THE GROWING IMPORTANCE OF HUMAN RIGHTS after World War II set an end to the state-sovereignty doctrine as the main political norm in the global realm. Human rights became the center of a distinctively political and legal agenda for the global order informed by egalitarian values. Human rights impose minimal binding standards both on domestic political institutions and the domestic legal order and on international relations and global institutions.
Insofar as human rights have, in this way, become part of the requirements of political legitimacy, the question arises as to how extensive the list of human rights should be. In the recent debate in philosophy, there has been a tendency to resist inflationary tendencies in the identification of what counts as a human right and to endorse minimalist lists of human rights. The right to political participation, in particular, although prominent in the original human rights treaties and in contemporary human rights practice, often fails to get support or is even explicitly excluded. Against these views, I want to defend the claim that a right to political participation should have a place even on minimalist lists of human rights.
My argument aims to show that human rights will fail to secure political legitimacy if the right to political participation is excluded from the set of basic rights. It hinges on a distinction between two problems of legitimacy that arise with human rights. The first, which we may call the problem of standards, relates to the requirement that political institutions and decisions--nationally, internationally and globally--apply and satisfy a human rights standard. Since a human rights standard is not the only requirement of legitimacy, the first problem concerns the relationship between a human rights standard and other sources of political legitimacy. In the context of a democratic state, for example, the problem of standards gives rise to the question of how a conception of democratic legitimacy can accommodate both a human rights standard and a principle of democratic self-determination. In the context of the international recognition of states, to give another example, the problem manifests itself in the question of how to weigh respect of human rights against restrictions on third-party interventions. This problem of standards is a reason for favoring minimalist lists of human rights.
The second problem of legitimacy, which is often obscured, concerns the justification of a human rights standard itself. I shall argue that because of this problem of justification, a human right to political participation is necessary--though not sufficient--for political legitimacy and should figure even on minimalist lists of human rights.
I shall end the paper with a discussion of what a right to political participation entails. The current debate focuses on whether or not there is a right to democracy (e.g., Christiano 2011a). I shall argue that the right to political participation need not be interpreted as a right to democracy, and I will defend a weaker requirement rather than the right to democracy. In another respect, however, my argument has a demanding implication. In contemporary human rights practice, the right to political participation is framed as a right to participate in national political affairs. My argument in support of the right to political participation implies that the right should be expanded to include participation in the global political debate as well, and I will briefly discuss this issue.
In sum, my paper defends the following main claims: (i) human rights are best understood in terms of their connection to political legitimacy; (ii) political legitimacy requires not merely that a human rights standard is applied and satisfied, but also that the standard itself is justified in the right way; and (iii) a right to political participation, suitably understood, is necessary, but not sufficient, for political legitimacy.
Before I can get to the main part of my argument, I need to say something about human rights in general. The idea of human rights has, of course, a long history in the natural rights tradition. But recent developments have inspired many to argue that the traditional conception of human rights--defined as rights people have "simply in virtue of their humanity" (Simmons 2001: 185)--ought to be replaced by a political conception. John Tasioulas (2009) helpfully identifies two main dimensions of disagreement in the current debate on conceptions of human rights.
The first disagreement is about what human rights are and the second about how they are justified. According to the traditional conception, human rights are moral rights that people have qua salient features of their humanity. These features may relate to fundamental needs or interests (e.g., Miller 2012) or basic aspects of human agency (e.g., Griffin 2008). (1) According to the political conception, by contrast, human rights are a set of special rights that have their origins in salient features of contemporary human rights practice (e.g., Rawls 1999; Beitz 2009). Just like traditional conceptions, political conceptions differ with regard to the relevant salient features. A prominent example is John Rawls' focus on third-party interventions (Rawls 1999). (2) Other defenders of a political conception tend to give broader characterizations of contemporary human rights practice (e.g., Beitz 2009).
With regard to the question of what justifies human rights, defenders of the traditional conception typically maintain that ordinary moral reasoning is necessary and sufficient to establish what should count as a human right. Defenders of the political conception, by contrast, typically maintain that human rights are justified by some form of public reason or public reasoning. Human rights, on this view, are not discovered but constructed in an appropriately constrained process of practical deliberation. I shall discuss this dimension of the debate in greater detail a bit further down in this section.
Note that in addition to these pure forms of the traditional and the political conceptions of human rights, some writers have recently proposed mixed conceptions. Joseph Raz (2007, 2010) is, I think, best understood as defending a mixed conception. He accepts the political conception with regard to the first dimension--the question of what human rights are--but he combines this with the view that what justifies human rights is ordinary moral reasoning. Rainer Forst (2010) is drawn to the opposite move: He defines human rights on the basis of salient features of human agency, but answers the question of how they are justified by invoking an account of public reasoning. (3)
My sympathies are with the pure form of the political conception of human rights. I am unable to argue the case here, but I want to list a few considerations in favor of the political conception. (4) First, one need not deny the historical thesis about human rights--that they emerged out of the natural rights tradition--in order to maintain that human rights were relaunched in 1948 as a specifically political-legal project. I follow Charles Beitz (2009) here, who argues that the historical thesis does not imply a philosophical thesis about what human rights are and about what explains the authority they have today. One can thus both accept the historical thesis and maintain that the best understanding of human rights today is one that breaks with the notion that human rights are moral rights that all individuals have in virtue of their humanity.
A second consideration is immediately related. Whatever the merits of interpreting human rights in light of the natural rights tradition, doing so is insufficient to capture the distinctive features of contemporary human rights practice. The contemporary practice identifies human rights with a set of explicitly political norms that only make sense in certain institutional contexts (Nickel 2007). Human rights get their distinctive content not from essential features of humanity as such, but from institutionalized relations between individuals and their governments and other political agents. The political conception of human rights is better equipped to capture this aspect of human rights practice than the traditional conception.
Third, it is not necessary to assume that human rights are essentially connected to some features of humanity to get a grip on the (important) idea that human rights are universal. Human rights are not timeless (e.g., Beitz 2009), but this does not mean that they are not universal. As Raz has convincingly argued, we can do justice to both the idea that what human rights are is rooted in contemporary practice and the idea that human rights are universal if human rights are understood as "synchronically universal," i.e., as rights that all people alive today have (Raz 2010: 41). This account of the universality of human rights is compatible with them changing over time.
Finally, and crucially for the argument I present in this paper, the relaunch of the human rights project in 1948 offers justificatory resources not available in the natural rights tradition. This gets me back to the question of what justifies human rights. What I have in mind is best explained through an analogy with Rawls' idea of a political conception of justice. As is well known, Rawls proposed to circumvent controversies about the morality of justice by developing a conception of justice based on fundamental political values embodied in democracy. The distinct--and very successful--political project that relaunched human rights, similarly, offers a way of circumventing the highly contested issue of the essential features that characterize human beings by instead offering an account based on more widely acknowledged features of contemporary human rights practice.
I am aware that this brief discussion only scratches the surface of the debate on conceptions of...