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THE FIDUCIARY CONSTITUTION OF HUMAN RIGHTS

Published online by Cambridge University Press:  29 March 2010

Evan Fox-Decent  and
Evan J. Criddle
Evan Fox-Decent
Affiliation:
McGill University Faculty of [email protected]
Evan J. Criddle
Affiliation:
Syracuse University College of Law
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Abstract

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state's fiduciary duty to provide equal security under the rule of law, a duty that flows from the state's institutional assumption of irresistible sovereign powers.

Type
Research Article
Information
Legal Theory , Volume 15 , Issue 4 , December 2009 , pp. 301 - 336
Copyright
Copyright © Cambridge University Press 2010

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References

1. See, e.g., Jack Donnelly, International Human Rights 18 (1998); Alan Gewirth, Human Rights: Essays on Justification and Applications 1 (1982); H.L.A. Hart, Are There Any Natural Rights?, 64 Phil. Rev. 175 (1955); A. John Simmons, Human Rights and World Citizenship, in Justification and Legitimacy: Essays on Rights and Obligations 185 (2001).

2. See Immanuel Kant, The Metaphysics of Morals 98–99 (Mary Gregor trans., 1991) (1797).

3. U.N. Charter, arts. 55(c), 56.

4. Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948) [hereinafter UDHR].

5. Id. at pmbl.

6. Id.

7. See Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights 169–170 (2001).

8. International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Doc. E, 95–2 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR].

9. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S.23 [hereinafter ICESCR].

10. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988), 1465 U.N.T.S. 85 [hereinafter CAT].

11. See Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123; Organization of African Unity, African [Banjul] Charter on Human and Peoples' Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58; Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS 5.

12. See Jack Donnelly, The Relative Universality of Human Rights, 29 Hum. Rts. Q. 281 (2007) (observing that by May 2006, “six core international human rights treaties” had “a truly impressive 85% ratification rate”).

13. See Beitz, Charles, What Human Rights Mean, 132 Daedelus36, 37 (2003)Google Scholar; Buchanan, Allen, Human Rights and the Legitimacy of the International Order, 14 Legal Theory39, 40–41 (2008)Google Scholar.

14. CAT, supra note 10, art. 1(1) (defining torture to mean “any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for [various] purposes . . . when such pain or suffering is inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity.”).

15. See Waldron, Jeremy, Torture, Necessity, and Existential Politics, 95 Cal. L. Rev.235, 235–236 & n.3 (2007)Google Scholar.

16. CAT, supra note 10, art. 1(1).

17. See John T. Parry, Escalation and Necessity: Defining Torture at Home and Abroad, in Torture 145, 158 (Sanford Levinson ed., 2004) (“If torture provides the last remaining chance to save lives in imminent peril, the necessity defense should be available to justify the interrogators' conduct.”).

18. Buchanan, supra note 13, at 41; see also Charles R. Beitz, The Idea of Human Rights xi (2009) (“[A]lthough the idea and language of human rights have become increasingly prominent in public discourse, it has not become more clear what kinds of objects human rights are supposed to be, why we should believe that people have them, or what follows from this belief for political practice.”).

19. See, e.g., Beitz, Idea, supra note 18, at xi–xii; James W. Nickel, Making Sense of Human Rights 53 (2d ed. 2007); L.W. Sumner, The Moral Foundation of Rights 1–14 (1987); Joseph Raz, Human Rights Without Foundations, March 2007, Oxford Legal Studies Research Paper No. 14/2007, in The Philosophy of International Law (John Tasioulis & Samantha Besson eds., forthcoming 2010); Buchanan, supra note 13, at 44; Freeman, Michael, The Philosophical Foundations of Human Rights, 16 Hum. Rts. Q. 491, 491 (1994)CrossRefGoogle Scholar; Shestack, Jerome J., The Philosophical Foundations of Human Rights, 20 Hum. Rts. Q. 201 (1998)CrossRefGoogle Scholar.

20. UDHR, supra note 4, art. 1.

21. U.N. Charter, supra note 3, pmbl.

22. ICCPR, supra note 8, pmbl.; ICESCR, supra note 9, pmbl.

23. See John Locke, The Second Treatise on Civil Government 4–11 (Thomas P. Peardon ed., 1952) (1690).

24. Kant, Metaphysics of Morals, supra note 2.

25. See, e.g., Freeman, supra note 19, at 494; Shestack, supra note 19, at 208.

26. See John Finnis, Natural Law and Natural Rights 198, 210–213 (1980); James Griffin, On Human Rights (2008); Michael J. Perry, The Idea of Human Rights: Four Inquiries (1998).

27. Gewirth, Human Rights, supra note 1, at 20.

28. Gewirth, Alan, The Epistemology of Human Rights, 1 Soc. Phil. & Pol'y14, 15 (1984)Google Scholar.

29. Alan Gewirth, Reason and Morality 63–64 (1978).

30. Id. at 26.

31. Gewirth, Epistemology, supra note 28, at 17.

32. Id. at 4.

33. See John Rawls, The Law of Peoples, in On Human Rights 42, 46, 68 (Stephen Shute & Susan Hurley eds., 1993).

34. Nickel, supra note 19, at 7–8. For a theory that combines Rawls's political conception of human rights with foundationalism, see Jack Donnelly, Universal Human Rights in Theory and Practice 41 (2d ed. 2003); Donnelly, Relative Universality, supra note 12, at 15.

35. Raz, Human Rights, supra note 19, at 19.

36. Id.

37. See Joseph Raz, The Morality of Freedom 191 (1986).

38. Raz, Human Rights, supra note 19, at 19.

39. See, e.g., Posner, Eric, Human Welfare, Not Human Rights, 108 Colum. L. Rev. 1758 (2008)Google Scholar.

40. For discussion of the fiduciary theory's cosmopolitan application to noncitizens as well as citizens, see Evan J. Criddle & Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 Yale. J. Int'l L. 331, 359, 380–382 (2009).

41. One of us has defended this conception of fiduciary relationships as well as a fiduciary conception of the state. See Evan Fox-Decent, The Fiduciary Nature of State Legal Authority, 31 Queen's L.J. 259 (2005). We also argue that administrative law rests on fiduciary foundations. See Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. Rev. 117 (2006); Evan Fox-Decent, Democratizing Common Law Constitutionalism, 55 McGill L.J. (forthcoming 2010).

42. See, e.g., Equitable Life Assurance Soc'y v. Hyman, [2000] 2 All E.R. 331 (C.A.), aff'd [2002] 1 A.C. 408 (H.L.) (U.K.).

43. See id.; Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245 (Can.); P.D. Finn, Fiduciary Obligations 59–74 (1977).

44. See Kant, Metaphysics of Morals, supra note 2, at 98–99 (emphasis in original) (footnote omitted). It is settled law in Canada that parents owe their children fiduciary duties. See M.(K.) v. M.(H.), [1992] 3 S.C.R 6 (Can.). For an argument that U.S. family law should follow suit, see Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries, 81 Va. L. Rev. 2401 (1995).

45. Kant, Metaphysics of Morals, supra note 2, at 63. The summary of Kant's discussion of rights in the text refers exclusively to coercively enforceable legal rights and their correlative legal obligations. Kant is not referring to unenforceable ethical duties arising from the categorical imperative under his doctrine of virtue, such as the duty of beneficence. For a discussion of the intimate relationship in Kant between legality and coercion, see Ripstein, Arthur, Authority and Coercion, 32 Phil. & Pub. Aff. 2 (2004)Google Scholar.

46. Kant, Metaphysics of Morals, supra note 2, at 63.

47. Id.

48. Cf. Sumner, supra note 19 (arguing that rights are best conceived as protected choices, but grounded on consequentialist considerations). But see Joseph Raz, The Morality of Freedom 165–192 (1986) (defending the interest theory under which rights protect interests). For subsequent defense of the interest theory, see Andrei Marmor, On the Limits of Rights, 16 Law & Phil. 1 (1997).

49. See, e.g., John Rawls, A Theory of Justice (1971); Fernando R. Tesón, A Philosophy of International Law (1998).

50. See Criddle & Fox-Decent, supra note 40, at 356–360 (distinguishing the fiduciary theory from the contractarian tradition).

51. Cf. John Finnis, Aquinas: Moral, Political, and Legal Theory 283 (1998) [“public authority is not merely a moral liberty but essentially a responsibility (a liberty coupled with, and ancillary to, a duty).”]. For insightful discussion of Finnis's “duty to govern” and its relationship to authority (the right to govern) and legal obligation (the duty to obey the law), see Leslie Green, The Duty to Govern, 13 Legal Theory 165 (2007).

52. The fiduciary theory therefore satisfies Jon Mahoney's criterion that “a liberal conception of human rights must . . . justify the claim that human rights (a) limit and (b) authorize limited exercises in political power.” Mahoney, Jon, Liberalism and the Moral Basis for Human Rights, 27 Law & Phil.151, 152 (2008)Google Scholar. An advantage of the fiduciary theory is that it demystifies the role of human rights within a framework of limited authorization. Human rights denote limits through the obligations they impose, but rights (e.g., all negative rights to noninterference) do not typically imply authorization. A separate principle is required for purposes of authorization, and in contexts of nonconsensual coercion, the best candidate is the fiduciary principle.

53. A. John Simmons, Justification and Legitimacy: Essays on Rights and Obligations 185 (2001) (citing inter alia Alan Gewirth, The Epistemology of Human Rights, in Human Rights 1, 3 (E.F. Paul, J. Paul & F.D. Miller, Jr., eds., 1986)) (other citations omitted) (emphasis in original).

54. Charles Beitz, Human Rights and the Law of Peoples, in The Ethics of Assistance: Morality and the Distant Needy 193, 196 (Deen K. Chatterjee ed., 2004); see also id. at 197–198 (citing Maurice Cranston as a proponent of this view: Maurice Cranston, What Are Human Rights? 65–71 (1973)).

55. See, e.g., Maurice Cranston, Are There Any Human Rights? 112 Daedalus 1 (1983); Finnis, Natural Law, supra note 26, at 214–215.

56. For discussion of rights as guarantees against “standard threats,” see Henry Shue, Basic Rights (2d ed. 1996). See also Thomas Pogge, World Poverty and Human Rights 64 (2002) (arguing that human rights are “moral claims on the organization of one's society”).

57. See, e.g., Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, Annex, U.N. Doc. A/RES/34/180 (Dec. 18, 1979); Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, G.A. Res. 45/158, U.N. GAOR, 45th Sess., Supp. No. 49, U.N. Doc. A/45/49 (Dec. 18, 1990); Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007) [hereinafter Indigenous Peoples Declaration].

58. Compare Jürgen Habermas, Between Facts and Norms 104–11 (1996) (arguing for a “legal” conception of human rights, but where “legal” is intended to denote a positivist detachment from morality).

59. See Criddle & Fox-Decent, supra note 40.

60. See, e.g., John Rawls, The Idea of an Overlapping Consensus, in John Rawls: Collected Papers 421, 424–425 (Samuel Freeman ed., 1999).

61. Hart acknowledges that “[i]f we attach to a legal system the minimum meaning that it must consist of general rules . . . this meaning connotes the principle of treating like cases alike.” H.L.A. Hart, Positivism and the Separation of Law and Morals, in Essays in Jurisprudence and Philosophy 49, 81 (1983).

62. Rawls, John, The Law of Peoples, 20 Critical Inquiry36, 37 (1993)Google Scholar. A law of peoples is a “political conception of right and justice that applies to the principles and norms of international society.” Id.

63. Id. at 51. Rawls draws on Philip Soper, A Theory of Law (1984). Soper claims we have a prima facie obligation to show respect to others who do necessary jobs. Because the state's officials do a necessary job when they announce and enforce law, we have a defeasible obligation to obey the law when they do their job in good faith. To be clear, Soper's idea of respect for others is Kantian in a loose sense, but his legal theory is not Kant's.

64. Rawls, Law of Peoples, supra note 62, at 52.

65. Id. at 37.

66. Rawls purports to set aside the jurisprudential question of whether a scheme of rules must have the structure and content Soper assigns to it to count as a system of law, insisting that his only interest is in specifying the conditions of well-orderedness for the purpose of determining membership in a reasonable society of peoples. Id. at 51 n.22. Yet it is just the structure and content Soper specifies that are alleged to authorize a scheme of rules to impose enforceable moral duties on the people subject to those rules, an authorization not possessed by schemes that merely issue commands backed by coercive force. Notwithstanding Rawls's protest to the contrary, implicit in his theory of well-orderedness is a commitment to the nonpositivist idea that legal systems per se, as such and without more, are capable of imposing enforceable moral duties.

67. Sumner, supra note 19, at 90–91; Simmons, Justification, supra note 53, at 186–194.

68. In reviewing this article, James Nickel has suggested to us that a positivist could contend that legitimate or rights-respecting law embodies moral requirements, and so the fiduciary theory is not committed to nonpositivism because it can be interpreted to inform the legitimacy or rights-respecting conditions of legitimate or rights-respecting law. It is well beyond the scope of this paper to argue persuasively against this interpretation, but it is at odds with the Kantian theory of law on which the fiduciary theory rests. For a defense of Kant's nonpositivist legal theory, see Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009). For defense of the fiduciary theory's nonpositivist credentials, see Evan Fox-Decent, Is the Rule of Law Really Indifferent to Human Rights, 27 Law & Phil. 533 (2008).

69. Philip Pettit, Republicanism: A Theory of Freedom and Government 52 (1997).

70. Id. at 23.

71. Philip Pettit, A Republican Law of Peoples, 8 Eur. J. Pol. Theory 70, 88 (2010).

72. For an argument that republicans should “connect the idea of domination to a basic set of vulnerabilities,” see Hope, Simon, Republicanism and Human Rights: A Plausible Combination?, 21 Cambridge Rev. Int'l Aff.367, 379–381 (2008)Google Scholar.

73. Beitz, What Human Rights Mean, supra note 13, at 44.

74. We argue elsewhere that the fiduciary principle obligates states to respect not only the human rights of their own citizens but also the human rights of foreign nationals subject to state power. See Criddle & Fox-Decent, supra note 40. We leave to another day consideration of the relationship between human rights and citizenship.

75. See Sen, Amartya, Elements of a Theory of Human Rights, 32 Phil. & Pub. Aff.315 (2004)Google Scholar; Buchanan, supra note 13.

76. Buchanan, supra note 13, at 61–65.

77. See Henry S. Richardson, Democratic Autonomy: Public Reasoning About the Ends of Policy 242–246 (2002); Criddle, Evan J., Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, 88 Tex. L. Rev. 441 (2010)Google Scholar. We recognize that public deliberation and justification regarding human rights may be constrained to some extent by limited public resources and that national security and other compelling interests may necessitate a measure of governmental secrecy. To the extent that states rely on such constraints as a basis for limiting public deliberation and justification, the fiduciary principle dictates that they must justify the limits of public deliberation and justification on the basis of reasonable, public-regarding factors, thereby ensuring that citizens and noncitizens are not subject to domination. See Mashaw, Jerry L., Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance, 76 Geo. Wash. L. Rev. 99, 104 (2007)Google Scholar (“Unreasoned coercion denies our moral agency and our political standing as citizens entitled to respect as ends in ourselves, not as mere means in the effectuation of state purposes.”).

78. Buchanan, supra note 13, at 62.

79. The fiduciary theory thus arguably supports efforts to synthesize substantive principles and deliberative procedure in democratic theory. See Amy Gutmann & Dennis Thompson, Why Deliberative Democracy? 95–124 (2004) (reviewing and challenging arguments for separating deliberative procedures from substantive principles).

80. The ICCPR and ICESCR provide that freedom of expression, the right to work, and various other human rights are subject to state derogation under certain circumstances. See ICCPR, supra note 8, arts. 4 & 19(2)–(3); ICESCR, supra note 9, arts. 4 & 7. While consideration of the circumstances supporting state derogation from these nonabsolute human rights lies beyond the scope of this article, we note that the fiduciary theory supports a requirement of state deliberation and justification guided by the substantive principles of integrity, formal moral equality, solicitude, and equal security as well as the procedural demands of the rule of law.

81. See Criddle & Fox-Decent, supra note 40, at 3.

82. Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 66 (1978).

83. Id., para. 167.

84. Id.

85. See, e.g., Prosecutor v. Brdjanin, Case No. IT-99–36-T, Judgment (Sept. 1, 2004), para. 483 (ICTY) (“The seriousness of the pain or suffering sets torture apart from other forms of mistreatment.”).

86. See id., para. 484 (considering objective factors such as the “nature, purpose, and consistency of the acts committed,” and subjective factors such as “the physical or mental condition of the victim, the effect of the treatment,” and “the victim's age, sex, state of health, and position of inferiority”); Z and Others v. United Kingdom, App. No. 29392/95, 34 Eur. H.R. Rep. 97, 121 (2002) (considering subjective factors such as “the physical and mental effects on the person experiencing the harm, the duration of the act, and the age, sex, and culture of the person experiencing the harm”); Gail H. Miller, Defining Torture 2, 8 (2005) (observing that there are “a staggering number of legal definitions” and that it is “virtually impossible to quantify ‘severe pain and suffering’ or to define it in absolute terms”).

87. CAT, supra note 10, art. 1(1).

88. Id.; see also Luban, David, Liberalism, Torture, and the Ticking Bomb, 91 Va. L. Rev.425, 433–436 (2005)Google Scholar (discussing these and other purposes).

89. This principle is reflected obliquely in CAT art. 1(1), which provides that torture “does not include pain or suffering”—however intense—that is not purposeful but merely “incidental to lawful sanctions.” CAT, supra note 10, art. 1(1).

90. Id.

91. Id.

92. Id. (emphasis added).

93. Economic rights are also frequently challenged on the grounds that the judiciary would have to enforce them and that judges lack institutional competence and democratic authorization to assess economic and social policy. For discussion and replies to this argument, see, e.g., Nickel, supra note 19, at 142–144; Patrick Macklem, Indigenous Difference and the Constitution of Canada (2001).

94. Robert Nozick, Anarchy, State and Utopia (1974); Richard Epstein, Takings: Private Property and the Power of Eminent Domain (1985); Loren Lomasky, Persons, Rights and the Moral Community (1987).

95. See, e.g., Cranston, What Are Human Rights?, supra note 54.

96. See, e.g., Nickel, supra note 19, at 148–149; Donnelly, Universal Human Rights, supra note 34, at 30–32. Proponents of economic rights also claim that these rights, like civil and political rights, have a negative dimension, though it is the redistributive effect of the positive side of economic rights that makes them so controversial. See, e.g., Donnelly, Universal Human Rights, supra note 34, at 30.

97. Our discussion is indebted to Arthur Ripstein's careful analysis of how a right to publicly funded education and poverty relief flows from Kant's legal and political theory. See Ripstein, Force, supra note 68, ch. 9.

98. While we do not explore the link here, the fiduciary theory is congenial to the “capabilities” approach to freedom defended by Amartya Sen and Martha Nussbaum, one that stresses the importance of persons' capabilities to “lead the kind of lives they value—and have reason to value.” Amartya Sen, Development As Freedom 18 (1999);see also Martha Nussbaum, Nature, Function and Capability: Aristotle on Political Distribution, in Oxford Studies in Ancient Philosophy (1988). The relevant capabilities under the fiduciary theory are those necessary to lead lives free of domination and instrumentalization.

99. Nickel, supra note 19, at 36, 140.

100. ICESCR, supra note 9, art. 2.1.

101. CRC, supra note 57, arts. 3, 9, 18, 20, 21, 37 & 40. For thoughtful discussion of the amenability of universal human rights norms to discrete classes of individuals, see Nickel, supra note 19, at 162–163.

102. Kant, Metaphysics of Morals, supra note 2 at 50.

103. For discussion of domination as alien control in international affairs, see Pettit, Republican Law, supra note 71.

104. ICCPR, supra note 8, art. 1; see also Indigenous Peoples Declaration, supra note 57, arts. 3 & 4.

105. An objection to this analysis is that business corporations are legal persons but are not usually thought to have human rights. One reply is that recognition of “peoples” is necessary to the purposive self-determination of their constituents in a way that recognition of corporations is not and that the Kantian concern for personhood is really a concern for purposive self-determination. Admittedly, this reply makes the justification of the group right of self-determination depend on a concern for the group's members. Yet the right is still a group right because peoples are separate legal persons who represent the group's members, and these members individually cannot claim the right. This conception of purposive self-determination offers a plausible basis for distinguishing peoples from corporations.

106. See Tamar Frankel, Fiduciary Law 7–14 (2007); Avisheh Avini, The Origins of the Modern English Trust Revisited, 70 Tul. L. Rev. 1139 (1996); Robert G. Natelson, The Government as Fiduciary: A Practical Demonstration from the Reign of Trajan, 35 U. Rich. L. Rev. 191 (2001).

107. Avini, supra note 106, at 1140–143.

108. See, e.g., Teemu Ruskola, Conceptualizing Corporations and Kinship: Comparative Law and Development Theory in a Chinese Perspective, 52 Stan. L. Rev. 1599, 1607–1608 (2000); see also Sen, Development, supra note 98, at 240 (“The valuing of freedom is not confined to one culture only, and the Western traditions are not the only ones that prepare us for a freedom-based approach to social understanding.”).

109. Ruskola, supra note 108, at 1627 (quoting Tu Wei-Ming, Centrality and Commonality: An Essay on Chung-Yung 67, 81 (1976)).

110. Naturally, we recognize that certain aspects of the fiduciary model may challenge traditional norms and practices in some societies. For example, some public officials may persist in viewing citizens or noncitizens as resources of the state (or its ruling class) rather than as ends in themselves. Others may pursue policies emphasizing collective security and collective prosperity in ways that transgress the fiduciary principles of nondomination and noninstrumentalization. We take comfort, however, in the fact that few states persist in defending practices of exploitation and arbitrary discrimination under the banner of cultural relativism. And in any event, the fiduciary theory is primarily a normative theory, so it is no failing that some state practices flagrantly violate its requirements.