Reconciling legal positivism and human rights: Hans Kelsen's argument from relativism

This article examines the conceptual relationship between legal positivism and human rights, challenging the common idea that the two are in tension or that there exists, at most, a contingent relationship between them, whereby legal positivists can only recognize the normative validity of human rights if they happen to be inscribed in positive law. To do this, I focus on the thought and writings of one of the “founding fathers” of modern legal positivism: the Austrian legal theorist and political philosopher Hans Kelsen. In the first part, I show that Kelsen's conception of legal positivism is inextricably tied to — and, indeed, logically stems from — his moral relativism. In the second, I show that this form of relativism is also the philosophical foundation for Kelsen's commitment to democracy and human rights. Finally, in the third part, I examine the specific conception of human rights that results from this relativistic foundation, contrasting it with the “natural law” version that legal positivism excludes.     

Respect for Persons in Bioethics: Towards a Human Rights-Based Account

Human rights have increasingly been put forward as an important framework for bioethics. In this paper, it is argued that human rights offer a potentially fruitful approach to understanding the notion of Respect for Persons in bioethics. The idea that we are owed a certain kind of respect as persons is relatively common, but also quite often understood in terms of respecting people’s autonomous choices. Such accounts do however risk being too narrow, reducing some human beings to a second-class moral status. This paper puts forward a political approach to our standing as persons and a strongly pluralistic account of human rights that lays the ground for a more broadly applicable conception of Respect for Persons. It is further argued that this model also provides an example of a more general approach to philosophical ethics, an approach which is here called taxonomical pluralism. When it comes to Respect for Persons specifically, this principle is developed in terms of five distinct core concerns (autonomy, dignity, integrity, privacy, and vulnerability).     

Symbols,Stratagems, and Legitimacy in Political Analysis*

This article evaluates the new conception of symbols and rhetoric in organization theory (March and Olsen). It is a perspective that departs from the traditional instrumental view in political science (cf. Edelman}. This reorientation postulates the close connection between legitimacy and symbols, viewing symbolic language as a way of producing social integration. However, this perspective neglects the crucial aspect of legitimacy, i.e., a moral justification of power. Legitimacy concerns the cognitive and rational aspect of political argumentation rather than the expressive and symbolic aspect. Symbols, then, raise distinct analytical problems that refer to the authenticity and sincerity aspect of behaviour. Politics has to do with the just allocation of welfare, and symbols signify meaning and loyalty Thai governmental policy is merely symbolic, then, denotes that it does not produce any real effects.     

Old and new politics: The Dutch peace movement and the traditional political organizations

Abstract. On the basis of data on the Dutch peace movement, we study the relationship between traditional organizations of political intermediation such as parties, unions and churches with a new social movement on the local level. After having argued for the relevance of the institutional context, the general structure of new social movements and the particular structure of the movement under consideration with regard to this relationship, we first present evidence confirming our claims that we are dealing with new social movement. Then we show that the relationships in question are quite elaborate confirming the hypothesis that political activity within traditional organizations and new social movements is to some extent cumulative. More generally, the results imply that the development of the peace movement and other new social movements in the Netherlands is not indicating a diminishing legitimacy of the Dutch political parties.     

A Socialist State of Grace: The Radical Reformism of Jean Jaurès*

Jean Jaurès (1859–1914) forged an innovative theory of radical reform by adopting a universalistic conception of human rights from the liberal tradition and a theory of capitalism and class from Marxism. He urged the labor movement to place less emphasis on the hope of a post-revolutionary “paradise” and instead to “live always in a socialist state of grace,” understanding socialism as a regulative ideal guiding a reformist practice. This liberal socialist politics could only take shape, he suggested, to the extent that liberal norms intersected with the self-interest of existing social movements: Jaurès's socialism, thus, is highly contingent, and makes no promises about political success. Jaurès prompts us to shift the focus of left democratic theory from the polity to the social movement, from “radical democracy” to “radical reform.”     

Making citizenship public: identities,practices, and rights at Woodsquat

The common conception of citizenship is that of belonging to a political community, with the ensuing rights and responsibilities of membership. This community tends to be naturalized as the nation-state. However, this location of citizenship needs to be decentred in order to investigate current modes of democratic participation. This paper investigates current sites and practices of citizenship through reflection on a tactical housing squat of an empty department store staged by an urban social movement in Vancouver in 2002, known as ‘Woodsquat’. It uses a social movement perspective to look at citizenship, emphasizing the identities, practices, and locations of democratic engagement over the collective question of how we will live together in these places. From this point of view Woodsquat shows current limits of national citizenship, conceptually and practically, and suggests alternative possibilities for future citizenship practices located in multiple identifications with (political) communities. Moving from this analysis of political participation at Woodsquat attention is brought to the importance of spaces of democratic communication for possibilities of citizenship, where there seems to be a reinforcing relationship between public spheres, social movements, and democracy. Ultimately, then, actions at Woodsquat are argued to be a form of citizenship that emerged within a democratic public.     

Advancing Human Rights Policy: Does Grassroots Mobilization and Community Dispute Resolution Matter? Insights from Chiapas,Mexico

This research examines the impact of grassroots organizing at the community level in Chiapas, Mexico, to address problems associated with human rights advocacy and implementation. Traditionally, the nation‐state has had the primary responsibility to address issues pertaining to human rights violations and the enforcement of international human rights principles and treaties. Local political struggles and acts of resistance by disenfranchised groups in Mexico offer insight to understand the impact of indigenous and other social movements in furthering human rights. Indigenous populations in the state of Chiapas use local community dispute resolution to contest the inadequacy of the state in responding to the problems that give rise to poverty, lack of human dignity, educational access, racial and ethnic discrimination, lack of political participation in government and the right to equality in economic, social, and political sectors. Drawing from research based on participant observations in Chiapas, Mexico, there is some evidence to suggest that since the 1994 EZLN (Zapatista National Liberation Army) uprising several micro‐level political and social movements have contested the power of the state through symbolic and pragmatic organizing efforts. These groups include, but are not limited to, nongovernmental organizations (NGOs), women's groups, and indigenous groups. After the Zapatista uprising, these groups were instrumental in making claims against the state through numerous activities: protests to end the war, the development of NGOs to observe human rights violations, civilian‐based Zapatista support groups (base de apoyo), peace camps, and open dialogue with the EZLN. I argue that collective mobilization in local communities serves both symbolic and pragmatic efforts in helping disenfranchised groups empower themselves to address economic, social, and political inequality. Local‐level activism has fueled a sense of self‐empowerment to change state institutional responses and to involve sectors of civil society domestically and internationally to initiate a proper resolution of issues that are fundamentally related to human rights.     

An African Conception of Human Rights? Comments on the Challenges of Relativism

The belief that human rights are culturally relative has been reinforced by recent attempts to develop more plausible conceptions of human rights whose philosophical foundations are closely aligned with culture-specific ideas about human nature and/or dignity. This paper contests specifically the position that a conception of human rights is culturally relative by way of contesting the claim that there is an African case in point. That is, it contests the claim that there is a unique theory of rights. It analyses three examples of what often passes as African conception of human rights arguing that they have little or nothing to do with human rights, are simply inadequate or are not African in the sense at issue in a cultural relativism. Along the way, it distinguishes between two meanings of the term African contending that to the extent that the practice of prizing the ‘community’ higher than any other value is definitive of African, the idea of African human rights remains suspect.     

中国古代廉政文化的哲学基础

中国古代廉政文化作为传统治国之道的重要部分,是当代中国政治文明建设的宝贵思想资源。就其哲学基础而言,民本思想是传统社会政治权力合法性的基础,人性论是传统社会官德修养的理论依据,义利之辨影响着古代官吏的行为模式,天人合一的有机整体论世界观塑造着古代官员的社会责任感。对中国古代廉政文化哲学基础的准确把握有助于我们深入了解传统的治国智慧,汲取历史经验,拓宽理论视野,更好地开展党风廉政建设和反腐败斗争,促使社会变得更加清明和公正。     

William Talbott’s Which Rights Should be Universal?

In this review essay, I first set out and then subject to criticism the main claims advanced by William Talbott in his excellent recent book, “Which Rights Should be Universal?”. Talbott offers a conception of basic universal human rights as the minimally necessary and sufficient conditions to political legitimacy. I argue that his conception is at once too robustly liberal and democratic and too inattentive to key features of the rule of law to play this role. I suggest that John Rawls’s conception of human rights comes closer to hitting the mark Talbott sets for himself and that Talbott incorrectly rejects Rawls’s view. I conclude that what likely divides Talbott and Rawls is that Rawls, but not Talbott, explicitly frames the inquiry into the minimally necessary and sufficient conditions to political legitimacy in terms of a liberal democratic people attempting to determine, as a matter of its just foreign policy, whether or not to recognize other organized polities as independent and self-determining within the international order.     

Social Media and the Paradox of Fear: An Exploratory Study of Political Relationship Marketing Within South Wales

This paper explores the key challenges of social media use by politicians in relation to political relationship marketing. Utilising a case study of the online footprint left by Welsh politicians and their attitude towards social media based on three business based rationales – engagement, level of control, and return on investment – the paper offers an expanded conception of the perceptions and fears influencing the use of social media by politicians in terms of political relationship marketing. The article concludes with some critical thoughts regarding the understanding of relationship marketing principles by politicians.     

儒家道德权利与政治权利要义

作为社会身份和政治资格的人权在儒家“孔仁孟义”的思想体系中被表达为“内圣外王”之道,其在“修齐治平”的实现程序之中又以“公私之辨”和“义利之辨”标志出政治伦理原则和“以德限权”的社会治理特色。儒家以“公权利”揭示人的自然权利,以其公平性和自然性引申为人的道德权利;再以道德权利为基础推演出人的政治权利,而“私权力”则仅为政治权利的异化形式,其极端化的结果就是“以权谋私”,后者因其“侵害公权利”的实质,儒家的人提倡以“道德权利”加以限制,故称为“德治”。儒家的道德权利与政治权利不仅影响了中国社会的思想和制度传统,而且其思想特色通过“为人民服务”、“改革开放”、“三个代表”和“三为”等原则亦被创造性地运用于当代中国共产党人的治国理政事业之中。     

What comes first,democracy or human rights?

Minimalists about human rights hold that a state can have political legitimacy if it protects a basic list of rights and democratic rights do not have to be on that list. In this paper, I consider two arguments from Benhabib against the minimalist view. The first is that a political community cannot be said to have self-determination, which minimalists take to be the value at the heart of legitimacy, without democracy. The second is that even the human rights protections minimalists take to legitimize institutions cannot be had without democracy. These rights can only be adequately interpreted and specified for any social context if the interpretations and specifications result from democratic processes. Here, I bring out some important problems with these arguments and so conclude that they do not represent a robust case for rejecting minimalism.     

Granting votes: exposing the political bias of intergovernmental grants using the within-between specification for panel data

The history of political theory can shed light on the question of what political contexts are and are not appropriate for Quadratic Voting (QV), and the methods by which extra votes might be distributed when QV is appropriate. Ancient Greek and contemporary political thought draws attention to the connections between the assumed equality of moral worth among citizens and systems of voting, and to the relationship between equality or inequality of standing to the bases of dessert and the fair distribution of political influence in a democratic state. These matters in turn bear directly on democratic legitimacy, and thus on the stability of the social order. Some issues that must be decided in a democratic community concern common interests. Common-interest issues, based on widely held conceptions of equal moral worth, are not appropriately determined by preference intensity, and thus are inappropriate for a QV voting system. Real-money versions of QV risk undermining respect for law and democratic legitimacy. The costs of system-threatening civil conflict attendant upon loss of legitimacy outweighs any efficiency gains within the system. Token-currency versions of QV, which do not threaten democratic legitimacy, are a more plausible option for the application of QV to political issues in which correlating unequal influence with preference intensity does not conflict with assumptions of equal moral worth.     

Civil Rights and Social Welfare: Some Thoughts on the Contemporary Relevance of T. H. Marshall

This article draws on T H Marshall's celebrated classification of civil, political and social rights to examine the use of the courts by individuals seeking to establish rights to particular forms or models of welfare service provision. It argues that tensions between the collective and individual aspects of social rights, the relationship of social rights to inequality, and the difficulty of quantifying (and therefore enforcing) legitimate expectations, all make the use of litigation to establish social rights intensely problematic. Drawing on the recent UK Supreme Court case of R (on the Application of McDonald) v Royal Borough of Kensington and Chelsea, it goes on to suggest that it is unhelpful to think of social rights in terms of human rights: instead, we would do better to adopt Marshall's emphasis on the citizenship basis of social rights and on the social and political context within which they necessarily exist.     

The Place of Human Rights in American Efforts to Expand and Universalize Healthcare

This article explores the very limited cases historically in the twentieth century when human rights was used in American policy debate as a defending principle for the provision of government-guaranteed universal healthcare. It discusses these cases and examines various reasons as to why this is so, noting the major emphasis in American political culture on negative rather than positive liberty. It examines the shift in political culture from the Roosevelt, Truman, and Johnson eras that embraced social and economic rights and defined them as such to the post-Reagan era when conservative ideologies were ascendant. These ideologies reject the legitimacy of social and economic rights and remain dominant in the United States. It comparatively situates the American refusal to consider universal healthcare a human right with European affirmations of such a right and to those found in various treaties of international law. Finally, it analyzes how Barack Obama’s Patient Protection and Affordable Care Act—while not adopting the rhetoric of human rights does, functionally, enable as a matter of public policy an entitlement to healthcare.     

Morality,Benevolence, and Responsibility: Regime Legitimacy in China from Past to the Present

Taking an interpretive approach, this study argues that Chinese political tradition plays an important role in the maintenance of regime legitimacy in China today. Contrary to the popular view that the Chinese Communist regime relies primarily on economic performance to sustain its legitimacy, the current regime legitimacy is maintained because of the historically rooted moral bond between the state and society and the societal expectation that the state would be responsible for the wellbeing of the population. The regime legitimacy in China has three overlapping layers: The basic layer is the morality of political elite. The crucial part of the morality is the benevolent governance which specifies that the government has to be compassionate to the people. The central component of a benevolent government is the state responsibility to the welfare of the people. All together, these layers create a moral bond between the state and society. The government will enjoy legitimacy as far as the society expects it to fulfill its end of the deal. This study further argues that the morality-based regime legitimacy in China has to be calibrated within its multi-level power structure. Governments at different levels enjoy different degree of legitimacy and face different degree of challenges. In general, the central government enjoys the most legitimacy and faces the least challenges comparing to the local governments. This multi-level power structure would cushion many regime legitimacy crises.     

Human nature,freedom and political community: An interview with Noam Chomsky

For Noam Chomsky ‘human nature’ is a clearly defined concept, biologically endowed and largely independent of social and historical conditions. Because its deepest properties are genetically determined, for Chomsky the study of human nature ought to proceed in much the same way the functions of other bodily organs are examined. His ground‐breaking research into the language faculty, which he claims is one of the more accessible attributes of human nature, revolutionised the study of linguistics and cognitive science generally in the 1950s and 1960s. However, this approach has put him at odds with those, such as behavioural scientists and existentialist philosophers, who have long argued that physical and mental development should be understood as separate processes because of the overwhelming influence of environmental conditions on the latter. It also sets him apart from some recent post‐modern thinkers who deny the existence of an intrinsic human nature, arguing that our moral and political values are socially and historically determined. For his part, Chomsky still finds it odd that what we take for granted in explaining physical growth becomes so ‘controversial’ in a discussion of the psychological aspects of human nature.

Noam Chomsky's understanding of human nature underwrites his conception of desirable social and political arrangements. A good society, according to Chomsky, is one ‘that leads to [the] satisfaction of intrinsic human needs, insofar as material conditions allow’ (Peck, 1988, p. 195). It should give expression to an ‘instinct for freedom, the consciousness of which gives us ‘the opportunity to create social conditions and social forms to maximize the possibilities of freedom, diversity, and individual self‐realization (Chomsky, 1973, pp. 395–6). Libertarian socialists and anarchists like Chomsky believe complex industrial societies can be organised within a framework of free institutions and structures leading to, in Rocker's words, a federation of free communities which shall be bound to one another by their common economic and social interests and arrange their affairs by mutual agreement and free contract’ (Peck, 1988, pp. 191–2). An appreciation of Chomsky's understanding of human nature provides some important clues to his political values, specifically his attitudes towards human rights, the nation‐state and alternative form of political community. These topics are explored in the interview below which is divided into two parts: human nature and moral behaviour; and political community and globalisation.