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1. THE PROBLEM OF PHILOSOPHICAL FOUNDATIONS
The concept of human rights raises problems that are, on the one hand, practical and urgent, and, on the other hand, theoretical and abstract. For human rights proponents and academics whose work is oriented towards activism, the concept connotes the prevention of political murders, "disappearances," torture, and unjust imprisonment. The concept of human rights also raises theoretical issues about the requirements of legitimate government and the nature of the good life. It is widely recognized that these two dimensions of human rights work exist and should, in principle, be integrated with one another. This integration, however, can prove difficult in practice. For activists, the pressure of rescuing fellow human-beings from actual and imminent injustice relegates theoretical questions to a low priority. Those who look to philosophers and political theorists for assistance may be disappointed, for the theoretical disputation is inconclusive. Thus, there is a gap between human rights activism and theory.
The gap between human rights activism and theory can be bridged by consensus. If all, or most, relevant persons agree upon the principles and practice of human rights, activism can proceed without much concern for fundamental theory. Jack Donnelly has attempted to build a bridge of consensus between human rights activism and theory. He has maintained that human rights in the contemporary world are universal in the sense that they are "almost universally accepted - at least in word, or as ideal standards." There is, in his view, not only a consensus that human rights exist, but also an enumeration of rights in international law. He admits that he cannot defend a particular list of rights with direct philosophical arguments, but maintains that the actual consensus makes this problem unimportant. Donnelly maintains that we can go a long way in dealing with most of the dominant, contemporary, theoretical, and practical controversies "before issues of philosophical anthropology intrude decisively."
Strong forms of cultural relativism raise issues of philosophical anthropology. The doctrine of human rights, for example, rests upon a certain conception of the "human being." Some cultures may not understand the concept "human being," or, if they do, may not attach any moral significance to it. The domain of morality may be shaped by a system of social stratification and by the boundaries of the community. However, Donnelly claims that such views are "almost universally rejected in the contemporary world." For example, moral distinctions between insiders and outsiders have been "seriously eroded" by a great increase in individual mobility and by "at least [an] aspirational commitment to the idea of a universal human moral community." There is a striking cross-cultural consensus on many of the values that human rights activism seeks to protect. Donnelly concedes that, logically, cross-cultural consensus does not entail any additional force for a moral rule. He responds to this difficulty, however, by maintaining that "most people" believe that such consensus adds force to the rule, so that radical relativism, "although logically impeccable," is "in an important sense" morally defective. If a practice is nearly universal and generally perceived as obligatory, that practice is "required of all members of the community." Verbal acceptance of human rights by most states is a prima facie indication that the underlying moral vision is attractive.(1)
Donnelly's approach has three weaknesses. First, Donnelly concedes that the cultural-relativist objection to universal human rights is logically impeccable." Second, he moves from consensus to moral obligation on the communitarian ground that the moral beliefs of large majorities are binding on dissenting minorities. This is inconsistent with the view usually held by human rights theorists, and accepted by Donnelly, that individuals and minorities are not necessarily obliged to conform to the values of majorities. if Donnelly were to argue that this consensus is binding because it is a consensus for human rights, he would have to provide a reason for allowing it to override the logic of cultural relativism. Donnelly does offer a critique of cultural relativism, but fails to show why consensus, as such, should override its supposedly impeccable logic.
The third weakness of Donnelly's argument lies in the qualifications he appends to his claim about consensus. Human rights are "almost" universally accepted, "at least in word," or "as ideal standards." International human rights law is "widely" accepted as "more or less" binding. The concept of a universal human moral community is "at least [an] aspirational commitment." A strong commitment to human rights is almost universally proclaimed "even where practice throws that commitment into question." In response to the argument that consensus exists only on a limited set of "basic" rights, Donnelly does not reaffirm the supposed wider consensus, but expresses his disappointment at the extent of contemporary human rights violations. Consequently, the practical consensus on human rights is "often very shallow-merely verbal." Rights discourse has no point except when rights are threatened or denied.(2) Based on this view, claims for rights presuppose some failure in consensus. The consensus argument is, therefore, both empirically and logically weak. Indeed, it is the weakness of the practical consensus that legitimates the appeal to the theoretical consensus.
Other philosophers and political theorists deal with the problems presented by Donnelly in differing ways. James Nickel has more forcefully stated that there are practical and theoretical problems for human rights. It is very doubtful, he believes, that "there is sufficient agreement worldwide to support anything like the full range of rights declared in contemporary manifestos." All moralities may seek to protect certain fundamental interests such as personal security by prohibiting, for example, murder and rape. Not all moralities, however, condemn racial discrimination or respect freedom of conscience.(3) Underlying the supposed consensus on which Donnelly relies, are those "decisive" issues of philosophical anthropology. There is certainly no consensus on these decisive issues. Human rights activists might be able to ignore the disagreement among philosophers, if the philosophical doubts about universal human rights were not available to violators of human rights. Loren Lomasky has argued that there may be a consensus on rights without a consensus on their theoretical foundations, and the former may be attainable while the latter may not be. Richard Rorty has maintained that the human rights cause needs passion and courage, not reason and theory.(4) However, rights without reasons are vulnerable to denial and abuse. The human rights struggle is certainly motivated by passion, but it is also influenced by argument. Evading the task of finding the best grounding for human rights, in the face of philosophical skeptics and political opponents, demonstrates a lack of intellectual responsibility. Donnelly himself is dissatisfied with the state of human rights theory. He believes that direct philosophical defenses of particular lists of human rights are unconvincing. Currently, there is no adequate theory of human rights, and there is a need for greater theoretical rigor.(5)
Impediments to human rights activism may be theoretical as well as practical. One familiar obstacle for human rights activists is the doctrine of state sovereignty. When governments are accused of human rights violations, they typically assert that their critics are interfering in the internal affairs of the society concerned. This counterclaim rests upon the doctrine of state sovereignty which international law adopted from political theory. The counterclaim may not be well-founded in international law, because human rights are now widely considered a legitimate international concern. Nonetheless, the doctrine of state sovereignty raises the practical problem of persuading governments to improve their human rights performance. This endeavor likewise leads to a theoretical question about doctrinal force of state sovereignty.
Other examples might be cited to demonstrate that the obstacles to human rights activism may be both theoretical and practical. Since the end of the Cold War there has been an increased salience of ethnic and nationalist conflicts and the question of minority rights has once again dominated the international agenda. in the face of human rights disasters, such as the collapse of Yugoslavia, the need to protect minority rights is clear. Nonetheless, the modern theoretical tradition of human rights remains strongly individualistic. Some theorists argue that all collective rights, including minority rights, must be reducible to individual rights. Others argue for a distinct set of group rights. This dispute immediately raises the theoretical question of who can have human rights. Such an analysis in turn raises ontological questions of which relevant entities exist, what properties they have, and which properties are necessary and sufficient conditions for having human rights.(6)
Another example of the practical and theoretical obstacles to human rights activism concerns cultural relativism. Although governments accused of human rights violations most often resort to the legal doctrine of state sovereignty to deny the legitimacy of external criticism, this defense is commonly bolstered by some form of cultural relativism. Cultural relativism underlies the assertion that external agents should not interfere with the internal affairs of nation-states on grounds of sovereignty. The philosophy of cultural relativism further asserts that outsiders are not competent to solve problems that are internal to another culture. This allegation is often raised in support of the argument that a particular interpretation of human rights, or even the basic notion of human rights, may be alien to a particular culture. Such a …