Reason-Giving and Rights-Bearing: Constructing the Subject of Rights

Seyla Benhabib
1. Contemporary Justifications of Human Rights
It has now become commonplace to note that in the post-metaphysical age, there is a justification deficit in human rights discourse, characterized by the disturbing fact that, while the global culture and institutionalization of human rights has gained considerable traction, the nature of the justification for claims about the existence of human rights remains obscure.1 In recent philosophical debates two quite distinct ways of considering human rights have emerged: the traditional conceptions of Alan Gewirth and James Griffin2 to be distinguished from the political or functional (Beitz) conception of rights, inspired mainly by John Rawlss work in The Law of Peoples.3 In this essay, I will argue that the juxtaposition of these two positions is false and simplistic because any justification of human rights will presuppose some conceptions of human agency, some account of human needs and rationality, as well as entertain some assumptions about the nature of our socio-political world. Whereas human rights theories such as Alan Gewirths and James Griffins4 build human rights around a conception of human agency, the approach to human rights initiated by John Rawlss project of developing a global public reason, presupposes that the late modern political world, characterized by an inevitable value pluralism and by burdens of judgment, does not need to rest on any such philosophical accounts. Yet there is an all-too-hasty identification on the part of Rawlsians of any account of human agency with a metaphysical or comprehensive world-view. It is not the case that such accounts are necessarily metaphysical. By engaging in presuppositional analysis, I will try to show what we must presuppose in any meaningful account of human rights. I will then expand this analysis toward an exegesis of human agency in terms of communicative freedom and rationality. My goal is to distinguish the discourse-theoretic account of rights from the traditional and political ones. In the second half of this essay, I turn to the five puzzles of human rights. First, are human rights moral claims or legal entitlements? Second, how is the human in the phrase human rights to be understood? Third, how do we distinguish human rights from civil and political rights proper? Fourth, is the UDHR which enshrines human rights in such a powerful way a document of global public reason, may be even a preliminary blueprint towards a world constitution or is it rather an aspirational treaty among states with no binding power. Fifth, how is the unity and diversity of human rights to be respected across multiple jurisprudential, religious, and cultural traditions?

2. A Discourse-Theoretic Account of Human Rights

I will argue that rights claims in general are of the following sort: I can justify to you with good reasons that you and I should respect each others reciprocal claim to act in certain ways and not to act in others, and to enjoy certain resources and services.5 Some rights claims
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are about liberties to do or to abstain from doing certain things without anybody else having a moral claim to oblige me to act or to withhold from acting in certain ways. These liberty rights generate duties of forbearance. Other rights claims are about entitlement to resources. Such rights, as the right to an elementary school education or to secure neighborhoods, for example, entail obligations on the part of others, whether they be individuals or institutions, to act in certain ways and to provide certain material goods. As Jeremy Waldron observes, such rights issue in cascading obligations.6 For the Kantian morally constructivist tradition, rights claims are not about what exists; rather, we ask whether our lives together within, outside and betwixt polities ought not to be guided by mutually and reciprocally guaranteed immunities, constraints upon actions, and by legitimate access to certain goods and resources. Rights are not about what there is but about the kind of world we reasonably ought to want to live in. In his Metaphysics of Morals, Kant proposed that there is one basic right: Every action which by itself or by its maxim enables the freedom of each individuals will to co-exist with the freedom of everyone else in accordance with a universal law is right (gerecht).7 Note that Kants formulation is not about a list of basic rights that is said to precede the will of the republican sovereign. Rather, the Kantian principle establishes how a juridico-civil order can come into existence that would be in compliance with the moral law of the freedom of each. The Kantian principle of right basically states that the only political order that can be considered legitimate is based upon a system of general laws that binds the will of each equally. Generality, formal reciprocity, and equality are features of the principle of right. Your freedom as a moral being can be restricted only by reasons that would be generally and reciprocally applicable to each. A polity based on the principle of rights respects you as a moral being. A discourse-theoretic justification of the principle of right would differ from Kants in the following ways. The emphasis now shifts from what each can will to be valid for all via a thought-experiment, to those justificatory processes through which you and I in dialogue, must convince each other of the validity of certain norms by which I mean general rules of action. Stated succinctly: In order to be able to justify to you why you and I ought to act in certain ways, I must respect your capacity to agree or disagree with me on the basis of reasons the validity of which you accept or reject. But to respect your capacity to accept or reject reasons the validity of which you may accept or dispute means for me to respect your capacity for communicative freedom. I am assuming that all human beings who are potential or actual speakers of a natural language are capable of communicative freedom, that is, of saying yes or no to an utterance whose validity claims they comprehend and according to which they can act. Human rights can then be considered moral principles that protect the exercise of your communicative freedom and that require embodiment in legal form.8 Certainly, the exercise of communicative freedom is an exercise of agency, of formulating the goals and ends we wish to pursue and to effectuate such pursuits. Unlike agent-centric human rights theories, such as Gewirths and Giffins, however, which are still the most commonly subscribed to accounts of human rights, in the discourse-theoretic model, we proceed from a view of the human agent as an individual embedded in contexts of communication as well as interaction. The capacity to formulate goals of action is not prior to the capacity to be able to justify such goals with reasons to others. Reasons for actions are not only grounds which motivate me; they are also accounts of my actions through which I project myself as a doer unto a social world that I share with others; through which I participate in a space of reasons, and in and through which others recognize me as a person capable of, and responsible for, certain courses of action.
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These insights are wholly in line with those of Robert Brandoms when he writes: Saying we in this sense is placing ourselves and each other in the space of reasons, by giving and asking for reasons for our attitudes and performances . . . Our attitudes and acts exhibit an intelligible content, a content that can be grasped or understood, by being caught up in a web of reasons, by being inferentially articulated.9 Agency and communication are two sides of the same coin. Formulating reasons presupposes my ability to integrate the standpoints of ego and alter. I can only know myself as an agent, because I can anticipate being part of a social space in which others recognize me as the initiator of certain deeds and the speaker of certain word for which I must be able to provide an account. But even this process of providing an account is not subsequent or posterior to the formulation of my goals of action either in a logical or in a temporal sense. I can view myself as a doer of deeds and speaker of words only insofar as I can provide an account to myself, of what it is that I wish to do and how to find the right words to express what I mean. The capacity for providing such accounts presupposes an internalization of the standpoint of the other(s) in whose eyes and ears my acts will accomplish something and my words will mean certain things. Being able to take the standpoint of the other is necessary to formulate a coherent account of oneself as an agent, as a doer as well as a narrator. It is the weakness of all agent-centric accounts of human rights that they abstract from the social embeddedness of agency in such shared contexts of speech and action, and instead focus on the isolated agent as the privileged subject for reasoning about rights.10 First and foremost as a moral being capable of communicative freedom you have a fundamental right to have rights. While Hannah Arendt herself identified this right narrowly with the right of political belonging,11 I expand it in the following ways: In order to exercise communicative freedom, your capacity for embedded agency needs to be respected. You need to be recognized as a member of an organized human community in which your words and your acts situate you within a social space of interaction and communication. You have a right, in the sense of a moral claim, to be recognized by others as a rights-bearing person, entitled to a legally instituted schedule of rights.12 Others can only constrain your freedom as a moral being through reasons that satisfy the conditions of formality, generality, and reciprocity for all. The right to have rights further involves the acknowledgment of your identity as a generalized as well as a concrete other.13 If I recognize you as a being entitled to rights only because you are like me, then I deny your fundamental individuality that makes you different. If I refuse to recognize you as a being entitled to rights because you are so other than me, then I deny our common humanity. Such reciprocal recognition of each other as beings who have the right to have rights comes about through political struggles, social movements, and learning processes within and across classes, genders, nations, ethnic groups, and religious faiths. Universalism does not consist in an essence or human nature that we are all said to have or to possess, but rather, in experiences of establishing commonality across diversity, conflict, divide, and struggle. Let me emphasize how this justification of human rights through a discourse-theoretic account of communicative freedom differs from others. In agent-relative accounts, it is assumed that human rights are enabling conditions of the exercise of agency under some description. This then leaves unanswered the question of why the claim that some condition or another is essential to the exercise of your agency imposes a moral obligation upon me to respect that claim. By contrast, in the discourse model we argue that the recognition of your right to have rights is the very precondition for you to be able to accept or reject my claim to have rights in the first place. My agent-specific needs can serve as a justification for you
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only if I presuppose that your agent-specific needs can likewise serve as a justification for me. And this means that you and I have recognized each others right to have rights. Does not this discourse-theoretic justification of human rights prove either too much or too little? Are not my formulations dependent upon some understanding of what constitutes good reasons in discourses? And surely, the contextualist will continue, either such shared understandings are hardly uncontroversial or your justification strategy is mired in circularity. It presupposes an understanding of good reasons, such as to preclude moral points of view incompatible with the non-recognition of communicative freedom. To face this serious objection, let me first observe that discourses, to be distinguished from bargaining, cajoling, brain washing, and coercive manipulation, are dependent upon certain formal conditions of conversation: these are the equality of each conversation partner to partake in as well as initiate communication, their symmetrical entitlement to speech acts, and reciprocity of communicative roles: each can question and answer, bring new items to the agenda, and initiate reflection about the rules of discourse itself. These formal preconditions, which themselves require reinterpretation within the discursive process, impose certain necessary constraints upon the kinds of reasons that will prove acceptable within discourses, but they can never, nor should they be required to, provide sufficient grounds for what constitute good reasons. Indeed there is a circularity here, but it is not a vicious circle. It is the hermeneutic circle of practical reason Aristotle had noted long ago in his Ethics to be an essential feature of all reasoning in morals and politics: We always already have to assume some understanding of equality, reciprocity, and symmetry in order to be able to frame the discourse model in the first place, but each of these normative terms are then open to reflexive justification or recursive validation within the discourse itself. Such recursive validation of the preconditions of discourse has been misunderstood by many as presupposing a vicious circle. These charges ignore the hermeneutical structure of practical reason and wish to have practical reason proceed as if it were theoretical reason from uncontested first premises. What I have outlined above is a discourse-theoretic account of human rights which proceeds by way of a presuppositional analysis of our speech-immanent commitments14 to a recognition of the individual as a person with the right to have rights, understood broadly as the moral right to be recognized as a person entitled to a legal schedule of rights. This is not a deduction of the concept of human rights; rather, it is an account of human rights in light of the normative presuppositions of what it means to be a speaking and acting agent. Where my account differs from other accounts of human agency is through my claim that acting as a rational agent involves reason-giving by integrating the perspectives of ego and alter. Being able to take the standpoint of the other is necessary to formulate a coherent account of oneself as an agent as a doer as well as a narrator.

3. The Five Puzzles of Human Rights

To further distinguish this discourse-theoretic approach from the traditional-humanistic as well as functional-political views of human rights, let me now turn to the five puzzles of human rights: first, are human rights moral claims or legal entitlements?
3.1. Human Rights: Moral or Legal

There is wide-ranging disagreement in contemporary thought as to whether human rights are moral claims or legal entitlements. Some, such as Michael Walzer, argue that human rights constitute the core of a universal thin morality,15 while others, such as Martha

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Nussbaum, claim that they form reasonable conditions of a world-political consensus.16 Nussbaums method of philosophical deduction, which grounds rights-concepts all too narrowly in a philosophical anthropology of human capabilities is problematic. No distinction is made in her account between rights as moral principles and rights as legal entitlements.17 In my view, rights articulate moral claims on behalf of persons and may even be on behalf of non-human beings, such as animals and the environment, which can be deeply and irretrievably affected by our actions. Although to raise a moral rights claim puts pressure on political and legislative institutions to generate a justiciable legal entitlement, not all such rights claims result in specific legal entitlements. For example, to speak of the rights of endangered species is to raise a moral claim that may eventually be translated into a legal entitlement. Whether this takes the form of forbidding whaling off the coast of Japan or instituting positive measures such as to protect the Bald Eagle in the United States is an open question to be decided upon by democratic peoples. Moral rights do not dictate a specific content to legal entitlements. In Elements of a Theory of Human Rights, Amartya Sen as well18 wishes to consider human rights as primarily ethical demands, which relate to the significance of the freedoms that form the subject matter of these rights.19 Although he refrains from an exhaustive listing of these freedoms, the latter for Sen are actualizations of capabilities, both in the sense of opportunities and also of processes requisite for such capabilities to unfold. By situating human rights so centrally within an ethical theory of freedom and capabilities, Sen disregards the political history of human rights that has always been closely tied to struggles around legitimacy and just rule. Rights do not simply state strong moral entitlements that we owe to individuals; they are in the first place claims to justice and legitimacy that enframe our collective existence. We cannot simply reduce the vocabulary of rights to the language of moral correctness. Violating a right is different than inflicting a moral harm on a person. We can do the latter, that is, inflict moral harm on a person, without engaging in the former, that violating their rights; certainly some violations of rights, but not all, are also forms of moral harm. For example, by humiliating you in front of your family, friends, and loved ones, I inflict moral harm upon your dignity as a person; but I have not thereby violated your human right to dignity, which I would be doing if I were to subject you to torture and other forms of cruel and unusual punishment. All violations of basic human rights, by contrast, that impinge upon the communicative freedom of the person also inflict moral harms. Thus, if I hinder you from exercising your capacity to express your opinion freely within the boundaries set by the law, then I have not only violated your right to freedom of expression, but I have also harmed your moral capacity as a person capable of communicative freedom to engage in dialogue with others. Human rights constitute a narrower group of claims than general moral rights; human rights bear on human dignity and equality; they are protective of the human status as such.20 Clearly, morality involves more than just concepts of dignity and equality; moral systems also entail values such as fairness, human flourishing, and altruism. Human rights do not exhaust the entirety of our conceptions of justice, let alone of morality.21 Human rights have their proper place in discourses of political legitimation. Such discourses presuppose moral principles in the sense that the justification of human rights always leads back to a moral principle of respect for persons. But human rights are most centrally part of a public vocabulary of political justice; they designate a special and narrow class of moral rights.

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3.2. Who is the Human in Human Rights?

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The discourse of human rights which, as the UDHR states, considers all human beings as persons entitled to the same rights regardless of the political, jurisdictional or international status of the country or territory to which a person belongs, is affected by an aporia first identified by Hannah Arendt in The Origins of Totalitarianism (1951). Reflecting upon the condition of the apatrides, the stateless, in the period between the two world wars, Arendt observed that human rights seemed to be most irrelevant and ineffectual when they were most needed, that is to say, when the person was merely a human being without belonging to any territory or jurisdiction that would recognize him or her as its member. The stateless were deprived not only of their rights to citizenship; they were deprived of any human rights. The rights of man and the rights of the citizen, which the modern bourgeois revolutions had so clearly delineated from one another were deeply imbricated, because the loss of citizenship rights, contrary to all human rights declarations, was politically tantamount to the loss of human rights altogether.22 Whereas Arendt herself narrowly identified the right to have rights with the right to belong to and to be recognized as a member of a political entity, clearly the right to have rights is also a moral imperative equivalent to that famously formulated by Hegel in his Philosophy of Right: Sei eine Person und behandle andere als Personen [Be a person and treat others as persons].23 However, what Arendts as well as Hegels reflections reveal, is that the human in the phrase human rights can never be an individual considered in isolation from social relations and social context. To be a person, that is to be entitled to the right to have rights, is to be recognized by others as a being worthy of equal moral respect. The human of human rights is not a zoe but a bios politikos. Admittedly, while Hegels justification of the right of personality involves his metaphysics of freedom, anchored in his philosophy of history, Arendts justification of the right to have rights remains unclear. Rejecting both concepts of nature and of history to serve as adequate grounds for human rights, Arendt placed her faith in the human capacity to establish new political orders in which human equality would be guaranteed by the recognition of each others right to personality. Whether this suggests that Arendts political philosophy is a form of political existentialism or decisionism,24 I will leave aside in this context. It is clear, however, that the language of normative justification is not one that interested her, but one which we cannot ignore.

3.3. Human Rights and Civil-Political Rights

If human rights can only be realized against the background of social relations in and through which we treat one another in accordance with the rights of personality, then what exactly is the distinction between so-called human rights and civil rights of all persons whether as citizens or permanent residents or mere tourists? Consider the following articles of the Universal Declaration: Article 3, Everyone has the right to life, liberty and security of the person; Article 4, No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms; Article 5, No one shall be subjected to torture or to cruel, inhuman or degrading, treatment and punishment; and Article 6, Everyone has the right to recognition everywhere as a person before the law.25 The next 4 articles of the UDHR from 7 to 11 then outline in great detail what we may name principles of civil procedure and equal treatment in the eyes of the law. And perhaps in clear recognition of the fact that what are called human rights are the rights of persons who live in organized political communities, Article 15 declares that
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Everyone has the right to a nationality; and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Human rights articulate moral principles such as dignity, equality, and the recognition of personality, which then assume justiciable Gestalt by being anchored in legal orders in the form of the civil rights of all persons resident upon a territory. Surely, it is the recognition of this truth that eventually led the United Nations to develop an International Bill of Human Rights, divided first into the International Covenant on Civil and Political Rights (ICCPR; opened to signature in 1966 and entered into force in 1976, with 167 out of 195 countries being parties to it as of 2011) and second, the International Covenant on Social, Cultural, and Economic Rights (ICESCR; entered into force the same year and with 160 state parties as of 2011).26 We observe here how human rights as moral principles generate abstract legal norms that are then embedded in specific constitutional orders as civil rights.
3.4. The Meta-Status of the Universal Declaration of Human Rights

In view of the deep transformations introduced into the logic and content of human rights discourse in the more than half a century since the Universal Declaration was formulated, it has been argued that the meta-ethical function of human rights has also changed. Human rights are to be seen neither merely as moral claims nor as legal entitlements of persons but as political and legal principles binding the will of sovereign entities. Defending this view. Joseph Raz has argued that The task of a theory of human rights is (a) to establish the essential features which contemporary human rights practice attributes to the rights it acknowledges to be human rights; and (b) to identify the moral standards which qualify anything to be so acknowledged.27 Raz follows Rawls in taking human rights to be rights which set limits to the sovereignty of states, and boldly claims that their actual or anticipated violation is a (defeasible) reason for taking action against the violator in the international arena . . . 28 This so-called political or functional account of human rights is then distinguished from the traditional approach of Alan Gewirth and James Griffin, which are said to be so remote from the practice of human rights as to be irrelevant to it.29 This critique of the traditional account of human rights has found many adherents. Following Rawls view, first developed in The Law of Peoples, Charles Beitz has also written that human rights are part of a global normative order, defined as a body of norms that are more or less widely accepted as regulative standards for conduct in various parts of global political space.30 This is a practical or a functional conception that takes the functional view of human rights in international discourse and practice as basic.31 The task of a theory of human rights then shifts from justifying and elucidating human rights as normative claims that flow from the recognition of personhood to clarifying those principles that stipulate the moral limits of state sovereignty.32 This novel account of what to expect from a theory of human rights itself generates further puzzles: what then is the status of the Universal Declaration and of the two International Bills of Human Rights? Are they elements of a global public reason the main feature of which is to articulate moral limits on state sovereignty? But if so, doesnt this functional conception of human rights run the risk of encouraging extensive interference and meddling by states in each others affairs? What are the institutional mechanisms for evaluating for establishing when and how the moral limits of state sovereignty have been violated? Isnt it politically dangerous in a world-society of states to treat human rights violations as generating defeasible (Raz) or pro tanto reasons (Beitz) for humanitarian interventions?33
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J rgen Habermas has observed that this functional view of human rights is a deflationary u one, because This new minimalism relaxes the claim of human rights by cutting them off from their essential moral thrust, namely the protection of the equal dignity of every human being.34 But this account is also inflationary, in that in Beitzs words, appeals to human rights, under conditions that will need to be specified, can provide reasons for the world community or its agents to act in ways aimed at reducing infringements or contributing to the satisfaction of the rights in societies where they are insecure. In Beitzs two-level model, states are the primary bearers of responsibilities with respect to compliance with human rights, while the international community and those acting as its agents (are) the guarantors of these responsibilities.35 Yet this manner of stating the problem places the question of intervention and the permissible forms of intervention right at the heart of human rights doctrine. I consider this an extremely problematical move, which side-steps all controversial legal questions about the status of the newly emerging order of international law, let alone spelling out which institutions in the current structure of the world-society are in a position to act as guarantors of such responsibilities. Rather than tailor the function of a theory of human rights so as to make it fit an emergent cosmopolitan legal order the nature of which we still need to clarify, it may indeed be best to proceed with the task of philosophical clarification by facing the difficult questions of the elucidation of human rights themselves and then consider newly emergent and evolving sovereignty regimes. To collapse the two tasks into one is hardly plausible. This is the respect in which the discourse-theoretic account of human rights I defended above, is closer to the traditional than the functional view. Debates about the status of the Universal Declaration of Human Rights, whether it is binding law, and if so, how it is to be enforced, whether it is a mere declaration with moralhortatory intent alone, have accompanied it from the start. In The Strange Triumph of Human Rights, 19331950, the historian Mark Mazower gives a very good account of why the superpowers, and in particular the United States and Great Britain, asserted domestic jurisdiction, and made sure that the human rights provisions of the UN Charter would not be automatically applicable at home. They eventually agreed to the UDHR only because it was a declaration and not a covenant.36 International jurists such as Hersch Lauterpacht and Hans Kelsen, were dismayed very early on that neither the Universal Declaration nor the rights-clauses within the UN Charter made provisions for a court with the authority to adjudicate on rights violations nor allowed the right of petition.37 Yet taken together, the institution of the UN Charter, the UDHR, and the Genocide Convention of 1948, had the cumulative effect of opening the floodgates to petitions from around the world complaining about human rights violations, race discrimination and the like. It would be go beyond this essay to comment on contemporary legal developments that have since then pushed the status of the UDHR from being an international treaty toward being viewed something like a Bill of Rights for a global constitution.
3.5. The Unity and Diversity of Human Rights

The final puzzle I wish to address is closely related to the last one: how are we to think of the unity and diversity of human rights across various constitutional orders? I think that an early but mistaken version of this problem was formulated by John Rawls when he criticized Article 24 of the Universal Declarations listing of everyones right to rest and leisure, including reasonable working hours and periodic holidays with pay. For Rawls, this was a case of misplaced concreteness, we might say.38

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But suppose we reformulate Article 24 as stating that human beings not only have a right to fair and equitable work conditions but that they have a right to work such as does not degrade, impair and damage health and bodily integrity. The issue then is not the right to periodic holidays with pay, but the right to work that assures human beings their health and well-being. Should such a right be considered a human right? Why or why not? Here I agree with James Griffin that, as philosophers, we cannot simply accept or reject the articles of the Universal Declaration as well as those in many other international treaties and covenants without further reflection and critique. James Griffin asks what is the relationship between international law and the best philosophical account of human rights?39 Undeterred by others deference towards international covenants and treaties, he rightly observes that the result of such an examination may be that Some of the items on the lists are so flawed that they should be given, as far as possible, the legal cold shoulder.40 I would also add, however, that as philosophers we may find ourselves faced with the more constructive task of expanding the language of existing rights, and may be even of suggesting new ones. This is the case because the language of human rights moves at various levels. James Nickel is one of the few authors who has noted the multiplicity of levels at which rights vocabulary can function and who has tried to explain the translation of the language of moral principle to that of justiciable rights claims. Nickel writes The rights vocabulary can be used at any of these levels. For example, one might talk at the grand level of the right to equal respect, at the middle levels of the constitutional right to due process, and at the application levels of a statutory right to have thirty days to prepare for a hearing. But the vocabulary of human rights is used most typically at the middle level it is used by nations or international organizations to outline in broad but still fairly definite terms what grander principles of morality and justice require in one country or era.41 There is a legitimate range of variation even in the interpretation and implementation of such a basic right as that of equality before the law. But the legitimacy of this range of variation and interpretation is crucially dependent upon the principle of self-government. My thesis is that without the right to self-government, which is exercised through proper legal and political channels, we cannot justify the range of variation in the content of basic human rights as being legitimate. Unless a people can exercise self-government through some form of democratic channels, the translation of human rights norms into justiciable legal claims in a polity cannot be actualized. The right to self-government is the condition for the possibility of the realization of a democratic schedule of rights. Just as, without the actualization of human rights themselves, self-government cannot be meaningfully exercised, so too, without the right to self-government, human rights cannot be contextualized as justiciable entitlements. They are coeveal: the liberal defense of human rights, understood as placing limits on the publicly justifiable exercise of power needs to be complemented by the civic-republican vision of rights as constituents of a peoples exercise of public autonomy. Without the basic rights of the person, republican sovereignty would be blind; and without the exercise of collective autonomy, rights of the person would be empty.42 By denying the all-too-crucial Article 21 of the Universal Declaration, which guarantees everyone the right to take part in the government of his country, directly or through freely chosen representatives, and stipulates that the will of the peoples shall be the basis of the authority of government,43 Rawls and defenders of the minimalist view, such as Joshua Cohen, destroy this internal relationship between human rights and the right to democratic self-determination.44

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Reason-Giving and Rights-Bearing: Seyla Benhabib 4. Conclusion

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In this essay, I have argued that the discourse-theoretic account of human rights differs both from traditional accounts based on conceptions of human agency and from the functional or political account. Traditional conceptions of human agency are inadequate because they fail to explain why it follows from the premise that some conditions are necessary for me to exercise rational agency that you ought to recognize such conditions as my rights-claims. Alternatively, as in James Griffins account, human rights are seen as protections of our normative agency,45 but then it is asserted that this is a status we have independent of society. The political or functional account of human rights dispenses with a conception of human agency altogether and considers human rights as formulating moral limits of state sovereignty. The strength of the functional view as opposed to the traditional one lies in its institutional realism about the changing status of human rights in an emergent world international order. Its weaknesses are that its institutional realism proceeds all-too-quickly and without much articulation of legitimation problems in international law from human rights violations to humanitarian interventions.46 The discourse-theoretic conception of human rights considers an account of communicative agency as being essential to any defensible view of human rights. Like the political or functional account, the discourse-theoretic account sees human rights as urgent moral claims that require judicialization and legal concretization. Unlike these latter views, however, the discourse-theoretic conception acknowledges that human rights claims also have a morally transcendent purpose in criticizing injustice and oppression, and that this function may well go beyond those rights and only those rights as enumerated in various human declarations and treaties. Yet this morally transcendent critical function of human rights does not lead to a pro tanto justification of humanitarian interventions. The world-society of states is caught indeed in radical transformations of state sovereignty; but the purpose of a theory of human rights is distinct from rendering an account of such transformations that are extremely important in their own right.47 Human rights are fundamental protections of the right to personality (Hegel) in modern polities. They remain the cornerstone for any modern political conception of legitimacy.

NOTES *This is a revised version of a lecture originally held at the Deutschen Philosophen-Tagung in Munich, September 1215, 2011. An earlier version appeared in the Proceedings of the Deutsche PhilosophenTagung. 1. Allen Buchanan, The Egalitarianism of Human Rights, Ethics 120 (July 2010): 669710; here, p. 679. 2. This is what Joseph Raz calls views such as those of Gewirth and James Griffiin, in Human Rights Without Foundations, in The Philosophy of International Law, ed. Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010), pp. 321339. Pablo Gilabert names this the humanistic view in Humanist and Political Perspectives on Human Rights, Political Theory vol. 39, No. 4 (May 2011), pp. 439467. 3. See J. Rawls, The Law of Peoples with The Idea of Public Reason Revisited, (Cambridge, Mass.: Harvard University Press. 1999); Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), p. 13. 4. Alan Gewirth, Human Rights. Essays on Justification and Applications (Chicago: University of Chicago Press, 1982) and A. Gewirth, The Community of Rights (Chicago: University of Chicago Press, 1996); James Griffin, On Human Rights (Oxford: Oxford University Press, 2009). 5. For an earlier version, see: S. Benhabib, Another Universalism. On the Unity and Diversity of Human Rights, in Dignity in Adversity. Human Rights in Troubled Times (Cambridge, UK and Malden,

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Mass: Polity Press, 2011), pp. 5777. The current account differs from the earlier one through the attempt to integrate Robert Brandoms view of reasons into my understanding of agency. 6. Jeremy Waldron, Introduction, Theories of Rights (Oxford: Oxford University Press, 1984), p. xxx . I have also found very helpful, Matthew Noah Smith, The Normativity of Human Rights, (manuscript on file with the author). 7. Immanuel Kant, [1797] The Metaphysics of Morals, trans. and edited by Mary Gregor. Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1996), p. 133. 8. There are some differences among neo-Kantian discourse theorists such as myself and Rainer Forst, on the one hand, who justify human rights philosophically on the basis of the presuppositions of speech-immanent commitments, and Rawlsians such as Joshua Cohen and Kenneth Baynes, on the other, who prefer to see human rights as elements of a political conception of global justice and reason. See Rainer Forst, The Basic Right to Justification: Toward a Constructivist Conception of Human Rights, Constellations, vol. 6, No. 1 (1999), pp. 3560; R. Forst, The Justification of Human Rights and the Basic Right to Justification. A Reflexive Approach, Ethics 120(4) (2010), pp. 711740, and R. Forst, Das Recht auf Rechtfertigung (Frankfurt: Suhrkamp. 2007). For a helpful overview of the philosophical stakes involved, see Kenneth Baynes, Discourse Ethics and the Political Conception of Human Rights, Ethics and Global Politics (2009): DOI: 10.3402/egp.v2il.1938. I am also grateful to Ken Baynes for his comments delivered on my and Rainer Forsts lectures at the Eastern Division of the American Philosophical Association Meetings, Boston, 2010, as Comments on Forst and Benhabib, On file with the Author. 9. Robert B. Brandom, Making it Explicit. Reasoning, Representing and Discursive Commitment (Cambridge, MA: Harvard University Press, 1994), p. 5ff. 10. James Griffins magisterial account [On Human Rights (Oxford: Oxford University Press, 2009). All page references are to this edition.] proposes that we see human rights as protections of our normative agency, (4) but denies that his account is a derivation of human rights from such agency. He thus distinguishes his position from that of Gewirths. But then what kind of an account is the one provided by Griffin? Having listed autonomy, liberty and minimum provision, as the three values of personhood, Griffin then boldly asserts that Our normative agency may need protection only in society (though I doubt that), but it is a status we have independent of society. (51) I fail to see how meaningful accounts of autonomy, liberty and minimum provision are even conceptually articulable without reference to a social context. 11. Hannah Arendt, The Origins of Totalitarianism [1951] (New York: Harcourt, Brace and Jovanovich, 1979 edn.), pp. 2967. [originally published in London in [1951] as The Burden of Our Times]. 12. For an analysis of the two meanings of the right to have rights, in terms of its moral and juridicocivil components, see Seyla Benhabib, The Rights of Others. Aliens, Residents and Citizens (Cambridge, UK: Cambridge University Press, 2004), pp. 5661. 13. See Seyla Benhabib, Situating the Self. Gender, Community and Postmodernism in Contemporary Ethics (New York and London: Routledge and Polity, 1992), pp. 3537. 14. I thank Ken Baynes for this insight and this phrase. See Baynes, Comments on Forst and Benhabib. 15. Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad, (Notre Dame: University of Notre Dame Press, 1994). 16. See Martha C. Nussbaum, Capabilities and Human Rights, in Fordham Law Review (1997 1998), vol. 66, No. 273, pp. 273300. 17. For a more detailed criticism of Nussbaums views, see Seyla Benhabib, Is There a Human Right to Democracy? Beyond Interventionism and Indifference, in Dignity in Adversity. Human Rights in Troubled Times, pp. 7779. 18. See Amartya Sen, Elements of a Theory of Human Rights, in Philosophy and Public Affairs 32, no. 4 (2004), pp. 315356, here p. 333. fn. 31. 19. Ibid. 20. See George Kateb for a lucid account of the distinction between human stature and human status: When we refer to the dignity of the human species, we could speak of the stature of the human race as distinguished from the status of individuals. Human Dignity (The Belknap Press of Harvard University Press: Cambridge, MA, 2011), p. 7. 21. James Griffin, Human Rights: Questions of Aim and Approach, in Ethics 120 (July 2010), pp. 741760; here p. 745. 22. Hannah Arendt, The Origins of Totalitarianism (1979 edn.), pp. 29697. 23. G.W.F. Hegel, Philosophie des Rechts. Die Vorlesung von 1819/20 in einer Nachschrift, Hrsg. Von Dieter Henrich (Suhrkamp, 1983), p. 47.

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24. See Martin Jay and Leon Botstein, Hannah Arendt: Opposing Views, Partisan Review, vol. xlv, No. 3(1978), pp. 348381. This text has been reprinted with no revisions in Martin Jay, Permanent Exiles: Essays on the Intellectual Migration From Germany to America (New York: Columbia University Press, 1986), as Hannah Arendts Political Existentialism, pp. 237257. I have discussed my disagreements with Jay in From the Dialectic of Enlightenment to The Origins of Totalitarianism. Theodor Adorno and Max Horkheimer in the Company of Hannah Arendt, Benhabib, Dignity in Adversity. Human Rights in Troubled Times, pp. 23ff. 25. The Universal Declaration of Human Rights. Available at http://www.udhr.org/UDHR/ default.htm . Accessed December 20, 2011 26. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4& lang=en. Accessed on December 20, 2011. 27. Joseph Raz, Human Rights without Foundations, in The Philosophy of International Law, ed. by Samantha Besson and John Tasioulas (Oxford: Oxford University Press, 2010), pp. 321339, here p. 327. 28. Raz, Human Rights without Foundations, p. 328. In Human Rights in the Emerging World Order, Joseph Raz introduces the notion of the synchronic universality of human rights, meaning that all people alive have them. [In Transnational Legal Theory 1 (2010), pp. 3147; here p. 41]. But then he argues that . . . there is no principled ground for identifying human rights with synchronically universal rights only, (42) since such theories are also said to accept that different people can have different human rights, for they accept that factors other than being human determine which human rights one has (42). Precisely because Raz narrowly identifies human rights as only those that should be respected and enforced by law, he gives up the moral thrust behind the view of synchronic universality. Synchronic universality is an unattainable ideal since human societies exhibit diverse institutional, economic, and geographic conditions. This then leads Raz to conclude that if there is no possibility of fair and reliable enforcement, there is no human right, although there may be some other right (44). This position is quite incoherent, vacillating between a strong view of rights as expressing the world of all human beings (47) and then limiting this strong moral claim via practical considerations of enforcement. 29. Raz, Human Rights without Foundations, 323. 30. Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), p. 209 and John Rawls, The Law of Peoples with The Idea of Public Reason Revisited (Cambridge, MA: Harvard University Press, 1999). 31. Beitz, The Idea of Human Rights, p. 103. 32. Raz, Human Rights without Foundations, p. 331. 33. I address some of these puzzles of humanitarian interventions in Is There a Human Right to Democracy? Beyond Interventionism and Indifference, in Seyla Benhabib, Dignity in Adversity. Human Rights in Troubled Times, ch. 5, pp. 7794. 34. J rgen Habermas, The Concept of Human Dignity and the Realistic Utopia of Human Rights, u Metaphilosophy, vol. 41, No. 4 (July 2010), pp.464480; here p. 478. 35. Beitz, The Idea of Human Rights, the first quote is from p. 106; the second one from p. 108. 36. Mark Mazower, The Strange Triumph of Human Rights, The Historical Journal, 47, 2 (2004), pp. 379398; here pp. 393 and 395. 37. See Hersch Lauterpacht, International Law and Human Rights, pp. 286 ff. Hans Kelsen, The Preamble of the Charter a Critical Analysis, Journal of Politics, 8 (1946), pp. 134159. 38. See Rawls, The Law of Peoples, p. 80, fn. 23 where he calls such Articles of the UDHR, liberal aspirations. 39. James Griffin, Discrepancies between the Best Philosophical Account of Human Rights and the International Law of Human Rights, The Presidential Address, Proceedings of the Aristotelian Society, 101 (2001) pp. 128; here p. 1. 40. Griffin, Discrepancies, p. 26. 41. James W. Nickel, Making Sense of Human Rights. Philosophical Reflections on the Universal Declaration of Human Rights (Berkeley: University of California Press, 1987), p. 44. 42. I owe this formulation to Habermas thesis of the co-originality of public and private autonomy. See J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, Mass.: MIT Press, 1996), pp. 84104. The final sentence refers, of course, to Kants famous formula that Thoughts without content are empty, intuitions without concepts are blind. Immanuel Kant, Critique of Pure Reason, unabridged edn., trans. by Norman Kemp Smith (New York: St Martins Press, 1965), p. 93. Although I am indebted to Habermas general discussions of the relationship between public and private autonomy and his analysis of the discursive legitimation of law, I do not follow his discourse-theoretic deduction of basic rights. Habermas claims that, One begins by applying the

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discourse principle to the general rights to liberties a right constitutive for the legal form as such and ends by legally institutionalizing the conditions for a discursive exercise of political autonomy. (Ibid., p. 121) This deduction if we can call it as such yields a classification of basic rights into five groups: rights concerning individual liberties; rights concerning the status of membership in a voluntary association; rights to the legal protection of the individual; basic rights in which citizens exercise political autonomy and basic rights to the provision of living conditions (social, technological, and ecologically safeguarded) . . . (Ibid., pp. 122123). I dont quite see how one can get at this classification of rights from the introduction of the discourse principle, together with the legal form to yield the idea of democracy. We seem to have already presupposed what democracy means and what democratic citizenship entails. In addition to the circularity of the process of deduction (which Habermas admits, Ibid., p. 122), there is also the problem that this reconstruction of the logical genesis of rights takes the teeth out of the experience of social struggles in history. It is simply not the case that democracy, as a historical institution, always and necessarily presupposes the classification of rights postulated here; nor is it the case that every legal system, which we may be ready to consider legitimate, would need to be subject to this kind classification. I think that Habermas is trying to minimize the conceptual as well as historical indeterminacy of the experience of democracy, by trying to harmonize the liberal conception of individual rights with that of the republican understanding of citizens rights. The co-originality of public and private autonomy must not be interpreted as if it were a historical necessity but rather as a critique of the individualistic, natural right construction of rights which places the holder of rights outside the polity. But beyond this valid point, one should not minimize the potential conflict between the claims of private and public autonomy. See my review of Habermas Between Facts and Norms in the American Political Science Review 91(3) (1997), pp. 72526. 43. See, The Law of Peoples [1993], pp. 55354; The Law of Peoples [1999], pp. 7980. See Joshua Cohen, Minimalism About Human Rights: The Most We Can Hope For? The Journal of Political Philosophy, vol. 12, No. 2 (2004), pp. 190213, here p. 192. 44. For a lucid but unconvincing defense of this Rawlsian position, cf. Joshua Cohen, Is There a Human Right to Democracy?, in The Egalitarian Conscience. Essays in Honor of G.A. Cohen, ed. Christine Sypnowich (Oxford: Oxford University Press, 2006), pp. 226248. 45. Griffin, On Human Rights, quotes are from p. 4 and p. 51 respectively. See also note 10 above. 46. To avoid such interventionism, Joshua Cohen argues that human rights can be seen reasonable conditions of membership and inclusion in all human societies but assiduously distinguishes such membership from the exercise of democratic self-determination rights. See Cohen, Is There a Human Right to Democracy? and my critique, Is There a Human Right to Democracy? Beyond Interventionism and Indifference, in Dignity in Adversity, pp. 8893. 47. For some recent discussions, Cf. Petra Dobner and Martin Loughlin, eds. The Twilight of Constitutionalism (Oxford: Oxford University Press, 2010); J. L. Dunoff and J. P. Trachtman, eds. Ruling the World? Constitutionalism, International law and Global Governance (Cambridge: Cambridge University Press, 2009); J. Weiler, Prologue Constitutionalism Global and Pluralist, in The Worlds of European Constitutionalism. eds. Grainne de Burca and J. Weiler (Cambridge: Cambridge University Press, 2011); Neil Walker, Sovereignty in Transition (Oxford: Hart, 2003); C. Joerges, I. J. Sand and G. Teubner eds. Transnational Governance and Constitutionalism (Oxford: Hart, 2004), and most recently, Jean L. Cohen, Globalization and Sovereignty. Rethinking Legality, Legitimacy, and Constitutionalism (Cambridge: Cambridge University Press, 2012).

Seyla Benhabib is the Eugene Meyer Professor of Political Science and Philosophy at Yale University. She is the recipient of the Ernst Bloch (2009) and Leopold Lucas Prizes (2011). Her most recent publication is Dignity in Adversity: Human Rights in Troubled Times (Cambridge: Polity Press, 2011).

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