What are Human Rights? Towards a Non-Subjective Ontology of Human Rights Anthony McGann Department of Political Science University of California, Irvine 3151 Social Science Plaza Irvine, CA 92697-5100 email:
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Prepared for Presentation at the Annual Meeting of the American Political Science Association, Seattle, September 1-4, 2010.
We are confident in asserting the existence of human rights. We are clear that these are very important. Indeed they are the theme of this years APSA meeting. From a practical point of view we have no problem with their use. We argue that certain outcomes are human rights. We argue that certain areas of policy should be driven by human rights concerns, and that other policies should not be pursued because they violate human rights. However, when we are asked exactly what human rights are, things become more difficult. I have known people passionately committed to the idea of human rights, to the point of being activists, who, when pushed, admit that they do not think that human rights exist. Perhaps this does matter – perhaps human rights are just a rhetorical device to reach another laudable goal. However, I think it is important that before we accept such skeptical conclusion, that we consider what human right may be. It is clearly unsatisfactory to assert that human rights are simply subjective preferences – statement of the type, “I would like it if people were treated in such a way.” For something to be a right it has to have some binding force. It has to generate some duties on certain recipients. The claim that I think that such an outcome would be good generates nothing of the kind – it can simply be answered by the assertion that the intended target of the claim feels differently. If rights are a simply a matter of personal preference, then rights are changed and created by subjective persuasion. They are in that case not something particularly suited to academic or philosophical study. They would be subjects best left (in Hume’s (1748) words) “to the embellishment of poets and orators, or to the arts of priests and politicians.” (Today, Hume might have added rock stars.) If what matters is persuasion in terms of subjective preferences, these people are far better at it than we are.
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It is also problematic to argue that human rights are simply the rights agreed to in international human rights treaties. International human rights agreement now lay out an impressive array of rights, and at least some have been signed by a wide array of countries. However, when we assert that something is a human right, we are often doing more than asserting that something is in a human rights treaty. When we assert a human rights violation, it is not a valid answer to say, “Well country x has not ratified the ICCPR, so it’s alright. We do not wish to assert that there were no human right abuses before the international human rights covenants in 1966. Furthermore, international human rights agreement generally strongly honor the principle of national sovereignty, a principle that often runs quite contrary to that of individual human rights. We can argue that many countries have voluntarily agreed to a broad range of human rights. However, what they have actually agreed to is a human rights regime where there is little or no enforcement. (There are some exceptions, to this, such as the European Convention on Human Rights where the regime does significantly affect sovereignty.) When we say something is a human right, we are arguing that the kind of rights outlined in international agreements really give rights claims to individuals and generate duties on governments and perhaps the international community. We are often looking for a binding force beyond that provided in most of the international agreement, as if what was stated in the agreements really were binding. A first step in producing a theory of what universal human rights are is to produce a theory of objectively existing political rights and obligations. I use Searle’s (1995) social ontology as a model for this. (It is notable that Searle has argued that work on a viable theory of human rights is just beginning.) Then I show that from within this
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framework it is possible to produce a body of right very similar to what we consider as universal human rights from within the institutional context of liberal democracy. The final task (and by far the hardest) is to show that such rights can be generalized outside the liberal institutional context that generated them in the first place. I explore various ways in which this might be accomplished, but am far from sure that this is possible. Establishing Rights in an Objective Sense We wish to show how it is possible to establish obligations, such as rights, in an objective sense, as opposed to simply being assertions of subjective preferences. This can be achieved in three stages. Firstly, show that it is possible for social institutions to be objective, even though they are made up of subjective, intentional “stuff”. This can be done using Searle’s social ontology. Secondly, show that these social institutions can create obligations, at least within their own contexts. Finally, show that these contexts are not avoidable, or at least the cost of avoiding them is unreasonably high. We are quite comfortable about thinking of social institutions such as money, the law, authority and countries as being objective. It is clear that money (or the lack of it) constrains us, as does the law and the other social institutions mentioned. Nevertheless, just like rights-claims, these institutions do not have a physical or natural reality, but only exist because people believe they exist. An economic textbook will tell us that money is a socially agreed unit of exchange, and that the intrinsic physical value of the token is usually virtually nothing. Similarly, as the commonplace goes, countries cannot be seen from space. Indeed extraterrestrial visitors would not see law, authority or political institutions either, at least not until they had learnt the local language.
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Following Searle, social institutions have an objective character even though they are composed of subjective representations (“intentionality”) only existing inside people’s heads. This is because they are the result of collective, rather than individual, intentionality. Money is not valuable because I think it is. It is not even valuable because everyone thinks it is valuable. It is valuable because people think that other people will accept it as payment and use it to settle debts. And they expect other people to do this because they expect them to expect other people to accept money as payment. And so on, ad infinitum. It is possible for a commodity that individuals realize is valueless (and is not even backed by anything of value) to objectively have value simply because everyone expects everyone else to treat it as valuable, demonstrating that collective intentionality is not simply individual intentionality writ large. Mortgage backed securities may fall into this category. Political authority is another example of the same kind of ontology. In the last days of a regime (say, East Germany in 1989) it may be the case that very few people still believe in that the regime is the legitimate government, or that people have an obligation to yield to its authority. Nevertheless, objectively the government is still the government. Even if it has nothing else going for it, it is still the government because people expect the troops to obey orders and fire on people if they protest. And the troops obey orders (if for no other reason) because they believe that other troops will obey orders and will punish them if they disobey (and perhaps because they believe that the citizens believe that they will obey orders, and therefore will not protest). [It should be noted that Searle believes that all examples of collective intentionality can be stated not just as mutual expectations (“I intend given that I believe 4
that you intend”) but also as explicit constitutive rules (“We intend”). This is problematic in that it gives collective intentionality a conscious and centralized character that may not always be appropriate. Of course there are some social facts that can be created by explicit speech acts or declarations (“illocutionary acts” in Searle’s terminology), and thus can be correctly described as “institutional facts”. Laws and fiat money would be examples of this. However, there are surely other social facts that are purely the result of mutual expectations, and cannot be changed by any illocutionary acts. Non-fiat money (for example, Marlboro cigarettes for a time in post-communist Europe), illegal but de facto governments and social norms would be examples. We need a new term (“mutual facts”?) as opposed to Searle’s institutional facts, to describe this class of social facts. Certainly we need a way to distinguish between norms and institutions, even though both are the result of collective intentionality.] Following Searle, while social facts are ontologically subjective (only exist in people’s heads), they are epistemologically objective. This means we can study them in a similar way to other objective phenomena. Social facts may be true or not true. If you dispute that the five-dollar bill in my wallet is not legal currency, then you do not have an interesting alternative interpretation; (assuming the bill is not counterfeit) you are wrong. If you are dispute that Barack Obama is President of the United States, you are likewise incorrect, even though the name Barack Obama, the Presidency and the United States are all social constructions. Statements about collective intentionality are epistemologically objective because they apply to phenomena external to the subject. A statement that I believe a bill is valuable is subjective. However, a expectation that other people will act as though the bill is valuable and expect other people to act likewise is objective, as it
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refers almost completely to the expectations and behavior of others. Furthermore, it is falsifiable. If I expect that others will not accepts payments using this currency, and they do, then my expectations were false. Given that social institutions have objective existence, the next task is to show that these institutions can create obligations. Once again, there seems nothing mysterious about this. Laws can create legal obligations. Officials in a bureaucracy are subject to an obligation to follow the regulations of their office. Likewise, there are less formal obligations, such as those imposed by “implicit contracts”. For example, there may be a norm within a firm that employees who perform certain duties and achieve certain standards within a given time period are promoted to a certain level. Such norms have an objective quality and (to use Habermas’ idiom) people co-ordinate their life-plans around them. Indeed the success of discrimination cases often rests on showing that such norms exist, and that the obligations implicit in them have not been met in the case of one particular group of employees. Searle’s model of how to get from an institution to an obligation is based on the idea of a constitutive rule. Such rules have the form “x counts as y in the context C”. The simplest example (indeed a deceptively simple example) would be a game such as chess. The rules of the game define what counts as a legitimate move and also what counts as the objective of the game. The canonical example of a rule that creates obligation in Searle’s Speech Acts (1969) is promising. The rule defines a certain speech act whose performance creates an obligation to redeem the promise within the context of the institution of promising.
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Constitutive rules allow us to go logically from a statement of fact (a certain act was performed) to a statement about obligations (for example, someone ought to redeem their promise). That is, it provides a bridge between an “is” statement and an “ought” statement. Thus, according to Searle, the “naturalistic fallacy” is itself a fallacy. (Searle uses the term “naturalistic fallacy” to refer to the doctrine that one cannot logically go from an “is” to an “ought”, while noting that this was not what G.E. Moore originally meant by the term.) The conditions under which a constitutive rule apply (the “x” term) are factual (say, some said, “I promise to…”). If it also possible to show that the constitutive rule exists objectively because it is a necessary part or is legitimately created by an objectively existing social institutions, then we can show that the obligation is also objective. There is, however, an important caveat. Constitutive rules only create obligations within a certain context. It is important not to forget the “in the context C” part of the rule. For this reason, Searle emphasizes the distinction between “ought” (which applies within the context of an institution) and “morally ought” (which is unconditional). When someone moves a pawn backwards, they are not doing something immoral; they are simply no longer playing chess. Similarly, when someone refuses to do what they have promised to do, they are not necessarily behaving immorally. They may have another obligation that trumps their promise, or they may reject the institution of promising altogether, say because it inhibits spontaneity. They are, however, breaking a promise, that is, refusing to honor the obligation they created by making the promise. This limitation is particularly important in the case of human rights. In other cases we might try to argue that a certain institution is inescapable for an interlocutor. Perhaps 7
the interlocutor has voluntarily accepted the institutions; or perhaps the institution is a necessary condition for some principle that the interlocutor is unwilling to give up. However, universal human rights have a particularly institution-free character. A human right is a right that applies to anyone, simply by virtue of being human. How it is possible to make a context obligatory – if indeed it is possible at all – will be dealt with later in this paper. ---------------------------------This suggests a methodology for investigating rights and obligations, and indeed for doing political philosophy in general. If we have a principle (say, political equality), we can take this principle and show what kind of institutions and outcomes are implied by it. However, we can also work backwards, in a transcendental manner. We can take an institution, or a conclusion on which we agree, and then show that some principle is a necessary condition for this institution or conclusion to be valid. Indeed, given that many constitutive rules and institutional norms are implicit, this may often be the only way to proceed. We may also combine the two techniques, using the transcendental method to find the principles necessary for an institution to be valid, and then using these principles we have discovered to deduce what institutions follow from them, thereby providing an immanent critique of the institutions we started from. We may compare this approach to Dworkin’s (1977) approach to the interpretation of the law. When faced with a hard case, where the letter of the law does not dictate an outcome in a straightforward way, Dworkin denies that a judge is entitled to simply substitute his own judgment where the law ends. Rather the judge is required to
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take certain facts, such as statutes and precedents and work backwards. The judge has to create a theory of the law that can explain the existing legal facts. From the principles derived in this way, the judge decides hard cases. Thus the law is not just statue or precedent, but also the principles that are necessary for these legal facts to be valid and consistent. It is interesting that Dworkin interprets Rawls’ Theory of Justice in a similarly transcendental manner, emphasizing the concept of reflective equilibrium. Gewirth’s (1982) theory of human rights and Habermas’ transcendental pragmatics (1990) proceed in a similar way, but take the transcendental nature of the argument far further. Gewirth argues that engaging in purposive action commits a participating interlocutor to accepting human rights. The fact that a purposive actor must believe that their goals are good, it is argued, commits them via consistency to accepting that the right to formulate goals is good, and thus that there is a right to the necessary conditions to formulate goals. Habermas’ argues that a normative background is necessary to make use of performative speech acts such as commands and requests. Since it is impossible to live in a day-to-day manner without making use of such speech acts, the structure of language use involves us in normative commitments. Both of these approaches are notable in their freedom from institutions. If it were possible to derive normative commitments transcendentally from purposive rationality or from language use, this could provide a justification for truly universal human rights. What is attempted here is far less ambitious – to derive rights from concrete institutions. Deriving Human Rights from Liberal Democracy
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If human rights are social facts as opposed to simply subjective preferences, then they can only exist within an institutional framework. In this section I give a sketch of how human rights can be shown to have an objective existence within the institutional framework of liberal democracy. Firstly it can be shown that the concept of democratic choice itself implies a body of civil and political rights. Secondly, it can be shown that such a body of rights is a necessary condition for a truly multicultural society. It may seem superfluous to argue that the institutions of liberal democracy imply human rights. After all, many liberal democracies have constitutions that provide an amply body of legal rights. In fact, there is certainly a trend for more countries to provide such explicit rights either through their own constitutions or through accession to international human rights regimes. However, this conclusion is misleading. It implies that liberal democracies happen to provide these rights. Actually a democracy must provide such right implicitly in order for the concept of democracy to make sense in the first place. Thus explicit right guarantees typically make explicit what was already there. For example, democracies without explicit rights guarantees, such as the United Kingdom and many European democracies before they joined the European human rights regime, already had a full range of human rights implicitly. The reason for this is that electoral democracy makes no sense without voters who have the ability to choose freely. Suppose we look for principles that justify political democracy. We end up with something like popular sovereignty or political equality. It makes no sense to talk of the popular will if people are coerced. It makes no sense to talk of political equality if some people are able to coerce others into making the choices they wish. For democracy to not be a sham, it is necessary for there to exist a full body of 10
rights such as freedom of expression, freedom of association, freedom of the press, and so on. There also needs to be some degree of security from arbitrary punishment, and thus a right to fair judicial process. In short, a full range of political and civil rights are implied by democracy. Dahl (1989) refers to these rights as the rights inherent in democracy. In addition to these, Dahl argues that there are certain rights that are essential to democracy. These are rights such as subsistence and some level of freedom from economic coercion that are necessary to make use of civil and political rights. For example, if a government or single corporation was to have a monopoly on the housing stock and could use this to punish political opponents, the rights necessary for meaningful democracy would be lacking. Thus meaningful democracy in and of itself implies a body of rights remarkably similar to that outlined in the Universal Declaration of human rights. Of course, a democracy can deprive its citizens of human rights, and indeed this has from time to time happened. This, however, does not affect the argument presented here. When a democracy violates such rights it essentially abolishes itself as a democracy, even though the electoral framework may remain. Of course, such arguments do not provide an unconditional justification for human rights. They only provide a justification within the context of liberal democratic institutions. An interlocutor could still reject the conclusions. However, the cost of this rejection would now be significant. The consequence of the rejection would not simply be the concept of human rights, as it would be if human rights were simply personal preferences. Rather, rejection would entail rejection of liberal democratic institutions and
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the form of political life that goes with these. Such a rejection would also call for an alternative theory of political justice. As Brian Barry (1979)argued, the strongest argument for democracy might that it is difficult to provide a convincing theory of political elitism, that is one that not only justifies inequality, but convincingly justifies a criterion for which group should be privileged. Given failure to provide a justification for rule on the basis of quality, quantity is all that is left. A second line of argument for the necessity of human rights within a liberal framework can be sketched. Suppose that we consider it necessary to provide a framework for a multicultural settlement. That is, we require a system that respects the rights of all cultures that respect some concept of reciprocity or reasonableness. Our task is to show that such a system is impossible without a liberal set of individual human rights. In Political Liberalism (1993 / 1996) Rawls argues that such a settlement is necessary for a stable democracy. He bases this conclusion of three stylized facts. Firstly, the “fact of reasonable pluralism” states that there are likely always to be competing “comprehensive doctrines”, such as religions, ideologies or philosophies. Secondly, “the fact of oppression” states that the only way to get a society unified under a single doctrine is by coercion. Finally, he claims that for a democracy to be stable, it is necessary for a large majority of the population to approve of it, which means that it must be governed in a way that represents an “overlapping consensus” of different comprehensive doctrines. Rawls argues that a form of political liberalism can provide this overlapping consensus. Furthermore, this political liberalism must become a freestanding theory, and not simply a modus vivendi between warring comprehensive doctrines. 12
This argument has a transcendental flavor to it. It starts from certain stylized facts and argues that these necessitate certain principal, such as political liberalism. It is not obvious that political stability requires an overlapping consensus that is a freestanding theory as opposed to a modus vivendi. It is conceivable that hastily negotiated peaces between the various comprehensive doctrines that arose in time in a society could maintain stability, although there is certainly historical reason to believe such bargain could be unstable. In any case, such bargains would not be what we would describe as “multiculturalism” (a principle that recognizes the rights of all cultures within certain limits) but simply a bargain between certain named cultures. It would also be necessary to show that such a multicultural settlement requires a set of liberal rights as a necessary condition. Certainly political liberalism provides one way of arbitrating the claims of competing cultures. This does not mean that it is necessarily the only viable way of doing this. However, there are reasons for believing that this may be the case. Suppose we require a principle of justice that equally respects the rights of all cultures. This principle would have to provide equal recognition to the rights of subcultures within a culture. Likewise it would have to respect subcultures within subcultures within subcultures. Proceeding in this manner, we find that the smallest possible subculture is a minority of one. We are thus reduced to respecting the rights of individuals. This brings us back to individual human rights. This line of argument suggests that individual human rights are necessitated by the need for individuals to be able to choose between cultures or comprehensive doctrines. Essentially a liberal political culture requires that people be able to choose. They need to be able to choose representative and thus a government for democracy to make 13
any sense. They need to have the option of choosing between alternative cultures for there to be a multicultural settlement that can arbitrate between the claims of different cultures. Individual human rights are the necessary conditions for the ability to make such choices. Universalizing Liberal Human Rights Thus we can make a plausible case that the usual body of human rights is not just a statement of subjective preference in the case of liberal democracies. We do not simply happen to think that these rights are normatively desirable. Rather these rights are embedded in objectively existing political institutions and the form of life that they represent. They are necessary conditions for these institutions to make any sense. To put it another way, they define the rules of the political and social game. They are expectations everyone counts (and expects others to count on) as they co-ordinate their life-plans. The difficulty comes when we try to move from liberal human rights existing in the context of liberal political life to universal human rights. Following Searle, we can think of human rights as rights as rights that attach to the status function of being human. This would appear to strip away the institutional context that is required for these rights to have any kind of objective status. Put in terms of a Searlean constitutive rule, we are no longer are we talking about certain rights counting as obligatory in the context of liberal political life. Rather we are trying to argue that certain rights are obligatory in any conceivable context, which amount to saying in no context at all. It would appear we have recourse to nothing but some kind of metaphysical or religious justification.
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This, however, is not quite the case. It is true that human rights have to be rights that attach to the status function of being human. However, the “being human” can still be “being human” for someone. It can be a status function assigned by someone who exists in a particular institutional context. The fact that we argue that certain rights are due to everyone simply on grounds of their being human does not logically imply that we have to derive these rights from an institution-free context-free conception of humanity. Rather we can derive the basis of these rights from whatever institutional context we happen to be living. Put simply and practically, this means that we do not have to seek to provide a universal justification for universal human rights. Rather we can set ourselves are far more tractable task, although one that is still highly problematic We can attempt to show that respect for universal human rights is obligatory for those living within a liberal political context. Rather than trying to show that universal human rights exist in a metaphysical vacuum, we can try to show that we liberals have a duty to act as though every human being is entitled to these rights simply on grounds that they are human beings. I think we can show that we have human rights in an objective sense within the context of a liberal political order. The task is to show that we have a duty to externalize these rights to those not living in other liberal political systems or political systems that are not liberal. Of course, an obvious question presents itself: What is the point in arguing that universal human rights exists, but require a justification in the context of those who already have access to them? Surely if the idea of human rights are to have any teeth they need to obligatory on those that violate them, especially governments that do not respect 15
human rights in practice. It would certainly be better from the point of view of those who suffer human rights abuses if they had direct claims on those violating their rights. They may well desire to call down the vengeance of heaven on their abusers. However, a claim on third parties to orient their dealing with the country and its people on the assumption that there are human rights is far from valueless. In fact it some cases it will be far more valuable than a claim on the dictators. Generally, it is doubtful that many dictators care about metaphysical claims about human rights. Indeed it is equally doubtful that they care about human rights agreements that they have actually signed. The empirical evidence suggests that the international human rights regime has little or no effect on the behavior of dictators (see Simmons (2009) as a recent example of this literature). To the extent that these regimes have an effect, it is on democracies and countries in transition. It is problematic to argue how we are obliged (if we are under any obligation at all) to act towards outside our political institutions. I am only able to suggest some approaches. I would suggest that the question of our obligations to outsiders is a “hard case” in the Dworkinian sense. Clearly outsiders are not automatically entitled to the same body of rights as fellow citizens. However, proceeding in a Dworkinian manner, we can derive certain principles about how we should treat people in general. Generally we are obliged to treat all citizens in line with the rights implicit in our political institutions, which include all the basic human rights. We are obliged to accord these rights regardless of all manner of distinction, with the exception of a few distinction that disqualify people from some of these rights. Most of these distinctions deal with competence, choice or desert (for example mental health, military service, criminality). The status of being a foreigner involves none of these things. The question becomes, are we obliged to accord
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foreigners the rights that we generally would accord to anyone within our own country, and which they have not done anything to disqualify themselves from. The argument would be that to be consistent with our own values, we would have to assume that foreigners are entitled to these same rights. We might consider the rights of citizens of foreign countries to which we are allied, and which accord their citizens a full range of human rights. When we deal with the citizens of these countries, are we not obliged to act as though these people have a full range of human rights, even though these rights cannot be justified by them being a member of our political community? Are we not obliged to externalize our respect for human rights in this case? If this is so, the question then become whether the fact that someone else is member of a political community that does not grant human rights is a sufficient reason to us to not respect their rights. From the point of view of our political community, which external political community someone belongs to appears to be morally neutral. We can consistently argue that we have no obligation to someone because they do not belong to our political community. It is far harder to argue that we have obligations to outsiders who belong to this political community, but not to those that belong to that one. Or at least, it is far harder to argue this from a liberal point of view. These arguments are certainly speculative. Ultimately the decisive question is one of whom we recognize when dealing with outsiders. Do we recognize individuals or do we recognize states? There is an inevitable and obvious conflict between the idea of universal human rights, which recognizes individuals as rights-holders and the principle of sovereignty, which recognizes states as rights-holders. To put it another way, when we
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encounter someone from elsewhere, do we ask them, “Who are you?” or do we enquire, “Whose subject are you?” Put this way, it seems rather odd and inconsistent for a liberal state to embrace the principle of sovereignty over that of human rights. When absolute kings and princes strike deals amongst themselves, norm of mutual recognition (and recognition only of each other) makes sense, and is indeed perhaps essential. Thus we get the Augburgian conception of cuius regio, eius religio. However, this is not the way that liberals think about politics. Kings are not the only actors, and are not entitled to act exclusively for their own ends. Nevertheless we still frequently think of international relations in terms of sovereignty. If we think of the world being made up of individuals and peoples, as opposed to just sovereign states, then we can take these individuals and peoples to be our allies. Of course, in practice states have long done this. Suppose we have two bordering states, A and B. Suppose B contains a region containing many co-ethnics of state A. Suppose that state B starts to seriously violate the “human rights” of the co-ethnics of state A. State A may well claim the right to act on behalf of its “brothers and sisters” in state B, be that by moral suasion, diplomatic pressure, economic coercion or even military intervention. State A may well believe it has an obligation to protect the rights of its co-ethnics even though they are citizens of state B, and thus none of its concern by a strict reading of the principle of sovereignty. States have long since also acted thus to protect the rights of co-religionists. Indeed the Westphalian Treaties did not only grant princes the right to determine the
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established religion within their territories (cuius regio, eius religio), it also obliged princes to recognize the rights of religious minorities (at least of the main denominations) provided they worshipped discreetly. Similarly we can imagine a state intervening to come to the aid of its co-ideologists. If this is so, how is it different to argue that we have a legitimate interest in the protection of allies (that is individuals not allied states) who appeal to us in terms of their human rights? Of course, it may often be appropriate to respect the principle of national sovereignty for prudential reasons. If states could not be expected to respect in a routine manner, it is hard to see how a peaceful international order could be maintained. However, respecting a convention or an international regime is not the same thing as according this principle any kind of absolute moral status. A prudential argument only obliges us to follow a principle when it is advantageous to do so. Regular and careless breeches of national sovereignty would almost certainly be disadvantageous to all concerned, at least in some contexts. Intervention to protect human rights may often be impossible. In some, perhaps most cases, military invention may be positively counterproductive. But this does not mean that we have to grant those that happen to rule, however illegitimately, the right to rule under the guise of the principle of sovereignty. As Rousseau says criticizing Grotius for deriving right from fact, “One could use a more consistent method, but not one more favorable to Tyrants.” The ideas of human rights, sovereignty and international law actually all face the same problem. What is the institutional context that makes these rights objectively valid? In this sense of three concepts are on the same level. In particular, it is not that case that human rights is problematic for not having a philosophical foundation, but that the 19
concept of sovereignty can simply be accepted without question. It is likely that human rights have no satisfactory universal metaphysical foundation. Indeed this paper has essentially taken for granted that human rights foundationalism is not viable. However, it is not clear that there is any stronger foundation for the principle of national sovereignty. Refuting human rights foundationalism does not leave the principle of sovereignty valid by default. Rather we need to consider reasons why we should prefer universal human rights or national sovereignty, given that both concepts are problematic. Put another way, if human rights really are nonsense on stilts, then the principle of national sovereignty -for exactly the same reasons – may be hanging from the trapeze.
Bibliography Barry, B. (1979). Is Democracy Special? In P. Laslett & J. Fishkin (Eds.), Philosophy, Politics and Society, 5th Series (pp. 155-196). New Haven: Yale University Press. Dahl, R. (1989). Democracy and its Critics. New Haven: Yale University Press. Dworkin, R. (1977). Taking rights seriously. London: Duckworth. Gewirth, A. (1982). Human rights : essays on justification and applications. Chicago: University of Chicago Press. Habermas, J. (1990). Moral Consciousness and Communicative Action. Cambridge: MIT Press. Hume, D. (1748). An Enquiry Concerning Human Understanding. La Salle: The Open Court Publishing Company. Rawls, J. (1993 / 1996). Political Liberalism. New York: Columbia University Press. Searle, J. (1969). Speech Acts: An Essay in the Philosophy of Language. Cambridge: Cambridge University Press. Searle, J. (1995). The Construction of Social Reality. New York: The Free Press. Simmons, B. A. (2009). Mobilizing for human rights : international law in domestic politics. Cambridge ; New York: Cambridge University Press.
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