Are Human Rights Liberal

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Are Human Rights Liberal?

Alex Gourevitch
Online publication date: 11 November 2009
To cite this Article Gourevitch, Alex(2009) 'Are Human Rights Liberal?', Journal of Human Rights, 8: 4, 301 322
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Journal of Human Rights, 8:301322, 2009
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DOI: 10.1080/14754830903324720
Are Human Rights Liberal?
ALEX GOUREVITCH
This paper provides a liberal critique of paternalistic tendencies in the contemporary

human rights concept. In contrast to familiar arguments that the paternalism of human
rights comes from a false universalism, concealing a culturally specific normativity
or gender inequality, I critique what I take to be the way contemporary human rights
thinking reconceives of the rights-bearer. First, the theory reconceives of the rights-
Downloaded By: [Harvard Law School Library] At: 12:19 6 September 2010
bearing subject not as a self-willing moral agent but as a needy individual whose
vital interests need protection. Second, this reconceptualization of rights opens the
door for a paternalistic political practice, in which an external, third party exercises
the rights rather than the rights-bearing subject himself. Together, these moves are
at odds both with the emphasis in earlier liberal thought on the self-willing moral
agent as the foundation of rights, and with the antipaternalistic politics connected to
this view of the rights-bearer. The thrust of the argument is not that universal human
rights embody a false universalism or have an inherent tendency to violate their own
pretensions to liberty and equality, but rather that there is something problematic in
the generalization of a recent, but predominant, view of the rights-bearer. This critique
bears some similarity with a radical criticism of human rights common today, but, in
contrast to these anti-liberal critics, I wish to show why a liberal should be concerned
with the ascendant way of thinking about the rights-bearer. In the first two sections
of this paper I discuss the modernity of rights and outline the classic liberal view. In
the third section I analyze the way contemporary human rights depart from earlier
liberal conceptions of the dignity of the rights-bearing subject. In the fourth, I discuss
how this reconceptualization has paternalistic implications that liberals should find
troubling.
What could be more liberal than a list of basic human rights? Liberal public intellectuals
widely support the human rights project and human rights have issued in a rejuvenated
liberal political practice of global civil society, international law, and even humanitarian
military intervention. If the Universal Declaration of Human Rights includes social and
economical rights that were not part of earlier liberal documents, like the Declaration of the
Rights of Man and Citizen or the US Bill of Rights, it is often suggested that these newer
rights to food, clothing, housing, medical care, unemployment benefits, and even cultural
participation (Articles 2228) are a natural extension of the early civil and political rights
(United Nations 1948).1
Alex Gourevitch is a PhD student in political theory at Columbia University, and a Tutor in
Social Studies at Harvard University. His research interests include democratic theory, theories of
law and sovereignty, and American political thought. He is writing a dissertation on the revival of
republicanism in political and legal thought, and is the coeditor of Politics Without Sovereignty: A
Critique of Contemporary International Relations (London: Routledge, 2007).
Address correspondence to Alex Gourevitch, Social Studies, Hilles Lower Main Level, 59
Shepard St., Cambridge, MA 02138. E-mail: ahg2102@columbia.edu
301
302 Alex Gourevitch
However, I would like to suggest that the theory and practice of the current human rights
concept departs from the principles of the earlier, natural rights tradition in two ways. First,
the theory reconceives of the rights-bearing subject not as a self-willing moral agent but as a
needy individual whose vital interests need protection. Second, this reconceptualization of
rights opens the door for a paternalistic political practice, in which an external, third party
exercises the rights rather than the rights-bearing subject himself. Together, these moves
are at odds both with the emphasis in earlier liberal thought on the self-willing moral agent
as the foundation of rights, and with the antipaternalistic politics connected to this view of
the rights-bearer. To be clear, the argument here is distinct from other familiar accusations
that liberal rights are paternalistic. Feminists, for instance, have argued that human rights
are paternalistic because they universalize the particular social position of men, or because
the rights-bearing individual is equated with personal qualities historically associated only
with men. A related though distinct version of the argument has it that the social contract
by which these rights are instantiated presuppose an unequal sexual contract between
men and women, in which men are allowed to enter the public sphere and contract as
equals so long as women remain unequal and subordinate. Under the sign of universal
man, human rights legitimate domination of men over women.2 Another line of argument
emphasizes cultural more than gender paternalism. These critics argue that, despite their
claim to universality, basic human rights presuppose culturally specific understandings
of the rights-bearer, especially in how the relationship between rationality and agency is
conceived. Or these rights depend upon a highly abstract, rationalistic conception of political
morality generally. The attempt to universalize these rights is therefore, on this account,
inescapably an exercise in imposing a particular political morality, whose paternalism is all
the more dangerous or dishonest for not being aware of its character as the imposition of a
particular viewpoint.3
In contrast to these familiar arguments, I wish to take a different tack. Instead of
suggesting that the paternalism of human rights comes from a false universalism, concealing
a culturally specific normativity or gender inequality, I critique what I take to be the way
contemporary human rights thinking reconceives of the rights-bearer as a victim rather than
a self-willing agent, and, in so doing, moves away from an earlier liberal tradition. The
implication of my argument is not that universal human rights embody a false universalism
or have an inherent tendency to violate their own pretensions to liberty and equality, but
rather that there is something problematic in the generalization of the predominant view
of the rights-bearer. This critique bears some similarity with a radical criticism of human
rights common today. Marxist philosopher Slavoj Zizek (2007) criticizes humanitarians
for creating a relationship of interpassivity between themselves and the rights-bearer:
the humanitarian acts because the rights-bearer is presumed to be a purely passive victim.
Similarly, Issa Shivji, a radical legal theorist, contends that there is currently a tendency to
recast rights-bearers as victims of human rights violations rather than [as] actors resisting
these violations (1989: 51). In contrast to these antiliberal critics, I wish to show why a
liberal should be concerned with the predominant way of thinking about the rights-bearer.
The path to contemporary human rights is long and complex. In the first two sections of
this paper I discuss the modernity of rights and outline the classic liberal view. In the third
section I analyze the way contemporary human rights depart from earlier liberalism by
reconceptualizing the dignity of the rights-bearing subject. In the fourth, I discuss how
this reconceptualization has paternalistic implications that one kind of liberal may find
troubling. I conclude with the thought that we can think of the identified problem as a
tension within liberalism, but one that is inadequately resolved in the contemporary human
rights concept.
Are Human Rights Liberal? 303
Rights and the Rights Bearing Subject

Surveying the intellectual terrain of human rights theory a few years ago, international
relations scholar David Chandler wrote, what was lost in the promulgation of human
rights theory in the 1990s was the connection between rights and subjects who can exercise
those rights (2002: 114). Chandler (2002: 9194) saw this as a departure from the view
that human rights are grounded in the moral agency of the individual and exist to protect
this agency.4 His argument agreed with a long line of thinking in which the extension of
active rights entails a recognition of individuals as possessing the qualities of a rational,
self-willing person. As Richard Tuck puts it, any theory
which stresses the idea of an active right will tend to have at its heart the idea
of the individuals sovereignty within the relevant section of his moral world.
It will also tend as a consequence to stress the importance of the individuals
own capacity to make moral choices, that is to say his liberty (1979: 67).
Similarly, Jeremy Waldron has argued that the attribution of any right is always connected
to a recognition of the individuals moral agency: the idea of rights is based on a view of
the human individual as essentially a thinking agent, endowed with an ability to deliberate
morally(1998: 330). The alternative view to the active conception of right is the passive
conception. It holds that what is foundational to human rights is not the liberty of the rights-
bearer but the interests rights protect. Here, human rights draw boundaries around the vital
interests all human beings have as human beings. The rights-holder is defined not by his
capacity for choice but by the fact that he has certain fundamental, inviolable needs. To get
a sense of what is at stake in these competing conceptions, we must examine more closely
what the differences are between these two views of rights, and where liberalism stands.
The idea of right is a historical achievement. As Richard Tuck has shown (1979: 157),
although Roman law possessed notions of ius and dominion, each aspects of what we take to
be a right, the idea of a claim an individual had against the state by virtue of his subjectivity
and dignity was a modern idea. It evolved out of debates over natural law amongst early
modern theologians and philosophers; debates grounded in political and social experiences,
such as feudal land ownership, the slave trade, and political revolution. The development
of the modern right was not uniform. It brought with it deep disagreement over whether
the moral agency of the rights-bearer was fundamental or remedial. The moral agency of
the rights-bearer can be fundamental in two related ways. First, it can be fundamental in the
sense that one can be a rights-bearer only to the degree that one is a moral agent. Second,
it can be fundamental in the sense that natural rights aim exclusively at securing the liberty
of the rights-bearer. Liberty is their telos. These two foundational premises can be held
conceptually distinct because it is possible to imagine a theory in which basic rights aim
at protecting something besides liberty (i.e., welfare), but to be a rights-bearer one must
possess moral agency. However, for the most part these two senses of being fundamental
are two sides of the same coin. Assigning the individual the status of a rights-bearer is to
recognize him as a moral agent and also to confer upon him a specific set of rights that
protect that freedom.
The distinction between rights-bearing capacity and the telos of rights illuminates
something important about the way the fundamentalist views the relationship between
rights and agency. It is not just that the list of natural rights must be appropriate to the
protection of individual freedom. The natural in natural rights refers to a philosophical
anthropology, not just an empirical fact about the rights-bearer. It suggests that what
304 Alex Gourevitch
is distinctively human is to be a moral agentit is mans nature. To confer rights is

therefore to grant the rights-bearing subject the status of a human being. In a society based
on this view of rights, this is no small thing, as institutions are arranged and expectations
grounded on the assumption of moral agency. Individuals recognize each others liberty
and acquire their own through the mutual recognition of and respect accorded to their
rights. If the granting of rights recognizes an already existing capacity for moral agency,
by entrusting the rights-bearer with his rights, he is therefore made free in a way he would
not be otherwise. Rights constitute individuals as a particular kind of political subject:
free and equal rights-bearing citizens (Donnelly 2003: 16). This constitutive dimension
of basic rights is as important to the fundamentalist view as the ways in which specific
liberty rights protect the rights-bearers freedom. In this full sense, then, the moral agency
of the rights-bearer can be fundamental.
The moral agency of the individual can be remedial in relation not to the telos of the
rights but in reference to their effective use. Here, rights might protect the individuals
welfarelike a right to food or proper nutritionnot his liberty. It may nonetheless be

up to the rights-bearer to exercise this right as he sees fit because it is through his agency
that the end for which the right exists can best be met. As we shall see, this may have
been Lockes view of the right to self-preservation. Agency is not the telos of the right but
enters in the interpretation and exercise of it. It is of course possible for rights to be both
remedially and fundamentally connected to liberty. Rights can be seen to attribute liberty
to the individual, to protect this liberty, and to be up to the individual to use as he sees
fit. At times, it may be possible to allow a third party to determine when a right should
be exercised while retaining respect for the liberty of the individual. Nonetheless, it does
generally tend to follow from the liberty view that the rights-bearer retains control over the
exercise of his rights. It would be difficult to see how it could be otherwise. How could
the right to free speech meet the demands of liberty if the rights-bearer was not allowed to
decide what to say? The opposite, however, is much less the case. Later we shall see that
once the moral agency of the individual is no longer fundamental, it also tends not to be
remedial, with paternalistic consequences.
The Classical Liberal Conception

Before moving to contemporary theory, it is necessary to establish what I see as the classical
liberal view of natural or human rights and the rights-bearing subject. Classical liberal
political morality was fundamentally connected to a view of individual liberty. Since Locke
has been so often claimed by the liberal tradition, I will focus on him, though not exclusively.
The Lockean rights-bearing subject is a rational, self-willing agent, disposing of his rights
as he sees fit:
The Freedom then of man and Liberty of acting according to his own Will, is
grounded on his having Reason, which is able to instruct him in that Law he is
to govern himself by, and make him know how far he is left to the freedom of
his own will. (1996/1689: 309)
This individual enters civil society by consenting to alienate his natural right to judge in his
own case and by establishing positive law and government to settle conflicts. Each enters
this contract in order better to protect his freedom to exercise his rights as he lists: a
Liberty to dispose, and order, as he lists, his Person, Actions, Possessions, and his whole
Property, within the Allowance of those Laws under which he is (306). However, not all
rights are alienable or conceived of as his property. The right to self-preservation cannot
be alienated, which is why an individual cannot sell himself into slavery or give to the
state the power to kill him (283285). Some rights, then, are like property, but one or two
are not. Overall no individual can properly be said to have these rights unless he has the
rational capacity to act according to his own will. So far it would seem moral agency is
fundamental. It defines the rights-bearing capacity and is the end that natural rights seem
to protect. Restrictions on the alienability of rights (i.e., agency) seem designed to secure
the individuals liberty.
However, Lockes argument is considerably more complex than that. For example, in
the chapter on the State of Nature, we read that because men are all the Workmanship of one
Omnipotent, and infinitely wise Maker. . . they are his Property. As such, each is bound
to preserve himself (1996/1689: 271). The emphasis on self-preservation suggests that the
welfare, not liberty, of the individual is fundamental. In the chapter on property, Locke
repeats that Men, being once born, have a right to their Preservation, and consequently
to Meat and Drink, and such other things, as Nature affords for their Subsistence (285).
Here again self-preservation or welfare appears fundamental. It even appears that all
other rights are derived from the basic, natural right to self-preservation. Is this an origin
from which a liberal can trace the welfare rights (food, health care, etc. . . ) in the Universal
Declaration of Human Rights?
It is always dangerous to force a complex thinker like Locke into strict interpretive
categories. Nonetheless, even these ostensible welfare rights are tightly linked to agency.
At a minimum, there is a remedial connection between the natural right to self-preservation
and individual agency. Locke places special emphasis on the idea that the individual has
a duty to preserve himself through his own agency. Self-preservation is both a right and
a dutyman is bound to preserve himself (1996/1689: 285, emphasis added). Further,
in developing his theory of property, Locke rejects the interpretation that men own the
land as a shared, divine gift. If the land is given to Men for the Support and Comfort
of their being, it is given to nobody in particular (285). There must of necessity be a
means to appropriate [Natures gifts] some way or other before they can be of any use, or
at all beneficial to any particular man (286287). The land only serves human well-being
and holy purposes, through human industry, with each individual responsible for his own
preservation.
What is of specific interest here is the idea that human beings, through their reason, will,
and labor can bring the natural world under their control. It is this process of conscious
transformation of their environment that expresses uniquely human capacities for free
agency. The right to property derives from the agency of the individual combined somehow
with the right of self-preservation. Strictly speaking, the agency of the individual may only
be remedial, in that the end purpose is still his well-being, while individual choice is the
best path to happiness. But it seems that Lockes main interest in Chapter V is to elevate
the creative potential of an individual able to use nature to his own ends. Locke implies
that the truly dignified life is one of autonomous self-creation, of relying on oneself to
meet ones own needs. Agency is in this sense fundamental, not remedial. Lockes use of
the language of self-preservation incorporates this emphasis on agency in a way that later
notions of welfare do not, and it does so by suggesting agency is both a means and end
of the principle of self-preservation. It is not merely the best way of satisfying ones needs
but also that self-preservation, or exercising ones own creative powers, is an end in itself.
Moreover, the fact that money seems to transcend the scarcity and waste provisions of the
law of nature,5 and that Locke says little about the possible need for welfare provisions
306 Alex Gourevitch
under conditions of capital accumulation suggests that by the end of Chapter V welfare is
less fundamental than liberty. Locke says little about duties to those who cannot survive
by their own efforts and what welfare rights they might derive from the original right of
self-preservation.
This interpretation of Locke is of course not airtight. If agency is important, it might
still be that welfare is fundamental. Lockes insistence that man is Gods work and his en-
dorsement of the principle of self-preservation is difficult to avoid. Yet, Lockes restrictions
on who may be a rights-bearer reveal how central the rational, self-willing agent is to his
political theory. Locke famously excludes Idiots and Lunaticks from full rights-bearing
status. Children, too, cannot have rights because, if all men are born Free as they are
born Rational, they do not have actually the Exercise of either until they come of age.
Lacking any Will of his own because he has not Understanding (306), the child is
legitimately subject to paternal power. He cannot claim his rights till he come to Age of
Discretion (347). Then and only then is he a true rights-bearer.
If some might still not be convinced of this interpretation, what exists as a tension in
Locke becomes less of one in later liberal thinkers. They more explicitly reject the idea that
natural rights aim at individual welfare. Kant, for instance, made clear that the system of
right stood in opposition to the principle of happiness. The purpose of rights is to create the
space for the individual freely to pursue his own ends. As Kant says, right
does not concern the relationship between the will of one person and the
desires another (and hence only the latters needs, as in acts of benevolence or
hardheartedness); it concerns only the relationship between the will of the first
and the will of the second (1991/1785: 133).
Respect for the rights of another is to be concerned not with his welfare but with his
freedom, regardless of whether he exercises his rights in his own best interest or not. This
idea of respect is derived from the notion that to treat an individual as an end is to respect
his autonomy. A society based on rights is a society governed by a system of liberty: it lives
in accordance with a universal law of freedom (133).
Kants parenthetical reference to benevolence and hardheartedness above identifies
action oriented to the welfare of others as outside the domain of rights. Acting out of
benevolence introduces a paternalistic moment into the relationship between two wills
by violating autonomous choice. Here is one way to understand the Lockean conundrum
discussed above and the duty to self-preservation amongst early liberals. That duty is also a
duty to the system of liberty. If an individual fails to support himself, then he not only fails
to use his self-creative capacities but he also introduces the need for a paternalistic power
to provide for him. Insofar as this includes not just family and private charitable institutions
but also engages the state, the individuals failure disturbs the system of liberty. Kant says
the sovereign wants to make people happy as he thinks best, and thus becomes a despot
(1991/1793: 83). Hegel, who thought freedom the worthiest and holiest thing in man,
seems for similar reasons to have thought that self-preservation was both a right and a duty
(1991/1821: 277).6 When a mass of individuals fail to support themselves it destabilizes a
society based on right.7 Welfare violate[s] the principle of civil society and the feeling of
individual independence. . . in its individual members (150).8
It is worth noting that some early liberals did accept certain forms of welfare pro-
vision, so long as it did not conflict with the recognition of individuals as free beings.9
Even then, they did not suggest this provision of welfare was a basic right.10 In the lib-
eral tradition, then, liberty is fundamental to rights even when it comes to the question
of self-preservation. The duty to self-preservation derives from an interest in individual

autonomy but also from a duty to the system of liberty and the rights of others. To be clear,
the point is not that there is neither interest nor concern with human welfare, nor with the
preconditions for liberty in these thinkers. Rather, they sought to expose what is inadequate
with simply attending to a persons needs. In a sense, they placed a greater burden on well-
being, identifying it not with meeting a persons needs, but with creating the conditions
within which it is possible for the individual to meet his needs through his own agency.11
Early liberals assumed that all one needed was equal legal rights because there were oppor-
tunities for everyone if they exercised enough effort, but that was a social assumption. To
the degree that positive acts were needed to create conditions for self-preservation, or that
needs would have collectively to be met, the determination of these needs and how they
are to be provided would have to be done in a way that could still be tracked back to the
individuals agency. Positive acts of democratic legislation in which individuals participate
would be one obvious example of this. The point being that what is at stake here is not
primarily the content of the rights, but what it means to recognize an individual as a rights-
bearer, and what it means for him to be worthy of being called a rights-bearer in the first
place.
The purpose of the preceding discussion has been to establish that the liberal conception
of right is grounded in a view of the rights-bearer as a moral agent. He is free to use his rights
as he pleases, provided he does not infringe the rights of others and does not violate certain
precepts of reason. The individual creates his own moral and social relations through the
exercise of his rightsby consenting to private arrangements and to political institutions.
That he chose them is what matters, not that the specific rights and obligations he has
created in relation to others are particularly good for him; although it is also assumed the
individual best knows what is in his interest. Here we see how the language of rights is
fundamentally connected to individual liberty, and why some other moral language, such
as of virtue or charity, is inappropriate. A duty or obligation may be owed in virtue of the
moral value of the specific action performed, regardless of whether the beneficiary of the
act wants said duty fulfilled. But rights are respected insofar as they respect the individuals
capacity for choice.12
The Contemporary, Human Right

The previous discussion set the stage for a comparison of the liberal and the contemporary
understanding of human rights. By contemporary I mean broadly the postwar conception
of human rights enshrined in the Universal Declaration of Human Rights. Contemporary
is appropriate because these human rights have become especially significant objects of
theoretical and political interest in the post-Cold War period (Sellars 2002; Chandler 2002).
The theoretical shift I intend to contrast to the earlier liberal view centers around the
dominant interpretation of the dignity provision in Article 1 of the Universal Declaration.
It states all men are born free and equal in dignity and rights (United Nations 1948).
Here rights aim at protecting human dignity. A dignified life includes having a degree
of liberty, enshrined in the civil and political rights of Articles 121, as well as in the
International Covenant on Civil and Political Rights (United Nations 1966). But a dignified
life also includes enjoying a certain amount of well-being, instantiated in the list of welfare
rights in Articles 2228 that include social security, leisure, food, clothing, housing and
medical care and necessary social services (Article 26), unemployment benefits, education,
and cultural participation (United Nations 1966, 1976). Therefore, on the contemporary
308 Alex Gourevitch
interpretation, rights are not fundamentally about human liberty. Rather they protect a set
of vital interests defined by what it means to live a dignified life. Liberty does not disappear,
but it is displacedit is, on the contemporary view, but a component of the dignified life
not its essence.13
The contemporary discussion of human rights has been informed by a rebirth of the
question of active versus passive rights. This is a debate internal to liberalism, in
the sense that it dates back to Benthams analysis of rights and their correlative duties.
The underlying question in this debate is whether rights really are a distinctive language
whose central feature is the attribution of liberty to the rights-bearing subject. After a brief
discussion of the rehabilitation of the Benthamite critique, I shall examine the way in which
H. L. A. Harts choice-theory of rights has given way to the interest-theory of thinkers
like Joseph Raz and Neil MacCormick. This theoretical shift clarifies what is at stake in the
contemporary human rights concept.
Jeremy Bentham famously proclaimed natural and imprescriptible rights. . . nonsense
upon stilts (1987: 57). He thought there was a confusion between the reason for wanting
a right and its existence. The only rights that existed were those legal rights instantiated in
positive law. These rights could refer to anything useful to human beingsbread or liberty.
The defining feature of a right was that it correlated to a duty, not that it was grounded in
human agency. This formal analysis was taken up in the twentieth century by Wesley N.
Hohfeld in his Fundamental Legal Conceptions (1919). Hohfeld sought to cut through the
morass of confusing ways in which the concept right was used by employing a kind of
Benthamite reduction of right into a series of correlatives: claim-right:duty, liberty:no-right,
power:liability, immunity:disability (1919: 36). Hohfeld believed this reduction of the many
uses of right to a series of subcategories would clarify the law, while preserving a more
specific and useful meaning for the term right. The consequence of Hohfelds reduction,
however, was also to suggest there is no fundamental connection between the concept of
right and individual liberty. Right was a derivative category. It was derivative of whatever it
is that the specific right in question protects, which is itself a product of a political decision
instantiated in positive law. In the 1970s and 1980s, thinkers like Joseph Raz and Neil
MacCormick took this view further, especially with regard to the question of what rights
protect. In developing an interest-theory they insisted on the derivative character of rights,
arguing that rights protect the interests, however defined, of the rights-holder. For them,
rights are a middle-term between a moral-philosophical specification of vital individual
interests and the duties these needs impose on others. Rights correlate with duties and
protect interests. They are not fundamentally connected to liberty, although they may be so
remedially.
The interest-theory was a challenge to an earlier view of rights, championed by H. L.
A. Hart in his 1955 essay Are There Any Natural Rights. Harts choice-theory argued for
a more fundamental connection between rights and agency, articulating at the theoretical
level what was an argument over whether only political and civil rights should be considered
human rights, or whether economical, social, and cultural rights should be included. In his
essay, Hart argues that all moral rights presuppose and are restricted to one natural right,
the right to liberty. Individuals have this right, according to Hart, if they are capable of
choice and regardless of whether they belong to any given society (1955: 175). Rights,
then, are fundamentally related to moral agency in at least one way: that man has a rational
capacity for choice makes it possible for him to enter into relations with other men on
a voluntary basis. Hart follows the early liberal view in arguing that talk of the rights
of animals or babies. . . makes an idle use of the expression a right (181). The reason
Hart emphasizes the capacity for choice is because he views moral and legal rights as
principles regulating the proper distribution of human freedom and the use of coercion
to secure this [distribution] (178). That is to say, because rights impose various duties on
others, they therefore give the rights-holder a certain degree of power over the freedom of
others. The duty-bound can be coerced to respect the rights of the individual, should the
rights-bearing individual so choose.
There is something of an elision in the argument so far. It assumes that to be a rights-
holder is also to be the one who decides when and whether rights will be exercised. That is
to say, Hart imagines a remedial connection between moral agency and rights: regardless of
whatever the right is, it is the rights-holder who exercises it. Rights possession and executive
capacity exist in the same individual. Yet Hart also seems to believe that liberty is the telos
of rights. Rights are negative because the action [the rights-bearer] is entitled to require of
another is not grounded in some moral quality of the action. Rather, it is defined by the
fact that the rights-bearer by his choice is allowed to determine how that other shall act
(178). Harts argument is Kantian. The moral value of the duty some individual is bound to
perform derives not from the good performing the duty brings about but from respect for
the rights-holders autonomy. Regardless of whether the rights-bearers exercise of rights
is in his interest, what deserves respect is that the choices are his own. For Hart, then, it
is the ability freely to form social relations and to pursue ones own ends that deserves
respect. From this Hart deduces a set of general rights (the standard civil and political ones)
because they protect this ability to create special rights through private contracts and public
participation. Individual liberty is therefore the fundamental aim of general rights. It is also
indirectly the telos of specific rights, insofar as their invocation presupposes general rights.
In all, Hart suggests rights are both fundamentally and remedially connected to individual
agency. A rights-bearer must have the capacity for choice, his rights exist to recognize
and protect that liberty, and it is therefore for the individual to decide how and whether to
exercise his rights.
Contemporary theorists of human rights are not uniform, but they tend to reject Hartian
choice-theory. They have done so in part because, as the idea of economical, social, and
cultural rights has become entrenched, it has been difficult to theorize them in the same
terms as political and civil rights. It has been easier to argue that human rights are attributed
to human beings in virtue of their dignity rather than liberty.14 This has changed the notion
of right from one that is abstract and negative, grounded in the individuals capacity for
choice, to one that is positive and concrete, grounded in an a priori list of goods necessary
to preserve the dignity of a human life. On this view, the rights-bearer is identified by the
fact that he benefits from the performance of those duties that correlate with his rights, in
this case, the provision of those goods necessary to live a dignified life. His rights, in turn,
are defined by the fact that they protect his dignity. It is this theoretical shift that allows
rights to be redefined to include a whole host of new rights beyond the political and civil
rights.
The contemporary human rights concept tacitly relies on theories of right expounded
by theorists like Joseph Raz and Neil MacCormick. Raz argues that an individual can have
rights if an aspect of [his] well-being (his interest) is a sufficient reason for holding some
other person(s) to be under a duty (1986: 166). From this point of view, if one looks at any
given right, one will see that correlative to the right of the rights-holder is some set of duties
that others must perform. They may simply be the negative duty not to interfere with the
rights-holder when, for instance, he speaks in public. Or these duties may be positive, such
as to supply the needy with an adequate amount of food. Either way, the essential feature
of these rules is that they aim at the protection or advancement of individual interests or
goods (166).
310 Alex Gourevitch
On this interest-theory account, the rights-bearer does not have to be any kind of moral
agent. Rather, as Raz sees it, An individual is capable of having rights if and only if
either his well-being is of ultimate value or he is an artificial person (e.g. a corporation)
(1986: 166). The question of whether the rights-bearer is of ultimate value, and whether an
aspect of his well-being is sufficient reason to protect it with a specially designated right, is
dependent on the background moral theory deployed. Should the moral theorist conclude
that children are of ultimate value then they may have rights. In his Childrens Rights: A
Test-Case for Rights, MacCormick directly embraces this view (1982). Moreover, being a
rights-holder does not necessarily mean one understands ones rights or, as Waldron puts it,
that one is a rights-thinker (1998: 331), nor that one has any power over exercise of ones
rights. There is no inherent or central connection between rights and individual liberty.
All that matters is that the rights-bearer benefits in the specified way from the duty that
correlates with his right. To be sure, Raz and MacCormick insist that there may be good
reason to allow the rights-bearer to have the power to exercise his rights. But, crucially, as
MacCormick notes, the relationship between choice and right is remedial or ancillary: I
would strongly contend that powers of waiver or enforcement are essentially ancillary to,
not constitutive of, rights (1982: 164, 208; 1977: 204). That is because, on this view, the
fundamental purpose of conferring rights is not to enable the rights-bearer freely to pursue
his idea of the good, but rather the protection or advancement of individual interests
or goods (1977: 192). In other words, rights are fundamentally connected to the moral
philosophers conception of the good, not the individuals. The remedial relation to agency
is established only when allowing the individual to act freely best furthers the interests
rights protect.
It is not hard to see the attractiveness of this theory for human rights. It makes it much
easier to argue for something like a right not to be tortured than the will-theory. After
all, if a right can only be exercised by the rights-bearer, then what are we to do about the
individual being tortured? He is in no position to assert his rights, but does that mean there
is no violation of his rights? This seems to be the thrust of MacCormicks problem with the
will-theory. He worries that the will-theory might be a way of understanding why a boxing
match or risky and painful surgery is acceptable but
it is rather bewildering to suppose that none of us has a right not to

be . . . grievously assaulted simply because for various reasons of policy the
law denies us the power to consent to these graver interferences with our
physical security. (1977: 197)
Moreover, the interest-theory is capacious. It can encompass rights to education or cul-

tural participation. While on the will-theory individuals may use their civil and po-
litical rights to demand legislation providing everyone with an education, there is no
guarantee that this will come about. For an interest-theory conception of human rights,
however, these rights are fundamental to any individual living a dignified life, regard-
less of what the political process may produce. On this account, the interest-theory
seems better suited than the will-theory to respecting individuals as beings of ultimate
value.
There are, however, a number of reasons to believe a liberal would object to this view.
First, it is not clear that the interest-theory can do justice to the notion of right itself. If
rights can be reduced to duties or are an intermediate step between a theory of the good and
its prescribed duties, then why use the language of rights at all? In response, MacCormick
suggests that the concept of right is useful because it is able to condense what can sometimes
be a very complicated arrangement of commands and duties into a simple statement of right.
Even if all these different provisions could be restated purely in terms of the imposition
of duties and the conferment of powers. . . it would be of no advantage for the practical
comprehension of the law (1977: 207). On its own, this argument does not tell us why we
would use the language of right. But the interest-theorist might add that rights-talk tells
us about the individualized rationale of duties. A specific persons right is the reason for
another(s) duties and makes it clear that that duty is owed to the specific rights-holder.
Thus rights are specially well suited to securing the value of each individual.15 Indeed,
MacCormick and Raz both suggest that using the language of right is useful because it
carries with it a certain peremptory force appropriate for weighty issues. If the purpose is
to protect fundamental interests, then why not use the most powerful tool in the moral tool
shed?
Yet a classical liberal could justifiably complain that this argument is parasitic on a
more active, will-based theory of right. What accounts for the already existing moral force
of the notion of right is its connection to individual liberty. The interest-theory piggy backs
on this exterior determination, while detaching it from its moral foundations. MacCormick
seems to recognize this objection when he admits that the interest-theory enters to some
extent in the realms of stipulative definition. But he counters that an aspect of the will
theory seems to go wholly against common understanding (1977: 196197). There is
something valid in MacCormicks appeal to common understanding. One can find rights
on the books that protect interests having little direct relation to liberty and that can be
enforced and respected without the rights-bearer choosing to exercise them. Perhaps what
makes rights distinctive is not their fundamental connection to liberty. Rather, rights carry
their force in their formal properties as claims on others. Yet if this touches one dimension
of the common understanding of rights, particularly how they operate in the law, it does
not adequately address why rights have such peremptory force. There is still a way in
which the interest-theorists exploit the rhetorical power of rights, while separating them
from their foundations in liberty. After all, Hart too appeals to common understanding to
argue for his position. He says rights are typically conceived of as possessed or owned by
or belonging to individuals, and these expressions reflect the conception of moral rules as
not only prescribing conduct but as forming a kind of moral property of individuals (1955:
182).
This typical conception of rights as a form of property is not accidental within lib-
eralism. It is a product of the emergence of a certain view of the Subject as an au-
tonomous, self-directing agent asserting his freedom as the rightful basis of social and
political institutions.16 Within liberalism rights are given this significance in the political
experience of claiming rights against the state, and of developing a conception of human
rights as a theory of government. Rights articulate a conception of political legitimacy in
which political institutions must derive their authority in some way from the will of those
they govern. The limits of interest-theories are that they look at rights only as the product
of political decisions instantiated in law. From that perspective, rights appear to protect
any kind of interest, and individuals potentially can have these rights without necessarily
deciding on their exercise. We can observe empirically laws in specific societies that give
children rights. While they appear as a kind of nonsense to will-theorists, they are easily
understood as rights from the interest-theory perspective. However, this way of thinking
about rights fails adequately to address the role they play in a theory of political legitimacy.
Rights are a question of political, not just legal, philosophy.17
It is for this reason that a liberal might be troubled by the way the current human rights
concept is more closely founded in an interest-theory of rights. Liberals have been most
312 Alex Gourevitch
concerned with ensuring that existing social and political arrangements derive their authority
from the will of the individual and protect that individuals freedom. The modern conception
of right was developed expressly for that purpose.18 In this sense, Harts will-theory is truer
to classic liberalism than Raz and MacCormicks interest-theory. Hart identifies rights with
the notion that social and political arrangements should be organized on a voluntary basis,
in which individuals determine for themselves what constraints to place on their freedom,
rather than around a specific conception of the good. Hart makes the familiar Kantian,
antipaternalist argument that it is
important for the whole logic of rights that, while the person who stands to
benefit by the performance of a duty is discovered by considering what will
happen if the duty is not performed, the person who has a right (to whom
performance is owed or due) is discovered by examining the transaction or
antecedent situation or relations of the parties out of which the duty arises.
(1955: 181)
If the voluntary character of the bond between the rights-holder and the duty-bound, not
its contribution to anyones well-being, is to be honored then the morally relevant aspect
is the moment of consent. That is why the duty is owed to the original consenting person,
not the beneficiary. Rights are not privileges that one inherits at birth by tradition or social
standing; rather they emerge out of the free relations amongst individuals.
It is notable that on the interest-theory, it is often not clear who the duty-bound
individual is. Who has the duty to ensure that the Bolivian peasant has his universal human
right to food security fulfilled? This ambiguity arises because the political agent and the
rights-bearing subject have been separated. Henry Shue suggests this ambiguity is not
so much a problem as an opportunity. The reason for creating political institutions like
the United Nations, or for the existence of states, is that they are able to mediate the
relationship between the millions of hungry peasants and the mass of humanity that has a
duty to provide food. Where an individual has trouble identifying the proper rights-holder
or performing his duty as an isolated being, institutions can pool individual resources in
effective ways, thereby helping the various duty-bound individuals to perform their duties,
though indirectly or mediately. Such institutions also make it easier for rights-holders to
claim their rights, as there are identifiable institutions responsible for the protection of his
rights (Shue 1988: 687704).19 Later I shall suggest that this way of viewing institutions
is potentially problematic for a liberal because it substitutes moral legitimacy, in terms of
duties fulfilled, for political legitimacy, in terms of consensual authorization of power. In
turn this leads to illiberal, paternalistic practices.
There is a further reason why the ambiguity of who is bound by anothers rights is a
problem for a liberal. What is crucial is not just to avoid paternalism but to make relations
of power transparent. Liberals have sought to avoid any mystification about the nature of
social arrangements, especially so they can identify and judge the use of coercion (Waldron
1993: 4346). Liberals are therefore highly sensitized to the fact that someone must have
the power to exercise rights and to coerce those bound to respect those rights. The virtue of
the will theory from the liberal standpoint is that it seeks to identify the will or power behind
any exercise of right and to connect the legitimate ability to exercise power in the name of
rights back to the rights-bearer. The will-theory starts from the recognition that the exercise
of right is always political, not least because it entails the limitation of others freedom. On
this account, the greatest flaw of the interest-theory is that it tends to sidestep the question
of who is exercising the right; a problem enhanced by the institutional ambiguities on
the global stage. Although the interest-theory makes the beneficiary appear as the rights-
bearer, the real agent is the interpreter of the duty. For the liberal, this enforcing agent is
an unaccountable third party whose identity remains disturbingly vague. Shues mediating
institutions are imagined as automatically applying moral rules or enacting duties rather
than making political decisions to exercise rights. In the human rights field, these mediating
institutions (nongovernmental organizations [NGOs], coalitions of the willing, international
organizations) claim to speak on behalf of those who cannot speak for themselves and to
protect the rights of those who cannot protect themselves. The quixotic consequence is that
human rights do little to empower the rights-holder but to give a great deal of power to
the mediating actor. Since this third party is never clearly identified, we are left with little
theory about why that party should be the one authorized to speak and act on behalf of the
rights-bearer.
It is true that some analogous ambiguities can arise in the case of the will-theory. It may
not always be clear who is supposed to recognize or enforce the rights one might claim on
the will-theory, say when a persons right to free speech is threatened. There are two things
to emphasize here. First, who is authorized to claim or exercise a right, on the will-theory,
is the rights-bearer himself. An important ambiguity about the nature of power, present
in the interest-theory, is eliminated here, because the will-theory does not separate power
and agency, and therefore introduces an undertheorized third party into the relationship.
Indeed, as a revolutionary concept, some classical rights-theories, from which the will-
theory draws, transformed rights-bearers into the claimants and enforcers of their rights; it
was in the act of claiming the right that it really existed as the rights-bearers right in the first
place. Second, the will-theory has a different kind of answer from the interest-theory when
it comes to the question of who is duty bound to enforce or recognize an asserted right. On
the will-theory, it is a relevant part of the theory not just that the individual right be protected
or enforced but that it be respected in a way that maintains a certain kind of relationship
between the rights-bearer and the enforcer. This is one of political legitimacy or consent
and therefore implies a kind of institutionalized relationship between the rights-bearer and
the duty-bound individual or institution. On the interest-theory, the relevant issue is that
the rights-bearer benefit from the enforcement of the right. The logical emphasis is thus on
the sheer capacity to protect that interest in that situation, which means effectiveness, in the
relevant situation, matters more than background conditions of institutionalized consent. In
at least this limited sense, the will-theory can provide a better sense, not just of who the real
rights-bearer is but who the duty-bound enforcer is: it is not just someone able to protect
an interest but someone able to do so in a way that maintains a specific kind of relationship
between the rights-bearer and the agent of power.
Liberal Antipaternalism and Human Rights

From the foregoing discussion, it appears that there may be something paternalistic about
the politics of the interest-theory, in general, and contemporary human rights, in particular.
In this last section, I shall pursue this line of thinking a bit further and suggest that theories
of rights that make agency fundamental are associated with more democratic forms of
politics, while the interest-theory tends towards paternalism. There are those who argue
that any theory of human rights conflicts with democracy at some level because human
rights are presented as a priori moral restrictions on political action. I cannot address that
claim fully, but the issue is more complicated than that.20 It matters how human rights are
conceived.
314 Alex Gourevitch
The classic liberal understanding of legitimacy, that legitimate institutions are those
that protect rights, is a complex idea. In classic liberalism, it signifies a relative separation of
the political and the moral in two ways. First, the primacy of rights is primarily a way of
saying that political institutions should secure individual liberty not save the soul. Legitimate
institutions are therefore those to which the governed consent, not those that are morally
good. This introduces a relativistic dimension to the justification of political institutions
or at least the principle of subjective freedom acquires independent moral weight in itself.
Second, the exercise and application of basic rights are themselves independent sources
of disagreement. Given disagreement, the authority of political decisions cannot derive
entirely from an unmediated appeal to the higher morality of rights. It suggests that the
classic question of sovereignty, who decides, is as important as what is decided. This
introduces a tension in the liberal theory of legitimacy because it moves the process by
which political decisions about rights are made to the center. If legitimacy rests on whether
institutions respect rights, the process by which rights are articulated and exercised equally
becomes part of this legitimacy. As Waldron notes, the natural rights-based solution
to who decides is that the rights-bearers should participate freely and equally in these
decisions. Natural, that is, if one holds the view that rights-bearers are moral agents.
According to Waldron, rights-bearers
were conceived in the first instance as appropriate rights-thinkers (not

merely as potential victims or interest-bearers whose interests needed pro-
tection). . . ordinary individuals were naturally competent judges of issues of
right. (1998: 331)
If we think of rights-bearers as rational, self-willing agents, it logically follows that they

should have the active role in determining questions of right. Democratic participation is
the right of rights. It is the clearest way of respecting their rights-bearing capacities and
of satisfying the demand that political institutions derive their authority from the will of
the governed. Minimally, it is important that the agent making decisions about the meaning
and exercise of rights be in some way accountable to the rights-bearer. In passing, it should
be noted here that this way of reading the classical liberal view of rights reminds us of
an important connection between liberalism and democracy, indeed, it is even possible
to argue on this basis that crucial decisions about the content and scope of basic rights
be determined by representative-democratic bodies, rather than less accountable judicial
ones.21 This is important because, especially in human rights debates, the classical liberal
view of rights is sometimes equated with a libertarian emphasis on civil rights and the
minimal, majority-constraining constitutional state. Yet the logic here is more democratic
than that, and it does not imply such an a priori view of the legitimate scope of positive
state action, assuming that state is democratic, or gives the rights-bearer adequate influence
in the decision-making process.
There is, however, a different way of considering the authority of institutionswhat
Waldron calls rights-instrumentalism (1998: 316 and passim). Here the authority of
political institutions is their ability to arrive at the truth about rights (323). This is the
idea behind Joseph Razs view that the normal justification of the authority of institutions
is derived from the fact that the institution is more likely than its subjects to act correctly
for the right reasons (1986: 61). Authority is here moral not political. The institution is
authorized if obedience to it leads to conformity with right reason, not if it is in some way
derived from the will of its subjects. This also seems to be the view informing Henry Shues
argument that national and international institutions should be seen as mediating moral
duties individuals have to rights-bearers (1988: 687704). These institutions possess moral
authority but are not theorized in political terms. For the most part, they are not directly
accountable to the wills of those they administer to and they need not be. It is not hard to see
the paternalistic dimensions to this view of institutions. Institutions aim at moral goodness
not consent of the governed, and therefore adherents of this theory are more likely to
entrust political decisions to a set of moral experts: if we think judges, bishops, or scholars
might do a better job, then we should forgo or qualify popular participation (Waldron
1998: 334).22 At the national level, this distribution of political power to undemocratic
institutions exists in states with judicial review of legislative decisions. In the case of
human rights we can think of the European Court of Human Rights or recently the moral
legitimation of humanitarian intervention on behalf of victims. Michael Ignatieff has
recently suggested that unaccountable human rights NGOs approach politics in a similar
imperial and idolatrous fashion because they seem to believe they are in possession of
an absolute moral trutheternal veritieswith which to attack all political institutions
(2001: 20).23
This rights-instrumentalist view is closely related to the interest-theory in general
and contemporary human rights in particular. Once the interest-theory makes agency rel-
ative and places needs at the center, then there is no conceptual obstacle to viewing the
rights-bearer as a needy or helpless being. He is not seen primarily as being able to attend to
his own welfare, neither individually through free choice nor collectively through political
participation. Recall that MacCormick does not even see agency as remedially connected
to rights. If the interest-theory of rights generally removes any conceptual obstacles to
viewing the individual as a needy, helpless being, the contemporary conception of human
rights actively encourages it. It emphasizes recognizing the rights-bearer as powerless
and voiceless, and to view third-party advocates as empowering victim groups who
cannot speak for themselves (Ignatieff 2001: 70, 10). The paternalistic moment, then, lies
in the way the rights-bearer is constituted as victim incapable of exercising his rights.
A third party must claim the individuals rights for him. This inverts the modern lib-
eral understanding that the rights-bearer must determine when and how to exercise his
rights.
In other words, what is problematic from a liberal standpoint is the tendency to nor-
malize a view of the rights-bearer as victim and to recast institutions as performers of moral
duties correlative to rights. If disagreement and conflict about rights is admitted, then the
legitimacy of the act must come from a political process, not merely an appeal to a higher
law. But once institutions lean on their moral authority, rather than political legitimacy, they
are organized in such a way as to maximize the capacity for action but minimize the degree
of political participation and accountability. It is no surprise that coalitions of the willing,
international courts, tribunals, and NGOs are not representative bodies accountable to those
on whose behalf they act. There is even a certain way in which they are organized in a
way that makes it difficult for the rights-bearers to take matters into their own hands. In the
absence of articulated political relations between these human rights institutions and their
subjects, it is difficult to imagine how the oppressed and marginalized could truly be heard
on their own terms. Unlike civil rights struggles, which were made possible by a set of
institutions that already recognized rights as claims to equal status as moral agents, the con-
temporary instantiation of human rights does not create the institutional space and political
relations in which those kinds of rights-claims could clearly be recognized. One thinks, for
instance, of the controversies over the European Raj24 in the Balkans. One of the most
significant human rights actions of the 1990s is now mired in a political stalemate. Local
populations are governed by powers acting in their interests and to protect their rights but
316 Alex Gourevitch
beyond their control. Despite the many rights that the interest-theory can accommodate, it
may actually be more permissive with regard to the exercise of unaccountable power.
On the liberal account, contemporary human rights tend to obscure the central, political
question of who decides and thereby recast institutions in a way that limits the ability
of the ostensible rights-bearer to participate in claiming his rights. On this critique, the
problem is not merely theoretical but also practical. Existing institutions may actually
make it more difficult for the individual to be recognized as a self-willing agent able to
guide his own destiny. This is especially relevant in the international sphere, where most
of the human rights action is, and where much rights-claiming is by institutions, groups,
and states that dont have direct political relations with the rights-victim. The liberal worry
about contemporary human rights thinking is thus its paternalistic results: what begins as an
argument that the classic, agency-centered view cannot accommodate the marginalized and
oppressed ends with the reconceptualization and reorganization of rights politics around
an image of neediness and passivity. The normalization of the rights-bearer as a creature
with needs, rather than a moral and political agent in his own right, opens up a potentially
illiberal dimension in contemporary human rights.
Conclusion: Human RightsAnother Liberalism?

The aim of this paper has been to suggest a liberal critique of the contemporary conception
of human rights. The account of liberalism has been decidedly partial. I have agreed
with those who suggest that liberalisms fundamental commitment is to individual liberty
(Johnston 1994: 339) and that the relationship between liberal thought and the legacy
of the Enlightenment cannot be stressed too strongly (Waldron 1993: 43). This has been
necessary in order to illuminate the ways in which the contemporary conception of human
rights conflicts, in theory and in practice, with a liberal concern with the paternalistic
exercise of power. However, some might argue that the contemporary human rights concept
is liberal through and through. In seeking to defend individuals from unmerited suffering
and gross physical cruelty (Ignatieff 2001: 173), human rights put cruelty first and
join a different tradition of liberal thought (Shklar 1998, 1995: Introduction and Chapter
1).25 Here, liberalism is less addressed to the moral potentials of autonomous subjects
and more to protecting individuals from cruelty. Contemporary human rights are, on this
account, consistent with the liberal tradition of naturalizing or depoliticizing certain
issues by grounding them in a prepolitical human nature. This move can lead to a
defense of paternalistic restraints on democratic politics or, at the very least, to the idea
that there are legitimate restraints on democratic decisions. Such arguments might be able
to trace a consistent line through Lockes natural law restrictions on popular sovereignty,
or Constants theory of limited sovereignty.26 Arguments in favor of constitutionalism and
the rule of lawarguably the most significant institutional innovations of liberalismtend
to entail an external censor protecting basic rights from democratic legislation.27 On this
view, it is a tradition in liberal thought to see human rights as moral claims against politics
or beyond argument rather than as a subject for democratic deliberation.28
These are valid claims and they are reasons why it is important to be clear that this
paper does not claim contemporary human rights are illiberal. Rather, contemporary human
rights are liberal, but in a particular way. If the claims presented in this paper are correct,
the way in which contemporary human rights separate the rights-bearer from moral and
political agency is consistent with a liberal tendency to naturalize political phenomena and
to support certain paternalistic practices. Therefore, the approach to contemporary human
rights presented in this paper could best be seen as identifying a tension within liberalism
itself.29 Logically, it is a tension between those for whom human rights is a morality and
those for whom it is a politics of individual liberty. Historically, it is a tension between
liberalisms previous and its current commitments. It is much easier to find a preoccupation
with paternalism in classical liberalism than in postwar and contemporary liberalism. It
is possible that the emphasis on clearly identified and institutionalized relations between
the rights-bearer and the agents of enforcement stand in permanent tension with a global
human rights concept bound up with a much more heterogeneous, multilayered, and fluid
system of international human rights practice. But then, that is all the more reason to see
that more than nostalgia motivates a return to some previous theories of rights. It is also a
reason to avoid thinking that conflicts within conceptions of rights can easily be resolved
into higher theoretical syntheses. Indeed, the argument of this paper has been that attempts
to read the early natural rights thinkers, as well as the high liberals as establishing apolitical,
moral restraints on politics misconceives of the central, political purpose of the discourse
of rights. First and foremost it was a theory of political legitimacy, aimed at grounding
political institutions in individual freedom. But that may be more liberalisms past than its
present.
Acknowledgement
The author would like to thank Jean Cohen, James Ingram, David Johnston, Peter Ramsay,
and Jeremy Waldron for their very thoughtful comments on earlier drafts.
Notes
1. The classic argument that social rights are consistent with liberal citizenship is (Marshall 1950).
See also the earlier statements by British liberals (Green 1998/1861; Hobhouse 1911). For a
contemporary version of the argument see Shue (1996) and Donnelly (2003).
2. The founding and still enduring statements on the gendered nature of liberal thought in general,
and human rights in particular, are (Pateman 1988; Okin 1989; Mackinnon 1987, 1989). I have
taken the language of sexual contract and patriarchal right from Pateman. For a good introduction
to the feminist debates on liberalism see Kymlicka (2002: Chapter 9).
3. For a defense of human rights as ethnocentric ideals that the West should impose on others,
see Rorty (1993). For a more critical take on the culturally specific and potentially paternalistic
dimensions of liberal rights, see Mehta (1999).
4. See also Heartfield (1996). Heartfields emphasis is on the erosion of the legal subject in feminist
and poststructuralist critiques and reformulations of liberal rights. Along with Heartfield and
Chandler, I seek to extend this analysis of the separation of rights-bearing capacity and agency
in the reconceptualization of human rights.
5. For one account of how the introduction of money into the state of nature transcends the scarcity
and waste provisions see Macpherson (1964: Chapter 5).
6. Hegel is a borderline figure in the liberal tradition. But for the issues raised in this paper,
particularly given his view of right and freedom, he is fairly included.
7. See Hegels comments on the rabble of paupers (Hegel 1991/1821: 150).
8. In the division between Part I: Abstract Right and Part II: Moralitat, Hegel organizes
Philosophy of Right such that welfare lies outside the sphere of right. While discussing that the
indigent might understandably steal bread to survive, acting out of necessity places him outside
the sphere of freedom, and is still a violation of right: an intention to secure my welfare or that
of others. . . cannot justify an action which is wrong (Hegel 1991/1821: 85).
9. For instance, Kants rejection of the principle of happiness as the positive aim of government,
and his desire to protect the system of right, does not mean he was a pure libertarian. As
318 Alex Gourevitch
Alexander Kaufman has shown, Kant accepts certain forms of welfare provision insofar as they
are necessary for or supportive of the system of right, or because they follow from the demands
of justice. On this basis, Kant does recommend certain forms of welfare provision such as
state-funded education, adequate health care, and income maintenance for the poor (Kaufman
1999).
10. There is more to the relation between welfare and liberty than can be address in this essay.
However, some welfare provision is consistent with the understanding of liberal rights being
advanced here so long as these goods are not confused with rights themselves. Hegel, for instance,
suggests that welfare provision within the Corporation is not humiliating or demeaning because
relations remain on a level of reciprocity and mutuality, rather than unequal paternalism (Hegel
1991/1821: 154). T. H. Green, in his Lecture on Liberal Legislation And Freedom of Contract,
famously argued:
Our modern legislation then with reference to labour, and education,
and health, involving as it does manifold interference with freedom of
contract, is justified on the ground that it is the business of the state,
not indeed directly to promote moral goodness, for that, from the very
nature of moral goodness, it cannot do, but to maintain the conditions
without which a free exercise of the human faculties is impossible.
(Green 1998/1861: 374)
Green thought various kinds of welfare may be necessary to make freedom effective, but not if
this welfare is seen as specifying what is good for man. Such goods, moreover, are secondary
to and derivative from rights, and a product of legislation, rather than something that attaches
to individuals by their very nature as rights-bearers. Similarly, Rawls argues that a number of
primary goods are necessary to secure the fair value of the basic liberties (Rawls 2001: 148).
Like his predecessors, Rawls conceptually distinguishes these primary goods from basic liberties
because he wishes to emphasize the primary character of rights, and their special function as a
political morality protecting individual freedom. Unlike the contemporary human rights concept,
or the interest-theory of rights, these welfare goods are not part of a comprehensive view of
what it means to live a dignified life, or what are the fundamental needs of a human being.
They are contingently related to what is necessary to make rights effective.
11. Hegel absorbs this point from earlier liberals when he argues that it is only in modern life that a
contradiction between liberty and welfare appears. No matter how much the state provides for
the well-being of the individual, if it cannot be traced back to his own efforts, then there is a
way in which welfare provision, on its own, fails to respect the persons liberty: that feeling
of right, integrity, and honour which comes from supporting oneself by ones own activity and
work is lost (Hegel 1991/[1821: 266).
12. This does not mean liberalism is insensitive to any other moral language, but merely that
rights are specially appropriate as a political morality, and that other moral ideasperhaps
humanitarian duties like the duty to rescueshould not be expressed in terms of rights.
13. It is important to note that there is a separate but related capabilities approach to rights,
advanced primarily by Amartya Sen and Martha Nussbaum (Nussbaum 1997, 2007; Sen 1982,
1984). It is beyond the scope of this paper to give this approach full, independent treatment. In
one sense, it is a freestanding conception of justice and policy standing outside conventional
rights theories, but also is a different way of filling out what human rights are. See for instance
(Nussbaum 1997: 273288; Sen 2005). It is similar to the dignity approach insofar as it
attempts to provide the grounds for thinking through the basis for social, economical, and
cultural rights, but shares with the liberty approach the idea that what is at stake is securing
the conditions for human freedom (e.g., Sen 1992, 1999). Since the central issue I am trying to
draw out is how to conceive of the rights-bearer as someone worthy of bearing rights in the first
place, and what sorts of capacities are required to be identified as having rights, I have focused
on those rights-theories that have made this a central concern. That concern has been less central
to the capabilities approach and, despite its many insights, it is not clear how much distinctive it
has to say about that particular matter. Moreover, the capabilities approach has presented itself
as a kind of synthesis and resolution to problems that this essay aims to show are not so easily
resolved. Indeed, to the extent that the capabilities approach has offered itself as a superior way
of thinking about what is involved in securing a right (Nussbaum 1997: 293), it shares with
the interest-theory the potential problem of decoupling the rights-bearers agency from the acts
of power by which his rights are secured, and thus reintroducing a paternal dimension to the
internationally exercise of power despite the avowed commitment of the capabilities approach
to democratic government.
14. For an analysis of the dignity concept see Schachter (1983) and Neuman (2000). It is important
to note that dignity and liberty are not inherently conflictual. Kant, for instance, saw the dignity
of the individual to rest in his capacity for autonomy.
15. Raz suggests this individualism is also a limit of rights. For there are certain goods that can
only be enjoyed collectively and that government may have a duty to provide even though they
cannot be understood in terms of the individual rights of each of its subjects (Raz 1986: 202).
16. It is true that there are other accounts of the moral force of rights, not all of which can be
addressed here; though I should want to maintain the connection to liberty here. Nussbaum, for
instance, believes it is neither the relationship to formal properties of law, nor to the autonomous
subject itself, but that it is simply the clearest vocabulary for expressing the justified claim that
all humans have to such things, by virtue of being human (Nussbaum 1997: 196). Yet this way
of putting it is a bit question begging, because the issue at hand is what exactly this virtue
of being human is. For instance, is it that we just all accept, in some overlapping consensus,
that human beings have dignity, and we express that dignity with a special political morality,
called rights? Or is it that we use the concept of rights to express this virtue of being human
because rights are conceptually linked to the moral agency of the person, as opposed to some
other quality? It could also be that the moral force of the concept of rights derives from a deeper
moral understanding of how it is right to live. In our society, it is a right to live a free life, and
that is why human rights, at least insofar as they are fundamentally connected to liberty, appear
inviolable. That might very well not conflict with the will-theory at all, so much as provide it
extra moral depth. And again, the important question is still, if in modern society the right way
to live is a free life (rather than a life that displays classical virtues, or submits to the authority of
God and his representatives on earth), why is the language of rights the way in which to express
that idea. I am grateful to an anonymous reviewer for having pointed me to this point.
17. For reasons of space I cannot here address Jurgen Habermas distinctive approach to this
question, which attempts to reconcile this conflict by suggesting human rights are moral in
their mode of justification but juridical in their structure. The difference here is that Habermas
discourse-theoretic interpretation of rights displaces the foundation of rights from the qualities of
the rights-bearing subject to the presuppositions of a prior, higher intersubjectivity (Habermas
2001a: Chapter 3).
18. Here I follow Jeremy Waldrons argument (Waldron 1993).
19. This also is one of Habermas arguments regarding the moral unburdening effect of law
(Habermas 2001a: 114118).
20. The literature on the relation between liberal rights and democracy is vast. For recent, and
opposing treatments on the subject contrast (Wolin 2004: 257314; Habermas 2001b: 113129;
Waldron 1998).
21. It is impossible fully to redeem this claim, but it is the sort of argument Jeremy Waldron seems
to have in mind with his critique of judicial review in Law and Disagreement (Waldron 1999:
esp. Part III).
22. It is worth reiterating Waldrons point that though democracy, or more broadly the separation
of the political and the moral, seems to have a relativistic dimension, it does not entail an
abandonment of moral objectivity. It is a response to implacable disagreement about morality
(Waldron 1998: 322).
23. On the unaccountability of NGOs, see Ignatieff (2001: 10) on idolatry passim.
24. The name European Raj comes from a widely distributed paper circulated some years ago
by the European Strategic Initiative critiquing the current High Representative in Bosnia and
Herzegovina Lord Paddy Ashdown (Knaus 2003: 14). Subsequently, a panel of senior politicians
320 Alex Gourevitch
and experts called peacekeeping in the Balkans a failure. They argued instead for dismantling
of the high representatives office and transferring administrative control to Brussels (Traynor
2005).
25. Ignatieff cites Shklar in the above quoted passage on gross physical cruelty.
26. Commentators will point to Lockes proviso that the fundamental natural law. . . is to govern
even the Legislative it self (Locke 1996/1689: 356). See also Constant (1988/1815).
27. This is the view of those who see the Constitution as a kind of precommitment and an
institution like the Supreme Court as entrusted to protect and enforce this precommitment
against the vagaries of majoritarianism (Elster 1984; Ackerman 1993).
28. This is the issue Ignatieff addresses in Human Rights as Politics and Idolatry.
29. I must present this claim with some hesitancy since a full history of liberalism as a tradition, or
combination of traditions, is beyond the scope of this paper. I seek to isolate a few very important
aspects of this tradition. Besides evident differences amongst, say, Locke, Hobhouse, Dewey,
and Hayek, the secondary literature on liberalism frequently identifies different strands, either
in terms of different national/continental histories or normative emphases. See, for example, De
Ruggiero (1981), Laski (1947), and Lowi (1969).
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Are Human Rights Liberal?

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Are Human Rights Liberal?

This paper provides a liberal critique of paternalistic tendencies in the contemporary

Rights and the Rights Bearing Subject

is distinctively human is to be a moral agentit is mans nature. To confer rights is

welfarelike a right to food or proper nutritionnot his liberty. It may nonetheless be

The Classical Liberal Conception

of self-preservation. The duty to self-preservation derives from an interest in individual

The Contemporary, Human Right

it is rather bewildering to suppose that none of us has a right not to

Moreover, the interest-theory is capacious. It can encompass rights to education or cul-

Liberal Antipaternalism and Human Rights

were conceived in the first instance as appropriate rights-thinkers (not

If we think of rights-bearers as rational, self-willing agents, it logically follows that they

Conclusion: Human RightsAnother Liberalism?

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