An Emergent Practice

Charles R. Beitz, The Idea of Human Rights

Oxford University Press, 256pp, £12.99, ISBN 9780199604371

reviewed by Jeffrey Petts

In the year of the Arab Spring it is timely to examine the role of states and international organisations in the internal politics of other states: rhetorically, what justifies military intervention in Libya but not Syria to defend human rights? Charles Beitz’s arguments for a ‘fresh start’ to understanding the idea of human rights centre on human rights as a matter of ‘elaborate international practice’: that every human being has human rights, is ‘the subject of global concern’, and that those rights ‘extend across political and social boundaries’. His interest is motivated too by the observation that the idea of human rights is undermined by scepticism about ‘human rights as grounds for political action’. This framing of the theoretical problem of human rights in terms of the current practice of international politics and the demands they place on political action immediately places Beitz’s account at the centre of contemporary questions about (non) interventionist global politics – and the Arab Spring inevitably comes to mind. But it also raises questions about the theoretical grounds of human rights per se. Here Beitz argues that such ‘philosophical’ approaches to understanding the idea of human rights – that he characterises as either naturalistic or agreement theories – only lead to misunderstandings.

His starting point then is that human rights have no grounds in an independent philosophical conception, but rather that they have a role in practical reasoning about how global political life is carried out. In short, the idea of human rights is simply the idea of a significant role for ‘human rights’ in global politics, where theory always underdetermines human rights (both in terms of what are and are not rights, and about how they play out in practice). In summary Beitz’s argument is that international human rights are best understood as ‘sui generis rather than as instantiations of one or other received idea’. Human rights are a set of norms that protect individuals against threats to their interests from their respective domestic governments. These features can be modelled as practically emergent – international concern is unsystematic and expressed by political action carried out by whichever agents (states and international bodies) are capable and have reason to act. The considerations that ought to be taken into account relate to the importance of interests and reasons for political action are likely to be diverse, depending on the relative importance of threatened interests. Interventionist strategies are also available, ranging from the legal to the political, from the coercive to the persuasive. International human rights then ‘occupy a middle ground’ between ideas of rights as principles of domestic social justice and of rights as constituting a ‘moral minimum’. Beitz’s account reads like a description of international politics with all of its ‘Libya but not Syria’ expediencies – but does this view really challenge scepticism about human rights?

Beitz properly acknowledges five broad categories of scepticism. How is a ‘standard of living’ type right enforced? Relatedly, are these rights really rights at all, if they are indeed only aspirational? Isn’t it the case that no catalogue of rights, or at best a very limited list, emerges from the idea of the universality of rights? How are cultural differences balanced with respect for human rights? And in any case, the actual content of existing human rights is simply the product of a post-1945 political settlement. But having raised these legitimate doubts, Beitz also acknowledges his approach is not to tackle them one-by-one, but rather to construct a positive account of international human rights that at least weakens their hold on our thinking about rights. The strategy is warranted, argues Beitz, because the favoured alternative (to justify human rights philosophically in terms of higher values) ignores the function that human rights talk plays in real life, especially since the 1940s, in the global practice of state behaviour.

We understand, so the argument goes, the idea of human rights ‘by asking for what kinds of actions, in which kinds of circumstances, human rights claims may be understood to give reasons’. We should understand the idea of human rights not as a ‘regime’ but as an ‘emergent practice’, because international human rights practice lacks a strong capacity for adjudication and enforcement; and because human rights function as aspirational standards, grounds for political criticism and reference points in politics generally. Beitz seeks to weaken sceptical claims then by, implicitly, incorporating them in his theory: so for instance it is agreed that ‘standard of living’ rights (those covered by Articles 22, 23 and 24 of the 1948 Universal Declaration for example) are substantially disputable, lack any credible enforceability by international organisations, and represent political discussion points, but this doubt is used to support the pragmatic view over the conventional wisdom that human rights are natural rights or have some other substantial grounds. Beitz, in other words, runs a high-risk strategy.

On the one hand, if there is no universal moral justification for the idea of human rights then the global practice of human rights since World War 2 seems open to attacks of being politically motivated by the interests of a limited number of Western states. But if there is a rights-oriented political practice that can be defended as ‘emergent’ then the idea of human rights is necessarily subordinated to a determining set of non rights-oriented political and other values. In other words, once existential choice is conceded about how we conceive human rights, even on the global level – that the idea of human rights is indeed a practice in Beitz’s terms – so that practice becomes one about how we live and about how rights might support the ‘good life’ wherever we live. And that introduces political, moral and aesthetic considerations – ideas about equality and freedom, but also about virtues and even beauty – so that Beitz can no longer coherently hold the claim that human rights are best conceived as sui generis.

Beitz’s ‘high risk’ then rests on our accepting the post-World War 2 human rights settlement while also acknowledging that the content of human rights and its global practice is always practically challenged. This might be seen ‘not as the end of the human rights movement but of its belated coming of age’ as Michael Ignatieff puts it in his controversial 2001 essay, ‘The Attack on Human Rights’. Indeed it meets Bentham’s famous rejection of human rights as ‘nonsense on stilts’ in so far as, unlike the French revolutionaries, rights are not conceived as unrevisable. But the tenor of human rights discourse surely changes when they are so conceived. One significant consequence is that the idea of revisable human rights and of rights protected in some but not all circumstances is counter-intuitive, with the confusions in practical politics that entails. Better perhaps then to concede that rights talk is properly embedded in the political language of individuals and states choosing lives and policies that improve everyday situations. This is the language, not of abstract citizens with rights, but of human beings with situated needs – needs that follow as part of the human condition to work creatively, coexist to mutual advantage, and so on – that, while universal, always present choices of political action that are not simply resolved by reference to rights established a priori.

Paradoxically, in constructing a positive idea of human rights as an ‘emergent practice’ Beitz reminds us of the idea’s vacuity without the accompaniment of a radical and ethical sense of its importance, about how it might challenge and contribute to the larger goal of human flourishing. In the early 21st century it is clearly important that we understand the requirement that the idea of human rights itself encompasses a critical understanding and felt moral sense of rights. Without those the idea of human rights is easily distorted and made emptily pragmatic: lives are led in bad faith by individuals claiming ossified rights; while states treat political activists as lions abroad but as enemies within.