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Chapter 1

Human Rights

Human rights are enshrined in international law and the domestic law of most countries. A vast network of local and transnational organizations is dedicated to their defense. All over the world, people believe in and struggle for human rights.

Many scholars have written about the meaning and justification of human rights. Heated debate on particular controversies masks broad areas of agreement. Appropriating the wisdom of past and present thinkers, I offer a brief account that is neither new nor distinctive but that I hope is persuasive. Toward the end of this chapter and in the rest of the book, it will help us draw out the institutional implications of human rights.

I claim that human rights are based on a set of principles that can be shared by people holding diverse philosophical and religious views. Highlighting this widely sharable conception of human rights is the main purpose of the chapter. In addition, I argue, albeit briefly, that human rights can withstand the cultural relativist critique, that they do not conflict with one another, that they include certain socioeconomic rights, that they entail both institutional and interpersonal duties, that they are mutually supportive, and (anticipating the larger argument of the book) that they require international protections. Though some of these claims may court controversy, they lead us, I believe, to a sounder understanding of human rights.

As the term implies, human rights are rights that we have because we are human. They are not conditional on nationality, race, religion, sex, or other group memberships. The guiding thought is that each person is a moral center whose perspective matters and whose interests must be accorded significant weight and respect. Think of the child who (as you are reading this sentence) was most recently born into the world. What kind of life may this child expect? What opportunities will he or she enjoy, and what harms and dangers will he or she endure? Will he or she have enough to eat, enjoy adequate health care, receive an education, be protected from violence and persecution, and be permitted to chart the direction of his or her life? Such questions remind us of the person’s vulnerability to the individual and collective choices of other people. They focus our attention on the minimal entitlements to which we give the name human rights.

Human rights are distinct from legal rights.¹ In the American South before the Civil War, the law gave whites the right to own slaves and denied slaves the right to be free. The first was a legal right that was not a human right; the second was a human right that was not a legal right. At most, the law recognizes human rights; it does not create them.² The law is nonetheless important to human rights for the following reasons: (1) many human rights require legal backing; (2) some of those legal protections are themselves human rights; (3) the law can transmit the values of human rights; (4) the law provides a forum where we can negotiate provisional (though fallible) agreement about human rights; (5) a well-designed legal system, by structuring thoughtful deliberation, can improve our understanding of human rights.³

Which rights are human rights? I make the working assumption that the 1948 Universal Declaration of Human Rights moves us toward the right answer. The Declaration remains the primary inspiration and reference for the contemporary human rights movement. If the Declaration is far off base, then the contemporary human rights movement is far off base. However, I do not believe the Declaration is far off base. Its values and commitments are those we should look for in a conception of human rights.

The Declaration earns much of its prestige from the circumstances of its creation. It was drafted with the tragedies of the 1930s and 1940s fresh in people’s minds, and emerged from a painstaking and protracted deliberation that drew on the participation of individuals and organizations from around the world. When put to a vote, it was approved without dissent by the General Assembly of the United Nations. Its content has been admired ever since, and its provisions incorporated into numerous national constitutions and international treaties.

It is a human creation, and therefore unlikely to be perfect. There are few (if any) who on reflection would agree with all its provisions. The real issue is its overall adequacy as a conception of human rights. You may think that it approximates the best overall conception. But even if you prefer a different conception, you may still think that it captures an important part of the truth. Those, for example, who question the six articles (of a total of thirty) that assert the existence of social and economic rights may still find inspiration and enlightenment in the remaining twenty-four, which deal with rights to physical integrity, legal due process, personal liberty, and political participation.⁴ (Below I defend the inclusion of social and economic rights, but most of my book is concerned with the protection of civil and political rights.)

Of course, the Declaration does not stand alone. It draws on earlier rights charters and philosophical explorations of rights. Subsequent legal instruments appropriate but also supplement and adjust the Declaration, and it has generated extensive critical commentary. One may regard it as an important moment in a continuing deliberation on human rights.

Content and Justification

Human rights are concerned with the interests of individual persons; they adopt the perspective of the individual. This does not imply atomistic individualism, since human rights also protect a wide range of social activity. But human rights value social groups because of their benefits to people, not the other way round. The starting point is the vulnerability of the individual; the main object, to protect individuals from various kinds of harm. These harms are often inflicted by groups, although one of the principal harms inflicted is to deprive individuals of the benefits and rewards of social life.

Belief in human rights does not imply a rejection of animal rights. Indeed, animals may have rights for some of the same reasons that humans have rights. Though I do not pursue the point here, a belief in human rights may lead to a deeper appreciation of animal rights, and even to the recognition of values beyond human and animal values.⁵ In any event, it is worth emphasizing that human rights claims do not exhaust the domain of morality, or even justice. A society that fully respects human rights could still be unjust in a number of ways.

Human rights, despite their superficial variety, possess an underlying rationale. There is a point to human rights. If we look, for example, at the Universal Declaration and the entitlements asserted over the course of its thirty articles, we can perceive some unifying themes and persistent concerns. The following is an attempt to render the basic values that underlie human rights. The precise wording is unimportant: other people may prefer different formulations that convey the same general idea.

On the account I present, human rights may be tied to the following four principles:

1. Persons have a fundamental interest in security. There are some fates that everyone has a reason to avoid. They include untimely death, severe injury, physical confinement, torture, terror, disease, chronic or severe pain, hunger, starvation, abandonment, forced isolation or separation, social humiliation, and lack of basic education and socialization. Everyone should be protected from these fates. Of the main principles that support the human rights idea, this is the least contested. Stuart Hampshire writes, “There is nothing mysterious or ‘subjective’ or culture-bound in the great evils of human experience, re-affirmed in every age and in every written history and in every tragedy and fiction: murder and the destruction of life, imprisonment, enslavement, starvation, poverty, physical pain and torture, homelessness, friendlessness. That these great evils are to be averted is the constant presupposition of moral arguments at all times and in all places.”⁶

2. Persons have a fundamental interest in autonomy. Everyone should be allowed to lead a life of one’s own choosing. Persons should be allowed to think their own thoughts, make their own plans, and choose their own company.⁷ The principle of autonomy recognizes that, once our most basic needs are guaranteed, individuals should be given considerable scope to define what is, for each, the most desirable life.⁸ In the world as a whole, belief in individual autonomy is somewhat less robust than belief in individual security. It encounters resistance from traditional societies (which believe individuals should adhere to prescribed roles), conservative religious groups (which seek the enforcement of scriptural rules limiting religious freedom, sexual freedom, and women’s freedom), and autocratic governments (which limit freedom of expression and association). When critics complain about the “Western” bias of human rights, they generally have in mind the importance attached to personal autonomy.

3. Persons are inviolable. Persons may not be treated as means only. They may not be used as a mere instrument for the pursuit of other goals, however worthy. That includes the goals of furthering other people’s security or autonomy. In an example well known to moral philosophers, a surgeon may not kill a healthy man to save the lives of five other people in need of the man’s transplanted organs. For the same reason, the police may not suspend due process and thereby condemn a certain number of innocent people to punishment, even if doing so will save a larger number of citizens from violent crime. Inviolability affirms our status as creatures whom it is morally forbidden to injure in certain egregious ways. Although philosophers debate how best to explain the principle of inviolability, it is politically indispensable for blocking the consequentialist rationales used by governments to justify all manner of cruelties.⁹

4. Persons deserve to be recognized and treated as equals. This principle goes beyond noting our equal inviolability and equal interest in security and autonomy. It upholds a claim to be accorded equal standing in the communities, especially the political communities, to which we belong. The principle excludes arbitrary or invidious discrimination, social caste systems, and stigmatization of entire groups. It bars the political subordination of one group of people to another. Equality is a recurrent principle of human rights charters and national constitutions. It is emphasized by the Universal Declaration and the International Covenant on Civil and Political Rights, as well as the Fourteenth Amendment to the U.S. Constitution. It is trumpeted in the classic human rights texts of John Lilburne, John Locke, and Thomas Jefferson. Practically speaking, it is a crucial condition for the respect of one’s other rights (though that may not be the only reason to uphold it).¹⁰

Security, autonomy, inviolability, and equality are the point of human rights. If we are asked, why human rights? these are the principles we can invoke. Their powerful appeal explains why the idea of human rights is so difficult to resist.

This may not be the most philosophically rigorous explanation of human rights. Yet it has important virtues. For a want of a better term, I shall call it a “public conception” of human rights.¹¹ That is, it is an argument for human rights with which a great many people can agree, although their reasons for supporting it may vary.¹² Do we want a deeper, philosophically more rigorous justification? There are a great many to choose from: Kantianism, consequentialism, contractualism, intuitionism, sentimentalism, conventionalism, constructivism, discourse ethics, Aristotelian perfectionism, natural law, and various religious traditions. Each has been identified as providing the strongest basis for human rights. All have inspired discussions that enrich our understanding and appreciation of the values underlying what I call the “public conception.” All the same, they tend to place heavy demands on our intellects—that is, they can be difficult to understand, and each is premised on the denial of at least some of the others. So focusing on these deeper justifications can bring uncertainty and dissension. It is worth recalling the existence of an “overlapping consensus”¹³ on a set of core principles that make sense of, help explain, and render coherent the human rights idea, even if the search for reasons behind the principles leaves us perplexed and divided.

Some people, struck by the clash of different people’s philosophical and religious worldviews, may say that collective human rights discourse should avoid talk of justification altogether. This goes too far in the opposite direction, and threatens to make belief in human rights seem accidental, arbitrary, contingent, and optional. Without a public justification, we cannot explain to one another the point of human rights, or have a shared basis for determining which items do and do not belong in a list of human rights, and our confidence that people really have human rights may begin to fade.

The fact is that we do care about people’s vulnerability to calamity, and people’s ability to make their own choices in life (not have others decide for them). We care that people be spared the most severe griefs, terrors, and humiliations. We care that their capacity to think, decide, and act not be forced down by the overriding preferences of others. For some of us, this is a moral starting point; for others, an inference from prior moral, religious, or philosophical premises. In either case, these are robust convictions, difficult to shake, which we have little reason to doubt, and which supply their own motivating power.

As befits a public conception of human rights, nothing about this story is original. The idea that security and autonomy are the two fundamental interests underpinning human rights has been invoked by many thinkers, though in different ways. Ronald Dworkin writes, “Government must treat those whom it governs with concern, that is, as human beings, who are capable of suffering and frustration, and with respect, that is, as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived.”¹⁴ George Kateb echoes this idea, though he notes as a third feature of the human condition our capacity to treat others as equals: “Public and formal respect for rights registers and strengthens awareness of three constitutive facts of being human: every person is a creature capable of feeling pain, and is a free agent capable of having a free being, of living a life that is one’s own and not somebody else’s idea of how a life should be lived, and is a moral agent capable of acknowledging that what one claims for oneself as a right one can claim only as an equal to everyone else.”¹⁵ The idea makes clear and immediate sense. Major human rights declarations and manifestos acquire a new coherence when they are understood in terms of security, autonomy, inviolability, and equality.

In distinguishing between public and philosophical conceptions of human rights, I do not mean to disparage the latter. To review: a public conception justifies human rights by reference to a widely (not universally) shared set of principles but suspends inquiry into the justification of those principles themselves. A philosophical conception seeks to supply human rights with a deeper and more rigorous justification. (Both approaches may be contrasted with a “superficial” approach that forswears justification altogether.) The disadvantage of each approach corresponds to the strength of the other. The benefit of a public conception is that it commands wider (though of course not universal) agreement. This benefit is enormously significant, because human rights become more secure as more people believe in them. Widespread principled agreement allows us to get on with the task of teaching, promoting, defending, implementing, and enforcing human rights. The cost is that deeper inquiry into the meaning of human rights is suspended. While the cost of a philosophical conception is the narrowing of consensus, the potential gain is enhanced understanding, which may improve and bolster the public conception over the long term (but which is valuable even if it does not). Moreover, we face difficult questions when it comes to the full specification of human rights, and philosophical conceptions may help us arrive at the best answers. Though I rely on a public conception of human rights in this discussion, philosophical conceptions are also needed in public deliberation.¹⁶ Both approaches are needed; both influence and inform each other; and it would be impossible to draw a sharp line between them.¹⁷

The Relativist Challenge

Is the idea of universal human rights undermined by appeal to cultural relativism? The claim would be that it shows insufficient respect for cultural diversity. Packed into that claim are several premises: (1) that the world contains distinct cultures; (2) that some cultures reject the idea of human rights, at least in part; and (3) that it is wrong or unreasonable to assert the universality of human rights over the dissent of particular cultures.

I believe each of these premises is mistaken. The third premise presupposes that cultures should have the final say on questions of morality. But every culture is a mixture of good and bad. The aspects of a culture that permit or require human rights violations are among the aspects that ought to be reformed. Awareness that cultures are flawed is one reason why cultures can change from within—why, for example, feminists have made progress in challenging patriarchal norms embedded in their own cultures. If one denies that cultures contain anything bad, one must say that internal criticism of a culture is always mistaken and that no reform achieved through internal criticism, for example, the promotion of sex equality, represents progress. These claims are implausible.

The problem with the second premise (that some cultures reject human rights) is that it presupposes the first (that the world contains distinct cultures). Reference to “cultures” in the plural¹⁸ conveys a picture of a world in which social groups (typically defined by nation, region, tribe, ethnicity, or religion) are the bearers of stable, coherent, and distinctive systems of belief. Implied is an essentialist understanding of culture—culture as a belief system that one inherits along with one’s group membership. (Individuals may switch cultures, along with group membership, but this is the exception, and requires special effort.) Individuals receive their beliefs from the groups to which they belong.¹⁹

This is a misleading picture. It denies or discounts the ability of individuals to learn from, influence, and be influenced by members of other groups. Worse, it denies the ability of individuals to think for themselves, to question and sometimes reject the views of local authorities. Yet these things happen, and they make a cumulative impact. The observable result is heterogeneity of belief within groups and overlap of belief across groups.²⁰ The longer the process unfolds, the less meaningful it becomes to speak of “cultures” as corresponding to social groups defined by nation, region, tribe, ethnicity, and religion. (Moreover, some people prefer not to be identified with ascriptive groups at all.)

Cultural essentialism is least persuasive when it claims that the idea of human rights is culturally bounded. Belief in human rights travels with particular ease: wherever human rights can be discussed without threat of violence or sanction (and sometimes even in the face of these threats), there will be people who believe in human rights. If some of us believe in freedom of religion or the wrongness of the death penalty while local religious or political authorities believe the opposite, what is the position of “our” culture? So long as “culture” refers to our nation, region, tribe, ethnicity, or religion, there is no coherent answer to the question. To avoid such indeterminacy, cultural essentialism tends to associate culture with authority and tradition. It carries a conservative bias, and does not seem bothered that the traditional views are often shored up by coercion.

Why are people still drawn to cultural relativism? One reason is the grip of cultural essentialism. Once the picture takes hold of the world as a mosaic of different cultures, it appears difficult to shake. I would mention two other factors: (1) group identity, and (2) a generalized reluctance to pass moral judgment.

First, group identity. The thought is that if human rights are a “Western concept,” non-Westerners cannot embrace the idea as their own. To this we should reply that human rights are not a Western concept: they are an idea understood and embraced by people all over the world. Yet someone might answer back that, if fully worked-out theories of human rights first emerged in the West, that is enough to mark the idea as Western: a non-Westerner strongly identifying with his or her non-Western group therefore has reason to regard the idea as alien.²¹ Such a preoccupation with the historical pedigree of ideas, though unnecessary and unfortunate, exerts surprising influence (and is a major source of cultural essentialism).

Second, some people are shy about making moral assertions in the face of potential disagreement. They fear that there is something arrogant about passing judgment on the behavior of others. Yet urgent matters are at stake. Should prisoners be spared cruel and humiliating treatment? Do the accused have the right to a fair trial? Should girls be educated? To withhold judgment is to act from a misplaced sense of decorum. When those otherwise withholding judgment have their attention drawn to actual people whose lives are affected by these questions, their principled detachment tends to fade (as it should).

Behind the reluctance to condemn or dismiss views contrary to human rights may lie a worthy impulse, namely, an openness to dissent and disagreement. Trouble emerges when, striving to be humble, we allow dialogue to become deference, and when, in deference to “what other people think,” we no longer challenge each other to think harder, or no longer encourage thinking at all. An “emperor’s new clothes” aspect can creep into these discussions. The worst is to subsume people under their “cultures,” and to defer to cultures rather than people. The practice becomes internalized when people refuse to think for themselves, and leave all thinking to be done by their “culture.”

Cultural relativism about human rights is sometimes related to guilt over the history of Western crimes against non-Western peoples. Guilt is appropriate, but rejecting universal human rights is not, since the crimes were themselves massive violations of human rights, and need to be condemned as such. It is of course true that efforts to promote human rights transnationally can become self-defeating or destructive when the local context is poorly understood or when talk of human rights masks a hidden agenda (and not only then). There is a potential for human rights discourse to abet overbearing, even imperialist, policies, and indeed policies that entail serious violations of human rights. I do not think this problem is a reason to reject human rights per se, but it obliges us to think more carefully about the responsible promotion of human rights.²² My book is intended as one contribution to this effort. I argue that one check on the danger of overbearing policies is the construction of reciprocal human rights regimes in which participating countries understand that standards applied to others can also be applied to themselves.

The human rights idea, as has often been pointed out, is not a totalizing doctrine. It is not a comprehensive blueprint for what to think or how to live. It deliberately leaves many areas open for individual and collective judgment, valuing people’s ability to decide important matters on their own. It is therefore compatible with a wide range of ethical, political, and religious viewpoints. All it does is erect certain limits: not to impose great suffering, not to stifle individual autonomy, not to treat persons as mere means, and not to deny equality of moral status.

Of course not everyone believes in human rights. Personal freedom is the value most frequently contested—whether in the name of tradition, community, or religion. Some of the fiercest and most determined opposition comes from religious fundamentalists who believe themselves authorized to coerce others into scripturally required forms of belief and behavior. This is a tyrannical attitude, rightly resisted, because it forces other people to conform their own lives to religious views they do not share. On the other hand, the conflict between autonomy and tradition is sometimes exaggerated. The right to autonomy does not prohibit individuals from adopting traditional lifestyles; it prohibits their being forced to do so. To those readers who might question a universal human right to autonomy, I would ask: Would you be willing to give up the right to autonomy, to let someone else dictate how you should live your life? If not, why would you be willing to deny that right to others?

It is a curious fact that arguments against universal human rights often draw inspiration from a principle central to the human rights idea. The principle is autonomy: living according to one’s own values. The idea of universal human rights is accused of being coercive, by imposing some people’s values on others. This gets things backwards. The human rights idea claims that individuals should be allowed to pursue their own vision of a good life.²³ Insisting on universal human rights is not about imposing some people’s values on others. It is about preventing the imposition of some people’s values on others.²⁴

The Force of a Human Rights Claim

Some people claim that human rights routinely or frequently conflict.²⁵ For example, it is claimed that the right to privacy conflicts with the right to freedom of expression, or that the right to economic subsistence conflicts with the right to private property, or that the right to be presumed innocent conflicts with the right to protection from violent assault. However, I do not think this is the best way to understand human rights.

We name human rights by the interests they protect, but the content of a human right is defined by (1) the moral permissions granted to the rights bearer (“correlative permissions”) and (2) the duties assigned to other people (“correlative duties”). Neither correlative permissions nor correlative duties are unlimited. My right to life implies that I may defend myself from a violent attacker, that you have a duty not to kill me, and that a nearby police officer has a duty to protect me from being killed. But it does not permit me to raid other people’s bodies for their organs. Nor does it give you a duty to donate your liver or to block the assassin’s bullet with your body. Your reasonable interest in staying alive and remaining healthy limits the risk and sacrifice you must bear for the sake of my life. Diverse moral considerations extending beyond the interests of the rights bearer determine the content of the correlative permissions and duties.

When we say that someone’s human rights have been violated, our exact meaning is not that the rights bearer is unable to enjoy the substance of his or her right but rather that someone else has violated a correlative duty owed to the rights bearer. (Correlative duties tend to be more salient than correlative permissions in human rights discourse, because we usually have our attention drawn to human rights by the fear that they will be violated.) The concept of human rights violations refers not to prima facie rights (defined by the interest of the rights bearer) but to all-things-considered rights (defined by the boundaries of the right, that is, the reach of the correlative permissions and duties).²⁶ The key point is that the characterization of an all-things-considered right, and therefore the definition of a human rights violation, is preceded by a consideration of all relevant moral factors. This is why human rights claims have a morally conclusive character. To cite a human rights violation is to classify the behavior and policy in question as morally unacceptable. Defenses are not allowed, because all defenses were considered prior to our classification of the behavior as a violation of human rights.

The articles of famous human rights charters sometimes limit themselves to the statement of a prima facie right. An example is the right to life in the Universal Declaration. Article 3 states: “Everyone has the right to life, liberty and security of person.” While the correlative duties are not spelled out, there is a tacit understanding that we know and agree what some of them are and could uncontroversially state them if asked. We find a more complete (though not fully complete) description of correlative duties in human rights treaties, constitutional bills of rights, legislative statutes, and judicial rulings. Even in the major charters, however, some correlative duties are spelled out. For example, Article 4 of the Universal Declaration states, “No one shall be held in slavery or servitude,” while Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This means that it is always wrong to practice slavery or inflict torture or ill-treatment. Note, however, that this is not all that the articles convey, because state officials have additional positive duties to protect persons from being enslaved and subjected to torture or ill-treatment. Several of these duties are spelled out in the 1926 Slavery Convention and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In ordinary discourse, if it is accepted that a policy violates human rights, this means that the matter is settled, morally speaking: the policy is wrong and must be ended. One implication of this is that human rights cannot (except very rarely) conflict with one another. Since violating human rights is morally unacceptable, it must be possible to live our individual and collective lives in ways that do not (except very rarely) violate human rights. If human rights routinely conflicted, violating human rights would become unavoidable, and we would lose the sense that doing so is morally unacceptable. So we must work out a conception of human rights in which the enumerated rights are mutually compatible. If we discover routine conflicts between human rights as we have conceived them, our conception needs to be revised, perhaps by pruning the correlative duties attached to certain rights, or by removing some rights from the catalog altogether.

It is sometimes said that courts are asked to resolve conflicts between human rights. I think it is more helpful to say that courts are called on to determine the contours of rights, where this sometimes entails tracing the boundary between rights. Suppose that a court denies a request from parents on religious grounds to deny a life-saving blood transfusion to their young child. Assuming that we agree with the ruling, how should we characterize it? Some might say that in this case the child’s right to life overrides the parents’ right to freedom of religion, but I think it is clearer to say that the parents’ right to freedom of religion does not include the right to deny a life-saving blood transfusion to their young child. I suggest that other apparent “conflicting rights” cases should be redescribed in this way.

The only occasion that could justify talk of conflicting human rights is a tragic conflict between two immovable moral considerations. The clearest case would be a conflict, in extreme cases, between two duties such that any action you choose would be morally wrong. In such a case, it is not just that each of the available actions has bad consequences, but that each act itself deserves moral condemnation: you cannot emerge from the situation morally unscathed. Perhaps there also exist, in extreme cases, conflicts between an undefeated obligation (e.g., not to harm another) and an undefeated moral permission (e.g., not to sacrifice a core interest). Some people deny, while others accept, that morality admits irresolvable conflicts of these kinds. If there are ever conflicts between human rights, they would manifest themselves in such situations.²⁷

Tragic conflicts aside, human rights do not conflict. The more general point is that human rights should be asserted only with caution. Something’s being morally desirable does not make it a human right. Something can be a human right only if its violation is morally wrong (and of course not every wrong act is correlated to a human right).

Some writers have disputed this picture.²⁸ They say we should become used to the idea of human rights being in conflict, that the identification of a human right marks the beginning, not the end, of a moral discussion. We should (in this view) recognize the existence of plural and competing values and the moral quandaries in which they land us; human rights discourse should incorporate the truth of moral pluralism into its own terms. But this proposal represents too abrupt a departure from ordinary usage. It drains the concept of human rights of its moral force. Sooner or later we would have to coin a new term to do the work now done by “human rights,” and such linguistic reshuffling would be an unnecessary invitation to confusion and misunderstanding. The concept of human rights does not deny (or affirm) that values conflict. It merely says that some ways of treating human beings are morally unacceptable. Since that happens to be true, the existing usage is worth preserving.

Socioeconomic Rights

The Universal Declaration of Human Rights asserts several social and economic rights. They include economic subsistence (adequate provision of food, clothing, housing, and health care); security against destitution from old age, disease, disability, and unemployment; safe and dignified conditions of work (with the right to form trade unions as a necessary protection of this right); opportunities for rest and leisure; and education.

The existence of socioeconomic rights has been denied. The only true human rights, some claim, are civil and political. The skeptical position has been strongly rebutted in philosophical arguments made over the past forty years.²⁹ Here I confine myself to some cursory remarks. Note that I am not interested in challenging economic libertarianism in general, but only the strong version of it that denies that there are any socioeconomic rights.

We should first notice the extreme nature of the skeptical position. It implies that no one’s human rights are violated if children are deprived of an education, or workers are subjected to unsafe working conditions, or trauma victims are denied emergency medical services, or orphans, the severely disabled, the unemployed, or the unemployable are left to starve.

Socioeconomic rights are grounded in the same values as civil-political rights. They are necessary to a minimally decent existence; some of them (such as food and basic health services) are necessary to any existence at all. Like protection from violent assault, they honor our fundamental interest in security. They are also necessary for autonomy: their deprivation confines one to a set of severely reduced, often grim opportunities, or no opportunities at all. To deny people these goods—to let them go hungry, or permit their deterioration from easily cured disease, or leave them unattended when no cure is available, or refuse them shelter, or subject them to slave-like work, or keep them illiterate—is to deny their basic dignity.

Skeptics posit fundamental differences between civil-political and socioeconomic rights. It is claimed, for example, that civil-political rights imply negative duties (duties not to inflict harm) whereas socioeconomic rights imply positive duties (duties to provide help); or that civil-political rights are less demanding than socioeconomic rights; or that unlike socioeconomic rights they can be universally fulfilled; or that they lend themselves more easily to legal enforcement; or that civil-political rights imply individual duties whereas socioeconomic rights imply collective ones; or that the duties implied by civil-political rights are clear and determinate while those implied by socioeconomic rights are vague and indeterminate. These differences, it is claimed, constitute the line between genuine and spurious human rights.

If the differences seem real at first glance, they fade on closer inspection. Begin with the alleged distinction between negative and positive rights. As several scholars have shown, all human rights imply a package of both negative and positive duties. The right not to be violently assaulted entails more than a moral obligation of fellow citizens and government agents not to commit assault. It requires positive measures by government to protect citizens from assault. When governments leave certain private groups free to terrorize a particular segment of the population, those governments are properly accused of violating human rights.³⁰ An effective police force, functioning system of criminal and civil justice, and competent regulatory regime are measures necessitated by our rights to physical safety and security of property. And while the negative duty of governments not to harm the innocent and not to inflict excessive harm on the guilty is central to any human rights conception, this obligation is reinforced by an elaborate system of positive duties, including habeas corpus and the numerous undertakings that constitute the guarantee to a fair trial. Moreover, rights imply remedies. If there are no rights without a remedy, then civil-political rights no less than socioeconomic ones entail positive duties.³¹

Just as civil-political rights imply positive duties, so socioeconomic rights imply negative duties. One reason for emphasizing socioeconomic rights is precisely that they prohibit grievous inflictions of harm. Humans have long inflicted starvation through blockade, siege, and seizure. During the 1932–33 terror-famine that killed millions of Ukrainians, Soviet officials seized food from the homes of starving peasants. Three-quarters of a million people or more died in the Nazi siege of Leningrad. Nor should we forget that land seizures by white settlers caused vast numbers of American Indians to die from hunger; that Mao Zedong’s grain requisitions in the Great Leap Forward killed millions of Chinese; that crushing taxes and shredding of local safety nets by agents of the British Empire caused severe famines in colonial India; that as many as a half million children died from UN sanctions against Iraq between 1990 and 2003; or that food blockages to starving civilians are still used as a method of war in Africa.³² Evictions and housing demolitions cause widespread homelessness, often depriving those affected of access to employment and basic social services.³³ Large numbers of people lose access to safe drinking water through government or private company diversion of traditional water sources or through the industrial pollution of the water supply.³⁴

The deprivation of socioeconomic goods, in other words, often takes an active rather than a passive form. But, in addition, the very distinction between active and passive deprivation is systematically misperceived. In all societies, property, whether private or communal, is constituted by norms that are coercively enforced.³⁵ The authorities in Stalin’s Soviet Union did not permit agricultural workers to dissolve collective farms into private plots, just as U.S. authorities today do not permit landless farmhands to establish their own plots on large commercial estates. What looks superficially like passive deprivation—people not owning or not being able to purchase or not being given particular resources—is in fact a case of active deprivation whereby human agents use force or the threat of force to enforce institutionalized rules determining who owns what. The wealthy landowner who evicts the starving poacher from his orchard, or the baker who hauls Jean Valjean to the police for stealing a loaf of bread to feed his sister’s starving children, may not be perceived as engaging in an act of positive deprivation, but that is exactly what they do. Similarly for all those who assisted the export of grain from famine-stricken Ireland, India, Ukraine, and rural China while local people died from hunger. Institutions are human arrangements and therefore involve human agency and choice, however much we take them for granted. To prevent someone from taking something (or to force him to return what he has taken) is a form of action. If we think that individuals who lack some good should be prevented from taking it, we must make our case on grounds other than the distinction between active and passive behavior. (For example, we might argue on other grounds that the good is the rightful property of the current possessor. The appeal to private property as a reason for rejecting socioeconomic rights is discussed below.)

Other alleged differences between civil-political and socioeconomic rights fare no better. Consider the socioeconomic right to safe working conditions. This right is legally enforceable. It creates obligations for individual employers and managers (obligations that are often negative in character, for example, not to expose workers to dangerous chemicals or block safety exits). It is less costly to guarantee than several civil-political rights, such as the right to a fair trial. And it can be specified with some precision.

It has been claimed that physical scarcity makes it impossible for certain socioeconomic rights such as the right to food to be universally fulfilled. If such rights cannot be universally fulfilled, some argue, then calling them universal human rights cheapens the meaning of the term. This argument may be criticized on both empirical and conceptual grounds. The view that the world cannot produce enough food for its inhabitants finds little acceptance among contemporary experts. Nobel Prize economist Amartya Sen has convincingly argued that world hunger does not result from a global shortfall in food production but rather from the inability of vulnerable populations, under existing institutions, to command access to sufficient food.³⁶ How to distribute the blame between domestic and global institutions is a matter of continuing dispute; plausibly, both levels of institutional failure are intertwined.³⁷

But let us accept that, for whatever combination of institutional and natural causes, it would be difficult to quickly supply all the world’s inhabitants with sufficient food. To say that this disproves a universal human right to food rests on a conceptual confusion. The need for food makes access to food a morally urgent matter and establishes it as a universal human right. That right generates various duties on the part of individuals and institutions to help ensure that everyone has enough food. The human right to food is cashed out in terms of those duties. That does not mean, however, that if someone lacks sufficient food you and I are necessarily guilty of having violated that person’s right to food, for you and I may have done everything that could reasonably be expected of us to guarantee that person sufficient food. As Henry Shue writes, human rights call for “some reasonable level of guarantee.”³⁸ We recognize this well enough in the case of civil-political rights. The right not to be enslaved is enshrined in international law and in the Thirteenth Amendment to the U.S. Constitution. Even so, there are several million slaves in the world, and several thousand in the United States. Even if every government did all that could be reasonably expected of it to end slavery, its complete elimination would be unlikely. These facts do not negate the right not to be enslaved. The right not to be enslaved gives institutions and individuals a package of negative and positive duties whose underlying rationale is the prevention of slavery. The equivalent is true of the right to food. Some of these duties are more absolute than others: the duty not to practice slavery or deprive someone of food is more absolute than the duty to prevent slavery or prevent hunger (though, as explained above, we tend to draw the line between inflicting and not preventing hunger in a confused manner). The crucial point is that an individual or institution may fully respect the human right not to be enslaved and the human right to food even if slavery and hunger are not fully eliminated.

It may be objected at this point that socioeconomic rights are excessively vague. We may have a clearer image of what is meant by the duty to prevent slavery, say, than the duty to prevent hunger. There is some merit to this challenge, because the duties implied by many welfare rights are still being worked out: the jurisprudence on socioeconomic rights is younger than that on, say, the right to a fair trial. We should not exaggerate the contrast, however. No human rights are perfectly transparent, which is why their meaning is continually reexamined in court decisions and why those decisions are themselves subjected to critical scrutiny. Some civil-political rights are famously vague: for example, the right to liberty, to equal protection of the laws, to the presumption of innocence, and to be spared cruel and unusual punishment. The task of specifying these rights—that is, clarifying the content of their correlative duties—is an immense labor both intellectual and political, and one that is never at an end. Considerable progress has been made in specifying the duties implied by socioeconomic rights, thanks to the rulings of national courts; treaties such as the International Covenant on Economic, Social, and Cultural Rights and the European Social Charter; the general comments and concluding observations of the International Committee for Economic, Social, and Cultural Rights; nongovernmental organizations such as Oxfam and Amnesty International; and international law commissions and conferences.³⁹ But there is no doubt that far more progress is needed, especially in clarifying those correlative duties that are transnational in scope.⁴⁰

Socioeconomic rights place restrictions on the right to private property. They authorize taxes for education and basic welfare, and limit the conditions employers may impose on workers. Opposition to socioeconomic rights has therefore come from those who believe in what I shall call a maximal right to private property—one that excludes taxation for most (or all) functions other than the military, courts, and police and forbids most forms of regulation. Some even claim this as a human right.

As a general proposition, the claim that we have a maximal right to private property is not credible. It implies that Jean Valjean should let his sister’s children starve rather than steal a loaf of bread. With regard to the present discussion, it implies that the tax policies of almost all existing governments—certainly those of all economically advanced countries—are violations of human rights. But the idea that taxes levied for education or food stamps or Medicare (or, for that matter, roads or medical research or the arts) constitute human rights violations is difficult to take seriously. Democratically authorized, nonarbitrary taxes do not jeopardize people’s safety or deny them the chance to live autonomously. Deprivation of food, shelter, education, and basic health care, on the other hand, does have these effects. To deny the latter rights in the name of a maximal right to private property is a grotesque disordering of priorities.

For these reasons, the claim that our human rights include a maximal right to private property is difficult to maintain. The following difficulties may also be noted.

1. The claim of a maximal right to private property is not self-evident, but must be plausibly derived from human values and interests. Recall that the historically most influential defense of private property emphasized the universal benefits it provides. According to John Locke, private appropriation is permitted only if “enough and as good” is left for others, a condition satisfied in commercial society, Locke thought, because the resulting gains in productivity operate to the benefit of everyone, particularly the worst-off. Thus Locke claimed that the rural poor derive more benefit from ten fertile acres in commercial England than one hundred fertile acres in precommercial America. Even then, the property owner must acknowledge the right of the starving man to the “surplusage of his goods, so that it cannot justly be denied him, when his pressing wants call for it,” for “charity gives every man a title to so much out of another’s plenty, as will keep him from extreme want, where he has no means to subsist otherwise.”⁴¹ Locke makes the legitimacy of private property depend on its ability to guarantee universal subsistence; if modifications of that right are necessary to better guarantee universal subsistence, those modifications are morally required.

2. It is not plausible to defend a maximal right to private property in the name of self-ownership, because moderate taxation is compatible with autonomy and because our pre-tax holdings do not flow from our choices alone. As Kateb writes, it seems “impossible to conceive of us as having nerve endings in every dollar of our estate. A person’s holdings and level of income are so bound up with the changeable and culturally contingent rules and arrangements of the system of property, with the channels and opportunities for activity created by state action or permission, that it should be strange to look on all one’s dollars as exactly and entirely one’s own.”⁴²

3. No one came by his or her present possessions through a pure sequence of free market transactions. Preceding centuries of conquest, plunder, slavery, and government intervention shape current holdings. Until we enact a massive redistribution of goods to rectify past involuntary transfers, it is doubtful to suppose on libertarian grounds that your pre-tax holdings are more genuinely yours than your post-tax holdings.

4. Wealth creation is a social process. I did not create my own clothes, food, shelter, office space, computer, Internet service, car, train service, or medical care. My money has value only because of the labor of vast numbers of people, past and present (much of that labor performed under exploitive conditions). This undermines the claim that I am entitled to maximum control of my current holdings.⁴³

It may be claimed that recognition of socioeconomic rights undermines individual self-reliance. It transfers the responsibility of guaranteeing subsistence from the individual to society, thereby weakening the sources of personal effort and initiative. This argument moves too swiftly. To assert a right to subsistence is not to exempt the ablebodied from the necessity of working for such subsistence. As Stuart White notes, the right to subsistence must be understood as a right to “reasonable access” to subsistence.⁴⁴ Moreover, since most people are not satisfied with subsistence alone, they will have ample incentive to struggle for higher levels of economic well-being not guaranteed to them as a human right. It is only an extreme view which holds that individuals benefit from the self-reliance learned by struggling to subsist when there is not enough work for everyone or some of the available jobs provide too little to live on. The notion that malnourished children and adults are better treated for having no one come to their assistance is a reductio ad absurdum. And if self-reliance is this important, there is no reason to stop here. Why not let people fight for physical safety as well as economic subsistence? No doubt the necessity of single-handedly fending off attackers may sharpen one’s wits and build up one’s courage, but that is no reason to reinstate the law of the jungle. We lose sight of human rights when self-reliance becomes our ruling ideal.

Why do some Americans resist the idea of socioeconomic rights? One reason is that their education often leads them to think about rights in terms of the U.S. Bill of Rights, the first ten amendments to the Constitution. The Bill of Rights emphasizes civil-political rights to the neglect of socioeconomic rights. Americans often forget that the constitutions of all fifty states establish a right to education. They overlook the fact, too, that socioeconomic rights are enshrined in the Universal Declaration of Human Rights, several international treaties, and an increasing number of national constitutions. Countries whose bills of rights enshrine socioeconomic rights have developed a growing jurisprudence on the legal implications of such rights. Though some theorists deny the practicality of constitutionalized socioeconomic rights, experience is proving them wrong. Courts have articulated interpretive guidelines and principles, and governments have adjusted their policies in response. In Kim Scheppele’s words, “what isn’t supposed to work in theory actually does seem to work in practice.”⁴⁵

It would be foolish to claim that civil-political and socioeconomic rights are indistinguishable. They are different in several ways. What they have in common is that their acknowledgement is a necessary component of treating one another with respect. If there are any human rights, they include socioeconomic as well as civil-political rights.

Who Is Responsible?

For a harm or deprivation to count as a human rights violation, does it matter who the agent is? If a police officer beats a prisoner in his custody, we would all agree that a human rights violation has occurred. What if a husband beats his wife? What if a hoodlum beats a stranger on the street? Are these human rights violations, too?

There are, broadly speaking, three views. On one view, human rights are claims against governments and their agents only, so that only governments and their agents can violate human rights. On a second view, human rights are claims against institutions more broadly defined, including not only governments but also (for example) insurgencies, criminal organizations, businesses, families, intergovernmental organizations, religious institutions, voluntary associations, and cultural practices, so that all individuals acting as part of an institution can violate human rights. On a third view, human rights are claims not only against governments and other institutions but against individuals in general, so that all persons whether or not they act as part of an institution can violate human rights. We may call these the state-centric,⁴⁶ the broad institutional,⁴⁷ and the institutional-and-interpersonal⁴⁸ conceptions respectively. I shall sometimes refer to “institutional” versus “inclusive” conceptions to contrast the first and second with the third.

I believe that the simplest and most inclusive view is the best one. If we are interested in human rights because we want to protect human beings from grave injuries and indignities, we should recognize that the relevant injuries and indignities may count as human rights violations whether caused by governments, institutions, or individuals. A celebrated quote by Eleanor Roosevelt captures the heart of the matter:

Where, after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.⁴⁹

In John Tasioulas’s apt words, “what is in question is not merely a legal-institutional structure, but a human rights ethos that pervades our lives, cutting across boundaries between public and private, society and state.”⁵⁰

Though institutional conceptions do not (I claim) represent the best understanding of human rights, one can understand their persistent influence in human rights discourse. When international human rights organizations like Amnesty International and Human Rights Watch emerged in the 1960s and 1970s, they limited their efforts according to a rough division-of-labor logic. They would monitor government abuses on the assumption that governments would remain vigilant against ordinary crimes. Only later did human rights organizations recognize the need for a wider focus, given that insurgencies commit human rights atrocities of their own, that women suffer pervasively from violence in their homes and communities, and that national and multinational corporations subject workers to inhuman and degrading conditions. Though it is not plausible to view governments as the sole violators of human rights, we remain partly under the spell of the classic model of human rights activism, understandably so in view of the massive violence and terror that governments continue to unleash.

Another factor is the influence of legal discourse, specifically, our tendency to associate human rights with international human rights treaties and the judicial enforcement of constitutional bills of rights, both of which place primary responsibility on governments. Traditionally, international treaties are addressed to states and assign obligations only to states. Most human rights treaties follow this tradition. A telling example is the Convention on the Elimination of All Forms of Discrimination Against Women. While recognizing that sex discrimination is rooted in cultural prejudices and stereotypes, the treaty assigns the obligation of eliminating harmful prejudices and stereotypes only to states (art. 5). At the same time, when domestic courts enforce constitutional rights provisions, they almost always address their rulings to legislative and executive officials. They do so not only when the immediate agents of the harm are identified as government officials but also when they are identified as nonstate actors. In the latter, so-called horizontal rights cases, it is government officials who are given responsibility for ensuring that the nonstate actors desist from the harm.

Another factor (one that encourages institutional conceptions in general) is that institutions are undeniably important and require our sustained attention. Many scholars properly devote their careers to understanding the ways in which institutions cause or prevent personal harms. Because of the huge importance of institutions, we may feel that we can exert greater leverage—that is, achieve broader and more lasting results—by seeking to improve institutions than by seeking to improve the behavior of individuals as individuals. It is easy to slide from the thought that “institutions are important” to the thought that “institutions alone are important.” But to think that institutions alone are important is to obscure the large role that individual agency plays in our lives.

Why prefer the inclusive conception of human rights? Notice, in the first place, that the state-centric conception produces odd distortions and displacements when nonstate actors are the primary agents of harm. Consider domestic violence against women. On the state-centric conception, we must adopt one of two implausible views—either that no human rights are violated, or that they are violated not by the batterers but by the government agents who fail to take appropriate preventive action. The sad fact is that the state-centric conception of human rights has contributed to the invisibility of violence against women. Note, too, that the state-centric conception encourages the view that government is the solution to our problems. To be sure, sometimes government is the solution, but sometimes it forms only part of the solution or no part of the solution at all; we should not prejudge the question. African NGOs such as Tostan have discovered that female genital cutting (FGC) is more successfully combated through education and consciousness-raising than through legal sanctions.⁵¹ Imagine someone who combats FGC or domestic violence through education and who decides that, given the circumstances, her efforts will be most successful if undertaken without government participation or support. Surely she does not cease, by virtue of her preferred strategy, to be a human rights activist. We can emphasize the responsibility of governments to respect, protect, and promote human rights without claiming that this responsibility belongs to government alone. To reserve the term “human rights” for government’s responsibilities while using other language to designate the responsibilities of nonstate actors produces an unnecessary linguistic complication, one with the potential to sow moral misunderstanding.

I believe confusion also arises under the broader institutional conception of human rights. One danger of viewing human rights as claims against institutions but not individuals is that individual responsibility may be effaced. While the man who beats his wife may be an agent of patriarchy, he is also an individual who fails to respect the dignity of his victim. And certain harms are plausibly viewed as human rights violations even in the absence of institutional complicity. A beating is a beating whether delivered by a random stranger or a police officer: the wrongness of either act is ultimately based on the same set of reasons, an impermissible disregard for the status and interests of the victim.⁵² Thus classic rights thinkers like John Locke and Thomas Jefferson plausibly assumed that unaffiliated individuals can violate one another’s human rights outside an institutional setting (in a “state of nature”).

I suggest that the proper perspective for thinking about human rights is as individuals with responsibilities toward one another, on the assumption that institutions are an important but not the only means by which those responsibilities are honored or betrayed. (Of course, many interpersonal responsibilities, like many institutional responsibilities, do not involve human rights.) Institutions are human creations, dependent on human choices, whether acknowledged or not. The values that should govern institutions cannot be divorced from those that properly govern individuals in their relations to one another, and we ought to preserve a flexible attitude regarding which mix of institutional and noninstitutional approaches is best suited to protecting individuals from grave injuries and indignities. The risk of an institutional conception of human rights is a kind of alienation, in which institutions are seen as leading an existence separate from that of individuals and are invested with a kind of moral responsibility from which individuals feel personally exempt. A wiser approach is one in which individuals feel simultaneously responsible for their institutional and personal choices. An inclusive conception that broadens responsibility for human rights directs our attention to more diverse sources of harm; it helps avoid the backlash that can arise when individuals harmed by entities that are not institutions feel that their experience is left out of the language of human rights; and it gives us a richer understanding of the contributions that civil society can make to the protection of human rights, as a watchdog of government and potential replacement for some of its functions as well as an agent of social change outside government and the institutional sphere more broadly conceived. The inclusive conception I have defended here bears affinities to the theory of “concurrent responsibility” for human rights to be explored later in this book.

The Right to Have Rights

Human rights form an organized whole. They are related to each other in a particular way, and their mutual relations form a particular structure, or architecture, of internal support. Some rights take the form of primary entitlements. They include, among others, life, freedom from torture, freedom from assault, adequate nutrition and health care, education, and freedom of religion. A second category of rights exists to protect primary entitlements. Consider the right to a fair trial. The primary entitlement at stake is the presumption of innocence: the right of innocent individuals not to be imprisoned, fined, or otherwise punished. The elements of the fair trial—publicity, the right to counsel, the right to summon witnesses, cross-examination of witnesses, no coerced confessions, possibility of appeal, the reasonable doubt rule—are all designed to save innocent individuals from erroneous convictions, even at the price of letting some guilty people go free.⁵³

The redundant character of these protections may try the patience of some citizens, but their very redundancy is integral to the idea of due process. A large package of overlapping protections is needed because any smaller package could fail. It is a crucial feature of this arrangement that higher-level protections improve the effectiveness of lower-level protections. Police may be trained to respect the due process rights of criminal suspects, but even so they are less likely to infringe these rights when they know that suspects have competent counsel, enjoy a right to habeas corpus, and can appeal convictions. Similarly, public officials are less likely to abuse their power when they must anticipate the judgment of a free press and an independent legislature.

Some rights function as primary entitlements and instrumental protections simultaneously. Liberty is one such right, as Locke emphasized in the Second Treatise of Government. It is both valuable in itself and indispensable to other goods; nothing valuable is secure, not even our lives, when freedom is withheld.⁵⁴ Examples can be multiplied. Education, among its many benefits, teaches us awareness of our rights, and gives us resources to defend them. A right to economic subsistence, valuable in itself, arms individuals against blackmail used to perpetuate abuse (such as domestic violence against women and servants). Freedom of speech is both a primary entitlement and a means of protesting the denial of other rights.

If human rights include both primary entitlements and their protections, they also include protections of those protections, and protections of human rights generally. A series of outer walls is erected to minimize the danger of erosion or attack. The logic of mutually reinforcing supports is well displayed in the Universal Declaration of Human Rights. “Everyone has the right to recognition everywhere as a person before the law” (art. 6) and to the “equal protection of the law” (art. 7), “to equal protection against any discrimination in violation of this Declaration” (art. 7), “to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law” (art. 8), and “to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations” (art. 10). These protections, though they may sound arid and legalistic, prove indispensable when fundamental entitlements are threatened.

It is significant that many protections of rights are themselves counted as human rights, not just as means to the fulfillment of human rights. To leave fundamental entitlements without protection is to leave persons exposed and thus to harm their dignity. A falsely accused person who is denied a fair trial but is still acquitted—say, because of luck, or a sympathetic judge, or friends helping behind the scenes—is not treated with the dignity she deserves, because she is denied the fully panoply of protections that is her due; her safety, preserved for now, remains contingent. We are entitled not only to the enjoyment of our rights, but to their secure enjoyment. We have a right to take our rights for granted.

The ideal posited here is independence, where independence means not having to fight, scheme, barter, or plead for one’s rights. Rejected, obviously, is a vision of extreme self-reliance, in which rights themselves must be achieved through struggle. Struggle, of course, is built into any society that honors human rights, since people face the stress of making their own choices in life, and must inevitably compete for scarce prizes and positions. But human rights are not something to be earned; they are not a reward for superior virtue, fortitude, and pluck. The “survival of the fittest” is foreign to the idea of human rights, its entry into rights discourse a sure sign that the discourse has been corrupted. Human rights are anchored by “the right to have rights,” as Hannah Arendt correctly insisted, not the right to seek rights.⁵⁵ That is why rights include the protections of our rights.

Why Human Rights Require International Protections

Human rights are both a moral and a political concept. As a moral concept, they imply a set of moral permissions for oneself and duties for others. But among the duties owed one by others is the duty to organize or coordinate their behavior in suitably helpful ways. Human rights imply the need for certain kinds of social institutions, and that is why they are a political, not just a moral, concept. This point has been well understood at least since the seventeenth century, when the classic social contract theorists argued that human rights entitle their bearers to institutional protections. Social contract theorists envisaged such institutions within the frame of the nation-state, which could protect individuals from each other, but could also, of course, violate human rights on a much larger scale. To guard against this danger, Locke advocated the creation of representative democracy, in which the enforcement of human rights was entrusted to “collective bodies of men,” chosen by the people, who would dedicate themselves to upholding the law of nature.

But human rights are not adequately fulfilled if we entrust their protection to the nation-state alone. The state has too many opportunities to betray human rights. Or it may lack the resources to fulfill important human rights even if it wanted to. International rights institutions are needed to correct the failures of nation-states—for example, to compensate for the resource deficiencies of poor states, or to oppose national policies that violate or threaten human rights. The moral principle is well captured in the Universal Declaration of Human Rights, whose Article 28 proclaims, “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”

Hence the effort since World War II to create an effective international human rights regime. Despite formidable obstacles and demoralizing delays, the human rights movement has succeeded in establishing a system of interlocking protections in the form of multilateral declarations, treaty commitments, monitoring committees, investigative bodies, reporting procedures, fact-finding missions, regional human rights courts, and international criminal courts. It goes without saying that human rights continue to be violated on a massive scale, and that some states still demonstrate an astonishing capacity for cruelty. But international human rights institutions have had some impact on the calculations and self-understandings of states and public officials. While the maleficent potential of the state has not been removed, it has often been inhibited, and in some parts of the world significantly reduced.⁵⁶ I examine some contributions of international human rights institutions in the chapters to follow.

When international institutions reinforce national protections of human rights, they recapitulate the domestic process of institutional reinforcement whose necessity has long been understood. The secure enjoyment of human rights within any society depends on the presence of multiple overlapping protections. A democratic state mindful of its constitutional mission should therefore welcome the oversight and assistance that international human rights institutions provide. When a state refuses international checks on its human rights practices, it negates our right to the reliable protection of our rights. The international protection of human rights is the logical completion of the human rights idea.