wp cardoso
TRANSCRIPT
Máster en Democracia y Gobierno
Departamento de Ciencia Política y
Relaciones Internacionales
Universidad Autónoma de Madrid
A a
Working Papers Online Series www.uam.es/wpcpolitica
Estudio/Working Paper 131/2011
“From Human Rights to
Multiculturalism and Back”
João Cardoso Rosas
University of Minho, Postugal
C P
Seminario de
Investig ación
I
X
2010-2011
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This paper describes three stages in the connection between human rights and
multiculturalism and it adds a fourth one. These four stages are roughly chronological, but
they are first and foremost of a conceptual character. In the first stage, human rights and
multiculturalism stand in opposition. This corresponds to the immediately post-II World War
context. In the second stage, during the nineteen eighties, multiculturalism is made
compatible with human rights by the work of philosophers such as Will Kymlicka (among
others). Although multiculturalism has become acceptable as a political practice in several
European countries since then, it started to be repelled in the name of human rights since the
nineties - and, particularly, during the first decade of the twenty-first century - by both
philosophers and politicians. This is the third stage. I propose and defend a fourth and
current stage, which should be called “post-multiculturalist”, in which the language of
universal human rights is used in order to accommodate cultural and other differences. This
stage differs from the second one insofar as it departs from the defence of multicultural
rights, preferring instead to show how the demands of ethnic diversity can be answered
without resorting to conceptions of special rights and exemptions for minorities.
Stage 1: Human rights and multiculturalism stand in opposition
The expression “human rights” convokes a vast semantic field. Very often, people confuse
human rights with natural rights, or citizenship rights. Both the traditions of the natural
rights of man and of citizenship rights were certainly important in the historical evolution of
the idea of human rights. However, the contemporary meaning of human rights emerged in
Paris, in 1948, when the Universal Declaration of Human Rights was voted at the Palais de
Chaillot.
Human rights, then, are those subjective “claim rights” declared by the United Nations in
1948, as well as those that were added by posterior declarations and treaties. In particular,
the content of human rights is specified by the Covenant on Civil and Political Rights and
the Covenant on Social, Economic and Cultural Rights, both from 1966. Moreover, human
rights are also specified by several other documents in international law dealing with
particular categories of rights (for the abolition of slavery, against discrimination in
education, for equal remuneration for men and women, et cetera), as well as documents
regarding specific categories of people (stateless persons, refugees, women, children,…). All
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these arise in the framework of United Nations system and they are consistent with the
Universal Declaration.
Furthermore, human rights are also stated at the regional level, as in the case of the Council
of Europe and the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Finally, the protection of human rights at the state level is also
extremely important. This includes the rights that sates may accord to every human being in
their territory but also, with less impact internationally, the so-called fundamental rights
usually enshrined in the Constitution, which may be seen as a local application of the idea of
human rights in international public law.
This being said, human rights are a legal concept. But this point does not imply any kind of
legal positivism. One can easily link the idea of human rights affirmed in 1948 and after with
basic moral ideas, such as “intrinsic dignity” of human beings, equality, and the generality
and universality of those rights. Whether or not these rights and underlying principles require
further and deeper foundations is something that I will address below. The consensus among
the drafters of the Universal Declaration and the members of the UNESCO committee
charged with exploring the philosophical foundations of human rights was that agreement on
the list of rights was feasible, but there was no agreement whatsoever regarding the deeper
justification of those rights. The famous phrase mentioned by Jacques Maritain in the
“Introduction” to the proceedings of the UNESCO committee sums it all. He said: “Yes, we
agree about the rights, but on condition no one asks us why”.
Now this model of human rights – let us call it “the model 48” - does not include
multiculturalist concerns. I take multiculturalism in a strong sense, i.e., as requiring
multicultural rights in order to protect both ethnic and national minorities. If
multiculturalism were to signify the vague idea of distributing some resources to institutions
claiming to represent minorities in order, for instance, to subsidize festivals and the like, then
this would not be very relevant and it would not require careful discussion. Multiculturalist
demands become important whenever they affect and change the legal system requiring, for
instance, special representation rights, or other legal rights and immunities aimed at the
protection of cultural minorities. This is what multicultural rights are about. In 1948 and in
the documents consistent with the model 48 there is no room for multiculturalism in this
sense. Why is this?
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The drafters of the Universal Declaration and other documents in line with the model 48
were certainly aware of the multicultural character of the world as a whole and of many
independent sates. Nevertheless, they decided to adopt a list of rights blind-folded towards
cultural diversity.
Ethnic and national divisions had been at the centre of World War II. Recall that the Nazi
aggression was justified on racist basis and on the need of “Lebensraum” for the German
people. More specifically, the Nazis invoked the Minority Treaties that protected German
minorities with multicultural rights in Poland and Czechoslovakia. Because of these events,
the idea of special protections for minorities was discredited in the aftermath of the war.
Moreover, “the final solution for the Jewish question”, the Nazi euphemism for the Shoa,
and the very idea of the supremacy of the German people, were also based on racist and
ethnic considerations. In the aftermath of the war, after the full disclosure of the horrendous
crimes perpetrated by the Nazis, it seemed better to emphasize the unity of the human kind,
rather than its divisions. Therefore, the Universal Declaration states in its Preamble “the
inherent dignity” and the “equal and inalienable rights of all members of the human family”,
regardless of their cultural belonging. This is the spirit of 48.
The prevailing mood favourable to human rights and hostile to multicultural rights was
continued during the cold war. In this context, both the western Block and the Communist
countries were engaged in a geo-political struggle supported by ideologies, which were, by
and large, favourable to some form of equal rights and citizenship and suspicious towards
multicultural rights and differentiated citizenship.
In the West, the prevailing ideology was the defence of liberal-democracy with an emphasis
on the respect for fundamental freedoms and basic rights at the domestic level and
internationally. Much of the critique directed against the Communist countries was based on
their disrespect for human rights, particularly, civil rights such as freedom of expression,
association and reunion, and the right to political participation. Even the social movements at
the domestic level of Western countries were asking for access to equal rights – by black
people, by women, etc. – and not really for the recognition of their differences.
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In the Communist world, the prevailing ideology was Marxism, perhaps not always the
thought of Karl Marx, but at least the version usually called “Vulgar Marxism”. In this
framework, the only relevant divisions in society are social classes, not cultures. The
simplification of the class structure in bourgeois society leads to the contradiction between
the capital and the proletariat. Marx himself was clear in stating that the capital has no
homeland and the same applies to the working class. Belonging to a specific nation or ethnic
group was invisible in the light of Marxist categories. The aim of history was the elimination
of private property and the end of the class structure of society. This would be enough to
resolve all conflicts.
In so far as human rights are concerned, the contribution of Marxism was extremely relevant
even in the drafting of the Universal Declaration, emphasising the importance of social and
economic rights. In line with this, the counter-accusation that Communist countries used to
direct to the West pointed to the disrespect by liberal-democracies of those economic and
social rights. However, the Communist world was convergent with the West in the neglect of
multicultural rights and multicultural demands. The prevailing ideologies in the two blocks
agreed on this, even when disagreeing in almost everything else.
The opposition between human rights and multiculturalism, immediately after WWII and
beyond, is acknowledged by Will Kymlicka since his book on Liberalism, Community and
Culture. However, Kymlicka claims that this opposition is contingent and it actually goes
against the liberal tradition and the consensus among nations before WWII. As he writes:
“post war liberal clichés [about the opposition between human rights and multiculturalism]
need to be rethought, for they misrepresent the issue, and the liberal tradition itself” (p.211).
So, one aspect to take into consideration is the liberal tradition, which, before WW II used to
stress the commonality of the individual human being. Kymlicka finds this kind of approach
in the work of John Stuart Mill, T. H. Green, Hobhouse and Dewey. These authors were not
communitarians, but they were concerned with cultural membership and its protection as
part and parcel of the idea of the just society.
The other aspect that Kymlicka wants to put in evidence is the dominant political consensus
before WW II, in the framework of the League of Nations (Société des Nations). The
question of the protection of minorities was extremely relevant in this context, both at the
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domestic level of sates and internationally. The attribution of minority rights and treaties
drafted to ensure them was the current business of politics.
So, Kymlicka sees his own approach as a form of reviving the multiculturalist tradition
within liberal thought and political practice. However, in the context of the eighties or
nineties, he and other multiculturalists had to reconcile the claim for multicultural rights with
the prevailing culture of human rights. This point leads to a second stage in the relationship
between human rights and multiculturalism.
Stage 2: Making human rights and multiculturalism compatible
The shift towards making compatible human rights and multiculturalist demands started with
the ethnic revival still in the context of the Cold War (in some places, this revival may have
taken place later: for instance in the eighties and nineties). In any case, the claim of
multiculturalists is that, at some point, social movements and social groups started to ask for
the protection of their specific identities. Charles Taylor has provided the Hegelian language
of recognition to make sense of that shift, particularly in his influential paper on “The
Politics of Recognition” (in Amy Gutman (ed.), Multiculturalism).
According to Taylor, the struggles for recognition in the modern state were, in a first
moment, about access to equal citizenship. Groups excluded from citizenship, or
discriminated against in terms of rights of citizenship, demanded to be included. This
political logic applied to ethnic and national groups, as well as to others kinds of
marginalized identities (women, for instance). Taylor calls this “the politics of equal
dignity”.
Now the politics of equal dignity at the state level square well with human rights in the
model 48. The equal stand of all human beings in their human rights and the equal stand of
all the citizens in their fundamental rights are two aspects of the same promotion of “equal
dignity”. However, recognition through the politics of equal dignity became ever insufficient
once ethnic, national and other groups started to make visible their demands to be recognized
also in their differences, including through the attribution of multicultural rights.
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In order to capture this movement in history, Taylor suggests that “the politics of
difference”, although apparently in contradiction with the politics of equal dignity, is in fact
a development of the same modern desire to be recognized. After a first moment in which
recognition implied equal dignity, comes the second moment in which equal dignity is
maintained, but it is not enough anymore. In this second moment – perhaps the one we are
still living in – equal dignity is complemented by the politics of difference. Besides being
recognized as holders of the same rights, the members of different cultural communities
want to be recognized in their specificity and to see the collective ends of their communities
protected by differentiated rights.
Taylor complements his defence of the politics of difference with ideas regarding the prima
facie equal value of cultures, and also with the hermeneutic view regarding the dialogue of
cultures and a “fusion of horizons”. I don’t have time to get into that here. I just want to
point to the fact that Taylor’s language of recognition, equal dignity and difference provides
the dominant vocabulary for the paradigm of stage 2, i.e., the idea that human rights and
mutlticulturalism are compatible - they are as compatible as equal dignity and the politics of
difference.
This ability to reach a synthesis of two opposing views – namely human rights and
multiculturalism - at a very high level of abstraction is one of the features of Taylor’s work.
Nevertheless, even when the opposition is resolved in high theory, it tends to remain in
social reality. The devil is always in the practical details.
I think that Kymlicka’s work goes much further than Taylor’s in dealing with the practical
details and, therefore, in giving a more compelling version of the compatibility thesis than
Taylor’s. I am not going to summarize Will’s argument in favour of multicultural rights in
Multicultural Citizenship and after. I just want to recall the fact that his argument is
distinguishably liberal, since it is based on the protection of the values of choice and liberty.
The societal culture to which individuals are attached is a social primary good (in the sense
of Rawls) because it is this context that gives specific content to the individual choices. This
context needs to be protected by multicultural rights whenever it is endangered by the
pressure of the predominant culture.
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Kymlicka accepts human rights and equal rights of citizenship for all, but he adds that other
rights – namely multicultural rights – are needed in order to protect the societal culture of
minorities, whether they are national or ethnic. He enters into details by pointing out
different kinds of multicultural rights – self-government rights, polyethnic rights, special
representation rights – and establishing that not all those rights, or kinds of rights, are
required to protect all kinds of cultural minorities. For instance, national minorities usually
require self-government, whereas ethnic minorities ask for polyethnic rights, such as legal
immunities to protect traditional forms of life, or specific religious practices.
Because, unlike Taylor, Kymlicka enters into details he has to deal with the difficulties that
arise at the sociological and practical level. He is well aware that some of the demands of
cultural groups enter in conflict with the baseline of equality defined by general and
universal fundamental rights or human rights. He knows that anti-multiculturalists always
bring into discussion some multiculturalist demands that are difficult to accept, such as
female genital mutilation, arranged marriages, and the like. So, he has to draw the line
between “good” multicultural rights and “bad” multicultural rights. To do that, he
distinguishes between “external protections” and “internal restrictions”. I would like to focus
your attention for a while in this distinction.
Multicultural rights are always protections against external pressures coming from the
majority’s culture, against the minorities. As external protections, multicultural rights allow
the minorities to maintain their societal culture in time – even if this culture is always
evolving – and therefore, to protect the context of choice of their members. However,
multicultural rights, in the sense of Kymlicka, should not be internal restrictions to the
fundamental rights and freedoms of minority cultures. In short: multicultural rights should be
added to human rights, but without endangering the latter.
The conceptual distinction between external protections and internal restrictions is useful,
but it does not allow for easy decisions about which rights should be admitted as
multicultural rights. For instance, self-government rights in non-liberal communities (e.g., an
indigenous nation in America) may lead to the suspension of the Bill of Rights that is legally
binding for everyone else. In this case, self-government rights should not be admitted as
multicultural rights. But that is not what Kymlicka and other liberal multiculturalists say.
They prefer to think that it is acceptable to grant that kind of special status as a form of
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protecting the minority cultures against the laws and the Courts of the central state, even
when this state abides by international standards of human rights.
Now let us turn to the possibility of legal exemptions to protect the practice of polygamy by
some cultural minorities. Most liberal multiculturalists would say that this is unacceptable
because it breaches the principle of equality of men and women inside the family.
Nevertheless, the practice of polygamy may be extremely relevant for a community’s
identity and it may be defended as a voluntary option for adult men and women. So, it is at
least disputable that polygamy should not be accepted as an external protection and a
morally required multicultural right. I do not mean here that polygamy is acceptable, but
rather that I do not see why liberal multiculturalists should necessarily object to it.
These two examples – the illiberal self-governed community inside a liberal state and the
claim for legal immunity to polygamous marriages in an ethnic group – suggests that the
distinction between external protections and internal restrictions is not clear-cut and, what is
more, its application leads to argument based not in principles but in intuitions case by case.
Sometimes – like in the case of the illiberal nation – it is ok to limit fundamental rights, or to
suspend their application and legal protection. Some other times – as in the case of polygamy
in a given minority – it is not ok because it goes against the human rights view of equality
between men and women. So, in the first case liberal multiculturalists tend to be more
multiculturalist than liberal whereas in the second case they are usually more liberal than
multiculturalist.
Other examples could be given. But these two are enough to show that there is some
problem here. It seems to me that he culturalist view, by introducing the intrinsic value of
communal belonging, cannot but shake the idea of equal standing of all human beings
conveyed by the human rights approach, at least in the model 48. Accordingly, the
compatibility between human rights and multiculturalism advocated by liberal
multiculturalists is made at a price, namely, the departure from the strict advocacy of human
rights in the model 48 and the resort to intuition and casuistry in defining the exact shape of
that departure.*
* Kymlicka seems to believe that liberal democracies and human rights abiding regimes are solid-rock, that they will never be perturbed by less liberal forms of multiculturalism. I do not buy that.
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I believe that this lack of clarity among multiculturalists – even liberal multiculturalists –
regarding the protection of equal human rights has led to the erosion of the appeal of the
multiculturalist view, at least in Europe. This point leads to a next stage.
Stage 3: Moving away from multiculturalism in Europe
A third model regarding the relationship between multiculturalism and equal rights has
grown strong in Europe in recent years. This model is anti-multiculturalist, it is linked to a
number of practices and it is supported by theory. This model, usually called “civic
integration”, is now the prevailing view in European countries and also at the European
Union level.
In Europe, multiculturalism has been perceived as a Canadian story. There’s some truth in
this. Canada was the first country to develop consistent multiculturalist policies. Canada
even constitutionalised its multicultural character. It is not an accident that the two single
most influential thinkers on theses issues, Taylor and Kymlicka, are Canadian. Canadian
multiculturalism could be seen in a sympathetic way by some European countries with heavy
immigration contingents, particularly the Netherlands and, later, the United Kingdom, and
also by minority nations within unitarian sates, such as Catalonia or the Basque Country in
Spain.
Some historic nations in Europe acceded to self-government rights, increasing their
autonomy. This kind of processes is highly contested insofar as it implies a high price for
those who do not identify with the majority culture within the minority sub-unit (ex: non
Catalans, or non-nationalist Catalans in Catalunya). However, this kind of problems is not
usually associated with multiculturalism and the word is reserved to the politics dealing with
ethnic diversity, as opposed to multinationality. The decline of multiculturalism in Europe I
refer to here regards public policies dealing with migrants and their descendants, more than
historic nations.
In the European sense, multiculturalism is part of the political experience in the Netherlands
and, later, in the United Kingdom. Confronted with high levels of immigration, these
countries adopted the idea that immigrant communities could see their cultural practices,
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religion, language, etc. protected by law and still be part of the global society, or be one of
the pillars of the global society in those countries. However, these feeble multiculturalist
attempts are now over.
The perception that multiculturalist policies in these countries were not really working as an
instrument of integration of immigrants in the host society grew progressively since the
nineties and it reached its peak around 2004-05. These dates are symbolic in the sense that
they mark a dramatic non-returning point in the drifting away from multiculturalism in
Europen politics.
2004 is the year of the killing of movie maker Theo Van Gogh in Amsterdam. This event
and its exemplar character is well described by Ian Buruma. Buruma links the death of Van
Gogh – and the persecution to Hirsi Ali - to the backlash of Dutch multiculturalism. The
general perception in this country is that multiculturalist policies created the guethos of
resentment that made possible the killing of Van Gogh. The solution for this situation, then,
would be to require that immigrants show a more pro-active integration in Dutch society and
the respect of Dutch values.
2005 is the year of the terrorist attacks in the London transport system. Again in this case,
multiculturalist policies were blamed for the erosion of the sense of community, of
Britishness. The idea that different communities could stand apart in British society, and
with their differences protected by law, could not be easily accepted anymore. Since then,
multiculturalism is under fire also in this country.
Now this public perception and the link between multiculturalist policies and gethoisation,
and political violence, may be purely self-deceiving. Nevertheless, it a watershed for the
European experience of Canadian-like multicultural policies. This public perception also
makes anti-multiculturalism more attractive as a theory and it leads to the model that is now
prevailing in Europe, namely “civic integration”.
Communitarian and nationalist anti-multiculturalism are the driving forces behind the idea of
civic integration. The current tendency in most European countries – and with the support of
the institutions of the European Union – is to require immigrants to study the history and
culture of their host countries, to attend naturalization ceremonies in order to become
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citizens, to sign declarations of compromise with the constitutional values of the host
countries, and even to give up ostensive cultural and religious symbols and practices (the
hijab, the minarets). To my mind, this kind of practices reveals, with all evidence, that the
so-called “civic integration model” is rather a form of cultural assimilation by which
immigrants have to integrate in the host society not by maintaining their differences but
rather by cleaning the canvas of their lives and start afresh. The civic integration model
requires ethnic groups to keep their differences to themselves and to give up their expression
in the political domain and in the public square.
The French Republican model may be taken as an old example of civic integration. French
republican ideology was never prone to multiculturalism and it always required the
immigrants to adhere to the values of republicanism and laicism. In the French ideology,
these requirements are seen as universal values. But that is an illusion. They are very
peculiar to the French experience. They are communitarian values understandable in the
light of contemporary French history and, in same cases – such as the prohibition of the hijab
– they are also illiberal. However, the relevant question is whether or not the French model,
and civic integration in general, work better than multiculturalism.
Returning to the field of public perceptions, one should remind that civic integration has no
better record than multicultural policies. In the same year of 2005, when the London
bombings occurred, the peripheries of Paris and other French cities were in fire. Some of the
reactions in French society were no less strong than in the UK. There was a sensation of
gethoization as the result of previous policies. This situation is paradoxical: civic integration
seems to work as badly as multiculturalism. According to public perceptions in Europe, none
of these approaches led to a successful integration of immigrants. My point here is about
public perception, but also about the morality of those practices. Civic integration becomes
morally unacceptable whenever it is a form of illiberal cultural assimilation, as it is often the
case. And this leads to stage 4.
Stage 4: A proposal – back to human rights
The admission of the failure of both multiculturalism and civic integration as a way to deal
with immigrant groups in Europe invites a different approach. I want to suggest that the best
way out of the practical paradoxes of multicultural rights and supposedly civic integration
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leads back to human rights, or to a non-culturalized view of human rights. In a way, this
means to go back to the model 48. However, because sixty years occurred since the
Universal Declaration was approved, I believe that the practice of human rights has revealed
to be more flexible and sensitive to difference than what was initially stated in human rights
text law.
The suggestion that the human rights approach is still the best way to deal with ethnic
diversity in Europe - and perhaps also in other places – requires at least two strands of
argument. The first one is practical and must establish that human rights alone, without
recourse to rights protecting specific minorities, are enough to deal with diversity without
incurring in the problems and paradoxes of both multiculturalism and false civic integration.
The second strand of argument is philosophical and it requires that human rights are not
definitely ethnocentric and that they may be presented as detached from specific western
doctrines regarding the definition of human nature. I will deal with each one of these two
strands of argument at a time.
Human rights text law has evolved over the years in order to accommodate the demands of
ethnic minorities. One example of this is the 1993 Declaration on the Rights of Persons
Belonging to National, Ethnic, Religious or Linguistic Minorities. This Declaration, like
other UN instruments, does not cancel the universal and general character of human rights,
but it draws the attention of governments and other agents in the international arena
(intergovernmental organizations, ONG’s) to the need to protect and promote the rights of
persons belonging to cultural minorities. However, the multiculturalist idea of special rights
for minorities is not taken into account and this aspect is consequential.
In practical terms, and from the vantage point of equal human rights, it is hard to justify, for
instance, polygamous marriages. By the same token, the much discussed case of female
genital mutilation performed on children before the age of consent and arranged marriages,
are clearly excluded. The former breaches the prohibition of inhuman or cruel treatment of
individuals. The latter trumps the principle that “Marriage shall be entered into only with the
free and full consent of the intending spouses” (Universal Declaration of Human Rights).
Nevertheless, many other demands by ethnic groups may be easily accommodated.
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Imagine that a hindu living in Europe asks to be cremated in a open air pyre, rather than in a
closed crematory oven. Is it required, in order to have a moral assessment – and, in the end,
also a legal decision – about this demand to revert to multicultural rights, or to deny the
demand by invoking false civic integration? Certainly not. Human rights language and the
principle of non-discrimination is enough to justify that the wish to be cremated in a pyre is
attended and protected by law. The important requirement here is that this possibility is
given not just to members of the hindu community, but also to everyone who wishes to be
cremated in open air.
Take another case: the exemption of rules regarding animal slaughter for some groups of
Jews and Muslims. Unless one believes that non-human animals also have human rights, this
kind of exemptions can be accepted. However, the exemption has to be accorded to all, not
just to some specific groups. Recall that, in many parts of Europe, there’s the traditional
killing of the pig, bleeding the animal to death, which is perhaps not closely linked to the
Christian tradition but is nevertheless a time-honoured practice of great importance both
economically and for the cultural identity of the communities where it occurs. If Jews and
Muslims can bleed their animals to death, why can’t a peasant in Spain? The alternative to
the granting of this kind of rights is the idea that all should obey the existing general law
about animal slaughter. But, in that case, this should apply with no exceptions based on
cultural premises.
In spite of these examples, I don’t want to convey the impression that I am an anti-
multiculturalist in the sense of Brian Barry, since I prefer to describe myself as a post-
multiculturalist. Multiculturalist demands are not something to forget about and the work of
multiculturalist philosophers is of great importance. But multiculturalist demands – this is
my contention - should be re-interpreted in the language of human rights and they should be
connected with other kinds of demands by dominated or oppressed people. Using principles
of non-discrimination and equal treatment, the language of human rights may also meet these
other demands, such as those based on social class, or sex, or sexual preference, or handicap,
or lifestyle, and so on and so forth. And I mean non-discrimination and equal treatment
applying to all human beings, and to all citizens at the domestic level of states, regardless of
their communitarian belongings.
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I will not say more about the practical aspects of the return to human rights as the best way
to deal with cultural diversity and I turn to the second question, namely the need to detach
human rights from its ethnocentricity or, to be more clear, from that kind of ethnocentric
reading in philosophy that deliberately obscures the universal role of human rights and
submits them to the radical “suspicion” of being only a product of a European and
Enlightened conception of man.
The traditional view on the justification of human rights links those rights with a specific
moral philosophy and philosophical anthropology. According to the traditional view human
rights are the rights of all human beings only by virtue of their humanity. This implies some
definition of men’s “humanity” and of the fundamental values that protect it. Thus, human
rights may be seen as a protection of agency or personhood (Alan Gewirth; James Griffin),
capabilities (Amartya Sen / Martha Nussbaum), or even basic needs (David Miller). All
these possibilities, different as they are, belong to the same strand of argument. They all try
to found human rights on the most fundamental human values that those rights are supposed
to protect.
Now there is a completely different view, which conceives of human rights as non-
foundational, but still an object for rational justification and argument. The basis of this view
was advanced by John Rawls in his contribution to the philosophy of international law. The
same view was recently further developed by Charles Beitz and Joseph Raz. According to
this view it belongs to the specific nature of human rights – as opposed to other kinds of
rights – their non-foundationality. In other words, human rights should not be confused with
fully justified moral rights. Sometimes this view endorsed by Rawls, Beitz or Raz is called
“the political or practical view”. I prefer to call it “the functional view” since its mains point
is the understanding of the very concept of human rights in terms of the functions of those
rights.
The main function of human rights in the international system is the limitation of the
external sovereignty of states. Human rights are those rights whose violation legitimises
some form of interference by states and international organizations in another state’s
sovereignty. This is the main point made by Rawls, Raz and Beitz. But one should add that
human rights perform other functions, both in the international system and at the intra-state
level. For instance, at the domestic level, human rights protect individuals against the state
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and other powers and they are a sine qua non condition for the justification of political
obligation. The important point here is to call the attention to the fact that human rights do
perform these and other functions and that they are already part of our political and legal
landscape, in spite of the fact that there is no agreement – and, I suspect, thee will never be -
regarding their deepest philosophical foundation.*
So, what I have been suggesting here is that both at the level of its philosophical
underpinnings and political – and legal – practice, human rights provide the best framework
to deal with diversity. The language of human rights is already in place and it is less
contested that multiculturalism or civic integration (perhaps with the exception of China).
Moreover, this language is aimed at protecting all oppressed individuals, whether or not their
oppression is based on cultural bias.■
Bibliography
Barry, Brian (2001) Culture and Equality: An Egalitarian Critique of Multiculturalism,
Cambridge, Polity Press.
Beitz, Charles (2009), The Idea of Human Rights, Oxford, Oxford University Press.
Gewirth, A. (1982), Human Rights, Chicago, Chicago UP.
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* There is a lot more to say about the functionalist account of human rights, but I will leave that for the discussion.
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