From concept to conceptions: Can the Broad View overcome the debate between orthodox and political theories of human rights?

The Broad View of human rights

The BV defines the concept of “human rights” as those “moral rights whose systematic violation ought to be a matter of universal moral, legal, and political concern” (p. 191). In other words, if the violation of a moral right ought to be a matter of one or more of these kinds of concern, then it is a human right. ¹ Distinguishing the BV from orthodox and political theories requires the rejection of two ideas: the Single Practice Assumption (SPA) and the Extended List Approach (ELA).

The SPA holds that there is a single overarching practice of human rights, from which we can reconstruct a moral core and derive a master list of human rights. This master list can then be used to critique, reform, and improve the practice. While orthodox and political theories hold the SPA in common, Sangiovanni argues this assumption is false. (pp. 177–178). We should recognize the great diversity of activities involving human rights, and see there is no single overarching practice. The BV therefore rejects the SPA, and attempts to account for the diversity of activities found in the practice (p. 191).

Rejection of the SPA should, in turn, lead us to reject the ELA, a particular approach to developing the BV. This approach uses the general concept of human rights offered by the BV to produce a list of the rights (and correlated duties) that satisfy the definition. In other words, the ELA aims to list all the moral rights (and correlated duties) whose systematic violation should merit universal moral, legal, or political concern (p. 194).

Sangiovanni finds at least three problems with the ELA. First, the ELA attempts to specify a list of human rights that underlies and justifies human rights practice as a single, coherent whole. In other words, the ELA relies on the SPA, which the BV rejects. Second, the ELA renders the BV merely a competitor with orthodox and political theories, because it aims to list all moral rights whose violation should merit universal moral, legal, or political concern. Orthodox and political theories take the same approach: an orthodox theory may aim to list all moral rights we possess simply in virtue of being human, while a political theory may aim to list all moral rights whose violation will justify foreign intervention in a sovereign state. Construed in this way, the BV presents just another competitor with orthodox and political theories, rather than an approach that overcomes the debate (p. 194). Third, the ELA fails to satisfy both the Normativity Desideratum, which requires that a theory offer good reason to depart from human rights practice and comply with its prescriptions, and the Determinacy Desideratum, which requires that a theory offer prescriptions informative enough to aid us in evaluating and improving the practice (p. 179). Since the ELA merely lists the moral rights (and correlated duties) whose systematic violation merits universal moral, legal, and political concern, the abstract nature of the list will not provide sufficient reason for agents to depart from current practice, and it will also be unable to answer questions such as which agents should bear the duties and to whom the duties are owed (p. 195).

Having rejected the SPA and the ELA, Sangiovanni argues the BV should instead be developed through the Context-Sensitive Approach, producing a theory called the Context-Sensitive Broad View (CSBV). The CSBV draws a distinction between concept and conception: It embraces the BV concept of human rights—“moral rights whose systematic violation ought to warrant universal moral, legal, and political concern”—and then relies on a mediating concept to identify the specific kind of universal concern appropriate for a certain context, providing a particular conception of the general concept. The mediating concept should be one appropriate for a specific context.

The CSBV claims to overcome the three problems faced by the ELA. First, the CSBV rejects the SPA and allows for recognition of the plurality of roles and functions associated with human rights in practice (pp. 196–198). Second, the CSBV enables the BV to avoid being a competitor with orthodox and political theories, because it treats these as different conceptions, rather than different concepts, of human rights. By relegating orthodox and political approaches to the level of conception, the CSBV allows for either version of the general concept (pp. 192–193). Third, the CSBV satisfies the Normativity and Determinacy Desiderata by relocating the issue to the contextual and substantive, rather than conceptual, level. This creates determinacy by specifying a mediating concept that fixes a particular context of action and makes clear the specific kind of universal concern mandated by that context. The determinacy is supposed to provide answers to questions such as which agents are appropriate duty-bearers, and also offer robust normative reasons for complying with its prescriptions (p. 205). While the CSBV purports to solve the problems discussed above, we need to examine how the theory is applied in particular cases to assess whether it is successful in doing so.

Applying the Context-Sensitive Broad View

To apply the CSBV, we must identify the relevant context in which a human rights issue arises, and then determine the appropriate mediating concept for that context. Sangiovanni offers several examples of contexts, including a human rights court judge deciding a particular case, a human rights activist determining whether her NGO should advocate for a certain issue (pp. 195–196), representatives negotiating an international human rights treaty (p. 199), and the international community determining its moral obligations (pp. 207–212). His paradigm example of applying the CSBV involves the case of an Amnesty International activist deciding whether a certain issue should be included in Amnesty’s advocacy (pp. 197–199).

The activist needs to determine the appropriate mediating concept for her context. We are told the activist should begin by asking, “What is the point and purpose of Amnesty?” Developing an answer to this question involves examining the “point and purpose” and “the history of Amnesty,” which identifies the appropriate mediating concept (p. 198). The mediating concept determines the specific kind of universal moral, legal, or political concern “relevant from the point-of-view of a human rights activist within a nongovernmental organization like Amnesty” (p. 199). Sangiovanni suggests an examination of the purpose and history of this organization should lead us to conclude that Amnesty’s human rights activism aims “to protect all individuals against abuse of political power, wherever it occurs” (p. 198). This mediating concept can be used to develop a particular conception of human rights, which yields a list of moral rights (and correlated duties) that warrant the specific kind of universal concern relevant for the activist’s purposes (p. 199).

Can the Broad View overcome the orthodox/political debate?

Let us now return to the issue of whether the CSBV succeeds in overcoming the debate between orthodox and political theories. The key to the CSBV is the idea of contexts and mediating concepts. So the success of the theory depends in part on the plausibility of these elements and the role they are supposed to play.

Consider the issue of corporate human rights obligations. Human rights obligations are commonly divided into duties to respect, protect, and fulfill. In 2011, the UN Human Rights Council adopted a framework on business and human rights that includes a corporate responsibility to respect human rights, but not to protect or fulfill human rights (UN Human Rights Council, 2011). Does the UN framework institute an appropriate set of corporate human rights obligations? What would the CSBV prescribe?

We can approach these questions by returning to Sangiovanni’s paradigmatic example, the perspective of an Amnesty International activist. In this case, the activist wants to know whether Amnesty should endorse the current UN framework, or whether it should advocate for an alternative. For example, as an alternative, Amnesty might determine that it should not advocate for any corporate human rights obligations, or perhaps it should advocate for a broader range of corporate obligations, including an obligation to protect and/or fulfill human rights. After examining the purpose and history of Amnesty, the activist determines that the appropriate mediating concept for her context is “to protect all individuals against abuse of political power, wherever it occurs,” as Sangiovanni suggests. The activist can now apply this mediating concept.

It seems difficult to understand most corporate actions that violate human rights as an “abuse of political power.” One possible example is when a corporation collaborates with or is complicit in governmental actions (see Ruggie, 2013: 9–14). However, since corporations are private rather than public agents, most corporate actions do not involve political power. ² In light of this, the activist might determine that Amnesty should advocate for corporate human rights obligations in only a narrow set of cases where the corporation collaborates with, or is complicit in, government actions that violate human rights. This suggests Amnesty should advocate something narrower than the UN framework’s general corporate obligation to respect human rights, because that norm applies regardless of whether political power is involved. Perhaps Amnesty should also advocate for an obligation that is broader, one that requires corporations to protect and/or fulfill human rights in cases where political power is involved. This latter possibility appears difficult to determine based on the mediating concept provided. However, the issue becomes even more complicated, because at the time the UN framework was being developed, Amnesty issued a statement in support of the framework, which seems at odds with the implications of the mediating concept (Amnesty International, 2008).

There are at least three possibilities in understanding this discrepancy between the implications of Sangiovanni’s proposed mediating concept and Amnesty’s actual statement of support for the framework. First, it could be argued that the CSBV shows Amnesty was wrong to issue the statement of support. Second, it could be argued that the proposed mediating concept is inadequate, because it fails to properly account for the full dimensions of the context. Sangiovanni does emphasize that the “best and most comprehensive” account of a mediating concept should be used (p. 199). Perhaps a more comprehensive mediating concept would show Amnesty was justified in issuing the statement of support. A third possibility is that even with a more comprehensive mediating concept, the CSBV will fail to provide definitive guidance on this issue.

I will suggest the third possibility is the case, because the CSBV faces a problem similar to one I have argued confronts political theories of human rights (Corrigan, 2017). Political theories rely on a conception of human rights “practice.” However, particular political theories rely on differing accounts of the practice, depending on which institutions, agents, and activities are included. For example, there is a question as to whether the activities of human rights NGOs, such as Amnesty, should be counted as part of the practice, or only the activities of governmental organizations such as the UN and regional human rights bodies. Differing accounts of the practice lead political theories to offer different prescriptions concerning corporate human rights obligations. Since there is no way to definitively determine what counts as part of the practice, political theories, as a general category of human rights theory, underdetermine the issue of the appropriate range of corporate human rights obligations. Similarly, the CSBV relies on a conception of “context.” Depending on which facts and features are included as part of the “point and purpose” and “history” of Amnesty, activists can offer differing accounts of this context. For example, they may differ as to whether the letter Amnesty issued in support of the UN framework should be included in characterizing the context. Again, there is no definitive way to make this determination. Certainly not every single fact about Amnesty should be included, as this would amount to the claim that Amnesty does whatever Amnesty does. Such an approach would render the CSBV a positivist theory, which lacks any normative teeth for assessing the practice, and fails to satisfy the Normativity Desideratum. For this reason, there must be some level of abstraction involved in providing an account of the context. However, the vagueness inherent in characterizing the context can lead to differing accounts of the mediating concept derived from it, which in turn will lead the CSBV to produce varying prescriptions. The result is that, like political theories, the CSBV will underdetermine the issue of the appropriate range of corporate human rights obligations. If this is correct, the CSBV is unable to satisfy the Determinacy Desideratum, because it will fail to provide definitive guidance as to whether corporations, for example, should have human rights obligations, and if so, which ones.

The problem of indeterminacy affects the CSBV not only at the level of conception, but also at the level of concept. If the concept of human rights offered by the CSBV is disjunctive—a human right is a moral right whose systematic violation should be a matter of universal moral or political or legal concern—then the only significant constraint is that violation of a right must be a matter of universal concern. Since the concern can be moral, political, or legal in nature, it is unclear how the CSBV will overcome the debate between orthodox and political theories of human rights.

Consider again the issue of corporate human rights obligations. Suppose an Amnesty activist employs the CSBV and, representing the context of an NGO such as Amnesty, offers an orthodox conception of human rights. In other words, the activist offers a conception of human rights that produces a list of rights (and correlated duties) whose systematic violation should be a matter of universal moral concern. Next consider John Ruggie, the Special Representative to the Secretary General (SRSG) on the issue of business and human rights, who developed the UN framework; or the UN Human Rights Council, who adopted the UN framework. Insofar as the UN is representative of the international community, we can consider the SRSG or Human Rights Council to represent this particular context. ³ Suppose the SRSG or Human Rights Council employs the CSBV and offers a political conception of human rights. That is, they offer a conception of human rights that produces a list of rights (and correlated duties) whose systematic violation should be a matter of universal political concern. Finally, suppose the orthodox conception of the CSBV prescribes that in addition to an obligation to respect, corporations also have an obligation to protect and/or fulfill human rights, while the political conception of the CSBV prescribes that corporations have only an obligation to respect human rights, as the UN framework holds. In this case, we have two agents (an Amnesty activist and the SRSG or Human Rights Council) representing different contexts, both of whom employ the CSBV, and find that it prescribes different obligations for the same agent (a corporation).

At this point, one might argue that the Amnesty activist has identified the moral obligations associated with human rights, while the SRSG or Human Rights Council has identified the political obligations associated with human rights. After all, the set of moral obligations and the set of political (or legal) obligations associated with human rights need not be identical. ⁴ So perhaps this simply shows a corporation can have differing moral and political obligations relating to human rights. However, this response generates another problem, namely, point of view. Amnesty is an organization with its own purpose and history, which identifies a mediating concept appropriate for that organization. Why should a corporation be concerned with Amnesty’s point of view and the prescriptions derived from its mediating concept? Similarly, why should a corporation be concerned with the SRSG’s or Human Rights Council’s point of view and the prescriptions derived from its mediating concept? A corporation has its own purpose and history, which can identify its own mediating concept. This mediating concept will determine the prescriptions appropriate for the corporation’s context and its point of view. The CSBV offers no reason why a corporation should be concerned with these other entity’s points of view and the conceptions of human rights derived from their mediating concepts. ⁵

This problem of indeterminacy goes beyond the obligations prescribed by the competing conceptions. Orthodox and political theories of human rights also prescribe different lists of human rights. For example, Rawls’s political theory prescribes a notably short list of rights, which includes only the rights to life, liberty, and formal equality (Rawls, 1999: 65). By contrast, Griffin’s orthodox theory prescribes more or less the list of rights found in the UDHR, with a few exceptions, such as the right to holidays with pay (Griffin, 2008: 186). Just as orthodox and political theories justify different lists of rights, so too will orthodox and political conceptions of the CSBV. As Sangiovanni notes, the CSBV should not simply endorse the list of rights found in the UDHR; otherwise, it would be merely a positivist theory, lacking any normative teeth for assessing the practice (p. 197). Since competing conceptions of the CSBV can generate different lists of human rights, the orthodox conception of the CSBV offered by the Amnesty activist may generate a different list of rights than the political conception of the CSBV offered by the SRSGR and the Human Rights Council. Thus, the indeterminacy of the CSBV affects not just the obligations prescribed for corporations, but also the lists of rights to which those obligations pertain. The issue of point of view returns, raising the question as to why a corporation should recognize the list of rights derived from the mediating concepts of these other entities, rather than the list derived from its own mediating concept?

This lack of determinacy at the conceptual level raises further worries about whether the CSBV can satisfy the Normativity and Determinacy Desiderata. It seems unable to satisfy the Determinacy Desideratum because it does not provide definitive guidance as to which agents should be duty-bearers, and if so, which duties they should bear. It seems unable to satisfy the Normativity Desideratum, because it renders the theory incapable of offering agents good reason to deviate from current practice, or to accept the point of view of other agents and the mediating concepts derived from their contexts.

Can the CSBV resolve the indeterminacy and competing prescriptions regarding corporate human rights obligations? At the level of concept, the only hard constraint imposed by CSBV is that rights (and corresponding duties) be a matter of universal concern. Since the disjunctive nature of the concept allows the concern to be moral or political or legal, the CSBV appears to lack resources at the conceptual level for resolving the competing conceptions and points of view. This suggests we are confronted again by the debate between orthodox and political approaches to human rights theory. If we attempt to overcome this debate at the level of conception, the CSBV encounters the problem of vagueness involved in characterizing the context and deriving a mediating concept. Once again, at the level of conception, the CSBV appears to lack the resources for resolving the competing prescriptions. While we can certainly hope to find a way of overcoming the debate between orthodox and political theories of human rights, and Sangiovanni offers a welcome and intriguing attempt to do so, the issues discussed in this article raise doubt as to whether the CSBV has succeeded in accomplishing that aim.