Noel Malcolm is surely right both that human rights standards are important, and that accounts of human rights are currently in some trouble. I think that he is also right that some of these troubles have been brought about not by those who are hostile to or who violate human rights standards, but by certain admirers and advocates of human rights who have been too eager to proliferate human rights, or too relaxed about principles for their judicial interpretation. A more restrained view of human rights and their interpretation, he suggests, would remove temptations to classify too many breaches of law as human rights violations. It would see only state failure to enact (and enforce) laws that prohibit specified types of gravely unacceptable action as human rights violations.
Here I shall offer some brief comments neither on the identification nor on the judicial interpretation of human right standards, but only on approaches to their justification. Malcolm argues that the justification of human rights should be sought not in moral philosophy but in political theory, or (as I read him) more specifically in political institutions and practice. He argues that human rights are best justified as articulating necessary constraints on the use of state power in democracies: they are requirements that must be met in democratic or would-be democratic states in pluralistic societies. As he notes, this line of thought has parallels with those used by John Rawls (also by Jürgen Habermas and Amartya Sen), who have tried to justify not only human rights standards but wider accounts of justice, including principles of just distribution, by appealing to conceptions of democratic agreement.
However, democratic agreement is a slippery matter. Relying on appeals to democracy in order to justify rights will limit the range of audiences to whom rights can be justified. Societies that are not already democracies, or that do not seek to become democracies, will hardly find appeals to the needs of democracy or of democratic agreement a compelling reason for respecting human rights. Many powerful non-democratic states view human rights standards with scepticism or disdain, and in settling for a justification of human rights that is internal to democracy we discard a large part of the long-standing international appeal and importance of human rights. Human rights would have to be seen as an internal arrangement that some societies like, but without wider relevance. Doing without deeper forms of justification has high costs.
And even societies that are committed to or aspire to democracy of some type may not be convinced that they need to take human rights seriously. Democracy is a fine thing provided it is combined with order, with the rule of law and with the elementary rights of the person. But where any of these is lacking, it may be problematic. Democracies without order and the rule of law may offer no more than mob rule—as Plato pointed out long ago. Democracies that achieve order but not the rule of law may be—and often are— dominated by corrupt elites. Democracies that secure order and the rule of law, but not the elementary rights of the person may pursue harsh and unfair policies that harm their citizens. We can get round these problems by asserting that all of these are not really democracies, and that the supposed political justification of human rights is intended only to appeal to members of societies that are already ordered, have already entrenched the rule of law, and are already committed (at least) to the elementary rights of the person. But in doing so we would be settling for an internal, quasi-communitarian justification of human rights that would engage only societies that had already gone most of the way towards implementing human rights standards. Justifications are easier when intended only for an internal audience: but at some cost.
Malcolm points out that attempts to provide deeper justifications that can reach wider audiences by appealing to interests or to choice, have also proved problematic. I have sympathy with some of these criticisms of specific approaches to justifying human rights, but they do not exhaust the possibilities for justification. There are other directions in which we might also look.
First, I think it helps to take account of the fact that the human rights declarations and covenants of the mid twentieth century represent a massive retreat from older and wider conceptions of human duties, and even from older conceptions of justice. The canonical human rights instruments give priority to claimants rather than agents. They focus on the claims of individual right holders and corresponding perfect duties, but ignore both perfect duties that cannot be claimed by individuals (e.g. duties of fairness) and all imperfect duties (e.g. duties of generosity). Like other reversals of perspective, this one has obscured matters that were once more evident. Current tendencies to proliferate human rights claims, to look for more expansive juridical interpretation of each right and to call for more, more detailed and more intrusive adjudication and regulation, are perhaps best understood as attempts to compensate for the fact that important standards become invisible if we focus primarily on claimants rather than agents. The best remedy may be to take a broader rather than a narrower view of what has to be justified. It is hardly satisfactory to see ethics as a merely subjective matter, in which I assert that my preferences are ‘my values’, you assert the same of your preferences, and questions of justification are ruled out of court.
Second, justifications can be compelling only if they build on available premises. It may be true that many of the justifications offered in recent writing by moral and political philosophers fail. They may rely on assumptions that are not true or not plausible, or on derivations that do not work. However, this does not show that claims about basic standards of justice cannot be given robust justifications. If we are unconvinced by would-be justifications of human rights, the proper response is surely seek to construct more robust rather than more limited justifications.
Baroness O’Neill of Bengarve is Emeritus Professor of Philosophy in the University of Cambridge and sits as a cross-bench peer. She was Chair of the Equality and Human Rights Commission until 2016 and is a former BBC Reith Lecturer. In 2017 she was awarded the Berggruen Prize and Holberg Prize for outstanding contributions in philosophy.