Dworkin on Human Rights

George Letsas* No doubt, you have a moral right that I keep the promise I made to meet you for lunch. No doubt, I would wrong you if, for no good reason, I do not to turn up. Few however would accuse me of violating your human rights. By contrast, most of us would immediately condemn acts of police brutality as a human rights violation. Wall-standing, hooding, sleep deprivation and other interrogation techniques, to which the police are known to resort,1 are paradigm examples of human rights abuses. The widely held intuition is that not all moral rights are human rights. Promissory rights are not. So we may ask: which rights, out of the many we have, are human rights? Call this the classification question. The classification question is not new, but it has become the center of much philosophical attention since the end of the Second World War and the enactment of numerous international treaties and declarations proclaiming lists of human rights. The setting up of the United Nations and of various regional organizations (such as the Council of Europe and the Organization of American States) was pivotal in creating various types of international mechanisms for bringing to light serious moral wrongs committed by states and for holding them accountable. The current practice of human rights, as it has developed since, comprises a rich and complex set of institutions, documents, rules, courts, NGOs and many others, all of which invoke the term human rights as a justificatory basis for alleging that a state has committed some moral wrong. Some philosophers ask the classification question against this background of the continuing expansion of the practice of human rights in international law and politics since 1945. They offer practice-dependent theories that take fidelity to current practice to act as a constraint on a plausible theory of human rights.2 By contrast, other philosophers, like John Rawls, do not condition the success of their theory of human rights on the extent to which it accounts for current practice. A further divide exists between so-called political and orthodox theories of human rights. The former classify human rights on the basis that they serve some political function.3 The latter classify them on the basis that they are rights we have simply in virtue of being human.4 John Rawlss theory of human rights is distinctively political in the above sense: he characterized human rights as those moral norms that perform a dual political role, serving as conditions for both the internal legitimacy of states and for their immunity from external interference. On this view, states that violate these norms have no legitimate authority over their people and are subject to justifiable coercive interference by other states. Orthodox theories by contrast, like the one put forward by James Griffin, traces the intellectual origins of human rights back to the
* University College London, Faculty of Laws. I am grateful to John Tasioulas and Saladin MeckledGarcia for comments on an earlier draft of this paper. See the judgment of the European Court of Human Rights in Ireland v United Kingdom, A 25 (1978). Charles Beitz calls this a practical approach in Human Rights (2008), pp 7-12. James Griffin calls his approach bottom-up in James Griffin, On Human Rights, Oxford University Press (2008), p. 29. 3 Joseph Raz, Human Rights without Foundations in John Tasioulas (ed), The Philosophy of International Law, Oxford University Press. 4 See John Tasioulas, Human Rights in Andrei Marmor (ed.), The Routledge Companion to the Philosophy of Law. London; New York: Routledge (2012)
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doctrine of natural rights, offering criteria for classifying human rights that relate to universal human interests.5 In Justice for Hedgehogs,6 Dworkin offers a theory of human rights that can be described as political and practice-dependent. In line with the interpretivist methodology employed in previous work and defended throughout the book, he takes the practice of human rights to invite a moral judgment about which value, if any, justifies having such a practice. For Dworkin, our theory of human rights should be the product of this moral judgment. It should propose criteria for classifying human rights that are not morally arbitrary: the criteria should be furnished by a moral value which we take to be genuine and appealing, independently of the practice. But at the same time, the candidate moral value must be such that it is pertinent to the actual practice of human rights, as opposed to some other -real or hypothetical- practice. Unless we condemn the practice of human rights altogether as a form of ethical witchhunt, our theory should be able justify many, though not necessarily all, of its salient aspects. If we said for example that our current practice of human rights is justified by the value of promising, we would be pointing to a genuine moral value but we would be explaining some other practice and not the practice of human rights. In Dworkins familiar vocabulary from his earlier work, a theory of human rights is an interpretive theory, which must both fit and justify existing practice.7 The discussion of human rights fills a dozen or so pages of Justice for Hedgehogs, but the building blocks of Dworkins theory of human rights have been laid throughout the book, as well as in previous work. In this review essay, I shall begin by looking at Dworkins critique of existing theories of human rights, political and orthodox, before I turn to his proposed alternative. Human Rights as Trumps-Over-Sovereignty Dworkin assesses rival theories of human rights on the basis of the two dimensions of fit and justification, mentioned above. He finds that most political theories of human rights fail on the dimension of fit, being unable to explain sufficiently well the current practice of human rights. He considers mainly the Rawlsian conception according to which human rights are those rights whose violation by a state may subject to other conditions8 justify military intervention and economic sanctions. This conception, which Dworkin calls the trump-over-sovereignty classification, picks out a value, the value of state sovereignty, and assigns to human rights the role of justifying certain limits on it. Dworkin takes no issue with the view that state sovereignty is a genuine value and that it is subject to normative limits that relate to individual rights. The view proposes a coherent and non-arbitrary criterion for classifying human rights and therefore meets the dimension of justification. Its problem for Dworkin lies elsewhere. He remarks that if we understand those limits to be military intervention or economic sanctions, then very few of the rights proclaimed in international treaties
See Griffin, ibid. Hereinafter JfH. 7 See Ronald Dworkin, Laws Empire (1986). 8 Dworkin rightly points out that violation of individual rights may not be a sufficient condition for military intervention, see JfH, page 333. Raz makes a similar objection in Human Rights Without Foundations in John Tasioulas, Samantha Besson (eds), The Philosophy of International Law. I shall here assume that the Rawlsian conception can be easily amended so as to include further conditions, such as conformity with international law, for the justifiability of intervention and economic sanctions. A further issue is whether violation of individual rights is a necessary condition for the justifiability of coercive measures against sovereign states.
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and declarations would be classified as human. This is because only egregious violations of certain rights Dworkin calls them acts of barbarism- can justify limiting sovereignty in this way. Military intervention would not be a permissible response to a state violating the socio-economic rights declared in the Universal Declaration Human Rights (UDHR), or even important civil rights such the right against death penalty, as declared by the additional Protocols to the European Convention on Human Rights (ECHR). It would be wrong, he says, to invade Florida to shut down its gas chambers. Rawls was of course aware of the fact that most rights proclaimed in international treaties and declarations would not be classified as human, according to his theory. He called these rights liberal aspirations and not human rights proper. 9 But for Dworkin, this fact challenges the theory of human rights as limits to sovereignty. It is not that he thinks that state sovereignty has no value, or no limits; rather, it is that linking sovereignty to human rights fails to explain salient features of the current practice of human rights, which is what for Dworkin a theory of human rights should be able to do. On his view, a successful theory of human rights should at least explain why nations and groups have been tempted to include the rights one find in the various treaties and declarations. The trumps-over-sovereignty classification leaves too much of the practice of human rights unexplained. I find Dworkins rejection of the trumps-over-sovereignty classification too quick. We may agree with Dworkin that it is a condition for the success of a theory of human rights that it should fit current practice sufficiently well to make our discussion pertinent to it. But it is not clear to me why it should fit the current practice in the way Dworkin suggests, namely that most of the rights proclaimed in the text of the various treaties and declarations must, according to the theory, come out to be human rights. This sets a higher threshold of fit than showing that the moral value which the theory postulates explains central aspects of the current practice and the motivations behind it. Why should the list of rights found in the various documents act as a constraint, such that it counts as flaw of a theory that many (or even most) of the rights proclaimed therein are not, according to the theory, human? It is not obvious why the interpretive requirement of fit would impose such a constraint. To begin with, the current practice of human rights is far wider than the text of the various treaties and declarations and the aspirations of their drafters. A large part of the practice comprises the work of various United Nations bodies that send factfinding missions, examine country reports and individual petitions, create thematic and country-specific rapporteurs, adopt resolutions and the like. My sense is that the trumps-over-sovereignty classification is very pertinent to this part of the practice of human rights. Consider for example the practice of the main human rights body established under the Charter of the United Nations. The main procedures employed by the former United Nations Commission (and now its successor, the Human Rights Council) aim at investigating situations which appear to reveal a consistent pattern of
Right to life (to the means of subsistence and security); to liberty (to freedom from slavery, serfdom and forced occupation, and to a sufficient measure of liberty of conscience to ensure freedom of religion and thought); to property (personal property); and to formal equality as expressed by rules of natural justice (that is, that similar cases be treated similarly). Rawls notes that only articles 3 to 18 of the UDHR contain human rights proper and that the remaining rights in the UDHR (such freedom of expression, freedom of religion, non-discrimination, right to education etc.) are merely liberal aspirations.
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gross and reliably attested violations of human rights.10 Between 1972 and 1999, 75 states were scrutinized under the 1503 procedure, the vast majority of which related to allegations of gross violations of individual rights in Africa, Asia, Latin America and Eastern Europe.11 The procedures have mainly been used to investigate systematic violations of specific civil rights such as torture, forced disappearances, extra-judicial killings and arbitrary detention. These rights fall within Rawlss list of human rights proper. Arguably, the UN Commissions notion of a consistent pattern of gross violations of human rights refers to acts that are egregious enough (barbaric to use Dworkins phrase) to defeat state sovereignty, should other conditions obtain. The practice of the charter-based system of the United Nations fits very well the view that the role of the practice of human rights is to reveal forms of governmental abuse for which the state cannot tell the international community: I am a sovereign state and this is none of your business. Why is this part of the human rights practice less salient than the text of the UDHR that proclaims extensive socio-economic rights? Moreover, the theory of human rights as limits to sovereignty can say something about the part of the practice (i.e. the expansive list of rights proclaimed in various documents) that it leaves unexplained. It does not have to dismiss the UDHR references to the right to work, the right to an adequate standard of living or the abolition of death penalty as conceptual or moral mistakes. The theory can assign to such rights an evidential role. It can say for example that it is important that the international community monitors compliance with these rights, even though they are not human rights properly understood, because the systematic violation of these rights often co-relates with barbaric acts of the kind that justify sanctions or military intervention. In fact, the theory does not even have to assume that most rights proclaimed in the international treaties and declarations are rights, as opposed to policy goals or principles of social justice. Circumstances of extreme poverty, suffering caused by natural disasters or lack of natural resources, corruption or mass unemployment often co-relate with barbaric acts, of the kind that other states are justified in sanctioning and in trying to prevent. Perhaps the concern of those who drafted the declarations for extreme poverty or unemployment, can be explained as a proxy for the presence of egregious moral wrongs that justify intervention or sanctions. The theory can thus provide a plausible explanation the UDHRs references to the right to work or the right to an adequate standard of living, without assuming either that these are all references to sovereignty-limiting rights or even that they are references to rights. I do not mean to suggest that the trump-over-sovereignty classification is correct or that it provides the best explanation for why nations and states included in the text of the various declarations the references that they did. Clearly a large part of the practice of human rights invokes rights the violation of which does not justify sanctions or military intervention. My objection is that Dworkins reason for rejecting the trump-over-sovereignty theory is not compelling. The theory is pertinent to at least some salient aspects of the practice of human rights and can provide a plausible explanation of the references to this or that right in the various declarations. I see no reason why a successful theory of human rights must necessarily show that most of the rights proclaimed in the text of the various documents are, according to the theory, human rights. In fact, it is doubtful, as we shall see, that Dworkins own theory meets this high threshold. I do not even see a reason why a theory must show that the
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UN Resolutions 1235 and 1503 (my emphasis). Steiner and Alston, International Human Rights in Context (2000), p 616.

references in the various declarations are to individual rights and not say, to policy goals or principles of social justice. As Dworkin himself acknowledges the dimension of fit is evaluative, not descriptive.12 Ultimately, there must be a moral reason why we should take at face value all these references to this and that human right in the various international documents. And it is not clear to me what this reason is. Quite the opposite, it is clear that there are moral reasons to assign little or no weight to some of these documents. The UDHR is a declaration, not a treaty, and has no binding force in international law. The two UN Covenants, the ICCPR and the ICESCR, are international treaties though, unlike the ECHR, states did not create a legally binding judicial procedure for protecting them. Even according to the text of the Covenants, the nature of states obligation to respect socio-economic rights differs from that of civil rights. According to art. 2 of the ICESCR, the obligation of state parties to the Covenant is, unlike that of the ICCPR, one of progressive realization.13 It seems to me that it does not matter much whether we explain this difference by saying that socio-economic rights are not human rights proper, or by saying that they are human rights that do not impose an immediate obligation on states. Either way, there is a difference within the practice of human rights between socio-economic rights and civil rights, a difference that appears to be morally relevant. The mere fact that the various socio-economic rights in the UDHR and ICESCR that Dworkin mentions (the right to education, to adequate housing and health care, to marriage, to adequate compensation for work, to equal pay for equal work) do not count as human rights proper according to a particular theory of human rights, is in my view insufficient to condemn it. Human Rights as Fundamental Rights The classification question assumes that not all individual rights are human rights. A theory of human rights according to which all rights come out as human rights would debunk, rather than answer, the classification question. But for Dworkin the classification question is premised on a further assumption: human rights are rights against ones government;14 and not all rights against ones government, which he calls political, are human rights. If this assumption is sound, then a successful theory
On page ? of JfH Dworkin says explicity that top down principles have to fix the raw date of the practice. On the issue of the relevance of past practice within the interpretivist methodology see Nicos Stavropoulos, Interpretivism, in Stanford Encyclopaedia of Philosophy. 13 Article 2 of the ICESCR reads as follows: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. It is worth noting that the view that human rights are primarily rights against ones government forms an inherent part of the current practice. According to international human rights law, it is a condition for the admissibility of an individual petition that it is directed against a state. Moreover, the facts that constitute the violation of an individual right must be attributed to an act or omission of the state. In cases where the state has failed in its duty to prevent or prohibit violation of rights between private individuals, it is the states failure that constitutes the human rights violation, not the action of private individuals. This aspect of the practice of human rights would be troublesome for orthodox theories of human rights that are practice-dependent because the list of rights one has in virtue of being human would not necessarily be limited to the rights against ones government. An orthodox theory that does not seek to show fidelity to current practice would need to count criminal and tort law (which address violations of rights between private individuals) as human rights law.
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of human rights must be able to distinguish human rights from other political rights. But what other political rights are there? Dworkin points out, rightly in my view, that individual rights against the government include the legal rights that are enforceable in court, as well as rights, not necessarily enforceable, to a socially just distribution of the communitys resources. For Dworkin, all political rights operate as trumps over ordinary modes of justification for governmental action, such as that some proposed policy would make the community better off in some sense. For example, a community might reduce unemployment by allowing employers to dismiss employees at a short notice and without cause. It would nevertheless be wrong for the community to allow employers to dismiss people without notice or cause, so long as employees have an enforceable legal right against it. Their legal right would trump the argument from reducing unemployment. It would also be wrong of a different kind this time- for the community to allow employers to dismiss people without notice or cause, if doing so condemns most of them to unjust poverty. Their right to a just distribution of the communitys resources would trump the argument from reducing unemployment. Legality and justice ground special and stringent moral rights against the government. Dworkin sees both these values as instances of the broader right to be treated with equal respect and concern by ones government, and the right to be treated as someone whose dignity matters and matters equally to those of others. If we accept that there is a distinction between human rights and other political rights, then we must be able to give a principled distinction between the two. Our theory of human rights must point to a normative concern that not only is distinct from legality or justice but also is genuine and non-arbitrary. It is on this point that various so-called orthodox theories of human rights fail on Dworkins view. He argues that it is arbitrary to classify human rights, like many orthodox theories do, as those political rights that are somehow more fundamental or more important to people. He is critical for example of James Griffins theory of human rights, which attempts to distinguish human rights as grounded on the value of personhood.15 What can be more fundamental or important, he asks, than condemning people to unjust poverty or denying them the lives they are entitled to have? Nor can we say that human rights are more fundamental because they trump ordinary modes of justification for political action. This would not distinguish human rights from other rights because on Dworkins view, it is part of what it means to have a political right against the government, that it trumps ordinary justifications for political action. Now, we may agree with Dworkin that all rights against the government are trumps over ordinary justifications for political action. Since the publication of Taking Rights Seriously, Dworkin has convincingly argued that a number of the constitutional rights recognized and enforced in the United States (such as freedom of expression, abortion rights, free exercise of religion) operate are liberal-egalitarian trumps over certain kinds of reasons for political action.16 But it is not clear why we should agree that the term human rights singles out a sub-set of political rights. Why cant human rights refer to all the liberal-egalitarian rights against the government
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James Griffin, On Human Rights.

See Ronald Dworkin, Is There a Right to Pornography? 1 Oxford Journal of Legal Studies (1981) 177; Ronald Dworkin, Lifes Dominion: An Argument about Abortion and Euthanasia, HarperCollins Publishers (1995); Ronald Dworkin, Freedoms Law: The Moral Reading of the American Constitution, Harvard University Press (1997).

that we have in a constitutional democracy? Why cant we answer the classification question in that way? In Europe, as in other parts of the world, the term human rights does not necessarily imply a distinction between constitutional rights and other political rights. Take the example of the European Convention on Human Rights (ECHR). The ECHR has been incorporated into domestic law in the majority of European states and some of them have given it supra-legislative, or even supra-constitutional status.17 The United Kingdom, which has no domestic bill of rights, enacted the Human Rights Act 1998 (HRA), incorporating the ECHR into domestic law. In applying the HRA, UK courts have seen no reason to depart from the case-law of the European Court of Human Rights. They understand their constitutional duty to be that of protecting no more and no less than the ECHR. 18 Here is what the House of Lords said:
It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more but certainly no less.19

To be sure, there may be valid moral reasons why international human rights courts should in certain circumstances refrain from recognizing or enforcing the full panoply of the liberal-egalitarian rights one has against ones government. In the context of the ECHR for example, there may be limited moral reasons for granting states a margin of appreciation when they interfere with Convention rights.20 But we should not infer from this fact that the moral rights protected by international human rights law are necessarily fewer, and more fundamental, than the rights protected by constitutional law. As I have argued elsewhere, the ECHR grounds rights that, just like the rights of the US Constitution, are justified by the values of legality and justice.21 Dworkin could respond that the ECHR is an anomaly in the practice of human rights. He might invoke other parts of the international human rights practice where people distinguish between human rights and national constitutional rights. But the point I am making is that, ultimately, we need a moral reason for accepting that such distinction is sound. And unlike Dworkin, I do not find the distinction between human rights and other political rights obvious. If we assume that such distinction exists, then Dworkin is right to complain against Griffin that he fails to show that human rights are more fundamental or more important than other political rights. But if we do not assume this distinction, then we can re-interpret the claim that human rights are more fundamental than other rights. We can take this claim to mean that human rights are rights and hence more important and fundamental than non-rights based moral
See Alex Stone Sweet (ed), A Europe of Rights, Oxford University Press (2008). This is called the mirror principle. See Brenda Hale, Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?, 12 (1) Human Rights Law Review, (2012), 65-78. 19 Lord Bingham in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323 at para 20. 20 See George Letsas, Two Concepts of the Margin of Appreciation, 4 Oxford Journal of Legal Studies (2006) 705; George Letsas, The ECHR as a Living Instrument: its Meaning and Legitimacy, in Andreas Follesdal et als (eds), The European Court of Human Rights in a National, European and Global Context, Cambridge University Press (2012).
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See George Letsas, A Theory of Interpretation of the European Convention on Human Rights (2009), Oxford University Press.

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concerns (such as goals). In other words, we can take this claim to mean that human rights are fundamental in that they are in Dworkins own sense- trumps. Dworkin might reply that this re-interpretation shrinks the category of human rights and leaves unexplained a large part of the practice of human rights. But as in the case of the sovereignty-over-trump classification, one could return the allegation: why are the parts of the practice that invoke a distinction between human rights and other political rights more important or salient that the parts which do not? Note moreover that denying that there is a distinction between human rights and other political rights need not take away the force of Dworkins objection against Griffins theory. We could then make a different complaint against Griffins personhood-based account, which is that it does not sufficiently explain why human rights, or - what would be the same -political rights in general, are rights. As John Tasioulas has argued, Griffins account takes rights out of human rights.22 I find this criticism more to the point and more compelling than the complaint that it fails to distinguish between human rights and other political rights. We can criticize Griffins account for misunderstanding the nature of political rights in general, without assuming that human rights form some special sub-set of political rights. And we can take the slogan that human rights are fundamental to stand for the trumping character of all political rights one has in a liberal-egalitarian society. Doing so might invite charges of ethnocentrism or parochialism by states that do not endorse the liberalegalitarian values that underlie the constitutional rights protected in western democracies. But these charges can be addressed by defending the truth of these values. As Dworkin himself points out: If we believe in human rights at all or in any other rights for that matter we must take a stand on the true basis of such rights.23 Human Rights as the Right Against Contempt. Dworkins critique of the trump-over-sovereignty classification and the human rights-as-fundamental rights classification highlighted two conditions that a successful theory must meet. First, it must invoke a genuine moral concern that provides principled and non-arbitrary criteria for classifying human rights. And second, the concern must be such that it counts as pertinent to the practice of human rights, justifying most though not necessarily all of its salient features. Dworkins critique was that the trumps-over-sovereignty classification fails to fit the practice of human rights sufficiently well, whereas the human rights-as-fundamental rights classification fails to offer non-arbitrary criteria for classifying human rights. His own theory of human rights seeks to succeed where the other classifications failed. Dworkin locates the normative concern underlying the practice of human rights in the notion of governmental legitimacy. His suggestion is promising because we do find the normative concern for governmental legitimacy a genuine and morally appealing one, and we do so independently of the existence of the practice of human rights. We moreover take our concern for legitimacy to be distinct from our concern for justice. A government can be unjust yet legitimate. This would normally mean that citizens have a political obligation to obey its laws and not to seek to undermine it or overthrow it. But if a government is illegitimate, then citizens may be justified in taking action against it, ranging from protest and civil disobedience to revolution. The distinction between justice and legitimacy, though widely accepted, is controversial
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John Tasioulas, Taking Rights out of Human Rights, Ethics 120 (July 2010), pp.647-678. JH, page 33 (my emphasis).

territory in political philosophy. Dworkin draws the distinction in the following way: a government is legitimate when it makes a good-faith attempt to treat its citizens with equal respect and concern and to protect their dignity; it is just when it succeeds in doing so. The distinction between an unjust and an illegitimate act or policy, Dworkin remarks, is that between mistake and contempt.24 I have no quarrel with Dworkins theory of governmental legitimacy, or with the values of equality and dignity upon which it is premised. It offers a clear and attractive conception of the difference between the legitimacy of a government and the justice of its laws and policies. Some of course may worry that the theory sets the threshold of governmental legitimacy too low because many tyrannical governments will come out to be legitimate just because they think or claim- that they try to respect the dignity of their citizens. Dworkins reply is that this worry is misplaced: the judgment of whether something is a good-faith attempt to respect ones dignity is interpretive, by which he means that it is not (or not only) a matter of intentions or motivations.25 Some practices or policies are so egregiously wrong that they cannot be justified under any intelligible conception of what dignity requires.26 In other, less clear cases, our interpretive judgment about whether some policy shows contempt or good faith may draw on other principles. Objective and universal principle to do with legitimate expectations, availability of education and alternative ethical viewpoints may make what acts show contempt for dignity relative to place and time. What is more controversial is the idea that legitimacy, as Dworkin understands it, is the basis for classifying human rights. Does this idea fit human rights practice? And does it fit sufficiently well to be pertinent to it? Dworkin rightly remarks that if legitimacy, thus understood, is the moral basis of human rights then there is just one basic human right, namely the abstract right to be treated with a certain attitude: as a human being whose dignity fundamentally matters. This is a special kind of political right, one that is different from justice-based or legality-based rights, but that operates equally as a trump over ordinary modes of justification for policy. The challenge for Dworkin is to show how this abstract right fares better than the trumps-oversovereignty, or other classifications, in explaining salient parts of the human rights practice. Does it show for example that the various rights recognized in the documents (such as the right to education, to equal pay for equal work, to marriage, or a right against death penalty) are genuine human rights? Recall that Dworkin dismissed the trumps-over-sovereignty theory partly because of its inability to justify these rights as human rights. It seems to me however that the basic human right against contempt for ones dignity does not fare much better either. To be sure, the violation of some of the rights we call human shows manifest contempt for the victims dignity: torture, genocide, punishing the innocent, racial discrimination. And this contempt is a defeasible basis for taking action against ones government for acting illegitimately. But the abstract right against contempt overstretches the further away we move from these non-derogable civil rights. Consider for instance the detailed procedural safeguards that international human
JfH, p. 335. Note that the test of good faith in law is similar: one is in bad faith not only when he knows some relevant fact but also when he ought to have known. 26 In previous work Dworkin called these wrongs baseline violations of dignity: Some acts of government are so obviously inconsistent with the principles of human dignity that they cannot be thought to be justified by any intelligible conception of those principles, in Is Democracy Possible Here?, page 36. The distinction between baseline and other types of violations of dignity does not appear in JfH.
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rights impose on states in relation to arrest and trial:27 states may arrest and detain persons only in specific cases, exhaustively defined; states have a duty to inform those arrested promptly, and in a language that they understand, of the reasons for their arrest; to bring them promptly before a judge; to try them within reasonable time or release them pending trial; to allow judicial review of the lawfulness of arrest or detention; to compensate victims of unlawful arrest. The idea here is that states are required, as a human rights issue, to observe these detailed safeguards, regardless of whether failure to do so manifests contempt or not. For we can imagine a number of alternative schemes of procedural safeguards that do not necessarily express contempt for the dignity of the accused, yet fall short of current international human rights standards. For example, a state that fails to compensate victims of unlawful arrest, say because of scarcity of resources, does not show contempt for their dignity. The same difficulty applies to various unqualified rights of non-procedural character, such as the right against forced and non-consensual marriage (art. 16 para 2 UDHR) or the right to change ones religion (art. 18 UDHR). The practice of arranged marriages, or the prohibition of religious conversion, need not show contempt for the dignity of women or religious believers. Arguably many traditional communities adopt these practices by way of respect, rather than contempt, for the dignity of those involved. Yet, like the drafters of the UDHR, our judgment that these practices constitute paradigm violations of human rights is insensitive to cultural context. And, unlike genocide or torture, such practices can be given an intelligible defense as an acceptable, yet deeply mistaken, conception of dignity. I do not mean to suggest that the above difficulties are necessarily a problem for the right-against-contempt classification. They pose a problem only if we assign to the list of human rights that we find in current practice a normative significance that, as I argued earlier, is unwarranted. What these difficulties show nevertheless is that Dworkins right-against-contempt classification enjoys no comparative advantage over the trump-over-sovereignty classification, as far as the dimension of fit is concerned. Both propose criteria for classifying human rights that, though nonarbitrary, leave out parts of existing human rights practice. My main worry however lies elsewhere. We do use the practice and the vocabulary of human rights to express concerns about the legitimacy of various tyrannical governments around the world. And the legitimacy of such governments is often stained because of policies that, in Dworkins sense, show manifest contempt for the dignity of their people. The problem is that this is not the only end to which the practice and the language of human rights are put. As I have argued elsewhere, the European Court of Human Rights interprets the ECHR by using liberal-egalitarian principles and upholding individual moral rights, even in cases where governments have acted in good faith.28 The role of the European Court of Human Rights is not simply to check whether Contracting States have overstepped their legitimacy. The Court routinely declares violations of human rights for state acts that do not undermine the legitimacy of the respondent state. Consider for example the landmark case of Demir and Baykara v. Turkey,29 just to take one example out of hundreds. The authorities of the respondent state had refused to recognize legal personality to a trade union formed by municipal civil servants and annulled the collective agreement into
See arts 5 and 6 ECHR. For a more extensive defense of the claim that the jurisprudence of the European Court includes the finding of good-faith violations of human rights see Letsas, A Theory of Interpretation, chapter 2. 29 Demir and Baykara v. Turkey (Appl. No. 34503/97) Judgment (Grand Chamber) 12 November 2008, Reports 2008.
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which the trade union had entered. The Grand Chamber found a violation of article 11 ECHR on both these points. We cannot say in this case that Turkey acted illegitimately by showing contempt for the dignity of the applicants. We should however say that Turkey had made a good faith mistake about what the political right to freedom of association requires. And it was a mistake that the European Court of Human Rights had the moral authority to correct based amongst other considerations- on the value of legality. What are we to say of those parts of human rights practice that, like the ECHR, assume or claim a human right against good faith mistakes of what dignity requires? Dworkin could reply here that his theory need not fit all the parts of human rights practice and he might seek to account for the ECHR in one of two ways. First, he might criticize the European Court of Human Rights for unjustifiably expanding the scope of the ECHR and enforcing more rights than those that are human. Such a criticism would seem to me to be clearly misplaced. The European Courts expansive approach is fully justified by the value of legality in international law. In all the reforms of the ECHR, contracting states agreed to be legally bound by the judgments of the Court and to give the Court jurisdiction to hear individual petitions, knowing that its approach to human rights is an expansive one that includes scrutinizing state action for good-faith errors. It would be unfortunate if Dworkins theory has the effect of leading the European Court to lower the level of protection it offers under the Convention, convinced that human rights only protect individuals against bad-faith mistakes of what dignity requires. Alternatively, Dworkin could defend the European Courts expansive approach by saying that the ECHR began in the 1950s as a human rights instrument, responding to problems of legitimacy, and gradually became one of constitutional rights, responding to problems of constitutional justice. This sounds plausible and similar views have been defended in the relevant literature.30 But now I begin to worry about how pertinent the value of legitimacy is to the practices currently operating under the heading of human rights. We saw that a large part of the practice is to do with investigating consistent patterns of gross human rights violations of the kind that justify sanctions or intervention. Other parts of the practice, like the ICESCR, proclaim an obligation to realize progressively certain socio-economic rights or principles of social justice. Yet other parts of the practice, like the ECHR, seek to correct good-faith mistakes and misunderstandings about the political rights people have against the government. My worry is not only that the normative concern of legitimacy only explains a small part of current human rights practice. My worry is also that it is doubtful whether any single normative concern can explain, sufficiently and in a non-arbitrary way, the rich and complex practice of human rights. After all, an account of the practice of human rights does not have to be monistic in order to be non-arbitrary. Different parts of the practice of human rights may each be responding to different, yet real, normative concerns (such as limiting sovereignty, promoting social justice, enforcing legal and political rights, legitimacy). In this sense, there need be no one-size-fits-all theory of the practice of human rights.31 Or, to put it differently, there may be various practices operating under the heading human rights, each of which is a response to a distinct normative concern. If this is true, then any practice-dependent theory that -like Dworkins- seeks to be pertinent to all or most practices currently operating under the heading human rights is bound to fail.
See Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects, Cambridge University Press (2007) 31 Letsas, A Theory of Interpretation, chapter 1.
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And the various theories of human rights that different philosophers have proposed may be perfectly compatible with each other, each addressing a different moral concern. Against this background, is there any point in insisting that a single normative concern best captures the diverse and complex practice of human rights? It is not clear what the motivation for this approach is, particularly if our interest in the classification question (what are human rights?) is derivative from our interest in how institutions and other agents ought to act within our existing human rights practices. And it seems to me moreover that it is the interest in how current actors (human rights courts, governments, international organizations, victims of abuse) ought to act that motivates the methodological focus of practice-dependent theories on the post-1945 practice.32 Be that as it may, if we do, for some reason, have to shrink the category of human rights in some way, it seems to me better to shrink it in the direction of legal and political rights rather than that of legitimacy. It is not only that the largest part of the current practice of human rights approximates more and more the practice of the various constitutional rights claimed before national courts, than the practice of fighting against illegitimate governments. My sense is that what captures the imagination and the passion of those engaged in the human rights movement is the general trumping force of legal and political rights, rather than the more specific trump over bad faith mistakes that undermine the legitimacy of a government. One sees this in the ever increasing practice of comparing the case law of national courts, like the Supreme Court of the United States with that of international courts, like the European Court of Human Rights or the European Court of Justice. To provide an example, in Lawrence v Texas33 the Supreme Court addressed the question of whether anti-sodomy laws violate due process under the 14th Amendment of the US Constitution. In Dudgeon v. United Kingdom34 the European Court addressed the question of whether anti-sodomy laws violate the human right to private life under article 8 ECHR. Most people, including the two Courts, took these two questions to be about the same thing. We should normally care about classification questions only to the extent that something important hangs on them. Dworkins classification draws attention to a genuine normative concern about the legitimacy of our government and the conditions under which we have a right to disobey it. He is right that the question of whether someone has a human right to some liberty (say not to be sent to a gas chamber) is often used to invite a judgment about the legitimacy of the state that restricts this liberty. But we do not need to use the language of human rights in order to invite this judgment. Nor is the question of whether someone has a human right not to be sent to a gas chamber necessarily a question about the legitimacy of his state._
In this respect, I find it puzzling how orthodox theories, like Griffins or Tasioulass, can be practicedependent, seeking to give an account of the post-1945 practice of human rights. This is because the rights we have simply in virtue of being human are timeless and their existence does not depend on any institutional practice. They are simply discoverable through natural reason. For orthodox theories, our current practice of human rights should at best play an evidential, rather than a constitutive role. In theory, none of the rights we now call human need be one we have simply in virtue of being human. The more these theories treat current practice as imposing a normative constraint, the less orthodox they become. So the methodological focus of these orthodox views on current practice must be explained in some other way. 33 Lawrence v Texas, 539 US 558 (2003) 34 Dudgeon v United Kingdom, (Appl No. 7525/76) Judgment of 24 February 1983
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