The Universality of Human Rights: a response.

Author:Talbott, William J.
Position:Critical essay
 
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I want to thank my critics for their excellent comments. (1) Before I try to respond to them, let me say something about the project that I intend to be contributing to. In my book, I ask the question: which rights should be universal? The book is the first of two volumes that try to answer it. In the first volume, which is the only one that has been published so far, I focus on the big picture and outline, in general terms, a list of nine basic rights. I provide both consequentialist and non-consequentialist rationales for the rights on my list. In the second volume Human Rights and Human Well-Being (forthcoming), I explain why I favor the consequentialist rationale over the non-consequentialist rationale, I specify more precisely the contours of the basic rights, and I consider which other rights should be universal.

One way of understanding my book is as an attempt to continue the Enlightenment project of identifying universal rights that all governments should guarantee for their people, but without the Enlightenment epistemology. The Declaration of Independence famously says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness." In my book, I discuss why the drafters claimed that those rights were self-evident, when, in retrospect, it is clear that their claims were not self-evident. To say that a proposition is self-evident is to assert that no one could reasonably disagree with it. At the time the Declaration of Independence was written, the prevailing model of justification for a belief was based on proof in mathematics, so I refer to it as the Proof Paradigm. Justification according to the Proof Paradigm required ruling out all reasonable disagreement. Of course, at the time during which the Declaration of Independence was written, there was lots of reasonable disagreement about universal human rights. We know that the Declaration's contents were not self-evident, not even to the drafters, because many of them held slaves and defended slavery. Furthermore, from our historical vantage point, we know that which rights governments should guarantee their people is not self-evident, because we can see how our understanding of them evolves over time. Locke, Kant, and Rousseau were the main philosophical advocates of universal rights for men (at least, white property-owners), but none of them extended those rights to women.

The Enlightenment philosophers made some big mistakes. This is enough to show that there was something wrong with their epistemological paradigm, the Proof Paradigm. Because they thought they had a source of infallible moral knowledge, I say they were epistemically immodest. In my book, I emphasize the importance in moral inquiry of epistemic modesty, of acknowledging that we may be mistaken.

However, many philosophers today would not stop with epistemic modesty. They would insist that there was also something wrong with the Enlightenment metaphysics--with the idea that there are fundamental moral principles that apply strictly universally--to all moral beings or all rational beings in all possible worlds. I call this metaphysical immodesty. For many philosophers, it seems obvious that if we give up the Enlightenment's epistemic immodesty, we will see that we must give up its metaphysical immodesty also. If we no longer claim to have a priori access to truths that hold in all possible worlds, then how could we possibly have any way of being justified in believing any moral principles to be universal in this strong sense? (2)

In my book I build on the work of Mill, Rawls, and Habermas to outline an alternative to the Proof Paradigm as a model for reasonable moral belief, the Moral Discovery Paradigm. On the Proof Paradigm, reasoning is top-down, from moral principles to particular moral judgments. On the Moral Discovery Paradigm, reasoning is primarily bottom-up, from particular moral judgments about actual and hypothetical cases to the moral principles that best explain them. Because reasoning can go in both directions, I refer to the model of reasoning as an equilibrium model. Because the particular moral judgments concern actual and hypothetical cases, fully adequate explanatory principles would be true in all possible worlds, that is, strictly universal. Because our particular moral judgments are themselves fallible and because there is no way for us to survey all possible particular cases, any principles that we formulate will be fallible.

When Rawls (1971) first articulated the equilibrium model for moral reasoning, it seemed that he was using it to support a metaphysically immodest, and strongly universal theory of justice. However, Rawls quickly corrected this impression and in his later work made it clear that his liberal theory of justice was parochial, not universal (1993). So my use of the model is closer to Habermas than to Rawls. Habermas has consistently held that the fundamental moral principles are contexttranscending (Habermas 1993: 24). Like Habermas, I believe that though moral reasoning takes place within a particular context, it can lead us to conclusions that transcend the context in which it takes place.

On this picture, Enlightenment philosophers, represented by the Proof Paradigm, and most religious traditions have seriously misunderstood moral reasoning. According to both the Proof Paradigm and to most religious traditions, moral reasoning proceeds from infallible moral principles to conclusions about particular cases. This is a mistake. In fact, moral development can occur because moral principles are subject to revision in the light of judgments about particular cases.

As I see it, this process of moral development has been going on for millennia. During that time, one of the main questions that has been raised is about how to morally justify the use of coercion, especially a government's coercion of its people. Although the Western tradition is now often thought of as a human rights tradition, this is a misconception. Until the 17th century, the Western tradition was largely a tradition of absolute autocrats. There is a standard justification for autocratic governance that can be found in all autocratic traditions. It is paternalistic. Autocratic governments coerce their people for their own good.

This justification has seemed so obvious that it required centuries of accumulated experience of government abuse of its autocratic powers for the idea of individual rights to begin to take hold, first, simply as a corrective to particular government abuses of its power. But, over time, there developed an alternative conception of government legitimacy, based on the consent of the governed. As I see it, we are part of an historical process of discovering that paternalistic justifications for autocratic governments fail and uncovering the conditions for legitimacy of coercive governments. What is necessary for legitimacy if paternalistic justifications of autocracy fail? Just to require the consent of the governed is not enough, because, for example, an autocrat who controls education and the media and who limits freedom of expression and association can easily acquire the consent of his subjects, without thereby legitimating his government. The basic human rights are those that are necessary for citizen consent to legitimize a government.

What are those rights? There were two strategies I might have followed in answering that question. The descriptive strategy would have been to simply review the history of the development of rights to show how at each stage (e.g., rights of white male property owners, rights of white male non-property owners, rights of non-white males, rights of women) paternalistic justifications for oppression were challenged and rights came to be acknowledged. I could have pointed out that some rights (e.g., rights against slavery) seem to have been accepted worldwide, whereas others (women's rights to education and to career opportunities) have not. On the descriptive strategy, I would have simply left it open whether women's rights were truly universal, to be decided by future developments in the historical process of moral development that plays such a large role in my account.

In my book, I did not adopt the descriptive strategy. Instead, I followed the strategy followed by Locke, Rousseau, and Kant, which I refer to as the prescriptive strategy. One of my sources for the prescriptive strategy is Jack Donnelly, who emphasizes that the concept of a human right provides a standpoint from which to criticize existing laws (Donnelly 2003: 12). I would only add that the concept of a human right also provides a standpoint from which to criticize existing human rights documents and whatever the existing "overlapping consensus" on human rights may be. I signaled that I would be employing this prescriptive strategy, by using "should" in the title of my book.

In the book, I used the history of the development of rights as the basis for an explanation of it that could then be used to attempt to project where the historical process is going--at least, if potentially distorting influences are not too great. For example, having seen that rights typically develop in response to paternalistic justifications for treating groups of normal, human adults as less than fully competent judges of their own good, I inferred that all such justifications will fail. But that implies that many governments that, on paternalistic grounds, today treat women as second class citizens are mistaken and that they should change. So rather than just report on progress to date, in the book I make moral claims about how the process should develop in the future. One of the conclusions then is that, even though rights to education for both men and women are not now universally guaranteed, they should be.

The...

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