Morality sources at an international level: when universality overcomes morality

Princípios de moral a nível internacional: quando a universalidade supera a moralidade

María Cristina Astier Murillo*

*Universidad Pompeu i Fabra, Barcelona, España.

cristina.astier01@estudiant.upf.edu

 

ABSTRACT

The theory of human rights has gain weight in the academic sphere in the last few years, indeed, it is now embodied in the framework of global justice discourse. Broadly speaking, there are two main opposite theories of human rights which entail two different accounts of moral values over which each theoretical account is justified. Notwithstanding, both theories acknowledge the more general term "rights" as characterized by Steiner^[1], i.e., as the elementary particles of justice, created and parcelled out by justice principles. In this respect, rights' features and characteristics, will turn out to be each society's justice. Therefore, the content of such rights will define and thus constraint, each society's content of principles of justice. Now, when it turns to human rights, understood as a particular set of rights, how these special rights features are justified may determine each societies allocation and thus, distribution of personal liberty and equality. The two theories mentioned are the traditional and the political theory. More precisely, while the traditional theory argues that human rights are rights that any human being posses in virtue of its humanity, political accounts defends that human rights are rights against states, i.e., rights able to justify the limitation on state sovereignty, for the protection of individual rights. In short, the discussion asks whether human rights are mere individual rights, i.e., that primarily protect individual interests, or rather establish as well a set of collective rights with a clear influence in the common good.

This work will be structured in four sections; section I will raises some puzzling points about the claim for universality that seems to be in the background on any human right, regardless of the philosophical theory that best explains them. Section II establishes the topic framework in which there can be differentiated legal, moral and human rights, to settle certain limits in scope and domain for different conceptions of rights. Section III analyzes the role which conceptions such as individual and collective interests, moral weight and grounded duties play due to different accounts of rights and how they are due determined. Section IV discusses the derivative problem of human rights as an ethical claim beyond borders, due to the political perspective of the theory of human rights.

Keywords: human rights, universality, moral weight, interests and public reason.

 

I. PUZZLING UNIVERSALITY

The substantive feature of human rights which is taken into consideration in any discussion of this type is that rights in general and human rights in particular, endow duties; this leads to a so called two-term relation between subjects made of the right-holder and the duty-bearer; it is to say, rights not only create a bilateral normative relation between a subject and an object, but also constrains the conduct of the duty-bearers. This relation generates reasons for action for both parties, so that (following a razian treatment of the issue), given that rights are based on interests and protect such interests by grounding duties on the bearers, peoples' interests ought to be morally weighty enough to provide by themselves sufficiently strong reasons for action on others. Put it in another way, they create duties on others, based these reasons on moral reasons for action.

On the other side, rights may be said to be something desirable, for the contribution that they make to one's desirable objects.^[2] Now, it can be said that as far as human rights are a sub-set of moral rights, they generate ethical demands; thus, following the traditional views, being human rights a sub-set of moral rights they will be universal and grounded in humanity. As far as human rights protect individual interests, they acquire the feature of "demandability". This term means that, human rights generate ethical demands which are morally weighty, so that, any subject or individual will be entitled to this protection and thus, human rights will acquire the feature of universality. The sense of universality in human rights theory determine directly the content of any account of human rights. In this context may arise the problem of parochialism. This is generated when individual accounts of human rights ought to be defined. As a consequence, this create problems of cultural relativism, due to the fact that universality addresses each human being right in virtue of their dignity. One example to this is the critique made to western bias values in the official Declaration of Human Rights. On the other side, I argue that a sense of collectivity in defining the content of human rights, instead of a universal individualism, will best protect individual dignity and will avoid the parochialist problem. Therefore, as far as humanity grounds universality, human rights will be at least as morally weighty as moral rights, again in virtue of their universality.

On the other side, the point defended in this work is that, though it can be said that human rights are universal, this does not lead to infer neither that they claim for moral rights, nor that thus, their claims are morally weighty. Indeed, universalism misleads this claim by giving value to universality itself instead of recognizing the importance, in-terms of power, of possessing these rights to the right-holder. Thus, I argue against the conception that leads to think that universality by itself generates sufficiently weighty moral reasons for action in the current set of the so called human rights. What is special of human rights that makes them morally weighty in virtue of their universality? Hence, why should them be morally weighty just in virtue of their universality? Is, in this sense, universality a sufficient condition for this task? In other words, what is the role of universality in bringing moral weight to rights and specially to human rights?

II. LEGAL, MORAL AND HUMAN RIGHTS

Both views, the traditional and the political, identify three different kinds of rights at stake in this discussion: moral, legal and human rights (or as called by John Finnis, natural rights). Rights can be roughly understood by following the modern political philosophy account from Hobbes, Pufendorf and Locke as liberty. The modern conception of rights, embodied in broader political theories of contract, conceive rights as "natural rights", i.e. as liberties to the extent that these rights are founded independent of the law and even of any particular society, being previous to it; so that, when a person enter into a particular community, she will transfer some of her rights, voluntarily, in virtue of a social contract, to better enjoy her life, liberty and property. On the one hand, Hobbes grounds liberty on the main characteristics of the state of nature, with the subsequent critic that rights are hard to achieve without duties. While, on the other hand, Locke and Pufendorf have given raise to current theories of rights which understands human rights as benefits addressed to individuals. It is to say, the protection of certain objects or domains that will contribute to protect individuals' interests, rather than something given in a certain situation, which will be context dependable. This last approach is called the benefit theory of rights. As a result, it raises the question whether rights are just benefits which generate duties on others, aiming at better serve other's important interests. On the other side, they may rather be moral rights that set limits to freedom among its subjects, due to the imposition of constraints in others' conduct.

Moreover, in this respect, John Finnis (Finnis:198-205; 1980) identifies two ways to understand the relationship between rights, interests and liberty. The first one, asserts that rights are benefits secured for persons and other persons subjected to those rules, i.e., the so called duty-bearers. On the other hand, he acknowledges that the theory of benefits or interests, the first one, treats rights as if they were a mere mean to "reflex" rules which impose duties; whereas, the second view emphasizes that such rules specifically recognize and respect a person's choice. The direct consequence of the latter view is that this rules, consequently, will enhance freedom. Thus, following this rationale, a person's liberty will be limited by another's freedom. This view constitutes the so called Choice Theory. John Finnis has argued that both claim-right and liberty are the main ascriptions that play a role in the so called rights-talk. He assumes this to the extent that the dominant view understands that to have a right is to have a claim, and thus, claims entail duties, which actually constitute the strict definition of rights. More precisely, a claim-right may be either positive or negative.^[3] As Griffin points out, there is a common thought which notes that liberty is not a right by itself, that is, to the realization of one's ends, but a condition for their pursue. Thus, the question is one of content, this is, about how rich would be the array of human rights, given the idea of liberty as a means for purpose.

Nevertheless, some questions arise as a consequence of the political view: would there be a set of human rights in the case of a one-state world? What is more, how would rights' content change within this assumption? Considering that grounds for rights depend on what their main function is meant to be, then, the question is whether to ground rights on societal common goods or on mere individual interests. On the one hand, the traditional approach, such as the one held by Griffin, holds that the main function of human rights is the protection of personhood, of human dignity. Unlike the political view assumed by Rawls among others, he does not consider the limitation of sovereignty as the main function of human rights in current practice. On the contrary, he argues that human rights, roughly speaking, are adopted as normative agency protectors, called personhood. Nevertheless, he admits that personhood as a ground can leave some rights undetermined, so he adds practicalities as a result of the need for determination, acting as a second ground for this account of human rights.

The clarification of human rights function contributes to determine their role and thus, as seen with the idea of liberty as a means for purpose, establishes limits to their content. Now, the discussion of human rights' content entails two main concerns: firstly, rights ground duties which generate reasons for action (this point will be develop further in the next section) and as a consequence, this set of rights may well be seen as an articulation of ethical demands (Sen:4-5; 2004). Now, given that these demands provide content for rights based on alleged interests, the main problem within this account is the so called partisanship problem. The challenge of partisanship is to let certain account of human rights to end in the infliction of western values worldwide. In this sense, traditional accounts are more likely to fall in this critique, since they understand human rights as the fundamental and general moral rights, indeed, John Finnis identifies human with natural rights, using both as synonyms.

On the other side, there is the political account of human rights. They defend that as far as rights safeguard peoples' interests, they should be given institutional recognition, which as a consequence, will turn rights' ethical claims from private morality to collective concerns, for the sake of the common good. Furthermore, as Raz argues, individuals are not the only ones who claim for rights, neither the only possessors of them, but States and also Multinationals are able to claim for rights too. This challenge the content and function of any account of human rights, since rights are no more focusing only on individuals. Concerning the rights-talk, rights will be demandable in the sense that they build a bilateral relation among the so called right-holder and the so called duty-bearer. As Raz states, it is widely believed that any right has its correlative duty, nevertheless, he denies the correspondence assumption by distinguishing between core and derivative rights. Thus, while some rights are grounded on duties, i.e., the so called core rights, others may be the ground for other rights, the so called derivative rights. Thus, rights such as the right to live are considered core rights in so far as they directly satisfy individual interests. In this sense, Raz goes further arguing that there is not a necessary direct correlation between rights and duties, such as in the case of the right to education, which gives ground not to a duty but to many. What is more, the right to education provides educational opportunities not to one individual, but to many of them.

Rights can be either legal, moral and human. Many authors from the traditional as well as from the political theory argue that human rights are moral rights, or as Skorupski states, a sub-class of moral rights. Furthermore, some legal rights are either created or recognized by law, in this sense, a legal right may have the same or quite the same content as a moral right (Raz:31-35; 2010). Then, it is clear that almost every right can be legal, moral and human at the same time. How this may be clarify in order both to judge the rights' practice and correctly safeguard both individual and collective interests? Would it be possible to draw an standard to judge rights' practice? The point is to find a ground for rights to judge their practice. More precisely, the uncertainty of human rights, in this sense, is whether they have moral force, if they are morally weighty enough to enforce their requirements. Now, while the traditional view grounds human rights in our humanity, the political account grounds human rights (although some authors even does not believe in "grounds" or "foundations") in the protection of fundamental moral and political culture of a community through specific institutional arrangements or political conventions (Raz: 166-192; 1986).

III. INDIVIDUAL AND COLLECTIVE INTERESTS, MORAL WEIGHT AND GROUNDED DUTIES

As seen in the section above, rights consists in interest-based duties, and thus, generate reasons for action. At the same time, theses duties (which as seen above, are not exactly correlated to rights) generate obligations on the duty-bearers. As a consequence, as Raz points out, protected interests behind these rights should be sufficiently morally weighty to impose duties on others. Besides, Joseph Raz raises the question whether rights are valuable enough to be sufficiently weighty. In this respect, he argues that the main aim of protecting interests is the protection of the right's object, it is to say, the value of that object to its possessor. Thus, he turns the attention form the value of the right's object, to the value of the right to that object, as a result, it can be stated that the value of such right will depend on the value of the object as well as the value of the secure enjoyment of the object (Raz:36-37; 2010). This means that the value of this right to its possessor turns out to be this right's ground. What's more, he argues that the value of such specific point in his view is that, as a consequence of where the value of the right lies, the right-holder has a special control over her rights. As a result, this protection of her interests will empower her. One of the consequences of this empowerment of "ordinary people" in the international sphere of human practice, may rebound in the creation of a new channel of political action. On the other side, the burden generated from the enforcement of the protection of rights, i.e., its moral weight, does not exclusively falls in the right-holder. Subsequently, the value of something to a person warrants holding others duty-bound to respect it.^[4]

It can, thus, be argue that rights generates both duties and as a consequence, reasons for action. Nevertheless, the problem then is how to move from a reason for action to an actual duty; so that duties will become compulsory actions. Furthermore, Skorupski distinguish between rights and reasons for action as follows: while reasons for action may ground moral obligations, every right does not entail a moral obligation, correlatively. An example of this assertion is the razian perspective showed before, the view which differentiates between two kinds of rights: core and derivative rights. Core rights are the ones which do not depend on any other right to its justification, while derivative rights assume core rights and depend on them to their justification. As an example we can consider the right to personal liberty as a core right, on the one hand, and on the other hand, the right to freedom of speech.

Therefore, as Skorupski states, rights do not create moral demands, but morally permissible demands. As Skorupski argues, there may be good reasons to guarantee something to someone, but this does not show that he has a right to it. This apparently fits the razian claim that morality can not be right-based, i.e., not all reasons for action ground rights, they may be reasons for action not grounding rights. Now, how would a right-claim be morally demandable? How it will be established the standard which distinguishes between rights that raise morally permissible demands and those which do not, thus, the claim for the universalization of rights will not be directly based on morality?

Following the political view, the essence of human rights as moral rights, is that they should be given institutional recognition, which transcends individual morality and becomes a collective concern. Hence, as far as they secure collective claims, there is an impact in the so called social good. In this sense, social good affects and may limit human rights. In this regard, Sen focus on the approach of open public reasoning, it is to say, as far as human rights are likely to create imperfect duties on individuals (though not only in individuals but also in international corporations or even multinationals, as a result of how has change the current situation globally ) and together with the need for ethical attention demanding by human rights, a theory of such rights would allow for internal variations without losing the agreed principle of attaching substantial importance to human rights, i.e., their corresponding secured freedoms and obligations.

Nevertheless, since declarations of human rights have ethical demand, human rights would be better settled within societies if there is a standard inside the law, and since they are of international concern, in the international law. Therefore, the need for a ground for them to build an international criteria still remains. It is almost clear that regarding societies, human rights' violations will be recognized in those places where the welfare is low; so that, human rights will be considered as a minimal standard to secure some welfare. As a consequence, human rights will be seen as a minimal standard based on equality (as Dworkin himself affirms) whose concern is individual as well as collective. Nevertheless, Dworkin argues that human rights are "trumps" over appeals to the general good. Concerning the relation between the domain of justice and that of human rights, Griffin affirms that these may be overlapping. Indeed, Dworkin again argues that a right can be override due to a high level of general good.

This points raise challenges that an international declaration of human rights or at least, an international law of human rights, should take into consideration. Though every human right have its common characteristics of ethical demandability, each community would faces its necessities within, without falling in any form of relativism of human rights. Thus, it can be said that, though collective decisions will vary across communities, the basic principles of justice entailed in the declaration of human rights, will prevail.

This raises the question of the universality of human rights as a main characteristic. Firstly, though traditional accounts (such as the Griffin and Buchanan ones) set that human rights are universal in virtue of their moral and ethical claims and "demandability"^[5]; though, as seen above, universality can not be grounded in any sort of universal morality due to the fact that morality is not right-based and the necessary escape from partisanship. However, as seen above, morality changes over communities and indeed internationally. Besides, concerning justice, although it can be universalized, it is not even a sufficient claim, but a necessary one to settle international legitimate institutions, which may well be the institutional support of human rights. Now, as Skorupski defends, human rights will entail moral weight as far as an accusation of its violation would be well grounded. Thus, the point would be to identify a bunch of values that will be desirable for the sake of the common good provided by the state to pursue.

Secondly, Sen differentiates his theory, concerning universality, from the ones that either try to justify the ethics of human rights in terms of shared universal values, i.e., the non-partisan view, or from those that abdicate any claim to adherence to universal values in favor of a particular political conception that is suitable for the contemporary world. Regarding partisanship, he avoids it through the so called interactive process, it is to say, by examining what specific right would survive in collective discussion. Besides he argues that: "(...) Adam Smith's insistence that ethical scrutiny requires examining moral beliefs from, inter alia, "a certain distance" has direct bearing on the connection of human rights to global public reasoning." Besides, as Raz argues, the acceptance of universality implies that human rights content may be defined by other factors than being human.

IV. HUMAN RIGHTS: AN ETHICAL CLAIM BEYOND BORDERS TROUGH THE REACH OF PUBLIC REASONING

It can be stated that, what is at stake is the role that human rights, understood as a set of moral claimable rights, play at an international level. According to the political view, its main purpose is the limitation of state sovereignty for the sake of individuals' interests. Now, Raz introduces a new important point, that is, he notices that limits in state sovereignty should not be confused with the limits of legitimate authority (Raz; 330-332; 2010). The author asserts that any measure imposed by a right to limit state sovereignty, may be morally justified. As a consequence, international law is at fault when it fails to justify international action, thus, Raz further argues that a human right must have the capacity to be effectively enforced by legitimate authoritative institutions. Furthermore, he states that international law fails to recognize the legitimacy of such sovereign-limiting measures, when the violation of rights morally justifies them.^[6] As a result, while he argues in favor of a limitation of states' sovereignty, he clarifies this by pointing out that this intervention will not necessarily be a moral one. In this respect, since legitimate political authority is not in direct correlation with state's sovereignty, there may be political institutions legitimate enough to set limits on state's sovereignty neither violating its moral values nor its legitimate authority.

On the other side, Dworkin holds that the correlative obligation, generated by right-holders as a weighty obligation, "trumps" appeals to what would maximize utility. Indeed, Buchanan argues that both rights would be to some extend influenced by social good, as well as the violation of a right as a means to maximize the social good is not a sufficient condition to effectively violate it. Now, he states that: "(...) the idea is not that considerations of social good are irrelevant to determining what our rights are, nor that rights may never be limited out of consideration for the social good, but rather that if we have a right to something, the mere fact that depriving us of it would maximize social good is not itself a sufficient reason for doing so."^[7] Contrary to this argument, in his The Morality of Freedom, Joseph Raz argues that, taking into account that rights consist in interest-based duties, and this duties reflect people's interests, it cannot be said that these interests are trumps in the sense of overriding considerations based on individual interests. Furthermore, following Raz it may be said that individual interests cannot be trumps as far as they express the right-holders' status as persons and the respect owed to them in recognition of that fact. Finally, he states that: "Respecting a person consist in giving appropriate weight to his interests."^[8]

Rights supply weighty reasons for action, though they are not "absolute". Human rights are rights held by individuals. Despite it, individuals have them only when the conditions are appropriate for governments to have the duties to protect the interests protected by rights (Buchanan:123-124; 2004). Thus, it arises the question whether the right stays only within the government or beyond. Or, put it in another way, it raises the question whether human rights should be conceived as absolute or not due to prevention. Although human rights are not absolute, they are able to impose limits to sovereignty which are morally justified. In this sense, international law should recognize human rights violations world wide and as a consequence, justify international action. Furthermore, Raz come up with a controversial claim saying that human rights are primarily those rights that should be successfully respected and enforced by law; he settles limits to the account of human rights arguing that those rights which are not successfully enforced or respected by law, are not human rights.

In this line goes the rawlsian argument about a subset of rights in Law of Peoples; furthermore, what Rawls calls human rights is either a proper subset of the rights possessed by citizens in a liberal constitutional democratic regime, or the rights of the members of a decent hierarchical society. Their main function as human rights is the restriction of the justifying reason for war and specification of the limits for a regime's internal autonomy. Notwithstanding, as explained before, I endorse the view that sees the limitation of state sovereignty no longer determined by a set of moral values. Moreover, I would say that, such values need to be transcended for the sake of the international and domestic protection and respect respectively, of human rights values. Therefore, the main reason to limit sovereign practice will be to have such measures established by the international human rights' practice.

To sum up, Rawls in Law of Peoples^[9] defines human rights as necessary conditions for any system of social cooperation, which will somehow ground public reason. Now, he conceives the idea of public reason in a liberal society like other political rights and duties, as an intrinsically moral right. In this respect, Raz criticizes Rawls' connection of the conditions for social cooperation within the limits of sovereignty, arguing that Rawls avoids the fact that state sovereignty is no longer determined only by moral values which impose moral limits to the authority, but by possible moralities interferenced by one another. This way, Raz tries to reflect that moral principles may not only limit state sovereignty, but also fix limitations in case to justify interference by international organizations. As a consequence, Raz states that: "(...) based human rights in the conditions of human cooperation disregards the difference between the limits of authority and sovereignty" (Raz:327-334; 2010) Then, it raises the question whether human rights should be based in the conditions for social cooperation. In this sense I endorse Amartya Sen's view when arguing that, although the universality of rights depends upon their survival to the public deliberation, there is a need for the understanding of ethical claims raised by rights, i.e., its associative nature of the acceptability of values (Sen:345-350; 2004).

V. CONCLUSION

To sum up, this article can be understood in four questions, some of which remain unanswered: first, are human rights just benefits which ground duties or moral reasons that establish limits on freedom? Second, how would a right claim be morally demandable? Third, is universality one of the main characteristics in seeking an optimal standard for human rights? Four and last question, should human rights be based on the conditions for social cooperation?

After illustrating these questions along the text, we can conclude that, since rights ground duties, they are able to create morally weighty reasons for action and, due to its further role, in transcending individual interests, they may have moral weight to justifiably limit state sovereignty. As stated in the abstract, a sense of collectivity in defining the content of human rights, instead of a universal individualism, will better protect individual dignity, indeed, avoiding the parochialism objection. As a consequence, it may be say that universality will neither overcome, nor override morality.

 

References

BEITZ, Charles., Human Right as a Common Concern, American Political Science Review, Vol. 95, No. 2 June 2001, pp. 269-282.         [ Links ]

BEITZ, Charles., The Idea of Human Rights, OUP 2009.         [ Links ]

BESSON, S., and Tasioulas, J., The Philosophy of International Law, OUP 2010.         [ Links ]

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RAZ, J., The Morality of Freedom Clarendon Paperbacks, Oxford 1986.         [ Links ]

RAZ, J., Human Rights in the Emerging World Order, Transnational Legal + eory 2010, pp. 31-47.         [ Links ]

BUCHANAN, A., Justice, Legitimacy and Self-Determination: Moral Foundations for International Law, OUP 2004.         [ Links ]

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Acknowledgements

I am grateful to the participants in the III Meeting on Ethics and Political Philosophy which took place in Minho University, Braga, particularly David Owen. I would like to thank Andrew Williams for helpful feedback and comments.

 

Notes

^[1] Steiner, H., "An Essay on Rights" Blackwell Publishers 1994, Cambridge, Massachusetts

^[2] Ibidem, pp. 54

^[3] Pogge refers to this feature of human rights when he introduces the concept of negative duties in the so called rights-talk:"(...)stringent negative duties are also in play: duties not to expose people to life-threatening poverty and duties to shield them from harms for which we would be actively responsible."

^[4] Raz, J., Human Rights in the Emerging World Order Intranational Legal Theory 31-47 (2010) pp.37

^[5] The term demandability broadly states that rights, understood as right-claims, and thus, being claimability one of their main features, have the characteristic of being demandable by the right-holders. This satisfies Skorupski assertion that rights are morally permissible, that is, one have no duty not to have whatever right.

^[6] Raz, J. Human Rights Without Foundations in The Philosophy of International Law by Besson, S. and Tasioulas, J. 2010

^[7] Buchanan, A., Justice, Morality and Self-Determination: Moral Foundations of International Law 2004

^[8] Raz, J., The Morality of Freedom 1986

^[9] Rawls, J., Law of Peoples pp. 78-82