A critical legal conception of human dignity

In this article, I argue for adopting a specific conception of human dignity centered around the argument that human dignity flows from an individual's capacity for self-authorship as defined by the set of expressive capabilities they enjoy. I also develop a corollary argument for a specific model of fundamental rights which flows from adopting the conception of dignity presented here.     

The Theory of Universal Human Rights: A Comment on Talbott

In this analysis of William Talbott’s important book, I note with appreciation his defense of universal moral principles and of moral justification as a “social project,” his focus on the critique of oppression, and his emphasis on empathic understanding in the account of human rights. I go on to develop some criticisms regarding: 1) Talbott’s traditional understanding of human rights as holding against governments and not also applying to nonstate actors; 2) his account of the interrelations among well-being, autonomy, claims for first person authority in moral judgment, and human rights; 3) his strongly rationalist and liberal individualist interpretation of moral judgment and autonomy; and 4) the lack of a role for intercultural dialogue about human rights, which nonetheless are held to apply to all human beings across cultures. In each case, I briefly consider what an alternative approach would look like.     

Civil Rights and Political Human Rights: Contesting Human Rights Failures within the Minimally Democratic State

Allen Buchanan argues that democracy ought to be added to the list of basic human rights, but he limits the conception of democracy to a minimum of electoral representation within the nation state, effectively collapsing human rights into civil rights. This, however, leaves him unable to address the problem of human rights failures occurring within established states that meet his standard of minimal democratic representation. In order to address this problem, I appeal to James Bohman's conception of the political human rights of all members of humanity, as opposed to the civil rights of the citizens of particular states. I argue that while this provides the basis on which to address the problem of human rights failures within minimally democratic states, Bohman's conception also entails the potential for deep tensions to arise between the different claims of civil and human rights.     

Henry Shue on Basic Rights: A Defense

In light of the many recent criticisms of Henry Shue's philosophy, this article provides a defense of Shue's philosophical argument for basic rights. The author demonstrates that the latest criticisms made by Thomas Pogge, Michael Payne, and Andrew Cohen misconstrue Shue's position, and therefore fail to overturn the soundness of Shue's argument. Against those who contend that basic rights demand too much, both logically and morally, the author argues that basic rights serve as the minimal threshold for human dignity and the foundation for all other rights. Consequentially, the overall moral landscape is skewed if basic rights are absent.     

National Human Rights Institutions: Domestic implementation of international human rights law

Does adopting a National Human Rights Institution (NHRI) make states’ international commitments to not torture more constraining? Many researchers have explored international human rights treaties’ abilities to constrain leaders from violating human rights, some focusing exclusively on the United Nations Convention Against Torture (CAT). Thus far, findings are not promising unless certain domestic conditions apply such as sufficient democratic space to air grievances or independent judiciaries. This article continues to explore domestic conditions by focusing on another liberal institution—National Human Rights Institutions (NHRIs). Torture is usually a secretive practice, and NHRIs act as information providers to potential mobilizers and domestic legal systems assuring international legal commitments are not empty promises. Using statistical analysis on 153 countries over the years 1981–2007, I find that when a country has ratified the CAT, the presence of an NHRI substantively decreases the chances the state will be an egregious offender.     

The “Perverse Result” of Disability Rights: Deregulating Care Workers’ Labor Unions in the Supreme Court

In Harris v. Quinn (2014), the United States Supreme Court used disability rights rhetoric of independence and control to argue that disabled people—not the State—are the real employers of in-home care workers. Consequently, the State cannot force care workers to pay labor union fees. Justice Alito’s majority decision interprets the employment contract as a capacity contract: a device that uses the recognition of equal cognitive capacity to obscure domination. Alito ignored the vulnerability of disabled people and in-home care workers to legitimize neoliberal cutbacks. In her dissent, Justice Kagan argued that disabled people, care workers, and the State forge multiple and iterative contracts. Using Kagan’s dissent, Charles Mills’s critique of ideal theory, and Susan Burgess and Christine Keating’s participatory social contract, I argue that an emancipatory contract must replace cognitive capacity as the condition of membership with the recognition of shared human vulnerability amid oppressive conditions.     

Cultivating Character: John Stuart Mill and the Subject of Rights

The antidemocratic tendencies of rights appear to be numerous. As trumps, rights are denounced for shutting down political debate and undermining the common good. As disciplinary, rights are attacked for reinforcing a politics of exclusion. I argue that an appreciation of the democratic potential of rights requires conceiving of them as political claims, as claims that represent a perspective that we seek to persuade others to adopt and through which we can create and contest community and identity. I cull a political conception of rights from the work of John Stuart Mill by rethinking the meaning of and connection between his ontological commitments and his politics. Paying careful attention to his notion of "character" and its cultivation, I argue that Mill embraces a conception of the socially constituted subject who is both disciplined and enabled by rights.     

Uprooting the curious grapevine? The transformative potential of reverse standard-setting in the field of human rights

In recent years, the top-down nature of human rights norm-setting has been problematized by scholars and practitioners who — inspired by actor-oriented perspectives on human rights — started to explore the potential role of rights users in the further development of human rights norms at the global level. Based on fieldwork with community-based organizations in Guatemala and the Democratic Republic of the Congo, I argue that the empowering potential of this exercise could be amplified by complementing actor-oriented analyses with a sociostructural analysis of how institutionalized power relations shape the potential for reverse standard-setting. Drawing on new empirical material, I propose a more nuanced way to think about reverse standard-setting and identify four issues that require the combination of an actor-oriented analysis and sociostructural analysis: access, influence, avenues for information sharing, and discursive incompatibilities. In doing so, I seek to increase the analytical rigor, practical relevance, and empowering potential of reverse standard-setting.     

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.     

Greening Constitutions with Environmental Rights: Testing the Isomorphism Thesis

Why do some countries have constitutional environmental rights while others do not? In this paper, I conduct statistical analyses to respond to this inquiry. Through studying the impact of intraregional constitutional design, I aim to understand why states adopt environmental rights. I argue that regional isomorphism—i.e., the tendency among states within a region to converge on certain policies—may explain the trend toward constitutionalization of environmental rights. In this paper I (1) define and provide historical background on environmental rights, (2) describe theories which support regional isomorphism as a means of explaining the adoption of constitutional environmental rights, and (3) conduct statistical tests to determine the validity of the regional isomorphism thesis. I find that the enactment of constitutional environmental rights within a region does not increase the likelihood that another state within the same region will include environmental rights within its constitution.     

Human Rights in a Post‐Brexit UK

This special issue was written to reflect on the current role of human rights in the United Kingdom, seventy years after the United Nations General Assembly voted in favour of the Universal Declaration of Human Rights. Human rights are explored by the authors in this issue from a wide variety of perspectives. Some authors are critical of the failure of the state to implement human rights principles in practice; others lament how human rights often appear of little relevance to most people’s lives in the UK. The overall message, however, remains consistent: a human rights framework brings many positive elements to our country, ensuring it is a society where individuals, no matter their actions or characteristics, are treated with dignity.     

Political Myth and the Sacred Center of Human Rights: The Universal Declaration and the Narrative of “Inherent Human Dignity”

This paper will explore the 1948 Universal Declaration of Human Rights as an exemplar of political mythmaking, a genre of narrative designed to channel and thereby to quell social anxiety and to orient select groups toward desirable beliefs and practices. One of the Declaration’s most fundamental and forceful elements is its enshrinement of the “inherent dignity” of each member of the human family. Drawing upon contemporary theorizations of mythmaking and sacralization, this article will elucidate the manner in which inherent dignity functions as the central item of sacredness within what we might call the “secular morality” of universal human rights.     

Self-determination as a universal human right

Conventional wisdom suggests that promoting self-determination for peoples and protecting the human rights of individuals are competing priorities. However, many recent international human rights documents include rights of peoples in their lists of basic human rights. In this paper, I defend including at least one people’s right, the right to self-determination, in the list of basic rights. Recognizing that self-determination is a constitutive element of human dignity casts state sovereignty in a different light, with interesting consequences both for international law and for philosophical debates about the rights of minorities.     

The Principle of Generic Consistency as the Supreme Principle of Human Rights

Alan Gewirth’s claim that agents contradict that they are agents if they do not accept that the principle of generic consistency (PGC) is the supreme principle of practical rationality has been greeted with widespread scepticism. The aim of this article is not to defend this claim but to show that if the first and least controversial of the three stages of Gewirth’s argument for the PGC is sound, then agents must interpret and give effect to human rights in ways consistent with the PGC, or deny that human beings are equal in dignity and rights (which idea defines human rights) or that they are agents (and hence subject to any rules at all). Implications for the interpretation of the international legal system of human rights inspired by the Universal Declaration of Human Rights 1948 are sketched.     

The Globalization of Rights: From Citizenship to Human Rights

Globalization is shifting the balance away from membership-based citizenship towards universal human rights, thus we ask: how are new human rights generated? We argue that the movement for human rights follows on the heels of the much older and richer tradition of citizenship, as can be seen from the fact that many of the new claims put forward by human rights activists seek to define traditional citizenship rights as universal human rights. Most recently, we witness attempts by NGOs and CSOs to bring health, rights-based development, and identity rights under the umbrella of human rights. We examine the changing but continuous relationship of these two rights traditions, the gains made by human rights activists and the global solidarity and national enforcement capacity needed to underwrite their further progress.     

Human Rights,Personal Responsibility,and Human Dignity: What Are Our Moral Duties to Promote the Universal Realization of Human Rights?

According to the orthodox or humanist conception of human rights, individuals have a moral duty to promote the universal realization of human rights. However, advocates of this account express the implications of this duty in extremely vague terms. What does it mean when we say that we must promote human rights satisfaction? Does it mean that we must devote a considerable amount of our time and resources to this task? Does it mean, instead, that we must make occasional donations to charities working to advance human rights realization? In this essay, I argue that this duty can only be constructed as imperfect. This means that it confers agent-relative discretion on us to decide when, how, and to what extent to advance the human rights of others. It also means that it is neither correlative with rights nor enforceable. As I will explain, the main reason for this is that any attempt to construct it as a perfect duty would infringe the dignity of the potential duty bearers and thereby undermine the very values that human rights practice aspires to serve. Finally, I will conclude by providing some guidelines for those who wish to comply with their imperfect duties to improve the situation of those whose human rights are in peril.     

On the Other Side of the Curtain: A Reassessment of Non-Elite Human Rights Experiences and Values in Poland

In this paper, I explore the formation of human rights attitudes among what I call the “silent majority” in the post-communist countries of Central Europe and the former Soviet Union. This is the large, diverse group of people never directly confronted with harsh methods of repression under communism. I argue here that the foundations for conceptualizing human rights are based on the degree and saliency of exposure to rights violations and that, for many citizens of Central and Eastern Europe, life behind the “iron curtain” is associated with relatively fewer rights violations than life after the iron curtain’s fall. Comparative personal experiences will play a key role in explaining how these citizens conceptualize human rights. I test this argument by applying it to the cases of Poland, where I conducted a total of 68 randomly selected non-elite interviews in an effort to probe for key factors defining individuals’ conceptions of human rights.

Does might make right or fight? Coercive capacity,democracy, and human rights, 1975 to 2010

Democracy is generally beneficial for human rights whereas coercive capacity increases government repression. Using data for 161 countries between 1975 and 2010, I consider how different aspects of democracy interact with the size and scope of a country's military apparatus to shape respect for bodily-integrity rights. Does democracy ameliorate the negative effects of coercive capacity? Or, does a strong military overpower the positive impact of democracy? Multivariate analyses suggest that high levels of democracy neutralize the effect of coercive capacity on bodily-integrity violations. At the same time, high levels of coercive capacity increase human rights abuses even in the most democratic regimes, at least when different aspects of democracy—executive constraints, competitive elections, and media freedom—are evaluated in isolation. Regimes that combine respect for media freedom with constraints on executive authority or competitive elections are able to harness coercive capacity for protective purposes.     

Voting and Human Rights in Democratic Societies

The majority of research on human rights focuses on the consequences of regime-type for human rights violations, and overwhelming evidence suggests that democracies are less likely to violate human rights of their citizens as compared to non-democracies. However, a regime-type perspective is unable to account for disparities in human rights violations within democratic and non-democratic regimes. This paper disaggregates regime-type and analyzes the relationship between citizens’ participation and human rights violations. I argue that a participative citizenry, as captured by high voter turnout, is indicative of an active and vigilant populace who are more likely to hold governments accountable and ensure better human rights protections. The paper tests the relationship between human rights and voter turnout among 89 democratic countries from 1976 to 2008. The findings demonstrate that a participative citizenry enhances governmental respect for human rights.