Benhabib Reason Giving Rights Bearing

Reason-Giving and Rights-Bearing: Constructingthe Subject of Rights

Seyla Benhabib

1. Contemporary Justifications of Human Rights

It has now become commonplace to note that in the post-metaphysical age, there is a“justification deficit” in human rights discourse, characterized by the “disturbing fact that,while the global culture and institutionalization of human rights” has gained considerabletraction, “the nature of the justification for claims about the existence of human rights remainsobscure.”1

In recent philosophical debates two quite distinct ways of considering human rightshave emerged: the “traditional” conceptions of Alan Gewirth and James Griffin2 to bedistinguished from the “political” or “functional” (Beitz) conception of rights, inspiredmainly by John Rawls’s work in The Law of Peoples.3

In this essay, I will argue that the juxtaposition of these two positions is false and simplisticbecause any justification of human rights will presuppose some conceptions of humanagency, some account of human needs and rationality, as well as entertain some assumptionsabout the nature of our socio-political world. Whereas human rights theories such as AlanGewirth’s and James Griffin’s4 build human rights around a conception of human agency, theapproach to human rights initiated by John Rawls’s project of developing a global “publicreason,” presupposes that the late modern political world, characterized by an inevitablevalue pluralism and by burdens of judgment, does not need to rest on any such philosophicalaccounts. Yet there is an all-too-hasty identification on the part of Rawlsians of any accountof human agency with a “metaphysical” or “comprehensive” world-view. It is not the casethat such accounts are necessarily metaphysical. By engaging in presuppositional analysis, Iwill try to show what we must presuppose in any meaningful account of human rights. I willthen expand this analysis toward an exegesis of human agency in terms of communicativefreedom and rationality. My goal is to distinguish the “discourse-theoretic” account of rightsfrom the traditional and political ones.

In the second half of this essay, I turn to the five puzzles of human rights. First, are humanrights moral claims or legal entitlements? Second, how is the human in the phrase ‘humanrights’ to be understood? Third, how do we distinguish human rights from civil and politicalrights proper? Fourth, is the UDHR which enshrines human rights in such a powerful waya document of global public reason, may be even a preliminary blueprint towards a worldconstitution or is it rather an aspirational treaty among states with no binding power. Fifth,how is the unity and diversity of human rights to be respected across multiple jurisprudential,religious, and cultural traditions?

2. A Discourse-Theoretic Account of Human Rights

I will argue that rights claims in general are of the following sort: “I can justify to you withgood reasons that you and I should respect each others’ reciprocal claim to act in certain waysand not to act in others, and to enjoy certain resources and services.”5 Some rights claims

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Reason-Giving and Rights-Bearing: Seyla Benhabib 39

are about liberties to do or to abstain from doing certain things without anybody else havinga moral claim to oblige me to act or to withhold from acting in certain ways. These libertyrights generate duties of forbearance. Other rights claims are about entitlement to resources.Such rights, as the right to an elementary school education or to secure neighborhoods, forexample, entail obligations on the part of others, whether they be individuals or institutions,to act in certain ways and to provide certain material goods. As Jeremy Waldron observes,such rights issue in “cascading obligations.”6

For the Kantian morally constructivist tradition, rights claims are not about what “exists;”rather, we ask whether our lives together within, outside and betwixt polities ought not to beguided by mutually and reciprocally guaranteed immunities, constraints upon actions, andby legitimate access to certain goods and resources. Rights are not about what there is butabout the kind of world we reasonably ought to want to live in.

In his Metaphysics of Morals, Kant proposed that there is one basic right: “Every actionwhich by itself or by its maxim enables the freedom of each individual’s will to co-exist withthe freedom of everyone else in accordance with a universal law is right (gerecht).”7 Notethat Kant’s formulation is not about a list of basic rights that is said to precede the will ofthe republican sovereign. Rather, the Kantian principle establishes how a juridico-civil ordercan come into existence that would be in compliance with the moral law of the freedom ofeach. The Kantian principle of right basically states that the only political order that canbe considered legitimate is based upon a system of general laws that binds the will of eachequally. Generality, formal reciprocity, and equality are features of the principle of right.Your freedom as a moral being can be restricted only by reasons that would be generally andreciprocally applicable to each. A polity based on the principle of rights respects you as amoral being.

A discourse-theoretic justification of the principle of right would differ from Kant’s inthe following ways. The emphasis now shifts from what each can will to be valid for all viaa thought-experiment, to those justificatory processes through which you and I in dialogue,must convince each other of the validity of certain norms – by which I mean “general rulesof action.” Stated succinctly: “In order to be able to justify to you why you and I ought toact in certain ways, I must respect your capacity to agree or disagree with me on the basis ofreasons the validity of which you accept or reject. But to respect your capacity to accept orreject reasons the validity of which you may accept or dispute means for me to respect yourcapacity for communicative freedom.” I am assuming that all human beings who are potentialor actual speakers of a natural language are capable of communicative freedom, that is, ofsaying ‘yes’ or ‘no’ to an utterance whose validity claims they comprehend and accordingto which they can act. Human rights can then be considered moral principles that protect theexercise of your communicative freedom and that require embodiment in legal form.8

Certainly, the exercise of communicative freedom is an exercise of agency, of formulatingthe goals and ends we wish to pursue and to effectuate such pursuits. Unlike agent-centrichuman rights theories, such as Gewirth’s and Giffin’s, however, which are still the most com-monly subscribed to accounts of human rights, in the discourse-theoretic model, we proceedfrom a view of the human agent as an individual embedded in contexts of communication aswell as interaction. The capacity to formulate goals of action is not prior to the capacity tobe able to justify such goals with reasons to others. Reasons for actions are not only groundswhich motivate me; they are also accounts of my actions through which I project myselfas a “doer” unto a social world that I share with others; through which I participate in “aspace of reasons,” and in and through which others recognize me as a person capable of, andresponsible for, certain courses of action.

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These insights are wholly in line with those of Robert Brandom’s when he writes: “Saying‘we’ in this sense is placing ourselves and each other in the space of reasons, by giving andasking for reasons for our attitudes and performances . . . Our attitudes and acts exhibit anintelligible content, a content that can be grasped or understood, by being caught up in a webof reasons, by being inferentially articulated.”9 Agency and communication are two sides ofthe same coin. Formulating reasons presupposes my ability to integrate the standpoints ofego and alter. I can only know myself as an agent, because I can anticipate being part of asocial space in which others recognize me as the initiator of certain deeds and the speakerof certain word for which I must be able to provide an account. But even this process ofproviding an account is not subsequent or posterior to the formulation of my goals of actioneither in a logical or in a temporal sense. I can view myself as a doer of deeds and speakerof words only insofar as I can provide an account to myself, of what it is that I wish to doand how to find the right words to express what I mean. The capacity for providing suchaccounts presupposes an internalization of the standpoint of the other(s) in whose eyes andears my acts will accomplish something and my words will mean certain things. Being ableto take the standpoint of the other is necessary to formulate a coherent account of oneselfas an agent, as a doer as well as a narrator. It is the weakness of all agent-centric accountsof human rights that they abstract from the social embeddedness of agency in such sharedcontexts of speech and action, and instead focus on the isolated agent as the privileged subjectfor reasoning about rights.10

First and foremost as a moral being capable of communicative freedom you have afundamental right to have rights. While Hannah Arendt herself identified this right narrowlywith the “right of political belonging,”11 I expand it in the following ways: In order toexercise communicative freedom, your capacity for embedded agency needs to be respected.You need to be recognized as a member of an organized human community in which yourwords and your acts situate you within a social space of interaction and communication. Youhave a right, in the sense of a moral claim, to be recognized by others as a “rights-bearingperson,” entitled to a legally instituted schedule of rights.12 Others can only constrain yourfreedom as a moral being through reasons that satisfy the conditions of formality, generality,and reciprocity for all.

The right to have rights further involves the acknowledgment of your identity as a general-ized as well as a concrete other.13 If I recognize you as a being entitled to rights only becauseyou are like me, then I deny your fundamental individuality that makes you different. If Irefuse to recognize you as a being entitled to rights because you are so other than me, then Ideny our common humanity.

Such reciprocal recognition of each other as beings who have the right to have rightscomes about through political struggles, social movements, and learning processes withinand across classes, genders, nations, ethnic groups, and religious faiths. Universalism doesnot consist in an essence or human nature that we are all said to have or to possess, but rather,in experiences of establishing commonality across diversity, conflict, divide, and struggle.

Let me emphasize how this justification of human rights through a discourse-theoreticaccount of communicative freedom differs from others’. In agent-relative accounts, it isassumed that human rights are enabling conditions of the exercise of agency under somedescription. This then leaves unanswered the question of why the claim that some conditionor another is essential to the exercise of your agency imposes a moral obligation upon me torespect that claim. By contrast, in the discourse model we argue that the recognition of yourright to have rights is the very precondition for you to be able to accept or reject my claimto have rights in the first place. My agent-specific needs can serve as a justification for you



only if I presuppose that your agent-specific needs can likewise serve as a justification forme. And this means that you and I have recognized each others’ right to have rights.

Does not this discourse-theoretic justification of human rights prove either too much ortoo little? Are not my formulations dependent upon some understanding of what constitutes‘good reasons’ in discourses? And surely, the contextualist will continue, either such sharedunderstandings are hardly uncontroversial or your justification strategy is mired in circularity.It presupposes an understanding of good reasons, such as to preclude moral points of viewincompatible with the non-recognition of communicative freedom. To face this seriousobjection, let me first observe that discourses, to be distinguished from bargaining, cajoling,brain washing, and coercive manipulation, are dependent upon certain formal conditionsof conversation: these are the equality of each conversation partner to partake in as wellas initiate communication, their symmetrical entitlement to speech acts, and reciprocity ofcommunicative roles: each can question and answer, bring new items to the agenda, andinitiate reflection about the rules of discourse itself. These formal preconditions, whichthemselves require reinterpretation within the discursive process, impose certain necessaryconstraints upon the kinds of reasons that will prove acceptable within discourses, but theycan never, nor should they be required to, provide sufficient grounds for what constitutegood reasons. Indeed there is a circularity here, but it is not a vicious circle. It is thehermeneutic circle of practical reason Aristotle had noted long ago in his Ethics to be anessential feature of all reasoning in morals and politics: We always already have to assumesome understanding of equality, reciprocity, and symmetry in order to be able to frame thediscourse model in the first place, but each of these normative terms are then open to reflexivejustification or recursive validation within the discourse itself. Such recursive validation ofthe preconditions of discourse has been misunderstood by many as presupposing a viciouscircle. These charges ignore the hermeneutical structure of practical reason and wish to havepractical reason proceed as if it were theoretical reason – from uncontested first premises.

What I have outlined above is a discourse-theoretic account of human rights whichproceeds by way of a presuppositional analysis of our speech-immanent commitments14 to arecognition of the individual as a person with the right to have rights, understood broadly asthe moral right to be recognized as a person entitled to a legal schedule of rights. This is nota deduction of the concept of human rights; rather, it is an account of human rights in lightof the normative presuppositions of what it means to be a speaking and acting agent. Wheremy account differs from other accounts of human agency is through my claim that actingas a rational agent involves reason-giving by integrating the perspectives of ego and alter.Being able to take the standpoint of the other is necessary to formulate a coherent accountof oneself as an agent – as a doer as well as a narrator.

3. The Five Puzzles of Human Rights

To further distinguish this discourse-theoretic approach from the traditional-humanistic aswell as functional-political views of human rights, let me now turn to the five puzzles ofhuman rights: first, are human rights moral claims or legal entitlements?

3.1. Human Rights: Moral or Legal

There is wide-ranging disagreement in contemporary thought as to whether human rightsare moral claims or legal entitlements. Some, such as Michael Walzer, argue that humanrights constitute the “core of a universal thin morality,”15 while others, such as Martha



Nussbaum, claim that they form “reasonable conditions of a world-political consensus.”16

Nussbaum’s method of philosophical deduction, which grounds rights-concepts all toonarrowly in a philosophical anthropology of human capabilities is problematic. No dis-tinction is made in her account between rights as “moral principles” and rights as “legalentitlements.”17

In my view, rights articulate moral claims on behalf of persons and may even be onbehalf of non-human beings, such as animals and the environment, which can be deeply andirretrievably affected by our actions. Although to raise a moral rights claim puts “pressure”on political and legislative institutions to generate a justiciable legal entitlement, not allsuch rights claims result in specific legal entitlements. For example, to speak of the rights ofendangered species is to raise a moral claim that may eventually be translated into a legal enti-tlement. Whether this takes the form of forbidding whaling off the coast of Japan or institutingpositive measures such as to protect the Bald Eagle in the United States is an open question tobe decided upon by democratic peoples. Moral rights do not dictate a specific content to legalentitlements.

In “Elements of a Theory of Human Rights,” Amartya Sen as well18 wishes to considerhuman rights as “primarily ethical demands,” which relate to the “significance of the freedomsthat form the subject matter of these rights.”19 Although he refrains from an exhaustive listingof these freedoms, the latter for Sen are actualizations of capabilities, both in the sense ofopportunities and also of processes requisite for such capabilities to unfold.

By situating human rights so centrally within an ethical theory of freedom and capabilities,Sen disregards the political history of human rights that has always been closely tied tostruggles around legitimacy and just rule. Rights do not simply state strong moral entitlementsthat we owe to individuals; they are in the first place claims to justice and legitimacy thatenframe our collective existence. We cannot simply reduce the vocabulary of rights to thelanguage of moral correctness. Violating a right is different than inflicting a moral harm ona person. We can do the latter, that is, inflict moral harm on a person, without engaging inthe former, that violating their rights; certainly some violations of rights, but not all, are alsoforms of moral harm. For example, by humiliating you in front of your family, friends, andloved ones, I inflict moral harm upon your dignity as a person; but I have not thereby violatedyour “human right to dignity,” which I would be doing if I were to subject you to tortureand other forms of “cruel and unusual punishment.” All violations of basic human rights,by contrast, that impinge upon the communicative freedom of the person also inflict moralharms. Thus, if I hinder you from exercising your capacity to express your opinion freelywithin the boundaries set by the law, then I have not only violated your right to freedom ofexpression, but I have also harmed your moral capacity as a person capable of communicativefreedom to engage in dialogue with others.

Human rights constitute a narrower group of claims than general moral rights; humanrights bear on human dignity and equality; they are protective of the human status as such.20

Clearly, morality involves more than just concepts of dignity and equality; moral systemsalso entail values such as fairness, human flourishing, and altruism. Human rights do notexhaust the entirety of our conceptions of justice, let alone of morality.21 Human rightshave their proper place in discourses of political legitimation. Such discourses presupposemoral principles – in the sense that the justification of human rights always leads backto a moral principle of respect for persons. But human rights are most centrally part of apublic vocabulary of political justice; they designate a special and narrow class of moralrights.



3.2. Who is the ‘Human’ in Human Rights?

The discourse of human rights which, as the UDHR states, considers all human beings aspersons entitled to the same rights regardless of “the political, jurisdictional or internationalstatus of the country or territory to which a person belongs,” is affected by an aporia firstidentified by Hannah Arendt in The Origins of Totalitarianism (1951). Reflecting upon thecondition of the ‘apatrides’, the stateless, in the period between the two world wars, Arendtobserved that human rights seemed to be most irrelevant and ineffectual when they weremost needed, that is to say, when the person was merely a human being without belonging toany territory or jurisdiction that would recognize him or her as its member. The stateless weredeprived not only of their rights to citizenship; they were deprived of any human rights. Therights of man and the rights of the citizen, which the modern bourgeois revolutions had soclearly delineated from one another were deeply imbricated, because the loss of citizenshiprights, contrary to all human rights declarations, was politically tantamount to the loss ofhuman rights altogether.22

Whereas Arendt herself narrowly identified the right to have rights with the right to belongto and to be recognized as a member of a political entity, clearly the right to have rights isalso a moral imperative equivalent to that famously formulated by Hegel in his Philosophy ofRight: “Sei eine Person und behandle andere als Personen” [“Be a person and treat others aspersons”].23 However, what Arendt’s as well as Hegel’s reflections reveal, is that ‘the human’in the phrase ‘human rights’ can never be an individual considered in isolation from socialrelations and social context. To be a person, that is to be entitled to the right to have rights, isto be recognized by others as a being worthy of equal moral respect. The ‘human’ of humanrights is not a zoe but a bios politikos. Admittedly, while Hegel’s justification of the rightof personality involves his metaphysics of freedom, anchored in his philosophy of history,Arendt’s justification of the right to have rights remains unclear. Rejecting both concepts of‘nature’ and of ‘history’ to serve as adequate grounds for human rights, Arendt placed herfaith in the human capacity to establish new political orders in which human equality wouldbe guaranteed by the recognition of each others’ right to personality. Whether this suggeststhat Arendt’s political philosophy is a form of political existentialism or decisionism,24 I willleave aside in this context. It is clear, however, that the language of normative justification isnot one that interested her, but one which we cannot ignore.

3.3. Human Rights and Civil-Political Rights

If human rights can only be realized against the background of social relations in and throughwhich we treat one another in accordance with the rights of personality, then what exactly isthe distinction between so-called ‘human rights’ and ‘civil rights’ of all persons – whetheras citizens or permanent residents or mere tourists?

Consider the following articles of the Universal Declaration: Article 3, “Everyone hasthe right to life, liberty and security of the person;” Article 4, “No one shall be held inslavery or servitude; slavery and the slave trade shall be prohibited in all their forms;” Article5, “No one shall be subjected to torture or to cruel, inhuman or degrading, treatment andpunishment;” and Article 6, “Everyone has the right to recognition everywhere as a personbefore the law.”25 The next 4 articles of the UDHR – from 7 to 11– then outline in greatdetail what we may name principles of civil procedure and equal treatment in the eyes ofthe law. And perhaps in clear recognition of the fact that what are called human rights arethe rights of persons who live in organized political communities, Article 15 declares that



“Everyone has the right to a nationality; and that no one shall be arbitrarily deprived of hisnationality nor denied the right to change his nationality.” Human rights articulate moralprinciples such as dignity, equality, and the recognition of personality, which then assumejusticiable Gestalt by being anchored in legal orders in the form of the civil rights of allpersons resident upon a territory. Surely, it is the recognition of this truth that eventually ledthe United Nations to develop an International Bill of Human Rights, divided first into theInternational Covenant on Civil and Political Rights (ICCPR; opened to signature in 1966and entered into force in 1976, with 167 out of 195 countries being parties to it as of 2011)and second, the International Covenant on Social, Cultural, and Economic Rights (ICESCR;entered into force the same year and with 160 state parties as of 2011).26 We observe herehow human rights as moral principles generate abstract legal norms that are then embeddedin specific constitutional orders as civil rights.

3.4. The Meta-Status of the Universal Declaration of Human Rights

In view of the deep transformations introduced into the logic and content of human rightsdiscourse in the more than half a century since the Universal Declaration was formulated,it has been argued that the meta-ethical function of human rights has also changed. Humanrights are to be seen neither merely as moral claims nor as legal entitlements of persons butas political and legal principles binding the will of sovereign entities. Defending this view.Joseph Raz has argued that “The task of a theory of human rights is (a) to establish the essentialfeatures which contemporary human rights practice attributes to the rights it acknowledgesto be human rights; and (b) to identify the moral standards which qualify anything to be soacknowledged.”27 Raz follows Rawls in taking human rights “to be rights which set limitsto the sovereignty of states,” and boldly claims that “their actual or anticipated violation isa (defeasible) reason for taking action against the violator in the international arena . . . ”28

This so-called ‘political’ or ‘functional’ account of human rights is then distinguished fromthe ‘traditional’ approach of Alan Gewirth and James Griffin, which are said to be “so remotefrom the practice of human rights as to be irrelevant to it.”29

This critique of the traditional account of human rights has found many adherents. Fol-lowing Rawls’ view, first developed in The Law of Peoples, Charles Beitz has also writtenthat human rights are part of a global normative order, defined as a “body of norms that aremore or less widely accepted as regulative standards for conduct in various parts of globalpolitical space.”30 This is a “practical or a functional conception” that takes “the functionalview of human rights in international discourse and practice as basic.”31 The task of a theoryof human rights then shifts from justifying and elucidating human rights as normative claimsthat flow from the recognition of personhood to clarifying those principles that stipulate “themoral limits of state sovereignty.”32

This novel account of what to expect from a theory of human rights itself generatesfurther puzzles: what then is the status of the Universal Declaration and of the two In-ternational Bills of Human Rights? Are they elements of a global public reason the mainfeature of which is to articulate “moral limits on state sovereignty”? But if so, doesn’t thisfunctional conception of human rights run the risk of encouraging extensive interferenceand meddling by states in each others’ affairs? What are the institutional mechanisms forevaluating for establishing when and how the moral limits of state sovereignty have beenviolated? Isn’t it politically dangerous in a world-society of states to treat human rightsviolations as generating ‘defeasible’ (Raz) or ‘pro tanto reasons’ (Beitz) for humanitarianinterventions?33



Jurgen Habermas has observed that this functional view of human rights is a deflationaryone, because “This new minimalism relaxes the claim of human rights by cutting them offfrom their essential moral thrust, namely the protection of the equal dignity of every humanbeing.”34 But this account is also “inflationary,” in that in Beitz’s words, “appeals to humanrights, under conditions that will need to be specified, can provide reasons for the worldcommunity or its agents to act in ways aimed at reducing infringements or contributingto the satisfaction of the rights in societies where they are insecure.” In Beitz’s two-levelmodel, states are the primary bearers of responsibilities with respect to compliance withhuman rights, while “the international community and those acting as its agents (are) theguarantors of these responsibilities.”35 Yet this manner of stating the problem places thequestion of intervention and the permissible forms of intervention right at the heart of humanrights doctrine.

I consider this an extremely problematical move, which side-steps all controversial legalquestions about the status of the newly emerging order of international law, let alone spellingout which institutions in the current structure of the world-society are in a position to actas guarantors of such responsibilities. Rather than tailor the function of a theory of humanrights so as to make it fit an emergent cosmopolitan legal order the nature of which we stillneed to clarify, it may indeed be best to proceed with the task of philosophical clarificationby facing the difficult questions of the elucidation of human rights themselves and thenconsider newly emergent and evolving sovereignty regimes. To collapse the two tasks intoone is hardly plausible. This is the respect in which the discourse-theoretic account of humanrights I defended above, is closer to the traditional than the functional view.

Debates about the status of the Universal Declaration of Human Rights, whether it isbinding law, and if so, how it is to be enforced, whether it is a mere declaration with moral-hortatory intent alone, have accompanied it from the start. In “The Strange Triumph ofHuman Rights, 1933–1950,” the historian Mark Mazower gives a very good account of whythe superpowers, and in particular the United States and Great Britain, asserted “domesticjurisdiction,” and made sure that “the human rights provisions of the UN Charter would notbe automatically applicable at home.” They eventually agreed to the UDHR only because “itwas a declaration” and not “a covenant.”36 International jurists such as Hersch Lauterpachtand Hans Kelsen, were dismayed very early on that neither the Universal Declaration northe rights-clauses within the UN Charter made provisions for a court with the authority toadjudicate on rights’ violations nor allowed the right of petition.37 Yet taken together, theinstitution of the UN Charter, the UDHR, and the Genocide Convention of 1948, had thecumulative effect of opening the floodgates to petitions from around the world complainingabout human rights violations, race discrimination and the like. It would be go beyond thisessay to comment on contemporary legal developments that have since then pushed the statusof the UDHR from being an international treaty toward being viewed something like a Billof Rights for a global constitution.

3.5. The Unity and Diversity of Human Rights

The final puzzle I wish to address is closely related to the last one: how are we to think ofthe unity and diversity of human rights across various constitutional orders? I think that anearly but mistaken version of this problem was formulated by John Rawls when he criticizedArticle 24 of the Universal Declaration’s listing of everyone’s “right to rest and leisure,including reasonable working hours and periodic holidays with pay.” For Rawls, this was acase of “misplaced concreteness,” we might say.38



But suppose we reformulate Article 24 as stating that human beings not only have aright to fair and equitable work conditions but that they have a right to work such asdoes not degrade, impair and damage health and bodily integrity. The issue then is notthe “right to periodic holidays with pay,” but the right to work that assures human beingstheir health and well-being. Should such a right be considered a human right? Why or whynot? Here I agree with James Griffin that, as philosophers, we cannot simply accept orreject the articles of the Universal Declaration as well as those in many other internationaltreaties and covenants without further reflection and critique. James Griffin asks what isthe relationship between international law and the best philosophical account of humanrights?39 Undeterred by others’ deference towards international covenants and treaties, herightly observes that the result of such an examination may be that “Some of the items onthe lists are so flawed that they should be given, as far as possible, the legal cold shoulder.”40

I would also add, however, that as philosophers we may find ourselves faced with themore constructive task of expanding the language of existing rights, and may be even ofsuggesting new ones. This is the case because the language of human rights moves at variouslevels.

James Nickel is one of the few authors who has noted the multiplicity of levels at whichrights vocabulary can function and who has tried to explain the translation of the languageof moral principle to that of justiciable rights claims. Nickel writes “The rights vocabularycan be used at any of these levels. For example, one might talk at the grand level of the rightto equal respect, at the middle levels of the constitutional right to due process, and at theapplication levels of a statutory right to have thirty days to prepare for a hearing. But thevocabulary of human rights is used most typically at the middle level – it is used by nationsor international organizations to outline in broad but still fairly definite terms what granderprinciples of morality and justice require in one country or era.”41

There is a legitimate range of variation even in the interpretation and implementation ofsuch a basic right as that of “equality before the law.” But the legitimacy of this range ofvariation and interpretation is crucially dependent upon the principle of self-government.My thesis is that without the right to self-government, which is exercised through properlegal and political channels, we cannot justify the range of variation in the content of basichuman rights as being legitimate. Unless a people can exercise self-government throughsome form of democratic channels, the translation of human rights norms into justiciablelegal claims in a polity cannot be actualized. The right to self-government is the conditionfor the possibility of the realization of a democratic schedule of rights. Just as, without theactualization of human rights themselves, self-government cannot be meaningfully exercised,so too, without the right to self-government, human rights cannot be contextualized asjusticiable entitlements. They are coeveal: the liberal defense of human rights, understoodas placing limits on the publicly justifiable exercise of power needs to be complementedby the civic-republican vision of rights as constituents of a people’s exercise of publicautonomy. Without the basic rights of the person, republican sovereignty would be blind;and without the exercise of collective autonomy, rights of the person would be empty.42

By denying the all-too-crucial Article 21 of the Universal Declaration, which guaranteeseveryone “the right to take part in the government of his country, directly or through freelychosen representatives,” and stipulates that “the will of the peoples shall be the basis of theauthority of government,”43 Rawls and defenders of the minimalist view, such as JoshuaCohen, destroy this internal relationship between human rights and the right to democraticself-determination.44



4. Conclusion

In this essay, I have argued that the discourse-theoretic account of human rights differs bothfrom traditional accounts based on conceptions of human agency and from the functionalor political account. Traditional conceptions of human agency are inadequate because theyfail to explain why it follows from the premise that some conditions are necessary for meto exercise rational agency that you ought to recognize such conditions as my rights-claims.Alternatively, as in James Griffin’s account, human rights are seen “as protections of our nor-mative agency,”45 but then it is asserted that this “is a status we have independent of society.”

The political or functional account of human rights dispenses with a conception of hu-man agency altogether and considers human rights as formulating “moral limits of statesovereignty.” The strength of the functional view as opposed to the traditional one lies inits institutional realism about the changing status of human rights in an emergent worldinternational order. Its weaknesses are that its institutional realism proceeds all-too-quicklyand without much articulation of legitimation problems in international law from humanrights violations to humanitarian interventions.46

The discourse-theoretic conception of human rights considers an account of communica-tive agency as being essential to any defensible view of human rights. Like the politicalor functional account, the discourse-theoretic account sees human rights as “urgent moralclaims” that require judicialization and legal concretization. Unlike these latter views, how-ever, the discourse-theoretic conception acknowledges that human rights claims also have amorally transcendent purpose in criticizing injustice and oppression, and that this functionmay well go beyond those rights and only those rights as enumerated in various humandeclarations and treaties. Yet this morally transcendent critical function of human rights doesnot lead to a “pro tanto” justification of humanitarian interventions. The world-society ofstates is caught indeed in radical transformations of state sovereignty; but the purpose of atheory of human rights is distinct from rendering an account of such transformations thatare extremely important in their own right.47 Human rights are fundamental protections of“the right to personality” (Hegel) in modern polities. They remain the cornerstone for anymodern political conception of legitimacy.

NOTES

*This is a revised version of a lecture originally held at the Deutschen Philosophen-Tagung in Munich,September 12–15, 2011. An earlier version appeared in the Proceedings of the Deutsche Philosophen-Tagung.

1. Allen Buchanan, “The Egalitarianism of Human Rights,” Ethics 120 (July 2010): 669–710; here,p. 679.

2. This is what Joseph Raz calls views such as those of Gewirth and James Griffiin, in “Human RightsWithout Foundations,” in The Philosophy of International Law, ed. Samantha Besson and John Tasioulas(Oxford: Oxford University Press, 2010), pp. 321–339. Pablo Gilabert names this the “humanistic” view”in “Humanist and Political Perspectives on Human Rights,” Political Theory vol. 39, No. 4 (May 2011), pp.439–467.

3. See J. Rawls, The Law of Peoples with “The Idea of Public Reason Revisited,” (Cambridge, Mass.:Harvard University Press. 1999); Charles Beitz, The Idea of Human Rights (Oxford: Oxford UniversityPress, 2009), p. 13.

4. Alan Gewirth, Human Rights. Essays on Justification and Applications (Chicago: University ofChicago Press, 1982) and A. Gewirth, The Community of Rights (Chicago: University of Chicago Press,1996); James Griffin, On Human Rights (Oxford: Oxford University Press, 2009).

5. For an earlier version, see: S. Benhabib, “Another Universalism. On the Unity and Diversity ofHuman Rights,” in Dignity in Adversity. Human Rights in Troubled Times (Cambridge, UK and Malden,



Mass: Polity Press, 2011), pp. 57–77. The current account differs from the earlier one through the attemptto integrate Robert Brandom’s view of reasons into my understanding of agency.

6. Jeremy Waldron, “Introduction,” Theories of Rights (Oxford: Oxford University Press, 1984),p. xxx . I have also found very helpful, Matthew Noah Smith, “The Normativity of Human Rights,”(manuscript on file with the author).

7. Immanuel Kant, [1797] The Metaphysics of Morals, trans. and edited by Mary Gregor. CambridgeTexts in the History of Political Thought (Cambridge: Cambridge University Press, 1996), p. 133.

8. There are some differences among neo-Kantian discourse theorists such as myself and RainerForst, on the one hand, who justify human rights philosophically on the basis of the presuppositions of“speech-immanent” commitments, and Rawlsians such as Joshua Cohen and Kenneth Baynes, on the other,who prefer to see human rights as elements of a “political conception” of global justice and reason. SeeRainer Forst, “The Basic Right to Justification: Toward a Constructivist Conception of Human Rights,”Constellations, vol. 6, No. 1 (1999), pp. 35–60; R. Forst, “The Justification of Human Rights and theBasic Right to Justification. A Reflexive Approach,” Ethics 120(4) (2010), pp. 711–740, and R. Forst,Das Recht auf Rechtfertigung (Frankfurt: Suhrkamp. 2007). For a helpful overview of the philosophicalstakes involved, see Kenneth Baynes, “Discourse Ethics and the Political Conception of Human Rights,”Ethics and Global Politics (2009): DOI: 10.3402/egp.v2il.1938. I am also grateful to Ken Baynes for hiscomments delivered on my and Rainer Forst’s lectures at the Eastern Division of the American Philo-sophical Association Meetings, Boston, 2010, as “Comments on Forst and Benhabib,” On file with theAuthor.

9. Robert B. Brandom, Making it Explicit. Reasoning, Representing and Discursive Commitment(Cambridge, MA: Harvard University Press, 1994), p. 5ff.

10. James Griffin’s magisterial account [On Human Rights (Oxford: Oxford University Press, 2009).All page references are to this edition.] proposes that we see “human rights as protections of our normativeagency,” (4) but denies that his account is a derivation of human rights from such agency. He thus distin-guishes his position from that of Gewirth’s. But then what kind of an account is the one provided by Griffin?Having listed “autonomy, liberty and minimum provision,” as the “three values of personhood,” Griffin thenboldly asserts that “Our normative agency may need protection only in society (though I doubt that), but itis a status we have independent of society.” (51) I fail to see how meaningful accounts of “autonomy, libertyand minimum provision” are even conceptually articulable without reference to a social context.

11. Hannah Arendt, The Origins of Totalitarianism [1951] (New York: Harcourt, Brace andJovanovich, 1979 edn.), pp. 296–7. [originally published in London in [1951] as The Burden of OurTimes].

12. For an analysis of the two meanings of “the right to have rights,” in terms of its moral and juridico-civil components, see Seyla Benhabib, The Rights of Others. Aliens, Residents and Citizens (Cambridge,UK: Cambridge University Press, 2004), pp. 56–61.

13. See Seyla Benhabib, Situating the Self. Gender, Community and Postmodernism in ContemporaryEthics (New York and London: Routledge and Polity, 1992), pp. 35–37.

14. I thank Ken Baynes for this insight and this phrase. See Baynes, “Comments on Forst andBenhabib.”

15. Michael Walzer, “Thick and Thin: Moral Argument at Home and Abroad,” (Notre Dame: Uni-versity of Notre Dame Press, 1994).

16. See Martha C. Nussbaum, “Capabilities and Human Rights,” in Fordham Law Review (1997–1998), vol. 66, No. 273, pp. 273–300.

17. For a more detailed criticism of Nussbaum’s views, see Seyla Benhabib, “Is There a HumanRight to Democracy? Beyond Interventionism and Indifference,” in Dignity in Adversity. Human Rights inTroubled Times, pp. 77–79.

18. See Amartya Sen, “Elements of a Theory of Human Rights,” in Philosophy and Public Affairs32, no. 4 (2004), pp. 315–356, here p. 333. fn. 31.

19. Ibid.20. See George Kateb for a lucid account of the distinction between ‘human stature” and ‘human

status’: “When we refer to the dignity of the human species, we could speak of the stature of the human raceas distinguished from the status of individuals.” Human Dignity (The Belknap Press of Harvard UniversityPress: Cambridge, MA, 2011), p. 7.

21. James Griffin, “Human Rights: Questions of Aim and Approach,” in Ethics 120 (July 2010), pp.741–760; here p. 745.

22. Hannah Arendt, The Origins of Totalitarianism (1979 edn.), pp. 296–97.23. G.W.F. Hegel, Philosophie des Rechts. Die Vorlesung von 1819/20 in einer Nachschrift, Hrsg.

Von Dieter Henrich (Suhrkamp, 1983), p. 47.



24. See Martin Jay and Leon Botstein, “Hannah Arendt: Opposing Views,” Partisan Review, vol. xlv,No. 3(1978), pp. 348–381. This text has been reprinted with no revisions in Martin Jay, Permanent Exiles:Essays on the Intellectual Migration From Germany to America (New York: Columbia University Press,1986), as “Hannah Arendt’s Political Existentialism,” pp. 237–257. I have discussed my disagreements withJay in “From the Dialectic of Enlightenment to The Origins of Totalitarianism. Theodor Adorno and MaxHorkheimer in the Company of Hannah Arendt,” Benhabib, Dignity in Adversity. Human Rights in TroubledTimes, pp. 23ff.

25. The Universal Declaration of Human Rights. Available at http://www.udhr.org/UDHR/default.htm . Accessed December 20, 2011

26. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en. Accessed on December 20, 2011.

27. Joseph Raz, “Human Rights without Foundations,” in The Philosophy of International Law,ed. by Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010), pp. 321–339, herep. 327.

28. Raz, “Human Rights without Foundations,” p. 328. In “Human Rights in the Emerging WorldOrder,” Joseph Raz introduces the notion of the “synchronic universality” of human rights, “meaning that allpeople alive have them.” [In Transnational Legal Theory 1 (2010), pp. 31–47; here p. 41]. But then he arguesthat “ . . . there is no principled ground for identifying human rights with synchronically universal rightsonly,” (42) since such theories are also said to accept that “different people can have different human rights,for they accept that factors other than being human determine which human rights one has” (42). Preciselybecause Raz narrowly identifies human rights as only those “that should be respected and enforced bylaw,” he gives up the moral thrust behind the view of synchronic universality. Synchronic universality is anunattainable ideal since human societies exhibit diverse institutional, economic, and geographic conditions.This then leads Raz to conclude that “if there is no possibility of fair and reliable enforcement, there is nohuman right,” although there may be some other right (44). This position is quite incoherent, vacillatingbetween a strong view of rights as “expressing the world of all human beings” (47) and then limiting thisstrong moral claim via practical considerations of enforcement.

29. Raz, “Human Rights without Foundations,” 323.30. Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), p. 209 and

John Rawls, The Law of Peoples with “The Idea of Public Reason Revisited (Cambridge, MA: HarvardUniversity Press, 1999).

31. Beitz, The Idea of Human Rights, p. 103.32. Raz, “Human Rights without Foundations,” p. 331.33. I address some of these puzzles of humanitarian interventions in “Is There a Human Right to

Democracy? Beyond Interventionism and Indifference,” in Seyla Benhabib, Dignity in Adversity. HumanRights in Troubled Times, ch. 5, pp. 77–94.

34. Jurgen Habermas, “The Concept of Human Dignity and the Realistic Utopia of Human Rights,”Metaphilosophy, vol. 41, No. 4 (July 2010), pp.464–480; here p. 478.

35. Beitz, The Idea of Human Rights, the first quote is from p. 106; the second one from p. 108.36. Mark Mazower, “The Strange Triumph of Human Rights,” The Historical Journal, 47, 2 (2004),

pp. 379–398; here pp. 393 and 395.37. See Hersch Lauterpacht, International Law and Human Rights, pp. 286 ff. Hans Kelsen, “The

Preamble of the Charter – a Critical Analysis,” Journal of Politics, 8 (1946), pp. 134–159.38. See Rawls, The Law of Peoples, p. 80, fn. 23 where he calls such Articles of the UDHR, “liberal

aspirations.”39. James Griffin, “Discrepancies between the Best Philosophical Account of Human Rights and the

International Law of Human Rights,” The Presidential Address, Proceedings of the Aristotelian Society,101 (2001) pp. 1–28; here p. 1.

40. Griffin, “Discrepancies,” p. 26.41. James W. Nickel, Making Sense of Human Rights. Philosophical Reflections on the Universal

Declaration of Human Rights (Berkeley: University of California Press, 1987), p. 44.42. I owe this formulation to Habermas’ thesis of the co-originality of public and private autonomy.

See J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy,trans. William Rehg (Cambridge, Mass.: MIT Press, 1996), pp. 84–104. The final sentence refers, of course,to Kant’s famous formula that “Thoughts without content are empty, intuitions without concepts are blind.”Immanuel Kant, Critique of Pure Reason, unabridged edn., trans. by Norman Kemp Smith (New York: StMartin’s Press, 1965), p. 93. Although I am indebted to Habermas’ general discussions of the relationshipbetween public and private autonomy and his analysis of the discursive legitimation of law, I do not followhis “discourse-theoretic deduction of basic rights.” Habermas claims that, “One begins by applying the



discourse principle to the general rights to liberties – a right constitutive for the legal form as such – andends by legally institutionalizing the conditions for a discursive exercise of political autonomy.” (Ibid., p.121) This “deduction” – if we can call it as such – yields a classification of basic rights into five groups:rights concerning individual liberties; rights concerning the status of membership in a voluntary association;rights to the legal protection of the individual; basic rights in which citizens exercise political autonomy andbasic rights to the provision of living conditions (social, technological, and ecologically safeguarded) . . . ”(Ibid., pp. 122–123). I don’t quite see how one can get at this classification of rights from the introductionof the “discourse principle,” together with the “legal form” to yield the idea of democracy. We seem tohave already presupposed what democracy means and what democratic citizenship entails. In addition to thecircularity of the process of deduction (which Habermas admits, Ibid., p. 122), there is also the problem thatthis reconstruction of the “logical genesis of rights” takes the teeth out of the experience of social struggles inhistory. It is simply not the case that democracy, as a historical institution, always and necessarily presupposesthe classification of rights postulated here; nor is it the case that every legal system, which we may be readyto consider legitimate, would need to be subject to this kind classification. I think that Habermas is tryingto minimize the conceptual as well as historical indeterminacy of the experience of democracy, by trying toharmonize the liberal conception of individual rights with that of the republican understanding of citizens’rights. The “co-originality” of public and private autonomy must not be interpreted as if it were a historicalnecessity but rather as a critique of the individualistic, natural right construction of rights which places theholder of rights “outside” the polity. But beyond this valid point, one should not minimize the potentialconflict between the claims of private and public autonomy. See my review of Habermas’ Between Factsand Norms in the American Political Science Review 91(3) (1997), pp. 725–26.

43. See, “The Law of Peoples” [1993], pp. 553–54; The Law of Peoples [1999], pp. 79–80. SeeJoshua Cohen, “Minimalism About Human Rights: The Most We Can Hope For?” The Journal of PoliticalPhilosophy, vol. 12, No. 2 (2004), pp. 190–213, here p. 192.

44. For a lucid but unconvincing defense of this Rawlsian position, cf. Joshua Cohen, “Is There aHuman Right to Democracy?,” in The Egalitarian Conscience. Essays in Honor of G.A. Cohen, ed. ChristineSypnowich (Oxford: Oxford University Press, 2006), pp. 226–248.

45. Griffin, On Human Rights, quotes are from p. 4 and p. 51 respectively. See also note 10 above.46. To avoid such interventionism, Joshua Cohen argues that human rights can be seen “reasonable

conditions of membership and inclusion” in all human societies but assiduously distinguishes such mem-bership from the exercise of democratic self-determination rights. See Cohen, “Is There a Human Rightto Democracy?” and my critique, “Is There a Human Right to Democracy? Beyond Interventionism andIndifference,” in Dignity in Adversity, pp. 88–93.

47. For some recent discussions, Cf. Petra Dobner and Martin Loughlin, eds. The Twilight of Con-stitutionalism (Oxford: Oxford University Press, 2010); J. L. Dunoff and J. P. Trachtman, eds. Ruling theWorld? Constitutionalism, International law and Global Governance (Cambridge: Cambridge UniversityPress, 2009); J. Weiler, “Prologue – Constitutionalism – Global and Pluralist,” in The Worlds of Euro-pean Constitutionalism. eds. Grainne de Burca and J. Weiler (Cambridge: Cambridge University Press,2011); Neil Walker, Sovereignty in Transition (Oxford: Hart, 2003); C. Joerges, I. J. Sand and G. Teubnereds. Transnational Governance and Constitutionalism (Oxford: Hart, 2004), and most recently, Jean L.Cohen, Globalization and Sovereignty. Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge:Cambridge University Press, 2012).

Seyla Benhabib is the Eugene Meyer Professor of Political Science and Philosophy atYale University. She is the recipient of the Ernst Bloch (2009) and Leopold Lucas Prizes(2011). Her most recent publication is Dignity in Adversity: Human Rights in Troubled Times(Cambridge: Polity Press, 2011).


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