Chapter 5 of Sir Noel Malcolm’s Human Rights and Political Wrongs examines leading moral-philosophical theories of human rights and issues a damning verdict. Their advocates, according to Malcolm, are just ‘whistling in the dark’. By contrast, he offers an account of human rights within political theory, not moral philosophy. The key idea is that human rights set the conditions of legitimacy of a democratic, or would-be democratic, state. In my comments, I will focus on this positive theory, rather than risk a tedious defence of the philosophical theories Malcolm attacks, one of which – for the purposes of full disclosure – happens to be mine.

According to Malcolm, the legitimacy of governments in democratic, or would-be democratic societies, depends on their adequately discharging certain functions, such as providing security and access to justice. Perhaps not all these legitimacy-conferring functions – such as the provision of national defence – are to be strictly understood in terms of securing human rights. Nevertheless, the general idea is that human rights are violated if governments deviate from these functions in ways that are oppressive or tyrannical. At this point, members of the society will be justified in disobeying any such laws and, potentially, in rebelling against the government.

Now, I think this assimilation of human rights to conditions of political legitimacy is an intriguing line of thought, familiar to readers of Rawls and Dworkin, but developed by Malcolm in an original way. But it also raises serious questions.

For one thing, it seems to be vulnerable to objections similar to those that Malcolm pressed against moral-philosophical theories. One of these objections is that such theories don’t really help us in determining whether a human interest is important enough to generate a human right. But, arguably, the same objection applies to his own theory. The ideas of governmental oppression or tyranny lie on a spectrum with other notions, such as imposing on citizens an unfair burden or simply a massive inconvenience. How do we know when a government is oppressing its members as opposed to just unfairly burdening them? For example, Malcolm says that positively ‘facilitat[ing] one’s gypsy identity’ (p.141) cannot be a human rights obligation on government. But how can he be so sure? Why would it not be oppressive to fail to assist historically persecuted and currently marginalised groups to maintain and express their identities? This is exactly the kind of line-drawing problem that Malcolm treated as devastating for moral philosophical theories, but which he seems to think he can take in his stride.

Now, one reason for his confidence may be that he has a clear test for determining whether governmental action is oppressive, hence illegitimate, hence a human rights violation. This test is the beliefs or feelings of a democratic citizenry. So, in addressing the question of which welfare entitlements should count as human rights, Malcolm writes:

“What would shake the legitimacy of the regime would be if it deliberately reduced welfare to below the minimum level that citizens feel that it absolutely must promote” (p.117-8).

In other words, when it comes to human rights, if enough citizens in a democracy believe an entitlement is a human right – a condition of political legitimacy – then, mirabile dictu, it is a human right. We might call this the Tinkerbell theory of human rights: you will recall the philosophy of the eponymous fairy that merely believing in something strongly enough can make it so. In this vein, Malcolm asserts:

“what people believe to be fundamental among their claims on government is fundamental – for the purposes of human rights and legitimacy – by virtue of the fact that they believe it to be fundamental, regardless of the reasons… which they hold for thinking so”. (p.130)

So, what should we say about this alternative to the philosophical approaches to human rights?

To begin with, notice that Malcolm has now replaced one line-drawing problem – distinguishing what is oppressive from what is not – with at least two other line-drawing problems. First, since there is nothing on which all citizens agree, we need to know how many must have the “feeling” or “belief” in question, and perhaps for how long. And we also need to know how to quantify the intensity of their feelings and beliefs, i.e. when the threshold of “absolutely must” is reached, as opposed to “it would be a very, very good thing if” a certain right is secured. Unfortunately, Malcolm does not give us much by way of guidance in solving either line-drawing problem. In other words, I again worry that Malcolm again lets himself off the hook on problems he took to be fatal to the leading moral-philosophical theories.

But, even leaving these serious problems aside, Malcolm’s theory faces a much deeper one. This is its heavy reliance on the “beliefs” and “feelings” of a democratic citizenry in identifying human rights.

One reason this is a problem is that different democratic citizenries will very likely have different feelings on the same questions – for example, whether capital punishment or hate speech are human rights violations. This threatens to undermine the widely-held view that human rights, if they are to be worth the name, must be genuinely universal standards that apply to all human beings. This problem is exacerbated when we note, as Baroness O’Neill does in her commentary, that Malcolm’s theory has little to say to societies that are not would-be democratic when it comes to justifying human rights. Now, Malcolm seems curiously ready to throw this universalism overboard in the name of ‘cultural relativism’. But, again, he appears to be the beneficiary of a double standard, given that he repeatedly castigated moral-philosophical theorists for failing to capture widespread beliefs about human rights. Surely, however, that human rights are universal standards is one such belief.

But there is a yet more serious problem with Malcolm’s appeal to a democratic consensus of feelings. Why do these feelings have any authority in determining what human rights exist? The feelings of citizens may be more or less well-informed, they may embody prejudices of various kinds, they may be lamentable adaptations to long-established practices of exclusion and oppression. There seems no reason to suppose that these feelings are any kind of reliable guide to what we should think of as human rights, let alone constitutive of such rights.

Now, Malcolm’s reply might be that he is not proposing that we make human rights a matter, as he puts it, of ‘popular opinion as measured by opinion polls’ (p.119). It’s not simply a raw preponderance of subjective feelings that ultimately carries the day. Rather, there are constraints on the import of these feelings set by ‘framework conditions… derived from the nature of democracy itself’. (p.119). But what are these ‘framework conditions’?

At this point, Malcolm mentions ‘a basic requirement that citizens be treated equally’ (p.119). But this suggestion itself encounters a twofold problem. First, the notion of equality is a heavily contested one in political theory. It ranges on the one hand from merely formal equality, to radically redistributive forms of egalitarianism on the other. Our progress will be illusory unless we have adequately specified and defended the relevant notion of equality, and this Malcolm fails to do. But there is a second problem: when we specify the relevant notion of equality built into the framework conditions of democracy itself, we will very likely need to appeal to what look like human rights: rights to life, rights to democratic participation, rights to freedom of thought and speech, and so on. So, the proposed grounding of human rights in democracy begins to look, to some considerable degree, suspiciously circular.

Now, perhaps Malcolm will say that all these are elitist philosophical quibbles on my part. That my concerns about reliance on subjective views display insufficient faith in my fellow democratic citizens. He offers a piece of encouragement of this kind to doubters like myself:

“Yet while from our theoretical viewpoint we can call this subjective, we can be sure that, unless the population is bewitched or psychopathic, the values in question will be chosen not arbitrarily, but on the most serious grounds available within their moral and political thinking” (p.120).

But I am not reassured. My worry is not that the democratic citizenry will be bewitched or psychopathic, nor that it will lack seriousness. Consistent with excluding all this is the possibility that it will be profoundly mistaken. Mistaken about, for example, rights to be free of discrimination based on gender or sexual orientation or to engage in offensive speech. Just to be clear, my worry at this point is not so much with Malcolm’s invocation of democracy. It may well be that the best way to create and elaborate human rights law is through democratic, rather than judicial, procedures – I leave that question open. Rather, my concern is with his conception of democracy, and the way he relates it to our understanding of the human rights that should be made into laws.

Democracy is not fundamentally about channelling the disparate subjective beliefs and feelings of the citizenry. Perhaps there are some political decisions that may legitimately be made that way, for example, the decision whether to spend more public money funding on ballet versus rugby. But, in general, the ideal case of democratic deliberation involves not the aggregation of feelings or preferences, but rather the attempt to engage in rational deliberation about the contours of the common good. And a vital element of our common good is the rights we have simply in virtue of our humanity. Therefore, we need to bring to democratic deliberation our considered and rationally grounded judgments as to those rights, and to offer reasons for our views to those who disagree. And this, I think, takes us straight back to the moral-philosophical theories that Malcolm dismissed as so much ‘whistling in the dark’. Democratic decision-making, on this view, is not a replacement for would-be objective reasoning about morality, but rather presupposes it. The irony of Malcolm’s democratic theory of human rights, therefore, is that it turns out to be of little use to democratic citizens concerned with human rights, throwing them back on their own subjective views about such rights.

Now, Malcolm repeatedly says that we don’t need to worry about the justification of our beliefs about human rights, so long as we agree on human rights. But this response seems doubly complacent. First, it’s complacent to assume we really do agree on human rights. We may agree on the familiar names of rights. But as we painfully discovered about even the right not to be tortured, people can disagree on what counts as torture or on whether torture is ever permissible. And, secondly, it is complacent because, even if we did agree on these human rights, our agreement does not constitute them as human rights. To adapt a saying of Aristotle’s: we agree on them because we think they are human rights, they are not human rights just because we agree on them.

To summarise my objections: human rights are not merely products of a democratic consensus. This proposal is either circular, because it presupposes the existence of human rights in characterising democracy, or it is arbitrary, because nothing ensures that a consensus will genuinely track human rights standards. In his book, Malcolm has done us the great service of exposing a certain kind of human rights idolatry according to which Courts such as the European Court of Human Rights are the infallible oracles of what human rights truly are. I think Malcolm is right that courts can make mistakes about human rights. But the answer is not to substitute an idolatry of democratic consensus, since a democratic consensus can also be mistaken. Again, Malcolm is perfectly right to urge on us the need to reconnect the potentially elitist discourse of human rights with the popular politics of democracy. But his subjectivist proposal is not, I submit, a secure starting-point for embarking on this project.

Professor John Tasioulas is Director of the Yeoh Tiong Lay Centre for Politics,Philosophy, and Law in The Dickson Poon School of Law, King’s College London.