This paper offers a revised political conception of human rights informed by legal pluralism and epistemic considerations. In the first part, I present the political conception of human rights. I then argue for four desiderata that such a conception should meet to be functionally applicable. In the rest of the first section and in the second section, I explain how abstract human rights norms and the practice of specification prevent the political conception from meeting these four desiderata. In the last part of the paper, I argue that full-fledged tolerance in the international order – that is tolerance-as-non-intervention and tolerance-as-respect – should be attached to (1) compliance with jus cogens norms and to; (2a) a political community recognizably organized as a community of inquiry that is; (2b) committed to the specification and incorporation or expression of the idea of human rights within its local legal system.
1 Rawls, J, The Law of Peoples; with ‘‘The Idea of Public Reason Revisited” (Harvard University Press, Cambridge, MA, 1999) 79.
2 Raz, J, ‘Human Rights without Foundations’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010) 328. See also Donnelly, J, ‘Human Rights’ in Dryzek, JS, Honig, B and Phillips, A (eds), The Oxford Handbook of Political Theory (Oxford University Press, Oxford, 2006) 610; Buchanan, A, ‘The Legitimacy of International Law’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010) 94–5.
3 Nickel, J, ‘Are Human Rights Mainly Implemented by Intervention?’ in Rex, M and Reidy, DA (eds), Rawls’s Law of Peoples; A Realistic Utopia? (Blackwell Publishing, Oxford, 2006) 270–1.
4 Ibid 271; Hinsch, W and Stepanians, M, ‘Human Rights as Moral Claim Rights’ in Rex, M and Reidy, DA (eds), Rawls’s Law of Peoples: A Realistic Utopia? (Blackwell Publishing, Oxford, 2006) 126.
5 Feinberg, J, Social Philosophy (Prentice Hall, Englewood Cliffs, NJ, 1973); Nickel, J, ‘Human Rights’ in Zalta, EN (ed), The Stanford Encyclopedia of Philosophy (Spring 2014 edn) available at <http://plato.stanford.edu/archives/spr2014/entries/rights-human/>.
6 Rawls’s position could allow criticism of other states for not fully taking into account human rights values, but this would be coming from private persons and NGOs and in order to preserve freedom of speech in a liberal society. The point here is that human rights should allow critical engagement from official agents and not just private individuals pursuing ‘liberal aspirations’. See (n 1) 80; (n 3) 273.
7 Cohen pursues a similar project: ‘I want to differentiate between the project of arriving at a morally justifiable set of human rights that appear as aspirational norms in human rights documents on the one hand and hard international legal norms which suspend the sovereignty argument so that they can be enforced’. In contrast, I want to integrate the two projects more closely such that hard human rights rules and goal-like human rights principles would be in a continuum grounded in inquiry and collective acceptance as opposed to distinct enterprises. JL Cohen, ‘Rethinking Human Rights, Democracy, and Sovereignty in the Age of Globalization’ (2008) 36 Political Theory 578, 588.
8 I use ‘abstract’ to cover both abstractness in the narrow sense and generality, as opposed to concreteness and specificity. I refer to ‘specification’ as the process by which abstract rights can be made concrete and specific.
9 In this paragraph, I introduced the vocabulary associated with Robert Alexy’s constitutional theory. ‘Principles’ refer to prima facie deontological requirements ‘which require that something be realized to the greatest extent possible given the legal and factual possibilities. Principles are optimization requirements’. ‘Rules’ refer to definitive ‘norms which are always either fulfilled or not’ and which ‘insist that one does exactly as required’. Alexy, R, A Theory of Constitutional Rights (Oxford University Press, Oxford, 2002) 47, 48, 57.
10 On rules, principles and human rights, see Scheinin, M, ‘Core Rights and Obligations’ in Shelton, D (ed), The Oxford Handbook of International Human Rights Law (Oxford University Press, Oxford, 2013) 527–40.
11 Donnelly, J, Universal Human Rights in Theory and Practice (3rd edn, Cornell University Press, Ithaca, NY, 2013) 36.
12 Ibid 33.
13 Raz (n 2) 328. See also Skorupski, J, ‘Human Rights’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010) 372.
14 See (n 1) 80.
15 Ibid 59.
16 Tan, K-C, ‘The Problem of Decent Peoples’ in Rex, M and Reidy, DA (eds), Rawls’s Law of Peoples: A Realistic Utopia? (Blackwell Publishing, Oxford, 2006) 81.
17 See (n 1) 61.
18 See (n 3) 264.
19 Skorupski (n 13) 358.
20 Feinberg, J, ‘The Nature and Value of Rights’ (1970) 4 The Journal of Value Inquiry 243–60.
21 de Wet, E, ‘Jus Cogens and Obligations Erga Omnes’ in Shelton, D (ed), The Oxford Handbook of International Human Rights Law (Oxford University Press, Oxford, 2013) 556.
22 Skorupski (n 13) 357; Donnelly (n 11) 99.
23 Buchanan, A, ‘Taking the Human out of Human Rights’ in Rex, M and Reidy, DA (eds), Rawls’s Law of Peoples: A Realistic Utopia? (Blackwell Publishing, Oxford, 2006) 150.
24 She also recognizes the role of ‘aspirational’ human rights that could give rise to forms of criticism that Rawls would qualify as intolerant. Cohen’s position is then highly compatible with mine. Nonetheless, were we to restrict human rights to those she identifies as enforceable, the issue of redundancy would arise. See Cohen (n 7) 587, 604 n 46, 600.
25 Tasioulas, J, ‘The Legitimacy of International Law’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010) 110. Williams refers to Nagel who affirms that: ‘the flagrant violation of the most basic human rights is devoid of philosophical interest’. Williams, B, In the Beginning was the Deed: Realism and Moralism in Political Argument (Princeton University Press, Princeton, NJ, 2005) 18. For a discussion of this assertion, see Scarry, E, ‘On Philosophy and Human Rights’ in Koh, HH and Slye, RC (eds), Deliberative Democracy and Human Rights (Yale University Press, New Haven, CT, 1999) 71–8. An anonymous referee objects that not everyone agrees that there is an absolute right against torture such that it could hold potential philosophical interest. I concede that there are always debates at the margin and there are definitely practical and philosophical interests in specifying even basic human rights. Yet, I want to resist the idea that the violations of the core of basic human rights require much philosophical theorizing. As Williams rightly puts it: ‘no very elaborate or refined philosophical discussion is needed to establish what these [most fundamental] rights are’. Ibid 19.
26 Endicott, T, ‘The Logic of Freedom and Power’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010) 245; de Wet (n 21) 555.
27 de Wet (n 21) 543.
28 Williams (n 25) 5.
29 ‘As Walzer puts it, ‘‘When a government turns savagely upon its own people, we must doubt the very existence of a political community to which the idea of self-determination might apply …’’. When human rights violations are ‘‘so terrible that it makes talk of community or self-determination … seem cynical and irrelevant’’ … , the moral presumption against intervention may be overcome. Human rights violations that ‘‘shock the moral conscience of mankind’’ … conclusively demonstrate that there are no moral bonds between a state and its citizens that demand the respect of outsiders’. Donnelly (n 11) 258–9, quoting Walzer, M, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic Books, New York, NY, 1977) 90, 101, 107.
30 For references to philosophers who support a minimalist view, see Nickel (n 5).
31 Tasioulas (n 25) 114.
32 Williams (n 25) 72.
33 Ibid; Skorupski (n 13) 368–9.
34 The idea, explored below, of a recognizable community of inquiry establishes a limited test to ascertain the genuineness of such judgements. Additionally, it will be argued that actions that are in violations of the recognized core of human rights, ultimately referred to as rules of jus cogens, cannot decently be supposed to be legitimate. In this sense, agreeability is a weakly normative desideratum. It has a negative normative content in ruling out some agreement as invalid and it has a limited positive content which covers the basic ideology of human rights and the rules of jus cogens.
35 Besson, S, The Morality of Conflict: Reasonable Disagreement and the Law (Hart Publishing, Oxford, 2005), 109.
36 Buchanan (n 2) 95; (n 23) 159.
37 Williams (n 25) 19.
38 An anonymous referee sees a tension between the goal of respecting pluralism and the cosmopolitan human rights project. It would be a mistake, however, to ignore that human rights have both a universal and a relative aspect. Emphasizing their relative aspect by requiring the respect of genuine pluralism is not incompatible with the validity of universal norms. It rather embodies the concern of the political conception for the idea that states have certain immunity against intervention by balancing universal norms and sovereignty. See Donnelly (n 11) 104.
39 Skorupski (n 13) 367.
40 Hinsch and Stepanians (n 4) 120.
41 O’Neill, O, ‘The dark side of human rights’ (2005) 81 International Affairs 427, 430.
42 See the preface of ‘Declaration of Human and Civic Rights of August 1789’ available at <http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/cst2.pdf>.
43 Alexy discusses this problem for constitutional rights: ‘Taken literally, limitlessly guaranteed constitutional rights norms protect too much. The problem with constitutional rights norms with simple limitations is that, taken literally, they seem to guarantee too little.’ Alexy (n 9) 76. The theory of principles along with proportionality reasoning provides a solution to the problem of abstract rights for local legal systems. See also Klatt, M and Meister, M, The Constitutional Structure of Proportionality (Oxford Scholarship Online, Oxford, 2012). However, this solution does not translate perfectly to the international system conceived as constituted of discrete sovereign legal systems. A possible solution, that would allow the theory of principles to readily apply at the international level, would be to give up the idea of a statist international order and to explore the idea of an integrated multi-level international constitutional order. The question of whether or not we should give up on the idea of a statist international order is not, however, one addressed in this paper.
44 Webber, GCN, The Negotiable Constitution; On The Limitation of Rights (Cambridge University Press, Cambridge, 2009) 2.
45 Alexy (n 9) 210.
46 Bentham, J, The Works of Jeremy Bentham vol. 2 (William Tait, Edinburgh, 1848) 523, available at <http://oll.libertyfund.org/title/1921/114226>.
47 The distinction between infringement and violation can be useful here. See Oberdiek, J, ‘Specifying Rights Out of Necessity’ (2008) 28 Oxford Journal of Legal Studies 127–46; Alexy (n 9) 178–81.
48 Buchanan, A, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford Scholarship Online, Oxford, 2004) 75.
49 See (n 44) 8–9. My emphasis.
50 See Klatt and Meister (n 43) 18.
51 Neuman, GL, ‘Subsidiarity’ in Shelton, D (ed), The Oxford Handbook of International Human Rights Law (Oxford University Press, Oxford, 2013) 375–7.
52 Mégret, F, ‘International Human Rights and Global Legal Pluralism: A Research Agenda’ in Provost, R and Sheppard, C (eds), Dialogues on Human Rights and Legal Pluralism, Ius Gentium: Comparative Perspectives on Law and Justice 17 (Springer, Dordrecht, 2013) 77.
53 See (n 48) 75.
54 Tasioulas (n 25) 106.
55 Ibid 111.
56 Griffin, J, ‘Human Rights and the Autonomy of International Law’ in Besson, S and Tasioulas, J (eds), The Philosophy of International Law (Oxford University Press, Oxford, 2010) 350.
57 See Buchanan (n 48) 75, 79.
58 On the core of human rights, see Scheinin (n 10).
59 This precise issue has become prominent with the use of Guy Fawkes masks during many demonstrations associated with the Occupy Movement. More precisely, I have in mind the debate concerning freedom of speech and by-law P-6 in the city of Montréal. Barrette, D, Libertés d’expression et de réunion pacifique: une vigilance nécessaire (19 March 2014) available at <http://liguedesdroits.ca/?p=1864>.
60 This issue is problematic even for those, like Rawls, who would be comfortable with human rights conceived as a minimal threshold which, once passed, entitles one to both tolerance-as-non-intervention and tolerance-as-respect. This is because ‘even the most basic human rights norms are not self-specifying’. Buchanan (n 2) 95.
61 See (n 46) 534.
62 Ibid 515. See also: Alexy (n 9) 212–13.
63 Klatt and Meister (n 43) 19.
64 Macdonald, RA, ‘Pluralist Human Rights? Universal Human Wrongs?’ in Provost, R and Sheppard, C (eds), Dialogues on Human Rights and Legal Pluralism, Ius Gentium: Comparative Perspectives on Law and Justice 17 (Springer, Dordrecht, 2013) 26. Emphasis in the original.
65 Tasioulas (n 25) 110.
66 Donnelly (n 11) 32, 103, 164–7.
67 Alexy (n 9) 190.
68 Buchanan (n 48) 115.
69 There are then minimally substantial (jus cogens rules) and procedural conditions (minimally recognizable epistemic practices) of legitimacy applicable to the process of specification.
70 Burke, E, Select Works of Edmund Burke, vol. 2 (Liberty Fund, Indianapolis, IN, 1999) 152, available at <http://oll2.libertyfund.org/titles/burke-select-works-of-edmund-burke-vol-2>.
71 On epistemic proceduralism, see Peter, F, Democratic Legitimacy (Routledge, New York, NY, 2009). See also Buchanan (n 2) 96; Buchanan (n 48) 115–17.
72 See (n 1) 23.
73 Gilbert, M, ‘Modelling Collective Belief’ (1987) 73 Synthese 185, 195.
74 Wray, BK, ‘Collective Belief and Acceptance’ (2001) 129 Synthese 319, 321.
75 See (n 1) 61.
76 Fallis, D, ‘Collective Epistemic Goals’ (2007) 21 Social Epistemology: A Journal of Knowledge, Culture and Policy 267–80.
77 Fallis, D and Mathiesen, K, ‘Veritistic Epistemology and the Epistemic Goals of Groups: A Reply to Vähämaa’ (2013) 27 Social Epistemology: A Journal of Knowledge, Culture and Policy 21, 23.
78 On our commitment to epistemic goals and on epistemically grounded tolerance, see Talisse, R, Pluralism and Liberal Politics (Routledge, New York, NY, 2012); Democracy and Moral Conflict (Cambridge University Press, Cambridge, 2009); and Misak, C, Truth, Politics, Morality: Pragmatism and Deliberation (Routledge, London, 2000).
79 Mill, JS, On Liberty and The Subjection of Women (Henry Holt and Co, New York, NY, 1879) 101–2, available at <http://oll.libertyfund.org/titles/347>.
80 Fuentes, CI, Provost, R and Walker, SG, ‘E Pluribus Unum – Bhinneka Tunggal Ika? Universal Human Rights and the Fragmentation of International Law’ in Provost, R and Sheppard, C (eds), Dialogues on Human Rights and Legal Pluralism, Ius Gentium: Comparative Perspectives on Law and Justice 17 (Springer, Dordrecht, 2013) 38.
81 See Peter, F, ‘Epistemic Foundations of Political Liberalism’ (2013) 10 Journal of Moral Philosophy 598–620.
82 The concept of specification should be understood as covering, not just the local application of external norms but, also, the idea of expressing a commitment to the idea of human rights. In this sense, a commitment to human rights can be realized both by multiple states subscribing to a common list of human rights but also by states arriving at different lists.
83 Buchanan argues that democracy is essential for the legitimacy of local specifications. Just as with proportionality reasoning, I believe that democracy offers an optimal method by which groups can achieve tolerable collective acceptances. Democracy does not, however, constitute, in theory, the only decent manner by which groups can achieve collective acceptances. I recognize, however, that in practice, democracy may be a more easily assessable feature of states than adequate epistemic practices. Nonetheless, my arguments warrant caution in assessing collective acceptances; it is not democracy as such that matters but the fact that a view validly expresses an epistemically informed collective acceptance. Buchanan (n 48) 116.
84 Peirce, CS, ‘The Fixation of Belief’ (1877) 12 Popular Science Monthly 1–15, available at <http://www.peirce.org/writings/p107.html>.
85 Misak, C, ‘Pragmatism on Solidarity, Bullshit, and other Deformities of Truth’ (2008) 32 Midwest Studies in Philosophy 111, 114. See Misak (n 78) on how this method applies to morality.
86 Talisse, Pluralism and Liberal Politics (n 78) 49.
87 Misak affirms that ‘there is only one community of inquirers [and] that we must think of inquiry as embracing all peoples and cultures’. Misak (n 78) 133. Yet, the practical object of inquiry is sometimes local. In some circumstances, we care about what ought to be done here and now for us. There is no reason to think that thus deciding how to act is of any impediment to the overall task of inquiry. As such, there can be multiple political communities all organized as communities of inquiry.
88 At first sight, it can seem absurd to affirm that human rights are grounded in inquiry and collective acceptance. One does not appeal to inquiry to condemn genocide. Yet, one readily appeals to what it is for a political community to be a political community, as made clear by Walzer’s and Williams’s quotes (nn 28, 29). It is by associating inquiry and collective acceptance with what it is for a political community to be a (respectable) political community that they can ground even basic human rights. Additionally, the wrongs of violating basic human rights are overdetermined. My account simply focuses on what it is for a decision to be collectively accepted, in order to determine the political limits of tolerance, without precluding other accounts of what makes a violation of human rights wrong.
89 By focusing on minimally acceptable epistemic practices, which should be recognizable from the point of view of any inquirer, this approach seeks to capture the practices that allow us to recognize the views held by others as expressing potentially valid judgements. It can thus resist the objection of overconfidence that could have been raised had it relied on ideal epistemic practices.
90 Buchanan, A, ‘Social Moral Epistemology’ (2002) 19 Social Philosophy and Policy 126–52.
91 This ideal can take various concrete forms. Yet, we can affirm that it would at least cover properly functioning democratic states and states whose judiciary’s decisions are generally accepted and that follow the principle of proportionality. On proportionality and correctness, see Klatt and Meister (n 43) 70.
92 See (n 1) 72.
93 For the ‘critical theory principle’ and the idea of what is acceptable in our current historical circumstances see Williams (n 25) 6, 8. More generally, see Donnelly (n 11) 70.
94 Somin, I, Democracy and Political Ignorance; Why Smaller Government Is Smarter (Stanford Law Books, Stanford, CA, 2013) 54–6.
95 See Griffin (n 56) 341–2.
96 Williams (n 25) 63.
97 See the idea of ‘an epistemic law of increasing marginal discriminability’ Alexy (n 9) 424. See also: ‘the more extreme the injustice, the more certain the knowledge of it’. Alexy, R, The Argument from Injustice: A Reply to Legal Positivism (Oxford University Press, Oxford, 2002) 52; Klatt and Meister (n 43) 31–2, 38, 68, 125.
98 This is similar to Rawls’s idea that basic human rights offers ‘the minimal conditions required for persons to be able to engage in social cooperation in any real sense’. Wenar, L, ‘John Rawls’, in Zalta, EN (ed), The Stanford Encyclopedia of Philosophy (Winter 2013 edn), available at <http://plato.stanford.edu/archives/win2013/entries/rawls/>; see Rawls (n 1) 68.
99 See (n 64) 19. Though, now and around here, the lists we encounter can be seen as close approximations of this claim, political theory should nonetheless acknowledge that ‘universal human rights not only may but should be implemented in different ways at different times and in different places, reflecting the free choices of free peoples to incorporate an essential particularity into universal human rights’. Donnelly (n 11) 105.
100 Donnelly (n 11) 103.
101 de La Hontan, LA, Dialogues de M. le baron de Lahontan et d’un sauvage, dans l’Amérique (Vve de Boeteman, Amsterdam, 1704).
102 Donnelly (n 11) 108.
103 Johnson, J, ‘Why Respect Culture?’ (2000) 44 American Journal of Political Science 405, 417.
104 See (n 80) 52, 68.
105 See Donnelly (n 11) 111.
106 On the continuum of interventions, see Donnelly (n 11) 201.
107 Skorupski, J, The Domain of Reason (Oxford University Press, Oxford, 2010) 311–12.
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