View from
The Left

The Philosophy of Human Rights (Part II)

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The state must respect the freedom and autonomy of those fleeing violence by accepting them within its boundaries and offering them hospitality, which makes for a precursor to modern refugee law.”

Introduction

In a recent article for Merion West, I analyzed the history of human rights from their origin in the natural law tradition, and I also discussed critiques of this movement from both traditionalists like Edmund Burke and legal positivists such as Jeremy Bentham. However, there is a third tradition when it comes to understanding human rights, which is even more important for my purposes: the Kantian argument that rights flow from a respect for human freedom and dignity. This is the modern tradition which I sympathize with most, and it has strongly influenced my argument in my book Making Human Dignity Central to International Human Rights Law (available here). The point of rights, in this view, is to secure the conditions for dignified self-authorship. Before unpacking my argument, I will briefly summarize Kant’s contribution to our understanding of rights before defining the relationship between rights and dignified self-authorship.

Kant on the Relationship Between Human Dignity and Rights

The Kantian position is fundamentally different from the utilitarian-positivist and traditionalist approaches to rights discussed in the earlier article. Both of these positions—despite their considerable differences on other points—regard rights as being created by political or traditionalist actors. In Bentham’s view, rights were creatures of positive law and should be connected ultimately to advancing human happiness and reducing suffering according to the principles of utility. For Burkeans, rights existed—if they existed at all—because they emerged from a given tradition and took on a particular form. This meant that rights could be quite different depending on the context. As Burke puts it in Reflections on the Revolution in France:

I flatter myself that I love a manly, moral, regulated liberty as well as any gentleman of that society, be he who he will; and perhaps I have given as good proofs of my attachment to that cause, in the whole course of my public conduct. I think I envy liberty as little as they do to any other nation. But I cannot stand forward, and give praise or blame to anything which relates to human actions and human concerns on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind. Abstractedly speaking, government, as well as liberty, is good; yet could I, in common sense, ten years ago, have felicitated France on her enjoyment of a government, (for she then had a government,) without inquiry what the nature of that government was, or how it was administered? Can I now congratulate the same nation upon its freedom? Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a madman who has escaped from the protecting restraint and wholesome darkness of his cell on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer who has broke prison upon the recovery of his natural rights?”

But in both cases, rights do not enjoy moral status that exist independent of state or traditionalist actors.

But Kant’s innovation in The Metaphysics of Morals was to claim that the development of rights was morally prior to the emergence of the state or of traditions.

The Kantian argument is fundamentally different. It agrees that rights do not exist in some unusual “natural” condition prior to the emergence of human beings. Rights are indeed the creation of the human intellect engaging its practical reason. But Kant’s innovation in The Metaphysics of Morals was to claim that the development of rights was morally prior to the emergence of the state or of traditions. This flowed from human beings’ fundamental freedom; a capacity to will or not to will the moral law as they saw fit. For Kant, the basic human act was to use freedom to establish what was considered right and wrong according to the “categorical imperative.” All morality came from within and emerged from these free acts of deliberation. This, in turn, meant that human beings could not just be regarded as mere matter floating about in a meaningless and deterministic Newtonian universe. We were inherently moral beings, who were destined to bring value into the world. This freedom to will or not to will the moral law meant that human beings possessed a fundamental dignity which placed them, “beyond price.” In an existential sense, it also helped provide us with a sense of meaning in the world. This came about when we recognized the inherent value of our contribution to the task of willing moral law in conjunction with other people and eliminating the influence of “radical evil.” As Kant put it in the stirring conclusion to his Critique of Practical Reason

Two things fill the mind with ever new and increasing admiration and awe, the oftener and the more steadily we reflect on them: the starry heavens above and the moral law within. I have not to search for them and conjecture them as though they were veiled in darkness or were in the transcendent region beyond my horizon; I see them before me and connect them directly with the consciousness of my existence. The former begins from the place I occupy in the external world of sense, and enlarges my connection therein to an unbounded extent with worlds upon worlds and systems of systems, and moreover into limitless times of their periodic motion, its beginning and continuance. The second begins from my invisible self, my personality, and exhibits me in a world which has true infinity, but which is traceable only by the understanding, and with which I discern that I am not in a merely contingent but in a universal and necessary connection, as I am also thereby with all those visible worlds. The former view of a countless multitude of worlds annihilates as it were my importance as an animal creature, which after it has been for a short time provided with vital power, one knows not how, must again give back the matter of which it was formed to the planet it inhabits (a mere speck in the universe). The second, on the contrary, infinitely elevates my worth as an intelligence by my personality, in which the moral law reveals to me a life independent of animality and even of the whole sensible world, at least so far as may be inferred from the destination assigned to my existence by this law, a destination not restricted to conditions and limits of this life, but reaching into the infinite.”

From this moral position, Kant goes on to argue that the only justification for the emergence of a state (and its capacity to coerce citizens) flows from its respect for their freedom and dignity through the institution of rights. It must maintain, as Arthur Ripstein reminds us in his book Force and Freedom on Kantian politics and law, the “rightful condition” worthy of dignified free beings. If a state fails to maintain this condition through the implementation of rights, which respect the freedom of citizens, then the state ceases to be legitimate and can be dramatically reformed and even overthrown.

This lay at the basis of Kant’s personal support for the French Revolution, which he regarded as tremendously important in demonstrating the yearning for freedom even when it led to horrific excess. It also inspired him to be even more ambitious. In his essay “Perpetual Peace: A Philosophical Sketch,” Kant argues that the state has duties even beyond those to its own citizens. The state must respect the freedom and autonomy of those fleeing violence by accepting them within its boundaries and offering them hospitality, which makes for a precursor to modern refugee law. The state must also refrain from waging wars of self-interest. The document even suggests that states help to establish a law of nations based on a federation of free states. This international law would govern the behavior of states and ensure they respected the freedoms of their citizens and others. This was, of course, one of the major theoretical bases of cosmopolitan theory and the international human rights system, which emerged in the aftermath of the devastation of the Second World War.

Going Beyond the Kantian Project Through Dignified Self-Authorship in Social Democracy

Kant’s project of grounding rights (and the legitimacy of the state) in human dignity is deeply inspiring. It breaks from the crude positivist and traditionalist conceits that maintained that political authorities institute rights and freedom from above. Unfortunately, however, I feel that the moral insights of the project are incomplete as presented in Kant’s work. His argument that human freedom is central to our dignity is correct. But it interprets freedom in too formal a sense: as the absence of coercion by the state and other political actors. This is a necessary but not sufficient condition for the realization of freedom. Moreover, it does not fully account for what the “good” of freedom is in a deeper sense. Kant’s arguments suggest that it is the sole source of value to rational beings. But we are not exclusively rational beings—as Heidegger (himself no lover of human rights) points out in Being and Time. Our existence is framed by the “care” we invest in our projects. Through these projects, our identity gains a sense of structure framed by the finitude of our lives within time, with death and birth giving life its “form and texture” as Wittgenstein might say.

My argument is that human dignity flows from our overall capacity to define ourselves through redefining the world around us.

This is why we also need to look not just at the non-coercive dimension of freedom but also look at how capable we actually are of pursuing meaningful projects over a lifetime. This is what I call emphasizing dignified self-authorship. My argument is that human dignity flows from our overall capacity to define ourselves through redefining the world around us. This position shares a familial resemblance with the Kantian project of emphasizing the relationship between freedom and dignity, but it goes a step further in claiming that liberty is not just an innate capacity set once and for all. Instead, it is determined by how capable we actually are of transforming the world around us. Drawing on economists like Amartya Sen and Martha Nussbaum, I argue that we need to look at the index of expressive capabilities a person actually enjoys to concretely exercise freedom in the world. To the extent that one enjoys a more robust index of expressive capabilities, one can be said to enjoy greater freedom and dignity. This, of course, means that taking dignity seriously means more than just preventing the state from engaging in acts of coercion. It means analyzing the empirical and variable conditions individuals find themselves in and looking at what actually inhibits the development of their expressive capabilities.  

Here, I think the disparities present in society present themselves very starkly. This is even more the case when one looks globally. Many people are tremendously capable of pursuing their life projects when they have enjoyed many advantages, while others are held back for arbitrary reasons through no fault of their own. Rather than accepting these as simply natural facts, we should move towards insisting that for institutions to secure the “rightful condition,” they need to do more than simply respecting people’s rights not to be coerced. They also need to amplify people’s overall capacity to freely pursue life projects. This can be accomplished through redistributive efforts where necessary. This is where my argument for shifting our understanding of rights comes in. Rights should not just be conceived of as protections from state and other political authorities which individuals invoke to defend themselves. They shouldn’t even be regarded as what Ronald Dworkin would call “trumps,” which can override even sensible policy objectives. Instead, rights should be seen as moral concepts enshrined in the law through which we engage in democratic agitation to advance our interests and amplify our expressive capabilities. Rights are as Seyla Benhabib would say “jurisgenerative.” They don’t just come to exist in one offs, but instead they are permanently mobilized to shift political institutions and society in freer and more equal directions.

Matt McManus is currently Professor of Politics and International Relations at TEC De Monterrey. His book Making Human Dignity Central to International Human Rights Law is forthcoming with the University of Wales Press. His books, The Rise of Post-modern Conservatism and What is Post-Modern Conservatism, will be published with Palgrave MacMillan and Zero Books, respectively. Matt can be reached at mattmcmanus300@gmail.com or added on Twitter via @MattPolProf.

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