Abstract
In a recent article in Political Theory (40, 5: 573–601), entitled “Human Rights, Freedom, and Political Authority,” Laura Valentini proposes a “freedom-centered” account of human rights. On this account, “human rights are derived from the universal right to freedom, namely each person’s innate right to a sphere of agency within which to pursue her ends and goals without being subject to the will of others” (574). In spite of its prima facie appeal, I argue that Valentini’s theory does not do a good job at explaining some of our settled convictions about the content of human rights and that she offers an implausibly restrictive view of our reasons for respecting human rights. I conclude by very briefly presenting the main elements of a broader perfectionist and dignitarian account of human rights, which seems more consistent with our settled convictions on these matters.
Modern theories of justice were forged in the crucible of the social contract tradition, in which the norms of social and political life are viewed as the product of a hypothetical agreement among equals on shared terms of cooperation. In this context, political communities are viewed paradigmatically as communities of rational agents, that is, communities of persons capable of deliberating rationally and concluding agreements. 1 If political communities are viewed in these terms, then it is natural to view the subject of rights in its purest form as a rational, self-determining agent, and to view anyone outside this category as an aberration rather than as a typical case of the subject of rights. This is borne out by the work of the leading social contract thinker of the twentieth century, John Rawls, who stipulates that a “person,” the bearer of rights and duties within a political community, is someone who enjoys the “two moral powers,” namely, the capacity for a sense of justice and the capacity to hold and revise a conception of the good. 2 Rawls and his successors rarely speak about humans who lack the two moral powers, whether infants, the cognitively impaired, or the mentally infirm, and the few times they do mention them, they seem to view them as imperfect specimens of rational adults, whose dignity stems from their potential or progressive acquisition of the moral powers. 3
Neither Rawls nor other liberal thinkers who give theoretical primacy to individual liberty have managed to produce a clear and cogent rationale for extending the dignity of autonomous agents to those who fall on the fringes of the social contract, those who, far from being autonomous agents with a developed conception of the good, are totally dependent on their caregivers and either temporarily or permanently disabled from making their own choices about how to live. Any theory of rights premised on the equal dignity of autonomous rational agents must properly explain how or to what extent we can ascribe dignity to radically heteronomous and/or cognitively impaired human beings. Otherwise the case of children, the mentally disabled, and the insane will continue to be treated as puzzling “outliers” in the “penumbra” of the theory of rights. 4 But they are human beings, and if they do indeed have rights, as most of us would recognize, then they surely deserve better.
The tendency of liberal thinkers to place exclusive or near-exclusive value on rational, autonomous forms of life while glossing over the value of less rational and less autonomous forms of life is reflected quite clearly in a recent article in Political Theory, which attempts to ground human rights exclusively in the value of freedom. In her article “Human Rights, Freedom, and Political Authority” (Political Theory 40, no. 5: 573–601), Laura Valentini contends that “human rights are derived from the universal right to freedom, namely, each person’s innate right to a sphere of agency within which to pursue her ends and goals without being subject to the will of others” (574). Valentini contends that her freedom-centered account “explains our most deeply held convictions about the nature of human rights” (578). Yet, as I show below, by fastening on freedom and rational agency as the justificatory and explanatory root of all human rights, Valentini implicitly rules out a range of legitimate human rights claims just because they deviate from her arbitrarily narrow conception of who counts as a bearer of rights and of what counts as a right.
There is certainly something to be said in favor of the “freedom-centered” approach to human rights. First of all, a freedom-based explanation of human rights is simple and elegant: human rights are interpreted simply as those entitlements that a State ought to guarantee its citizens (1) out of respect for their status as “potential or actual self-directing [agents]” (574) and (2) as a way of affording them the conditions under which they can enjoy a protected sphere of agency. Second, a freedom-centered account seems, in many respects, to fit the practice of rights as we know it, since the idea of freedom figures very prominently in modern civil and human rights claims—not to mention the fact that many rights mentioned in influential human rights documents such as the European Convention of Human Rights seem readily explicable in terms of their contribution to human freedom. For example, the rights to religious freedom, political expression, property, a fair trial, and freedom from servitude all seem to contribute in essential ways to the capacity of an agent to direct his own life according to his own lights.
Yet like many elegant explanations, the freedom-centered account of human rights is a bit too elegant. In what follows, I shall argue that Valentini’s theory is illustrative of the limits of autonomy-centered approaches to justice and rights, in two respects: first, her theory proposes an implausibly restrictive view of our reasons for respecting human rights; and second, it fails to convincingly account for the content and scope of human rights. I will conclude my critique by very briefly presenting the main elements of a broader perfectionist and dignitarian account of human rights, which can be readily extended to nonautonomous human beings.
Valentini’s Use of Freedom to Justify and Derive Human Rights
A theory of human rights must explain what human rights are, and why they constitute morally legitimate claims on a certain range of agents. I shall assume for the purposes of this discussion that there is a certain range of entitlements that really do constitute human rights, by which I mean, roughly speaking, fundamental entitlements enjoyed by human beings as such, whose violation is an assault on their dignity, and which deserve some form of protection, whether by the state or by some other entity. An adequate normative account of such rights would have to answer at least two basic questions: first, why do we attribute fundamental entitlements of this sort to human beings (or some subset of human beings)? Second, on what basis should we specify the content of human rights?
Let us start with the problem of human rights standing: what is it that gives a certain range of entities the sort of moral standing that demands a level of respect that can support human rights claims? On Valentini’s view, all human rights are derived from the right to freedom, enjoyed by “each person by virtue of her nature as a potential or actual self-directing agent” (574). Our obligation to respect human rights can thus be explained in terms of our obligation to respect the freedom of self-directing agents. In this respect, Valentini’s approach to human rights is avowedly liberal, grounded in “a conception of human beings as self-directing agents, capable of acting in pursuit of ends they have set themselves” (579).
Valentini appears to view the value of personal freedom not merely as the fundamental reason for respecting rights in general, but as the key for unlocking or explaining the content of discrete rights. The guiding role of freedom in the derivation of rights is strongly implied by Valentini’s definition of human rights as “those protections that any state must provide for its citizens if it is to make a reasonable claim to respect their right to freedom” (582). This is further corroborated by the fact that she derives a range of specific rights from the value of freedom, as part of her defense of the freedom-centered account. For example, she describes slavery as “a paradigmatic example of violation of the right to freedom,” insofar as the slave “lacks a sphere of agency robustly shielded from others’ interference” (579), and argues that there is a human right to democracy, insofar as “democratic participation most directly…ensures that a state speaks on behalf of its citizens” (589). Even welfare rights, according to Valentini, can be justified by a concern for individual freedom, since “poverty threatens not only freedom as non interference, but also freedom as independence. Destitution breeds subjection to the will of others” (590).
Limits of the Freedom-Centered Approach
Upon reflection, there are several considerations that weigh heavily against the freedom-centered view, in spite of its prima facie plausibility. To begin with, the capacity for freedom or self-direction, whether actual or potential, is simply too narrow a basis for explaining human rights standing. There are human beings who plausibly qualify as human rights claimants yet do not neatly fall under Valentini’s paradigm of the “self-directing” agent. Valentini appeals in her article to human rights claims involving able-minded rational adults—rights such as freedom from slavery, the right to democracy, and the right to welfare. These sorts of claims could plausibly be traced back to a right to freedom. But respect for freedom seems to have much less to do with the human rights of radically or partially heteronomous persons such as infants and the cognitively impaired, who do not get any explicit mention in her account.
Consider, by way of example, the right of an infant to bodily integrity or freedom from genocidal murder. This right cannot be plausibly explained by an appeal to the value of a self-directed life. True enough, if the infant is murdered, she will never reach the age of reason or live to make a rational choice. Thus, murder eliminates her prospective life as a self-directing agent. But surely it is the flagrant attack on the actual life of individual human beings that most naturally explains the wrong of genocidal murder, rather than the interference with their potential or future rational agency?
What if we were to concede, arguendo, that it is the potential or future rational agency of the infant that justifies our respect for her right to bodily integrity or freedom from genocide? This might work for the case of infants en route to autonomy, but what about those suffering from permanent or irreversible cognitive impairment? Consider, for example, a person with sufficient intellectual impairment that he is radically dependent on his family or caregivers to help him get through the day: he is essentially stuck in a sort of perpetual infancy. Such a person is neither a “potential” nor “actual” self-directing agent, given his chronic cognitive impairment. He is fundamentally “[subject] to the will of others” (590) on a permanent basis, that is, in the very condition that Valentini considers anathema to human freedom. If we are to consider such a being as a bearer of human rights, as I suspect many would allow, then how can we explain the force of such rights within Valentin’s freedom-based account?
Let us now turn to the question of content. Valentini suggests that the content of any human right is derived straightforwardly from the preconditions for rational agency: “Human rights,” she asserts, “are necessary and sufficient conditions for a reasonable implementation of persons’ right to freedom” (581). But I am skeptical that all human rights can be considered simply as “necessary and sufficient conditions” for safeguarding the right to freedom. Human rights are not just rights to the conditions of rational agency but rights to have one’s most basic needs for bodily and emotional integrity, health, and personal security protected from attack and severe deprivation. As it happens, the fulfilment of these basic needs does generally support or facilitate rational self-direction, at least in the case of those with sound rational faculties. But it would be quite a stretch to justify the protection of every basic human need exclusively as one more contribution to rational agency, especially given that not all subjects of rights are capable of exercising rational agency.
A Perfectionist Alternative to the Freedom-Based Account
It is important to distinguish between the fundamental reason for considering someone as a bearer of human rights, on the one hand, and the derivation of discrete human rights, on the other. Valentini does not separate these two questions, so she implicitly gives the same answer to both of them: freedom or self-direction serves simultaneously as the normative ground and explanatory source of all human rights. But this answer misses the mark for both questions. Consider the first question: “What qualifies someone as a bearer of human rights?” Human dignity is a better answer than potential or actual rational agency, because it captures an important range of human rights excluded by the freedom-centered account, namely, the rights of human beings who fall beyond the pale of full rational agency. But what is so special about being human? Why does humanity confer dignity? Here, I can do no more than hint at an answer, which other authors have developed at much greater length: what confers dignity is participation in a species that by nature affords its members the power of rational agency, broadly construed (knowledge, love, freewill), even if particular human beings are excluded by some defect, disease, or other circumstance, from enjoying the rational agency typical of their species. 5
Now consider the second question: “On what basis can we derive the content of discrete human rights?” Assuming that human beings deserve special consideration and treatment in virtue of their human dignity, we are obligated to protect their most fundamental interests, at least insofar as they fall within our sphere of responsibility. These interests are typically protected by certain legal guarantees, to be enforced or implemented by the State or some other competent body. For example, human beings have a basic interest in nutrition, health care, bodily integrity, security, education, and freedom of conscience. These interests are sufficiently fundamental that one can plausibly speak of a human right to nutrition, health care, bodily integrity, security, education, and freedom of conscience to be enforced and respected by the State and/or other responsible parties. 6 This perfectionist foundation for rights recognizes freedom as a critical dimension of human well-being, but does not ignore or minimize the well-being of humans who are deprived of rational agency. In this respect, it is clearly superior to a freedom-based derivation of rights.
I hope I have by now convinced the reader that an exclusive appeal to the value of freedom and rational agency cannot explain the normative force and content of human rights. In this respect, the failure of Valentini’s account is instructive, because it provides a vivid illustration of the limits of a broadly neo-Kantian/Rawlsian conception of the rights-bearer as a self-determining rational agent. To sum up, the freedom-based approach to human rights is inadequate on two grounds: first, because the normative force of the human rights of those lacking rational agency cannot be explained by respect for their freedom; and second, because the substantive content of human rights cannot be derived exclusively from the conditions necessary for the exercise of freedom, given that a broader range of basic human interests is at stake than the interest in rational agency.
Finally, I have gestured toward a possible solution for overcoming the limitations of the autonomy-based approach to rights, namely, to rethink human rights in dignitarian and perfectionist terms. On this view, it is human dignity, conferred by participation in a species characteristically endowed with rational powers of knowledge and freewill, that explains the normative force of human rights claims; while it is an irreducible ensemble of basic human interests, such as the interests in nutrition, bodily integrity, health, security, education, and rational agency, that explain the content of discrete human rights. Much more could be said to flesh out a dignitarian and perfectionist account of human rights, but I hope I have said enough to bring out its relative advantages when compared with autonomy-centered accounts.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
Notes
Author Biography
) obtained a PhD in political science at the University of Notre Dame in 2006, and subsequently held postdoctoral appointments at Bucknell University, the Witherspoon Institute, Princeton University, and Villanova University, before moving to Pamplona, Spain, where he is currently a Research Fellow at the University of Navarra’s Institute for Culture and Society (Religion and Civil Society Project). His research examines the normative foundations of social life, in particular the ethics of citizenship and public office, and the virtues and practices of social responsibility. His recent book, Citizenship and the Pursuit of the Worthy Life (Cambridge University Press, 2014) aims to rehabilitate the ethical standpoint in political philosophy by defending the legitimacy and value of giving full play to our ethical commitments in the exercise of our civic roles. Dr. Thunder’s work has also appeared in venues such as the American Journal of Political Science, Political Theory, and Critical Review of International Social and Political Philosophy.