Taking Seriously the Challenge of Accommodating the Claims for Belonging with Universal Rights
Pilar Zambrano 15 July 2020

“A true human life cannot be led by those who feel themselves detached from the simple and basic laws of humanity, nor by those who elect to live in a vacuum”[1]

For only the purpose of easing this comment, the various insightful arguments advanced in the article may be drawn together around three focal ideas, that can be succinctly eschewed as follows. First, a hypothesis regarding the cause of “wide-spread revival of exclusionary, xenophobic, self-referential politics and ways of life”. Second, a description of the basic human need to “belong”, and of the sort of political community and social bounds that are truly responsive to this need. Third, some, rather general but nonetheless down-to-earth, clues regarding how to start building this of kind community and social bonds, from bottom to top. Given the prominently factual nature of the latter and my own lack of data and personal expertise to assess its feasibility, I will constrain my analysis to the two former and, specifically, to the claims that: (a) the discourse of rights instantiates a liberal conception of political community; (b) the typical liberal discourse of “abstract, general and universal human rights” disregards the human need to belong, and incites the emergence of exclusionary discourses and practices; and (c) we should therefore find an alternative to (a) and (b) in order to make possible the ideal of “living with difference”.

 

1. As a Matter of Fact, our discourse of rights instantiates a Liberal Conception of Political Community.

The hypothesis advanced by the authors regarding the emergence of exclusionary ways of life points to the success of a liberal political agenda, whose very fundamental purpose is to secure individual freedom against any kind of exclusionary political project. The authors unscramble this paradox drawing attention to the incapability of liberalism for responding to the basic human “need to belong”. More accurately, they remark that the liberal communities where the only shared values are “abstract, general, and universal rights”, can also be described as “communities of confidence” where individuals are linked to each other only by the common subjection to public coercion against their evenly common -and potentially dangerous condition. Likewise, public discourses centred on those very same abstract, general, and universal human rights, put in evidence the poverty of our present political and social bounds, and hence spur counter exclusionary discourses that take profit of an unsatisfied sense of belonging.

Given that the authors apply this diagnosis to the “last 50 years”, I assume that they are mainly referring to (although perhaps not only) the political effects of the institutional (as opposed to the theoretical) universalization of human rights, through the establishment of the international system for the protection of human rights in 1948, and all its consequences (including the emergence of regional systems of human hights). On this ground, I purport to analyse the following three queries: (i) Why has the incorporation of the discourse of rights to our national and international political practices played a decisive part in encouraging “exclusionary … self-referential politics and ways of life”? Is it mainly because of the individualistic conception of man and society that underlies it, or should we also point to other evenly strong motives? (ii) Secondly, is there an alternative understanding of our culture of rights that can better cope with our need to belong? (iii) Third, does this alternative fit our culture of rights and its institutionalization through the international system of human rights?

 

1.a. Abstract Rights at the cost of Universal Rights.

To be clear, I agree with the authors in the diagnosis. The individualistic conception of political community is laid plain, among many other factors, by the star role displayed by the right to privacy in the case-law of most, if not all, regional and constitutional human rights systems along the last 50 years. This right has been defined, using the words of the Supreme Court of the United States, as the right to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (US 505, 833:852). This extract is but one fine sample of the enhancement of the absence of a shared conception of a good life, and even more of the value of life itself, to the status of a fundamental political value -the value of “reasonable pluralism”, as Rawls named it- that is worth endorsing and promoting through public policy[2].

Once (this kind of) pluralism is seen, not as a “side-effect” of the culture of rights but as its directly intended purpose, neither the content nor the fundament of rights can be possibly linked to any substantive conception of the good life. Under this guise, only abstract reasons, detached from any substantive conception of the good life, are logically valid either for justifying a concrete catalogue of rights (as opposed to any alternative catalogue) or for recognizing the condition of “person” or “holder of rights” to a certain group of people.

But how can abstract/detached reasons justify at all the recognition of an inherently moral status, such as the condition of “holder of rights”? Well, the finest solution to this conundrum was also suggested by John Rawls some time ago, when he twisted content-dependent reasons for fact-dependent reasons as the ultimate grounds both for making up a specific list of rights and for recognizing their titularity. Along these lines, the reason for recognizing the condition of “holder of rights” should not be linked to any kind of intrinsic/natural/inherent human value, but to a fact: the fact that an (temporary) overlapping political consensus happens to agree on the meaning of the special value (dignity) for which all human beings or of a large part of them are endowed with the right of all rights -the right to hold rights-[3].

The result is obvious: rights are neither inherently universal nor categorical. They are, at most, as general and as weighty or categorical as each stage and each type of consensus deems them to be. This is sufficient to state a first (minor) dispute with the authors: what seems to exclude or at least to seriously hinder our possibility of constructing communities of “trust” is not so much our culture of rights, as the way in which a (very large) part of it has extrapolated their “abstract and general” nature, at the cost of losing their universality.

 

1.b. Void Rights at the cost of Intelligible Rights.

The liberal idea that there is nothing inherently valuable in human existence, except our freedom to decide what is valuable and, underneath that, our freedom to construct the meaning of rights and of human existence -as the US Supreme Court explicitly stated in Casey-, may very well be framed as a special type of “semantic conventionalism”, according to which concepts are the sheer output of discursive practices that, using Quine´s images, cast them over an otherwise unintelligible world[4]. Under this perspective, the abstract nature of rights can be better understood as emptiness. Rights are abstract because they have no given meaning at all. They are like void shells that can be filled with whatever the overlapping consensus happens to accept as valuable or, more precisely, with whatever public officials determine that the overlapping consensus accepts as valuable. Abstract rights are in this sense void rights: there is no limit for the kind of things that each consensus can put inside the concepts of rights, because it is the consensus itself that holds the power to construe their meaning from top to bottom.

The reconsideration of the abstract nature of liberal rights as emptiness enables us to reassess their claimed universal nature, this time not from the point of view of their titularity, but from the point of view of their content. In effect, if all conceptual distinctions are conventional and rights are no exception to the rule, on what grounds can we affirm that both the liberties and obligations resumed in the content of rights are universally intelligible and valuable? To put it more accurately, can we assert at the same time that there is a universal obligation to recognize and to secure the right to “privacy” and, on the other hand, that the meaning of “privacy” is conventional and thus local?

The seemingly negative answer to the former question involves an alternative explanation for the connection between the liberal discourse of rights and the emergence of exclusionary anti-rights discourses: isn´t the “abstract-void” nature of rights a perfect chance for certain very concrete ideological groups for misleadingly claiming that their own preferences be universally recognized and enforced? If this were true, anti-rights discourses might be understood as a reaction against the deep hypocrisy of fostering individual or group interests under the façade of a universal justice that is outwardly inconsistent with their underlaying semantic conventionalism.

 

2. Is there an Alternative Semantic Approach to our discourse of Rights that can better cope with the need to belong?

Saving our objection to the idea that liberal rights may be labelled as “universal”, and having broadly agreed on the effects of the liberal discourse of rights on our present political practices, we may now approach our second query: what is the alternative to the liberal conception of rights and how does this alternative respond to the universal nature of rights and the basic human need to belong?

The alternative that we suggest is a realist semantic approach to the discourse of rights, that may be resumed in three tenets: (a) the meaning of legal concepts is connected to the nature of the things to which they apply —their reference¾ ; (b) therefore, legal conceptual distinctions are ultimately grounded on real distinctions; (c) which means that the interpretation of legal texts should be guided, to an important extent, by the nature of their reference.

As all legal texts, Human Rights texts such as the UDHR are essentially normative. This means that they purport to issue orders, either in a literal and direct way or in an indirect one. Thus, when the UDHR asserts that “No one shall be held in slavery or servitude” (art. 4), it issues an explicit order directed to all the political institutions of the signatory parties. On the contrary, when it states that “All human beings are born free and equal” (art. 1), it settles a mandatory interpretative directive that is mainly addressed to all public officials (Courts of Justice) that have the power to interpret and enforce the document. Let´s now rejoin our main point: when we suggest that both kinds of legal statements should be read under a realist semantic perspective, we affirm that the conceptual distinctions thereby used are ultimately grounded on real distinctions; that it is these real distinctions that allow us to judge the kinds of persons, things and cases to which they apply; and that it is these real distinctions that allow us to objectively argue about the validity of these judgments.

From this realist perspective, the abstract nature of rights entails universality but neither emptiness nor uniformity. The content of rights is universal because their reference is not “thrown to the world” by any concrete (and therefore parochial and temporary) discursive practice but given in our own shared humanity. More specifically, rights statements refer to the inherently intelligible dimensions of human fulfillment and to the types of actions necessarily involved in its attainment. The substantive nature of this reference gives ample space for the development of a need to belong, while at the same time eluding the conceptual emptiness that can only be filled with parochial and temporary preferences. In effect, the kinds of actions and the dimensions of human fulfillment to which rights refer may be instantiated in so many ways as cultures and persons there are. Connecting rights to a substantive conception of a fulfilled life doesn´t, therefore, entails concealing either individual or communitarian differences. On the other hand, so far as rights refer to the intelligible dimensions of human fulfillment, and so long as friendship (broadly conceived) is one of these, rights don´t only admit but moreover require that political and legal institutions be conductive to this end.

One may very well object that the concept of “human fulfillment” is so abstract that, for all that matters, it doesn´t make any change to the practice of human rights interpretation and argumentation. It is therefore very important to insist on the nature of the abstractness of this (and any other) concept from a realist semantic perspective: the concept of “human fulfillment” is not formal but substantive. It refers to the distinctively human capabilities and the kind of actions through which these may be deployed, towards which all human beings are necessarily inclined, and which all human beings in use of reason are able to grasp as “basic human goods”[5]. Because these capabilities are entrenched in our own teleological nature, the meaning of the concepts that we use to name them (“basic human goods”, “dimensions of human fulfillment”, etc.) is not the outcome of sheer social construction. On the contrary, it spurs from and is deeply connected with our shared way of experiencing these given inclinations[6].

Any substantial approach to the content of rights entails, at least a priori, that the correspondent liberties are fewer and more restricted than those of liberal rights. In effect, once the meaning of rights is connected to a substantive conception of human fulfillment, the kinds of actions (or liberties) to which they apply don´t admit infinite ways of instantiation. They exclude, namely, any kind of action that severely hinders our joint commitment to construe a human environment where we can all choose a personal way towards human fulfillment. Should this restriction be taken as a disadvantage? Only if freedom is upheld at the cost of both our need to belong, and any meaningful -and sincere- deference to the universal nature of rights. Or else, only if one doesn´t take seriously the challenge of accommodating the claims for belonging with our universal responsibility for the fates of all those who, using Hannah Arendt words, are either stateless or even worse, pariahs within their own state, and for whose protection the international system of human rights was first and foremost created[7].

 

3. Does this alternative fit the universal (and categorical nature) of the Rights incorporated to the International System of Human Rights?

Summarizing, I have deployed possible answers for two of the three queries posed above. Regarding why the liberal discourse of rights seems to prompt exclusionary reactions, I have pointed to the deep hypocrisy of advancing parochial and temporary interests under the guise of universal principles of justice, which is made possible by the (unavoidable) void meaning of (unavoidably parochial and temporary) liberal rights. Next, I have advanced the realist semantic approach to the meaning of rights as an alternative understanding of our culture of rights, and I have argued that it can coherently sustain their universal and categorical nature while at the same time respond to our human need to belong.

The third and last query is whether this approach better fits the purpose and structure of the International System of Human Rights than a conventionalist one. I will constrain myself to four arguments in favour of an affirmative answer, which are (paradoxically) detached from any concrete conception of the good life.

First, semantic realism perfectly fits the literal meaning of the wording of the Preamble of the UDHR, that states that the “recognition [not the decision to bestow] of the inherent [not afforded] dignity of all members of the human family is the foundation of justice and peace in the world”.

Second, semantic conventionalism faces the problem of justifying which concrete language community should be granted the moral authority to construe the meaning of rights that are expected to be universally recognized. Should it be a select community of specialized legal officers, as Herbert Hart has proposed regarding the meaning -and the existence- of Law in general[8]? Should it be the wider community of all inhabitants within one nation state? Or is it, perhaps, the highly specialized community of legal officers in the international field? Why should any of these communities be bestowed with the authority to speak in the name of humanity, once we have all agreed that there is nothing inherently valuable in human life?

The truth is that, once we turn our backs to the world, there is no reason at all for construing the meaning of rights in one way or another. Therefore, interpreting any document of human rights from the perspective of a conventional semantics entails endowing a given majority with the power to arbitrarily construe their meaning, which is in obvious contradiction with the purpose of the UDHR of recognizing categorical rights, that is, rights that are strong enough to override collective interests and consequential majoritarian calculations.

The arbitrary nature of conventionalism leads us to the fourth reason for proposing a realist understanding of the rights incorporated to the International System of Human Rights, including the human right to develop our need to belong. If there is nothing inherently intelligible and self-evidently valuable in human existence, not only is the universal and categorical nature of rights neglected, but also the possibility of rationally discussing how far they give space for our basic need to belong.

 

References

[1] Arendt, H., «The Jew as Pariah», Jewish Social Studies, 6-2 (1944): 120.

[2]Rawls, J., Political Liberalism, Columbia University Press, (1993) 2005: xxiv, xxv.

[3] Idem: 43, 45.

[4] «Meaning is what essence becomes when it is divorced from the object of reference and wedded to the world», Quine, W.V.O, «Two Dogmas of Empiricism», in Margolis, E., Laurence, S., (eds.) Concepts. Core Readings, 154; originally published in The Philosophical Review, 60 (1951): 20-43.

[5] Grisez, G., Natural Law Forum, 10 (1965): 175, 176;Finnis, J., Natural Law and Natural Rights, Clarendon Press, (1980) 2011 (2nd edition): 59.

[6] Grisez, G. (1965): 176.

[7] Arendt, H., (1944): 120.

[8] Hart, H., The Concept of Law, Clarendon Press, 2nd Edition: 61.

 

Pilar Zambrano is Professor of Philosophy of Law, Ethics and Human Rights at the University of Navarra.

Photo: Fabrice Coffrini / AFP


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