Global Political Theory

David Held, Pietro Maffettone, David Held, Pietro Maffettone

• Publisher: Polity
• Year: 2017
• ISBN:
  9780745685212
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Philosophers have never shied away from interrogating the nature of our obligations beyond borders. From Hobbes to the international lawyers Grotius, Pufendorf, Vattel, and of course Kant, modern philosophy has always attempted to define the nature and shape of a just international order, and the types of mutual obligations members of different political communities might share. In today's hyper-connected world, these issues are more important than ever and have been an impetus to a political theory with global scope and aspirations.

Global Political Theory offers a comprehensive and cutting-edge introduction to the moral aspects of global politics today. It addresses foundational aspects of global political theory such as the nature of human rights, the types of distributive obligations that we have toward distant others, the relationship between just war theory and global distributive justice, and the legitimacy of international law and global governance institutions. In addition, it features analyses of key applied moral debates in global politics, including the ethical aspects of climate change, the moral issues raised by the mobility of financial capital, the justness of different international trade regimes, and the implications of natural resource ownership for human welfare and democratic political rule. With contributions from leading scholars in the field, this accessible and lively book will be essential reading for students and teachers of political theory, philosophy and international relations.

Chapter One
The Point and Ground of Human Rights: A Kantian Constructivist View

Rainer Forst

1 How To Think About Human Rights

Our thinking about normative concepts is always bound by paradigmatic notions of their primary task in social practice. Human rights are a case in point. Some focus on their moral core as protecting urgent and essential human interests and try to define these; some focus on their being a cross-cultural ‘lingua franca’ and thus look for definitions and justifications that could be approved from within an ‘overlapping consensus’ of all cultures and societies – or at least the ‘reasonable’ ones. Some locate the idea of human rights in international political or legal practice as standards of legitimacy, the violation of which justifies international action or intervention.

Each of these approaches has its advantages as well as its shortcomings, which I will not discuss in detail here (for more in-depth discussion of these approaches, see Forst, 2014: ch. 2). Rather, what I want to argue is that none of them identifies the political and emancipatory point of human rights properly, the point being that these rights have been (and continue to be) fought for in historical social struggles to establish a legal, political and social status of non-dominated persons within a political normative order – that is, as free and equal persons who are both addressees and authors of the legal, political and social basic structure of their political community. I emphasize that this is the original and primary social context of human rights: the emancipatory struggles and conflicts within particular societies marked by various forms of domination. We only understand the point and ground of human rights if we understand the normative logic of such struggles.

Thus we ought to free ourselves from some all too powerful imaginaries dominating human rights discourse that lead us away from this context. One such misleading imaginary is that of human rights as instruments of the protection of vulnerable persons against threats to their well-being by powerful agents, especially the state (Ignatieff, 2001).¹ Such ways of thinking about human rights focus on persons as primarily passive recipients of certain protections and overlook that the full meaning of these rights from the modern political revolutions onward was to achieve an active status of non-domination, such that one is not subject to a legal, political and social normative order that denies you standing as an equal; that is, an order that has not been and cannot be properly justified to you as a free and equal member of society. Domination in my understanding (which differs substantially from neo-republican versions)² does not mean being denied equal status in the sense of no longer enjoying freedom of choice from arbitrary interference; rather, and more fundamentally, it means being disrespected in one's basic claim to be a free and equal normative authority within the order one is subject to, and that implies the basic right to co-determine the structure of that society. This is the status activus, to use Jellinek's term (2011; see also Alexy, 2010: ch. 5), which is a necessary component of human rights: they are not just rights to be protected in one's status as a legally, politically and socially non-dominated person; they are, in a reflexive sense, also basic rights to determine the rights and duties that define that status. Many interpretations of human rights today, even those called ‘political’, pay insufficient attention to this active, political competence.³

The other imaginary to be avoided is the internationalist-interventionist one already alluded to. This defines human rights as international legal rights and implies that, in the words of Charles Beitz, ‘the central idea of international human rights is that states are responsible for satisfying certain conditions in their treatment of their own people and that failures or prospective failures to do so may justify some form of remedial or preventive action by the world community’ (2009: 13). This way of thinking leads to a number of problems. To begin with, the quote shows that the primary context of human rights is not the international order but, rather, the different states, which ought to realize these rights, and that the international context builds on these state contexts and has the task of establishing procedures to legitimately discover, judge and possibly sanction human rights violations. Thus, human rights are a task for states in the first instance and then for the international community; therefore, the human rights that a state has to realize cannot be reduced to those rights the violation of which the international community finds a sufficient reason to intervene over, given the enormous costs and difficulties of an intervention. Such an argument turns the normative order of human rights on its head: first, we need to know which human rights claims are universally justifiable as claims within states, and then we need to think about legitimate cases and, most importantly, procedures and institutions of intervention – which today are still mostly lacking. Otherwise, we would reduce the core of human rights to those rights the violation of which calls for an intervention, and standard – and in my view essential – human rights like those of gender equality or democratic government would no longer be seen as core human rights because – to cite Beitz – ‘the proper inference from the fact that there are circumstances in which the absence of democratic institutions would not generate … reasons for outside agents to act is that the doctrine of human rights should not embrace such a right’ (2009: 185).⁴ This view is remarkably at odds with international human rights documents and human rights practice – such as the social practice of demanding human rights to democracy and gender equality and of actively trying to change regimes that deny these. The ‘practice-based’ internationalist-interventionist paradigm of thinking about human rights, as it is often called, thus focuses on the wrong practice – namely, that of an international regime of human rights rather than that of the critique of states that violate these rights as put forth by members of such societies and by outside agents, even though the latter might not have the power or the legitimacy to intervene. Human rights are one thing, the question of an international politics of intervention is another, conditional on many contingent factors. In other words, if the existing system of international legal human rights were considered the ‘heart’ of human rights, as Allen Buchanan argues (2013: 274), we would have to look for the ‘heart of hearts’ to get to the core of human rights and to their justification.⁵

To briefly indicate the further argument I make in this chapter: if I am right about the moral and political point of human rights to establish the status of persons within their normative order as legal, political and social equals protected from severe forms of domination, it follows that there is a particular moral ground for these rights. Negatively speaking, this is the right not to be subjected to a normative order that denies basic standing as an equal to you and that, reflexively speaking, cannot be justified to you as free and equal; and, positively speaking, it is the right to be an equal normative authority and active agent of justification when it comes to the basic legal, political and social arrangements in your society. This reflexive formulation is necessary, for freedom from domination not just means to be respected as a legally, politically and socially non-dominated equal secured by certain rights; it also means that it is not others who decide without and over you about whether that status is fulfilled or not. Thus, the authority to define non-domination can only lie within a discursive procedure of reciprocal and general justification where all are justificatory equals.

Essentially, the negative and positive formulations used above coincide in the discourse-theoretical, Kantian idea that those subject to a normative order ought to be equal and free normative authorities determining that order through procedures and discourses of justification in which all can participate as equals. The main normative concept thus is that of a person as an equal normative authority, having a basic moral claim to be respected in his or her dignity to be such an authority – and thus having the basic moral right to justification (see Forst 2012), which in this context means the basic right to be an equal co-author of the (legal, political and social) norms one is subject to, and which define one's basic standing in society. This implies not just political rights of participation, but all those rights that give you the normative power to ward off and overcome various forms of domination – that is, of unjustifiable subjection. Thus, it is a particular view of the point of human rights that leads me to reconstruct its moral core and ground in a certain way and locate it in the basic right to justification. In what follows, I will unpack his argument.

2 The Point of Human Rights

An important aspect of the different imaginaries guiding our thinking about human rights is what one considers to be the genealogy of the concept. Those who, like myself, regard them as emancipatory weapons against oppressive regimes and social orders (including feudalism and other forms of economic exploitation – thus the emphasis on social non-domination, as I will explain later) locate their origins in the early modern social conflicts in the seventeenth century especially, playing a major role in the revolutions of the eighteenth century and finding their strongest historical expression in the Déclaration de l'homme et du citoyen of 1789 (see the historical accounts in Bloch, 1986; Gauchet, 1995; Hunt, 2008). Those who emphasize the international legal character of human rights, however, believe that with the Universal Declaration of 1948 a new conception of human rights as internationally secured protections came into being (Beitz, 2009; Moyn, 2012; Ratner, 2015). Whereas the first conception is guided by powerful images of modern revolutions, the second has no less of a powerful image to relate to: namely, the horrors of fascist tyranny and genocide as social evils to be avoided. The first see human rights as not just constraining, but constituting legitimate political power (Habermas, 1974; Besson, 2015); the second regard them as bulwarks against extreme forms of oppression and suffering.

Still, as I said above, if one looks at the Universal Declaration of 1948 and other covenants and, last not least, international practice, one must recognize that in the idea, as well as the practice, of human rights, states are the main context of their realization (wh...

Table of contents

• Cover
• Table of Contents
• Title page
• Copyright page
• Contributors
• Preface
• Introduction: Globalization, Global Politics and the Cosmopolitan Plateau
• Chapter One: The Point and Ground of Human Rights: A Kantian Constructivist View
• Chapter Two: Global Distributive Justice: The Statist View
• Chapter Three: Global Distributive Justice: The Cosmopolitan View
• Chapter Four: Global Political Justice
• Chapter Five: The Legitimacy of International Law
• Chapter Six: Legitimacy and Global Governance
• Chapter Seven: Just War and Global Justice
• Chapter Eight: The Associativist Account of Killing in War
• Chapter Nine: Territorial Rights
• Chapter Ten: Natural Resources
• Chapter Eleven: Fairness in Trade
• Chapter Twelve: The Ethical Aspects of International Financial Integration
• Chapter Thirteen: Political Theory for the Anthropocene
• Chapter Fourteen: Generations and Global Justice
• Index
• End User License Agreement