Abstract
Arguments from human nature are not only used to justify fundamental rights; human nature is also an instance of critical evaluation as to whether an idea of rights is feasible or not. The different ambitions that are connected with the very idea of rights, especially in the modern natural right tradition, can often be traced back to divergent anthropological assumptions on human dispositions and conduct. In his contribution “Human Rights, Human Nature, and the Feasibility Issue” Jörn Reinhardt explores how the feasibility requirement applies to fundamental rights. Even though the idea of a “natural right” (in its many variations) and post-1945 human rights are two highly distinct phenomena, a central premise in both discourses is that a concept of rights must be realistic (or rather realizable). Reinhardt explores to what extent arguments from human nature are helpful to deal with the feasibility issue.
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- 1.
Cf. Gadamer’s reading of the Aristotelian understanding of natural right as an essentially “critical” concept (Gadamer 1960, 316–317). Cf. further Joachim Ritter’s interpretation of Eth. Nic. V 1134 (Ritter 1963, 157–158). See also Strauss (1953, 156–159). In contrast, Leo Strauss has apparent difficulties with the Aristotelian idea that the natural right is changeable, preferring instead the Thomistic model: “The Thomistic doctrine of natural right […] is free from the hesitations and ambiguities which are characteristic of the teachings, not only of Plato and Cicero, but of Aristotle as well. No doubt is left […] regarding the immutable character of the fundamental propositions of natural law” (Strauss 1953, 163). For the various threads of the natural right tradition compare now Contreras (2013).
- 2.
For Leo Strauss, it was the emergence of modern natural science that lead to a highly visible break with tradition. The replacement of a teleological by a materialistic worldview had a profound impact on social and political life. According to Strauss, the protagonist “who was the first to draw the consequences for natural rights from this momentous change was Thomas Hobbes” (Strauss 1953, 166). One of these consequences was a turn toward an “individualistic” or subjective conception. Michel Villey sees already in William of Ockham the advent of the modern notion of a “subjective right” in contrast to the Aristotelian-Thomistic variation of classic natural law (Villey 1964; cf. also B. Tierney’s objections to Villey’s reading of Ockham in Tierney 1997, 18).
- 3.
Therefore, it is disputed whether the classical tradition had the concept of a “right” at all. The idea that natural rights are derived from the natural law is deeply rooted in natural rights thinking (cf. Finnis 2002). However, the term refers to a state of affairs that is “right” rather than to individual entitlements in the modern sense of the term right (for a critique of the idea that subjective rights can be extracted from the natural law, see e.g., Villey 1983).
- 4.
This methodological starting point is not self-evident for the classic concept of natural right. It differs already from the Platonic approach, and even within the tradition that explicitly refers to Aristotle it has been lost by the time in scholarly orthodoxy.
- 5.
Whether this idea presupposes that an “ought” is build into the constituents of human nature, is controversial, cf. Finnis (2002).
- 6.
This kind of methodological reservation finds an echo, for example, in Benthams’s criticism of the guiding political principles of the French Revolution (“nonsense upon stilts”) and in Burke’s critique of the “spirit of speculation” that animated French revolutionary thinking (on the latter, see Strauss 1953, 294–304). For Kant, it is important that “even a race of devils, granted that they have intelligence” can bring about the constitutional idea. A concept of rights that is built on Machiavellian territory is more likely to be realized, even though it might – given the circumstances – remain an ambitious enterprise.
- 7.
Cf. McDowell (1998, 192): “To use the rhetoric of ethical realism, second nature acts in a world in which it finds more than what is open to view from the dehumanized stance that the natural sciences, rightly for their purposes, adopt. And there is nothing against bringing this richer reality under the rubric of nature too. The natural sciences do not have exclusive rights in that notion; and the added richness comes into view, not through the operations of some mysteriously extra-natural power, but because human beings come to possess a second nature”. McDowell also makes use of the German word Bildung to characterize the process by which each human being achieves his or her “second nature” (McDowell 2003, 87). This reference shows the affinity McDowell’s understanding has towards the hermeneutical tradition in general and Gadamer’s work in particular. But the notion of nature is not among the guiding concepts used by Gadamer to “recover” the fundamental hermeneutic problem. The term refers merely to the “nature of things” or the “nature of the subject matter” (Natur der Sache), which is something completely different. In order to demarcate a naturalistic approach from competing, e.g., constructivist, explanations it must be made clear as to why this development is an expression of human nature and not a cultural achievement or even a repression of nature.
- 8.
The different anthropological accounts do not offer a “neutral” access to human nature, but are expressions of a certain ethos. On the contribution of (empirical) anthropology to the human rights discourse and the role and activities of the American Anthropological Association, see Goodale (2009).
- 9.
I refer to the volume (Roman) and page numbers of the Prussian Academy Edition (Kant 1902) and of the respective translation (Arabic numeral). For Kant’s Idea for a Universal History, I used the Allison translation in Rorty and Schmidt (2009). The other translations are taken from Reiss (1970). The following abbreviations are used to refer to specific works: PP – Toward Perpetual Peace; Idea – Idea for a Universal History with a Cosmopolitan Aim; ThP – On the Common Saying: That May be True in Theory, but is of No Use in Practice; RL -- Metaphysics of Morals, Part I (“Rechtslehre”); CJ – Critique of the Power of Judgment; CoF – The Contest of Faculties; Religion – Religion within the Limits of Reason Alone.
- 10.
The German noun Recht can mean either “law” or “right”, and Kant often uses the word in both senses. In fact, they refer to each other. Subjective rights can only be guaranteed in a state of law, and the positive law must not contradict essential rights in order to be legitimate.
- 11.
Cf. only the extensive use that Kant makes of the language of natural right theory at the beginning of Rechtslehre. The term “natural” signifies only that the main principle can be recognized a priori by reason (see Kant’s remarks in RL VI 237). The “state of nature” is something that is to be left behind: Exeundum esse e statu naturali (cf. Religion, VI, 97). On the reception and critique of a natural right by Kant, the transformation of a natural right in a law of reason and its implications, see already Wellmer (1998, 85–106).
- 12.
For a sociological reconstruction of the natural law tradition, see Thornhill (2013).
- 13.
For the different versions of the principle ‘ought implies can’ in Kant’s writings see Stern (2004, 52–55). Stern favors a weak reading of the principle.
- 14.
In the Idea for a Universal History (1784), Kant develops this teleology from the overall premise that all natural predispositions of a creature “are determined sometime to develop themselves completely and purposively” (First Proposition; Idea – VIII, 18/11). According to the second proposition, those natural predispositions develop completely “only in the species, but not in the individual” (Idea – VIII, 18/11). The telos and at the same time the greatest problem for the human species “is the achievement of a civil society universally administering right” (Fifth Proposition; Idea – VIII, 22/14).
- 15.
Cf. PP VIII, 366: “But now nature comes to the aid of the universal, reason-derived will which, much as we honour it, is in practice powerless. And this she does, by means of these very self-seeking propensities.” See also Idea VIII, 21/14: “The human being wills concord; but nature knows better what is good for his species: it wills discord.”
- 16.
Especially in Perpetual Peace, Kant ascribes to institutions a constitutive role in realizing the common good, “for it only depends and so much lies within the power of man – on a good organization of the state” (PP VIII, 366).
- 17.
Even though the protection of human rights has become a matter of the world community, one cannot ignore that these developments are fragile, deeply conflicted, and marked by enormous setbacks and inconsistencies (cf. only Pogge 2005). The attempt to write a history of human rights “from the stone age to the globalization era” (Ishay 2004) requires a lot of retroactive interpretation in which nonlinear events and inconsistencies are brought in line. On the function (and the seeming paradox) of the claim of “self-evidence” of human rights for the “invention” of the concept, see Hunt (2007).
- 18.
Otherwise the narrative will lack the enthusiasm that is “of considerable anthropological significance” (CoF VII 86/183). Identifying “constitutional moments” (B. Ackerman) is also an important element for forming the various narratives of international constitutionalism.
- 19.
For the idea of human rights protection through binding transnational law or “societal” constitutionalism, see Teubner (2012, 124–149) with further references.
- 20.
Consequently, Charles Beitz treats the objection of infeasibility as “another kind of skepticism” (c.f. Beitz 2009, 3–4).
- 21.
More robust reactions towards human rights violations such as the collective use of force or international criminal law measures (understood as a “subset of international human rights”, c.f. Stacy 2009, 171) only apply to large scale human rights violations and are often highly selective. Helen Stacy distinguishes three sources of shortcomings: domestic implementation problems, international bureaucracy problems, and credibility problems resulting from a cultural critique (Stacy 2009, 37–75).
- 22.
The latitude of states to address international human rights concerns in a domestic context is highly contested. A possible way of addressing the problem of world-wide human rights infringements from a domestic starting point are instruments like the United States Alien Tort Statute (“ATS”). The statute gives non-US citizens the possibility to ask for remedy in cases of human rights violations before U.S. federal courts. Two recent decisions in Kiobel have limited its scope significantly. The Court of Appeals for the Second Circuit excluded tort liability of companies involved in human rights violations holding, inter alia, that private companies are not directly bound by international law (Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010)). The decision was upheld by the Supreme Court on April 17, 2013 (Kiobel v. Royal Dutch Petroleum Co, 569 U.S. ___, 2013). The majority ruled further that the ATS does not apply to human rights violations committed on foreign territory relying on a general “presumption against extraterritorial application” (Id. at 4).
- 23.
See Cassese (2012a, XX): “brought to fruition in the next two or three decades” (emphasis in the original).
- 24.
A similar divide characterizes the debate about the status quo and possible developments of international constitutionalism. While the constitutionalists are ready to abandon central elements of domestic constitutionalism to be able to make use of the concept on an international level, the opponents insist on the traditional interpretation and, therefore, abstain from describing and evaluating the ongoing developments in terms of constitutionalism. The latter do so for the sake of conceptual clarity and in order to mark the differences between mere legality and constitutionalism; consequently, they accuse the international constitutionalists of “revisionism.” The former insists that normative concepts have to be developed and revised in light of changing conditions and respond with the reproach of “nostalgia” (cf. Kumm 2010, 201).
- 25.
Michael Walzer distinguishes three distinct paths for critique: the paths of discovery, invention, interpretation (Walzer 1987, 3). On the differences between the various models of political and social criticism (construction versus reconstruction, interpretation versus invention, etc.), see also Honneth (2009). In his introduction to Realizing Utopia, Antonio Cassese characterizes the appropriate method of idealist international law scholarship as “critical positivism” (Cassese 2012a, XVII–XVIII). It is not clear, though, how the commitment to positivism establishes “solid ground” and pursues “realistic and viable avenues” (ibid). As an innovative legal scholar and “judicious reformer”, one must necessarily move beyond positive law. On Cassese’s approach and its limits see Feichtner (2012).
- 26.
Cf. John Rawls’ attempt to write “ideal theory.” Rawls introduces idealized procedural elements (“veil of ignorance,” rational agency, etc.) to spell out principles of justice.
- 27.
For a detailed defense of the reconstructive or “interpretative” approach against the charge that it undercuts the very possibility of social criticism, see Walzer (1987).
- 28.
For a more complex and nuanced view of political “realists”, especially of mid-century realist positions of thinkers like E.H. Carr and Morgenthau, see Scheuerman (2012).
- 29.
The first condition is that a political conception must rely on “the actual laws of nature” (Rawls 2001, 12). Second, that it must be “workable and applicable to ongoing political and social arrangements” (Rawls 2001, 13). But given that it is highly contestable as to how far the “laws of nature” extend and what it would mean for a concept to be “workable”, for, as Rawls puts it himself, we can change the existing institutions and “much else”, these criteria can hardly provide an orientation for deciding which standards are utopian in a problematic sense and which are not.
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Reinhardt, J. (2014). Human Rights, Human Nature, and the Feasibility Issue. In: Albers, M., Hoffmann, T., Reinhardt, J. (eds) Human Rights and Human Nature. Ius Gentium: Comparative Perspectives on Law and Justice, vol 35. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-8672-0_10
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