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Published online by Cambridge University Press: 02 March 2016
Contemporary theorists tend to think that the basic justification of human rights is instrumental, as efficient means for producing the theorist's preferred ultimate value or values. Contemporary theorists also tend to think that human rights have a distinctive normative force, correlating with categorical duties. This article shows that instrumentalist accounts of human rights face a dilemma. The very structure of any instrumentalist account means that such an account faces extraordinary difficulties accommodating categorical duties to respect the human rights of others. If so, one should either reject instrumentalism about human rights or do away with categorical duties. But doing away with categorical duties comes at a high cost. The dilemma, then, should question the prevalent assumption that instrumentalist accounts of human rights can accommodate categorical duties. The dilemma should serve either to sharpen instrumentalist theories or to motivate non-instrumentalism about human rights.
1 For a discussion of the contrast between instrumentalist and non-instrumentalist accounts, see Nickel, James and Reidy, David, ‘Philosophy’, International Human Rights Law, ed. Moeckli, D. et al. (Oxford, 2010), pp. 39–63 Google Scholar. For similar formulations of instrumentalism, see Cruft, Rowan, ‘On the Non-Instrumental Value of Basic Rights’, Journal of Moral Philosophy 7 (2010), pp. 441–61CrossRefGoogle Scholar; Nagel, Thomas, ‘Personal Rights and Public Space’, Concealment and Exposure and Other Essays (Oxford, 2002), especially pp. 34–5Google Scholar.
2 For examples of non-instrumentalist accounts, see Dworkin, Ronald, Taking Rights Seriously (Cambridge, 1978)Google ScholarPubMed; Forst, Rainer, ‘The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach’, Ethics 120 (2010), pp. 711–40CrossRefGoogle Scholar; Gewirth, Alan, The Community of Rights (Chicago, 1996); Nagel, ‘Personal Rights’Google Scholar.
3 Griffin, James, On Human Rights (Oxford, 2009)Google Scholar.
4 Nussbaum, Martha, Women and Human Development (Cambridge, 2000)CrossRefGoogle Scholar; Sen, Amartya, Development as Freedom (New York, 1999)Google Scholar.
5 Tasioulas, John, ‘The Moral Reality of Human Rights’, ed. Pogge, Thomas, Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (Oxford, 2007), pp. 75–101 Google Scholar.
6 Beitz, Charles, The Idea of Human Rights (Oxford, 2009)CrossRefGoogle Scholar; Buchanan, Allen, Human Rights, Legitimacy, and The Use of Force (Oxford, 2010)Google Scholar; Nickel, James, Making Sense of Human Rights, revised edn. (Baltimore, 2007)Google Scholar; Pogge, Thomas, World Poverty and Human Rights (Cambridge, 2002)Google Scholar; Shue, Henry, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd edn. (Princeton, 1996)Google Scholar.
7 In a companion piece, I pursue this third possibility. See Ariel Zylberman, ‘Why Human Rights? Because of You’, Journal of Political Philosophy (forthcoming 2016).
8 Dworkin, Taking Rights Seriously, p. 171.
9 Current instrumentalist accounts of human rights are almost exclusively goal-based, so I shall focus on these and set aside duty-based accounts. Duty-based accounts were more common in late medieval and early modern philosophy. To the extent that these accounts were of human rights and to the extent they were instrumentalist, they grounded natural rights in basic natural law duties. For discussion, see Beitz, The Idea of Human Rights, ch. 3; Tierney, Brian, The Idea of Natural Rights (Grand Rapids, MI, 1997)Google Scholar; Tuck, Richard, Natural Right Theories: Their Origin and Development (Cambridge, 1979)CrossRefGoogle Scholar.
10 Tasioulas, ‘The Moral Reality of Human Rights’, p. 88.
11 As Christine Korsgaard has argued, we may make two distinctions in goodness, one along the means/end register, the other along the extrinsic/intrinsic one. The key feature of any instrumentalist account, then, is not just that human rights are means to a further end, but that they are means to an external ground, a good that is intelligible independently of human rights. This second feature is what makes the validity of human rights conditional on their securing such an end. See Korsgaard, Christine, ‘Two Distinctions in Goodness’, The Philosophical Review 92 (1983), pp. 169–95CrossRefGoogle Scholar.
12 See, e.g., Dworkin, Taking Rights Seriously, and Nagel, ‘Personal Rights’, especially pp. 34–5.
13 Griffin is virtually alone in defending a monistic grounding for human rights.
14 See nn. 3–6 above.
15 For a now classic formulation of this idea, see Fried, Charles, Right and Wrong (Cambridge, MA, 1978), pp. 11–12 CrossRefGoogle Scholar: ‘a categorical norm displaces other judgments in its domain, so that other values and ends may not be urged as reasons for violating the norm. It is preemptive.’
16 Alternatively, we may say that a categorical duty, as a conclusory reason, contrasts with merely pro tanto reasons, reasons in favor of a certain course of action that may be outweighed by other kinds of considerations. For an application of this distinction in the theory of human rights, see Beitz, The Idea of Human Rights, p. 117.
17 I am grateful to an anonymous reviewer for prompting me to clarify in these ways the notion of a categorical duty with which I shall be working.
18 For a recent defence of such a view, see Darwall, Stephen, ‘Morality's Distinctiveness’, Morality, Authority, and Law: Essays in Second-Personal Ethics I (Oxford, 2013), pp. 3–19 CrossRefGoogle Scholar.
19 For a similar, early and influential view of categorical duties along these lines, see Raz, Joseph, Practical Reason and Norms (Oxford, 1999)CrossRefGoogle Scholar.
20 Gewirth, The Community of Rights, p. 12; and Nagel, ‘Personal Rights’, p. 32: ‘it means that the wrong [involved in violating a human right] is not a function of the balance of costs and benefits in this case – that while in some cases a right may justifiably be overridden by a sufficiently high threshold of costs, below that threshold its status as a right is insensitive to differences in the cost-benefit balance of respecting it in each particular case.’
21 Cruft, ‘On the Non-Instrumental Value of Basic Rights’, p. 441.
22 Tasioulas, John, ‘Human Dignity and the Foundations of Human Rights’, Understanding Human Dignity, ed. McCrudden, C. (Oxford, 2013), pp. 291–312, at 296CrossRefGoogle Scholar.
23 Tasioulas, ‘Human Dignity’, p. 296.
24 Tasioulas, ‘Human Dignity’, p. 296.
25 Nickel and Reidy, ‘Philosophy’, p. 46.
26 Earlier, in n. 11, following Korsgaard, I distinguished the means/end register from the intrinsic/extrinsic one. This distinction makes possible what we might call an intrinsic conception of the instrumental judgement. But notice that the intrinsic conception can be safely ignored, for it is non-instrumentalist, in the technical sense we have given this term: since the end is unintelligible independently of the means, human rights would become morally basic categories. For the contrast between internal and external means–end relationships, see for instance Finnis, John, Natural Law and Natural Rights (Oxford, 1980), p. 77 Google Scholar. I am grateful to Jacob Weinrib for this reference.
27 Indeed, the instrumental judgement is contingent in a third sense, depending on whether the end itself is contingent or necessary in practical thought.
28 This case is discussed in Rosen, Michael, Dignity: Its History and Meaning (Cambridge, MA: Harvard University Press, 2012), pp. 104–5CrossRefGoogle Scholar. I am also grateful to Hasko von Kriegstein for separately pointing me to this case.
29 Of course, there is a good question here about the proper specification of the duty not to torture. Does it prohibit only actual torture or the threat of torture as well? We can bypass this question.
30 Griffin, On Human Rights, p. 36.
31 Tasioulas, ‘Human Dignity’, p. 300.
32 I will develop this point in more detail in the last section.
33 Tasioulas, ‘The Moral Reality of Human Rights’, p. 88.
34 Griffin, On Human Rights, p. 36.
35 For the purposes of this article, we can grant the following claim made by Nagel: ‘It is compatible with this conception of rights [as correlated with categorical duties] that they are not absolute and that there may be some threshold, defined in consequential, agent-neutral terms, at which they give way’ (p. 36).
36 This case is discussed in Rosen, Dignity, pp. 105–7.
37 BVerfGE, 115,118, quoted in Rosen, Dignity, p. 106.
38 Nagel envisages a similar case. See Nagel, ‘Personal Rights’, p. 38. Indeed, the cumbersome character of due process and its tendency to produce more evil than good appears as a common trope of ‘cop-shows’.
39 James Nickel makes use of this distinction to formulate a conception of the indivisibility of human rights. See Nickel, James, ‘Rethinking Indivisibility: Towards a Theory of Supporting Relations between Human Rights’, Human Rights Quarterly 30 (2008), pp. 984–1001 CrossRefGoogle Scholar.
40 There is a structural parallel here to the dilemma I delineated above for the view that instrumentalist theories may be non-aggregative.
41 For two classic articulations of indirect consequentialism, see Brandt, R. B., ‘Toward a Credible Form of Utilitarianism’, Morality and the Language of Conduct, ed. Castañeda, H.-N. and Nakhnikian, G. (Detroit, 1963), pp. 107–43Google Scholar; and Rawls, John, ‘Two Concepts of Rules’, Collected Papers, ed. Freeman, Samuel (Cambridge, MA, [1955] 2001), pp. 20–46 Google Scholar. For a recent articulation of this thought, see Hooker, Brad, ‘Rule-Consequentialism’, Mind 99 (1990), pp. 69–70 Google Scholar.
42 Scanlon, T. M., ‘Rights, Goals, and Fairness’, Consequentialism and its Critics, ed. Scheffler, S. (Oxford, 1988), pp. 74–92, at 84–5Google Scholar.
43 Griffin, On Human Rights, p. 249.
44 Railton, Peter, ‘Alienation, Consequentialism, Morality’, Consequentialism and its Critics, ed. Scheffler, S. (Oxford, 1988), pp. 93–133, at 118Google Scholar. As Brad Hooker suggests, this problem of partial compliance is one of the pre-eminent problems faced by indirect consequentialism. See Hooker, ‘Rule-Consequentialism’, pp. 67–77.
45 Hooker, ‘Rule-Consequentialism’, p. 75.
46 Beitz, The Idea of Human Rights, p. 117.
47 Tasioulas, ‘Human Dignity’, p. 296.
48 Griffin, On Human Rights, p. 79.
49 Griffin, On Human Rights, p. 80.
50 Griffin, On Human Rights, p. 80.
51 Griffin, On Human Rights, p. 36.
52 Griffin, On Human Rights, p. 36.
53 Griffin, On Human Rights, p. 36.
54 Griffin, On Human Rights, p. 80.
55 Griffin, On Human Rights, p. 80.
56 For this contrast, see Railton, ‘Alienation, Consequentialism, Morality’, p. 124, fn. 32.
57 Zylberman, ‘Why Human Rights?’.
58 This article was written while I was a SSHRC Postdoctoral Fellow in the Department of Philosophy at McGill University. For help with and criticism of earlier drafts, I am extremely grateful to G. Anthony Bruno, Rowan Cruft, Micha Glaeser, Eliot Michaelson, Claire Reid, Arthur Ripstein, Hasko von Kriegstein, Owen Ware, Jacob Weinrib, Daniel Weinstock, and an anonymous reviewer.