Abstract
How can human rights be formulated so as to constitute an essential aspect of public reason in a pluralist world, in which differences of religion, culture and world-views are paramount? This article examines the answer provided to this question by Joshua Cohen in a series of recent publications. Proceeding from a Rawlsian framework, Cohen Maintains that human rights are about conditions of membership and inclusion in liberal as well as decent-hierarchical societies. He denies, however, that democratic self-government is among such conditions. There is no ‘human’ right to democracy. Through a close reading of Cohen’s argument, it is shown that his position is self-contradictory, and that furthermore, the Rawlsian framework suffers from a sociological deficit in its characterization of human societies and world-views. The methodological ‘holism’ of the Rawls-Cohen approach minimizes competing narratives and traditions within other cultures and thus hinders a complex conversation to evolve within and across cultures – a conversation that has intensified in the modern age when the demand for democratic self-government has become a world-wide claim.
*I first developed the themes discussed in this essay in my Presidential Address to the American Philosophical Association, Eastern Division in December 2006. See Benhabib (2007a, 7–32). I have presented this lecture at the University of Kansas at Lawrence upon the occasion of the annual Lindley Lecture (October 26, 2007); during the annual meeting of the Yale Law School’s Middle Eastern Seminar in Istanbul, Turkey in January 2008; at Yale’s “Law and Globalization Seminar” on March 31, 2008; at Fordham University’s Graduate Students in Philosophy Conference on April 12, 2008, and at the People for Women in Philosophy conference at the New School for Social Research on April 23, 2008. I wish to thank participants in these occasions for their lively engagement and comments and in particular, David Alvarez Garcia, for drawing my attention to Joshua Cohen’s work on democracy as a human right.
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Notes
- 1.
See Ignatieff ( 2001 ). I use the concept of “a public vocabulary” to distinguish it from the Rawlsian concept of “public reason.” Public reason for Rawls is primarily the deployment of reason as a justificatory enterprise in a pluralistic, liberal society, in which many world-views compete for the allegiance of citizens. See Rawls ( 1996 ). A “public vocabulary,” by contrast, is a shared normative language for all sorts of actors and agents in civil society, as well as state institutions, within, and often beyond national borders, through which moral and political claims are articulated. It would go beyond the limits of this essay to explore all the epistemological and methodological differences between the Rawlsian concept of public reason and the discourse-theoretic model which I will defend. For my early critique of Rawls, see Benhabib ( 1996 ).
- 2.
- 3.
- 4.
Walzer ( 1994 ). It is unclear to me what a human right against “deceit” would imply? A right not to be lied to? This is a moral claim, not a human right.
- 5.
Beitz ( 2001 , 272).
- 6.
Nussbaum (1997–98, 273–300).
- 7.
Rawls ( 1999 , 65). The earlier list in the 1993 article of the same title presented a slightly different formulation: included here as human rights were “the elements of the rule of law, as well as the right to a certain liberty of conscience and freedom of association, and the right to emigration,” Rawls ([ 1993 ], 554).
- 8.
- 9.
Cf. Morsink ( 1999 ).
- 10.
Griffin ( 2001 , 1–28). The result of such an examination may be that “Some of the items on the lists are so flawed that they should be given, as far as possible, the legal cold shoulder” (26). I agree, but Griffin proceeds from a rather conventional account of human rights as “centered on the notion of agency…We value our status as agents especially highly, often more highly than our happiness. Human rights can then be seen as protections for our agency – what one might call our personhood” (4). This defense of human rights is subject to the same criticisms as all other agent-centric views: that some condition is necessary for the exercise of my agency does not impose an obligation upon you to respect this condition, unless you and I also recognize each other’s equality and reciprocity as moral beings. This is the first justificatory step in the argument. See fn. 24 below.
- 11.
See Cohen ( 2004 , 192).
- 12.
Nagel ( 2005 , 1522). For Nagel, “negative rights like bodily inviolability, freedom of expression, and freedom of religion” are “morally unmysterious” in their defense (1522). To call “freedom of expression” and “freedom of religion” negative rights displays a very limited view of the meaning of human associations and of citizenship. This position completely occludes the problem of “democratic iterations,” which I will discuss below. In strict terms, Nagel is both a “substantive” and a “justificatory” minimalist. But I will not be able to pursue this problem here.
- 13.
- 14.
Cf. Arendt ([1951] 1968 ed., 177). For an extensive discussion of some of the shortcomings of Arendt’s own formulation of this concept, see Benhabib ( 2004b , 50–61).
- 15.
Again, there is a fascinating overlap here between Joshua Cohen’s claim “that human rights norms are best thought of as norms associated with an idea of membership or inclusion in an organized political society” ( 2004 , 197), and the “right to have rights.”
- 16.
See note 25 below and also Benhabib ( 2004a , Introduction).
- 17.
The juxtaposition of a “political” versus “metaphysical” conception of human rights, which Baynes proceeds from (see above Baynes 2009 ), strikes me as being very narrow. This contrast is by no means exhaustive of the range of justification of human rights. It is completely mysterious to me how one can have a conception of rights without basing it on some conception of human agency. Such a conception of the rights-bearing person as an agent can certainly be based upon metaphysical and other kinds of comprehensive views, but they need not be. The discourse ethics and the view of human agency I articulate here correspond best to what Risse has called “a principle-driven” account of human rights. See Risse ( 2008 , 5).
- 18.
For further elucidation of these terms, see Benhabib ( 2007a , 11 ff.).
- 19.
Waldron (1984, xxx). I have also found very helpful, Smith, “The Normativity of Human Rights,” (manuscript on file with the author).
- 20.
For a careful analysis of the self-contradictions of MacIntyre’s own appeal to reason, see Forst ( 2002 , 200–215).
- 21.
- 22.
This is the major flaw in James Griffin’s otherwise instructive account ( 2001 , 4 ff.).
- 23.
See Benhabib (1992, 35–37).
- 24.
See the innovative interpretation of Arendt’s “the right to have rights” by Birmingham (2006). Birmingham writes: “The right to have rights is inspired by a new principle of humanity; the principle of publicness that demands that each actor by virtue of the event of natality itself has the right to temporary sojourn on the face of the earth” (58). Italics mine. Although I cannot go into greater detail within the compass of this essay, let me simply mention that Birmingham addresses but, in my view, does not resolve, the problem of “the lack of normative foundations” in Hannah Arendt’s thought.
- 25.
See Gewirth (1983).
- 26.
I wish to thank Richard J. Bernstein for pressing me on this point. In The Claims of Culture I addressed this question from within a mode of deliberative democracy and distinguished between “the syntax” and “semantics” of public-reason giving. Reasons, I suggested, would be counted as good reasons because they could be considered as being in the “best interest of all considered as moral and political beings.” And to parse X or Y – a policy, a law, a principle of action, to be “in the best interests of all”, would mean “that we have established X or Y through processes of public deliberation in which all affected by these norms and policies take part as participants in a discourse” (Benhabib 2002, 140 ff.). I said that there is no way to know in advance which semantically specific claims or perspectives may count as “good reasons.” What discourse ethics, as well as deliberative democracy modeled on discourse ethics, rules out are some kinds of reasons – these are ones which cannot be syntactically generalizable.
- 27.
This is not a metaphysical claim. It results from the generally accepted philosophical method of analysis which focuses on the necessary presuppositions underlying many human practices. This kind of analysis was called “transcendental” by Kant, who associated the transcendental with the lack of conceivable alternatives in any universe thinkable by human beings. After Strawson’s path-breaking work on Individuals, it is more common to refer to this type of claim as “presuppositional” analysis and leave open whether or not any alternative can be conceived to it.
- 28.
See the very instructive reflections by Bobbio (1996, 12–32).
- 29.
Nussbaum (1997–98, 273–300).
- 30.
The UN Commission on Human Rights, created in 1946, drafted “major international human rights standards, including the two international human rights covenants, which, together, with the earlier adopted Universal Declaration of Human Rights (1948), form what is known as the International Bill of Human Rights,” (Terlingen 2007, 168). For the documentation of the Declaration and Covenants, see: Steiner and Alston (2000). Louis Henkin writes: “As of 1999, some 140–145 (of the near 190 members of the United Nations) have adhered to each of the two Covenants, albeit in some cases with significant reservations. Contrary to expectations and earlier trends, about as many are parties to the Covenant on Civil and Political Rights as to the Economic and Social Rights Covenant.” Louis Henkin, “Ideology and Aspiration, Reality and Prospect” (2000, 15).
- 31.
Human rights are often considered to constitute that defensible minimum which must be respected by any range of variation. I agree but what I am insisting upon is that the significance of democratic self-government to the articulation of that range of variation among schedules of rights has been neglected. I am grateful to my colleague Alex Stone Sweet for bringing the relevance of Article 29 of the UDHR to my attention on this respect: “(1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” (Universal Declaration of Human Rights).
- 32.
See Sen (2004, 333. fn. 31).
- 33.
For an extended discussion of the problem of “methodological holism” in Rawls’s work, see Benhabib, (2004a, 1761–1787).
- 34.
Cf. Cohen (2006, 226–248).
- 35.
Cohen writes: “The distinction between the rights that must be assured in a just political society and human rights is associated with Rawls’s distinction between liberal and decent but non-liberal peoples” (2006, 228).
- 36.
Cohen (2006, 242–43). I am assuming that the equal right of persons to take part in the affairs governing their collective existence through the medium of law and the articulation of their opinions and preferences in a political community is the essence of the democratic form of government. How this is institutionalized – whether through period elections; a multi-party system; proportional representation; mandates and recalls, etc. – belongs not to the idea of democracy but to its concretization in specific socio-historical contexts, and there can be legitimate disagreements about them.
- 37.
I have been asked to clarify the force of this “must.” If there is a human right to democracy who is responsible for enforcing this right? Or does this mean that the world community ought to intervene in non-democratic societies to enforce this right? As I will argue in the final sections of this essay, human rights violations do no create obligations to intervene except under conditions specified by the Genocide Convention, and as necessitated by self-defense, as formulated in Article II (7) of the UN Charter, and as authorized by permanent members of the UN Security Council. The human right to democracy is “an aspirational claim,” which as the formulators of the UDHR very pertinently say, formulates “a common standard of achievement for all peoples and all nations” (Universal Declaration, Preamble). The force of such aspirational claims is manifest in processes of “democratic iterations” which they sometimes set into motion and help sustain.
- 38.
See the classical essay by Dworkin, “Taking Rights Seriously” ([1970] 1978), 184 ff.).
- 39.
Since I consider individuals as “generalized” and as “concrete” others, taking into account their embodiment, the protection of the bodily integrity of persons, who are sexed differently, is an important human right. It is not only women who are subject to sexual violence, many gay men are as well; however because of their capacity to become pregnant, forced and arbitrary violence against women affects their personhood and capacities for communicative freedom differently than gay men. The important point is to keep in view the different kinds of violence that one can be subject to as a result of sexual difference and to incorporate this into our understanding of human rights. For example, many governments, including the USA and Canada, now recognize and grant as legitimate, requests for asylum for women escaping Female Genital Mutilation.
- 40.
For further elucidation, see Benhabib (2002, ch. 5 in particular).
- 41.
- 42.
I offer democratic iterations as a model to think of the interaction between constitutional provisions and democratic politics. It may be possible to extend democratic iterations as a model for the “pouvoir constituant,” the founding act as well. In this essay, I am assuming that democratic iterations are about ordinary as opposed to constitutional politics; though I am claiming that ordinary politics can embody forms of popular constitutionalism and can lead to constitutional transformation through accretion. There is a lot more that needs to be said about the relationship of a discourse-theoretic analysis of democratic iterations and political liberalism than I can within the scope of this paper. See Rawls’s final reflections in his “Political Liberalism: Reply to Habermas” (1995, 172 ff.). Thanks to my student Angelica Bernal for her observations on this problem.
- 43.
For a discussion of traditions besides liberalism which do not acknowledge that individuals are “self-authenticating sources of valid claims,” see Cohen (2004, 207).
- 44.
I have elucidated this distinction further in: Benhabib (2007b, 445–463).
- 45.
For an account of how the decolonization struggles inspired the “right to democratic self-governance,” see Frank (1992, 46–91).
- 46.
Cf. Doyle (2001, 219–241).
- 47.
- 48.
See Buchanan (2001, 673–705).
- 49.
Kant ([1795] 1994). Second and enlarged edition, appendix II.
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Benhabib, S. (2012). Is There a Human Right to Democracy? Beyond Interventionism and Indifference. In: Corradetti, C. (eds) Philosophical Dimensions of Human Rights. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2376-4_10
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