Introduction

In recent years, political philosophers have been engaged in a lively debate on the virtues of two distinct methods for constructing a philosophical theory of human rights. On the so-called moral approach, human rights are a special class of moral rights we all possess simply by virtue of our common humanity and which are universal in time and space. By contrast, the political approach instead seeks to understand what human rights are by interpreting the role they play in international affairs as a distinctly modern international legal-political practice that regulates the relationship between governments of sovereign states and their citizens, which has emerged through the creation of the international human rights regime since the end of the Second World War.

This volume sets out to contribute to this debate and move it ahead by rethinking some of its fundamental premises and by applying it to new and challenging domains, which have previously been understudied. Thus, the book has two main purposes: to extend and enrich the debate about moral and political conceptions as alternative methodological approaches to the philosophy of human rights, and to explore how these approaches speak to pertinent problems in contemporary human rights practice.

In this introductory chapter, we first provide an outline of the debate, before we proceed to outline the issues covered in the various chapters. However, let us first say something about the broader relevance of the chapters compiled in this volume.

First, the debate on the philosophy of human rights is important because it has normative implications that bear on salient political issues of our time. This is not just because they may be taken to provide normative standards for legitimate statehood and permissible intervention, as some advocates of a political conception would claim. They also influence policies and decisions of a more mundane but still highly political nature. As Andreas Follesdal suggests in his contribution, normative theories of human rights inform political debates about both the legitimacy of international human rights institutions and the jurisprudence of international human rights courts. Hence, how we think of human rights – how to justify them, what rights there are, to whom they belong, what sort of duties they entail and for whom – has important implications for a range of policy areas.

Second, the recent upsurge in interest for the philosophy of human rights follows developments both in the real world and in academic research. For one thing, as an emerging international practice, the international human rights regime has expanded dramatically since its inception, with a growing number of international treaties encompassing ever more states, detailing more types or rights and involving an expanding range of non-state agents, such as international organizations, multinational corporations, and civil society groups (Schaffer, Føllesdal, and Ulfstein Reference Schaffer, Føllesdal, Ulfstein, Føllesdal, Schaffer and Ulfstein2013). While the regime has expanded successively, it also increasingly engenders activism and resistance, acceptance and criticism. Moreover, human rights is also the subject of a growing multi-disciplinary research program, involving scholars in law, political science, history, sociology, anthropology, and other disciplines, producing an ever richer literature on the origins, functioning, and effects of international human rights norms. The richness and inconclusiveness of these literatures mean that philosophical arguments can tap them for support in various ways (Flynn Reference Flynn and Corradetti2012): to demonstrate the contextual contingency of international human rights norms – or their universal validity; to show the inefficacy of international law norms – or their subtle effects on politics, and so on. Both the expanding empirical domain and the growing academic literature on human rights call for philosophical enquiry.

Third, the debate about moral and political conceptions of human rights also reflects broader methodological concerns in political theory and philosophy, about the role of ideal theory, formulated under the assumption of full compliance and favourable conditions, and whether we should take into account contingent social realities, such as existing societal institutions and practices, when we formulate normative theories (see, for instance, Sangiovanni Reference Sangiovanni2007; Ronzoni Reference Ronzoni2009; Valentini Reference Valentini2011). Specifically, the debate about practice-dependence concerns how normative theory should take existing social practices into account. Some argue that we cannot justify principles of justice independently of the practices and institutions they are intended to regulate, whereas others hold that existing practices and institutions impose constraints only when we evaluate how to implement independently justified principles. Political philosophy seemingly faces a dilemma: either we risk formulating normative principles that offer little practical guidance because they fail to take into account current social realities and the fact that not everyone acts on even the most well-justified principles, or we risk justifying the status quo, if the normative principles we reconstruct from existing practice offer insufficient critical distance. The nature of the international human rights regime may actually make it an especially illustrative example for many such issues, since it confronts the most demanding moral universalism with the harshest political realities of a world of sovereign states. Hence, since the moral and political approaches to human rights represent broader methodological strands in contemporary political philosophy, we believe there are more general lessons to be learned from engaging with the critical case of human rights.

These are some of the inroads that motivate this volume, which brings together a set of original chapters written by scholars in philosophy, political science, and law.

Moral vs Political and Beyond

The debate about moral and political conceptions of human rights has emerged in recent years as a key topic in political and legal philosophy. Traditionally, philosophers have approached the topic of human rights from moral theory, assuming human rights to be a type of basic moral entitlements human persons hold simply by virtue of being human (e.g. Cranston Reference Cranston1973). On this ‘moral’ view – sometimes alternatively labeled orthodox, natural law, naturalist, ethical, or humanist – the source for constructing a theory of human rights is rooted in human nature, though proponents of a moral approach hold different ideas about precisely what aspect of human nature grounds human rights: some notable candidates are autonomy or personhood (Griffin Reference Griffin2008) and capabilities (Sen Reference Sen2004; Nussbaum Reference Nussbaum1997). Because human rights, on this view, are theorized as following from morally significant properties innate to human beings, human rights are, by definition, universal and timeless, and they can be theorized independently of the currently existing international human rights regime and its legal doctrine, of the international system of sovereign states, or of any such historically contingent social institutions. Thus, as an advantage of the moral approach, it offers an independent moral standard by which to hold particular instantiations of human rights, for instance in order to criticize certain currently institutionalized rights or to identify new ones that ought to be recognized. On the other hand, a common objection to the moral approach holds that it may struggle to make sense of many of the specific rights that contemporary international human rights documents acknowledge, such as due process rights or the right to free education.Footnote ¹ Such rights, a critic may argue, can hardly be theorized as deriving from a timeless, universal conception of the human person, since their possession, exercise, or violation presupposes that certain social conditions are in place.

In recent years, much of the revived philosophical interest in human rights has assumed a different methodology that seeks to understand human rights as a contemporary institutionalized practice. On this “political” or “practical” view, human rights are not seen as pre-political entitlements all persons have simply because they are human, but rights that originate within political institutions and that regulate the relation between citizens and governments, constraining state sovereignty in the modern international system. Consequently, the philosopher’s task in formulating a theory of human rights is to critically reconstruct human rights as they exist in the international legal doctrine and practice of human rights (Buchanan Reference Buchanan2010) – not in order to evaluate whether existing practice conforms to some independent moral theory of what human rights are, but rather “to clarify the understanding of human rights with respect to its own practice” (Baynes Reference Baynes2009). Consequently, this approach claims to offer an internal understanding of human rights practice that is also critical: It does not just accept whatever happens to be in current doctrine but rather critically evaluates the practice in terms of its own governing purpose or function.

Specifically, on the predominant political conceptions, international human rights are seen as part of an international legal framework that specifies standards of legitimacy and limits on sovereignty. These standards may determine, for instance, whether the international community should tolerate a government, even if it pursues certain illiberal practices, or whether other states, unilaterally or in concert, may legitimately intervene, possibly by force, against a government that engages in or fails to prevent gross violations of human rights. Proponents of political conceptions differ in their views about which rights belong on the list: Michael Ignatieff (Reference Ignatieff2001) includes only a minimal set of rights to bodily security, while John Rawls (Reference Rawls1999) has a longer list, including rights to life, subsistence, property, equality before the law, and religious freedom, but stops short of a full package of liberal and democratic rights, such as freedoms of expression and association. Even Joshua Cohen (Reference Cohen2004), who argues, contra Ignatieff, that the aim to find a minimal justification of human rights need not also imply substantive minimalism, excludes a right to democratic participation (cf. Beitz Reference Beitz2009, chap. 7). Hence, to the extent that the chief purpose of the practice of human rights is to provide standards of legitimate statehood and legitimate interference, the list will typically be truncated, so as not to grant too many excuses for external intrusion in sovereign states. This also demonstrates that political conceptions may have a critical edge towards currently existing practice and doctrine – they need not just defend the status quo. Still, by reconstructing a philosophical theory of human rights from existing legal-political practice, the political conception – so a frequent objection goes – may seem “implausibly contingent on the way the world happens to be organised here and now” (Valentini Reference Valentini2012, p. 183).

However, this volume has come about on the presumption that it is an over-simplification to describe the contemporary philosophy of human rights in terms of two diametrically opposed approaches, or even two rival camps of philosophers. It may be helpful as a dramaturgical, pedagogical device to highlight key controversies in the literature, but in reality the dichotomy is overstated, for several reasons. First, both approaches entail parallel methodological problems. For the political approach, a key question is why we should grant existing practice authority over our theorizing about human rights. This touches upon the methodological debate in contemporary political philosophy on what role an account of existing political institutions and other contingent facts about our current society should play when we formulate and justify theories of justice. But the moral approach has a similar methodological and interpretive challenge: Why should we allow a particular conception of the human person to steer our normative thinking about human rights, and how can we reliably get at that conception? Both approaches also need some strategy for dealing with aberrations from its reconstruction of the practice or of human persons, such as when we find a wide range of heterogeneous functions in the existing practice of human rights, or when we encounter individual human beings who diverge from the foundational notions of human autonomy or capabilities, such as infants or persons with disabilities (not to speak of corporate agents such as corporations or indigenous peoples).

Second, several commentators have recently suggested that the two approaches are not so antagonistic after all, but actually compatible: They may complement, or even presuppose one another, so that any full theory of human rights will need to mediate between international human rights discourse as it exists and moral theory (Gilabert Reference Gilabert2011; Liao and Etinson Reference Liao and Etinson2012). Regardless of whether you begin theorizing human rights from moral theory or political practice, you must, sooner or later, offer a critical account of existing institutionalized human rights norms; hence, the two approaches rather disagree about whether you can start that task without first formulating an independent moral theory of human rights (Buchanan Reference Buchanan2010). Vice versa, even if you assume a political view, you must eventually engage in the kind of moral reasoning characteristic of the moral view (Valentini Reference Valentini2012). Some of the contributions to this volume demonstrate that theorists who have been assigned to one camp actually straddle the distinction. For instance, Luise Müller shows how John Rawls, often seen as the instigator of the political approach, actually offered a moral justification of human rights as a prerequisite of social cooperation, while Howard Williams argues that Immanuel Kant, his natural law approach notwithstanding, has valuable contributions to the political approach, too.

Third, many of the contributions to this volume demonstrate that there is more diversity within each approach than what is registered by the crude depiction of a debate between two opposing camps. For instance, critics have sometimes faulted the political approach for assuming, too simplistically, that human rights are essentially “triggers for intervention” (Tasioulas Reference Tasioulas2009; Nickel Reference Nickel, Martin and Reidy2006). That is, international human rights norms chiefly offer normative standards for when the international community may legitimately interfere with a state that fails to protect the rights of its citizens. However, Johan Karlsson Schaffer argues that by recognizing a different function of the practice of international human rights – how they empower agents in domestic society – the political conception’s methodology might allow us to assess existing practice in a less restrictive way. Similarly, Kristen Hessler’s contribution shows that theorists associated with the political approach differ along several dimensions, including what role they ascribe to existing practice in their theory, while Daniel Corrigan suggests that a political conception can entail different positions on the pertinent topic of corporate social responsibility.

In that sense, we see the set-up of a controversy between two competing approaches only as the starting point for a dialogue that includes a much wider variety of voices and perspectives on what a philosophical theory of human rights should seek to achieve.

Outline of the Chapters

The chapters in the volume are organized into two parts: the first part addresses the overarching debate on moral and political conceptions by looking at the works of particular philosophers, such as Immanuel Kant, John Rawls, James Griffin, or Charles Beitz, whereas the second part confronts the debate, and the established approaches, with challenging issues in the contemporary philosophy and practice of human rights, such as corporate obligation or migrant rights.

The first part is part of a new turn towards downplaying the simplified bifurcation characteristic of much of the debate so far. Some of the authors seek nuances within each philosophical conception, while others aim to altogether transcend the separation into two methodologically opposed approaches. In “Theory, Politics, and Practice: Methodological Pluralism in the Philosophy of Human Rights,” Kristen Hessler engages in some much needed conceptual clarifications. John Rawls, Joseph Raz, and Charles Beitz are usually taken to equally represent the political approach but in fact they can be distinguished along two lines. First, a practice-sensitive approach must be kept apart from a practice-insensitive approach. A theory is practice-sensitive to the extent that it aims to be responsive to current human rights practice, in contrast to practice-insensitive (or ideal) theory, which aims to articulate a moral goal or ideal. Second, a political approach must be kept apart from a moral approach. A theory is political to the extent that it employs standards drawn from institutions regulating societies, by contrast to moral theories, which draw on interpersonal or non-institutional morality. On these two standards, Rawls, Raz and Beitz differ markedly, and for this reason Hessler argues that reconciliation efforts between the approaches should cease to treat them as representing a united front. She concludes that there may not be much to be gained from defining a single methodology, since the approach to human rights can legitimately differ according to domain (moral or legal theory) and according to purposes in terms of concrete applications to practical questions.

In “The Point of the Practice of Human Rights: International Concern or Domestic Empowerment?,” Johan Karlsson Schaffer works within the political conception of human rights to challenge its central claim that international human rights chiefly provide standards for international conduct or reasons for interference. As Charles Beitz puts it, human rights are matters of international concern: They give reasons for outside agents to act when a state fails its first-hand responsibilities for protecting the rights of its residents. Schaffer offers a different view, on which international human rights are chiefly implemented and enforced through political action in the domestic sphere rather than in international society. International human rights norms authorize and empower individuals and groups to claim their entitlements and challenge governmental authority. This “domestic empowerment view,” he argues, allows for reconstructing the practice of international human rights in a way that can make better sense, compared to the dominant political conception, of salient features of that practice, such as the importance of legalization, the idea of equal status that animates many human rights, and the constructive role international human rights play in societies where the rule of law and democracy are generally respected.

In “Rawls’s Relational Conception of Human Rights,” Luise Katharina Müller argues in favour of abandoning the separation between moral and political conceptions of human rights. She proposes an integrated view of human rights, which takes its point of departure in an original interpretation of John Rawls. The dominant view is that Rawls’s philosophy supports only a political conception of human rights. Müller argues that this interpretation is mistaken and that Rawls’s human rights conception falls neither exclusively into the moral nor exclusively into the political category. In fact, he does not simply define human rights by their international function and does not take the practice of human rights to be in any sense normatively authoritative. Instead, he offers a moral grounding and a justification for human rights, which is based on them being necessary to domestic social cooperation. His emphasis on an idealized concept of social relations stands in contrast to standard moral approaches, which justify human rights in virtue of some individual moral characteristic. Moving beyond the dichotomy of conceptions of human rights, this theory has the further advantage of avoiding a demanding theory of the good life and of being capable of explaining the inherent status egalitarianism of human rights.

In “Theories of Human Rights: Institutional or Orthodox – Why It Matters,” Andreas Follesdal defends a “global” political theory of international legal human rights against criticism raised by “orthodox” accounts. He defends the political conception against the claim that it is unduly constrained to actual consensus on premises given within the current state system to match the universal ambitions of human rights. The political approach does not seek to avoid normative premises and an orthodox account is not necessary in order to specify the substantive content of human rights. Such a specification can be achieved by the method of reflective equilibrium, which takes into account considered judgments concerning human rights, including general principles and human rights treaties. As an example, Follesdal discusses the concept of dignity within a contractualist philosophy. This contractualist approach does not shy away from normative premises, yet they must be in line with a global public reason.

In “Mediating the Theory and Practice of Human Rights in Morality and Law,” David Ingram argues that an account of human rights that is responsive to the full range of human rights practices must allow that human rights fulfill multiple complementary functions: political, legal, and moral. While legal and political accounts mainly highlight the function of human rights in promoting social justice, moral accounts mainly highlight the function of human rights in protecting vital individual interests. The account he defends posits a closer connection between these functions by examining the practical conditions underlying institutionalized (specifically justiciable) human rights. Displaying the ambiguous moral-legal status of human rights in official human rights documents and practices, and critically evaluating it in light of the debate between moral and political approaches, Ingram offers a pluralistic account of human rights, which endorses a strong role for democratic legitimation.

In “Kantian Human Rights or How the Individual Has Come to Matter in International Law,” Howard Williams enlists Immanuel Kant in justifying human rights in a way that transcends the dichotomy between the moral and the political approach. The two approaches’ horizons inevitably merge because no moral account can entirely ignore considerations that are of importance to political accounts, just as no political account can entirely overlook the wider philosophical background into which human rights claims fall. One might easily think that Kant’s philosophy, due to its moral universalism and origins in the natural law tradition, would side with the moral approach. Indeed, from a Kantian point of view the political account requires a moral underpinning. Yet, Williams argues, Kant also makes contributions to the political approach due to his concern about the institutionalization and protection of rights. Indeed, he anticipated many aspects of the emerging post-war human rights practice. Moreover, the Kantian view of law is monistic, such that domestic human rights law is intrinsically dependent on laws establishing and maintaining a peaceful international order. Thus, Williams concludes that Kant lends valuable support to the political view while remaining true to its moral premises.

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The second part of the volume gathers chapters that seek to apply the moral and political conceptions to various areas of the human rights practice. Several of these authors take a clear stand in favor of one of the two conceptions, to some extent in contrast to several of the theoretical contributions of the first part of the book. Yet, while insisting on the conceptual separation, they also seek to make each account more capacious, showing it to apply to a range of areas. Hence, some of the chapters illuminate the human rights situation of social agents that tend to have an unsettled place within the practice, such as migrants, indigenous people, or corporations. Other chapters apply contemporary human rights theory to the challenge of socio-economic rights or to the problem of generating the solidarity that is necessary for the joint action in support of human rights.

In “Human Rights Solidarity: Moral or Political?,” Seth Mayer applies the debate between moral and political approaches to the question of what it takes to establish the solidarity necessary for realizing human rights. He defines solidarity as a unity among persons, which grounds moral duties towards their group. The problem with moral theories is that they do not designate the practices and institutions through which those committed to human rights should try to achieve their goals. They provide only an abstract object of solidarity. As a result, such approaches fail to make sense of the fidelity and loyalty necessary to support the joint political action necessary for realizing human rights. Mayer argues that the political approach offers a better way of realizing solidarity. This is because it relies on an existing practice, thus offering a concrete vehicle for pursuing human rights, enabling joint action.

In “When the Practice Gets Complicated: Moral Rights, Migrants and Political Institutions,” Jelena Belic explores the contrast between moral and political conceptions of human rights applied to the human rights of immigrants. Human rights are commonly thought to be universal, yet states often trade off the human rights of migrants for rights of their citizens. She argues that the political approach does not have a principled objection to such trade-offs. It justifies human rights by deliberated internal reasons – the reasons that the agent would come up with by deliberating from the beliefs and motivations he actually has – and this concession to practice is to take away the critical edge of human rights and remove their inalienability. As a result the political approach can permit trade-offs between the rights of citizens and immigrants, and cannot well explain how the human rights of migrants are claimable against foreign states. Belic proposes instead a moral approach to human rights, arguing that grounding human rights in common humanity can provide weight to the human rights of migrants and accordingly rule out trade-offs justified by the maximization of the interests of citizens.

Kerstin Reibold asks, “Can Naturalistic Theories of Human Rights Accommodate the Indigenous Right to Self-Determination?” On the naturalistic conception of human rights, the indigenous right to self-determination is usually ruled out. James Griffin, for example, argues that human rights necessarily are individual rights and not collective rights. This restriction is worrisome, because if indigenous rights are excluded from the human rights realm, they are potentially weaker than those having human rights status. Consequently, if there is a rights conflict, indigenous rights will be trumped by the stronger human rights claims. Against Griffin, Reibold argues that in fact the moral approach can include the indigenous right to self-determination. Distinguishing between basic and derived human rights, she argues that the indigenous right to self-determination can be interpreted as a derived human right even though it is a collective right. In many cases it is a necessary means to protect the right to individual self-determination as well as the social bases of self-respect and the status equality of indigenous peoples. All of these goods constitute basic interests of human beings, motivating a derived human right to protect them.

While the previous chapters argue that a political or a moral view makes a difference to the nature of human rights obligations, Daniel Corrigan doubts that this is the case for the political approach when applied to the area of corporate human rights obligations. In “Political Conceptions of Human Rights and Corporate Responsibility,” his point of departure is John Ruggie’s influential “Guiding Principles on Business and Human Rights,” which has been taken to endorse a political approach to human rights. This is said to have led Ruggie to limit corporate obligation to mere respect for human rights, while states (or governments) bear the full range of human rights obligations, including duties to respect, protect, and fulfill these rights. Corrigan argues that this conclusion relies on a false general claim. The mere fact that a theory offers a political conception of human rights does not necessarily entail any certain range of corporate human rights obligations. He reaches this conclusion through a discussion of Rawls’s, Raz’s, and Beitz’s political conceptions. Whether a political conception contains a particular view of corporate human rights obligations will depend on whether the practice is understood as including more or less of the activities relating to human rights. For example, if the practice is understood as composed of a narrow range of aspects, the result may be a narrower construal of the essential features or functions of human rights, possibly excluding corporate human rights obligations. A broader construal of the practice may yield the opposite conclusion.

In “Socio-Economic Rights: Between Essentialism and Egalitarianism,” Malcolm Langford sets out to demonstrate that several prevailing philosophical theories of rights actually offer resources for justifying a category of rights often treated stepmotherly. Philosophers leaning toward both moral and political conceptions of human rights have criticized socio-economic rights on surprisingly similar terms, finding them either too ambitiously aspirational or too insignificant (e.g. the oft-ridiculed right to periodic holidays with pay) to deserve to be called universal human rights, or both. And those theories within both approaches that make some room for socio-economic rights often justify only a bare minimum. Langford shows that a range of moral theories, ranging from freedom and agency to needs, capabilities, and justice, offer resources for justifying socio-economic rights, but he also suggests that purely moral theories are limited because they neglect the more democratic origins of social rights practice. Instead, he draws on both international and domestic rights practice in order both to resolve questions about the scope of social rights and their egalitarian nature and to meet classical conceptual objections against socio-economic rights.