Theoretical foundations of human rights: a critical insight into contemporary debate

1. Introduction: from natural rights to the nature of human rights

The Universal Declaration of human rights (1948) and the following contemporary human rights practice are the result of a longstanding and progressive process of juridical positivisation of traditional natural rights, from modern theories of natural law (e. g. Grotius, Pufendorf, Locke) to the famous French Declaration of the Rights of Man and the Citizen (1789). Even though the idea of natural rights had a certain success in the concrete political battles carried on during American and French Revolutions, it is precisely from the theoretical point of view that this idea has suffered reservations and memorable critical thrusts. I can briefly mention at least three classic critiques:1 Edmund Burke considered universal rights of man as “abstract principles”.2 Jeremy Bentham even labelled natural rights as simple nonsense: “natural and imprescriptible rights, rhetorical nonsense, – nonsense upon stilts”.3 Lastly, the well-known Karl Marx’s trenchant critique of rights of man, notably towards the existence of abstract (taken out of social and historical context) individuals who are, just by the fact of existing, natural rights-holders.4 Even in more recent times this idea has been theoretically questioned by important philosophers. This is the case of Alasdair MacIntyre, who has brought into question the existence of rights that human beings have simply in virtue of being human, going so far to state that believing in such rights is like to believe in witches and unicorns.5

Afterward Universal Declaration was issued, philosophical debate about the nature and the foundations of human rights has developed at the same pace with the human rights practice, to such an extent that reflection on human rights in recent times has been elevated to the status of a real ethical lingua franca.6The point is that the practical agreement of such original document created several theoretical problems. Many times the alleged universalism of human rights has been conceived as theoretically indefensible because ethnocentric and therefore politically pernicious. This opposition between the philosophical need to find universally sharable foundations and the urgent requirements of current practice is nowadays at the core of philosophical thinking about human rights.

In particular, the publication of John Rawls’s The Law of Peoples (1999) has greatly influenced such field of philosophy and, de facto, created two opposite sides in the debate. On the one hand, we find political theorists endorsing a political or practical view who, inspired by Rawls’s approach (one which leaves aside the many difficulties of interpreting these rights and takes their general meaning as clear enough),7 maintain that human rights have to be understood in the light of their function in the modern international politics, as an example considering them as rights limiting national sovereignty or triggers for intervention, namely principles or rules whose violations could justify an external intervention by other states (e.g., by means of diplomatic and economic sanctions, or in grave cases, military force).

On the other hand, we find the quite assorted group of proponents of the orthodox or moral views.8 These philosophers, such as James Griffin and John Tasioulas, share the general idea according to which attributing to human rights the only feature to play a specific role in international political domain is reductive, misleading and lacking of suitable theoretical foundations, i.e. the idea of human dignity or the features that all human beings own. So, instead of identifying human rights on the basis of their political functions, these more morally-oriented theorists define human rights referring to their distinctive moral characteristics, e.g. their being rights that human beings have simply in virtue of their humanity and, as a consequence, their universality.

In the second paragraph of this paper I explore Rawls’s understanding of human rights, focusing on his way to deal with the problem of the foundations and challenging the legitimacy to attribute to him the authorship of a political conception of the nature of these rights. In the third section I show why other practice-based accounts (Beitz’s and Raz’s) fail in referring only to human rights practice to justify the existence of such rights, and how they explain, all things considered, their political function and not their very nature. The fourth section is devoted to moral perspectives and their way to refer to the matter of the foundations, underlying some critical aspects, too. The fifth and final section is about the practical relevance of the question of the foundations and its impossibility to be eluded not only from a philosophical point of view, but also from the standpoint of the practice itself. I conclude with the idea that only a moral approach, focusing on foundations, can call attention to the practical significance of grounding theoretical elements.

2. Political “nature” or political “function” of human rights? The peculiarity of Rawls’s account

For the most part of scholars of the field, Rawls is the father of a political conception of human rights, although Rawls’s is a particular case. First of all, The Law of Peoples is not a treatise of international law, but, as Rawls specifies, he develops his understanding of human rights within the more general Law of Peoples, conceived as “a particular political conception of right and justice that applies to the principles and norms of international law and practice”,9 relying on the method of public reason, consisting in ruling out arguments and beliefs belonging to comprehensive doctrines from the choice procedure of principles of the law of peoples, in order not to seem ethnocentric.10 Principles of such law are not based on a common moral reasoning, indeed they should have a special kind of justification, namely to be grounded on an autonomous form of public reason. Rawls devotes very few pages and sporadic remarks to human rights because, as previously said, the Law of Peoples amounts to a particular political conception of right and justice that applies to the principles and norms of international law and practice rather than to be a pure theory of human rights. So, he deliberately overlooks the issue of the nature and foundations of human rights, leaving aside the many difficulties of interpreting these rights and taking their general meaning and tendency as clear enough. Furthermore, the Law of Peoples is a theory of international justice in which the focus of attention is justice among peoples,11 and not a theory of global justice concerning about justice among individual human beings. In this context, human rights are narrowly examined as an element of a more complex account of just international relations among equal peoples. As things stand, it cannot be considered a very account of human rights just because it does not account for the nature and the grounds of this important kind of rights. As they appear in The Law of Peoples,12 human rights are not examined as moral values or ascriptions, but as means by which attempting to secure public criteria for evaluating what can and cannot be tolerated of the ways other peoples treat their citizens. As he specifies, “human rights are intrinsic to the Law of Peoples and have a political (moral) effect whether or not they are supported locally. That is, their political (moral) force extends to all societies, and they are binding on all peoples and societies, including outlaw states. An outlaw state that violates these rights is to be condemned and in grave cases may be subjected to forceful sanctions and even to intervention”.13

It stands to reason to deduce that Rawls’s aim is not to account for human rights as such (involving a theory of their nature and grounds), but rather to examine their function in the equilibrium of international relations. When Rawls talks about human rights he does not refer to their nature, but only to their international role as a part of the attempt to find a suitable definition of a government’s internal sovereignty and its limits.14 Nevertheless, there are some explicit references to the way of understanding these rights: they are not political rights that citizens have in a reasonable constitutional democratic regime, but a special class of urgent rights.15 Also, they restrict the justifying reasons for war and its conduct; they are distinct from constitutional rights, or from the rights of liberal democratic citizenship, or from other rights that belong to certain kinds of political institutions, both individualistic and associationist.16 After that, he describes in few but clear lines the function of human rights in the Law of Peoples:

Human rights set a necessary, though not sufficient, standard for the decency of domestic political and social institutions. In doing so they limit admissible domestic law of societies in good standing in a reasonably just Society of People. Hence the special class of human rights has these three roles: 1. Their fulfillment is a necessary condition of the decency of a society’s political institutions and of its legal order. 2. Their fulfillment is sufficient to exclude justified and forceful intervention by other peoples, for example by diplomatic and economic sanctions, or in grave cases by military force. 3. They set a limit to the pluralism among peoples.17

From what I have said so far, it’s possible to distinguish two different theoretical perspectives in the structure of rawlsian theory:

  • a) the way of understanding human rights: their being conceived as universal reveals a clear, though intuitive and relying on common sense, idea of such rights; according to the method of public reason, they don’t depend on any comprehensive or liberal doctrine; they are a special class of urgent rights; they are necessary to any system of cooperation;
  • b) the political function these rights is assigned to and which might be further spelled out in two branches: on the one hand, the significance of this function in a national domain, i.e. the thesis according to which no government can claim sovereignty as a defense against its violation of the human rights of citizens subject to its political authority, and, last but not least, the respect of these rights as the condition of decency of political institutions and legal order of a society; on the other hand, and more importantly, their international significance, namely the view that respecting such rights is a sufficient condition to rule out external interventions of any kind (economic o diplomatic sanctions, or military intervention) from other nations. Attributing this importance to the international perspective does not appear a way to underestimate the question: Rawls’s interest consists in finding a set of international norms for governing interactions between peoples and not basic human entitlements necessary to achieve an adequate level of human flourishing and well-being.

For this reason, human rights are mainly characterized as working to specify the limits of internal sovereignty.18 Just because of the role human rights play within the Law of Peoples,19 Rawls does not include among them all the moral rights of persons as such.20 In accordance with what Rawls writes about the function of human rights, they are to be understood as playing the practical role to limit reasons justifying the war and its conduction, functioning as nothing more than reasonable principles of tolerance (international aspect) and specifying the limits of a regime’s internal autonomy21 (national perspective). These two aspects are closely related: if a regime respects human rights, its political institutions can be qualified as decent and, as a consequence, to join the Society of Peoples; if it fails to protect them, or worse, it violates them persistently and systematically, a forceful intervention from other peoples would be seen as legitimate and reasonable, including the possibility to use military force.

Once ascertained that the narrowness of the list of human rights, though not conforming to the culture of human rights, can be justified for the aims the Law of peoples intends to achieve, how is it possible to make sense of such rights? Is it really plausible to think them only as principles whose violation legitimizes a forceful intervention, even military, against states which would turn out to be outlaw? Can we admit that the very nature of human rights consists in their political international function only? Rawls’s main concern about human rights is to describe which function such rights have to play within the system of international relations)22 and, as a consequence, human rights are not theorized in terms of universal interests, capabilities, agency-based interests and the like, although Rawls is aware of other possible approaches to human rights.23 In the Law of Peoples the particular function of human rights is an essential element to define some political concepts concerning relationships among nations such as those of legitimacy, sovereignty, legitimacy of an external intervention from a state to another and so on. Indeed, as Rawls suggests in some passages, the promotion of human rights should be a fixed common concern of the foreign policy of just and decent regimes. In other words, the promotion of human rights has to be one of transnational practices, maybe the most important, the Society of Peoples has to improve.24

In conclusion, we can state that Rawls’s primary aim is not to frame a theory of human rights in order to find universal sharable foundations, but, given that the focus of his attention is the special political role such rights play in the international domain, and since the stability of the relations among peoples depends on their respect, his effort consists in establishing a minimal set of worldwide sharable specific human rights, and this would be the fundamental reason of the minimalism of his list.

3. Political approaches to human rights: how to bypass the question of the foundations

According to advocates of a practice-based account of human rights, foundational appeals must be ruled out in favour of a more rigorous reference to the practice, because theorizing about human rights is not like outlining a theory of conditions to live a good life.25 This is the case of Charles Beitz and Joseph Raz: although they rightly stress the international importance of human rights and their special political value as matter of international concern, in their theories the reason why human rights constitute a moral ideal so politically important is not explained. As Beitz writes, “we take the functional role of human rights in international discourse and practice as basic: it constrains our conception of a human right from the start”.26 Likewise, Raz states that “the dominant trend in human rights practice is to take the fact that a right is a human right as a defeasible sufficient ground for taking action against violations in the international arena”.27 What it is about such rights that makes them so important remains unexplained. To the contrary, it’s just for the special role human rights play that there must be something that clarifies why they can play this pivotal function. What is bypassed in practice-based accounts is the importance of elements of the morality, those features of human beings that need normative protections.28 Also, these philosophers seem to deny the moral dimension of the language of human rights: if individuals had not been motivated by an ethics of altruism, if they had not felt a moral duty to protect human well-being at the international level, what else would motivate their intervention? Would perhaps be those basic individual interests (even economic or political) that Beitz himself rules out as possible reasons that may promote the intervention?29 Can really a theory of human rights be independent of moral considerations? What is that explains why the violation of human rights triggers reactions that are not warranted when ordinary moral rights are violated? Their being considered essentially triggers for intervention cannot explain their very nature.30 Indeed, human rights do not exist because they justify some kinds of external interventions, on the contrary, such forceful actions are justified when a certain human right is supposed to be violated. In Beitz’s account is not explicated what makes human rights so important, namely, I suggest, the protection of a certain individual moral status, and that can be explained in terms of freedom, independence, interests, capabilities, basic needs and so on. He incorrectly explores which role human rights play without realising the fact that specifying in which values should be grounded could be an important element to establish how such rights should be conceived. Accordingly, even a vague concept as that of human dignity is not only a phrase in human rights discourse,31 but rather it needs a further clarification. In his influential political perspective, Joseph Raz considers human rights as

rights which set limits to the sovereignty of states, in that their actual or anticipated violation is a (defeasible) reason for taking action against the violator in the international arena, even when – in cases not involving violation of either human rights or the commission of offences – the action would not be permissible, or normatively available on the grounds that it would infringe the sovereignty of the state.32

Taking inspiration from Rawls’s idea of human rights as political devices setting limits to the sovereignty of states, Raz develops a broader intervention account of human rights,33 also including sanctions and non-coercive measures. Although he admits that human rights are moral rights held by individuals,34 their existence remains contingent on particular practical conditions: human rights ask for institutional recognition, and individuals have them only when the conditions are appropriate for governments to have the duties to protect the interests which the rights protect. So they are rights transcending private morality,35 because only institutional background conditions are accepted as suitable reasons to ascribe human rights to people.

Overall, the most important steps forward of the practice-based accounts consist in revisiting the misleading conception of human rights as natural rights of the tradition. Indeed, political perspectives tend to refuse moral or naturalistic conceptions arguing that human rights affirmed in the Universal Declaration entail institutional and political frameworks which are impossible to find in the traditional theories of natural rights. This criticism is carried out in the name of the fidelity to actual human rights practice.36 As I’ll show below, this is not a good reason to reject those theories as deceptive at all: for instance, Tasioulas’ orthodox theory includes, along with other two desiderata of distinctive importance of human rights and their being non-Western values, the requirement of fidelity to the practice and the culture of human rights, as it has emerged post-1945.37

4. Moral understandings of human rights and their perspectives on the foundations

More generally, and contrary to the supporters of the political conception, philosophers endorsing a moral perspective stress that the question of the foundations should be addressed more carefully, invoking the appeal to elements of moral reasoning. I take Tasioulas’s moral pluralistic account as a paradigmatic example: he identifies in human universal interests and in the idea of human dignity the foundations of human rights. With respect to the former, he does not provide a list of interests, but only an indeterminate basic schema in which such interests are characterized as objective, standardized, open-ended, pluralistic and holistic.38 As for what he calls “the human nature conception of human dignity”, he means “an intrinsically valuable status that merits our respect, a status grounded in the fact of being a human being”. Being aware that what it is to be a human being is an inexhaustible topic, he does not give a precise definition but suggests some general elements that constitute human nature, such as

a characteristic form of embodiment; a finite life-span of a certain rough magnitude; capacities for physical growth and reproduction; psychological capacities, such as perception, self-consciousness, and memory; and, specifically rational capacities, such as the capacities for language-use, for registering a diverse range of normative considerations (including evaluative considerations, prudential, moral, aesthetic, and others besides), and for aligning one’s judgments, emotions and actions with those considerations.39

This pluralistic account, based on a general idea of human dignity and an open-ended list of human interests, is outlined in the attempt not to ground human rights in any particular conception of the good. It seems to me that even other theories of the foundations of human rights follow this path, that is to ground human rights in distinctive features of all human beings without appealing to controversial metaphysical or moral theories of human nature. In particular I refer to Matthew Liao’s “Fundamental conditions approach”40 and Massimo Renzo’s “Basic-needs view”.41

A different assessment should be given on James Griffin’s agency (or personhood)-based account, marked by a very serious issue of internal coherence. In his view, as not all human beings are endowed with the capabilities that his notions of personhood and agency entail,42 they cannot be considered to have the status of a person. As things stand, personhood and agency are not compelling universal grounds for human rights, because not all humans have them. The notions of personhood and agency are not comprehensive and not so wide to include certain kinds of human beings (e.g., new-borns), so Griffin’s account is subject to what I call the “non-universal applicability” objection: accordingly, the most important mistake of Griffin’s view consists in failing to understand that the idea of human rights implies that the holders of human rights are all human beings, without any kind of differences in capabilities related to their agency. As Joseph Raz has correctly observed, “one abandons the idea that human rights derive from our humanity once one says that babies or people with Down’s syndrome do not have (certain) human rights”.43

In addition, as a consequence of the lack of the needful requirement of universality, we have to deal with the awkward question of the way to consider human rights as moral rights too. Griffin fails to distinguish between human rights and moral rights, arguing that human rights are only a proper sub-set of the broader category of moral rights.44 This point becomes unmistakable when he horribly concludes his reasoning claiming that “human rights should not be extended to infants, to patients in an irreversible coma or with advanced dementia, or to the severely mentally defective. And if they do not extend to them, it is hard to find a case for extending them to foetuses”.45 On the grounds that neither human infants and foetuses, nor the severely mentally handicapped and sufferers from advanced dementia are normative agents, they have no human rights strictly speaking. They, instead, might have “certain general moral rights simply in virtue of being human”.46

This would suggest that there are rights (human rights) grounded in personhood, and other rights (moral rights) grounded in the idea of humanity. The former are (human) rights of normative agents and the latter are (moral) rights possessed by human beings (such as infants and persons affected by mental illness). We can note a strange inversion of concepts: beings, doubtless human, inasmuch not endowed with normative agency, have no human rights; normative agents, endowed with capabilities that not all persons possess, have human rights, whose main and more obvious feature is their universality. Are these theoretical complications a price worth to pay in order to give unity, accuracy and definiteness to a theory of human rights? Indeed, even though Griffin’s account gains in definiteness, it loses in universality, that feature inscribed in the idea itself of a “human” (and therefore universal) right. In this way, his account of personhood (and agency) as ground for human rights generates a vicious circle, a series of unsolvable speculative difficulties. This is because the whole theoretical framework of his theory relies on a narrow idea of person contrasting with the culture of human rights and the moral common sense, and, last but not least, with the law.47

All in all, what these philosophers are able to account for, or at least what they seem to grasp, is the practical bearing of the question of the foundations, its inevitability for the real justification and global enforceability and implementation of universal human rights. To drow the attention on the need to verify the theoretical validity and legitimacy of the political or practical understanding of human rights, showing how it’s just from human rights practice that by necessity arises the question of the foundations, is the very right step to reach the heart of the matter. But a precise analysis of the most important political views is not enough: it is not sufficient to summarize in an accurate manner the salient features of the positions of such authors, to highlight the critical points and to try to show that even a practice-based account needs to refer to elements of ordinary moral reasoning, and also to concepts and ultimate values such as human dignity or basic needs, merely concluding that the appeal to moral considerations is harder to avoid than defenders of the political view acknowledge.48

As for orthodox and moral views, to sum up their essential terms and to point out their critical arguments, and, where possible, the partial compatibility with political conceptions, is a stage to be carried out as well, but not a sufficient step. One of the most critical points of the moral theory consists in conceiving human rights as natural rights, and this is one of the reasons why many scholars reject such theories: Beitz, for example, charges of philosophical dogmatism those theories interpreting human rights as ahistorical and universal natural rights, even in temporal sense, because such accounts would not be relevant as they do not have a real impact on the current international practice of human rights.49 So, the main commitment of this area of research is to find the way to emend original natural theories, acknowledging in human rights not timeless natural rights but historical rights, shaped by the cultural development of mankind, whose content is constantly changing, without nullifying their universal moral dimension. For this reason, Tasioulas has coined the powerful expression “historically constrained universality”, meaning that “human rights would be possessed by humans qua human, but not necessarily at all times and all societies throughout history. Instead, they would be possessed by all in certain broadly defined historical contexts”.50 Such idea of a temporally constrained form of universality, that rules out an idealistic natural law approach, suggests that the question of which human rights exist can only be answered within some specified historical context. As Tasioulas writes, “for people today and the foreseeable future, human rights are those rights possessed in virtue of being human and inhabiting a social world that is subject to the conditions of modernity”.51

To name a few, human rights such as the rights to health care and education undoubtedly presuppose the existence of a certain political and institutional background, although the latter does not delete their specific moral character that comes from the idea of ​​human dignity and equal moral status of all individuals. People don’t have a right to education or to health care because established educational and healthcare systems exist, but they have such rights because they are essential conditions for a worth human life. If these rights are so fundamental, then these rights could be good reasons to set up those institutions protecting them.52 Accordingly, proponents of the moral understanding have shaped their idea of human rights as “natural” rights in the sense that they are rights all human beings possess simply in virtue of their (natural) humanity and irrespective of political institutions, although it is impossible to deny that political institutions are fundamental for their enforcement. In this sense, human rights bridge the gap between some fundamental moral values that could work as their foundations and institutional and social systems which should enforce them.53 This way, moral theories don’t fail to fulfill the fidelity constraint to practice, inasmuch they acknowledge human rights as necessarily linked to a certain kind of social and institutional context. To be rooted in an institutional background does not compromise human rights’ authority, their essential moral dimension, nor their ontological grounds of common humanity, dignity and equality of all human beings.

5. Why human rights need for philosophy: the practical significance of the theoretical question of the foundations

The general thesis I want to endorse is that the question of the foundations of human rights has important consequences in the field of the practice. Admittedly, although the theoretical problem of the foundations could have been eluded at the moment of drafting the Universal Declaration, when human rights have to be actually applied to particular circumstances, then the different underlying ethical or political ideas rise up. Indeed, if the universality of human rights is part of their very nature, we cannot deny that there are a great variety of moral doctrines endorsed by persons belonging to different cultures. Accordingly, the theoretical issue of the foundations turns out to be essential to identify the concept of human dignity we intend to defend. So, the historical content of human rights depends on the idea of human dignity from which we infer them or we put as their ground.

Generally, political theories of human rights are used to underestimate the practical consequences of the problem of foundations. Even Norberto Bobbio, anticipating the current debate, argued that “it is not a matter of knowing which and how many of those rights there are, what their nature is and on what foundation they are based, whether they are natural or historical, absolute or relative; it is a question of finding the surest method of guaranteeing rights and preventing their continuing violation”.54 According to Bobbio, the fundamental problem of human rights does not consist in their need to be justified, but rather in protecting them. Foundational arguments, such as those regarding what these rights are, why we have them and what they are based on, should be avoided altogether, in favor of the understanding of which roles these rights actually play in the international political context, just because it’s not a philosophical problem, but political. In the debate between moral and political perspectives, the practical relevance of the problem of foundations has played the role of the very matter of importance, on the one hand considered as irrelevant, on the other hand recommended as providing more powerful arguments to answer the basic questions about the way to justify human rights.

Although among latest studies we can find many attempts to show the complementary nature of the two paradigms,55 what it seems to me the less explored pathway in the current research is the proposal of a different understanding of the political conception, aiming to show how in fact this account of human rights is constitutionally insufficient and inadequate in respect to the need to explain their essential nature. Besides Tasioulas, it seems to me that only few other authors have addressed the problem of the structural inadequacy of political view, resisting to conciliate the two paradigms and charging the political perspective to appeal, against its purpose, to some elements of common moral reasoning. This is what Renzo labels “the Priority of Morality over the political”.56 Accordingly, it would be incumbent upon defenders of practice-based theories to justify their principled denial of the importance of moral elements, recurring to them notwithstanding. Stressing the basic theoretical failure that characterizes the political conception, we can see that it provides, all things considered, only a theory of the political function human rights play, wrongfully bagging the question of the foundations. As a result, a practice-based account, only emphasizing the practice, avoids to face with theoretical issues that have, however, a decisive impact on the practice, one above all the problem of the relationship between cultural diversity and universality of human rights. Therefore, a possible solution does not consist in developing a theory that conciliates the two paradigms, but in showing that a theory of human rights has to encompass not only a proper configuration of their political function in both national and international domain, but also an account of their nature and foundations inasmuch as the latter are relevant to the practice itself. In other words, a theory of human rights has to account for the practical aspect of their implementation and the theoretical aspect of their justification.

As things stand, the fallacy of political perspective does not lie in the incompleteness of the theory, but in the lack of awareness that the problem of foundations has a practical effect: if it is true that the question of the foundations had been set aside at the time of the Universal Declaration because it would have generated undoubtedly irreconcilable divisions and conflicts,57 it is also true that when human rights are to be practically applied to particular cases, the question of foundations becomes inescapable. Consider, for example, the question of democratization: how to conciliate the trend of globalization of democracy that characterizes the contemporary practice of human rights with the cultural and political diversity of today’s world? Does really exist a human right to democracy (as it seems to be stated by the Art. 21 of the Universal Declaration) or do we have not to believe that such right is universal, as claimed by theorists of political conception such as Beitz and Cohen?58 In this case, it has to be said, the practice-based view is at odds with the practice itself. How then to reconcile the practice of human rights which the political conception appeals to with the issue of cultural diversity? Here we find an obvious need to return to the question of the foundations because the charges of parochialism, or of the alleged cultural imperialism of Western-style practiced by the contemporary culture of human rights, pose problems that need a solution that must be sought first of all in theoretical terms, inviting us to reflect on the idea of human dignity, human development and well-being, all the elements the political view downplay, rejecting their practical relevance. The universality of human rights invites us to reconsider, contrary to what is suggested by Raz, the idea that the existence of a certain human right is related to contingent factors (socio-economic and political-institutional), or to favourable conditions for the recognition and an appropriate strategy for its implementation and enforceability.59 Therefore, although human rights are undoubtedly a cultural fact, a kind of social practice that involves their being rooted in an institutional dimension, they remain nonetheless rights that all human beings have simply in virtue of their belonging to the human race. And even though it is undeniable that human rights have important implications in assessing the legitimacy of political institutions,60 their true nature cannot be explained on the basis of their role as moral criteria for the assessment of political legitimacy. Indeed, as suggested by Tasioulas, what is at stake when we talk about human rights is not only the legal-institutional or political dimension, but rather a real human rights ethos that challenges us personally and directly.61 If talking about universal human rights makes sense, this is due to the existence of these rights just for the mere fact of the existence of human beings, who are thus not only subjects of rights, but also sources of duties and responsibilities to third parties, which could be institutions or individuals. Indeed, the fact that institutions, such as states, are the best suitable and appropriate duty-bearers, does not imply that human rights cannot be conceived as elements of an ethics between individuals too.

The universality of these rights is somehow intuitive in the sense that it is implicit in the concept of human rights itself that they should be thought as universal or not to be thought at all. Questioning their universality would mean to put in question the very meaning of this concept: if those rights were not designed as universal, why would we qualify them as human rights? They are human rights (universal) because they are inherent to the person as such, regardless of recognition or attribution of any public power or political institution. In this sense, the contemporary research should be oriented to show how the moral conception better interprets the urgency of protecting human rights, because it understands them not as a code or a system of legal principles, but as elements of a “distinctive ethical sensibility”,62 allowing us to consider them first of all as part of an ethical paradigm pervading our lives, erasing the boundaries between public and private, between society and the state, without denying the necessity of an institutional and political background to rely on to be enforced. Also, this conception emphasises their need to be institutionalized, which remains, after all, only a further fact.63 Thus, in conceiving them first and foremost as universal ethical demands to be fulfilled, and not only as legal devices,64 it would be useful and powerful trying to bring to light the normative implications for different moral agents in various contexts,65 highlighting that the focus on the consequences of the practical aspects of international politics of human rights would ultimately offer a distorted view of their very nature. Human rights may well be reflected in the law, may inspire legislation, and work, in many circumstances, as ideals that require legislative attention. However, these are always further facts not defining their structural characteristics. Human rights must be seen primarily as “articulations of a commitment in social ethics”,66 and as such they do not need to involve official disrespect.67

In addition, because of the requirement of consistency and fidelity to the practice of human rights, which stems from the Universal Declaration, it must be stressed that already in the Preamble of the latter seems to be found an implicit understanding of human rights that transcends international politics, and that also foreshadows an ethics of relations between individuals, according to which human rights should be considered as

a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.68

It’s quite clear that, if the function of the Universal Declaration is to recognize and to promote the respect of human rights, such rights are pre-existing and not consequences of legislation. Therefore, they are rights that all human beings have simply in virtue of their humanity. In this framework, the concept of human dignity is conceived as the highest moral value that human rights, as cultural and institutional devices, have the duty to defend. Furthermore, Maritain’s famous remark about the possibility of a practical agreement only on condition that “no one ask us why”69 should not be considered a definitive assessment, just like the achievement of a covenant established once and for all, because such practical agreement, far from being a goal beyond which it is not advisable to go, is a starting point from which arises a question about the foundations.70 Indeed, a practical agreement only does not justify the existence of human rights, and we research about the foundations just because declarations and international covenants are insufficient. From this point of view, a practical agreement remains a theoretical problem rather than an ultimate solution.

As it has been observed by Amartya Sen, “there is something deeply attractive in the idea that every person anywhere in the world, irrespective of citizenship or territorial legislation, has some basic rights, which others should respect”,71 and the very aim of a theory of human rights is to clarify how this is possible, coping with the longstanding question of the tension among alleged universal human rights and moral or cultural pluralism.72 Like for any other issue, even in the case of human rights philosophy highlights the reasons why a solution to a problem is hard to find, though it does not provide us with a definitive answer.

Philosophy in this field has the task of explaining how moral reasoning and ethics can bridge the gap between theory and practice. In taking this path, I suggest, a moral approach to human rights has the makings of pointing out the practical importance of the foundational elements from which we infer human rights, allowing us to definitively dismiss theories exclusively based on the practice. I am fully convinced that the future of human rights discourse, both in theory and practice, is linked to the knowledge of the reasons that justify them and, at least in principle, it is in this sense that the theoretical effort at grounding human rights strengthens their actual protection too. Philosophy of human rights has to look for evidence and increasingly compelling arguments to ground human rights, in order to make defences provided by violators of human rights weaker than reasons advanced to justify them.

6. Conclusion

I tried to stress the importance of the question of the foundations of human rights in relation to their practical relevance, showing how that looking like only a theoretical issue has practical implications originating from the practice itself. In the contemporary debate on the nature of human rights between moral theorists and advocates of political conceptions, the latter have been overlooking the question of foundations, in very truth seeming to be afraid to deal with theoretical issues in favour of the reassuring certainty given by the reference to human rights practice as a sort of grounding element as well. In particular, theorists of the political view address the question of the foundations as irrelevant to the practice, because it is considered as a dangerous arena of ideological conflicts that should be avoided to reach the more urgent practical compromise, a de facto consensus, about human rights. As for the moral theories, they should be recommended as more impressive because they acknowledge the importance of an institutional or political background without underestimating the practical significance of the values they consider fundamental for grounding human rights. Indeed, they charge the practice-based theories exactly to confer no suitable importance on elements of ordinary moral reasoning, which are, ultimately, unavoidable when we talk about human rights and their justification.

  1. There are excellent discussions on these three classic critiques in J. Waldron, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, Methuen, London, 1987. ↩︎

  2. Burke, quoted in J. Waldron, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, Methuen, London, 1987, p. 99. ↩︎

  3. Bentham, quoted in J. Waldron, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, Methuen, London, 1987, p. 53. ↩︎

  4. Marx’s On the Jewish Question as printed in J. Waldron, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, Methuen, London, 1987, pp. 137-150. ↩︎

  5. A. MacIntyre, After Virtue: A Study in Moral Theory, Duckworth, London, 1981, p. 67. ↩︎

  6. J. Tasioulas, The Moral Reality of Human Rights, in T. Pogge (ed.), Freedom from Poverty as a Human Right. Who Owes What to the Very Poor?, Oxford University Press, Oxford, 2007, p. 75. ↩︎

  7. J. Rawls, The Law of Peoples, Harvard University Press, Cambridge, Massachusetts, 1999, p. 27. ↩︎

  8. The conception I here describe as “orthodox”, following the term Tasioulas uses in his writings, is also defined in many other ways: “traditional approach” (J. Raz, Human Rights without Foundations, in S. Besson and J. Tasioulas (eds.), The Philosophy of International Law, Oxford University Press, Oxford, 2010, p. 323); “humanist conception” (P. Gilabert, Humanist and Political Perspectives on Human Rights, in Political Theory, 39 (4), 2011); “natural-law approach” (L. Valentini, In What Sense are Human Rights Political? A Preliminary Exploration, in Political Studies, Vol. 60, 2012, p. 180.); “naturalistic conception” (M. Liao-A. Etinson, Political and Naturalistic Conceptions of Human Rights: A False Polemic?, in Journal of Moral Philosophy, No. 9, 2012); “human bearer approach” (J. Waldron, Human Rights: A Critique of the Raz/Rawls Approach, in A. Etinson (ed.), Human Rights: Moral or Political?, Oxford University Press, Oxford, 2018, p. 117). ↩︎

  9. J. Rawls, The Law of Peoples, p. 3. ↩︎

  10. For the concept of “public reason” see J. Rawls, The Law of Peoples, pp. 129-180; for the idea of public reason in relation to the Law of Peoples see ibidem, pp. 121-123. ↩︎

  11. I leave aside the way to understand Rawls’s notion of peoples. ↩︎

  12. Rawls’s list of human rights includes: the right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom, and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by the rules of natural justice (that is, that similar cases be treated similarly). Human rights, as thus understood, cannot be rejected as peculiarly liberal or special to the Western tradition. They are not politically parochial. See J. Rawls, The Law of Peoples, p. 65. ↩︎

  13. Ibid., 81. ↩︎

  14. Ibid., 27. ↩︎

  15. Ibid., 78-79. ↩︎

  16. Ibid., 79. ↩︎

  17. Ibid., 80. ↩︎

  18. K. Baynes, Toward a Political Conception of Human Rights, in Philosophy & Social Criticism, Vol. 35, No. 4, 2009, p. 379. ↩︎

  19. To sum up: to set limits to a government’s internal autonomy and to restrict the reasons for war and its conduct, namely making war only in self-defense, or to protect the human rights of other peoples when violated by their own or another government, and to respect human rights of enemy noncombatants. As regards noncombatants, they are not to be targeted for attack, and measures should be taken to protect them and their property from injury. ↩︎

  20. S. Freeman, Introduction: John Rawls – An Overview, in S. Freeman (ed.), The Cambridge Companion to Rawls, Cambridge University Press, Cambridge, UK, 2003, p. 47. ↩︎

  21. J. Rawls, The Law of Peoples, p. 79. ↩︎

  22. As he writes, “the Law of Peoples proceeds from the international political world as we see it, and concerns what the foreign policy of a reasonable just liberal people should be” (J. Rawls, The Law of Peoples, p. 83. See also ibidem p. 3; p. 41; p. 57). ↩︎

  23. J. Rawls, The Law of Peoples, p. 13; p. 65, and B. Wilkins, Rawls on Human Rights: A Review Essay, in The Journal of Ethics, Vol. 12, (1), 2008, pp. 110-111. ↩︎

  24. J. Rawls, The Law of Peoples, p. 48. ↩︎

  25. J. Raz, Human Rights without Foundations, p. 327. ↩︎

  26. C. Beitz, The Idea of Human Rights, Oxford University Press, Oxford, 2009, p. 103. ↩︎

  27. J. Raz, Human Rights without Foundations, p. 328. ↩︎

  28. An illuminating discussion on this idea, and the priority of moral aspects over the political ones, is in M. Renzo, Human rights and the Priority of the Moral, in Social Philosophy & Policy, Vol. 32, 1, 2015. Also, Renzo’s perspective could be seen as an ideal delayed reply to A. Sangiovanni, Justice and the Priority of Politics to Morality, in Journal of Political Philosophy, 16 (2), 2008. ↩︎

  29. C. Beitz, The Idea of Human Rights, pp. 39-42. ↩︎

  30. J. Tasioulas, Are Human Rights Essentially Triggers for Intervention?, in Philosophy Compass, 4, 6, 2009. ↩︎

  31. In this regard see C. Beitz, Human Dignity in the Theory of Human Rights: Nothing But a Phrase?, in Philosophy and Public Affairs, 41, No. 3, 2013. ↩︎

  32. J. Raz, Human Rights without Foundations, p. 328. ↩︎

  33. This expression is used by Tasioulas in J. Tasioulas, Are Human Rights Essentially Triggers for Intervention?, pp. 943-947. ↩︎

  34. J. Raz, Human Rights without Foundations, p. 335. ↩︎

  35. J. Raz, Human Rights without Foundations, p. 335-336. ↩︎

  36. For a discussion on this point see J. Tasioulas, On the nature of human rights, in G. Ernst e J. C. Heilinger (eds.), The Philosophy of Human Rights: Contemporary Controversies, Walter de Gruyter, Berlin/Boston, 2012, p. 53. ↩︎

  37. J. Tasioulas, On the nature of human rights, pp. 18-19. For human rights culture Tasioulas means “the discourse, practices and institutions concerning human rights in which legislators, citizens, lawyers, political activists, states, non-governmental organizations, international and regional organizations such as the United Nations and the European Union and various other decidedly non-philosophical agents are leading protagonists” (J. Tasioulas, Human Rights, Universality and the Values of Personhood: Retracing Griffin’s Steps, in European Journal of Philosophy, 10, 1, 2002, p. 79). ↩︎

  38. J. Tasioulas, On the Foundations of Human Rights, in R. Cruft, M. Liao, and M. Renzo (eds.), Philosophical Foundations of Human Rights, Oxford University Press, Oxford, 2015. In another article he summarizes their features in the following way: “First, they are universal interests, possessed by all human beings simply as human beings (inhabiting, we might add, some broadly defined historical epoch). Second, they are objective in status: they are interests of human beings whether or not those human beings believe them to be interests of theirs or desire their fulfilment. Finally, there is a plurality of interests that can give rise to human rights. In grounding human rights, we can avail ourselves of diverse aspects of the human good, provided they are genuinely universal: interests in knowledge, friendship, play, achievement, autonomy, and so on. Indeed, any given human right will typically be grounded in a cluster of affected interests” (J. Tasioulas, Human Dignity and the Foundations of Human Rights, in C. McCrudden (ed.), Understanding Human Dignity, Oxford University Press, Oxford, 2013, pp. 295-296). ↩︎

  39. J. Tasioulas, Human Dignity and the Foundations of Human Rights, p. 305. ↩︎

  40. M. Liao, Human Rights as Fundamental Conditions for a Good Life, in R. Cruft, M. Liao, and M. Renzo (eds.), Philosophical Foundations of Human Rights, Oxford University Press, Oxford, 2015. ↩︎

  41. M. Renzo, Human Needs, Human Rights, in R. Cruft, M. Liao, and M. Renzo (eds.), Philosophical Foundations of Human Rights, Oxford University Press, Oxford, 2015. ↩︎

  42. This is what Griffin writes about the way to understand human rights and their foundations: “Human rights can then be seen as protections of our human standing or, as I shall put it, our personhood. And one can break down the notion of personhood into clearer components by breaking down the notion of agency. To be an agent, in the fullest sense we are capable, one must (first) choose one’s own path through life – that is, not to be dominated or controlled by someone or something else (call it 'autonomy'). And (second) one’s choice must be real; one must have at least a certain minimum education and information. And having chosen, one must then be able to act; that is, one must have at least the minimum provision of resources and capabilities that it takes (call all of this 'minimum provision'). And none of this is any good if someone then blocks one; so (third) others must also not forcibly stop one from pursuing what one sees as a worthwhile life (call this 'liberty')” (J. Griffin, On Human Rights, Oxford University Press, Oxford, 2008, p. 33). ↩︎

  43. J. Raz, Human Rights without Foundations, p. 323. ↩︎

  44. J. Tasioulas, Taking Rights out of Human Rights, in R. Crisp (ed.), Griffin on Human Rights, Oxford University Press, Oxford, 2014, p. 18. ↩︎

  45. J. Griffin, On Human Rights, p. 95. ↩︎

  46. Ibid., p. 83. ↩︎

  47. M. Renzo, Human rights and the Priority of the Moral, p. 146. ↩︎

  48. This line of thought is developed, among others, by P. Gilabert, Humanist and Political Perspectives on Human Rights and L. Valentini, In What Sense are Human Rights Political? A Preliminary Exploration↩︎

  49. C. Beitz, What Human Rights Mean, in Daedalus, Vol. 132, No. 1, p. 38; for this idea see also J. Raz, Human Rights without Foundations, p. 327. ↩︎

  50. J. Tasioulas, Human Rights, Universality and the Values of Personhood: Retracing Griffin’s Steps, p. 87. ↩︎

  51. J. Tasioulas, The Moral Reality of Human Rights, p. 76. ↩︎

  52. P. Schaber, Human rights without foundations?, in G. Ernst e J. C. Heilinger (eds.), The Philosophy of Human Rights: Contemporary Controversies, Walter de Gruyter, Berlin/Boston, 2012, p. 66. ↩︎

  53. J. Tasioulas, Cosa è un diritto umano?, in Ragion Pratica, Vol. 34, Giugno, 2010, p. 127. ↩︎

  54. N. Bobbio, The Age of Rights, trans. by Allan Cameron, Polity, Cambridge, UK, 1996, p. 12. ↩︎

  55. See in particular: P. Gilabert, Humanist and Political Perspectives on Human Rights; L. Valentini, In What Sense are Human Rights Political? A Preliminary Exploration; E. Mayr, The political and moral conceptions of human rights – a mixed account, in G. Ernst and J. C. Heilinger (eds.), The Philosophy of Human Rights: Contemporary Controversies, Walter de Gruyter, Berlin/Boston, 2012; M. Liao-A. Etinson, Political and Naturalistic Conceptions of Human Rights: A False Polemic?↩︎

  56. M. Renzo, Human rights and the Priority of the Moral. On this idea see also P. Schaber, Human rights without foundations?, and M. Liao, Human Rights as Fundamental Conditions for a Good Life↩︎

  57. In drafting the Universal Declaration the question of the foundations was avoided in favor of the priority of the practical agreement. On this question see J. Maritain, On the Philosophy of Human Rights, in UNESCO (ed.), Human Rights: Comments and Interpretations, Columbia University Press, New York, 1949. ↩︎

  58. C. Beitz, The Idea of Human Rights, pp. 174-185 and J. Cohen, Is There a Human Right to Democracy?, in C. Sypnowich, (ed.), The Egalitarian Conscience, Oxford University Press, Oxford, 2006. The alleged human right to democracy is one of the most contested human rights. Many authors debate about a pure human right to political participation or democracy and the idea of democracy as the most appropriate form of government for the effective protection and realization of human rights. In this context, I refer to it only to stress the discrepancies between the human rights practice and the political view which appeals to it. ↩︎

  59. J. Raz, Human Rights without Foundations, pp. 335-336. ↩︎

  60. L. Valentini correctly points out that it is only in this sense that human rights could be defined as properly “political”, that is in regard to their iudicandum (L. Valentini, In What Sense are Human Rights Political? A Preliminary Exploration). ↩︎

  61. J. Tasioulas, Towards a Philosophy of Human Rights, in Current Legal Problems, 65, 2012, p. 25. ↩︎

  62. Ibid., p. 4. Actually, as observed by Michael Ignatieff, although political societies are characterized by a pluralism of cultures, religions and ethical convictions, we use the language of human rights just to indicate that our species is one, and that all individuals who make it up have the right to equal moral consideration (M. Ignatieff, Human Rights as Politics and Idolatry, Princeton University Press, Princeton, NJ, USA, 2001, pp. 3-4). ↩︎

  63. A. Sen, Elements of a Theory of Human Rights, in Philosophy and Public Affairs, 32, No. 4, 2004, p. 319. ↩︎

  64. Ibid., p. 319. ↩︎

  65. For an interesting discussion about the array of agents and agencies of justice (that should secure the protection of human rights as well), with a particular emphasis on the obligations and the identification of duty-bearers, see O. O’Oneill, Agents of justice, in Metaphilosophy, Vol. 32, Nos. 1/2, 2001. ↩︎

  66. A. Sen, The Global Reach of Human Rights, in Journal of Applied Philosophy, Vol. 29, No. 2, 2012, p. 92. ↩︎

  67. Official disrespect is at the base of Thomas Pogge’s political and institutionalist account (T. Pogge, World Poverty and Human Rights. Cosmopolitan Responsibilities and Reforms, Polity Press, Cambridge, 2010). ↩︎

  68. Preamble to the Universal Declaration of Human rights (1948). ↩︎

  69. J. Maritain, On the Philosophy of Human Rights. Massimo Renzo correctly stresses that Maritain himself believed that human rights were ultimately grounded in what he considered to be inalienable natural rights (M. Renzo, Human Needs, Human Rights, p. 573). ↩︎

  70. As Liao and Etinson observed, “the framers of the Universal Declaration deliberately refrained from providing any common justification for its content, a plausible explanation regarding their motivation is that they refrained on pragmatic grounds, and not because they believed that ordinary moral reasoning/justification was not necessary theoretically” (M. Liao – A. Etinson, Political and Naturalistic Conceptions of Human Rights: A False Polemic?, p. 335). Speaking of this abstention from philosophical or moral commitment by those who drafted the Declaration, Griffin talks about a “reasonable silence”, just like that of the law that does not justifies many of its norms (J. Griffin, On Human Rights, p. 25). Ignatieff suggests that silence of Declaration’s framers about theoretical foundations can be seen as one of the reasons of its brilliance (M. Ignatieff, Human Rights as Politics and Idolatry, p. 88). ↩︎

  71. A. Sen, Elements of a Theory of Human Rights, p. 315. ↩︎

  72. Pointing out the slackening of this tension between universality of human rights and cultural pluralism as the very aim of human rights theory, I do not mean that this problem has never been addressed in the past, but only that it is the decisive philosophical problem about human rights, because it unavoidably arises from the practice. On the way to deal with this matter see for example J. Donnelly, The Relative Universality of Human Rights, in Human Rights Quarterly, Vol. 29, No. 2, 2007. ↩︎