Who has the right to be human? Towards a
critique of universal human rights
Name: Jasmijn Leeuwenkamp Student number: 10293582
Thesis for the fulfillment of the Research Master Philosophy Supervisor: H. Y. M. Jansen
Second reader: M. M. Leezenberg Words: 26169
University of Amsterdam August 2019
Table of Contents
Introduction
3
1
The universal promise in the idea of human rights
7
1.1
Anthropological assumptions on the nature of man
8
1.2
The moral foundation of the idea of universal human rights
13
1.2.1 Kant’s moral argument for respecting human dignity ... 14 1.2.2 Human rights as grounded in universal dignity ... 16
1.3
The political foundation of the idea of universal human rights
19
1.3.1 Kant on cosmopolitan rights ... 20 1.3.2 Human rights as a basis for a Law of Peoples ... 22
1.4
Conclusion
25
2
Questioning the universality of human rights
26
2.1
Questioning the ‘human’ that has ‘rights’
27
2.1.1 The notion of ‘humanity’ ... 27 2.1.2 Who declares who is human and what is right? ... 35 2.1.3 The right to have rights ... 41
2.2
From humanity to humanitarianism
43
2.3
Conclusion
49
3
Rethinking the universal in the idea of human rights
50
3.1
The call of the other
51
3.2
Creating and contesting human rights norms within democratic practices 54
3.2.1 Benahbib: embedding universal norms through democratic iterations ... 54 3.2.2 Subjecting human rights to democratic contestation ... 57
3.3
Conclusion
60
Conclusion
62
Introduction
We are currently witnessing a global trend of hardening migration policies, resulting in the repression, detention and death of more and more people on the run. In Libya thousands of people in the detention camps are at risk from militias, sickness and limited food and water supplies.1 In the United States people are contained under squalid conditions at border
detention centers – it has been reported that children are separated from adults, both are put in overcrowded cells where beds have been removed, and hunger, cold and sickness are widespread, leading even to the death of children in custody.2 On this policy, enforced by the
Trump administration in order to demotivate more migrants to cross the Mexican border, the president commented that these ‘illegal aliens’ are still ‘living far better now than where they came from.’3 For similar reasons the Dutch governing party (VVD) has proposed a plan, in
line with Italian policy, to criminalize efforts to rescue migrants in the Mediterranean Sea, ‘in order to prevent that rescue ships become ferry services’.4
What this trend illustrates is that even though there has been wide agreement for decades on the principle that everyone has inalienable human rights, an increasing part of the population in many Western countries seems to believe that it is necessary to sometimes violate some of those rights in order to keep ‘unwanted strangers’ out the door.5 In their eyes
it is legitimate to withhold from saving people from drowning, disease and poor living conditions, to separate parents from children, to keep people in deplorable circumstances in detention camps and to hunt them down and deport them, all on the ground that they are simply not welcome in ‘their’ territory. Some of them argue that because ‘they’ as a sovereign nation have the right to determine who comes in and goes out, and because these people also have a choice to go where they want, they have inflicted those ‘violations’ upon themselves. Therefore, when pictures of the washed-up bodies of a Syrian boy, and a father and daughter from El Salvador create a public outcry, it is objected that these incidents are really sad, but
1 Taylor, Diane. “Most Refugees in Libyan Detention Centres at Risk – UN.” The Guardian, 31 May
2019.
2 Romero, Simon, et al. “ Hungry, Scared and Sick: Inside the Migrant Detention Center in Clint, Tex.”
The New York Times, 9 July 2019.
3 Kanno-Youngs, Zolan. “Trump Says Migrants Are ‘Living Far Better’ in Overcrowded Border
Facilities.” The New York Times, 3 July 2019.
4 Boon, Floor. “Plan om redden van migranten op zee strafbaar te stellen splijt coalitie.” NRC, 3 July
2019.
5 Lucassen, Leo, and Tineke Strik. “Mensenrechten Moeten Weer Leidend Worden in Het
ultimately the responsibility of the migrants themselves. In other words: although everyone has human rights, this does not mean that all of us have direct duty to uphold these rights.
This line of argument points out that civil rights (such as the right to nationality, which ironically is also a human right) still too often trump human rights (such as the right to life and the right to freedom). Therefore it seems that Hannah Arendt’s observation that human rights are only valuable when there is a more basic and unconditional right to have rights has not lost its relevance.
Rights that should have been universal and inalienable can somehow not be guaranteed once people are unwelcome strangers. How is this possible in a time when the discourse of human rights flourishes?6 Why exactly are these basic rights of the refugees at
the borders of Europe and the United States not upheld by some of the most powerful states that explicitly identify themselves with the basic liberal values on which these rights are grounded?
Arendt has pointed out that the abstract human being that is the subject of human rights did not seem to exist at the time when they were drafted, for in the Eighteenth century it was assumed that every person naturally belonged to a nation, a civil society. Therefore the vast amount of stateless people that emerged in the Second World War had no political entity to accord them any rights at all. Human rights were only conceived as the ‘natural’ (pre-political) ground for civil rights.
This perception changed after the second world war: the 1948 declaration was first and foremost a reaction to the horrifying events of the first half of the twentieth century, explicitly specifying the prohibition to discriminate between people on the basis of ‘race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.7 Moreover, a larger political body (The United Nations) and
international organization (Human Rights Watch) were put in place to guarantee the upholding of every person’s human rights by states and to prevent future violations.
However, the original declarations were largely adopted in the new declaration, leaving the essential idea of universal human rights intact. Although the new document contained all sorts of new rights and more sophisticated specifications (more of which have been added the decades thereafter), the premises that undergird the idea of declaring universal and inalienable human rights were not questioned. The fact that the idea of human rights emerged within a context of European imperialism and revolutionary nationalism was not considered as relevant for the universal truth of inalienable human rights. The lack of a supranational body to enforce the rights of man was considered to be the main reason for the
6 Moyn, 2010: 1.
massive loss of rights during the two world wars. In fact, the human rights discourse that is currently flourishing in political and academic debates is a narrative of continuing moral progress, beginning in the Enlightenment period.8 The essential idea of human rights,
according to which they are natural, equal and universal,9 is still regarded as an evident truth
that was discovered in the Eighteenth Century.
Moreover, as human rights are also invoked by powerful states in legitimizing their use of violence against less powerful states, supposedly in order to ‘protect’ people from ‘illegitimate’ power,10 the question of power cannot be fully distinguished from the question
of right.11 Therefore, to understand why human rights are universal in theory but not in
practice, it is crucial to look at the essential idea of universal human rights and reflect on the question what this universality actually means and what it implies. This is a different question than trying to figure out why the legal human rights practice is not successful in realizing its universal promise in practice. The aim is rather to gain insight into the geo-political context of and philosophical ground for the act of declaring a definitive set of normative principles that belongs naturally to every member of the human species. What does it mean that rights can be declared universally, and how can this explain the simultaneous failure to protect the human rights of everyone in the world? Or, to summarize my research question: can the premises that underlie the universal promise of the idea of human rights explain the failure to universally grant human rights in practice, and if so, how?
In order to answer to this question I will first explain what I mean by ‘the idea of human rights’ and show how it encompasses a universal promise on the basis of the dignity of every human being in virtue of their rationality, by looking at the origins of the dominant idea of human rights, that start in the Eighteenth Century. I will focus on three sorts of claims that together ground the idea that all people have universal human rights: the anthropological notion that every human being is naturally free and equal, the moral argument that this freedom (and dignity) can only be retained by subjecting one’s reason to the universal law, and the political argument that such moral progress can only be fulfilled when international laws guarantee peace and justice between peoples (Chapter 1).
I will then go on to argue that within the idea of human rights there is an inherent tension: because notions like ‘humanity’ and ‘rights’ are based on the essentialist principle of rationality, in the aim to abstract from particularities and to be definitive, this very principle becomes a mechanism of exclusion. This is the case because, firstly, it is intrinsically linked
8 Hunt, 2007: 21-2; Asad, 2015: 390-1. 9 Hunt, 2007: 20.
10 Asad, 2000; Moyn, 2018: ix-x. 11 Perugini & Gordon, 2015: 10.
to the idea of civilization and civil rights, and secondly because it sets the enunciator of these rights and principles above all scrutiny. As such, the abstract notions are presented as neutral and universal but in reality they become whatever the enunciator meant with them, which, in the case of the ‘human’, has always been ‘civilized’ and ‘people like me’ – i.e. those who the enunciator regards as being just as rational as himself. In this way, a moral distinction emerges between the ‘civilized’ and the ‘lawless’ people(s) that serves as a precondition for being accorded any rights at all (Chapter 2).
The problem as I lay it out in chapters one and two is thus that a too strong connection is being made between notions of civility and notions of humanity, which results both in the misrecognition of human rights of people who are not perceived as civilized or as full citizens and in the misrecognition of rights violations on the side of those who are perceived as belonging to the more advanced civilizations. In order to overcome this tendency within the idea of human rights, I will argue that human rights should be rethought as being grounded people’s concrete humanity, which is not based on an abstract principle but rather grounded in their particularity, their difference and identity, which comes to the fore when one is aware of ‘the call of the other’ – a notion that was coined by Emmanuel Levinas and has been taken up by Gayatri Spivak. I will also discuss the possibility of promoting this alternative view through the reiteration of human rights norms within democratic practices by looking at the work of Seyla Benhabib, James Tully and James Ingram (Chapter 3).
I will conclude that human rights must be radically reinterpreted both conceptually and practically in order to avoid being part of the same problem it wants to avoid: the subjection, oppression and exclusion of people who are seen as a threat to the global flourishing and propagation of human rights. The aim of this thesis is to contribute to a deeper understanding of the anthropological, moral and political presuppositions that are inherent in the idea of human rights, so that instances where human rights are instrumentalized for the legitimizing oppression can be recognized and dismantled.
1 The universal promise in the idea of human rights
One of the essential features of human rights is that they are universal: human rights apply unconditionally to everyone in every part of the world. This universality is already present in the first documents proclaiming universal human rights: the 1776 American Declaration of Independence and the 1789 French Declaration of the Rights of Man and Citizen. These eighteenth-century declarations strictly did not proclaim internationally binding human rights, as they were the products of popular revolutions and the beginning of republican constitutions. However, the declarations both invoked the universal language of the Enlightenment by proclaiming that ‘all men are created equal’ and in virtue of this equal creation ‘they are endowed by their Creator with certain unalienable Rights’, and that ‘among these are Life, Liberty and the pursuit of Happiness.’12 As such, these declarations can be
seen as incarnating the promise of universal human rights,13 which makes them in this respect
predecessors to the 1948 Universal Declaration of Human Rights, the first Article of which similarly reads: ‘All human beings are born free and equal in dignity and rights’.14
However, despite the revolutionary character of these first demands for universal equality and liberty, the direct consequences of the eighteenth-century declarations were far from inspiring for the postwar Declaration. In the United States slavery was still largely endorsed and the new French government infamously reigned with repression and terror.15
The drafter of the 1776 Declaration, Thomas Jefferson, was a slave owner himself, but still thought it self-evident that all men were born equal and free. It is therefore not at all clear why these rights were endorsed as ‘self-evident truths’ in the first place, or in the words of Lynn Hunt: ‘How did these men [the founders, framers and declarers], living in societies built on slavery, subordination, and seemingly natural subservience, ever come to imagine men not at all like them and, in some cases, women too, as equals?’ In order to understand to what extent the contradiction between the idealist principles and the personal lives of the drafters of human rights can be explained as either a matter of historical context (at the time slavery and sexual inequality were commonplace), or rather as a flaw inherent in the very idea of universal human rights, it is important to ask the question on what assumptions the idea of universal rights is based.
The aim of this chapter is therefore to unfold the theoretical assumptions that lie behind the universal claim that is central to the idea of human rights. Other than providing a historical overview, I aim to delineate the interconnected assumptions regarding human
12 US, 1776. 13 Hunt, 2007: 17.
14 UN General Assembly: Art. 1. 15 Hunt, 2007: 18.
nature, morality and justice that together lead to the ‘self-evident’ idea that human rights are universal. The central assumptions on which I focus, which correlate to the three subchapters, are respectively the anthropological perspective on human nature (all human beings are born free and equal in dignity and right) (1.1), the moral status of every human being (all human beings are ends in themselves) (1.2), and the political freedom of every subject (everyone should have a set of basic rights in order to not just be subject to laws but also be author of them) (1.3).
These assumptions are not so much a reflection of the general conception of the status and rights of man from the eighteenth century onwards,16 but they can rather be seen as
constitutive parts of the three qualities of human rights - human rights are thought to be natural or inalienable, equal and universal.17 I correlate these three aspects to the three
aforementioned approaches: I will argue that anthropological notions are at the basis of the idea that human rights are natural, that moral arguments lead to them being universal, and that political arguments lie at basis of them being equal. Not coincidentally, the majority of texts on which this chapter is based stem from the Enlightenment,18 particularly Kant. They
are fundamental for political liberalism, ‘which is inspired by John Rawls but has its origins in the practical philosophy of Immanuel Kant and Jean-Jacques Rousseau’.19
1.1 Anthropological assumptions on the nature of man20
It is important to see that the core ethical and political ideas that are expressed in the idea of human rights found their legitimation in particular ideas concerning human nature – ideas concerning the natural capacities and predispositions of human beings (the ‘original constitution’ of man), the ‘destiny’ or ‘vocation’ of humanity, and the ‘inherent dignity’ of man. The fact that these notions ground human rights is apparent from the first statement of the preamble of the 1948 Declaration: ‘Whereas recognition of the inherent dignity and of the
16 In fact, no English speaker used the term ‘Enlightenment’ until the end of the Nineteenth century
(Chadwick, 1990: 144).
17 Hunt, 2007: 20.
18 Although I agree with Hunt’s worry that the diffuse history of the ubiquitous human rights discourse
very often runs the risk of being identified with the history of Western civilization (Ibid.), it is for my aim necessary to focus solely on the Western Enlightenment, as the legacy of this historical period functions largely as a ‘myth of origin’ for the liberal rights framework and is appropriated as such by Western liberals in order to construct hierarchies of development.
19 Lutz-Bachmann, 2014: 10-11.
20 As I will discuss in the next chapter, the sole use of masculine pronouns for the universal notion
‘human’ is problematic from a feminist point of view. However, I will keep using them in this chapter, as it reflects the language of the first human rights documents and the conceptual language of Enlightenment philosophers.
equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.21 The importance of this anthropological22 (and religious)23
foundation is also evident in the first Article of this declaration, which reads: ‘All human beings are born free and equal in dignity and in rights. They are endowed with reason and conscience […].’24 It thus seems that particularly the idea that all human beings possess
human rights solely in virtue of their human nature, has not changed since the Enlightenment.25 We must therefore ask the question: what are its premises?
In this paragraph I will show how the concepts ‘freedom’, ‘equality’, ‘reason’ and ‘dignity’ have been related to (natural) ‘rights’ in the Enlightenment conception of human nature, from which the universal moral and political principles in the idea of human rights directly followed. As ideas concerning human nature are necessarily universal (as species essences are timeless), the anthropological basis of human rights creates a solid ground for regarding human rights as universal truths. Rousseau was very aware of this: ‘Since my subject concerns man in general, I will attempt to speak in terms that suit all nations, or rather, forgetting times and places in order to think only of the men to whom I am speaking […].’26 In other words: the universal moral and political principles that constitute the idea of
human rights are grounded in essentialist notions.
The idea that human beings are born free and equal, now a moral platitude, seems to be mostly grounded in ideas regarding the pre-political state of nature. According to the early modern philosophers, the state of nature can be reconstructed through the use of common sense and shows us principles on the basis of which a totally different moral and political order can be thought. As Locke states in Two Treatises of Government: ‘To understand political power right, and derive it from its original, we must consider what state all men are
21 UN General Assembly, 1948: Preamble. Emphasis added.
22 Anthropology here refers to the pre-modern understanding of the term, denoting ‘the study of man’.
In the next chapter the term is also used to denote the modern scientific discipline, which rather denotes the study of (foreign) peoples: ethnography.
23 To a large extent, the Enlightenment ideas concerning the nature of man have religious origins.
Sometimes this can be seen in explicit formulations, for example in the US Declaration of Independence, which states that ‘all men are created equal, that they are endowed by their Creator with certain inalienable Rights’ (US, 1776).
24 UN General Assembly, 1948: Art. 1.
25 Recent scholars today still see this as the basis of human rights (Cruft et al., 2015: 4-5).
26 Rousseau, Jean-Jacques. “Discourse on the Origin and Foundations of Inequality Among Men.”
In: Basic Political Writings of Jean-Jacques Rousseau, translated and edited by Donald A. Cress, Hackett, 1987: 39. Hereafter cited as: Discourse.
naturally in’.27 This state of nature, in which man is in all cases free and equal,28 served as a
critical tool to criticize the political power of the status quo, social inequality by birth and slavery. The Enlightenment philosophers argued, most notably Rousseau, that the idea of there being a natural foundation to the different ranks in society is a false construction of civil society, as man in the state of nature was originally free and thus equal to all other creatures. As Rousseau famously stated in The Social Contract: ‘Man was born free, and everywhere he is in chains.’29 Although this statement has been widely perceived as a direct inspiration for
the French Revolution and the French Declaration, the idea conveyed here seems to contradict the first article of this very Declaration, which reads: ‘Men are born and remain free and equal in rights.’30 Whereas Rousseau argued that civil society is the cause of the enslavement
of man and that all inequality stems from the false belief that some have the right to govern over others, the Declaration asserts that man in society is and will remain free. How, then, should we interpret this latter statement?
It seems that the Declaration aims to safeguard the natural freedom and equality of every human being precisely by being proclaimed. This aim is in line with Rousseau’s view that a person’s natural freedom can only be preserved by granting everyone equal political freedom. He writes in The Social Contract: ‘To renounce our freedom is to renounce our character as men, the rights, and even the duties, of humanity’.31 He suggests that the only
way to legitimately confine one’s natural freedom is by equally and collectively renouncing it, so that all members retrieve their freedom through the common will (they regain a political form of freedom). He explains this as follows:
[…] each in giving himself to all gives himself to none, and since there are no associates over whom he does not acquire the same rights as he cedes, he gains the equivalent of all that he loses, and greater strength for the conservation of what he possesses.32
27 Locke, “Two Treatises of Government.” In: Two Treatises of Government and A Letter Concerning
Toleration, edited by Ian Shapiro, Yale University Press, 2003: 101. Hereafter cited as Two Treatises.
28 Locke, Two Treatises: 101; Rousseau, Discourse: 33, 44; Kant, “Conjectural beginning of human
history.” Translated by Allen W. Wood. In: Anthropology, History, and Education, 2007: 168, 170 [8:114-5, 117-8]; “Metaphysics of Morals.” In: Practical Philosophy. Translated and edited by Mary J. Gregor, Cambridge University Press, 1999: 393 [6:237]. Hereafter cited as Metaphysics. Page numbers within brackets refer to the volumes of the Berlin Academy Edition of Kant’s works.
29 Rousseau, Jean-Jacques. “The Social Contract.” Discourse on Political Economy and The Social
Contract. Translated by Christopher J. Betts, Oxford University Press, 1999: 45. Hereafter cited as Contract.
30 France. Declaration of the Rights of Man and of the Citizen, 1789, Art. 1. Emphasis added. 31 Rousseau, Contract: 50.
This passage illustrates how the relation between natural freedom and equality and political rights is thought: the natural freedom of human beings can only be renounced legitimately in the form of democracy, where everyone is equally author and subject to the rights. This ‘social contract’, is in essence a thought experiment in which human beings move from the state of nature to civil society. Human rights seem to have a similar status: they are regarded as self-evident because everyone would immediately agree to them in a fictional pre-political situation. I will return to this idea of an original contract, of which one of the most influential representatives is John Rawls, when discussing the political argument for universal human rights. What is important here is the fact that the universal freedom and equality of human beings refers to a natural state, which is conceptually outside the realm of politics, and can eventually only be translated into a political (i.e. civil) freedom. In Rousseau’s words: ‘What man loses by the social contract is his natural freedom and an unlimited right to anything by which he is tempted and can obtain; what he gains is civil freedom and the right of property over everything that he possesses.’33 This indicates that a universal freedom (and equality) is
exchanged for a civil freedom.
Natural freedom seems to denote the unique status of human beings in comparison to (other) animals. According to Rousseau human beings are different from animals in two respects: first, they have the power of willing (natural freedom) and second, they have the faculty of self-perfection (which resides in the individual and in the species), whereas animals are fully determined by the laws of nature.34 As Rousseau writes: ‘Nature commands every
animal, and beasts obey. Man feels the same impetus, but he knows he is free to go along or to resist.’35 In short: man is different from animals in having a free will.
At first glance, Rousseau’s position on the natural distinction between humans and animals seems to be in line with other Enlightenment thinkers such as Kant, who writes:
Nature has willed that the human being should […] participate in no other happiness or perfection than that which he has procured for himself free from his instinct through his own reason. […] Since it gave human being reason, and the freedom of the will grounded on it, that
was already a clear indication of its aim in regard to that endowment.36
However, Kant here emphasizes an aspect of human nature that is crucial for the idea of human rights, which Rousseau leaves out: the fact that man is ‘endowed with reason and
33 Ibid.: 59.
34 Rousseau, Discourse: 45. 35 Ibid.
36 Kant, “Idea for a Universal History with a Cosmopolitan Aim.” Translated by Allen W. Wood. In:
conscience.’37 Rousseau differs from Enlightenment theorists in two important ways: first, he
thinks that it is not so much reason that characterizes human nature, but two principles which man has ‘naturally’ and prior to reason – the love of oneself (amour-de-soi) and pity (compassion).38 Second, as man is naturally moral, Rousseau believes that we do not need
reason to arrive at moral principles.39 Especially in this latter respect he contradicts the
general view of the Enlightenment and the idea of human rights, because a central premise of both is that human beings are naturally endowed with reason and in virtue of this rationality should be treated with respect. Or, to put it in Kantian terms, all human beings insofar as they are rational beings that reflect on their actions, have dignity. Kant writes:
The fact that the human being can have the “I” in his representations raises him infinitely above all other living beings on earth. Because of this he is a person, and by virtue of the unity of consciousness through all changes that happen to him, one and the same person – i.e., through rank and dignity an entirely different being from things, such as irrational animals, with which one can do as one likes.40
The idea that man has dignity in contradistinction to animals because he has reason and consciousness is already present in the renaissance text Oration on the Dignity of Man of humanist Giovanni Pico Della Mirandola. He thought that the dignity of man consists in his capacity to transcend the natural constraints of nature through his free will and intelligence in order to develop into a higher form of being.41 However, it was Kant who asserted that the
inherent dignity of man (as a rational being) created the moral duty of respecting the autonomy and natural rights for other human beings.42 For Kant dignity similarly refers to the
possibility to create one’s own ends apart from what nature ‘wills’. It is the possibility to ‘civilize’ oneself. However, the only way to do so is by making the ‘universal law’ that arises from pure reason one’s maxim.43
37 UN General Assembly, 1948: Art. 1.
38 Ibid.: 35. From the combination of these two principles, Rousseau argues, all rules of natural law
flow.
39 Ibid.: 53, 55.
40 Kant, “Anthropology from a pragmatic point of view.” Translated by Robert B. Louden. In:
Anthropology, History, and Education, 2007: 239 [7:127]. Hereafter cited as Anthropology.
41 Mirandola, Giovanni Pico della. Oration on the Dignity of Man. Translated by A. Robert Caponigri,
Henry Regnery Compny , 1956 [1496]: 7. Hereafter cited as Oration.
42 See: Kant, Groundwork of the Metaphysics of Morals. Translated by Mary Gregor, Cambridge
University Press, 1998: 42 [4:434]. Hereafter cited as Groundwork.
However, as this is part of morality and not of anthropology, man in the state of nature does not yet have this status. According to Kant, man must first be able to rise above his mere inclinations in order to find a higher moral principle – an effort that does not come naturally (Kant thought that human beings have a natural propensity to evil)44. Hence, although Kant
follows Rousseau in making a distinction between natural freedom and political freedom, he calls the former ‘mad’ or ‘lawless’ freedom and the latter ‘rational’ freedom. In contrast to Rousseau, Kant describes natural freedom in pejorative terms: ‘we now regard with profound contempt, as barbarous, crude, and brutishly degrading to humanity, the attachment of savages to their lawless freedom, […] preferring a mad freedom to a rational freedom […].’45
What is important here is the fact that although human beings are ‘free and equal in dignity and in rights’ and ‘endowed with reason and consciousness’ simply in virtue of their humanity, this freedom and equality seem to refer to an initial state of nature, which necessarily had to develop into a ‘civil state’. In this civil state human beings have equal rights through their equal status as citizens. They act in accordance to the laws that follow the principles of reason – ‘replacing instinct by justice,’46 and move ‘from crudity toward
culture’47 – in order to ascend to the status of having dignity, which is the end of the human
race as a whole.48 As such, the universal status of all human beings seems to refer to a
conceptual state of nature that serves as an anthropological ground for asserting ethical and political ideas, rather than to an actually existing status.
1.2 The moral foundation of the idea of universal human rights
Now that I have outlined the anthropological premises on which the first articles of the human rights declarations seem to be based, I will show how the moral argument that every human being deserves equal respect on the basis of his inherent dignity, follows from them. I will mainly discuss the ideas of Kant, as his moral theory has been an important source for the idea of moral cosmopolitanism that is central to the idea of human rights.49 I will also discuss
more recent interpretations of the Kantian argument, where the notion of dignity is put in the center of the idea of human rights. The central claim that is crucial here is that because all
44 Kant, Religion within the Bounds of Bare Reason, 2009: 31 [29].
45 Kant, Toward Perpetual Peace. In: Practical Philosophy, 1999: 326 [8:354]. Hereafter cited as
Perpetual Peace.
46 Rousseau, Contract: 59. 47 Kant, Idea: 111 [8:21].
48 Kant, Lectures on Pedagogy. Translated by Robert B. Louden. In: Anthropology, History, and
Education, 2007: 475-6 [9:488-9].
human beings have the rational capacity to set moral principles and ends for themselves, they have to treat all other human beings never as means but as ends in themselves, i.e. as having inner worth or dignity. As human rights are regarded to be the most general ends of all people, it follows that these rights are to be always respected. The central question is then: do all human beings according to Kant deserve equal respect solely for their humanity, or only when they are ‘moral’ (which means for Kant: lawful or civilized)?
1.2.1 Kant’s moral argument for respecting human dignity
According to Kant, nature has not endowed man with reason and a free will for the mere end of self-preservation or happiness, but the ‘true vocation of reason must be to produce a will that is good’, as reason can influence the will.50 Here we see how the anthropological view of
man serves as a teleological explanation of Kant’s moral theory: the fact that man has reason shows that his ‘aim’ (telos) is of a higher order than to merely satisfy the natural (animal-like) needs. However, morality itself according to Kant must be thoroughly separated from everything empirical, as it is grounded in pure reason (a priori principles) rather than in contingent inclinations.51 For Kant, just like the laws of nature are the universal principles
along which all contingent events are structured, there is a universal moral law that necessitates human behavior in the form of duties. This moral law is universal precisely because it does not depend on contingent circumstances: it is a logical principle in the form of an absolute duty (a ‘categorical imperative’) that can be derived solely from concepts of pure reason. Kant writes:
[…] all moral philosophy is based entirely on its pure part; and when it is applied to the human being it does not borrow the least thing from acquaintance with him (from anthropology) but gives to him, as a rational being, laws a priori […].52
50 Kant, Groundwork: 8-10 [4:395-6].
51 Ibid.: 2 [4:388]. In the Groundwork, Kant first departs from common moral judgment (and
teleological principles) in order to distil from this the highest principle of morality, after which he checks this highest (pure) principle by applying it to common knowledge.
52 Ibid.: 3 [4:389]. The rest of the sentence reads: ‘which no doubt still require a judgment sharpened
by experience, […] for the human being is affected by so many inclinations that, though capable of the idea of a practical pure reason, he is not so easily able to make it effective in concreto in the conduct of his life.’ Here we can see that although this law applies universally (to all rational beings), not everyone will be experienced enough to acquire these principles themselves and put them into practice. See also: 17 [4:404].
The will that binds itself to these a priori laws, the representation of which can only appear in rational creatures,53 can then be called ‘good’, but only insofar as it conforms to them for the
sake of the law itself (as an imperative), and not coincidentally.54
Kant then asserts that there is one highest principle – the categorical (unconditional/universal)55 imperative (law)56 – which holds that one ought to ‘act only in
accordance with that maxim through which you can at the same time will that it become[s] a universal law.’57 What is crucial is that Kant emphasizes that this principle is not derived
from human nature, but simply applies to all human beings because it holds for all rational beings.58 Kant then concludes that as all rational beings must be able to conform their
individual will, which is free – i.e. creates its own ends, apart from what nature ‘wills’ (Kant calls this the principle of autonomy of the will)59 – to the universal command. In order for this
command to be universal, the command must conform itself conceptually to the free will of a rational being as such. This means that the command must necessarily treat all rational beings in principle as ends in themselves,60 which makes human beings naturally objects of respect.
Human beings have inner worth, or dignity,61 in contradistinction to things, which only have
relative value.62 Therefore, Kant suggests, we should always act in conformity with ‘the idea
of humanity as an end in itself.’63 In this latter idea the connection with human rights
becomes clear: if morality commands that we should treat all humans as ends in themselves, because they have inherent dignity, then this can serve as a strong foundation on which more particular human rights (ends everyone agrees on) can be based.
53 Ibid.: 14 [4:401].
54 Ibid.: 3 [4:390]; 10 [4:396]. 55 Ibid.: 27 [4:416].
56 Ibid.: 24 [4:413].
57 Ibid.: 31 [4:421]. This is the first of three formulations of the categorical imperative. A similar idea
can be found in Spinoza’s Ethics: ‘men who are governed by reason – that is, men who, from the guidance of reason, seek their own advantage – want nothing for themselves which they do not desire for other men. (The Ethics, in: A Spinoza Reader: the Ethics and Other Works. Edited and Translated by Edwin M. Curley, Princeton University Press, 1994: 210 [Book VI, prop. 18].
58 Interestingly, Kant was utterly convinced that intelligent life exists on other planets as well (Louden,
2011: xx). This explains why he repeatedly speaks terms of ‘rational beings’ instead of human beings. Kant writes for example: ‘its law [of morality] is so extensive in its import that it must hold not only for human beings but for all rational beings as such’ (Kant, Groundwork: 20 [4:408]).
59 Kant, Groundwork: 41 [4:433]. 60 Ibid.: 35-37 [4:426-8].
61 Ibid.: 42 [4:434]. 62 Ibid.: 37 [4:428]. 63 Ibid.: 38 [4:429].
The dignity of human beings is based on the fact they are ‘endowed with reason and consciousness’. This is apparent following passage:
Now, morality is the condition under which alone a rational being can be an end in itself, since only through this is it possible to be a lawgiving member in the kingdom of ends. Hence morality, and humanity insofar as it is capable of morality, is that which alone has dignity.64
The question is, however, what Kant means with ‘humanity insofar as it is capable of morality.’ The point is that it is not clear if and how people who are not deemed to be fully rational (children, mentally disabled people, etc.) are regarded as having inner dignity, because morality is not grounded in human nature as such, but in rationality, ‘purified’ from all that is natural in man. This becomes even more questionable when we look at passages where Kant speaks in highly negative terms about the ‘human part’ of humanity. For example in the Metaphysics of Morals, where he argues that ‘moral cognition of oneself will, first, dispel fanatical contempt for oneself as a human being (for the whole human race)’ because it contradicts the ‘noble predisposition to the good in us, which makes the human being worthy of respect’ and which comes from ‘the human being himself, but not the humanity in him’.65
This means that for Kant the ‘vocation of reason’ is aimed not so much at reducing the suffering of all human beings in the world, but rather at the moral progress of the species as a whole through moving from the natural human instincts (mad freedom) to the nobler moral predispositions that reason demands (rational freedom). I will come back to this point in the next chapter. I will first address how this line of argument has become restated in more recent human rights theory.
1.2.2 Human rights as grounded in universal dignity
Although the idea of universal rights has a history dating back to at least the Eighteenth century, the idea of universal human dignity only gained its practical and political significance after the Universal Declaration of Human Rights of 1948 was declared along with its preamble, which opens with the words: ‘[w]hereas recognition of the inherent dignity and of the equal and inalienable rights of all members is the foundation of freedom, justice and peace in the world.’66 Especially since the last couple of decades, the idea that human
dignity is the foundation of human rights has become increasingly influential.67 In order to
64 Ibid.: 42 [4:435].
65 Kant, Metaphysics: 562-3 [6:441-2]. Earlier in this text he makes the distinction between the human
being in terms of his capacity for freedom (homo noumenon) and as affected by physical attributes (homo phaenomenon), 395 [6:239].
66 UN Assembly, 1948, preamble. 67 Düwell et al., 2014: xviii.
philosophically ground this idea, several authors have recently argued that the Kantian idea of dignity is or at least should be the (secular) ground of universal human rights.68 I do not aim
to get into the vast debate on whether human rights need a philosophical foundation at all and if dignity would be suitable for this, however. For now, I only want to show how recent moral arguments in favor of grounding human rights on dignity continue to universalize the human being on the basis of its status of a rational or lawful agent.
One influential perspective has been provided by Jürgen Habermas, who argues that human dignity must be seen as the ‘moral source’ from which all the basic rights derive their meaning and, as such, functions as a ‘portal’ through which ‘the egalitarian and universalistic substance of morality is imported into law.’69 According to Habermas, human dignity has
implicitly fulfilled this role for quite some time: a ‘conceptual connection has existed from the very beginning.’70 He suggests that this implicit role of dignity was usually negative:
social and civil rights have historically been demanded by groups in response to experiencing a lack of respect within the larger community, which can be seen as being rooted in the idea of demanding equal dignity to the status quo.71 The logical form of the categorical imperative
resonates in Habermas’ conception of dignity as legal status of equal citizens:
“Human dignity” performs the function of a seismograph that registers what is constitutive for a democratic legal order, namely, just those rights that the citizens of a political community must grant themselves if they are to be able to respect one another as members of a voluntary association of free and equal persons.72
Similar to Kant, Habermas links human dignity to a legal status, although not in the form of ‘moral law’ but civil law. Importantly, Habermas also sees human dignity as a status that must be accorded to all other members with which one is in a lawful (moral or legal) relation in order for this lawful situation to be effective. As such, the respect that is demanded by appealing to equal dignity is mostly something that must be ‘self-created’ and ‘protected’ in a specific political (national) order.73 This seems to make the dignity of those outside of this
legal relation (non-nationals) at least irrelevant.
68 See, for example: Simmons, 2001; Griffin, 2008; Habermas, 2010; Kateb, 2011; Düwell, 2014;
Lutz-Bachman, 2014.
69 Habermas, 2010: 469.
70 Ibid.: 466. Habermas suggests that this justifies the considerable temporal difference between the
emergence of the notions human rights and human dignity.
71 Ibid.: 467-468. 72 Ibid.: 469. 73 Ibid.: 473.
Marcus Düwell has recently argued for a similar role for human dignity. He also suggests that the notion, despite its hierarchical74 and religious75 connotations in history,
should be understood as ‘a status which other human beings and political institutions have to respect.’76 Following the footsteps of Kant, he argues that human dignity must be interpreted
as a principle according to which one must ‘respect human beings in their possibility to live a life appropriate to a being with autonomous capacities’77 (the ability to subject oneself to the
maxims that derive from reason’s recognition of the moral law). From this definition he derives the principle that duties to protect the necessary conditions to live an autonomous life justify ‘duties to protect the general conditions that are required for an autonomous life.’78
Notwithstanding the general importance of such conditions, I do worry that such a duty to protect autonomous life can easily be translated into the ‘duty’ taken up by liberalists to perform violent ‘humanitarian interventions’ (civilizing missions) abroad or ‘protect’ the liberal ‘way of life’ at home (xenophobic sentiments). Moreover, as Düwell also wants to ground human rights on human dignity, the latter must necessarily be attributed to agents who have the status of a rightsholder, which he defines as ‘the capacity to respect or disrespect rights’.79 As will become clear in the next chapter, it is especially such a ‘capacity’ that has
led to the idea that ‘lawfulness’ (civilization) must be a precondition for respect, dignity and rights.
Matthias Lutz-Bachman has also used the concept of a relational status of the human, instead of anthropological notions, as a moral ground for human rights. He argues in line with Kant that we need a ‘pre-political right’ to serve as a foundation for our norms (one moral principle), because ‘a normative contract is binding to all parties when the bearers […] are also recognized as subjects of original rights that enable each other to establish a universally valid contract’.80 He also thinks that this ‘fundamental right’ does not get its standing from
‘the anthropologically-described “nature” of humans’ but ‘from our moral self-awareness in intersubjective action in the form of a “rational insight”’ that we gain through interactions with others.81 He means with this ‘insight’ the tendency to ascribe to others ‘the real
possibility of the freedom of their will and action in relation to our own will and others.’82 In
74 Düwell, 2014: 25-26.
75 See, for example, Moyn, 2015. 76 Düwell, 2014: 27. 77 Ibid.: 30. 78 Ibid. 79 Ibid.: 34. 80 Lutz-Bachmann, 2014: 16. 81 Ibid.: 17. 82 Ibid.
other words: we assume that everyone is an end in itself. From this ‘highest, most necessary, valid and universally first ethical principle for the recognition of all other human beings’ Lutz-Bachmann derives three juridico-political principles which correspond to the existing human rights.83 The point is that Lutz-Bachmann, like Habermas and Düwell, thinks
primarily of human beings as other parties in a legal contract, which is based on the equal status of human beings as rational agents. Human rights are then conditioned on a person’s capacity to be lawful (responsible), and creating a legal and political (social) contract in which everyone can be allocated equal rights is thought to be the best way to implement them.
1.3 The political foundation of the idea of universal human rights
The idea of human rights is obviously first and foremost a political concept: it presupposes a set of general rights to which all people are equally entitled and to which all states can agree. These principles are thought to follow either, directly from anthropological notions, in the form of natural rights (natural rights view), or, from moral theory, as civil and cosmopolitan rights that follow from the equal status of dignity that belongs to free and rational beings (moral foundationalist view), or, they are regarded as inherently valuable, regardless of their anthropological, metaphysical or moral origin (pragmatist view). In the first view, human rights are assumed to directly follow from human nature, in the second, they are presupposed in human interaction, and in the third view they are accepted solely for their practical use.
Although these positions entail important differences in their conclusions, I do not believe that their conceptual distinctions are as rigid as their proponents suggest. For example, we saw that a natural right theorist like Rousseau thought that the only way to legitimately constrain some of the natural rights (the right to freedom, self-preservation) is to co-create a social contract in which these rights become political (an argument that also comes back in Locke and Hobbes). Here the moral idea of the need to presuppose an equal status for the foundation of norms intertwines with anthropological notions. Also, even though both the Kantians and the pragmatists claim that they do not want to assume a natural foundation for human rights, there does seem to be an implicit characterization of the human in both cases: a thoroughly rational actor that only aims to realize his own ends. This shows that the distinction between ideas concerning human nature and ideas concerning rights, norms and justice are less sharp than some want to maintain.
I think that there is actually an important overlap between these different approaches, namely the view that all human beings, as being naturally endowed with consciousness and a free will, would rationally commit themselves to a common civil law through which they are
allotted equal (human) rights. What is universal is thus the possibility to make the ‘rational’ choice to leave the state of nature and become ‘civil’.
1.3.1 Kant on cosmopolitan rights
The reason why Kant is also an important source for understanding the political idea that underlies universal human rights is that he was one of the first to argue for the need for cosmopolitan right in The Metaphysics of Morals and Toward Perpetual Peace.84 In these
texts Kant discusses three forms of public right: the right of citizens of a state (ius civitatis), the right of nations (ius gentium) and the right of citizens of the world (ius cosmopoliticum).85
Although the literature on human rights has generally only focused on Kant’s notion of cosmopolitan right, I want to argue that we also have to look at his theory of the right of nations, for there he makes a distinction between lawful nations and lawless ‘savages’ which makes the universality of his conclusions on cosmopolitan right questionable.
As we have seen, Kant makes a distinction between the ‘wild’ lawless freedom that one has in the state of nature, and the lawful freedom that belongs to the civil condition86 and
which is grounded on the rational principles following from the categorical imperative. Therefore, Kant thinks of irrational, ‘lawless savages’ as necessarily belonging outside of any state. He writes:
As natives of a country […] are born of the same mother (the republic) they […] are of equally high birth and do not mix with those who may live near them in a state of nature, whom they regard as inferior; the latter (savages), however, for their own part consider themselves superior because of the lawless freedom they have chosen, even though they do not constitute states but only tribes.87
Importantly, because states are sovereign entities, like moral persons, they are in relation to one another as ‘savages’ in the state of nature – for there is no law binding them.88 This
means that they are in a condition of constant war (the inclination to go to war stems from the ‘malevolance of human nature’)89 – a condition that is ‘in itself wrong in the highest degree’,
84 Kleingeld, 2006: xv-xvi.
85 Metaphysics: 455 [6:311]; Perpetual Peace: 322 [8:349]. 86 Metaphysics: 459 [6:316].
87 Ibid.: 482 [6:343]. 88 Ibid.: 482 [6:344].
89Perpetual Peace: 326 [8:355]. Kant thought that that nature had arranged this condition of war in
order to make sure people are driven to all regions of the earth, in order to populate these, and also compelled them to eventually enter into a lawful relation by the same condition of war (Perpetual Peace: 332-3 [8:363]; also: Idea: 114 [8:24]).
so states are ‘under obligation to leave it’.90 Kant therefore suggests that states must join
together in a ‘league of nations in accordance with the idea of an original social contract’,91 in
order to attain the ultimate goal of ‘perpetual peace’.92 The ultimate political and moral goal
is thus the opposite of the state of nature, where man is naturally inclined to war.
In Toward Perpetual Peace, Kant lays out several articles the compliance of which he considers necessary to achieve this end of perpetual peace. The third of these articles reads that ‘[c]osmopolitan right shall be limited to conditions of universal hospitality’, which Kant defines as ‘the right of a foreigner not to be treated with hostility because he has arrived on the land of another.’93 As he notes that this right belongs ‘to all human beings by virtue of the
right of possession in common of the earth’s surface’ which ‘belongs to the human race in common,’ it is a right everyone has as a citizen of the world – a cosmopolitan right. As human rights are also cosmopolitan rights, many have seen this text as an important source for the idea of human rights, especially the rights of migrants.94
However, although this right is linked to the mere presence on the earth’s service, it seems that it cannot be accorded to people who according to Kant ‘remain’ in the state of nature. He argues that because of the lawlessness of the state of nature, a human being or a nation that is in such a state ‘denies me [the] assurance’ of the power of law, and therefore ‘already wrongs me just by being near me in this condition, even if not actively (facto) yet by the lawlessness of his condition (statu iniusto), by which he constantly threatens me.’95 As
such, Kant goes on, ‘I can coerce him either to enter with me into a condition of being under civil laws or to leave my neighborhood.’96 In other words: lawless people and states are in
itself a problematic condition that must be made lawful through coercion or held at a great distance.
Therefore, they are necessarily excluded from the articles outlined in Toward Perpetual Peace, including the three aforementioned forms of public right. As Kant adds: ‘Hence the postulate on which all the following articles are based is that all men who can mutually affect one another must belong to some civil constitution.’97 The reason for this
condition also seems to be the idea that the ‘savages’ do not want to leave the state of nature.
90 Metaphysics: 482 [6:344}.
91 Ibid.: 482-3 [6:344]. Rawls largely took over this idea, but calls it a ‘Law of Peoples’ 92 Ibid.: 487 [6:350].
93 Perpetual Peace: 328 [8:357].
94 Bohman & Lutz-Bachmann, 1997: 7; Benhabib, 2011 5; Lutz-Bachmann & Nascimento, 2014: 3. 95 Ibid.: 322 [8:349].
96 Ibid. 97 Ibid.
This becomes clear from the earlier statement, where Kant suggests that they ‘consider themselves superior’, but also from the following remarks:
Just as we now regard with profound contempt, as barbarous, crude, and brutishly degrading to humanity, the attachment of savages to their lawless freedom, by which they would rather struggle unceasingly than subject themselves to a lawful coercion to be instituted by themselves, thus preferring a mad freedom to a rational freedom, so, one would think, civilized peoples (each united into a state) must hasten to leave such a depraved condition, the sooner the better […].98
It is clear that although Kant thinks of the cosmopolitan right as universal in principle, he does not assign it to everyone because there is in fact no universal civil condition. Rather, the right to hospitality ‘does not extend beyond the conditions which make it possible to seek commerce with the old inhabitants’, so that distant parts of the world ‘can eventually become publicly lawful and so finally bring the human race ever closer to a cosmopolitan constitution.’ 99 This reflects a cosmopolitan ideal that is not so different from
the dominant liberal idea of global justice: the idea that peaceful relations between states have to be fostered for the development of international trade and the transformation of states into liberal democracies. Rawls has provided precisely such a view in The Law of Peoples. 1.3.2 Human rights as a basis for a Law of Peoples
In The Law of Peoples Rawls aims to construct ‘a particular political conception of right and justice that applies to the principles and norms of international law and practice’.100 He
follows Kant in thinking that an effective league of nations (Law of Peoples)101 must be
established in order to realize the innate freedom of its citizens.102 He takes over the idea of
an ‘original contract’ as the principle of all rights, which for Kant necessary leads to a republican constitution, and for Rawls to a liberal constitutional democracy.103 Rawls also
takes over Kant’s belief in the ‘practicability’ of the idea of a pacific league that ends war
98 Ibid.: 326 [8:355}. 99 Ibid.: 329 [8:358]. 100 Rawls, 1999: 3.
101 Rawls deliberately refers to ‘peoples’ instead of ‘states’, for, according to him, it is impossible to
ascribe moral motives to the latter: ‘What distinguishes peoples from states […] is that just peoples are fully prepared to grant the very same proper respect and recognition to other peoples as equals’ (Rawls, 1999: 35). However, he does he not mean ‘nation’ when talking about ‘people’, as liberal peoples are in principle pluralistic (Ibid.: 25n).
102 Ibid.: 10.
forever trough preserving the freedom of each state,104 when claiming that the aim of his
‘realistic utopia’ is to achieve a peace and justice through a ‘world Society of liberal and decent Peoples’.105
Importantly, Rawls intertwines human rights explicitly into this model. He does so in three ways: first, upholding human rights is one of the eight principles of the Law of Peoples, second, he thinks of human rights as a subset of liberal rights, and, third, human rights function as a limitation for domestic and international actions of states. In each of these instances it is clear that, according to Rawls, they serve as principles that define the level of moral refinement, or ‘decentness’ of each ‘people’: ‘Human rights set a […] standard for the decency of domestic political and social institutions.’106 This means that they function as a
quality or limitation of domestic law. Hence, although Rawls claims that the violation of human rights by one state is a legitimate ground for interference by other states, human rights themselves do not seem to have a special legal status beyond the context of states or peoples. I will clarify this point by addressing the three interrelated ways in which Rawls refers to the meaning and function of human rights in relation to civil rights.
Firstly, of the eight principles that constitute the Law of Peoples (the ‘principles of justice among free and democratic peoples’), the sixth principle reads that peoples are to honor human rights. 107 For Rawls the obedience to this law serves as a prerequisite to be part
of the respectable and satisfied ‘Society of Peoples’ – an imaginary peaceful cooperation of well-ordered states.108 In this way the Law serves as a kind of checklist for evaluating the
level of justice of the institutional order of a certain people. As such, the fulfillment of human rights ‘is a necessary condition of the decency of a society’s political institutions and of its legal order’.109 Interestingly, Rawls adds that this statement is superfluous in a society of
well-ordered peoples, because they already recognize these principles. This illustrates the way in which Rawls sees human rights more or less as a threshold for proper domestic law, which, according to him, not only liberal democracies have long passed, but decent societies and benevolent absolutisms too.110 According to Rawls, the aim of the Society of Peoples should
104 Kant, Perpetual Peace: 327 [8:356]. 105 Rawls, 1999: 6.
106 Ibid.: 80. 107 Ibid.: 37.
108 With ‘well-ordered peoples’ Rawls refers to both liberal societies, denoted as reasonably just
constitutional democratic societies (Ibid.: 12), and decent societies, described as non-liberal societies whose basic institutions meet conditions of political right and justice (Ibid.: 3).
109 Ibid.: 80. 110 Ibid.: 4.
therefore be to promote human rights by developing institutions and practices to constrain outlaw states and help burdened societies.111
Second, Rawls perceives human rights as ‘belonging to a reasonably just liberal political conception of justice and as a proper subset of the rights and liberties secured to all free and equal citizens in a constitutional liberal democratic regime.’112 This is in line with the
idea that liberal states already recognize human rights principles. This is somewhat ambivalent considering their supposed universal character. Importantly, there seems to be a blind spot for human rights violations within or by liberal democracies, which is remarkable considering the fact that Rawls already experienced the tragedies surrounding the Vietnam War when writing the Law of Peoples.
The third way in which human rights are addressed is related to the first point. Because human rights serve as a principle that is to be honored by peoples, they limit the international and domestic policy of states in two ways: internationally, they restrict the legitimation of war, and, domestically, they limit a regime’s internal autonomy, and as such ‘set a limit to the pluralism among peoples’.113 Together these two limitations form the basis
for the conditions of legitimate intervention by states. Rawls argues that the integrity and pluralism of peoples should be maintained, however, and that non-liberal peoples can only be encouraged to become a member of the Society of Peoples. On the other hand Rawls also suggests that well-ordered peoples have the duty and right to make sure human rights are not violated anywhere. This idea of legitimate state intervention by liberal societies is highly problematic from a universal human rights perspective, as I will argue in the second chapter.
To conclude: although Rawls argues that human rights should be understood as universal rights, the first two ways in which human rights are characterized – as a quality of just or rightful (‘decent’) states and as a subset to liberal rights – show that he is actually ambivalent on this point, for in the latter two instances human rights rather function as an aspect of or a ground for the ‘right’ political conception, than as an independently valuable universal principle. Rawls thus seems to perceive human rights as some kind of litmus test for evaluating the level of civilization of other societies, which makes them ultimately a matter of domestic (civil) right, rather than pre-political or ‘innate’ rights. This is obviously problematic for those who are no longer granted any civil rights, such as refugees, asylum seekers and stateless people. Therefore, although Rawls emphasizes that the aim of liberal states on the long run should be to make sure that all societies honor the Law of Peoples,
111 Ibid.: 48, 106. 112 Ibid.: 68. 113 Ibid.: 80.
through which human rights would be secured everywhere,114 the only way to actually having
access to rights is by being part of the right kind of people – those who have well-ordered institutions or who ‘deserve’ help from such peoples to establish them.
1.4 Conclusion
In this chapter I have discussed various conceptual presuppositions that underlie the idea of universal human rights. These presuppositions are not coincidentally core ideas of political liberalism: as my aim is to show how the idea of human rights has a universal promise, it is necessary to go back to the origins of the egalitarian and liberal principles that constitute the foundation of human rights, which are also the foundations of political liberalism. I also want to emphasize the conceptual connection between the human rights discourse and the liberal tradition because I think that the explicit identification of liberalists with the human rights tradition in combination with invoking the notion of universality, has contributed to a problematic blind spot in liberal theory and politics, which expresses itself in ideas of moral arrogance and practices of discrimination, exclusion and violence towards ‘savages’, ‘non-liberals’, ‘outlaw’ or ‘lawless’ states is legitimized.
The idea of human rights thus seems to have an ambivalent logic: on the one hand, all human beings are regarded as having equal dignity and as such are deserving of inalienable rights and respect, but the reason why they have this dignity and these rights is that they are capable of making rational moral decisions, for which they need to have achieved a certain degree of moral progress in the form of ‘civilization’. The idea of human rights therefore seems to hold a universal ‘promise’ for the future, rather than a statement of facts. In other words: although some have tried ‘to create an idea of a shared and equal dignity for all humans, as an inherent quality’,115 the very aim of doing so has lead to an essentialist
conception of the nature and aim of human beings that potentially excludes particular individuals from the ‘original contract’ on which all lawful constitutions are to be based. As we will see in the next chapter, this exclusion already begins in the very notion of ‘human rights’.
