Human Rights as Politics and Idolatry

INDEX

Introduction

AMY GUTMANN

NO ONE shall be subject to cruel, inhuman, or degrading treatment or punishment. This statement of Article 7 of the International Covenant on Civil and Political Rights is part of what Michael Ignatieff aptly calls the juridical revolution in human rights since 1945. Other critical international documents of the revolution include the Universal Declaration of Human Rights and the Geneva Conventions of 1948, the revision of the Geneva Conventions of 1949, and the international convention on asylum of 1951.

Covenants without swords are but words, Thomas Hobbes famously wrote. What kind of revolution is marked by so many words that lack the backing of swords? The International Covenant, unlike the original Universal Declaration, is a legally binding treaty among nations. A Human Rights Committee has the authority to adjudicate violations that are brought before it. The legally binding nature of this and other human rights treaties is another indication of the rights revolution. To say that human rights are legally binding, however, is not to say that there is an authoritative agent with the power to hold sovereign states to the law. For this and many other reasons, the human rights revolution is far from complete, and its capacity to come closer to realizing its aims is widely questioned, especially outside of now highly organized communities of human rights activists. Moreover, what would count as a successful completion of the human rights revolution is by no means clear, or clearly established in either the theory or the practice of human rights in the international arena.

We therefore begin this book with the most basic set of questions concerning the political morality of human rights. What is the purpose of human rights? What should their content be? When do violations of human rights warrant intervention across national boundaries? Is there a single moral foundation for human rights that spans many cultures, or are there many culturally specific moral foundations, or none? In what sense, if any, are human rights universal? These are among the hard and critical questions raised by the human rights revolution, and addressed by Michael Ignatieff's two essays in this volume and the commentaries by Anthony Appiah, David Hollinger, Thomas Laqueur, and Diane Orentlicher to which Ignatieff responds. The essays and commentaries were first presented as the 1999–2000 Tanner Lectures on Human Values at Princeton University under the auspices of Princeton's University Center for Human Values.

If we begin with the most basic question—What is the purpose of human rights?—we will immediately see how hard it is to arrive at a meeting of minds on a single answer. Harder to see, apparently, is how unnecessary it is to insist on a single answer. Human rights can serve multiple purposes, and those purposes can be expressed in many ways, not only across different societies and cultures, but even within them. No major culture is univocal in its answer to this question. That there can be many good answers to a single question as practically important as the purpose of human rights should not prevent us from offering our own best answer, especially if that answer is one that speaks to many people, as does Ignatieff's understanding of human rights.

The purpose of human rights, Ignatieff argues, is to protect human agency and therefore to protect human agents against abuse and oppression. Human rights protect the core of negative freedom, freedom from abuse, oppression, and cruelty. This is a starting point for some complex thinking about what the purpose and content of the evolving international human rights regime should be. But even the starting point is more complex—and contestable—than first appearances might suggest. Protecting human agencies, and protecting human agents against abuse and oppression, cannot be identified simply (or solely) with negative liberty, freedom from interference. Nor is the core of human rights constituted only by negative freedoms. The right to subsistence is as necessary for human agency as a right against torture. A right to subsistence is not a negative freedom, as the right against cruel and unusual punishment is. Starving people have no more agency than people subject to cruel and unusual punishment. Including subsistence rights in the human rights regime was also an important part of reaching an international agreement on the nature of human rights.

If an important purpose of human rights is to protect human agency, and the rights that protect human agency are not exclusively negative liberties, it is still the case, as Ignatieff argues, that a human rights regime does not claim—or realistically aspire—to be morally comprehensive. The enforcement of human rights in the international arena does not guarantee that anyone whose rights are effectively protected will live a wonderful life. Or even a (morally or nonmorally) good life. When human rights are honored and enforced, they are effective instruments to protect individuals from abuse, cruelty, oppression, degradation, and the like. This purpose of human rights—which Ignatieff calls pragmatic, which is not to deny that it is moral in its core purpose of protecting human agency (just as pragmatism is a moral and political philosophy)—can provide a guide to the content of a human rights regime. Human rights institutions and agencies—both governmental and nongovernmental—should not try to proliferate human rights beyond what is necessary to protect persons as purposive agents, or to realize a similarly basic purpose of human rights (such as the dignity of persons, a purpose that Ignatieff rejects and to which I shall return). Proliferation of human rights to include rights that are not clearly necessary to protect the basic agency or needs or dignity of persons cheapens the purpose of human rights and correspondingly weakens the resolve of potential enforcers.

Proliferation of human rights also makes it far more difficult to achieve the broad intercultural assent to rights that an international human rights regime requires to be effective. If human rights are pragmatic political instruments, then human rights regimes should aspire to be effective before they aspire to be more comprehensive in their pronouncements. Human rights should not be conceived as guarantors of social justice, or substitutes for comprehensive conceptions of a good life. Protections against cruel, inhuman, and degrading treatment—all of which are compatible with multiple expressions of the purpose of human rights—are widely viewed as the core of a human rights regime. If protections against cruelty and degradation—freedom from harm and freedom to live a decent life—are not human rights, then one might say that nothing is. And some people, of course, do say that nothing is a human right, but that does not mean that they are right, or even reasonable in claiming that there are no human rights. To believe in human rights does not entail believing that they exist independently of human purpose. Human rights are important instruments for protecting human beings against cruelty, oppression, and degradation. That's all we need to believe to defend human rights. Many people believe far more about human rights, for example, that there is a divine or natural source of human rights. The human purpose of defending human rights, however, may not differ dramatically, even if the imputed sources do.

But must a human rights regime be restricted (or restrict itself) to protections of negative freedoms alone to be effective, to gain international assent and enforcement, as Ignatieff sometimes suggests? I am doubtful in light of the arguments (including many made by Ignatieff himself), the evidence of the origins of the Universal Declaration, and the apparent need to include rights to subsistence (which are not negative freedoms) to gain international assent to most human rights documents in the global arena. Although rights to subsistence and to basic political freedoms (due process, habeas corpus) are not negative liberties, they too are a necessary part of what it means to treat people as purposive agents, and to protect them against degrading treatment, of which dire poverty is certainly one form. A human rights regime still needs to avoid overextending itself beyond what are reasonable aspirations. But it also needs to avoid a minimalism so sparing that its enforcement would leave the most vulnerable people without what is (minimally) necessary to protect their ability to live a minimally decent life by any reasonable standards. Starving people are denied their human agency. They are also being denied their dignity, and they are being degraded. They are not being treated as agents with a human life to lead. There are many other ways to describe the gross injustice inflicted upon starving people in today's world, where there are ways both to prevent starvation and to address it when it occurs. What counts as minimal human rights is bound to be contentious, and broad assent is essential for effective enforcement. But there is good reason to think that an effective human rights regime needs to safeguard subsistence rights as well as a set of negative liberties.

Another reason to wonder whether we should hold human rights regimes to only the most minimalist standards is that problems of agreement, interpretation, and enforcement inhere even in the most minimalist formulations of human rights. Minimal is not necessarily synonymous with maximally consensual or easiest to enforce. It may be easier to enlist agreement on a set of human rights that combine protections of negative freedoms with subsistence, and maybe even other welfare rights, than it is to insist on restricting a human rights regime to negative liberties alone. Ignatieff makes no such insistence, but he often argues or alludes to the idea that human agency supports only negative liberty. I have argued that human agency itself supports more than negative liberty. But my argument is only one of several that could be cited in defense of subsistence rights (and perhaps also more rights) as part of a human rights regime that is neither minimalist nor maximalist.

Despite the attraction of minimalism, it must be said that what counts as a minimal set of human rights is by no means either obvious or agreed upon by even good-willed people. Even the means of protecting people against cruel, inhuman, or degrading…punishment is open to reasonable disagreement. When the Taliban stone women to death for adultery, this is about as clear a violation of a human right against cruel, inhuman, and degrading treatment as any. But does the United States violate a human right that belongs in the minimal set when its judicial system sentences people to death? Does capital punishment as practiced today in the United States constitute a human rights violation under Article 7? To answer in the affirmative, one need not think that capital punishment is equivalent to the worst atrocities committed by the Taliban. To answer in the negative, one need not approve of capital punishment or even be anything less than an ardent opponent of the practice. This example illustrates the problem of determining how to characterize even a minimal set of human rights. If capital punishment violates a minimal set of human rights, then it cannot be said that the minimal set is uncontroversial, or that it lends itself to effective international enforcement. The U.S. government is famous—or infamous, depending on one's perspective—for not acknowledging the legitimacy of human rights enforcement against its own authority on grounds that its authority is rooted in the consent of the governed to constitutional democratic sovereignty. The example of capital punishment reveals that the sovereignty of a constitutional democratic regime is no guarantee against tyranny of the majority or minority. (Majorities often do not rule in democracies.) It also remains an open question as to whether more than minimal human rights—an avidly moderate regime of human rights—would fare better or worse by way of international agreement and enforcement.

An equally serious problem for human rights in the international arena—illustrated by the self-exemption of many societies from all or part of the human rights regime—is nationalism. Nationalism is often asserted as a human rights claim on behalf of a self-determining people. Ignatieff perceptively argues that nationalism is a double-edged sword. Universalized as a human right, nationalism is conceived as the right of collective self-determination. This raises the question of whether collective self-determination is part of the minimal set of human rights because it is intrinsically valuable (for a self-determining people) or because it is an instrument, a means (as human rights should be) for protecting individuals who share a society together against the worst cruelties that politically organized societies can inflict on individuals. The idea that secure states can better guarantee rights than any available alternative is an instrumental defense of collective self-determination, but not a defense of nationalism per se. To defend collective self-determination as a right that is instrumental to protecting individuals against cruelty, one need not believe that every people has a right to its own self-determining society, which would permit it to exercise sovereignty over its members.

When a right to collective self-determination is identified with a defense of nationalism, understood as the self-determination of a people, the right loses its clear connection to protection of human agency against cruelty, oppression, and degradation. This is because, as Ignatieff recognizes, nationalism solves the human rights problems of the victorious national groups while producing new victim groups, whose human rights situation is made worse. Collective self-determination needs to be distinguished from nationalism for it to qualify as a means of protecting all persons against the worst forms of cruelty and oppression. There is no right to victimize individuals in the name of being a people or nation. Nationalism is the response to one human rights problem and the creation of another because nations assume the authority to victimize individuals under the guise of their right to self-determination.

A human rights regime therefore cannot consistently defend nationalism—or the absolute sovereignty of a people—as what the human right of collective self-determination entails. Collective self-determination as a human right does not carry with it the authority to oppress minorities. Collective self-determination is a human right exercised in groups, which is conditional—as are all such group rights—on the group's respecting the other rights of individuals. Whenever collective self-determination is confused with national sovereignty in an unqualified sense, it increases the risk of other rights violations; indeed, it sometimes supports other rights violations. Human rights violations cannot be justified—or even condoned or excused—in the name of nationalism; human rights violations render nationalistic states subject to criticism, sanction, and, as a final resort, intervention. Determining that a nation-state has violated basic human rights, however, does not tell us whether and what kind of criticism, sanction, or intervention is likely to succeed in improving the situation of oppressed individuals, which is, of course, the purpose of human rights as political instruments.

The most controversial—and sometimes the only potentially effective—response to persistent human rights violations by states is intervention. Under what conditions, Ignatieff therefore asks, is intervention justified to reverse human rights abuses within states? Like nationalism, intervention is a double-edged sword. It must be used sparingly lest it become an unintended excuse for human rights violations on the part of intervening states. Yet it must be used when it can be effective to stop (or at least significantly reduce) systematic and pervasive human rights abuses. This standard is far harder to apply than it is to articulate, and it is controversial in both theory and application. Human rights may be universal, but support for coercive enforcement of their norms will never be universal. If this is realism, it is no recipe for isolationism. The failure to intervene in Rwanda, for example, where many lives could have been saved, was far from inevitable or justifiable. Such failures have undermined the credibility of human rights values in zones of danger around the world.

Arguments about when states should intervene to vindicate human rights are controversial for the obvious reason that so much is at stake in any decision about intervention. But