greatly for the scope of rights: In some systems, there is a residual right protecting any kind of exercise of human freedom, which in German constitutional law includes riding one’s horse in a forest, to use this famous case from German law.⁴ However, this does not mean that any kind of use of freedom is protected – quite to the contrary, as interferences with this right are easily justified by reasonable considerations of common goods or rights of others. Riding on prohibited paths is not a trump of German equestrians.

Including a right in a human rights catalogue thus is just one step along the road determining this right’s scope of protection in concrete cases. A further crucial step is the system of limitations. In order to determine the proper content of such a system of limitations, it is necessary to consider the weight of other rights and other concerns. These considerations themselves need to be informed by criteria determining the importance of the rights and common concerns at issue for human life and society. The theory of goods is therefore relevant when determining the proper limitations of human rights, too.

The same kind of issues can arise in moral reflection if we turn our attention to concrete questions of human rights protection.

Leaving these necessary qualifications aside for a moment, it is easy to identify some core elements of what human rights protect. In particular, we said, these include the inalienable worth of human beings (called their dignity), their physical and mental integrity, a set of specific liberties, equal treatment and – controversially – the means for their physical subsistence and, more ambitiously, the material preconditions for a dignified life secured by social rights.

Is this a good start to a list of goods worthy of protection for all human beings, irrespective of gender, cultural and social background, skin color and ethnic origin, age, religion or belief, sexual orientation or any other of the myriad differences between human beings? Is it a useful first step towards a more detailed account of what is justifiably protected by human rights? How can we cross the apparent gap between these abstract goods and the concrete questions to be answered in law and applied ethics? What are the deeper reasons for including these goods in the human rights catalogues of greatest practical relevance (with the exception of social rights, which are more selectively found in positive law)? How culturally and historically relative are these concerns? How malleable are human beings in this respect? Can the reasons for including certain goods in human rights catalogues help to solve the problems posed by recent approaches seeking to expand the reach of human rights? What about privacy in the digital age, for instance? To take a concrete example: The right to be forgotten – does this make sense?⁵

One promising way to determine how a human good becomes a suitable object of protection by human rights is to look first at clear cases. Why is there little controversy about certain liberties – for instance, as suitable objects of protection? One interesting fact about the drafting of the Universal Declaration is that a whole range of rights were pretty much beyond doubt. The ultimate abstentions did not stem from opposition to the whole rights catalogue. They were motivated instead by the nonacceptance of certain rights, not least freedom of religion, not of human rights as such.

The freedom of the person from unjustified detention, for example, is a classical human right – in the words of Art. 9 Universal Declaration, the right not to “be subjected to arbitrary arrest, detention or exile.” This right is an archetypal element of the development of rights and its foundational documents such as the Magna Carta. The human good protected is personal liberty, the freedom not to have to stay in a certain confined place due to incarceration or being banned from a certain territory if there is no sufficient reason for this. In addition, this right protects related goods of which an agent is deprived if in custody or exile. It protects a central precondition of the many uses of liberty and the free development of the individual. The question to be answered in more concrete terms is, then: How are we to justify the selection of certain goods as suitable for protection by human rights without succumbing to cultural bias and parochial perspectives?

The central rationale of human rights is to protect those goods that are of particular, even existential importance for all human beings. This implies that a good such as not being subjected to arbitrary arrest does not protect mere personal preferences that vary from person to person. This is not a theoretically innocent move but is based on very substantial assumptions: Human rights presuppose that there are certain objects that are valuable to all human beings. Consequently, the goods that are candidates for protection by human rights somehow need to be plausibly related to what is intrinsically human and transcend merely adventitious needs dependent on individual idiosyncrasies. In this first sense, they are objective.⁶ Such goods also are objective in the second sense that they are regarded as worthy of protection even if an individual disagrees: Freedom from arbitrary arrest is justifiably also protected for those who deny its value – for example, the advocates of an authoritarian police state. These assumptions only make sense if the further precondition that these goods must be of approximately equal value for all human beings is met: Freedom from arbitrary arrest must mean roughly the same for person A as for person B. Importantly, there is a diachronic element, too: Human rights attempt to capture more than the fads of a particular group at a certain transient moment in time. They aspire to be relevant for long stretches of time, if not in detail, then at least in their main normative tenets: Freedom from arbitrary arrest was of considerable worth in 1215 not only for the nobility, and it remains valuable today. This is also true for human rights’ most fundamental principles: The guarantee of human dignity in human rights ethics and law has no expiration date. This stance clearly does not mean to imply that there is no cultural change.⁷ The underlying assumption is rather that whatever change takes place unfolds legitimately only under the condition that the goods protected by human rights are preserved. Whatever the cultural evolution of certain groups or humanity in general brings, not being arbitrarily detained, for instance, will be a condition of its normative legitimacy.

In sum, the theory of human goods presupposes idealization, in the technical sense of abstraction from difference, not in the sense of making something better than it actually is, nor in the sense of denying difference and particularity. This move is necessary in many scientific fields – a predication about the functioning of human kidneys abstracts from the differences between individual human kidneys without denying that these differences exist. For the purpose at hand – say, some nephrological thesis – these differences are simply not relevant. For the purpose of human rights, the fact that freedom from arbitrary detention is of substantial value for both person X and person Y is relevant, not other facts that distinguish X and Y. There are various such goods. In real life, they are interrelated in many ways, and their enjoyment is full of trade-offs.⁸

Accordingly, it is not an accidental, historically contingent convergence of preferences of human beings at a particular time that is at issue, but the idea that there is something in the human condition that persists over time, something in the existential makeup or – to use the most traditional, albeit rather controversial term – the nature of human beings that makes these goods valuable to all of them.

This presupposition that certain goods are valuable to all human beings because of their particular human condition, existential makeup or nature points to a difficult step that a theory of the justification of human rights has to take: It appears that no theory of these human goods protected by human rights is possible without a substantive anthropology. Human rights protect the goods not of any being but of human beings, irrespective of personal differences. Therefore, we need to determine what makes a human being human.

How can there be a justification of the importance of liberty and self-determination for human rights, for instance, without the assumption that human beings are made in such a way that liberty and self-determination are of great worth to them, and that arbitrary detention, for instance, holds little attraction for them?

Is this kind of substantive anthropology possible at all, however? If not, the project of human rights rests on shaky foundations. Unfortunately for the case for human rights, very influential lines of thought cast doubt on precisely this possibility. Human beings’ ability to leave the bounds of nature behind and to create a second world of culture is a central theme in the history of ideas, and rightly so. According to influential theories, some of which we already have recalled, this ability includes their own nature: Human nature is not stable and fixed but is constantly changed and recreated throughout history. As Marx formulated paradigmatically in his theses on Feuerbach, human nature is the ensemble of all social relations.⁹ Nietzsche considered human beings to be “nicht festgestellte Tiere,” animals without a fixed nature.¹⁰ Formerly openly fascist anthropologists such as Gehlen, who remained influential after 1945, held that humans are deficient beings (Mängelwesen) that need to be formed by powerful institutions.¹¹ Rorty talked about humans as “protean beings.”¹² At a certain stage in his thinking, Foucault held that humans’ self-conceptions are nothing but faces drawn in the sand by social forces, sketches that will be obliterated by future social change.¹³

From this perspective, a supposedly fixed “human condition” is thus in fact dependent on the social and not least economic structures that create the characteristics of the humans of a given age in their own image, the capitalist society the egoistic bourgeois, the panoptical society of domination the socially adapted subject of modern society, a subject that has internalized the epistemic structures of its own subjugation or in colonialism the ideologies of the colon.

Some of these theories have contributed greatly to our understanding of the historical and social contingency of elements of human lifeworlds that are indeed far from natural. Whatever one may think of the capitalist economy – or, more precisely, of its many very different conceptions from Manchester capitalism to the social market economy – it is certainly the product of history and political choices. The ways of living developed within this framework, be they a life guided by something like the “spirit of capitalism” described by Weber or forms of consumerism, are equally contingent. The critique of racism has been fostered considerably by the denial of any racial differences in human nature. The critique of the false naturalization of historically contingent forms of life is thus hugely important.

It is quite another matter, however, to assume that there is no such thing as an identifiable existential makeup of human beings – a human nature, if you will. It is important to note that doubts about a shared set of human characteristics concern not the physical makeup or even all mental properties but only particular psychological properties of human beings and the consequences of these properties in human thought, emotion and action. Nobody holds that the intricate functions of the human body – say, upright posture – are the product of the ensemble of human social relations. Upright posture (a cognitively demanding faculty) is not interpreted as a product of capitalism, for example. Nor does anyone hold that the specific makeup of visual cognition – say, the ability to interpret certain visual experiences as permanent solid bodies located in three-dimensional space – is historically contingent. The fact that there is a human nature in these physical and cognitive areas is thus uncontroversial. The question is, rather, whether and in which sense this human nature extends to such sublime desires as the longing for freedom and respect.

No demonstrably true insights exist in this area. The question of what human beings are ultimately like is too complex for this. The best one can do is review the plausibility of the arguments that speak for and against the assumptions implied by human rights about certain shared human properties, such as the desire for self-determination, and their importance for the design of rights.

Before one can even start to consider this line of thought, one has to take seriously the possibility that something like a human nature extending to the cognitive domain actually exists. As we just have seen, there are many areas of cognition where this kind of human nature is not seriously doubted, such as visual cognition. Some discussions of human nature appear to overlook this. In addition, it is a standard thesis of hardheaded, empirical, evidence-based paleoanthropology that a specific cognitive endowment of human beings exists – as in any other hominid species. This does not imply that anything of relevance to the search for the foundations of human rights forms part of this endowment. It simply means that human beings are not blank slates. These findings will be discussed in Part III of this study.

Even if these theories are not sufficient to make the case for the substantive anthropology underlying the human rights project, they do show that there is nothing a priori wrong about such a theory. It is simply a matter of the evidence that can be adduced for certain assumptions (e.g. that human beings are made up in such a way that self-determination is of value to them) in contrast to other assumptions (e.g. that authoritarian orders suit human beings’ depraved nature best).

Evidence against the idea of a natural human inclination to liberty can be seen in the many authoritarian systems that persisted over long periods of time. Orders of freedom are the historical exception, not the rule. Influential voices have consequently concluded that human beings are actually not made for freedom at all – that, quite to the contrary, being ruled by superiors fulfills their deepest needs.¹⁴ Accordingly, such ideas infuse the ideologies of very many repressive orders of past and present, from the Christian Inquisition to communist party oligarchies and other forms of dictatorship, or, another option, they are used to support the thesis that subjection means profound suffering for the subjected today but did not in the past because those past cultures were different.

There are some strong arguments that cast such conclusions into doubt, however. The history of human rights already lends less support to them than some thinkers tend to assume. As our historical review showed, the perception of what rights human beings enjoy and who is actually entitled to these rights has developed and changed significantly. The repeatedly discussed problem of the slow and gradual inclusion of all human beings in the personal scope of rights is a vivid example. But there is an interesting strand of continuity as well, in particular as to life, physical integrity, vulnerability to degradation, liberty and equality. As far as the kind of rights and their material scope are concerned, the formulation of some core rights has remained remarkably constant over long stretches of time, in spite of the major social transformations taking place. The Virginia Bill of Rights basically speaks a normative language that as far as core rights are concerned is clearly related to the language of the European Charter of Fundamental Rights, a recent example of a full human rights catalogue. Why the Magna Carta secured certain rights for the freemen of England is no riddle, nor are the concerns of the Edict of Milan. As our little journey deeper into history and farther afield, including indigenous peoples, showed, it is not at all clear that the concerns embodied in these documents do not resonate with the feelings and ideas of human beings of other times and places, too, although these people were in no way close to expressing them in the form of explicit human rights as we know them. After all, what, for instance, Yahling Dahbo experienced when the slaveholder came to her at night does not seem wholly mysterious.

A range of reasons speak for the protection of freedom. The theory of liberal rights importantly underlines the instrumental value of freedom. Freedom of expression is regarded as the catalyst of truth and better political decisions, for instance. The free exchange of ideas helps to identify better arguments and preferable political action. Human rights have more than just this instrumental value, however. Liberty is of intrinsic value as well. Human rights norms and institutions go to great lengths to secure the enjoyment of liberty. This only makes sense under the assumption that liberty holds particular importance as a political good.

One striking feature of human history that lends support to this assumption is the persistent struggle for self-determination. It is simply not true that history shows that human beings have no deep desire for freedom. On the contrary, the longing for freedom has been one of history’s crucial moving forces. Unsurprisingly, in our historical review we encountered many examples taken from theory, political life and art that reflected this longing, from the mourning of the women of Troy forced into slavery and sexual exploitation to the fight of the “freedom-loving” Herero, to quote the term used by the German general staff. Where are the credible counterexamples showing with equal force that human beings prefer to be enslaved, raped or subdued?

To be sure, as Wilhelm von Humboldt observed, after a long tradition of subjugation human beings sometimes first have to learn to feel their chains before they can try to shake them off.¹⁵ “Habits of submission make men as well as women servile-minded. … Custom hardens human beings to any kind of degradation, by deadening the part of their nature which would resist it,” commented Harriet Taylor Mill, discussing the argument that women were, in fact, not seeking for liberty.¹⁶ But once such obstacles have been overcome, the promise of freedom has proven to be quite irresistible. The liberation of women in the last centuries, as far as it has been achieved, and the fight to abolish slavery bear witness to this, as do the many other attempts of human beings throughout history to gain that freedom. How different are future human beings imagined to be? Can any argument be discerned to suggest that, given some future historical development, the subjugation of women and their sexual exploitation or enslavement will with good reason come to be regarded as properly mirroring the human condition of women and those groups of people selected for slavery? Are such thoughts not rather revenants of the totalitarian dream that it is possible to create natural slaves through indoctrination and force, a dream whose consequences it hopefully is needless to recall?

Nor should these huge social struggles lead one to forget the importance of freedom and self-determination in the personal sphere. Not many people enjoy being deprived of making their own choices in their private lives. Children already fight to assert their own will (any parent having faced the task of dressing children for bad weather knows the intensity of this struggle, seeing that denim jackets are so much cooler than raincoats).

All in all, such observations seem to lend substantial support to the idea that the “freedom-loving” Herero were perhaps more representative of the deep desires of other human beings than is sometimes assumed.

When human rights imply that freedom is an important good for human beings, they consequently draw on anthropological assumptions that are more plausible than the competing thesis that human beings are made up in such a way that self-determination has no meaning for them. Nevertheless, this is not a self-evident truth, as repeatedly underlined. Human beings could be very different. There are many organisms with a different makeup for which certain things are not valuable. For ants, for example, the problem of self-determination does not arise, admirable creatures though they are. For human beings, however, this problem does arise. Bees do not have a problem with monarchies, human beings do. Human rights thus necessarily imply a substantive empirical falsifiable assumption about the kind of creature human beings are. They posit a certain degree of sameness in the makeup of human beings as well. Human beings undoubtedly put the freedom to determine themselves to use in an infinite variety of ways. As far as the value of the ability for self-determination is concerned, however, human beings are made of roughly the same stuff. Underlining this is particularly important given the long history of anthropologies of inequality – for example, of racist or misogynist ilk.

A further task of our inquiry into the sources of human goods is to determine the grounds for the necessary selectivity of the goods protected. Formulating assumptions such as the importance of self-determination about human beings’ ways of life does not, after all, entail any denial of their many other sides. There is a very plausible case that part of what makes up human beings is their inclination to greed, to aggression, to cruelty, to enjoy and strive for domination. A theory of human goods must therefore evaluate those objects for which human beings strive in order to determine those that justifiably deserve protection. What are the criteria that determine selection among such different inclinations? Are some elements of human nature supposedly more “natural” than others? How could this be?

These questions need an answer, and not only for inclinations such as aggression and the like. It may be granted, for instance, that freedom is a basic human good because of human beings’ particular makeup. But why is it legitimate to satisfy this particular desire? Why is it not advisable to extirpate this longing for freedom as hubris and wicked lust? These questions relate to problems that have been discussed ever since antiquity. Is something valuable because it is desired, or is it desired because it is valuable?¹⁷ If the former – why not satisfy the desire for domination? If the latter, we next face the issue: What are the criteria determining whether something is valuable (apart from being desired), and where do they stem from? What does this mean for the place that various desires have in a theory of human goods – from innocent pastimes like the urge to count the blades of grass in different lawns¹⁸ or to make the collection of matchbox pictures the center of one’s life¹⁹ to sadism? In addition, one needs to clarify what value judgments are in the first place. Are they expressions of subjective desires (which would take us back to square one) or acts of cognition? If acts of cognition – cognition of what?

Two kinds of criteria are relevant for selecting some of the things human beings strive for as human goods plausibly protected by rights.²⁰ First are normative standards, the third issue of a human rights theory identified above, to which we will turn in Section 5.6. The fact that such principles exist and censor some human desires seems obvious: The desire to inflict cruelty on others, for instance, cannot be protected because it unjustifiably harms others. Moral judgments of this kind are clearly more than the expressions of idiosyncratic tastes and desires as they are able to censor and direct choices about the pursuit of such tastes and desires. As there ultimately is no convincing reason to assume that they refer to some objective, mind-independent order of value either, they seem to be of a third, sui generis kind. Part III of this study will investigate why that is so and what this could plausibly mean.

Second, there is the old question of eudaimonia or what makes a life worth living. Arguments worthy of serious consideration suggest that the life of powerful dictators, despite applauding acolytes, bowing satraps and free rein for their desires and wishes, is less attractive than it might seem. The apparent normative constraints on the permissible fulfillment of desires may thus turn out to be one of the things that actually constitutes quality of life because of the importance of moral integrity, and this has to be factored into a convincing theory of human goods. After all, the goods ultimately protected by human rights are not just individual freedom, for example, but a just system of freedom for all.

Moreover, it is useful to look at goods in themselves, such as freedom, for instance, in comparison to the lures of submission, under the condition that no needs or interests of others are diminished. One reason to prefer freedom even from a purely individual standpoint is its sheer attractiveness as a way of life. Preferring subjugation to liberty is like preferring a damp, dark, soiled dungeon to a clear, crisp day with bright sunlight and fresh air. A second reason is liberty’s intrinsic value as something that can be reconciled with the dignity of autonomous human beings, something that the fascination with self-subjugation or even self-annihilation is not, even though the strange force of the latter was able to captivate the destructive mass movements of the twentieth century.

Such judgments about the eudemonistic value of certain actions and ways of life are more than mere expressions of personal tastes and desires. They ascribe value to certain forms of life and form critical yardsticks by attempting to capture something relevant to any human pursuit of happiness.²¹ Neither in their case nor in the case of moral judgments is there any good reason to assume that they refer to some objective, mind-independent order of value.²² This does not mean that they cannot be debated. Aesthetic judgments plausibly do not refer to an objective order of beauty either. This does not mean, however, that Caravaggio’s Adoration of the Shepherds of 1609 cannot be argued to be aesthetically superior to the drawing of an elephant produced by a struggling theoretician of human rights to the amusement of his daughter, who at the age of five was already more artistically able than he.

Critical reflection thus does not lack guidance when weighing the respective merits of gratifying some rather than others of the many passions and desires springing in the labyrinthine depths of the human self.

5.1.2 The Anthropology of Human Rights and the Thresholds of Inclusion

Human rights ultimately are not about abstract notions such as freedom, but about concrete liberties. Including freedom of speech or religion in a catalogue of human rights means that one assumes that these particular liberties are of key importance for human life. This is not an a priori truth but requires arguments in its support. The long and painful history of the attempts to secure human rights manifests this clearly. After all, great minds argued powerfully against these very rights – Augustine, for instance, against freedom of faith, following his change of opinion in this respect. But such reasons do exist – for example, that the possibility to express oneself or to hold and live by certain religious beliefs is important for human beings to flourish. The rich theory and doctrine on such rights spell these arguments out, and often compellingly so.

The same seems to be true for other tenets of human rights, including the experience of the intrinsic value of life, the desire for respect as equals, the importance of equal treatment for human beings or – particularly controversially – the material preconditions of their lives such as food, water, shelter and so forth.

In light of the conclusion reached above that some kind of tentative substantive anthropology is possible, these goods protected by human rights are reasonably regarded as of equal objective value in the double sense outlined earlier: They are plausibly understood as goods of all human beings, independently of the opinion of possible dissenters. For the same reason, they are regarded not only as valuable, but as equally valuable for all human beings. There is nothing suspiciously paternalistic about this kind of claim to objectivity: Every moral principle and legal rule faces some kind of dissent – the prohibition of theft, for example, on a daily basis – without an overly paternalistic attitude of the community towards the autonomy of thieves casting the legitimacy of this norm into doubt. The legitimacy of norms would only be called into question if there were good reasons for this critique.

Moreover, identifying such goods is not an easy task if one is aware of the danger (already highlighted above) of parochial perspectives, of a repressive essentializing of human beings and of skewed, perhaps even racist or misogynist anthropological assumptions. In this regard, any thesis is fallible and in need of repeated critical scrutiny in which dissenters can make their case. This scrutiny is a crucial source of moral and legal progress. As human rights at their core are about respect for individuals, self-determination and freedom, not least of expression, their very point demands the freedom of every human being to engage in a better, more inclusive, less prejudiced understanding of what the proper goods of protection are. No one has an epistemic or political prerogative to authoritatively determine the content of the pivotal human goods worthy of protection by human rights, let alone any entitlement to imperialistically enforce certain visions. What counts are the reasons adduced, and there is nothing paternalistic about compelling reasons. In procedural terms, in the world of political decision-making and law-giving, this has to be spelled out in democratic, participatory and deliberative forms of determining the content of human rights – demands that the practice of human rights on a national, supranational and international level often fails to meet.

Theories of goods justifiably protected by human rights need to identify a threshold criterion to determine which of the human goods that constitute possible objects of protection are important enough to qualify as the possible content of human rights. This criterion needs not to be so narrow as to make human rights meaningless in too many areas of human life, nor so expansive as to cause an inflationary use of these rights.²³ There is no criterion that does not leave some kind of gray area in which debate is possible. Such a criterion implies the ascertainment of the weight of such a good. This weight needs to be determined by considering the role this good plays in the context of a human life, embedded in certain cultural and social circumstances. This already underlines the importance of the second central tenet of the justification of human rights to be discussed: the political theory of human rights. Such judgments involve demanding considerations that evidently are highly controversial. Debating these questions is an important part of the slow development of human rights. However, neither the difficulty of such assessments nor the danger of very subjective approaches to these issues has prevented a consensus from developing about the significance of some rights. The fact that freedom of speech, belief and conscience are important liberties is hardly in doubt. The reason for this is that these liberties create the scope for human activities that both as history and as daily practices play a crucial role in a flourishing life.

The importance of such a threshold condition does not mean that human rights need to be limited to some kind of minimalist conception of their reach. Conceptions of human rights can be generous. They can (and should) protect the maximum of a good if this is compatible with the rights of others, as we already have seen. If the exercise of a freedom can be reconciled with binding normative principles, there is a prima facie right to the exercise of this freedom. After all, a foundational principle of an ethics of freedom is that whatever is not forbidden is allowed. This principle is even acknowledged as a principle of international law.²⁴ In this context, the distinction between the type of good protected and the different tokens of the good is important. Expressing one’s opinion about the question of whether or not the goal scored by X was offside or not is not an existential concern (at least once one has had a chance to cool down following the end of the game). Nevertheless, this expression would be protected by many legal systems guaranteeing free speech, and rightly so. A government biased in favor of some soccer team (owned by the president, perhaps) would thus violate free speech if it prevented spectators from drawing the public’s attention to unjustified goals.

This notwithstanding, a proper differentiation of the importance of various kinds of claims is required if we are not to call every morally defensible claim a human right. The type of good protected (freedom of expression) must be of qualified concern, though not every token of this good is of great importance (voicing opinions about offside goals).

Yet another element of the threshold criterion for human rights is relevant historical experience that human beings are in substantial danger of being deprived of these goods by others, not least political institutions such as states. Freedom of religion and freedom of speech are archetypal human rights because it happens to be the case that human beings have a strong inclination to impose what they believe on others and to silence their particular voices. The prohibition of slavery is a ius cogens norm of international human rights because human beings have found it surprisingly easy to think that others of their kind are made or justifiably used (unlike themselves) to serve.

5.1.3 Needs, Interests and Capabilities

This account of the sources of goods protected by human rights helps to clarify some of the problems we identified when discussing theories of needs, interests and capabilities.

As underlined in our discussion of need and interest theories, it is misleading to identify certain versions of such theories with all possible approaches that take needs and interests seriously. The above analysis has shown that human needs are important to specify the content of human rights. Bodily integrity is a human need. The protection of liberty in its various forms by human rights is based on the human need to have scope for actions that are determined by one’s own decisions, thoughts, feelings and identity. Whether one prefers to call these sources of strong longings needs or interests is more a question of terminology than of substantive content. Specific rights can be derived from such needs. It may be odd to say that there is a need for freedom of the press. That depends, of course, on the understanding of needs in this context. In any case, there is certainly an interest in free journalism. It is hard to understand this interest if one does not assume that human beings have a strong desire – a need, if you will – to understand and determine themselves politically on the grounds of insights, and that this political self-understanding and self-determination constitute ends that freedom of the press intends to serve. The ultimate justification of needs and interests thus rests on assumptions of this kind about the particular human condition and the ensuing preconditions for a flourishing life.

The capability approach is very important for ensuring that rights do not remain abstract and do not shoot wide of human beings’ real lives under concrete social circumstances. An abstract right to education means little if a society is structured in such a way that girls have no real opportunity to avail themselves of this right – for example, because they are taught to aspire to other ends than education, such as serving the male members of their family.²⁵

The identification of the relevant capabilities presupposes that there are criteria for selecting the goods to be brought to life by the idea of capabilities. Such selection criteria ultimately must rely on some kind of substantial theory about the human condition and the deeper needs and interests derived from it.

5.1.4 Contours of a Form of Life

In a sense, therefore, epoch-making catalogues of human rights like the Universal Declaration embody a (defeasible) hypothesis about what constitutes central human goods derived from empirically grounded anthropological assumptions – a hypothesis that is not based on divine revelation, a metaphysical order of perfection, tradition or the teleology of history but on a sober, fallible assessment of basic human historical experience. This assessment is spelled out in the terms of concrete ethical and legal norms. In a full theory of human goods protected by human rights, one consequently needs to engage in detail with such provisions and what they protect exactly, given the system of limitations. Moreover, the next topic of this inquiry, a political theory of rights, has to be factored into such an account. That this is a demanding task is illustrated by the very substantial work carried out in philosophy and legal doctrine, not to forget case law, to determine the content and purpose of specific norms. One needs only to think about the vast amount of work on freedom of speech or freedom of religion and conscience to get a sense of this debate’s level of sophistication.

The full theory that is slowly emerging through this work, detailing what the proper objects of protection by human rights may be, is not a simple technical matter. Quite the contrary. The goods that human rights protect are a mirror image of what makes human beings human. They are the reflection in the mirror of ethics and law of the contours of a form of life drawn by the fine pen of historical expressions of the species’ most delicate characteristics, contours that define its particular human mode of being.

The image emerging, sometimes not clearly visible in the crude looking glass of ethical principles and legal rules, is of a being with subtle longings for respect, moral integrity and freedom, a being full of play that is creative and an inexhaustible wellspring of fresh thoughts and sentiments, seeking a deep understanding of its experience of itself and the world it inhabits, its efforts proving that it is capable of both far-reaching insight and profound error. The mirrored outlines hint at a being looking for meaning in its life, a meaning that is not easily ascertained in an ever-perplexing world, if it is discernible at all; a being looking for and unleashing beauty; a being that is communicative, needing and seeking intimate partnership and community; a being that cares for others, directed by moral principles of justice and other-regarding concern, with a vulnerable body and inner self and constantly forced to secure its precarious survival in a world not made for and unconcerned with its existence, bliss and suffering.

The need to protect every human being against their own kind (and sometimes the distress they bring about themselves) by the means of rights adds further important facets to this picture: This being is also violent, greedy and thirsty for power and domination, superficial and vulgar, selfish, callous and cruel, self-righteous and full of contempt for others. “Man delights not me,” Prince Hamlet says, and in doing so has not only melancholic bile but some good arguments on his side.

The fact that human beings are so mixed in kind that the protection of human rights seems reasonable is a contingent fact of their existence. Human beings could be different. There is no hidden or open teleology at play. It is perfectly possible to imagine beings that, for instance, possess consciousness or other higher mental faculties, like human beings, but feel no desire to express their thoughts and feelings, as they are happy to converse with themselves. To protect the freedom of expression of such beings would make no particular sense. Alternatively, human beings could be infinitely malleable, as totalitarian systems imagine them to be. A life of serfdom would then be as appropriate for such a creature as a life with fundamental liberties – after a little bit of reeducation, perhaps, to overcome old habits. But there is no reason to think that human beings are like this, as we already have seen and will find confirmed by some of the findings to follow below.

This directs our attention to an insight of some importance, which we will flesh out in greater detail now: Human rights are bound to and dependent on the human mode of existence and the human lifeworld. Human rights mark a space of decency defined by human critical thought committed to obligatory moral principles when reflecting on the nature of the human condition and what is valuable in a human life. They are thus a fragile thing, transient, guaranteed by nothing but a delicate web of justificatory reasons and their precarious command over human thought and passions.

5.2 Better Off without Rights?

5.2.1 The Limited Reach of Rights

The preceding remarks have provided an outline for the first existence condition of human rights: sufficiently weighty goods as objects of protection, though not every use of such rights needs to be of particularly qualified importance. Not all such sufficiently weighty goods worthy of protection are proper objects of human rights, however. One very evident further existence condition of human rights is that the respective good can in fact be secured by the means of rights. As already mentioned, the principle ultra posse nemo obligatur sets an obvious limit. A right to be loved consequently serves as a metaphor for an important human concern, not as the statement of an existing entitlement in the literal sense. This metaphor is not without import – it underlines the significance of being loved and, importantly, the fact that there is no one unworthy of this noblest of affections one can entertain towards another person.

There are other examples. There can be no human right to be happy, because it is beyond the capabilities of other persons and indeed agents themselves to make somebody (including themselves) happy. Happiness is too elusive a gift to become a claim on others; although, once again, metaphorically it makes perfect sense to speak of a human being’s right to be happy – meaning, for instance, that happy their life should be. For related reasons, there is no right to sex either, to take an example from the current debate about incels, their misogynistic thoughts and violent acts.²⁶

Problems like these can be resolved in a pretty straightforward way. More difficult is the question of whether human rights are the proper means for realizing certain human goods that at least in principle could be the objects of rights. This question arises because many influential voices in the fields of political and legal theory deny that human rights contribute to the realization of human goods, or they maintain that they even prevent the achievement of this end. These arguments are of evident moral and legal relevance. If the case has been made that human rights are useless or even harmful, there is no conceivable argument that still would speak for their justification in ethics and law. Tools to foster human goods that turn out to be useless or harmful are not normatively justified.

Any theory of human rights consequently includes a theoretical stance on the historical, social and political conditions of the realization of human goods. Freedom of speech guaranteed as a right, for instance, presupposes the idea that the free exchange of ideas and views does in fact enhance the flourishing of individuals and a community. Dictatorial authoritarianism, on the contrary, presupposes that only narrowly circumscribed expression – say as regards the addressees or the topics permitted (or both) – benefits a community and ultimately the individuals (if its doctrine is not just some cynical ideological device of subjugation). Freedom of faith presupposes that it is not in people’s true interest that all religions but the “One True Faith” have to be suppressed. Again, this is not a trivial assumption. Centuries of violent persecution of believers of other faiths and the intellectual defense of this persecution attest how difficult it is to grant this freedom. After all, from the point of view of certain religious creeds, letting those who follow other faiths have their way means that the infidels will go to hell and on the way are allowed to perform all kinds of forbidden, wicked, even blasphemous acts.

The more profoundly one engages with the justification of concrete details of the scope of rights, the more important this aspect of a theory of human rights becomes, because the more arguments are needed to show that a particular framing or interpretation of human rights does in fact serve the ends that human rights are there to foster. One may agree that free speech is important for a rationally governed society – but what about the prohibition of hate speech? Does it really promote social civility, or does it gratuitously curtail an important liberty? If the former – in which form? Does the exclusion of Holocaust denial from the protection by free speech guarantees increase respect for human beings of whatever group, or does it stifle historical debate? Is the answer the same in Germany as in Switzerland? Consequently, the next question to which we will turn is: What could a convincing political theory of human rights look like?

5.2.2 Politics beyond Normativity?

Our review of justificatory theories of human rights already showed that functionalist theories do not provide a good account of human rights as they miss their point, which is to provide a normatively grounded yardstick for the legitimate aims a society can pursue. Human rights are not functional tools to achieve a social purpose determined without recourse to normative principles. Rather, human rights themselves determine the justified purposes of social action. They define what is or is not functional for the operation of society because they play a key role in setting the aims that social organization is to serve. In light of the human rights idea, societies are not there just to reproduce themselves in whatever form; instead, societies are to be organized in a way that respects the worth, liberty and equality of human beings.

Other political theory options are not convincing either. Human rights cannot be reconstructed as a form of political aestheticism, for instance.²⁷ Orders of human rights aim at more than just some kind of aesthetically attractive form of life. They are not an element of political dandyism²⁸ but express a specific, sufficiently well-defined normative standpoint. Human rights therefore also are not a form of existential decisionism, which views all normative standards as rooted in a fundamental decision by individuals or collectives to pursue a certain way of life. No prior normative reasons guide such decisions. In this view, normative orders are thus a kind of political creatio ex nihilo, a creation from nothing that defines the future political being of a community, including the normative parameters that bind it.²⁹ Contrary to this perspective, human rights are wedded to the claim that their validity is based not on mere contingent political commitments created by foundational political decisions without normative grounds, but rather on compelling normative reasons. Norm-independent existential political decisions are not the ultimate source of human rights; rather, human rights are decisive normative reasons that must guide all such fundamental political decisions, in particular those of a pouvoir constituant. This is exactly the political role they played in the process of constitution-making around the world and in the development of the international architecture of human rights: They were reasons that guided the kind of political order that was designed – from the drafting of the Universal Declaration to the South African Constitution after the end of the apartheid regime.

Functionalism, political aestheticism and political existentialism thus are not helpful approaches to the idea of human rights. One needs to look elsewhere for theoretical guidance. The first step in doing so is to examine a whole battery of theoretical approaches that deny that human rights serve the good of humanity.

5.3 The Critique of Rights

5.3.1 The Benefits of Authoritarianism

Human rights diffuse power. They create a protected space for the activity of human beings and set limits to what public power is allowed to do. One important counterargument to at least some such rights claims that an illiberal, hierarchical order is ultimately to people’s benefit. This argument has been articulated throughout the ages in various forms and has exerted significant political influence.

One example is Plato’s critique of democratic rights, a group of rights that certainly belongs in the history of human rights, as we have seen. Plato’s argument was not an attempt to shield the privileges of certain classes, including his own. Rather, it derived from the belief that the authoritarian order he envisaged, which had a functional conception of justice as its lodestar, allocating rights and duties in society according to the best service a person could provide for the community, promoted the best of the polis – and not only of the collective, but of all its members, too.³⁰

A further proponent of this idea from a different epoch is Leibniz. He argued, as we have seen, that people have inalienable rights to life, the protection of personal integrity and liberty. However, he thought that natural law spoke against equal political rights. For Leibniz, the criterion of distribution under Aristotelian principles of justice was the capability to rule. He made the factual assumption that monarchs and aristocrats are better suited to ruling than other people. In addition, he argued that popular assemblies are as prone to engage in arbitrary rule as single rulers. Consequently, it seemed most likely to him that the rule of reason would be achieved by the traditional political ruling class of the ancien régime.³¹ Hegel’s metaphysics of constitutional monarchies is yet another example of a vision of political organization that includes authoritarian elements and skepticism about rights.³²

The idea of benign authoritarian rule has held practical significance in more recent politics, too (e.g. in state socialist systems with a party-led bureaucracy) and continues to be a relevant category today – for example, underpinning the political systems of Singapore or China.

Various issues arise here. One is the plausibility of the assessment of the beneficial effects of authoritarian rule. There is ample historical evidence to show that democracies in which a significant portion of the population have political rights may take decisions that are not conducive to the common good – for example, to engage in the Peloponnesian War. It seems hard to argue, however, that there is any substantial historical evidence that the lack of rights leads to the well-being of human beings to a comparatively larger degree than in systems where such rights are recognized. In this context, a crucial question to ask is what “well-being” actually means and whether the respect for the rights of an individual possibly forms part of it. Here, again, the classical argument is important that a life within the framework of respected rights – both of the agent and of others – is an essential element of true human flourishing. Theories that argue for the benefits of social organization without rights thus remain unconvincing: They miss the very point of rights and their significance for a human life worth living.

5.3.2 Human Rights: Ineffective Ethical and Legal Balderdash?

Human rights have been institutionalized on a national, regional and – to a certain limited degree – international level. This naturally has given rise to the question of whether they do in fact contribute to achieving the ends they are supposed to serve.

In recent years, various commentators have claimed that human rights lack this effectiveness: They either are of no use in reaching the aims for which they are made, in particular reducing violence and repression and fostering liberty, or are even detrimental to this task.³³ Others have disputed these findings, not least on methodological grounds.³⁴ The latter point is of some importance, because it underlines the fact that it is exceedingly difficult to say anything about the effectiveness of human rights that is valid by the usual standards of the social sciences. Besides other specific methodological problems, human rights cover a potentially vast area of social life. Human rights catalogues vary considerably. In addition, human rights, as has been emphasized, cannot be reduced to international human rights. Therefore, any analysis of the effects of human rights would also need to include the effects of national constitutional rights protection. The mechanisms used to implement human rights are equally heterogeneous, ranging from a fully developed constitutional review to a very weak supervisory mechanism, as in many areas of international human rights law. The same right can have quite different regulatory effects in different social areas – freedom of religion may robustly protect a majority religion against encroachment by the state but be less effective at protecting a minority religion.

A further exemplary problem needs to be mentioned: Because of the complexity of the issues with which human rights are concerned, there are many independent (intervening) variables that influence the effects of any legal regulation. The radical change almost worldwide of the understanding of the meaning of rights to privacy, personal autonomy, equality and human dignity for the permissible regulation of same-sex intimate relations, for example, has occurred while the legal texts of the relevant norms remained unchanged for the most part. This cannot be explained without reference to the development of the background social morality, its political ramifications and the attitudinal changes of decision-makers, including judges. Saying that these norms were ineffective before this change is as reductionist as claiming that they now are the only engine of social change. The truth is that a multifaceted interaction of many factors – legal, social, ethical, political – in the end leads to such progress. This complexity renders self-confident arguments about the effects of human rights highly dubious.

Given this wide range of application, the heterogeneous multiplicity of implementation mechanisms, the different spheres of protection and other relevant independent variables to be considered when determining the causation of given social phenomena regulated by human rights, it may be possible to say something meaningful about the effects of a certain right of a particular legal system as to a certain issue – for example, the effects of freedom of religion as a human right guaranteed by the German Basic Law on the regulation of vestiary symbols in public services and its application by state authorities concerning the wearing of Islamic headscarves in schools in Germany – but not about the effects of human rights in general across issues, societies and regulatory regimes.³⁵

Furthermore, given this rather obvious problem, one needs to ask whether the argument of the ineffectiveness of human rights is in fact a tactic pursuing the political aim to delegitimize human rights, an argument that stems not from a genuine concern for effective human rights protection but from a political agenda hostile to their rule.

An abundance of examples illustrates the failure of the various systems of the protection of human rights. It is very important to stay painfully aware of this in order to avoid an overly romantic view of human rights. However, it is wrong to ascribe these failures solely to the human rights systems in their different variants, concepts, conceptions and institutions. This would miss the very point of human rights, which is to confront power. This power is not that of some friendly agent waiting to be convinced by the idea of human rights and swayed by a critical state report it could safely ignore, but power that has no respect for the values protected by human rights and thus for the task performed by these norms. Human rights confront authoritarianism, dictatorship, suppression, violence, torture and murder, sometimes of the worst kind. It is no surprise at all that human rights often are rendered ineffective by the might of the forces working against them, which have included the most powerful political agents in history.

Both the constitutional and, increasingly, some of the regional and international systems of human rights protection show that human rights can be highly effective. They have changed many people’s lives for the better, although they certainly have not established a paradise of complete and utter justice.³⁶

In any case, the argument based on ineffectiveness has limited force. If it were plausible, the consequence would be to try to increase the effectivity of human rights, not to abolish the project altogether.

All of this mainly concerns human rights as legal rights. The assertion that human rights as moral principles are entirely ineffective seems equally hard to defend, given the far-reaching beneficial effects this idea continues to have as a critical check on ideologies of unrestrained power.

5.3.3 Human Rights as Means of Economic Disempowerment

Marxist theory, both traditional and contemporary, provides a classical critique of human rights. Its main claim is that fundamental rights are part of the superstructure of capitalist economies and societies. Property rights and the freedom to contract are understood as paradigmatic rights illustrating the truth of this thesis: Private property and the ability to enter freely into a contract are preconditions for the capitalist mode of production. However, these rights do not set human beings free but through the cunning of the capitalist economy enslave them to this mode of production. The thinkers of the Enlightenment proclaimed rights that they thought embodied the realm of reason, when in fact they were unable to transcend the limited perspectives of their century, its mode of production and their own class consciousness.³⁷

There are reasons for this argument, and they are found not only in nineteenth-century forms of capitalism. Rights to private property can be used to defend by legal means a particular economic power structure – the one established by the existing unequal distribution of wealth, for instance. Marxists have not been the only ones to make this point. To this day, it remains important to reflect critically upon the question of whether or not a particular human rights order serves its purpose of fostering the goods of all members of society or not. It is wrong, however, to assume that all human rights necessarily protect an unequal distribution of power and property. Many human rights cannot be reduced to such a function. To begin with, human dignity as the idea of regarding human beings as ends-in-themselves is one of the normative starting points for criticizing structures of exploitation – a point that Marx himself and other prominent Marxists did not to miss.³⁸ Liberal rights, freedom of opinion, freedom of the press and other forms of communication and of assembly are (among other reasons for their importance) the preconditions for any political transformation in a society, including any economic reform. Equality guarantees are a tool to maintain or establish a decent level of equity in a society and fend off discrimination. Social rights are far from able to alleviate all social injustice and suffering in the world but can play an important role in taking some steps in that direction. For example, a human right to minimum living conditions secured by a social state is an important asset, and in some legal orders is even anchored in such a core right as human dignity.

Human beings live not on bread alone. Their free self-determination in the many dimensions of human life is a good, too, as is the freedom to live according to one’s faith or secular convictions in a community where nobody has to fear for life and limb and in which human beings find the respect they deserve. Some of the best Marxist thought on human rights has (ultimately) underlined the importance of this dimension of social reform.³⁹

Reductionist economic theories thus fail to convince. This also is true for a modern variant, which – though not necessarily within the framework of Marxist theory – posits a hypothetical connection between human rights and the rise of neoliberalism.⁴⁰ This connection does not exist if neoliberalism is taken to refer to economic policies that disregard the interests of the poor, foster inequality, limit the freedom of the greater part of society through economic hardship and serve the material interest of a few within an instrumentalized, laissez-faire, free-market ideology. Human rights do not establish a just economic order as such, but they are a precondition for the political possibility of achieving this end and already enshrine certain principles that create a framework for decent economic policy, as just underlined. None of this is linked to neoliberalism. Unsurprisingly, various regimes of the Global South applied what are widely regarded as neoliberal policies while at the same time showing no respect for human rights.⁴¹

5.3.4 Human Rights as the Handmaidens of Power and the Prospects of Postcolonial Worldmaking

Another theory weds human rights to political power in the sense of a whole set of structures of domination, including epistemic patterns of subjugation in the “vaste dispositif” of a “societé panoptique,” in which the “episteme” contributes to the subject’s internalization of the power relations that enslave them, to use Foucault’s terms.⁴² In postmodern thought, this can be connected to deep-seated structures of force, including the performative force of language: From this perspective, the meaning of expressions is fixed by subtle or visible forms of force.⁴³ Certain ideas conquer human beings’ thought through the same mechanism of subtle and not-so-subtle compulsion, not by better arguments – which is hardly surprising, because from this deconstructivist perspective there is no such thing as a “better” argument. Human rights are sometimes even associated with great evils: In their generality and universality, it is argued, they disregard the individuality and otherness of every human being and thus come dangerously close to totalitarian ideologies of contempt for human beings.⁴⁴

In some (but importantly not all) postcolonial theories, human rights are linked in particular to continuing structures of colonial domination. It is claimed that human rights perpetuate these structures both politically and epistemologically because they universalize colonial perspectives and overlook other “epistemologies of the South.”⁴⁵

There is an important point here: As in the case of the economic instrumentalization of human rights, any theory of human rights needs to stay mindful of the degree to which it may lend itself to abuse by power. It is also true that the limited, fragile and imperfect order of international human rights exists alongside economic, political, legal and military structures of the domination of powers of the Global North over many states of the Global South. The hypothesis of an intrinsic connection between rights and power is quite another thing, however. Human rights are central tools for criticizing authoritarian orders or power in democratic societies. Political freedoms and the protection of life and bodily integrity are assets for political movements that challenge illegitimate political power. For instance, to the political opposition or dissidents it matters greatly whether they have the means to defend themselves against torture, arbitrary arrest, censorship and other seasoned means of repression or not.

It thus is no accident that the underestimation of the importance of these rights by certain analyses of the period following World War II, not least from the radical left, some of which even postulate the dawn of authoritarianism in constitutional states, is widely perceived as a political shortcoming. As Foucault rightly observed in this context, there is the risk of exaggerating the critique and failing to properly distinguish different forms of state power. The failure to make such differentiations was one of the root causes leading to the tragedy of 1970s left-wing terrorism in Western democracies. In addition, Foucault (like many others) rediscovered the importance of rights, even wedding the idea of critique to such rights in the tradition of “natural law,” as he states explicitly in his later work.⁴⁶

As our historical review suggested, universal human rights were in no way a project of the ruling groups of European history. They were used as tools to liberate radically suppressed, even enslaved people. Major developments in the institutionalization of human rights were due to the committed work of persons from the Global South. For significant stretches of time, human rights were the instruments used to wrest power from colonial elites and attack systems such as South African apartheid, and thus they were part and parcel of the political project of the democratic and liberty-preserving movements of decolonization and their contribution to a kind of worldmaking beyond the color line that aimed to free human beings from global structures of domination.⁴⁷ In addition, the movement towards delegitimizing these rights was advanced powerfully by authoritarian regimes that intended to free themselves from the burden these rights imposed on them.

It is unclear how this historical trajectory can be reconciled with the thesis that modes of thought of the kind hypothesized in “epistemologies of the South” would arrive at entirely different normative principles than those embodied in human rights. Why would this be plausible, when the idea of human rights owes so much to the creative thinking and political determination of people from the Global South? And what would it even mean in concrete terms to design rights according to the “epistemologies of the South”? That taking the life of a dissident by state force is legitimate according to these epistemologies? That censorship is entirely justified due to the epistemic makeup of people from the Global South? That homosexual people are to be treated disadvantageously in comparison to heterosexuals, perhaps even stoned to death, as has been justified recently with reference to local traditions?⁴⁸ That racist discrimination, torture and rape are okay? As such conclusions are entirely out of the question, the question at issue here remains what exactly the better alternative to human rights might be. Sometimes, reference is made to a stronger emphasis on community values in, for example, African conceptions of human rights to render the difference from “Western” human rights more concrete. This does not question the idea of human rights as such, however. It asks the entirely legitimate question of how individual claims, the rights of others and communal interests can be reconciled. This is a classical question within human rights doctrine solved by the system of justification of interferences in human rights, in particular by proportionality analyses and the weighing and balancing of competing interests. Incidentally, this includes the doctrine of property, which can be constructed in a way that leaves ample scope for the consideration of community interests.⁴⁹ Seen in this light, the matter then turns from supposedly profoundly different ways of understanding justice to questions of the convincing and of course continuously controversial concrete construction of human rights not least as positive law, with all of the political and ethical implications such constructions necessarily entail. It comes as no surprise, then, that documents such as the African Charter of Human Rights or the bill of rights of the Constitution of South Africa contain original content that nevertheless rests comfortably within the framework of the universal human rights project.

Other proposals for alternative norms that differ from human rights in any meaningful sense either remain exceedingly vague⁵⁰ or implicitly restate the importance of those rights they profess to transcend.⁵¹ There is simply no body of norms in sight that would offer a preferable alternative to the differentiated body of human rights in ethics and law.

Controversies about such questions are not decided simply by the superior power of one side of the debate, as in some epistemological theory. Power can intimidate opponents, bend their thinking to its yoke and make them its hypocritical servants or simply silence them. But it is a category error to mistake being convinced by arguments for being compelled to accept a position by force. One cannot be convinced by force, a seasoned argument of great importance in the struggle against religious intolerance. “One can enter a church without wanting to, one can walk towards the altar without wanting to, one can accept the sacrament without wanting to, but believe you cannot but willingly,” Augustine observed aptly, although later in his life he pursued policies at odds with this insight.⁵² The same holds true for becoming convinced of a proposition. Convincing presupposes argument and free assent, not force. This is the analytical shortcoming of theories that dissolve reason-giving into the force to subdue others, in however subtle a form. This theory of the constitutive role of violence in the formation of normative convictions can have very dangerous political consequences, a fact that presumably is obvious. It is not good news for human communities if it is seriously maintained that central political, legal and ethical questions cannot be solved or at least promoted by arguments and reasons but only by force. The fact that the Nazis could send a person who resisted their regime to the guillotine did not make their positions right, and it is crucially important to stay aware of this fact.

There is thus no compelling case for the claim that human rights are necessarily instruments of domination, both in practical politics and in the “epistemes” of society, the systems of human beings’ political, ethical and legal beliefs. There is no reason to think that the promotion of human rights necessarily unwillingly serves the interest of the powerful, whether colonial or not, although human rights may be abused for this purpose. The critique of accounts of human rights as camouflaged instruments of power leads to a clearer perception of the emancipating force of human rights based on reasons accessible to all.

5.3.5 Feminist Critiques and Restatements of Human Rights

There is not just one form of feminism. On the contrary, feminist discussions are as controversial and even acrimonious as other areas of theory-building. Traditionally, a distinction is made between different waves of feminist reflections about ethics and law: A first wave claimed the equal rights of different genders, a second emphasized difference, including the unity of normative standards applicable⁵³ to different genders, and a third questioned the sense of binary gender categories in general.⁵⁴ In recent years, further perspectives have broadened the picture, importantly, for instance, concerning intersectionality, including, among other factors, skin color (“race,” to use English-language terminology) and religion.⁵⁵

In some of these debates, skepticism about human rights has been voiced, in particular concerning whether the idea of human rights is dependent on a concept of humanity that in fact mirrors male perspectives and thus forms an unsuitable tool to foster the liberation of women.⁵⁶

The understanding of human rights as an ethical, political and legal concept has profited significantly from these debates, which have informed and driven forward the protection of equal treatment and freedom from discrimination in law, among others. It is a misunderstanding to assume that human rights cannot accommodate the respect for human difference, including nonbinary gender difference. On the contrary, there is an increasingly sophisticated set of legal tools to fight discrimination and foster the respect for the equality of human beings.⁵⁷ Accordingly, as mentioned in the historical review, women’s issues were important early elements of the international struggle for human rights – just as they were on the national level. The core areas of protection, such as freedom and self-determination, are significant for all human beings, whatever their gender might be – as Polish, American and Argentinian women’s struggle for reproductive autonomy in recent years has shown yet again.

These findings already indicate the main lesson drawn from the history and practice of human rights, a lesson emphasized by many feminist scholars and activists: Nothing in the idea of human rights is hostile to the justified aim to include gender perspectives in ethics and law. This is true both of the normative foundations of human rights, as will be discussed below, and of the concrete normative content of these rights. The task therefore is to purge human rights of the many surviving remnants of patriarchal traditions and ideology, not to politically and theoretically subvert the concept of human rights itself.⁵⁸

5.3.6 Human Rights Curtailing Democracy and Sovereignty

Fundamental rights have an antimajoritarian edge. There are occasions when a human right will trump even a democratically taken decision. Various laws that criminalized consensual homosexual intimate relations, for instance, were created democratically and nevertheless were struck down by courts entrusted with protecting fundamental rights. There are many examples of such forms of judicial review in international law as well – for instance, in the system of the ECHR.⁵⁹

It is argued that this limitation of democracy is either illegitimate or at least bad policy. Unfettered political self-determination should take priority over human rights and their enforcement by courts or other institutions, it is claimed. In this context, the power of courts, both domestic⁶⁰ and international,⁶¹ to strike down legislation is an issue. What is the source of this power?

There is more than one way to solve this problem. One important point is to formulate a properly differentiated account of the relation between democracy and human rights. Human rights are not an irrelevant by-product of democracy; rather, they are essential for its architecture and functioning. There can be no democracy without the protection of fundamental rights. This is true not only for political rights, including electoral rights, which are the precondition of any democratic decision-making. It also is true for liberties like freedom of speech, freedom of the press and freedom of assembly. Democracies need decisions that are the product of sometimes important interpretations of human existence and of what human life and human community are about. Freedoms of religion, of conscience, of science and art create the possibility of a lifeworld where such opinions can be formed, interrogated, revived and reformulated and therefore constitute an equally vital element of democracy. The procedures of democracy need to be protected, which implies elements of the rule of law that have a bearing on questions of human rights, including the right to a judicial review of decisions made by public authorities. Moreover, if democrats have to fear for life and limb because of their political activities, the democracy at issue is very limited indeed. The right to life is therefore equally important for democracy, as is the prohibition of torture and other guarantees – for example, habeas corpus.

Rights may thus limit democratic decision-making in certain instances, but their rule serves to protect democracy in the long run. This is essential, because democracy is not just about one majority decision at a given moment of time but is a system of political self-government in which it is possible to exercise political autonomy continuously over a long period of time.

Ideally, courts are created with democratic credentials themselves, whether direct or indirect. The point of courts is that the democratic political process establishes an institution that is functionally independent of concrete majorities and can thus serve as a check on the decision-making of shifting majorities in certain well-qualified respects. Courts with such a function form part of the idea of constitutional entrenchment – the democratic creation of antimajoritarian checks on the decisions of everyday democratic life. Organizing such a system with a claim to legitimacy and securing its credible operation, not least on the international plane, involves many difficulties. However, the claim that no such sufficiently legitimate system can be imagined seems hard to maintain, given the existing practice of institutions that serve these functions quite successfully.

Another point should be considered. Democratic self-determination and sovereignty do not mean arbitrary power unfettered by normative principles. They mean the exercise of political autonomy within the bounds and limits of legitimate norms. This is how they have been conceptualized for a very long time in various domains of thought, and convincingly so: There is no right to determine oneself by enslaving a minority, for instance. Political self-determination has to respect the normative limits drawn by justified normative principles, in particular by the legitimate rights of individuals as equal, autonomous persons.⁶²

Human rights are therefore deeply interwoven with the normative architecture of democracy and the legitimate exercise of sovereignty. There is no argument against human rights from the perspective of democracy and political self-determination, only one that strengthens their cause.

5.3.7 The Wrong Politics of Human Rights

Another strand of human rights criticism argues that human rights are bad politics. While human rights are not denied to be a legitimate concern, critics maintain that a focus on human rights has detrimental political effects. It is argued that human rights politics are powerless against inequality,⁶³ crowd out other concerns, fail to acknowledge the costs of human rights or pursue a narrow concept of human emancipation. Human rights are understood as individualistic, atomistic and insufficiently oriented towards community.

These criticisms are arguably true for certain versions of human rights politics, although it is not as easy to name serious human rights actors both within and beyond the legal sphere that promote human rights as a passpartout to all political problems, are unconcerned about the problematic aspects of (legal) human rights or celebrate the egoistic individual free of all community concerns.

In any case, there is certainly no reason why human rights should not be reconcilable with or even profoundly supportive of other political aims. For instance, human rights have done a great deal for human equality – from racial desegregation to the liberation of women. As already indicated, they created a space within which to develop and implement new political visions by protecting those liberties and other goods that are the precondition for any transformative political thought, including the survival of the thinker. A legitimate conception of human rights includes the concerns of other human beings in its architecture, as we will see in a moment. Furthermore, our historical review showed that, from the very beginning, the rights of human beings were closely associated with questions of social justice, which are, thus, not only a concern of recent debate. Today, human rights contribute to the task of promoting social justice in very concrete ways, not least through social rights that work and are effective in more than one legal system.

To be sure, there are wrong politics of human rights. But there is no reason why the struggle for human rights must be bad politics.

5.3.8 The Aporia of Human Rights

Hannah Arendt famously advanced a critique of human rights that hinges on the thesis that there is an aporia of human rights. Human rights are proclaimed to be rights of crucial importance and are thought of as the rights that human beings enjoy solely by virtue of their humanity. As ethical ideas and legal institutions, however, they are unable to protect human beings when it matters most. In times of acute crisis and danger, nobody has the slightest respect for the naked humanity of human beings. This became all too apparent when the Nazis launched their full-scale attack on human dignity: The supposedly sacred idea of human rights had no practical traction and remained an empty promise, an object of bitter ridicule in light of the hopes connected with it and the suffering with which these hopes were repaid.⁶⁴ The core lesson of this experience is to understand the importance of the “right to have rights,” Arendt argues. This means that human beings need to be entitled to belong to the group of morally relevant beings. This status is achieved by being part of a political community,⁶⁵ which is the place where human beings achieve their humanity in active life, led in a common sphere created by the exchange of ideas and other ways of human interaction that constitute humans’ humanity.⁶⁶

Arendt doubtlessly makes an important point here. The experience of the Third Reich shows vividly that human rights as an ethical and political idea will not necessarily be able to prevail against powerful political foes. On the contrary, any appeal to these standards can be shrugged off with disdain as no more than foolish babble as long as the regime’s battalions are advancing victoriously and its police apparatus is functioning well. As our historical review showed, the first steps towards a kind of legal protection by human rights proved no obstacle to the conquering German armies in World War II and the machinery of Nazi terror. This experience is very important. It shows the possibility of merciless, unremitting, outspoken, proudly posturing contempt for central elements of those ideas for which human rights stand – a contempt with a mass basis in society. The awareness of this possibility acts as an excellent antidote to the illusion that there is anything natural and self-evident about even the smallest partial victory in the struggle for human rights.

In addition, Arendt’s critique of human rights inspired by these observations, which is perhaps more serious and important than any other, directs the analysis of human rights to a crucial point that is relevant for their justification. It underlines the significance of the protection of human rights at the state level. Without such safeguards, there can be no meaningful protection of human rights. As highlighted in the historical review, the drafters of the Universal Declaration recognized this fact and included it in the architecture of international human rights that they envisaged. The protection of human rights at the state level has been a baseline of their legal implementation ever since then.

Two elements of the evolved human rights system are important to bear in mind when evaluating Arendt’s critique, however. The first is that national systems can incorporate and seriously protect human rights in the narrow sense – that is, the rights of all human beings under the jurisdiction of the respective state, independent of their nationality or residence status. It is not just humanity that can protect human rights, as Arendt formulated. The ranks of the protectors of human rights have been swelled by the legal orders of particular states. This is a crucial development. It shows that a considerable number of states have learned to have more respect for human beings’ naked humanity than past political actors, and that they have even institutionalized this attitude. As explained above, this is also the case for supranational legal regimes, as the European Charter of Fundamental Rights illustrates. Regional systems of public international law also have expanded the reach of rights, in particular within the framework of the extraterritorial application of human rights.⁶⁷

Moreover, Arendt’s critique contains certain ambiguities, perhaps even self-contradictions, because it acknowledges the possibility that societies can evolve to such a degree that humanity as a whole, not only individual states, becomes able to guarantee human rights.⁶⁸ This questions the necessary link between the inclusion in concrete communities and the right to have rights that forms the core of Arendt’s critical argument.

This leads to the second significant point: The international system of protection has changed since Arendt’s critique was formulated. While the current system has its weaknesses, it is certainly better than nothing. States adapt their behavior to human rights standards, some kind of redress for past violations is offered and individuals are saved from human rights violations by this system. In addition, legal means are not the only or even the predominant way of enforcing human rights. Political instruments count a great deal, too.

These two developments – the protection of human rights as the rights of all humans, not just of the members of the respective communities, and the denser protection of human rights on the international level – manifest an evolution of the human rights system that was scarcely on the horizon when Arendt formulated the critique of the aporia of human rights. These two developments provide practical proof that belonging to a national community is not a necessary precondition for enjoying human rights. Human beings have taken a step beyond this limitation, or, more precisely, they have picked up some threads of the rich heritage of meaningful universalism in past thought and practice and hold them in their hands – though they may let them fall at any time. Arendt’s critique therefore had a kind of traction in the past it now no longer possesses.

This notwithstanding, the thesis of the aporetic structure of human rights leaves us with an important question: What is the justification of the right to have rights? Or is there none, because this right begs the question of what the justification of the right to have the right to have rights (and so forth) is? Are we trapped in an infinite regress? The task is therefore to show plausibly that there is a point in the justification of human rights where, to use a famous metaphor, the spade is turned⁶⁹ because it is impossible to dig deeper. One idea is that the core of the right to have rights is human dignity – the ultimate worth of every individual human being, which, under the condition of valid, universally obligatory rights-generating normative principles, entitles every individual human being to enjoy a protected space for the pursuit of happiness, secured by rights. Whether human dignity and such normative principles (yet to be specified in more detail) solve the problem of the justification of the right to have rights is one of the questions to be addressed in the following. For now, let us simply record that political theory’s various attacks on the idea of human rights are not very convincing. This further encourages us to ask what the point is of identifying a selected set of rights as ethical and legal concerns of particular weight and of buttressing these rights through powerful legal institutions.

5.4 The Political Case for Human Rights

5.4.1 The Political Theory of Entrenchment

A useful approach to answering this question of why one should identify a particular set of rights and take them as particularly weighty ethical and legal concerns is to reflect on the usefulness of legal entrenchment. It is no accident that the political idea of human rights is wedded to the political theory and practice of constitutionalism and its basic idea, which is to isolate certain foundational norms from the general political process that these norms frame.⁷⁰ This means defending a two-tier system of political organization: Human rights create a framework for the everyday labors of politics, including antagonistic political pursuits concerning the many issues controversial in society. They can even to a certain degree accommodate those political forces that aim to leave a political system based on human rights behind. There are certainly legitimate limits to this accommodation. No majority has the right to enslave a minority, and no majority can enjoy the right to deprive others of their right to pursue their vision of the right and the good in the future, nor has any majority the right to deprive others of their rights to life and liberty. But within these limits, much is possible: In many systems, freedom of speech rightly includes the freedom to think aloud about the merits of abandoning this very freedom.

This kind of second-order entrenchment serves a very important function: It creates the scope for an open political process, which is necessary because political perfection is not ready at hand, political insight is not easy to achieve and human political pursuits – despite the very best intentions and careful self-reflective thinking – continue to be fallible. No philosopher king, no avant-garde of social progress is in possession of absolute political truth. Politics is a search involving trial and error, with no obvious end in sight – and if one shares these assumptions, the entrenchment of secondary norms like human rights makes a great deal of sense. A good and entirely justified dose of epistemic and moral self-distance, a lack of self-righteousness and skepticism about human beings’ political wisdom is built into the political project of human rights: This project does not guarantee the end state of human bliss but protects conditions that preserve a framework for humanity’s search for a decent political order. In this sense, human rights are a politically mature expression of patience with human fallibility – they provide the scope to pursue very different paths and experiments of living and to learn from failure along the way.

There is a further important point: Human rights aim to preserve the possibility of a flourishing human life independently of whether a final, highest aim of social organization is reached. An imperfect life is still a life worth living – this is one of the insights buttressing the legitimacy of human rights. The value of a life as such suffices to justify their system of protection. These rights consequently are not at the disposal of a policy that justifies current interferences in human rights with the supreme future good that these interferences will bring about. Interferences have to be justifiable here and now. This does not exclude the possibility of considering the interests of future generations – for example, in the context of environmental policies. However, the rights of the people alive now cannot simply be discounted. There is no prerogative of a utopian future; every generation and its particular quest for a life well lived is equally worthy of respect.

Human rights therefore act as a check on certain eschatological political schemes that are prepared to sacrifice human beings in the present on the altar of future bliss. The history of nineteenth- and twentieth-century socialist and communist thought is determined by such ideas in theory, art and political practice. Some noble deeds of self-sacrifice and some of the greatest tragedies of the twentieth century were the consequences. Human rights’ insistence on the equal importance of every human being is thus far from a political banality. The question of whether or not one follows this path has turned out to be one of the decisive normative questions of recent history and defining not only for the identity of the post-totalitarian left – a topic to which we will return.

As said above, human rights create a framework for an open political process. However, this framework is to be respected by everybody and is thus based on a claim of substantial legitimacy. This implies that the idea of human rights rests on epistemologically more solid grounds than other political questions. The assumption is that there are better reasons to assume that freedom of speech is justified, for instance, than opinions about particular controversial political questions – say, that the highest percentage of income tax should be 44 percent and not 47 percent. This is quite a plausible stance. There are compelling reasons for freedom of speech, whereas the maximum tax rate is loaded to a much greater extent with difficult problems of political expedience. The content of human rights thus embodies a substantial theory of conditions for justified political aims.

The political idea of entrenchment is relevant not only for legal human rights. It is also an important element of a reflective ethics that seeks to identify a specific set of rights of other people, rights that carry pro tanto specific weight in comparison to other considerations. Religious tolerance as a moral virtue presupposes a sense of the moral entitlement of others to have their religious beliefs respected, not only by law, but also in everyday life. To discriminate against persons because of their religion is therefore not a morally appropriate thing to do.

Such a morality of rights is helpful in political ethics, too. It determines the constraints of one’s own political or economic aspirations, which may take different forms but must not violate the human rights of others. This is also true for those cases involving a morally justified bias towards people with whom one enjoys specific relations. There is doubtlessly a morally legitimate special concern for one’s children or other persons with whom one enjoys a personal bond. We legitimately do many things for our own children that we do not do for other children. Acknowledging this does not mean committing to a new form of tribalism, because there are limits to such permissible special concerns.⁷¹ Human rights define some of these limits. The legitimate concern that one’s own children receive a good education does not justify contributing to social structures that provide for this need at the expense of other children, for instance. Human rights define an ethical baseline in the framework of which other concerns take their appropriate place. Making them explicit ethical principles helps to draw their boundaries properly.

Entrenchment implies a stance on the idea of human progress: Whatever the future may look like, human rights underline that respect for human liberty, equality and worth is the condition for any progress. Consequently, progress does not consist – as in some teleologies of history – in humanity being reborn over and over on ever-higher levels of development, but in better ways of living that continue to respect human beings’ basic rights.⁷²

5.4.2 Scope to Act and the Political Subjects of History

Human rights empower human beings as the agents of political development and social change. Does this make political sense? After all, one important question of political theory and the philosophy of history is who the subjects of this history actually are. This question only seemingly has an easy answer. Much intellectual effort has gone into showing that it is not human beings who drive human history forward (as it might appear), but forces beyond human control. It is not only religious perspectives that embrace this view. Hegel, for example, famously argued that it is the cunning of reason, the “List der Vernunft” that moves history – and in ways contrary to human beings’ intentions.⁷³ Consequently, attempts to create a political order based on normative principles determined by free, autonomous human reflection are futile. Marxism was influenced by the idea of history being driven forward by economic forces, the dialectic of the forces of production and relations of production. Some evolutionary social theories invest the functional needs of social systems with the power to determine the course of human social history.⁷⁴ Others (unlike Adam Smith himself) see only the invisible hand of markets at play.

Human rights made explicit and established as powerful institutions of the law imply another story, however. The creation of such ethical systems and institutions manifests the conviction that human beings can influence history in a very profound way. These systems and institutions embody the human attempt to define the normative limits in which the future – whatever it might bring, with all of the surprises both good and bad that it surely holds in store – can unfold. The architecture of human rights intends to prevent certain courses that have plagued human beings in the past. Human rights are made to facilitate a human life that is enriched by a certain degree of normative integrity because individuals pursue their various aims within the morally legitimate limits of human rights. Within these carefully crafted constraints, however, humans are free to act. Human rights are a testimony to human beings’ claim to being the autonomous authors of their own political fate.

There is much to be said about the importance of social structures and the many direct and indirect ways in which they influence human beings’ political aspirations, political consciousness, motivations and, ultimately, action. Subjective voluntarism is not a convincing theory of political agency. However, acknowledging this does not mean that it is advisable to deny the importance of individuals’ political agency. The claim that superindividual forces beyond human control drive the course of history forward has not proven to be a very successful theoretical stance. It was not merely an impersonal social structure that caused masses of human beings to inflict war upon other people and commit crimes during Nazism, but individuals who ultimately were responsible for these deeds. Human rights consequently draw a plausible lesson from the past.

The ethics and law of human rights presuppose that there is no reason for humans, as autonomous agents, to abdicate normative reflection in favor of other forces when determining the proper setup of institutions of social organization. There is no reason to assume the priority of the superhuman wisdom of the markets, for example, which transcends the capacities of human thought. Instead, normative principles form the legitimate framework of social organization. These normative principles are accessible to human understanding. Human beings not only are the authors of the normative framework of humans’ social lives, but their ethical thought can also determine this framework’s content convincingly. The idea of human rights acknowledges human ethical understanding as a guiding source of political organization.

The empowerment of human beings by human rights poses an important question to the politics of rights: How are we to prepare human beings for freedom? How are we to prevent the abuse of freedom for aims that have nothing to do with human rights? This question strongly exercised important thinkers after the experience of the French Revolution and in particular of la Terreur.⁷⁵ It continues to be a crucial question for the transition to democracy and the maintenance of democratic structures alike. The answer provided by systems of human rights is to secure rights and try to prevent abuse within this framework of guarantees. There is a case for cultivating the ability to appreciate freedom, including, for example, by such subtle means as art.⁷⁶ The rise of illiberal democracy attests the need for this, and dramatically so in recent years. There is, however, no legitimate “maturity test” for individuals or societies that could form a precondition for the enjoyment of rights. The entrenchment of freedom and other rights guarantees that lies at the base of the project of human rights thus involves a significant dose of trust in human beings’ capability to exercise their rights conscientiously, with tangible institutional consequences that entail real political risks.

Trusting that human beings are able to use freedom responsibly bets on the sufficient maturity of human beings. Historical experience warns us not to be too sure about the outcome of this bet. It is thus important, as we will see shortly, that human rights not only create scope for action, but also incorporate safeguards against destructive political actions, something that is of decisive importance for the political theory of human rights.

5.4.3 Human Rights as a Condition of Community

Human rights are not based on a collectivist theory of social organization: Their aim is to protect individuals, not superindividual values of whatever form. However, they are not motivated by an atomistic, asocial individualism either, although there have been plenty of attempts to make fundamental rights serve the interests of a powerful few. The importance of individuals as a limiting condition of political pursuits does not mean that human rights cannot be reconciled with solidarity and duties towards others, as we already have seen. Human rights are concerned with individuals, but individuals who are part of a community. Rights imply duties of others, they impose normative burdens in a variety of forms on everybody: Every individual not only is a bearer of rights, but also has duties derived directly or indirectly from the rights of others. If some persons have a right to freedom of expression, others have a no-right that these persons refrain from expressing themselves in a certain way, even if they strongly (and with good reason) disagree with the content of this expression. This includes their normative inability to make public authorities intervene in others’ exercise of free speech – for instance, by action by courts. Respecting an order of rights is a strong statement of human solidarity, because it comes at a price for everybody.

In the law, further technical devices make this concern a legal reality. For instance, the doctrine of legitimate limitations of rights manifests the importance of the community-oriented aspect of human rights. Many codifications explicitly mention the rights of others in their systems of justified limitations alongside other community concerns. Influential courts have strongly emphasized the social nature of human beings.⁷⁷ The system of limitations is, after all, an attempt to balance the rights of individuals with the rights of others and community interests. Moreover, human rights catalogues include guarantees of equality and increasingly also incorporate some social rights that embody a minimum of legally guaranteed social solidarity with the needs and interests of others, mirroring moral principles with the same content. There is also a good argument for human rights as promoting the lasting integration of political communities: People’s enjoyment of a significant set of shared, equitably distributed rights can create a social bond beyond the many divisions that remain. It is thus a profound misunderstanding to see human rights as opposing a deep concern for the importance of human community, including, on the international level, the community of all human beings.

5.4.4 Human Rights as Legal Rights

Human rights as legal rights place particular demands on justification. One is the degree of certainty that law aspires to embody. Human rights, however, are abstract and general. As a consequence, there is a need to specify them. Ensuring that this process is methodologically controlled so that it amounts to more than mere arbitrary decision-making by courts is a challenging problem. Nevertheless, through the incremental development of case law and doctrine, working human rights systems prove that this issue can be solved in practice.

A further problem is justiciability. This is an important constraint for legal human rights. The fact that something is a legitimate moral concern is not enough to make it a legal human right. It must be possible to formulate the concern in a way that makes it justiciable. Normative rhapsodizing devoid of legal effect does not foster the cause of human rights. There are intense technical debates about this question within human rights law. Given the vast number of concrete judicial applications of human rights law in courts around the world, it would be absurd to deny that this problem can be solved. To be sure, there are difficult cases, of which social rights represent a key example that we have highlighted several times in our discussion. These rights are very controversial for various reasons, not least because of their potentially redistributive impact on the wealth of society. However, such concerns about the legitimizing principles of social rights – important as they are – do not exhaust the debate. One also needs to be able to formulate social rights in a way that renders them justiciable. But even in this difficult case there is sufficient jurisprudence to show that social rights, too, can be properly integrated into justiciable law.

A further issue we have already touched upon is the role of courts in a theory of political institutions. In democracies, preventing courts from taking over legislative functions is of particular concern. The practice of human rights proves that this problem can be solved as well, not least by judicial self-restraint. These institutional questions are relevant for problems of specific groups of rights, too. As indicated above, one can be entirely convinced that there is a case, say, for a moral right to work and that a political society is under a duty to provide such work but legally question that courts should be the institutions allocating employment in a society.

The legal dimension of human rights therefore merits particular attention in a political theory of human rights. Nevertheless, it seems indisputable that the legal protection of human rights has proven a useful tool for fostering important goods of human beings. As we have seen, theories that doubt this have proven unconvincing.

5.5 Rights after Auschwitz

Political theories do not exist in a historical vacuum. The weight of arguments depends in part on what history teaches us about their relevance. This is particularly true in our time. The many horrors of the last century are not sufficiently remote to have passed into comfortable oblivion. They are not episodes devoid of any deeper relation to our current lives, like castle dungeons that can be visited on a Sunday afternoon, sending a pleasurable shiver down one’s spine at the thought of the cruel deeds once committed there but soon forgotten over a beer in the museum bar – as if our present-day lives had exorcised the menacing ghosts – savage, narrow-minded and grotesque, greedy and devoid of remorse or pity – that plagued the unfortunate past. The twentieth century was on all accounts a watershed in human history. The catastrophes of that century – World War II, the Holocaust, the Gulag, the extermination campaign against the Armenians, the atrocities committed against the human beings submitted to colonial domination, including such defining events as the millions of deaths in the Congo under Belgian rule and the mass murder of the Herero by German troops, the massacres under Pol Pot in Cambodia or the genocide in Rwanda among other gruesome events – taught some dire lessons that are of decisive importance for the political theory of human rights.

The thoughts, feelings and actions of all those who have gone before, whether they have left a personal mark in the annals of the past or not, their suffering, humiliation and fleeting bliss are the characters in which history spells out what it really means to be human. History provides the key to what humanity is truly about – understood not as a group of beings but as the epitome of the characteristics with which the human species travels through time. Not only the achievements of art and science, not only the Peplos Kore and Newton’s optics, the Creation of Adam on the ceiling of the Sistine Chapel and Euler’s proofs say something about the existential makeup of humankind. Nor are the care and justice of everyday life, the dignity with which humans shoulder the many tasks of their existence as mortal beings the only things to take into account. The fact that an atrocity like the Holocaust was possible, that human beings performed the many tasks required to make mass murder happen, often with the deep conviction – This is right! – is another building block of any credible conception of what humanity means. This atrocity thus indicates a deep cultural, ethical and political crisis that enveloped humanity a mere few decades ago. Given the many crimes that have followed since then, there are good reasons to think that this crisis still defines important elements of our lives.

The events of the past cannot be undone. No future degree of decency can reconcile the moral balance sheet of the human species. The colonial massacres, the enslavement of people weak enough to be subdued, the concentration camps and gas chambers will remain on the records defining what it is to be human. The image of ourselves, painted by the trajectory of history, extending not in space but in time, contains elements we cannot digest. There is no way to come to terms with the fact that human beings were torn from their homes, herded into cattle wagons and killed in a production line of death for no other reason than a vile, obscenely shallow and entirely fantastic ideology. So little do thought and reason count, such absurd and dirty fairy tales can become human beings’ intimate creed, so feeble is the force of the most basic and obvious demands of justice and human solidarity, so contemptuously can human beings deal with human life. The edifice of human institutions, the pious teachings of religion, the grand systems of ethics born in the better hearts and minds of humanity? Not worth a cent when it counted most.

These experiences have put paid to important hopes. The human species without doubt has the capacity to do good and to act justly. But it will continue to be threatened by these other impulses, which enmesh humans in profound guilt and inflict cruelty and death upon their victims in many shapes. Any view that does not include these experiences in its picture of humanity and give them decisive weight is no more than a dangerous illusion.

Human beings have proved able to explain the motions of heavenly bodies in a universe vast beyond imagination and to decipher some of the codes of matter. But they have neither been nor become the sovereign masters of their social life. The workings of their societies, the economic structures they create, the systems of social interaction they build, the power relations by which their fates are decided, the web of human life woven by the back-and-forth of ceaseless action all seem to elude their full understanding, and thus humans often remain at the receiving end of events that they even sometimes mythologize as destiny. Given the state in which the world finds itself in the twenty-first century, humanity still appears unable to establish social structures at a global level that allow for a decent life for all of its members, prevent the worst atrocities from happening and ensure the survival of the species – tasks one might be inclined to think would not be beyond creatures such as ourselves.

The reality of the horrors of the past and the continued instability and imperfection of social relations suggest that the future of human societies is precarious. It is possible that long-cherished hopes will be brought closer to realization; it is possible that our worst nightmares will come true, including the self-annihilation of the human species.

In this situation, both full of promise and rife with threats, the most important lesson of the twentieth century is that certain normative principles must be protected without compromise. Whatever policy one may wish to pursue, certain norms must not be violated – this is the categorical imperative that the events of the last century have formulated. No aim is lofty enough to justify the abandonment of these norms, which protect some of the most foundational principles of human decency.

This lesson is taught not least by the tragedy of socialism. The ethical core of the best elements of this movement is the search for human equality and the protection of human dignity. However, the politics of key attempts to realize an economic and political order based on these principles made a terrible charade of these ideals: Authoritarian oligarchic party bureaucracies, let alone terror systems such as Stalinism, marked a cruel betrayal of these normative ideas.

The lesson that many thinkers draw from this tragedy deserves to be considered more emphatically than often is the case in debates about the political point of human rights. There are many reckonings with this tragedy, some of them by people who supported concrete socialist politics for some time or throughout their lives, others by critics of these visions – from Arthur Koestler⁷⁸ and Ernst Bloch,⁷⁹ on to George Orwell⁸⁰ and Hannah Arendt,⁸¹ from Bertrand Russell⁸² and Albert Camus⁸³ to Noam Chomsky,⁸⁴ from Max Frisch⁸⁵ to Uwe Johnson.⁸⁶ One recurrent theme is the realization that the political aims pursued do not justify all means and in particular that no human community based on the freedom, equality and dignity of human beings can be built by politics that disrespect these very principles in the process of constructing this community. Individuals must count, not just abstract principles, which can quickly turn into hollow phrases, as the “untouchable” Veluta realizes in A. Roy’s tale about the “god of small things” when fleeing caste hatred and vainly seeking help from his fellow communist Comrade Pelay, the refusal spelling his death sentence: “Individuals’ interest is subordinate to the organization’s interest. Violating Party Discipline means violating Party Unity. The voice went on. Sentences disaggregated into phrases. Words. Progress of the Revolution. Annihilation of the Class Enemy. Comprador capitalist. Spring-thunder. And there it was again. Another religion turned against itself. Another edifice constructed by the human mind, decimated by human nature.”⁸⁷

These insights seem straightforward enough but are clearly in need of defense. Their political foes come in various guises, and not only from the political right. Leftist movements of the 1960s and 1970s did not universally accept that human rights are inviolable. Tactical attitudes towards human rights were widespread, sometimes in the framework of decolonization or revolutionary aspirations. The leftist terror of the 1970s in Europe is just one example of the consequences that such ideas can have. The collapse of the state socialist systems, the moral and political reckoning that followed when the reality of these systems (which now no longer could be shrouded in comforting ideologies) could be inspected in full daylight confirmed beyond doubt the importance of the principle that no social and political good can come of the violation of human rights, whatever aims are pursued.

This lesson is also crucial for current and new attempts at social reconstruction and worldmaking. New egalitarian projects that rightly rebel against injustice in particular societies and in global economic and political structures, searching for a postcolonial cosmopolitanism able to overcome structures of domination and the global “color line,” will fail to achieve any meaningful and justified ends if they overlook the importance of human rights. Any form of human progress needs human rights to maintain the public space necessary for thinking and acting. Without rights to political participation, the freedom to communicate about ideas, the rights to associate with others in political groups, NGOs or trade unions, without guarantees for the liberty to be whatever a person chooses to be, from sexual identity to religious belief, without protection against being unlawfully prosecuted, incarcerated, tortured or killed, no political movement will succeed.

There is another point: Disregarding human rights would mean discounting the normative reasons – the human autonomy, equality and dignity at the heart of the human rights idea – that motivate the search for nondomination in the first place. Moreover, this discounting does not even promise success in the long run, as the history of postcolonial dictatorships and their contribution to imperial worldmaking, strengthening global structures of domination over the Global South, has shown – from the oil-producing authoritarian regimes in the Middle East and their role in the current political economy of energy resources to the South American military dictatorships. Ultimately, any emancipatory political project will betray its promises of freedom, equality and dignity if it loses its consciousness of what one does not do to human beings.⁸⁸

As Albert Camus put it when reflecting on the many forms of nihilism that swept European culture in the nineteenth and twentieth centuries, it is not enough for the l’homme revolté, the rebellious human being, to say no. It is crucial to say yes to something, too – to a substantial idea of what human beings are like irrespective of history and social development, and to a set of normative principles that are sufficiently secure to lead the way and crucially are not negotiable.⁸⁹ For Camus, as for many others, human rights needed to form the building blocks of this answer to the challenge of nihilism and contempt for human life that dragged human beings into the many catastrophes of recent history.

The consequence of these thoughts for a theory of the justification of human rights seems clear enough: Nothing can redeem the pains and degradation of the victims of the past. However, underestimating the political importance of human rights fails to draw the minimum necessary conclusion from their suffering, namely to honor those rights the contempt for which was the root of these victims’ dire fate.

5.6 Normative Principles

5.6.1 Justice and Solidarity as the Wellsprings of Rights

The discussion thus far has led to two conclusions: First, a justificatory theory of human rights depends on reasons why the goods protected are worthy of such protection. The argument was that a plausible theory of the human condition or human nature (not a theoretically suspicious concept if understood properly and purged of speculative metaphysics or repressive ideology) is needed to justify the selection of protected goods embodied in human rights bills and ethical theories.

Second, there are plausible reasons to believe that a convincing political case can be made for human rights as key instruments to secure these goods both as ethical principles and as legal institutions, despite a great number of critiques, both old and new.

Our review of the theories of justification and of the political theory of rights, including the critique of rights, has underlined the importance of normative principles for the justification of rights – hardly a surprising result, albeit sometimes less clearly stated in current debates than one might expect, as we have seen. But what exactly are these normative principles? How do they give rise to rights?

In the history and theory of human rights, one central concept is equality. Human rights are concerned with human equality, and part of the foundational principles of the human rights project is the equality of rights. Furthermore, human rights are an expression of benevolent concern for other human beings, for their liberty, for the proper treatment that they deserve. It therefore stands to reason that plausible candidates for the normative principles important for the justification of human rights include, first, principles of egalitarian justice and, second, principles of human care and solidarity. Let us look at these two sets of principles first before we turn our attention to another key normative concept for human rights: the idea of human dignity.

Principles of justice are the reason why human rights are conceptualized as equal rights. They also provide the reason why certain goods – be it interests or needs – possess normative relevance. This reason is the necessary connection between justice and rights:⁹⁰ Interests or needs as such are normatively neutral, as we have seen. The fact that I have an interest, perhaps even a need (given my deep-seated competitive passion) to win a rowing regatta does not mean that I have the right to win a rowing regatta. If a distribution is just, however, one has a right to this distribution. This seems to be a necessary connection. It is impossible to assert that the distribution D of good X is just, but that the patients of the distributive action have no moral right to their share D of the good X distributed. If sweets are distributed during a children’s party, the kids have a moral right to their fair share – and will claim it with considerable moral passion (and noise). This relation between justice and rights is relevant for human rights as well: Human rights imply the idea of a just distribution and allocation of central goods such as respect, status and freedom. Because it is just that human beings are put in a position where they are equally capable of enjoying a certain share of goods as other humans are (e.g. to express themselves freely in way K under circumstances Y), they have a right to that good.

Principles of justice thus are key to transforming certain human goods into the content of rights: The justness of the distribution of goods gives rise to the existence of rights. If the goods meet the threshold condition of importance and have a qualified personal scope, they may be human rights.

What are these principles? This question leads to further vast problems and copious intense debates. Moreover, the concept of justice seems to have various dimensions – standard distinctions include distributive, corrective, retributive and procedural justice and justice in exchange. If we look at basic uncontroversial cases regarded as just or unjust (such as distributing a birthday cake, basic standards of just grading, etc.), however, we are able to make sufficient progress for our purposes in determining what this idea is all about. It is useful in this context to distinguish between normative principles, criteria of justice and spheres of justice, to use Walzer’s terms.⁹¹ The first set normative standards – importantly, for instance, the universally accepted principle “treat equals equally.” The second determine the normatively relevant reference points of just or unjust intentions, actions and states of affairs – for instance, the criteria for allocating goods in a certain way or for evaluating an already-existing allocation of goods. The third circumscribe certain areas of just or unjust intentions, actions or states of affairs that may follow a specific rationale for allocating goods.

The concrete meaning of the principle of equality has formed the basis of discussions on justice to a large degree ever since antiquity and is universally associated with justice in today’s theory and empirical work, too. Accordingly, the most important questions in the theory of justice are not whether justice is connected to equality, but, first, what equality as a prescriptive concept means exactly (formal equality, substantive equality, something else?), second, between which objects this relation has to obtain to satisfy the principles of justice and, third, what the normative consequences of judgments about justice (or injustice) actually are.⁹²

If one analyzes standard cases of distributive justice (a dimension of justice particularly relevant for the justification of human rights), the justness of the distribution of goods appears to have the following yardsticks. A just distribution demands proportional equality between the value of the specific criterion of distribution reasonably related to a particular sphere of distribution on the one hand and the amount of the good distributed on the other. Determining which criterion of distribution should count is a persistent problem.⁹³ This difficulty does not mean that there are not good reasons to prefer one criterion over the other: The criterion for the distribution of grades reasonably related to the sphere of university education is performance, for instance. Giving grades according to the perceived beauty of the student is, in contrast, a rather bad idea because it does not serve the function of grading, such as feedback and information about intellectual achievements. A just grading of an exam is consequently one that awards a good grade to a good performance, because this preserves the proportional equality between the value of the criterion of distribution (a good performance) reasonably related to the sphere of distribution (grading) and the good allocated (a good grade).

Another yardstick is that justice demands an interpersonal comparison and the preservation of the equality of the distribution between persons. The standard of treatment applied has to be equal for all equal patients of an intention or action. For example, if grading is made dependent on performance for some students and not for others, this grading is unjust. If there is no criterion for distinctions between patients of actions, then, as a default rule, a numerically equal distribution among equals is just to preserve the equality of persons. If there is no particular reason to distribute a birthday cake differently, an equal distribution is a just distribution. This principle is not entirely banal, as it is central for the allocation of scarce goods in a society for cases in which a criterion of distribution underdetermines the distribution both of these goods and of the chances to acquire these goods. As far as corrective justice is concerned, the restituting act has to equal the object restituted.⁹⁴ Finally, any treatment or state of affairs (e.g. the distribution of capabilities to lead a meningful life in a society) has to be reconcilable with human beings’ basic equality of worth, the ultimate substantive yardstick of justice in human affairs. On this basis, one can start to rationally reconstruct other dimensions of justice, such as substantive or procedural justice, and try to tackle concrete political problems.⁹⁵

In the case of goods that are the objects of protection by human rights, the criterion for distribution reasonably related to the sphere of distribution is the humanity of the rights-holder. As all humans enjoy full humanity in the normatively relevant sense, a just distribution of goods protected by human rights requires that every human being enjoy an equal set of goods protected by human rights, not some classes of human beings (say, women or people with a certain skin color) less and others (say, men and white people) more. Human beings consequently have rights to this kind of distribution of goods. The principles of equality are also important for the justified limitations of rights, which need to ensure that the sometimes-scarce good of liberty is distributed equally so that the liberties of one are reconcilable with the equal liberties of others.

In the theory of rights, there is another dimension to justice: Rights not only secure goods, they are goods themselves. To have a right to an asset is itself of great worth. Consequently, the distribution of rights itself is a matter of justice. This helps to explain why human beings have a right to have rights: Because of their shared humanity (or so it seems thus far), it is a matter of justice that they enjoy rights to an equal system of rights to goods crucial to their life as human beings, not only the goods as such.

The necessity to preserve interpersonal equality is another reason why only an equal allocation of rights among different but normatively equal persons forms a just system of rights. Principles of justice demand the equal treatment of persons by the equal distribution of goods and the rights that secure them because of the equal normative status of human beings. This equal system of rights protects everyone’s equal opportunity (or capability) to use their potential as a human person. The thesis that already suggested itself in the critical review of theories of justification therefore seems to be on the right track: Justice is a wellspring of rights.

The other relevant principle is care or solidarity. There are obligations to care for others; this is a core principle of morality and ethics. These obligations are not boundless, but still are meaningful. For example, there is a duty not to let somebody die who can be helped without compromising overwhelmingly important interests of the agent.⁹⁶ Some legal systems even buttress such duties with criminal sanctions.⁹⁷ Other duties may be more controversial: Leibniz argued that not only Samaritan duties to prevent harm to others exist, but also duties to promote the well-being of others if that is possible at no or a small cost to the agent.⁹⁸ Kant thought that the only duty of virtue is to foster the beatitude of others.⁹⁹ If one goes yet a step further and holds that loving one’s neighbor as oneself captures an important ethical principle, duties to concern oneself with the well-being of others become even more exacting. Be this as it may, for the purpose of these remarks it suffices to say that there is a strong case at least for some basic duties of human solidarity.

The flipside of the coin of the duty to care for others is the prohibition to harm them – the least one can do for the well-being of others is not to harm them. Unlike positive duties of solidarity, this prohibition of harm is rather uncontroversial.

These moral obligations of agents give rise to the rights of others.¹⁰⁰ This is important. There is not only an obligation to help others under certain circumstances, but also a right of those in need that this be done as long as the threshold of supererogatory acts of the agent is not crossed. If Ayodele collapses on the road, bystanders have a duty to call an ambulance, and she has a right that they do (at least) this. The same holds for the prohibition of harm – it creates not only duties, but also entitlements.

Rights protect human goods that are often of existential importance; they can even be matters of life and death. Human beings therefore have a duty of solidarity to help others to enjoy these goods – for instance, the possibility of leading a free and secure life, a duty that gives rise to rights to these goods.

Furthermore, human rights are crucial instruments for protecting the enjoyment of central human goods and – as just highlighted – goods themselves. Human solidarity is therefore a further reason for humans’ right to have rights. Moreover, contributing to the efficiency of the (legal and extralegal) instruments of protection of these goods is a command of human care and solidarity. One consequence of this is the obligation to strengthen mechanisms of rights protection – for instance, by sustaining a legal order that protects such rights by one’s taxes, by lending political support to international institutions for the protection of human rights or by participating in an NGO committed to improving the political culture of human rights. These duties are supplemented by the duties stemming from the prohibition to harm anybody – by depriving others of central goods or the rights that protect them.

Accordingly, the next important finding is that not only principles of justice, but also duties to care for others are a wellspring of rights.

5.6.2 Dignity and Rights

The theory of human goods needs to identify those goods that are plausibly of such qualified value for human beings that they are justifiably protected by human rights. Some reasons for the identification of some such goods have been outlined above. However, the goods identified in this way are only morally significant if the being for which they constitute goods is itself morally significant. One question thus remains that any theory of human rights needs to answer: Why are human beings of normative concern?

This question can be formulated more precisely when one pays due attention to three presuppositions in the argument so far. These are – simply put – first, that individual human beings count at all; second, that they count equally; and third, that they count decisively for any evaluation of a course of action. To address the first point, if human beings were of no moral significance, if they did not possess a certain value status, the project of human rights quite evidently would be pointless. The protection of life, liberty, equality, subsistence and well-being is based on the idea that the being for which these things are goods of importance matters. If human beings were creatures of no worth that better would not exist, an unfortunate, corrupted product of natural history that ought to be driven from the face of the Earth, the protection of their life, freedom or other goods would make no particular sense. The protection of life, liberty, equality and well-being is only important because the being whose goods these things are is itself morally significant.¹⁰¹

Second, it is important that each individual is of equal worth. This is the precondition for protecting life and liberty equally. It is not, as it might appear, a consequence, but rather a precondition of equality guarantees: They presuppose the equal worth of the human beings they are designed to protect. If racism were right and certain so-called races were worth more than others, prohibitions of discrimination on the ground of ascribed race would not make any sense.

Third, it is pivotal that human rights not only imply that human beings have worth and that this worth is equal, but also determine the weight of this worth in comparison to other considerations. After all, one of the central questions in social history is whether other values ever outweigh the significance of individual human lives, and if so, under which circumstances. It has perhaps been something like the antihumanistic default assumption throughout history that individual human lives are of only relatively small importance, if any at all. Human life and liberty were held to be of little concern in comparison to the desire to build pyramids, to the power of dynasties and ruling groups, to the amassment of riches, to the grandeur of nations, to the future happiness of social classes or to the final, blissful, redemptive victory of religious creeds. Accordingly, many have perished without much ado on the construction sites of the cultural wonders of the world, in wars fought in the interests of dynastic power, in the pursuit of wealth and national glory, in class wars and in the religious suppression of heretical thought. Today, some of these ideas have lost their importance, while others have not: For the managers of the Bhopal factory, the lives of the poor living close to the factory premises were evidently only of limited concern, to take this classical example from economic history. National security is yet another example that continues to be significant. In this context, the idea that individuals have little importance in comparison to greater goods like the security of a nation is defended and put into practice – although there are, to be sure, effective security policies that follow a course respectful of human rights. The war in Ukraine with its many consequences from civilian deaths to starvation in poor countries teaches the same lesson.

What, then, supports the idea that all human beings enjoy a particular inalienable value status?

The central idea underpinning the attribution of equal worth to individuals and determining the qualified weight of this value status in relation to other goods is the notion that human beings enjoy human dignity. This is at least the language of contemporary human rights in which human dignity is taken as foundational for human rights – both in fundamental documents and treaties of human rights law and in much theoretical reflection.¹⁰²

There is something in human beings – that is the core of this idea – that bestows particular worth upon them. All humans enjoy it, and the value of their life is thus equal. In addition, the worth inherent in human beings is supremely important. Human dignity means that individuals are of intrinsic, supreme, inalienable value, ends-in-themselves, and everybody equally so. According to this idea, human beings are the justified highest-order ends of human intentions and actions.

Human dignity is thus the expression of a radical egalitarian humanism, of human beings’ uncompromising respect both for others and for themselves, not because of ephemeral achievements and contingent merits, but because of the nature of the core of their existence, the humanity they share. Such an interpretation of the value status of each individual cannot be reconciled with ethical principles in which the aggregate welfare trumps individual rights.¹⁰³ Furthermore, the idea of human dignity is the most radical critique of those ideas that relativize the importance of human life because of the greatness of dynasties, nations, classes or religions, because of the seductive pull of the pursuit of wealth or because of the heterogeneous interests behind what are often quite misleadingly called “reasons of state.”

As we have seen, Arendt’s famous assessment of the role of human rights as a force against the abuses of Nazism and Stalinism insisted on the importance of the right to have rights. Arendt identified this with the right to belong to a political community that protects the rights of its members, skeptical that humanity itself could fulfill this role.

It has been argued above that a more promising approach might be to understand justice and human solidarity as the roots of such a right to have rights. Moreover, the right to have rights presupposes that a person is morally significant enough to become a holder of fundamental rights. Human dignity seems to be at the core of this idea. Under principles of justice and benevolent moral concern for others, human beings’ worth, their intrinsic value as ends-in-themselves demand that they have rights securing the main pillars that make possible their pursuit of happiness and demand that these rights are those of equals. Belonging to a political community continues to be important for the efficient enforcement of rights. However, the right to belong to such a community is itself derived from the value status of human beings, and not, vice versa, this value status being from membership in a political community.

There is no right to have the right to have rights. There is no right to have human dignity to entitle someone to have equal human rights (likewise, Arendt does not argue that there is a right to the right to be a member of a human community that protects human rights in her original statement of the problem). Human dignity is the value status humans enjoy that, together with principles of justice and human concern, provides the ultimate foundation of human rights. This is where the spade turns, to return to this metaphor.

One may admit that this argument about dignity as a foundational principle of human rights has some merits. One may agree, too, that it would be beneficial for everybody to have reason to think it correct to ascribe dignity to all human beings, adding dryly that having human dignity as their foundation is all the worse for human rights, because human dignity itself has no justification. The castle of human rights, constructed to shield the essence of humanity, is built of normative sand and is quickly brought tumbling to the ground by a few swift strokes of doubt.

There is a vast debate both about the possible justification for ascribing dignity to all humans and about the concrete meaning of this concept, including the influential opinion that there is no such justification and that dignity is simply a piece of deplorable vacuous rhetoric at best and a harmful (and stupid) political ideology at worst, both in ethics and in law.¹⁰⁴

Admittedly, it would make theoretical and political life much easier if one did not have to answer demanding questions about the meaning and justification of dignity. It would simplify human life even more if there were no need to take the idea seriously when taking actions that affect other human beings. If the dignity of others were irrelevant, one could just deal with them as one pleases, restricted by much less exacting standards.

But is this really so? The following thoughts indicate that this skeptical view is overly simple. A path that we will now explore further speaks for the plausibility of contemporary human rights’ foundational assumption of the dignity of human beings and its consequence, namely the assertion of the respect owed to them.

The first argument to consider draws on the fact that human beings experience their life as intrinsically valuable, as an end-in-itself (pathological cases aside). This is why self-preservation is such a strong impulse. Life in this context cannot be reduced to continuous physical reproduction. It encompasses the totality of a human existence in its manifold dimensions. Life in this sense is not only a good, but the life of every human being is an equal good. There is nothing about one person’s subjective experience that makes it qualitatively more worthy to be lived than the subjective experience of any other person. Love, friendship, happiness, despair are made of the same stuff in all human beings. Nor is anything objectively better about one life of a human being than about another as far as the basic value of human existence is concerned, although one can obviously do very different things of unequal value with the equally valuable gift of life. Nothing in the life of one person as such elevates it above the value of the life of another.

If that is so, if there is no reason to differentiate the value of life of different persons, then justice demands the equal protection of each human life as an end-in-itself. The universalization of the just, equal concern for the equal value of each life justifies the right to the protection of the intrinsic value of everyone’s human existence.

In addition, humans enjoy particular properties that seem to give reason to think that the ascription of dignity is justified. Human beings have unpleasant characteristics, including being the only known organism with genocidal inclinations – no small flaw. The serious accounts of human dignity are therefore those underlining the fact that whatever worth human beings may possess, they continue to be highly ambivalent creatures, living just one step away from often self-inflicted, gratuitous, profound suffering, tragic errors and appalling crimes.

But this is not all that can be said about them. We already beheld some contours of the human life form in the mirror of the ethical and legal norms ascertaining its most important rights. If we take a closer look, some of the following observations may attract our attention: Humans are distinguished by their desire to look behind the facades of appearance and comprehend those parts of the structure of the world that are accessible to their understanding. This is of substantial importance for their position in the world. They cease to be objects of forces beyond comprehension and by epistemic means establish themselves as subjects within the world. They become capable of mastering some of the forces of nature and using them for their human purposes. For the many aspects of nature beyond such use, the understanding of at least some of their properties still prevents human beings from becoming mere passive things in the chain of events that make up the stuff of the world.

Human creativity is another constitutive factor of human beings’ status as subjects. Humans put this creativity to use in very particular ways. In aesthetical representations whose beauty pleases and sometimes even enraptures, human beings critically reflect upon their own form of life and develop accounts of how things could be otherwise. They are themselves the authors of some of their deepest pleasures and of the prudentially and morally preferable imaginary worlds they continue to construct with the fine brush strokes of art. This faculty to produce works of beauty is very important for the concept of human dignity: In aesthetic creation, human beings bring a world according to their own image into being by which and in which their subjectivity can manifest itself in the form of and with the freedom of meaningful and at the same time deeply pleasurable artistic play.

Human existence is characterized by an emotionally rich, conscious, autonomous selfhood with a vulnerable longing for respect: Human beings inhabit a world of sentiment and are conscious of it, which both deepens their joy and can make suffering unbearable. They live with the consciousness of their mortality, which poses the challenge of earnestly striving for one’s goals in life while knowing that ultimately one will have to let go of everything one has managed to achieve and holds dear. Thinking and acting despite the transience of one’s existence (and the transience of the human species as such) adds to the reasons for the respect that humans rightly desire to enjoy.

The capacity for autonomous conscious self-determination offers humans the striking privilege of being the authors of their one life. They are not the mere plaything of drives that determine the actions they take but are able to choose and themselves decisively shape the course of their existence. They are a product of nature, but one with a demiurgic power to mold anew what human existence means within the limits set by their human nature. At the same time, their acts greatly influence the lives of others. Their autonomy is the source of the responsibility for what they do to themselves and to others – a responsibility to which humans have to be able to stand up, sometimes with dire consequences, including guilt, remorse and punishment. When deciding the course of action they intend to take, humans have the ability to transcend some of their most important interests, motivated by the force of moral obligations to secure what is due to others and to respect their rights, sometimes leading strong souls even to risk and sacrifice their lives.

Human beings are reflective, creative, autonomous, feeling, self-conscious, mortal subjects under moral laws. They unfold their potential and realize their capabilities in human communities and through their many bonds with others. These existential characteristics enable a particular form of life, extended over time, encompassing growth, maturity and decay, and plausibly can be taken as some of the crucial reasons for justifiably ascribing dignity to human beings in all phases of their life and for defending their delicate yet proud sense of their own worth and their unremitting desire for respect.

It is important to note that there are no justificatory resources beyond such reasons. One cannot transcend arguments of this kind and the axiological principles underlying the justified predication of dignity with some kind of striking meta-argument. One can only hope to elicit agreement with these reasons based on the same act of cognition by which one was persuaded oneself – and continue to listen to why these reasons may fail to convince. There is nothing epistemologically spurious about this. An argument about the question of why the Earth is not flat is no different: One provides arguments (we can travel around it, the notion that arriving back where one started is just a dream is not convincing, etc.) and hopes that they convince by a similar act of cognition that persuaded oneself about the truth of this proposition. Critics of the reasons given for human dignity – arguing, for example, that it is nothing but a deplorable example of speciesism to take existential characteristics such as autonomy or feeling, self-conscious subjectivity under moral laws to be relevant reasons for the ascription of dignity – draw on exactly the same epistemic resources: They provide counterarguments that in their view are convincing but have nothing over and above these reasons to make their case.

Understood in this way, dignity has concrete surplus content as compared to other human rights. The core of the matter is the idea – in whatever way one wants to express it – that human beings are ends-in-themselves and thus have to be protected as such, as the autonomous subjects of their life. This implies prohibitions of instrumentalization, objectification and reification and gives rise to correlated rights. It also implies a basic level of respect for every human being beyond these prohibitions. Respect as a normative concept is not just a contemplative appreciation of the qualities of human life, looking at human life as one would at a millipede’s astonishing number of legs. Rather, respect has normative consequences, including the duty to refrain from actions irreconcilable with it and encompassing the right to be treated accordingly.

These are hard, applicable and – in the law – justiciable normative principles. They have both implicitly and explicitly guided courts around the world in cases concerning the death penalty, torture, discrimination, social rights, procedural rights and democratic participation.¹⁰⁵ They formulate an uncomfortable need to make individuals matter as they deserve in various normative contexts. They play a decisive role in the weighing and balancing exercises that now are at the heart of the application of human rights law by providing yardsticks for the normative calibration of the value judgments involved.

These remarks provide some important answers to standard objections against dignity. They show that human dignity is not a redundant concept. It is not empty or vague beyond hermeneutical redemption, although of course in practice its application may be dubious and lack precision. One also may want to add that it is not exclusionary. On the contrary, any plausible account of dignity is inclusionary – that is, it includes every human being, and most certainly infants, persons with disabilities, mentally ill and unconscious people. Anything else would amount to drawing distinctions between members of the human species as to who is “human enough” to count as human, without there being any plausible yardsticks for such distinctions. Besides, it would risk denying the richness of the human experience of some of these persons and the potential for a full human life of some others.¹⁰⁶

Basing human rights on the respect for the dignity of human beings does not lead to the implausible consequence that human rights fill the whole moral domain, as has been argued.¹⁰⁷ There are very many matters of moral relevance that have nothing to do with human dignity.

To give generously to people in need beyond what might be regarded as obligatory is a morally laudable deed. Not doing so, however, does not constitute a violation of the recipients’ dignity. Moreover, there are without doubt many possible violations of human rights that are not violations of human dignity – in fact, this is actually the standard case in human rights law. Making a demonstration dependent on prior authorization, excluding the possibility of assembling spontaneously, is arguably a violation of the right to freedom of assembly, an important fundamental right. However, requiring such a prior permit hardly already constitutes a violation of human dignity. It is simply a disproportionate limitation of a liberty. Therefore, one important element of any credible concept of human dignity is that it must prevent an inflationary use of this idea, which loses its meaning if it is understood as covering any violation of moral or legal norms.

Human dignity in this well-circumscribed sense is neither an ideologically nor a religiously partisan concept. To be sure, it is certainly used in this way. But in this it simply shares the fate of every important normative idea. There is no important normative concept that has not been abused by political forces. In the history of liberty, equality and democracy, examples of this abound. Highly authoritarian systems have been called democracies without this constituting a reason to abandon the normative idea of democracy. This is one of the decisive reasons why one needs to be precise about what dignity means and what its justifications are.

Human rights resting on human dignity are thus built not on imaginary foundations, but on the justified cognition of what ethical reflection about common humanity demands. Human dignity is not a tool for subjugating human ethical, legal, social and political imagination to a reactionary, metaphysical or otherwise obscure concept. On the contrary, it is the skeptical self-assertion of humanity, and it is not to be toyed with given how fragile and stained humanity’s claim to decency is.

The principles of justice, human care and solidarity together with the idea of human dignity take the theory of human rights a long way towards its aim of specifying the normative principles that form necessary elements of any justification of human rights. Human rights spell out what justice, solidarity and respect for human dignity mean in the hard currency of rights.

5.7 Making Human Rights Concrete

Human rights as explicit ethical principles and legal norms are regularly formulated in abstract terms. One important task therefore is to render human rights more concrete. This goes not only for the law, but also for meaningful ethical accounts of human rights.

Real-life human rights protection poses many highly intricate problems. One key issue is the question of what morally legitimate burdens can be imposed on others both prima facie and all things considered. In order to assess this, different normative considerations need to be placed in relation to one another. For instance, the constraints of justice mean that there is no right to everything. There is neither a right to the self-abandonment of others nor even a right to their utmost efforts to benefit somebody else, because of the rights of these others to lead their own equally important lives. More complicated are questions in specific cases where a lot hinges on the specific circumstance at stake.

In legal practice, the scope of a right determines the prima facie protection of a certain good. A proportionality analysis is a key practical tool in finding a solution all things considered. This includes reviewing whether a measure that is interfering with a right pursues a legitimate aim, is suitable to achieve this aim, is the least burdensome of all equally effective means and whether the burden imposed on the bearer of the right is not disproportionate as regards the gains of the measure. Proportionality in this sense is ultimately a device of justice: The burdens and secured goods are to be allocated among the rights-holders in a way that remains fair.¹⁰⁸ Other considerations include the possibilities and limits of securing particular human goods by rights – a problem already discussed above. There is no reason why the ethical concretization of rights should not follow a comparable path.¹⁰⁹

Looking at concrete cases underlines the importance of a caveat concerning the limits of our findings so far: Whether or not banning burqas in public can be reconciled with freedom of religion, for example, can only be answered after substantial reflection about the telos of this right, the kind of freedom protected, some serious thought about what a society can demand of a person, whether “vivre ensemble” is in fact a sufficient reason to force a person not to wear a burqa (as the ECtHR has argued), the impact of such a ban on the women concerned, whether it liberates them from oppression or drives them deeper into the dungeon of isolation and so on.¹¹⁰ The theory of goods, the political theory of rights and the normative principles considered do not answer all of these questions. They are thus only a part of the full unfolding of human rights, not least in the hard doctrinal work of the law.

Something similar is important for the question of how to derive guidance from what has been said about the new frontiers of human rights – say, the development of privacy rights in the digital age. The results of this inquiry define benchmarks for any solution but do not give all of the answers needed – for example, as to whether a right to be forgotten should be included in the scope of protection of privacy or not.

5.8 Some More Results

What are the results of our inquiry so far? What do they mean for the questions pursued?

First, the concept of rights gained some contours, showing that rights are best understood as an intricate web of normative relations woven by claims and duties, privileges and no-rights, powers and immunities, both in ethics and in law. Human rights deal with a limited set of qualified human concerns protected for all human beings by virtue of their humanity, including the respect for humans’ intrinsic worth, life, liberties, equality and some of the material means required for a fully human life.

Second, the long and rich history of the making of the idea of human rights was sketched in rough outline. One lesson drawn was that human rights are plausibly understood as reflective, abstract, objectified generalizations and universalizations of concrete rights claims of individual actors, often stemming from perceived violations of rights under particular circumstances, based on not arbitrary but principled intuitions about justice and moral obligations, rendered explicit after a critical reflection of their possible personal scope and content and finally selectively turned into law in various forms. Their acceptance and slow political and legal realization in incremental, incomplete steps devoid of any teleology, involving both progress and regression at a very high human cost, depended on the political and ultimately ethical choices, convictions and decisions of human subjects embedded in the culture and social structures of their time, which created the preconditions, scope and constraints for insights and possible social action. Human rights faced many foes from different political and ideological corners, depending on historical circumstance. Our historical inquiry revealed the importance of a political and ethical analysis that specifies the heterogeneous actors and interests driving human rights history and refrains from simplistic theses about monolithic cultures and their causal impact on the development of human rights. The history outlined is not about the presence of the full, explicit concept of human rights in all times and places. Rather, it is the history of normative phenomena that were not human rights but paved the way to their ultimate formulation. It is the history of islets of decency in the wide seas of injustice, islets that slowly grew into the idea of human rights.

Third, it became clear that the justification of human rights is a large and difficult topic. Some highly demanding theories were reviewed, and much has been learned from these impressive efforts. The questions to be answered about the justified goods protected by human rights, their place in a political theory and their normative foundations are far from trivial. However, some arguments about the sources of these goods, their political rationality and their normative basis have been formulated that seem to stand the test of critical reflection.

So far, this inquiry has traveled on well-known ground, albeit not on paths commonly trodden. But while the findings outlined are necessary elements of a theory of human rights, they are not sufficient to complete our theoretical task. One reason for this is that we now have a new kid on the block. In recent years, moral psychology, behavioral economics, cognitive science and neuroscience have turned their attention to the question of ethics and in particular to human rights, with sometimes far-reaching revisionist theses, holding that the arguments about the justification of human rights that have been mustered here are in fact no more than an intellectual hoax, the post-hoc rationalization of the illusions produced by human beings’ psychological machinery. However, such revisionist theories are only one approach to the problem of the cognitive foundations of human rights, and one that does not exhaust the theoretical options available.

This psychological interest is not surprising: After all, human rights are an element of ethics, and ethics is traditionally associated with moral psychology. In addition, this inquiry started from the observation that human rights are a product of human thinking, and that human rights theory suffers from a potentially highly relevant blind spot if it does not concern itself with the theory of the human mind that, after all, generates this thought.

Our inquiry covered some distance to arrive at these findings. This journey has not been a digression. On the contrary, these efforts were necessary in order to formulate the first of the central results of this study: Our findings about the concept of human rights, the goods they legitimately protect, their history and justification define the plausibility conditions of any meaningful theory of human rights, including the theories developed by psychology, behavioral economics, evolutionary theory and neuroscience.

The results of our inquiry show that such theories need to address complex issues – that there is much that enters into an understanding of human rights. This includes problems of the origins of beliefs about human rights and in this sense of the epistemological dimensions of theories about these rights. Given the rich and intricate findings produced, one thing seems rather obvious: The epistemology of human rights is the epistemology of many things. Conceptual questions need to be addressed. Factual propositions of human anthropology enter into the justification of rights, as do multifaceted theses about the working of human societies into the assessment of the political theories of human rights. Lessons need to be drawn from history, which presupposes historical analysis and understanding. Finally, a normative theory needs to be outlined that includes loaded ideas such as justice, solidarity and human dignity.

This is a crucial point. It shows that no psychological or neuroscientific theory can afford any naivete about the complexity of the explanatory task at hand. There is no way to make this clear other than to outline in sufficient detail the many difficulties to which the theory of human rights has to face up, as has been attempted in the preceding chapters. The results of the inquiry formulate important parts of the research agenda in this field. At the same time, these findings from the beginning limit, or so it seems, the role that a psychological or neuroscientific theory can play for the theory of human rights, including its epistemological dimensions. It is a nonstarter to assume that such a theory can explain all of the substantial and epistemological issues raised, ranging from human anthropology to the effects of rights in society to the normative content of human dignity. This does not mean that there are no important insights to be gained or that one does not need to keep an open mind about where the inquiry may lead, only that one should not expect (or promise) too much. The inquiry about the relation between human rights and the mental structure of human beings is an intriguing and important piece of the puzzle of understanding human rights and perhaps human moral orientation more generally. It is, however, only one piece of the puzzle alongside other, equally important ones.

Given the cognitive interests of this inquiry into mind and rights, the question is now: What is the origin of the normative principles in human thinking that are pivotal for the idea of human rights? Why have human beings pursued these ideas for such a very long time with such deep conviction? Why do they form such commanding elements of normative systems of belief in the contemporary world across cultural and religious divides? What do psychology, cognitive science and neuroscience add to our understanding of these matters, given that some theories claim to possess the key to answering these questions? What consequences do the answers to these questions have for the epistemological and ontological status of the principles crucial to the justification of human rights? Are they properly regarded as foundational principles in any meaningful sense? Are they justified true beliefs or deeply held but ultimately contingent ideas? Or are they nothing but moral illusions, on par with illusions in other cognitive domains? Do the answers to these questions (if there are any) matter for a normative theory of human rights and thus ultimately for their justification, perhaps even undermining their legitimacy? Or are they entirely irrelevant in this regard? These are the next problems we will consider, problems that are as exciting to address as they are difficult to solve.