Empirical vs. normative arguments

• A empirical argument describes the way things are
  • “States that ratify human rights treaties commit fewer human rights violations”
  • “Students who put their phone in another room while studying get more work done”
• A normative argument describes the way things should be
  • “States ought not to torture their citizens”
  • “All people deserve equal protection under the law”
  • “Roommates should clean up after themselves”
• Most of this course focuses on empirical arguments
• But human rights is fundamentally normative
• It is a claim about how governments should treat the people they rule

A first definition of human rights

• Human rights are the universal rights one has simply because one is a human being
• They apply regardless of nationality, sex, ethnicity, religion, or any other status
• They are not granted by the state and therefore cannot be taken away by the state

Rights as entitlements

• A right is not just a moral claim that something is right
  • “That’s wrong” is a claim of rectitude
  • “I have a right to that” is a claim of entitlement
• Rights place the right-holder in direct control of the relationship
• Rights impose correlative duties on others
• Having a right is different from enjoying a benefit
  • A right can be claimed, even when it is violated
• The possession paradox
  • We only invoke rights when they are threatened or denied
  • If your freedom of speech is never challenged, you never need to claim it
• Human rights are rights of last resort
• When all other legal and political remedies fail, human rights remain

Pre-modern Europe

• The sovereign held total power over subjects
• Divine right of kings: God granted rulers their authority
• Rights derived from duties: to God, the Church, and one’s lord
• No concept of individual rights independent of the social order

The Enlightenment

• 17th–18th century: reason and science displace faith as foundations of authority
• Core ideas:
  • Every person is born free
  • People are entitled to life, liberty, and property
  • Legitimate government requires consent of the governed
• Rights came to attach to individuals, not to God or the social order
• This shift was political: tied to struggles against monarchies

Revolutionary foundations for later rights declarations

Think-pair-share: revolutions and human rights

Early critiques of human rights

• Prior to the Enlightenment, rights rested on God’s moral order
• As Christian authority declined, this foundation weakened
• The Enlightenment proposed a replacement: rights come from human nature and reason
• Critics from across the political spectrum were unconvinced

International law and human rights

• The League of Nations: the first attempt at collective international governance
  • Founded after WWI to maintain peace and prevent future wars
  • Proposed by Woodrow Wilson, but the US Senate refused to join
  • Proved ineffective and collapsed as WWII broke out
• WWII forced a reckoning: another mass conflict; governments had failed to prevent atrocities
  • The Holocaust showed that states could be unprecedented perpetrators of crimes
  • A new international framework was needed to protect individuals from their own states

The United Nations

• Founded in 1945 by the winners of WWII: US, UK, Soviet Union, China
• Nazi leaders tried at Nuremberg (1945-49) for crimes against humanity
  • A charge with no basis in existing law
• UN Human Rights Commission (1946-48) drafted a universal standard
• Universal Declaration of Human Rights adopted December 10, 1948
  • 48 of 56 countries in favor; 8 abstained; 0 voted against

The UDHR and three generations of rights

• First generation (Articles 1–21): civil and political rights
  • “Negative” rights: freedom from state interference
  • Freedom of speech, religion, assembly; right to vote; freedom from torture
  • Codified in the International Covenant on Civil and Political Rights (ICCPR)
• Second generation (Articles 22–30): economic, social, and cultural rights
  • “Positive” rights: freedom to access certain goods
  • Right to work, education, health care, and social security
  • Codified in the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Third generation: collective and group rights
  • Right to development, self-determination, and a clean environment
  • Most contested and least institutionalized

Should human rights apply universally?

Human rights and the universalist claim

• Human rights emerged from Western philosophy and politics

• Classical liberalism places the individual, not the group or state, at the center of moral concern

• The UDHR claims to articulate rights that belong to all human beings

  • Not just citizens of particular states
  • Not just members of particular cultures or religions

• Universalism is the source of the UDHR’s power, and its controversy

• Possible grounds for universalism (Langlois):

  1. Human dignity: rights derive from the inherent worth of every person
  2. Reason: the capacity for rational agency entitles humans to certain freedoms
  3. Autonomy: rights protect the conditions needed for a self-directed life
  4. Equality: each individual has equal moral worth and deserves equal respect
  5. Needs: universal human needs, security and subsistence, ground universal rights
  6. Capabilities: rights protect what people need to fulfill their human potential
  7. Consensus: rights are legitimate because diverse peoples have agreed on them

Which foundation for human rights is most convincing?

Cultural relativism

• Cultural relativism: norms are only appropriate for the cultures that produced them
• Therefore: human rights norms from the West apply only to the West
• The critique: human rights proponents are being illiberal by imposing liberal values on others
• Langlois’s response: cultural relativism is self-defeating
  • “All truths are relative” is itself a universal truth claim
  • When relativists say “one should tolerate other cultures,” they make a universal claim
    • ..That tolerance is a value everyone should hold
  • A consistent relativist has no basis for challenging any injustice

Human rights imperialism

• The critique: powerful states invoke human rights selectively to advance their own interests
• The language of human rights can become cover for intervention
• There is something to this: Western governments do apply rights selectively
• Langlois: the anti-imperialist critique also appeals to universal principles
  • A universal principle of anti-imperialism
  • “We have the right to be free from your interference”
  • Which must rest on freedom, tolerance, or equality
  • The anti-imperialist’s argument reduces to a form of liberalism
• Some authoritarian anti-imperialist leaders argue against human rights claiming autonomy
  • …then deny freedom and equality to their own citizens domestically
• Selective application is an argument for more consistent application, not against rights

Other challenges

• Feminist challenge: the rights of “man” are not the same as rights of women
  • Women excluded from the rational, autonomous subject of Enlightenment theory
  • Even equal moral worth did not translate to equal status in society
  • Progress has been made (e.g., CEDAW, 1979); but structural inequalities remain
• Religious challenge: some traditions conflict with liberal rights norms
  • Tensions particularly around autonomy, gender, and sexual orientation
  • Some traditions have embraced human rights
• Group rights: should rights belong to groups, not just individuals?
  • Certain groups may have rights (e.g. Indigenous land rights) that do not apply to everyone
  • …this seems to contradict the universalist claim that all humans have the same rights
  • What if a group’s collective rights conflict with individual rights within it?
  • Possible response: group rights should always be derivative of individual human rights

What is politics? How are human rights political?

• Politics: the process by which individuals make decisions that affect groups

  • Politics is not just what happens in governments or elections
  • It is present wherever decisions affecting others are made
  • Human rights is inherently political

• Legal positivism says that we have human rights because laws and institutions protect them

• …but that institutionalization is itself contested on various levels:

  1. Philosophical: human rights rest on classical liberal theory, a contested tradition
  2. Declarations: what goes in and what gets left out reflects political realities
  3. Application: how rights are applied, by whom, and where is political
  4. Local struggle: rights language is deployed to fight specific injustices

Think-pair-share: human rights and crimes of the state

• We have learned that states monopolize violence and can be predatory

  • … and that regime types may constrain the state

• Human rights is a normative framework claiming to constrain the state

  • By signing the UN Charter, states give up some sovereignty
  • …they may be held legally accountable for their human rights records

Reflections: the state and human rights

• Human rights claim to stand above state sovereignty
  • Normatively, states should not be able to do whatever they wish to their citizens
  • The international community has a legitimate interest in how states treat individuals
  • Not all states accept this in practice, even when they sign treaties
• Human rights provide the standard against which crimes of the state are measured
  • Without this framework, there is no “crime”
  • The next several weeks ask: what happens when this framework fails?
  • On Monday, we will begin our discussion of genocide and mass killings

For Monday: Quiz

• No readings for Monday, but: Quiz 1 is on Monday!
  • Taken on Canvas, so please bring your laptop
  • 20 minutes, at the start of class
  • Short response, 3–5 paragraphs
  • Spelling or grammar mistakes OK as long as it doesn’t affect the substance of your answer
  • Attempt to answer every part of the question!