The Possibility of Human Rights

The growing political importance of human rights runs counter to

the widespread intellectual suspicion of universalistic norms and

values. In fact, though human rights seem to refer us to very general

claims about human beings, their existence as an important theme has

emerged only in the specific historical context of the past half

century. Human rights entered political and intellectual discourse in

the aftermath of World War II, and acquired growing significance in

succeeding decades. With the end of the Cold War they have become

more urgent as part of the question of an international order that

would replace the balance of terror between the old superpowers. But

other factors, most notably economic globalization, have also given

importance to the theme of human rights and the international legal

order of which they are a part.

Skepticism about universal human norms may partly be the result

of the same internationalizing dynamics that have made human rights an

important theme. Contact between cultures can make differences in

outlook and values seem insurmountable. Moreover, international

conflict has exposed the role of culture and values in imposing power

and inequality, thus making universalistic claims on behalf of any

1

idea seem suspect. On the other hand, it is precisely within the

multiple conflicts between and within states, the clashes of cultures,

and the demise of utopian projects and ideologies that the idea of

human rights is so attractive today. With this idea we glimpse a

standard to which all powerful institutions should be held, regardless

of other differences. And the theme of human rights also suggests the

possibility of an international legal order that might reduce violence

between and within states. But to develop an appropriate conception

of human rights we will need to avoid the unhistorical and nation-

centered thinking of most liberalism.

Viewing human rights in historical context allows us to see a

certain ambiguity about the idea. As an abstract normative idea, it

seems to refer to something common to humans independent of their

specific social and cultural conditions. But taken as a theme proper

to the international dynamics of the late 20th century, it seems to

refer to terms in which specific conflicts are fought out. There is

no contradiction here, since one may think that the force of human

rights claims depends on their being raised from a perspective that

abstracts away from historical specifics. But this abstraction can

elicit the intellectual skepticism to which I have referred. Perhaps

more importantly, abstracting from historical specifics reduces our

political understanding of human rights as such. In what follows I

2

will argue that it is both possible and desirable to understand human

rights as historical and political principles. That is, the meaning

and validity of human rights – as well as their application – should

be located in the historical world in which they have become

important. The discussion has three parts: first, a review of some of

the paradoxes that haunt debates over human rights; second, an

exploration of the normative standing of human rights; and, third, a

sketch of some of the political conditions and problems that face

human rights so understood.

I. The Debate

The growing force of human rights

Those who actively pursue a politics of human rights have grounds

for hope. Though the observation of human rights has been limited and

contradictory, the United Nations Declaration of Human Rights has

turned out to be more than a symbolic gesture. During the Cold War,

the superpowers, who had instrumentalized human rights for purposes of

their rivalry, proved susceptible to challenges that turned their

rhetoric against them. Critics of the US’s policies in Central

America, for example, sometimes made effective use of this principle.

Similarly, international movements against apartheid, military

dictatorships, and the oppression of women were able to mobilize

support and influence with a politics of human rights. Visible and

3

influential organizations like Amnesty International and Human Rights

Watch emerged as significant voices in political debates. And events

since the Cold War indicate the growing importance of human rights:

the increasing activity of the World Court, the role of human rights

themes in coming to terms with previous regimes (both Communist and

otherwise), but especially within conflicts in the Balkans and Africa.

1999 marked two significant though ambiguous events that were

ostensibly linked to human rights claims: the arrest of General

Pinochet in England and the war in Kosovo. While there is much to

debate about these developments, it seems undeniable that with them

the idea and practice of human rights have achieved a new importance.

We can identify three crucial respects in which human rights have

acquired an increased political significance. First, they have

acquired a growing standing as principles of international law. Human

rights claims have gained greater institutional recognition within

courts of individual nations as well as having figured in the growing

activity of the World Court. Second, human rights have increasingly

become the focus of social movements and the non- governmental

institutions they create. This is true of the specifically human

rights groups we have cited, and holds for other movements, for

example, unions, ecology, feminism, and minorities, whose aims often

overlap with human rights concerns. Third, in conjunction with these

4

other developments, human rights have become an increasingly important

part of political discussion, and figure within the emergence of

public spheres that are international in scope.

The other side of the coin: skepticism over human rights

From the perspective of the predominant realities of power,

violence, and political discourse, however, the role of human rights

remains very limited. International law is weak and inconsistently

applied, the institutions committed to human rights are dwarfed by

those with greater political and economic power, and the language of

human rights is regularly overridden by other considerations in

political debates at every level. Clearly, if we take human rights

seriously, we can at best think that we are at the beginning of an

epoch in which they have some real significance.

But if we are to pursue or support a politics of human rights we

need to confront a different ground for skepticism, namely

intellectual questions about the defensibility of the idea itself.

Challenges to this idea come on different levels of abstraction. Most

generally, one may question whether there is any basis for positing

such universal rights in the absence of generally accepted theological

or philosophical grounds for them. Certainly there is no consensus

over religion, and the enlightenment tradition seems to be in general

disrepute. Quite apart from the persisting positivistic skepticism

5

about value judgments, recent years have witnessed new varieties of

historicism, often in the hands of influential and politically

articulate thinkers, whether of a postmodernist bent like Rorty or of

a poststructuralist turn like Foucault. The challenge to the

assumptions and project of the Enlightenment by thinkers like Lyotard

and Derrida has proven especially influential among intellectuals

seeking critical purchase on contemporary culture and politics. But

it is within this tradition that philosophers could argue from some

version of natural law (e.g., Hobbes or Locke) or from general

conditions of human reason (e.g., Kant) to the kinds of universal

claims made by human rights. Even the most outstanding representative

of contemporary liberalism, John Rawls, no longer attempts to support

normative claims on more than an existing consensus within and among

historical societies.

But there are also political arguments against the idea of human

rights. Traditional conservatives have long found talk of universal

rights to be unrealistic and disruptive. Construing claims about

human rights as ideological, Marxists have often treated the promotion

of such rights as an idealistic distortion of the actual conditions of

liberation, and therefore as providing a false sense of what is

possible and adequate. More recent identity movements have sometimes

taken the ideological challenge further and seen the universalism of

6

human rights as part of an exclusionary strategy working on behalf of

dominant groups, whether construed in terms of gender, race, or

colonial power. For this kind of criticism, the very idea of

universalism figures within particular power orientations.

We may think that the triumph of liberal institutions has

undercut the traditional conservative position, and that the dangers

of totalitarianism and authoritarianism have shown the one-sidedness

of Marxist criticism. Nonetheless, the charge that human rights

language can figure within strategies and systems of domination is

indisputable. But this is true of any ethical or moral idea, so it

tells us nothing decisive about the promise of a critically-minded

human rights politics. Nevertheless, we need some positive analysis

of the universality of human rights. We will take up this problem in

the second part of the paper.

Resulting dilemmas: Kosovo as a case in point

Before doing so, we should notice a related but different

problem. Even if human rights can be defended philosophically, it

does not follow that they have an actual influence on policy. A

certain kind of “realism” can argue that actual politics is driven by

economic and political interests, not by ethical ideals. If so, the

rise of human rights on the political scene may only be evidence of

the instrumentalization of this theme by dominant powers. A skeptic

7

about progress in human rights could argue that the increasing

reference to human rights by state officials is empty rhetoric. Human

rights language has become strategically useful to those in power, but

policy continues to be driven by particular interests.

Debates over the war in Kosovo provide examples of this view.

While to some the NATO challenge to Serbia was a significant

breakthrough for human rights, to others it represented a new imperial

tactic, suited to changed circumstances but following a long and

familiar pattern. The war could be seen as unifying NATO, stabilizing

an important region, and providing an example to others who might

think about defying the US and its allies. Such an analysis seems

supported by the absence of similar interventions in other human

rights disasters, especially in Africa, where parallel strategic

considerations did not apply.i

In the face of such arguments, defenders of human rights face two

problems. One is to establish that the skeptic’s account of Kosovo

does not tell the whole story about the politics of human rights in

Kosovo. Here one would have to show that the political realities were

more complex and contradictory than the skeptic is willing to admit.

Even if such an argument is successful, those who argue for making

human rights an important political theme must acknowledge the large

extent to which they have been instrumentalized and hence the

8

corresponding inconsistency and weakness of existing commitments to

human rights. Hence the second problem is to justify belief in a

possible growing influence of human rights as effective political

principles. What are the institutional and political changes required

for this to take place? These problems are too difficult to resolve

here, though in the third part of this paper we will consider some

reasons to think that human rights can have a growing influence in

actual politics. First we will turn to the intellectual standing of

human rights.

II. What are Human Rights?

The “human” in human rights

Human rights are often spoken of as the most basic and the most

general rights we possess as individuals and perhaps as members of

groups. In speaking of these as human rights, we may be referring not

only to their generality (i.e., that they are shared by all humans),

but also to the source of their validity, as if these rights have some

claim on us by virtue of what makes us human. But if we then appeal

to some idea of a human nature or essence that is rooted in a

theological or metaphysical conception, we will run into the absence

of persuasive arguments for such conceptions. Traditional lines of

argumentation have been extensively criticized, and the historicist

arguments of recent years have tended to challenge most if not all

9

ideas of essences or fixed natures. If the respects in which these

rights are human tells us something about why they are valid, it will

probably have to be in some other sense than this.

A higher law?

Nonetheless, human rights are often understood as having some

basis in an order that is “higher” or in some other way prior to any

specific legal system. It is certainly true that some widely accepted

human rights, for example respect for all human life, do have roots in

long-standing religious and philosophical traditions. Buddhism,

Hinduism and Islam have in principle fostered this respect, as has the

Judeo-Christian tradition.ii In philosophy we may trace a non-

theological conception of this kind of claim as far back as the

Stoics. Respect for human life seems an accomplishment particularly

apt for intellectuals working within the multi-cultural cauldron of

the Roman Empire, an intersection of peoples which provided materials

for what later came to be known as western or European thought. But

to recognize that respect for all human life is found in many moral

codes and traditions is not to establish its status as a human right.

Such historical precedents can be offset by other cultures and

traditions in which such universalism is lacking. If human rights

have a validity that is prior to that of specific codes, this is not

rooted in some historical priority. In fact, what seems distinctive

10

about human rights in historical perspective is the very recent

emergence of this idea as an explicit norm, and the fact that what

counts as a human right is by no means agreed upon by those who

believe in human rights. But keeping in mind the historical nature of

this idea may prove quite relevant to thinking about its normative

standing.

What kind of rights?

This historical dimension emerges when we consider respects in

which human rights are rights. By definition rights are justifiable

claims, but to or against whom may the claims of human rights be

directed? We can infer an answer from the content of the claims

themselves. It can be misleading to emphasize (as Michael Perry does)

the sanctity of life as the paradigm right, since modern rights are

more specific and institutionally conditioned than this acknowledges.iii

If we look to the UN Declaration, we see a modern menu of civil,

political, and social rights that reflect the kinds of institutional

and legal gains that have been achieved through centuries of social

conflict.iv Rights to participate freely in economic life typically

presuppose markets, though these may be of very different kinds, just

as rights to free speech, to the exercise of religion, and so on

presuppose constitutional systems, the separation of religion from the

state, and so on. While these rights thus reflect rather specific

11

but also diverse historical conditions, they all presuppose that some

political agency will see that they are honored. This means in part

that there must be some kind of state or state-like institution that

can protect the rights of individuals. But in the case of the

practice of rights it also means that these rights are inseparable

from political understandings shared throughout society. This is not

just a precondition of their being legally encoded. It is also a

specifically political fact about societies in which such rights have

real meaning. In societies in which such rights have an effective

reality, individuals are publically recognized as agents who may

exercise these rights. This is a political fact, even though specific

rights may have little to do with politics. It is political because

the exercise of any of these rights is publically recognized and

politically supported.

To illustrate this point about the political character of some

rights, we can cite the Civil Rights movement in the US in the 50's

and 60's. The extension of constitutional rights to all black

citizens challenged previous public understandings while it

reorganized social membership. Rights that had been established in

earlier conflicts were now extended across the race line, at least in

principle. The emergence of these rights was not only a matter of

effective claims on the state to protect individuals against various

12

public and private agents, but was also a matter of a transformed

public understanding of civic membership and fellow being.

In this light it seems that the Civil Rights Movement was not

precisely about human rights, though appeal to natural and divine law

was often made during this struggle. The victory of this movement

lay in the extension and enforcement (so far as this was in fact won)

of the civil and political rights that in principle could be claimed

by all citizens of the US. Despite appeals made to international

opinion, the battle here was over rights proper to a specific national

political community.

Rights in an international political setting

With human rights in the sense I mean to develop here, the issue

concerns claims that are made in a wider political setting. Political

conflict is not over understandings and agencies that are national in

scope, even if the aim of the struggle is to change the policies of a

single nation state. The struggle against apartheid offers an

example, since here appeal was not so much to South African legal

principles as to the understandings of a wider international

community. And the conflict itself was international in scope with an

important role being played by international movements and

institutions. Movements pressured international institutions

(economic and political) to challenge policies of the South African

13

regime and contributed to a sense of international standards and to an

international public sphere. This illustrates the three points about

human rights introduced earlier, namely their codification and

institutional embodiment in an international setting, their being the

object of international movements, and their figuring within

international public spheres.

On this understanding, what is characteristic of human rights is

not so much the appeal to a norm universal to all humans (this can be

made within the confines of a nation state), as much as the appeal to

a norm where the nation state is not the ultimate arbiter of outcomes.

Here rights are claimed within a public that transcends national

boundaries and in which powers may be mobilized to challenge or

qualify national policies. The actual internationalism of human

rights can be illustrated by reference to what may have been the two

main historical events that made this discourse politically important:

the Holocaust and decolonization. In both cases the rights of

individuals and groups became a matter not just of international

concern, but of evolving political understandings and practices that

were effectively and necessarily international.

Human rights not a matter of morality

In this respect we can see a fundamental difference between human

rights and morality. Like morality, human rights are universalistic,

14

but in a fundamentally different sense. Morality makes claims on all

individuals as such, regardless of their institutional involvements.

But human rights are claims on political powers in an international

context. They have to do with the lives of individuals within a world

in which there is at least the possibility of mutual recognition

proper to participation in modern economic, political, and cultural

life. To say human rights are not moral principles is not to say

that they are indifferent to morality, though it is to say that human

rights are not based on morality. Human rights must undoubtedly be

consistent with morality, and they may often be identical to moral

precepts in content. But they are not an instance of morality, if we

understand morality as having to do with general rules that transcend

specific institutional and historical involvements. To emphasize the

political nature of human rights is to insist that they exist only

within historical understandings among individuals and peoples. It is

not to say that human rights are any higher or lower, more or less

significant than moral precepts. It is simply to say that they

represent a distinctive kind of practical commitment, possible only

within a specific kind of world.

Humanity viewed in historical and practical terms

Among other things, the contrast between human rights and

morality can remind us that a concern with human rights explicitly

15

raises the question of humanity. But we have seen that it seems

problematic to try to base human rights on some conception of

humanity, for example, some idea of a human nature or essence. In any

case, to say that concern for human rights confronts one with the

question of humanity need not imply the need or possibility of

deriving human rights from the nature of humanity. On the contrary,

the question here is less theoretical than practical. It has less to

do with debating the logical implications of an idea of humanity than

with struggling over an evolving common understanding of what humanity

can and should be.

At least this is one way of seeing the relation between human

rights and the idea of humanity. Since human rights involve political

understandings that aspire to universality, their evolution is a

practical forging of a sense of humanity. The fact that the nature

and scope of these rights is widely contested – and thus the

conception of humanity we receive is incomplete and unstable – does

not detract from human rights having this role in the articulation of

humanity. And this is not just a feature of this particular normative

aspect of the debate over what humans are, but reflects wider truths

about human beings. Or so one would think, if one sees humanity as a

work in progress and so resists any theoretical closure or final

definition of what humans can be. But resistance to a theoretical

16

humanism doesn’t require rejection of the normative universalism

associated with human rights. By the same token, our historical

understanding of human rights leaves open the question of the future

formulation or application of such principles in historical settings

we cannot anticipate today.v

The cosmopolitanism of human rights

Human rights, then, can be seen as enmeshed in a reflective

political process that is inherent in the explicit evoking of these

rights as transcending any specific society or its codes. In this

respect human rights contrast with rights as conceived traditionally

by liberalism, for which the nation is typically the horizon of

political existence. I have stressed the international dimension of

human rights in various respects. But these have been abstracted from

precise institutional embodiments, so what this internationality means

is not well defined. For example, we have no clear sense of the ways

internationalist institutions might resemble or differ from the

institutions of a nation-based politics. One reason for this

abstractness is the uncertainty of the evolution of global relations

in what seems to be a transitional period.

In any case, the international is not just the nation writ large.

In this regard we might well think in terms of cosmopolitanism. This

17

suits our approach to human rights because we are stressing

recognitions that go beyond the borders of one’s inherited nation and

culture. As it involves human rights, recognition is not a matter of

the kind of internationalism that may characterize the relations of

one state to others. Rather it has to do with recognitions between

individuals – as well as with demands on institutions – in which

individuals see themselves and others as participants in a

multicultural and multinational world. But these are recognitions

that presuppose, among other things, a shaping and constraining of

institutional power along the lines laid down by human rights.

Though cosmopolitanism sometimes is taken to imply indifference

to the local, I mean by it an ability to communicate beyond local

boundaries, to combine a sense of specific identity with commonalities

with others. With this idea, the implied complexity has to do with

more than different nationalities, and draws from a sense of the

multiple involvements that may provide an individual with a specific

identity. National identification is one thing, various cultural or

regional identities are others. Cosmopolitanism, though, is not the

same as pluralism so far as this implies tolerance for variety.

Rather, the idea of the cosmopolitan is that of the individual who

combines a respect for difference with a perspective that is broader

than that of any particular horizon. It encompasses the ability to

18

move between worlds, to sense the limitations of specific

perspectives, and to value the of testing local practices by the

experiences of a wider world.

The validity of human rights

So far we have sidestepped the question of the validity of human

rights when conceived in this historical way. If they do not derive

their force from morality, religion, metaphysics, or nature, then on

what basis can we say these rights should be honored? To what do we

trace the obligation to observe human rights?

On the present argument, human rights are historically emerging

and evolving legal principles that are embodied and enforced in

institutions that must respond to political movements operating within

an evolving international public sphere. Emphasizing the public

nature of the debate over human rights recalls that the legal standing

of human rights is inseparable from an evolution of public

understandings about the claims all individuals can legitimately make

and, therefore, about the claims that should be enforced by public

power. Understood in this way, human rights do not exist prior to

their political emergence. And this has to do not just with their

historical recognition, but with their existence as valid principles.

On the present argument, the normative force of human rights depends

on the process of their emergence and recognition, not on some prior

19

or higher principles. Both the meaning and the validity of human

rights depend on the mutual understandings that emerge within the

politics of human rights.

The alternative and more familiar view is that politically

encoded human rights depend on appeal to prior principles of human

rights, as if we come to agree on a particular legal framework because

we agree already on some prior existing practical truths. Certainly

this view seems to reflect those arguments for human rights that treat

them as rooted in a higher norm of some kind. And it seems to reflect

the rhetorical force that is achieved by appealing to the most basic

or highest law. But this approach only transfers the problem of the

validity of human rights to that of some other norm, and it obscures

the aspects of human rights which make them distinctive of our period

of emerging international politics.

To deny that human rights are the application of pre-existing

principles, is not to deny that these distinctive principles cannot be

supported by many considerations, including appeal to other

principles. In fact there is a wide range of arguments for human

rights. Some are moral, but others have to do with such concerns as

the need for social stability, the conditions for material justice,

the regulation of technological change, and the possibilities of

democratic development. All such considerations are relevant to the

20

understandings that can be built through human rights. And it is in

fusing these considerations into new understandings that human rights

emerge.

To say that they emerge specifically as valid principles depends

on a normative conception of the rationality of the process by which

these understandings do and can develop. For this conception I am

relying on the discourse theory of practical reason developed by

Juergen Habermas and Karl-Otto Apel.vi On this view, a norm is valid

if it is acceptable on the basis of good reasons to those who are

subject to it. To say a norm is valid is to claim that it would be

accepted by those subject to it if they were to discuss it solely on

the grounds of the best reasons for and against. This conception

appeals to an ideal consensus – an agreement on rights that would come

about under conditions we do not presently enjoy. As such it has been

the focus of a debate we cannot discuss here.vii But we must

acknowledge that the problem of decpetive, manipulated, or imposed

agreements makes the formation of such consensus a project of

democratizing politics. Active, not merely hypothetical, agreement is

required, even if this does not meet all the standards of ideal

communication. In any case, the ideal of discursive rationality does

capture something that we have noted about human rights, namely that

they involve a kind of mutual recognition across national and cultural

21

boundaries, a capacity for debate and agreement.

There are other advantages to thinking about human rights as

emerging with a historical use of discursive reasoning. Admittedly,

appeal to an ideal consensus can have political meaning today only if

this consensus is understood as a relevant but unrealized goal. But

this is a goal that draws from historical experience. For example,

consider some of the modern trends that globalization has merely

pushed to a new level: mobility of persons, erosion of traditional

ways of life, intersection of different cultures and their collision

with mass media culture, and various kinds of social rationalization

along side new technologies. All these reduce the possibility of

relying on preexisting traditions and practices for thinking about

political norms relevant to existing conditions. Multiple forms of

change and conflict impose the need for more explicit social

reflection (though this can take many forms), and the demand of ever

more voices to be heard makes the promotion of social discussion and

the formation of shared understandings more urgent.

The validity of human rights on this historical conception rests,

then, on the kind of shared understanding of such rights that has and

can be developed. The claim of human rights upon us rests in their

being the shared agreement and resolve of human beings about how they

should live together and develop a distinctively human existence. Of

22

course today, and presumably for a long time to come, human rights

have a rather hypothetical existence. Those who advocate human rights

are asserting that it is reasonable and plausible to believe that all

reasonable persons would and will come to embrace these as shared

principles.

A disadvantage of this conception of human rights may seem to be

that it sacrifices the argumentative force of appeals to a higher law

when confronting specific codes or practices. But human rights on

this view can themselves be a kind of higher law, so far as they clash

with specific codified oppressions. In any case, the discursive

approach to human rights doesn’t deny that the content and grounds for

these rights can draw from other principles. An appeal to morality in

supporting human rights is quite appropriate, for example. The

discourse approach says that human rights are distinctive principles

that cannot be derived from other principles but must rest their

validity from the consensus of those subject to them. It does not

deny that human rights draw from previous moral, religious, and

political traditions. Nor does it deny that other norms can be

reasons for acknowledging a human right. But these norms must be

reasons that are given and assessed within a public discussion that is

ultimately governed by agreement of the participants.

III. The Social Being of Human Rights

23

Suppose one accepts the argument to this point. That is, suppose

that one agrees that there are or at least can be such things as human

rights and that the meaning and validity of these rights is a matter

of evolving understandings, practices, institutions, and laws within

an international political space that presupposes contemporary

globalizing dynamics. This reconstruction allows us to see that

current debates over the make-up and extent of human rights is a

necessary feature of the politics of such rights. The relative

weakness of human rights can be placed in a historical perspective on

the evolution of such an internationalized or – better – cosmopolitan

politics. In effect, to accept the argument to this point is to deny

that the idea of human rights is ideological or that it is inherently

linked to power strategies. It is to accept human rights as a valid

(but not the only valid) normative standpoint for politics. But none

of this establishes that human rights are or can be an effective force

in politics. On the one hand, human rights concerns are frequently

subordinated to other interests and priorities. On the other, the

language of human rights is often used cynically to advance policies

driven in fact by other concerns. We suggested earlier how the Kosovo

War and the debates over it can illustrate these problems.

The ideal vs. the actual?

This is a perennial problem we face when thinking about morality

24

or other norms. There is, on the one hand, the question of what norms

should be followed, and there is, on the other, the question of

existing motivations, conditions of action, and other factors bearing

on what actions are likely or even possible. This problem is

sometimes stated as a conflict between the ideal and the actual, where

morality is typically trumped by realism. But this way of speaking is

misleading, since any real choice involves an opposition between norms

and ideals of some kind, and any choice can be seen as resisting other

alternatives. Moreover, we know that morality and law often prevail

in actual choices. The real question when thinking about norms like

human rights is, what are the conditions under which these norms

become feasible, not only conceptually, but in terms of the existing

motivations, conditions, and alternatives that agents face?

In any case, the conception of human rights I have offered here

already challenges the contrast between the ideal and the actual.

Human rights as historical understandings represent actually achieved

perspectives on how to act. Such understandings would not have

emerged had there not been appropriate conditions, including effective

motivations within actual historical circumstances. The articulation

of human rights has emerged from very real and very deep conflicts,

including that of the Second World War, anti-colonial resistance, and

many other struggles over racism, sexism and exploitation. Acceptance

25

of these rights has not been an act of pure idealism, nor would we

want it to be. It has figured within an ongoing battle over not just

what is desirable in human affairs, but also over what is workable in

a world in which traditional forms of hierarchy, privilege, and

differentiation have proven to be unacceptable.

Human rights as legal principles

With this in mind, we can recall that human rights are here being

analyzed not just as historical understandings, but as principles

embodied in institutions and legal systems, as claims supported and

advanced by social movements, and as themes debated within various

public spheres. Since human rights don’t exist in some way that is

higher to or prior to actual historical norms, they must be codified

and enforced as legal principles. The fact that human rights cannot

exist outside of international law is one reason they are relatively

weak today: international law itself is weakly established. On the

other hand, our knowledge of the history of the emergence of legal

systems, of the idea of rule by law, and of the codification and

enforcement of liberal rights within national political systems gives

us some reason to think that the strengthening of international law is

not simply a utopian dream. Perhaps such a development should seem no

more improbable to us than the actual history of the evolution of law

should seem improbable in retrospect. Or, to put it differently, the

26

fact that human rights seem improbable may indicate that we don’t yet

fully understand the workings of the legal and political frameworks we

actually possess.

Of course, that is not to say that human rights and international

law are simply an extension of the rule of law as we presently know

it. But it is to say that the effectiveness of legal norms represents

a problem that has shown itself to be soluble in some contexts.

Recognition of the validity of a law does not exist in a vacuum, but

is accompanied by incentives and sanctions. Lawfulness is not enough

to assure consistent and general obedience (though the need for

sanctions does not show, contra Hobbes, that they represent the only

basis for obedience). It is useful to emphasize the evolution of a

complex of institutions around human rights in order to avoid thinking

that obedience is simply a matter of sanctions. As in the case of

laws within a national setting, there are complex factors underlying

the possibility of rule by law. We can’t go into this theme here,

except to note that legality requires cultural formation, political

background, complementary institutions, economic preconditions, and so

on. The problem with human rights in the abstract is not that they,

as universalistic norms, are ineffective because they are purely

ideal. Rather the problem is that in isolation they lack the various

preconditions to make them possible as compelling and effective

27

principles of social existence. Is there any reason to think that

such preconditions are in the making?

Social movements

On my argument here, human rights are not just legal and

institutional principles or objects of an evolving public

understanding and debate. They also figure in the struggles of social

movements that contest existing power relations and assert their own

alternatives. The prospects of human rights depend on such movements.

In part, this is a matter of movements and organizations like Amnesty

International and Human Rights Watch that make human rights as such

their goal. But it is also a matter of those movements that do or can

advance the kind of cosmopolitanism I have associated with the

politics of human rights. Ecological movements exemplify this mix of

the global and the local. Ecology may not be exclusively a matter of

human rights, but it includes a human rights aspect, for example,

rights to the integrity of communities in the face of pollution or

wastes from elsewhere. Demands for the respect of such rights are

inseparable from a perspective that grasps global interconnectedness

as well as local specificity.

Similar points can be made about the overlapping case of

movements concerned with economic globalization, such as those

concerned with the rights of workers producing for first world luxury

28

markets in third-world sweatshops or the rights of self determination

by societies forced to neglect education and health care in order to

service debt payments to international banks. Of course there are

many other examples. As with ecology, here we often encounter demands

which are as much directed at economic powers as they are directed at

states. This reflects not just the importance of economic power, but

also of the uncertain and apparently declining capacity of states to

bridle economic power at the global level.

Among other examples of movements whose aims bear on the

assertion of human rights are some that are often thought to be averse

to universalism, namely those sometimes classified as pursuing

identity politics. But feminism and minority movements often

contribute both to the explicit statement of human rights claims and

to the kind of cosmopolitan politics I have associated with human

rights. Feminist movements have not just challenged the patriarchal

character of nationalist traditions, but have sometimes forged

solidarities across national borders, e.g., regarding institutionally

sanctioned violence to women, super-exploitation, and cultural

exclusion. Anti-racist movements have fostered post-colonial

solidarity throughout diasporas, and have challenged oppressions tied

to immigration. In addition to pursuing international solidarity,

feminist and anti-racist movements have sought and sometimes achieved

29

recognition of what we might call the principle of difference; that

is, the need to recognize distinctive needs and traditions associated

with distinctive identities and conditions. In the context of our

argument, we can see the recognition of difference as being

inseparable from the establishment of human rights.

This principle of difference is not only a matter of tolerance,

though it includes tolerance. It is also a willingness to recognize

the interest and value of other conditions and practices and so

contributes to the cosmopolitanism I have been associating with human

rights. As such it bears on the question of the standing of politics

in the face of social change, especially the changes linked to

globalization. The prospects of identity politics are inseparable

from those of making political sense of the various conflicts and

possible collaborations that economic evolution is imposing. One can

see this reflected in the dynamics of African American identity, so

far as divisions among blacks are deepened by capital flows that leave

the urban poor increasingly short of material options. Or one can

think of tensions between nationalism and solidarity among labor

unions as “free trade” increases the flow of goods and investments.

The principle of difference implies the ability to develop political

understandings across identity differences as well as the ability to

sustain and refashion identities in the face of structural change.

30

There is nothing inherently paradoxical about the connection

between identity politics and the principle of difference. In fact,

the idea of difference as a value comes out of discussions by

intellectuals associated with identity movements. The assertion of

identities, as demanding recognition, can construct ethical

understandings, i.e., can contribute to a complex of identities

consistent with shared norms and values. Of course, when identity is

made an absolute that overrides ethics, identity politics,

particularly in the form of certain nationalisms or racism, can

undermines ethical solidarity. That is, it is an enemy of human

rights in principle and often in practice. But, as I am trying to

urge here, there is no intrinsic conflict between identity and human

rights. In fact we can see identity as both itself bearing on rights

and as sustained by various rights. Identity and human rights

considerations are inseparable parts of the kind of cosmopolitanism

that a politics confronting globalism must advance.

Human rights and the changing nature of politics

Human rights are not a narrow or separate concern, but overlap

with the politics of many of the social movements of recent years.

Viewed in isolation, human rights may seem to involve us with appeals

to highly abstract ideals, but when set within actual conflicts, they

31

prove to be bound up with a wide range of motives and aspirations.

This is as we should expect if human rights in fact have to do

inherently with political understandings that evolve with the

emergence of new kinds of global relations.

The politics of European unity offers another illustration.

Since the European Union has been mainly an economic affair, the

problems of a multinational politics have been to a large extent put

off to an unspecified future. But increasing integration and conflict

over common programs have made the balancing of national identity and

priorities against regional solidarity and effectiveness increasingly

an unavoidable question. And part of the political dimension of this

question has to do with the terms of a common European identity as

well as with commitment to shared principles of action. In this

setting the Kosovo War, justified successfully to the public by appeal

to human rights, was an important development. Human rights

crystallized identity and principle both, which is not surprising

given the disastrous results of the fragmented Balkans policies of

previous years and given the currency of reflection on other past

assaults on human life and dignity in Europe. Of course there were

other overlapping concerns, for example with stability within the

region and with the viability of the NATO alliance. But it seems fair

to surmise that concern with human rights here played a complex role

32

in the evolution of a new kind of political collaboration, however

short-termed and focused on a military action it may have been.

Surely no democratically evolving united Europe is conceivable without

a clear and consistently articulated code of human rights.

Conclusion

The future of human rights is by no means assured, either in

practice or in theory. But, if my analysis here is on the right

track, we can assume that the future of human rights will be closely

bound to the future of politics more generally. And this is not only

a matter of politics at the international level, since globalization

is changing politics throughout. The cosmopolitanism of human rights

thus could have an important impact on local and national politics as

well. Such a political renewal is inseparable from conflicts over the

respects in which human rights themselves remain a compelling

possibility.

Richard T. PetersonDepartment of PhilosophyMichigan State UniversityEast Lansing, MI 48824 USAPetrsnRT@msu.edu

Notes

33

i. See, for example, Noam Chomsky, The New Military Humanism, Monroe, ME: Common Courage Press, 1999.

ii. See various examples of traditional texts in Micheline R. Ishay, The Human Rights Reader, New York: Routledge, 1997.

iii. Michael J. Perry, The Idea of Human Rights, New York: Oxford University Press, 1998.

iv. See the “United Nations Universal Declaration of Human Rights” in Ishlay, pp. 407-11.

v. I owe this point to a question by Andrew Kelley.

vi6. For a restatement of the discourse ethic within a discussion of legaltheory, see Juergen Habermas, Between Facts and Norms, tr. Wm. Rehg. Cambridge, MA: MIT Press, 1996.

vii. For a useful discussion of issues about the discourse ethic, see William Rehg, Insight and Solidarity, Berkeley: University of California, 1994.