The Idea of Human Rights Revisited

Charles Beitz and the Political Turn in the Philosophy of Human Rights

David Álvarez, João Cardoso Rosas, David Álvarez, João Cardoso Rosas

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000641103
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

This volume takes stock of the seminal contribution of Charles Beitz to the so-called "political turn" in the philosophy of human rights, whose origins are in the work of the late Rawls. In his already classic book The Idea of Human Rights (2009), Beitz proposes that human rights are better understood from the vantage point of their practice in the contemporary world. Instead of looking at these rights as legal and political instantiations of fully justified moral rights, Beitz reconstructs the idea of human rights as being part of a global discursive practice that can only be understood in the framework of the international system of states in which we live. In this system of interdependent states, with the consequent dispersion of political authority, human rights constitute an array of internal justifications and criticisms, rather than a blueprint of the ideal society.

All the chapters in this volume draw on these fundamental ideas elaborated by Beitz and propose to extend them further in their connection with humanistic accounts of human rights, with the plurality of contexts in which the practice of human rights takes place, and finally, with the interconnections between these rights and global justice or intergenerational justice.

The chapters in this book were originally published as a special issue of Critical Review of International Social and Political Philosophy.

The practice and its authority: an elaboration

Charles R. Beitz

ABSTRACTA ‘practical’ theory of human rights should make sense of two claims: a ‘practice claim’ – that international human rights can fruitfully be regarded as an existing social practice – and an ‘authority claim’ – that participants in the practice have reasons to adhere to its norms. I elaborate both of these claims in this paper, taking into account important developments in the empirical study of international human rights in the last decade.

In The Idea of Human Rights, I proposed that we think of international human rights as an emergent normative practice of global scope (Beitz 2009, henceforth IHR). The main idea is that we should grasp the practice’s norms and the kinds of justification to which they are open by examining the ways they are appealed to within the practice’s discourse. According to a ‘practical’ view, human rights as we find them in the established international doctrine are norms suited primarily for the regulation of the conduct of states and indirectly for that of other agents. Their violation on a sufficient scale should be a ‘matter of international concern’ (Filártiga v. Peña-Irala, 1980, p. 881).

My starting point was that the subject of theoretical interest is the idea of human rights as it is expressed in the contemporary global discourse. Given this aim, it would be a mistake to impose upon an understanding of international human rights various notions derived independently of the practice – for example, the idea of ‘natural rights’ found in (one stream of thought in) the western tradition or the idea of human rights as protections based in the overlap of the political moralities found in the world today.

I shall not, however, discuss the contrast between these conceptions further here: I doubt that I can contribute anything constructive to the voluminous literature that has emerged in the last several years.¹ Instead, I shall concentrate on some first-order problems that any practical view of human rights should confront.

In parallel with the expansion of philosophical interest in human rights in recent years, we have also seen the emergence of an increasingly sophisticated social science of human rights. The empirical study of human rights has developed in ways one might not have imagined a decade ago. One can only be provisional in reporting the results of ongoing social science research, but I believe that some of what we have learned has implications for a practical conception of human rights – if only by helping to differentiate among alternative modes of human rights action and by inducing caution about what some of these modes can realistically aspire to accomplish.

In this essay, I take up two problems that face adherents of practical conceptions, in each case elaborating some views set forth in IHR. These are the subjects of my title – the idea that international human rights can fruitfully be regarded as a social practice and the claim that participants in the practice might have reasons to treat its norms as having authority for them. In the course of these comments I shall try to take account of what we might learn from recent scholarship in the social sciences.

Two problems

A practical theory of human rights should make sense of two claims.

First: There is an international or, better, a global ‘practice’ of human rights. The practice is constituted by widespread recognition of a set of norms as standards of practical judgment together with some characteristic modes of action for which violations of the norms may be taken as justifications. I described the norms as the ‘international doctrine of human rights.’ This is the ‘practice claim.’

Second: The norms of the practice can be sources of reasons for action for its participants. There may be occasions when the fact that a political agent violates or threatens to violate a norm of the practice would be a pro tanto justification for a participant in the practice to act. The practice’s norms can be authoritative for its participants. This is the ‘authority claim.’

Both claims are advanced in IHR but both now seem to me to need elaboration. Let me begin by offering three comments to place these claims in context.

First, when I speak of human rights, I mean the human rights of international practice. As I said earlier, I believe that we should distinguish between the idea of a human right as we find it within the public doctrine and the idea of a human right considered as an idea that can be given a sense independently of any reference to the public practice. The distinction between these ideas presented in IHR might have seemed to deny that there are such things as moral human rights in the second sense, even though I tried to be agnostic about this.² I remain skeptical that the contemporary global doctrine can plausibly be seen as justified by the kinds of reasons usually offered in support of what have traditionally been regarded as natural or fundamental rights – though, without refinement, these terms are too elastic to be confident. In any case, a practical theory need not deny that there are non-practice-dependent moral human rights. All we need is a recognition that we have a public normative practice in which a distinctive idea of a human right plays a central role. My interest is in grasping this latter idea.

Second, we should also distinguish between the human rights of international doctrine and the human rights of positive international law. Certainly, the legal texts are our most important sources in constructing the public doctrine. But for theoretical purposes, we need a notion of a public doctrine of human rights distinguishable from positive international law. One reason is that we should want to frame a conception of human rights that can make sense of a familiar kind of claim that human rights law should be revised to include or exclude some particular right. This sort of argument is common in the discourse of human rights and a practical theory needs to be able to make it intelligible.

Third, the notion of a global practice of human rights is significant in more than the obvious way. A striking sociological fact about the practice is that the discursive community includes people whose basic moral and political commitments are diverse. People often say that the language of human rights is the ‘lingua franca’ of global normative discourse (for example, Tasioulas, 2007, p. 75). It is worth remembering that, in its early-modern origins, ‘lingua franca’ referred to what linguists call a ‘contact vernacular.’ It was used by Mediterranean traders and was not anyone’s first language: it functioned, so to speak, as a bridge among speakers of different languages who needed a practical means to communicate (Kahane, 1976).

If the language of human rights really is a ‘lingua franca,’ then we should understand the public discourse as performing something like a bridging function among the variety of first-order political moralities accepted by participants in the practice. I do not mean that human rights are simply points of agreement in something like an overlapping consensus; that seems to me empirically implausible and in any case it obscures the politically progressive character of human rights doctrine. Still, it seems to me that the picture of international human rights as bridging first-order political moralities is close to irresistible once we grasp the diversity of the human rights movement and the aspiration of the framers of modern human rights – in Jacques Maritain’s well known if not transparent phrase – to state ‘practical conclusions which, although justified in different ways by different persons, are principles of action with a common ground of similarity for everyone.’³ That picture is reinforced by ethnographic studies of human rights activism that describe a process of ‘vernacularization’ or ‘norm translation’ in which ideas of human rights are used to redescribe, interpret, and generalize the causes of local struggles first stated in other terms (Merry, 2006b; Merry & Levitt, 2017).

These three points hang together. The fact that human rights is a public enterprise involving agents who accept diverse first-order political moralities helps explain why it is important to distinguish the human rights of the practice from practice-independent moral human rights, which might presuppose a background morality not always shared in the practice. It also helps explain why we should not identify the human rights of the practice with the rights of existing, positive international human rights law (IHRL). It is unrealistic to expect consensus within a practice about the content and extent of its norms. More likely, participants in a practice, although sharing a general conception of its purposes, will disagree about the content and interpretation of its norms. This is plainly the case for international human rights. The enumeration of human rights in IHRL as it exists at any particular time cannot be regarded as more than a draft statement of an emergent doctrine, open to dispute about its interpretation and reach.

What have we learned about the practice?

Philosophical writing about human rights can be surprisingly detached from the study of the subject in social science and history. Yet there have been advances in our empirical grasp of international human rights practice that could influence a philosophical conception. I shall return to the two problems I have distinguished, but first I offer some comments about what might be learned from social science and history.

For simplicity – realizing that the distinction is crude – I shall divide the empirical literature into two categories, the critical and the social scientific. The critical works I shall mention have attracted attention in the wider human rights community and beyond. The social scientific works are less conspicuous and more specialized but are essential to an assessment of the effects and value of the forms of political action that human rights violations are supposed to justify.

The critical works I have in mind will be familiar to many readers. The most visible contributions are skeptical critiques of the human rights enterprise by three writers, though of course there are others. Samuel Moyn wrote several years ago that the human rights movement faced a choice it was unwilling to make, between human rights as minimal constraints on state power and human rights as a ‘last utopia’ (Moyn, 2010, p. 227). More recently he has argued that human rights considered as a political movement is ‘not enough,’ specifically because it fails to embrace a social-democratic egalitarianism and might even distract from it (Moyn, 2018). Eric Posner wrote that human rights law has reached a ‘twilight’ in which it is least effective where it is most needed (Posner, 2014). Stephen Hopgood wrote, apocalyptically, that ‘Human Rights’ – that is, the global legal and social enterprise centered in the global North – has reached its ‘endtimes’ (Hopgood, 2013). The critiques differ in ways I cannot take time to describe. They share the idea that the human rights regime, including international human rights law and the complex of human rights institutions, organizations, and networks, is largely though perhaps not entirely ineffective in accomplishing the aims it sets for itself. All three writers sometimes suggest that it may even be retrogressive. Moyn and Hopgood hold that by displacing other forms of political action, human rights have enabled what they regard as neoliberal economic policies that work to the detriment of many of those whom human rights are supposed to protect. Posner holds that if the energy devoted to human rights were devoted instead to advancing economic development in poor societies, more people would live better lives.

I mention these works because they have attracted a good deal of attention. Each has been criticized on historical, empirical, and methodological grounds.⁴ Still, they all ask a question that theorists of human rights ought to take seriously. To put it in the simplest way, this is the question whethe...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• Introduction: Developments and Challenges for a Political Idea of Human Rights
• 1 The practice and its authority: an elaboration
• 2 Are human rights associative rights? The debate between humanist and political conceptions of human rights revisited
• 3 Human rights practices
• 4 Add international courts to The Idea of Human Rights and stir ... on Beitz’ The Idea of Human Rights after 10 years
• 5 Charles Beitz’ idea of human rights and the limits of law
• 6 Global (in)justice and the human right to housing. A practice-based approach
• 7 Which practice? — Rescuing the practical conception of human rights
• 8 Long-term urgent interests and human rights practice: a challenge to the political conception
• Index