Political and Legal Approaches to Human Rights

Tom Campbell, Kylie Bourne

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351717175
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This collection explores and illustrates issues arising from 'political' approaches to human rights in contrast to the more traditional 'moral' approaches. Moral approaches conceptualize and justify human rights in terms of priority rights which are both universal and moral. In contrast, political approaches focus on those human rights practices involved in the development and operation of human rights institutions, laws and political process, all in relative independence from their alleged moral foundations. The book contributes to the understanding and analysis of 'political approaches', including consideration of their diversity, and discussion of their strengths and weaknesses. The choice of contributors presents a balance between those theorists who favour some version of the political approach and those who are dubious about the perceived advantages. The chapters are grouped together in parts which constitute the distinctive issues addressed in the book.

At a time when there is considerable uncertainty concerning their conceptual clarity, operation, feasibility, and their normative justifications, this volume will be of interest to those involved with the theory and practice of human rights, within law schools, and in politics and philosophy departments. It will also provide a useful resource for human rights practitioners and policy makers.

Part I

Identifying political approaches

1 Human rights morality and human rights practice

An interactive approach

Tom Campbell

Sceptical responses to the increasing variety of human rights claims have given rise to less ‘moral’ and more ‘political’ approaches to the philosophy of human rights. These political approaches focus on the current practice of human rights, and reject traditional moral theories which seek to conceptualize human rights on the basis of their universality, importance and moral foundations without sufficient reference to their current political functions. Drawing on the work of Charles Beitz and Joseph Raz, this chapter endorses taking into account the existing political functions of human rights practice, including the mechanisms, which feature in their institutionalization. It then explores ways of modifying the political approach to render it more inclusive of human rights morality and more interactive with respect to the relationship between moral justifications for human rights and the objectives and mechanisms current within human rights practice.

Since the early 1970s, the discourse of human rights has achieved a remarkable prominence in the domain of politics and law.¹ At the same time, how that discourse is best understood and how it might be improved upon, have become increasingly controversial questions. In particular, the proliferation of human rights claims and the diversity of their practical uses have generated a measure of scepticism as to their meaning, purpose, content, practical implications and moral justification.² While there is considerable cross cultural agreement on abstract statements of human rights, this agreement does not extend to their specific content, their practical implications, or how they ought to be institutionalized and implemented.³ In consequence, while there is widespread goodwill towards human rights, there is considerable doubt about how they should be conceptualized and how to settle moral disagreements as to their content and scope, the political purposes they serve, and the legal and other mechanisms appropriate to their implementation.⁴

A comparatively recent response to such human rights scepticism is the emergence of what has become known as ‘political’⁵ or ‘practical’⁶ or ‘functional’,⁷ as opposed to ‘moral’⁸ or ‘traditional’⁹ or ‘orthodox’¹⁰ or ‘natural law’,¹¹ approaches to identifying the distinctive characteristics and roles of human rights. A common factor within ‘political’ approaches is their critique of the orthodox ‘moral’ view that human rights are morally important ‘pre-political’ rights that belong to all human beings in virtue of their humanity. In contrast, the political approach contends that human rights are better understood as socio-political constructs characterized primarily by their functions in various political arena. The orthodox moral view, it is argued, neither explains nor adequately evaluates the contemporary political and legal practice associated with the Universal Declaration of Human Rights (1948) (UDHR) and the subsequent human rights institutionalizations associated with the various human rights conventions and treaties adopted since 1948.¹²

Overtly ‘without foundations’ and firmly ‘practice-oriented’, the political approach renounces free-standing moral debate as to what human rights are, and eschews abstract philosophical reflection on the issues which trouble human rights sceptics. Instead, the political approach concentrates on the human rights doctrines which operate within the political practice of human rights, particularly the functional roles which human rights norms play in the sphere of global politics and constitutional law. The normative programme of the political approach commends empirically informed moral reflection directed at understanding and developing the existing functions of human rights, principally from the perspective of those involved in these processes. This requires examination of the working assumptions concerning the meanings and purposes of human rights that feature in the discourse of those who are knowledgeable about or involved in, what Beitz calls the emergent ‘public political project’ of human rights.¹³

The discourse embedded in this project, at the international level, is held to have a certain authority deriving from its historical connection with the post-Second World War origins of human rights and the generally beneficial outcomes of current human rights practice. More particularly, human rights are conceived of as rights the violation of which merits international concern, and may legitimate some degree and type of external intervention in the internal affairs of a state, something which would otherwise be regarded as an infringement of the sovereignty of that state. This human rights-based intervention is related, in a variety of ways, to the special responsibility of states to protect and promote the interests of their citizens as identified in human rights declarations, conventions and treaties.¹⁴ Domestically the discourse principally concerns the constitutionalization of human rights in order to limit or extend the activities of governments with respect to their citizens.

This chapter explores the advantages and the limitations of the political approach to human rights. Its perceived advantages are, first, that it provides a clear empirical paradigm for identifying human rights, thus assuring the practical relevance of philosophizing about human rights. Second, political approaches highlight the contexts in which it is possible to formulate the content and scope of human rights at a level of specificity that is appropriate for their operationalization in legal and political decision-making. Third, political approaches by-pass some intractable philosophical disagreements concerning the conceptualization and distinctive moral justification of human rights. On the other hand, the perceived limitations of political approaches relate, first, to the gap they open up between the practice of human rights and the moral imperatives underpinning their political salience, and, second, the lack of critical engagement with the practices, particularly the functions and mechanisms, that have come to be associated with the implementation of human rights.

Following this analysis, the chapter examines ways in which the moral and the political approaches might work, as it were ‘in tandem’ as one commentator puts it, and in an interactive way in which not only do human rights values, such as equality, liberty and dignity, influence human rights practice but human rights practice impinges on the selection and interpretation of human rights values. The relatively easy part is to demonstrate the need for the fundamental values that critique and direct our practice, but difficulties are encountered in demonstrating how human rights practice can legitimately impact on the understanding of human rights values.

By taking articulation and interpretation together, a case is made for a modified, more ‘interactive’, political approach which, while keeping in focus the political purposes and institutional mechanisms involved in current and emerging human rights practice, retains significant continuity with those aspects of traditional human rights philosophy that involve the elucidation and application of the universal values, such as life and liberty, which serve as the moral foundations of human rights discourse. The proposed interactive approach endorses the contention that the specific content, scope and form of human rights cannot be determined outside of a particular social context, and without taking into account the actual processes and concrete mechanisms that are available and likely to be involved in their application. These mechanisms include human rights-based judicial review of legislation and United Nations Security Council endorsed foreign intervention, as well as the less dramatic institutional processes of monitoring, public condemnation and the deployment of diplomatic pressure. However, the interactive model retains a place for characteristic human rights values, both in the conceptualization of human rights in general and in the justification of particular human rights. In this process, neither the characteristic moral justifications nor the existing mechanisms are fixed givens. Thus, it is suggested that conceptual analysis and normative reflection concerning content and functions of human rights should involve matching characteristic human rights values and human rights mechanism, without giving unconditional conceptual or normative priority to either.

1 Political critiques of moral approaches to human rights

Political approaches to the philosophy of human rights are, in part, responses to growing scepticism about human rights. Now the preferred moral discourse of politics, the human rights brand attracts an ever-widening variety of adherents and gives rise to an increasingly broad range of claimed human rights and their associated methods of implementation. This, in turn, makes it difficult to develop an overarching conceptualization of human rights which has sufficient precision to provide adequate practical guidance as to what human rights are, what they are for and how they should be developed.¹⁵

The scepticism that prompts political critiques of moral approaches to human rights concentrates on several suspect strands, which are attributed to the orthodox philosophy of human rights. This includes what may be called (a) ‘moral monism’, (b) ‘descriptive naturalism’, and (c) ‘acontextual conceptualism’. Moral monists attempt to trace a normative thread that leads back to a single moral basis for all human rights, usually drawing on the natural rights tradition with its emphasis on individual autonomy and the associated idea of ‘respect for persons’, as derived from enlightenment philosophers, such as Immanuel Kant.¹⁶ Descriptive naturalists seek to provide a basis for human rights in a secularized version of the sort of natural law theory which seeks to identify a number of authentic human characteristics, capacities or needs derived from our knowledge and understanding of human nature and human circumstances.¹⁷ Acontextual conceptualists, in their concern with the universal meaning of rights discourse and the categorization of human rights within a formal analytical scheme, seek to identify what they claim to be the content-independent and contextually-neutral characteristics of human rights, such as their human universality, and their peremptory moral prescriptivity.¹⁸

Advocates of the political approach, such as Beitz, point out that all these endeavours run into serious difficulties. Moral monists come up against the evident connection between many generally accepted human rights and a broad conception of human well-being which cannot be reduced to one single value, such as autonomy or dignity, to the exclusion of other values, such as justice, equality and freedom from suffering. Descriptive naturalists, in their approach to the empirical realities of human nature and human needs, inevitably pick and choose between what is ‘natural’ in the sense of what is normal in human societies and what is ‘natural’ in the sense of what is wholesome, fulfilling or uncorrupted. The first interpretation of ‘natural’ lacks normative force and the second interpretation raises moral questions that cannot themselves be settled by an appeal to ‘nature’. Acontextual conceptualists, in their attempts to define human rights in a content-independent and context-neutral way, are unable to persuade others of the conceptual necessities to which they are committed, such as the alleged universality and prescriptive overridingness of all human rights. They cannot demonstrate, for instance, that ‘universality’ distinguishes human rights from all other rights, if only because universality does not in itself imply moral importance, and moral importance is not dependent on universality.¹⁹

These thumb-nail sketches provide some indication why theoretically minded persons engaged with the practice of contemporary politics are keen to distance themselves from what they see as the philosophical morass of contemporary human rights philosophy, and place on hold the search for a distinctive moral theory of human rights. This enables them to focus on human rights as a contemporary phenomenon, in contrast to what they see as the now outdated concept of natural rights, and to look, instead, at current opportunities for articulating, implementing and developing the current practical discourse of human rights.

However, while rejection of seemingly intractable abstract philosophizing in relation to human rights is understandable, fastening purely on the historically distinctive current human rights practice has both intellectual and moral downsides. Intellectually the political approach appears rather ad hoc and piecemeal. Morally it lacks a clear basis for the critique of existing practice, and tends to fracture the moral integrity of human rights into a plurality of diverse political arrangements based on a range of ill-defined values such as justice (legal and social), equality (formal and substantive), autonomy (individual and collective) and well-being (negative and positive). As a result, the political approach calls into question the distinctiveness of the human rights as a basis for justifications of the development and deployment of mechanisms relating to international intervention, constitutionalized democracy and mandatory humanitarianism.

The more modest ambitions of political approaches may turn out to be precisely what is required to rescue the philosophy of human rights from the theoretical impasse reached within traditional approaches. In particular, it may help us to avoid embracing human rights ‘fundamentalisms’, which put forward ultimately untestable claimed moral insights to legitimate the exercise of global power, or limit democratic institutions in questionable ways. A measure of epistemological humility regarding the moral foundations of human rights and some political suspicions arising from the selective enforcement of those human rights that are socially recognized may be seen as healthy consequences of attending to the issues at stake in the contemporary practice of human rights. On the other hand it may be unduly cautious to withdraw from systematic reflection on the moral foundations, which sustain the powerful political significance of human rights discourse.

The challenge here is to develop readily understandable and practically applicable philosophical approaches to human rights which are inclusive of the diverse and developing functional roles of human rights in the political arena, as well as the a...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of contributors
• Introduction
• Part I Identifying political approaches
• Part II Critiquing political approaches
• Part III Accommodating economic rights
• Part IV Beyond the nation state?
• Conclusion
• Index