Any analysis of the role of human rights in domestic constitutional law must grapple with a central tension lying at the core of the relationship between the two. Whereas constitutional law is inevitably grounded in a particular place covering defined sets of people, human rights aspire, as the term makes clear, to transcend the political in the name of entitlements that inhere in people wherever they are from and regardless of the governmental arrangements under which they live. National constitutional law can almost always point to a specific moment when the foundational document from which all else follows is agreed and brought into effect, and even in those very few places where this is not the case (the United Kingdom, for example) the ‘constitution’ is made up of a bundle of documents (statutes; judicial decisions; shared practices) which are similarly rooted in time as well as in place and people. In this way too human rights appear different: the vast ambition of the phrase involves a claim to stand outside a history made up not only of people and places but of foundational turning points as well.

Introduction

In The Ethical Project the distinguished philosopher and historian of science Philip Kitcher attempts an ambitious project: to bring together post-Darwinian fatalism about the self with human reason’s not unreasonable desire to keep itself at the centre of our species-story. The first – rooted in the idea that we are what our genes tell us to be; nothing less and certainly nothing more – has ridden off the back of recent neurological breakthroughs to grab the attention of mass audiences (via Pinker, Dennett et al.) with its seductive tale of hard-wired brains predisposing each of us to this or that, practically pre-determining (albeit in a general sense) what we do. The latter, though, having human vanity and centuries of learning on its side, is not proving that easy to dislodge: Kant, Hegel and the rest of us are not just the products of lumps of interconnections behind our foreheads. Doing right, behaving properly, leading a good life are qualities we get to, not the side-effects of genetic composition. Reasoning matters in a way that is different from wanting food or not wanting to be cold or needing sex, or even cleverly using our thumbs. Sociologists are not slow to join in the critique as well, seeing in the Darwinian perspective a challenge to the assumptions upon which their specialism may seem to depend.

Kitcher says about reason, society and our genes words more or less to the following effect, ‘Hey relax, we can have all of this.’ And – this is the Houdini trick – you don’t have to turn all those ‘is’ things you find in nature into a bunch of ‘oughts’ simply because they are part of our evolutionary story, helping us to get our genes through another generation. What we ought to do is part of what we are but not all of what we are is what we ought to do; ‘[t]here is . . . no such thing as the naturalistic fallacy’. There have been other Houdinis of course; as Oliver Curry demonstrates in his excellent discussion of the topic, the father of is/ought scepticism is David Hume, for whom the passions were a guide to conduct with this term including moral passions.

Human rights are an inescapable fact in the world. They bring together the North and the South, the left and right, church and state. Street activists look to them while armed forces adopt codes of conduct ostensibly on their basis. They are the ideology after ‘the end of ideologies’, the only set of values left now that we have arrived at ‘the end of history’. Of course, such pervasiveness comes at a price of intellectual promiscuity. Human rights are used as a symbol or synonym for liberalism, capitalism or individualism by some and for development, social justice and/or peace by others. In the South, rights are seen as primarily collective rather than individual, social and economic rather than civil, associated with equality rather than with liberty. In the North, they can reflect commitments to solidarity and social justice as well as to political freedom – but they have also been used to underpin invasion and military brutality.

This volume captures and reflects the variegated nature of the meaning of human rights in contemporary scholarship and in public discussion. It brings together an eclectic group of leading philosophers, lawyers and social theorists to examine the foundations, meaning and impact of human rights on the world, and the dynamic inherent in the phrase’s use today. The term itself is a combined one: the ‘human’ refers to morality and ethics and to the treatment that individuals are entitled to expect from public and private powers ‘Rights’ refers to their legal provenance. The hybridity of human rights introduces a number of paradoxes at the heart of society, which this volume explores in a way that is inquisitive, critical and above all inter-disciplinary. Let us introduce the volume by looking at four in particular.