Download Human_Rights_and_the_Priority_of_the_Moral_over_the_Political

Human Rights and the Priority of the Moral
1. The language of human rights
Many philosophers have observed, correctly, that human rights have now become the common
language in which an increasing number of important legal and political issues are debated.1
Thus, it is all the more curious that so often this common language is used by them to talk past
each other. For example, in discussing human rights some philosophers refer to a particular
class of moral rights: those moral rights that all human beings possess “simply by virtue of
their humanity.” Others refer instead to a group of norms and principles that form the current
international human rights practice, whose primary function is twofold: providing standards
for assessing how governments behave, and establishing when responses such as military
intervention, economic and diplomatic sanctions, or formal censure are warranted.2
This explains, at least to some extent, the different approaches adopted by the so called
“naturalistic” (or “orthodox”) and “political” (or “practical”) approaches to the justification of
human rights, with the former primarily interested in the question of which important moral
rights can be attributed to human beings simply in virtue of their human nature –call these
“moral human rights”– 3 and the latter primarily focusing on the question of how best to make
sense of, and bring coherence within, the practice of international human rights.4 What
defenders of the political view object to is not the thought that individuals can be said to have
certain moral rights simply as a consequence of their status as human beings. (Indeed, this is
an idea which prominent defenders of the political view such as John Rawls and Joseph Raz
explicitly accept.) What they object to is the idea that this thought can be usefully employed to
make sense of the practice of international human rights as we know it, and thus to justify
human rights.
1
On the other hand, philosophers who investigate the justification of the moral rights we
possess simply in virtue of our human nature do not believe that answering this question
automatically gives us an answer to the question of how we should structure the practice of
international human rights. For example, John Tasioulas defends the view that simply in virtue
of our status of human beings, we have a moral right not to be pinched or to be betrayed by
friends, but he denies that these rights should play a role within the current practice of
international human rights.5 This is because the question of how this practice should be
structured is a separate one and should be informed by a host of different considerations
concerning the nature and the functions of political institutions, international organizations, as
well as other non-political actors operating at the international level.6
However, the disagreement between naturalistic and political justifications of human
rights cannot be reduced to a case of philosophers talking past each other. The disagreement is
substantive and concerns the need to appeal to fundamental moral human rights in justifying
the international practice of human rights.7 Political justifications argue that we should bypass
the question of the justification of moral human rights and start instead with the question of
which norms and principles should be adopted to regulate the practice. This is because, as Beitz
puts it, “[t]here is no assumption of a prior or independent layer of fundamental rights whose
nature and content can be discovered independently of a consideration of the place of human
rights in the international realm and its normative discourse and then used to interpret and
criticize international doctrine.”8 Naturalistic justifications deny this and claim that a
convincing answer to the second question will have to presuppose some answer to the first. An
adequate justification of the system of human rights included in the international practice will
ultimately have to rely on some appeal to fundamental moral human rights, whose binding
force depends neither on their being incorporated into the law nor on their being a suitable
object of international concern.
2
This is not to say that there is a one to one relationship between moral human rights and
the international rights invoked in the human rights practice, so that our list of international
human rights will have to perfectly mirror our list of moral human rights. Naturalistic
justifications acknowledge that this is not always the case. For example, they acknowledge that
we might justify the existence of an international human right to X, even if we do not have a
moral human right to X, provided that implementing an international human right to X is
necessary to implement (or at least greatly contributes to the implementation of) an
international human right to Y, where it is the international human right Y that is grounded in
a human moral right.9 The claim of naturalistic justifications is rather that if the international
human right practice is to be justified, there must be a group of fundamental moral rights that
the practice ultimately aims to protect, no matter how indirect the relationship between the two
is. Call this view the “Priority of the Moral over the Political” (the “Priority of the Moral,” for
short).10 To the extent that there is a genuine disagreement between naturalistic and political
approaches to the justification of human rights, the disagreement is primarily about whether
we should accept this view.
In this paper I argue that the Priority of the Moral is harder to dismiss than supporters
of political theories of human rights suggest, and that they need to say more in defence of their
claim that we can dispense with it. This is because if it is true that human rights play the special
role that political theories attribute to them (be that of justifying political legitimacy, limiting
state sovereignty or triggering particular responses when violated), there must be something
that explains why they can play this role. Naturalistic theories explain this by appealing to the
thought that since human rights are grounded in particularly important features of human
beings, their protection is urgent and their violation particularly serious. This is why violations
of human rights justify interfering with state sovereignty and other forms of international
response. Since political theories intend to reject this strategy, they need to say something as
3
to what is instead doing the work within the picture they offer. There must be something special
about human rights that explains why their violation triggers reactions that are not warranted
when ordinary moral rights are violated or when other wrongs are perpetrated. If it’s not the
fact that we have a claim to strong normative protections in relation to particularly important
features of human nature, what is it?
The paper is in six sections and a conclusion: in the next section, I outline the Priority
of the Moral; in sections 3 and 4, I raise a number of objections against political theories of
human rights and I argue that it is incumbent upon defenders of these theories to show that they
do not surreptitiously appeal to something like the Priority of the Moral. In section 5, I consider
the two main objections that seem to have motivated the move from naturalistic to political
justifications of human rights. In section 6, I suggest that a variant of naturalistic justification,
one that appeals to the notion of basic needs, has the resources to address these two objections.
2. The Priority of the Moral
Theories that accept the Priority of the Moral typically proceed in two steps: first, they justify
moral human rights by explaining why these rights are particularly important and how they are
different from other moral rights; second, they justify international human rights by explaining
how they help us protect and implement moral human rights. Their arguments normally take
the following form:
i. Because of their inherent dignity, human beings are entitled to have a minimally decent
life;
ii. All human beings, qua human beings, have certain distinguishing features;
iii. Given the features specified in ii, human beings can have a minimally decent life only
if certain conditions are secured;
4
iv. Given i, ii and iii, human beings have moral rights to what is necessary to secure the
conditions specified in iii;
v. The best way (or a sufficiently good way) to secure the moral rights specified in iv is
by incorporating them in the international human rights practice.11
For example, James Griffin argues that the distinguishing feature of being human is the
capacity to act as autonomous moral agents (ii), and that in order to act as autonomous moral
agents, we need to be able to freely discuss “whatever goes on in society or government that
bears on our thinking and deciding autonomously” (iii).12 This explains why, according to
Griffin, there is a moral human right to freedom of expression (iv). And since we have a moral
human right to freedom of expression, there is a pro tanto reason to include this right in human
rights documents and, more generally, to incorporate it in the current human rights practice,
insofar as doing so contributes to its protection and its promotion (v). Vice versa, according to
Griffin, in order to act as autonomous moral agents we do not need to be able to choose where
to live (as long as the place where we are made to live is sufficiently comfortable), and this
explain why there is no human rights to freedom of residence.13
Thus, according to this line of thought, international human rights are justified because they
are necessary to (or at least significantly contribute to) securing the fulfilment of moral human
rights; and moral human rights are justified insofar as they have a distinctive role that explains
their special value: the role of protecting human dignity.
Two main objections can be raised against the Priority of the Moral. One consists in
rejecting the view formulated as stating a necessary condition for the justification of
international human rights. Allen Buchanan, for example, argues that while something like the
Priority of the Moral is “by far the clearest strand of justification” for human rights,14 there are
a number of further different ways of justifying the existence of a given international legal
human right without necessarily relying on moral human rights. For instance, we can appeal to
5
the fact that having such a right prevents great social disutility, or that it contributes to
economic prosperity or that it promotes social solidarity. To take an example, these are all
grounds on which, according to Buchanan, we can justify a legal right to health care, without
necessarily invoking the existence of a moral right to health care.15
In response, we might wonder what the point of calling the right to health care a human
right is. Many international legal rights are justified in the way Buchanan suggests, after all,
and yet we would not consider them human rights. For instance, because of a directive of the
European Parliament, I have a legal right to return a product I have bought on line within seven
working days and get a full refund.16 Presumably the justification for this legal right is that it
contributes to economic prosperity (by facilitating on line commerce) and prevents social
disutility (by reducing the number of potential conflicts between on line buyers and sellers),
but we would not want to consider this a human right. This suggests that while it is certainly
the case that human rights generally do prevent great social disutility, contribute to economic
prosperity and promote social solidarity, this is not enough to justify their existence.
One way in which we might be tempted to defend Buchanan’s claim is to argue that
while the interests protected by the right to health care are particularly important, those
protected by the right to return a product bought on line within seven working days aren’t.
Thus, the difference between the two is that the former right contributes much more than the
latter to reducing social disutility, increasing economic prosperity etc. But the risk here is that
we end up with the view that human rights are simply particularly important moral rights. This
conclusion would be problematic because when we employ the language of human rights we
normally think that we are pointing at moral considerations that have a distinctive character.
We are not simply signalling that the rights in question are important.17 Indeed, if human rights
were simply reducible to important rights, we could dispense with the notion altogether, as it
would be doing no normative work.18
6
The second line of objection to the Priority of the Moral is more radical, in that it denies
that human moral rights play any significant role in justifying international human rights. This
is the strategy pursued by political theories. While the latter do not necessarily deny that there
are moral rights that individuals have simply by virtue of their humanity, nor do they deny that
international human rights are a subset of this class of moral rights, they do deny that these
rights are what we should focus on in justifying international human rights. In justifying
international human rights we should not look at special features that human beings possess
and that international human rights are supposed to protect. Rather, we should look at the
international human rights practice, and in particular at the role of those norms and principles
that set limits to state sovereignty and establish when certain types of response to state
misconduct (by way of formal censure, diplomatic pressure, economic sanctions and, if
necessary, armed intervention) are warranted. In the next two sections I will focus on this view.
3. Can we reject the Priority of the Moral?
Let’s start by granting to defenders of the political view that the distinguishing feature of human
rights is that when these rights are violated the responses described by the political view are
warranted, whereas they are not when other forms of injustice take place, including violations
of ordinary moral rights. The question I intend to raise is this: On which grounds should the
appropriateness of these different reactions be established?
Suppose, for example, that we agree with Rawls that the relevant response is triggered
when the right to life or the right to liberty is violated but not when the right to political
participation is. What we need to know is why the former two rights trigger a different response
when they are violated than the one triggered by violations of the latter. Why are violations of
the right to political participation to be tolerated in a way in which violations of the right to
liberty or the right to life are not? A theory that aims to justify human rights by appealing to
7
the special role that these rights play in triggering the responses at hand, will have to tell us
what is so special about human rights that enable them to play this role, which is missing from
other rights. But since political approaches want to dispense with the idea that this can be
explained by pointing at the fact that there are special features of human nature that human
rights protect, what can they appeal to?
An answer we might be tempted to give along Rawlsian lines is this: as long as states
respect rights such as the right to life or the right to liberty, they are to be tolerated, even if they
fail to respect rights such as the right to political participation, because they are “member[s] in
good standing of the Society of Peoples.”19 But why should we think that in order to be accepted
as members in good standing of the Society of Peoples, a state must respect the former two
rights, but need not respect the latter? Again, what is so special about rights like the right to
life or the right to liberty that explains why they play a role that cannot be played by the right
to political participation?
Rawls’ answer is that while liberal societies could tolerate non-liberal “decent”
societies that violate rights such as the right to political participation, neither liberal societies
nor decent societies would accept to tolerate states that violate rights like the right to liberty or
the right to life. In the original position employed at the international level to derive the
principles of the Law of Peoples, parties would choose to include a principle that allows
tolerating the former but not the latter. Why? Because tolerating violations of the right to
liberty or the right to life would pose a threat to international stability, given that states that
violate, or fail to protect, these rights are “aggressive and dangerous [and] all peoples are safer
and more secure if such states change, or are forced to change, their ways. Otherwise they
deeply affect the international climate of power and violence.”20
However, this argument has little plausibility. As proponents of the political view
themselves have noticed, it is by no means obvious that oppressive regimes that violate the
8
right to life and the right to liberty of their subjects, will necessarily behave in an aggressive or
dangerous ways toward other states and threaten international stability.21 Indeed, typically
these states will have particularly strong self-interested reasons to maintain peaceful
relationships with other states, if they want to preserve their capacity to perpetrate their unjust
regime without interference.
Thus, we still need an answer to our question: assuming that the point of international
human rights is to specify when certain responses to state action are warranted, we still need to
know why violations of human rights justify such responses, whereas violations of other rights
(ordinary moral rights) and other forms of injustice don’t. Saying that human rights “express a
special class of urgent rights”22 or that they protect “urgent individual interests”23 is not
sufficient, unless we know what makes those rights and those interests particularly urgent. And
saying that in the original position representatives of peoples would choose not to tolerate
violation of these rights, does not help either because what we need to know is, once again,
what is so special about these rights that explains why their violation would not be tolerated,
whereas violation of ordinary moral rights would be.
In reply, two strategies are open to defenders of the political view. First they could
refuse to engage with the question and simply point at the practice. They could say: “it just so
happens that the current practice of human rights treats violations of a particular class of rights
as triggering the relevant response.” According to this reply, there is no need to engage with
the more fundamental question of why this set of rights is treated differently. Indeed, there
might be no principled reason that explains this fact. It just so happens that this is what the
practice is shaped like, and if we want to make sense of the practice as it is, we’ll have to tailor
our justification to its features, whatever they are.24
Alternatively, they could reply that there are principled reasons why a particular group
of moral rights warrant the relevant response, whereas other moral rights don’t, but these
9
reasons have nothing to do with the existence of special features of human beings that the
former protect, contrary to what the Priority of the Moral suggests. Rather, they have to do
with what our best principles of international justice require of us, given the particular geopolitical situation of the world in which we find ourselves to operate. According to this version
of the political view, we first use our best political theory (or, perhaps, our best theory of
international relations) to establish, say, when interference with state sovereignty is justified, 25
and then we simply label “human rights” whichever rights we have identified as warranting
interference and “ordinary moral rights” those that do not.26
Both replies seem problematic. The worry with the first one is that it ties the
justification of human rights too closely to the current state of the international practice, thereby
severely limiting the critical role that a theory of human rights can play in revising and
improving the practice itself. To be sure, a theory of human rights so construed could play
some critical role, but this would be limited to challenging the internal coherence of the
practice. For example, it could challenge the capacity of its norms to advance the aims of the
practice, or question the way in which certain aims of the practice seem to be at odds with
others.27 What the theory could not do is challenge the way in which the practice is structured
on the grounds of its being unjust, or not sufficiently just. This is because there simply are no
external standards by which the justice of the practice can be assessed.28
But isn’t providing this sort of criticism an important role, perhaps the most important
role, that a theory of human rights should be expected to play? An adequate theory of human
rights should help us in revising international law and the global practice of human rights not
only in order to make them more coherent, but also to make them more just when they are
unjust (or insufficiently just). However, no theory can play this role if in establishing what
human rights are and which role they should play, the practice has the first and the last word.29
10
The second strategy does not have the same problem in that it can appeal to external
normative standards to assess the justice of the international human rights practice. These
standards are provided by our best political theory and our best theory of international relations,
which are used to establish when, say, interference with state sovereignty is permitted and
under which conditions. But while an improvement over the first strategy, this formulation of
the political view also has its problems, which I will consider in the next section. (Henceforth,
I will reserve the expression “political view” to refer to this particular formulation of the view.)
4. The political view
Consider a hypothetical country run a by tyrannical regime, where fundamental rights such as
the right not to be tortured or the right to freely associate are regularly violated. Suppose that
this country (call it “Tirannia”) is also a dangerous nuclear power and that any interference
with its sovereignty, including formal censure and diplomatic sanctions, would be unjustified
on the grounds that the risk of a devastating retaliation would be too high. Should we conclude
that the citizens of Tirannia lack the right not to be tortured or the right to freely associate? I
take it that we should not. If an important function of a theory of human rights is that of
providing grounds on which we can criticize severely unjust practices and institutions, a theory
that fails to justify the existence of such rights in cases like the one described in my example,
falls short of what an adequate theory should do. Such a theory should be rejected as
inadequate.
Here defenders of the political view will object that this example misconstrues their
position. As both Raz and Beitz make clear, their claim is that human rights violations
constitute pro tanto reasons for intervention,30 whereas the Tirannia example is premised on
the claim that human rights violations constitute all things considered reasons for intervention.
And once formulated as a view about the existence of pro tanto reasons for intervention, the
11
political view seems to offer a plausible answer to the Tirannia case: pro tanto reasons for
intervention can be occasionally defeated by competing reasons, and this is why we might have
all things considered reasons not to interfere with Tirannia, without being thereby forced to
conclude that there is no human right to freely associate which is being violated there.
Tirannia’s citizens have a human right to freely associate because there are pro tanto reasons
to interfere with Tirannia’s violations of the interests protected by this right, even if these
reasons in this case are overridden. This however, brings us back to the question raised in the
previous section: on what basis can we establish that there are pro tanto reasons for intervention
when the right to freely associate is violated, but not when ordinary moral rights are?
The thought underlying the political view formulated as a view about the existence of
pro tanto reasons for intervention seems to be something like this: we should consider the
weight of the right to freely associate (or perhaps, the weight of the interests protected by the
right) and balance it with the weight of national sovereignty. Once we do that, we will see that
while the former is greater than the latter, the weight of ordinary moral rights isn’t. This is why
protecting ordinary moral rights does not warrant trumping state sovereignty, while protecting
human rights does. The cost of interfering with state sovereignty is such that interference is not
justified by the need to protect ordinary moral rights, whereas it is justified by the need to
protect human rights. My objection however, is that this view can be defended only if we have
a principled way of establishing why the weight of human rights is greater than the weight of
ordinary moral rights.
If the political view is formulated as a view about the all things considered reasons to
interfere with state sovereignty, it bypasses this problem by dispensing altogether with the idea
that there is a way of distinguishing between human rights and moral rights before we know
which ones trigger international response and which don’t. Within this formulation of the view,
we first identify the circumstances in which international interference with state sovereignty is
12
justified, and then we simply label “human rights” whichever rights we have identified as
warranting interference and “ordinary moral rights” those that do not. But this is not possible
if we need to establish the pro tanto force of human rights and ordinary moral rights before we
can establish whether interference is justified. If we need to do that, we are back to the problem
of establishing why the class of rights we label as “human rights” are weightier than the class
of ordinary moral rights. Once again, the obvious way in which we might be tempted to answer
this question is by appealing to the fact that these rights protect especially important features
of human beings, but this view is not open to those who intend to reject the Priority of the
Moral.
Thus, the political view faces a choice. If we understand it as a view about the pro tanto
force of the reasons for intervention generated by human rights violations, we need to explain
in virtue of what human rights are capable of generating these reasons (whereas ordinary moral
rights are not). Alternatively, we can understand it as a view about the all things considered
force of the reasons for intervention generated by human rights violations, in which case we
avoid this question but are forced to accept the implausible conclusion that the citizens of
Tirannia lack human rights not to be tortured and to freely associate.
Indeed, there is a deeper problem here. I have thus far granted that the idea of a tradeoff between the value of protecting the right to freely associate and the value of respecting
national sovereignty is unproblematic, but things are not as straightforward. This is because
the trade-off in question does not take place in a vacuum, but in a specific context, and the
features of the context will affect the result of the trade-off. Beitz acknowledges this point when
he writes that in establishing whether the protection of a given interest qualifies as a human
right, we need to take into account not only the urgency of the interest to be protected, but also
“various other considerations such as the likelihood that the threat protected against will
actually occur, the feasibility of implementing the protection in typical circumstances, and the
13
likely cost of making the protection effective.”31 But how likely it is that the threat will occur,
and how feasible and costly it is to protect against it are contingent features. They are
contingent on what we take the “typical circumstances” to be.
In a world where Tirannia is an exception, or one of very few exceptions, the typical
circumstances are such that the interests in freely associating or in not being tortured are not
normally threatened. In such a world, the cost and the feasibility of protecting the right to freely
associate or the right not to be tortured are likely to be such that interference with states that
violate these rights will be justified, and thus there are pro tanto reasons to interfere with
Tirannia’s sovereignty. This is a world where, according to Beitz, individuals can be said to
have a human right to freely associate or not to be tortured. But that would not be the case in a
world in which most states are like Tirannia and only a small number of states respect the right
to freely associate or the right not to be tortured of their citizens. For in this other world, the
interests in freely associating or in not being tortured are regularly threatened, and the typical
circumstances are such that interference with state sovereignty will be costly and unlikely to
succeed (unless perhaps the few states respecting the rights in question also happen to be much
stronger than the other states). This would be a world in which, given cost and feasibility
constraints, there would be no pro tanto reasons for intervention when Tirannia violates its
citizens’ rights to freely associate or their right to not be tortured.32
Suppose now that as a consequence of unpredictable events in international politics,
more and more states start behaving like Tirannia, so that we end up living in a world largely
composed of Tirannia-like states. Should we conclude that now citizens of Tirannia lack the
right to freely associate or the right not to be tortured? My view is that we should not. Once
again, if an important function of a theory of human rights is that of providing grounds on
which we can criticize severely unjust practices and institutions, a theory that fails to justify
the existence of such rights in cases like the one described, falls short of what an adequate
14
theory should do. Indeed, we might think that it is all the more important to acknowledge that
these rights exist in a world where they are being regularly violated on a massive scale.
But here defenders of the political view could reply along the following lines: “it is a
sad fact that given that the geopolitical situation has changed and the ‘typical circumstances’
are now such that no intervention can be justified to prevent, punish, or even simply censure
the violations of the rights committed in Tirannia. But since this is the case, what would be the
point of saying that those rights are human rights?”33 To be sure, the citizens of Tirannia have
moral rights not to be tortured and to freely associate, but why should we want to say that these
are human rights? The reason cannot be that doing so would justify any sort of intervention
against their violation, since the permissibility of such intervention is ruled out ex hypothesi in
the case at hand. Why should we care then, about the fact that those rights are classified as
human rights?
The first thing to notice here is that saying that the typical circumstances in the world
described are such that interfering to protect the interest to freely associate or not to be tortured
will be too costly or unlikely to succeed, is not of course saying that there are no contexts where
interference would be cost-effective and likely to succeed. Suppose that the UK also violated
the right not to be tortured or to freely associate of its citizens, and that the UK was one of the
very few states where interference would indeed be cost-effective and likely to succeed
(because the UK, unlike Tirannia, would not retaliate in an uncontrolled way). It now looks as
if we cannot say that those committed in the UK are human rights violations, even if they could
be successfully addressed by some kind of international response such as economic or
diplomatic sanctions. We cannot say that because in establishing whether the protection of the
interest not to be tortured and to freely associate qualify as human rights, we need to take into
account the feasibility and the costs of implementing the protection of these interests in typical
circumstances.
15
This result seems undesirable. If the value of invoking the language of human rights is
that of triggering international intervention, “disabling the defence ‘none of your business’,” 34
we should regret that our theory does not allow human rights to play this role in those
circumstances in which they could successfully do so.
How much of a problem is this for the political view? Perhaps not much. After all,
defenders of the political view typically accept that violations of human rights are a defeasibly
sufficient ground for intervention.35 They normally do not claim that they also are necessary
conditions for intervention.36 If so, we could say that as long as the theory allows for
interference with British sovereignty in order to prevent violations of the right to freely
associate or the right not to be tortured committed there, we should not care much about the
fact that such intervention is not justified in the language of human rights. But then we might
wonder whether we really need the language of human rights at all. Why not simply say that
all we need is a good theory of international relations that will tell us when interference with
state sovereignty is justified? If nothing of moral significance is lost in dispensing with the
language of human rights in the example just discussed, why not also dispense with the
language of human rights altogether, even in a world in which the typical circumstances are
such that interference will not be too costly and unlikely to succeed?
Alternatively, defenders of the political view might wish to argue that there is some
distinctive work that the notion of human right is supposed to do, in addition to telling us when
certain international responses are justified. In that case, it’s not clear what that work is. Most
importantly, we should worry that whatever that work is, it is not being done in the scenario
where the right to freely associate is violated in the UK and the world largely consists of
Tirannia-like states.
A second reply can be offered to the challenge that if the typical circumstances are such
that interference with state sovereignty will be too costly and unlikely to succeed, there is no
16
point in calling the rights violated in Tirannia “human rights.” This consists in rejecting the
claim that the value of human rights is exhausted by their capacity to trigger the sort of
responses described by the political view. More generally, we should reject, I think, the claim
that the value of human rights can be reduced to the instrumental role they play in protecting
important interests of their holders. To be sure, this is an important component of their
justification, but not the only one. In addition to that, human rights are justified because of their
non-instrumental value: they express the value of right holders as beings of a certain sort. As
Thomas Nagel puts it, they “express a particular conception of the kind of place that should be
occupied by individuals in a moral system–how their lives, actions, and interests should be
recognized by the system of justification and authorization that constitute morality. … They
embody a form of recognition of the value of each individual.”37
Elsewhere, I develop this suggestion by appealing to Jean Hampton’s idea that certain
actions ‘morally injure’ their victims by treating them in a way which is precluded by their
value.38 These actions represent the value of their victims as less than the value that they
possess, because the actions in question deny the entitlements which are generated by that value
and which expresses its presence. This is what violations of human rights do. Not only do they
harm their victims by setting back important interests of theirs, but they also deny that the
victims possess the status of human being, to the extent that they treat them as if they did not
have the basic protections that go with possessing that status.39
If this is correct, there is a point in wanting the rights violated in Tirannia to be
recognized as human rights even if, given the contingent circumstances of the geopolitical
situation in which they are perpetrated, their violation cannot justifiably trigger the sort of
response invoked by the political view. To acknowledge that the citizens of Tirannia have
human rights and that those rights are being violated, is to mark the fact that they do have the
moral status of human beings, and that this status is being disrespected. Failing to attribute
17
human rights to them is failing to acknowledge this important fact, thereby failing to recognize
their value. This wrong is additional to the one produced by the fact that certain urgent interests
of theirs have been set back.
5. Two problems with the naturalistic approach
I have argued that in order to assess the plausibility of the political approach to the justification
of human rights, we need to know how this approach can justify the claim that human rights
can play the special function that is commonly attributed to them, without relying on the idea
that these are moral rights that protect (and give expression to) particularly important features
of human beings. It is incumbent upon defenders of the political approach to offer an argument
of this sort in order show that they do not surreptitiously appeal to something like the Priority
of the Moral.
My own view is that the naturalistic approach is more promising. Not only does it offer
a straightforward answer to the question of why human rights can play the special function that
is commonly attributed to them, but it seems better placed to account for the link between
human rights and human dignity, which plays a crucial role in many of the most important
human rights documents. To name but a few, the Preamble of the Universal Declaration of
Human Rights famously refers to the “inherent dignity and … equal and inalienable rights of
all members of the human family,” stating that “[a]ll human beings are born free and equal in
dignity and rights,” whereas both the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)
explicitly make the point that that human rights “derive from the inherent dignity of the human
person.”
Of course, I am not suggesting that these observations are enough to conclude that the
practice of human rights is consistently organized around the idea of natural rights that human
18
beings possess simply by virtue of their humanity and that protect their dignity. Preambles to
human rights documents are often seen, no doubt with good reason, as rhetorical exercises,
whose wording and content is largely conditioned by political pressure and the need for
compromise.40 But it would be hard to deny that the idea of human dignity does play a
significant role within the practice of human rights, and thus it’s hard to see how this idea can
be easily dismissed by the political view, given that the main motivation of the latter is to be
faithful to the practice.
Similarly, it is puzzling that a view which aims to be faithful to the international practice
of human rights would tie the existence of these rights to the presence of reasons for
intervention, be those reasons pro tanto or all things considered. When human rights activists
campaign against violations of the right to free-speech in North Korea, they take their actions
to be justified by the fact that there is a human right to free-speech; they do not believe that the
human right exist because their actions are justified.41
These observations seem to support, at least to some extent, the picture of the justification
of human rights articulated by naturalistic theories that adopt the Priority of the Moral. We
might wonder then why so many philosophers tend to reject the naturalistic approach. A
number of objections have been raised against the latter, but two in particular seem to have
motivated the move toward the political view. One is the thought that grounding human rights
in human dignity, and in the natural rights that are supposed to protect human dignity,
inevitably ties the justification of these rights to a set of controversial metaphysical and moral
assumptions about human nature. This is considered problematic because human rights should
not be the expression of a particular conception of the good. If they were, it would be harder to
resist the objection that the human rights discourse is ultimately a way of imposing Western
liberal values on cultures that subscribe to alternative, but equally reasonable, conceptions of
the good.
19
For example, if like James Griffin, we ground the justification of human rights in the value
of moral autonomy, our account will be unacceptable to non-liberal cultures that do not
attribute to this value the importance which is accorded to it within liberal societies. Rawls for
one, seems to be moved by this sort of considerations in developing his version of the political
view.42
The second main objection that has prompted some philosophers to adopt the political view
concerns the potentially over-inclusive character of naturalistic accounts with respect to the
content of our list of human rights. Raz, for example, points out that there is no reason to expect
the human right that we have simply by virtue of our humanity to be necessarily important
rights.43 The right not to be pinched, or the right not to be betrayed in personal relations seem
to be universal moral rights that all human beings have in virtue of their humanity, 44 but they
lack the importance typical of human rights. If naturalistic theories were committed to the
conclusion that these are genuine human rights, they would be incapable of accounting for the
common view that only important rights can be human rights.
Defenders of the naturalistic approach have tried to address these objections, but with
mixed results. For example, in addressing the first problem, Griffin has defended his claim that
a distinctively human life is one in which we can act as autonomous moral agents by arguing
that “[a]nyone who thinks seriously about the value of our status as normative [i.e.
autonomous] agents … will recognize that … [it is] highly important;” and that “[e]veryone,
on pain of mistake, has to admit that autonomy [is] highly valuable.” 45 This answer however,
can be hardly considered satisfactory. No matter how sensitive we are to the importance of
moral autonomy, the claim that anyone who chooses to structure his life around the importance
of non-liberal traditions and values, rather than around autonomy, thereby fails to live a
distinctively human life, seems too extreme.46
In addressing the second objection, John Tasioulas bites the bullet and acknowledges that
20
we do have human moral rights not to be pinched and not to be betrayed in personal
relationships, but he hastens to add that there are obvious reasons not to have corresponding
legal human rights for them. In the case of the former, because the right not to be pinched is
not sufficiently important to warrant legal recognition; in the case of the latter, because human
rights documents “include only those human rights that are genuinely under threat and
regarding which preventative and remedial action by the state is both legitimate and potentially
effective.”47
However, this move also seems unpersuasive, since what is implausible (and what critics
of the naturalistic view correctly object to) is not only the idea that the right not to be pinched
or the right not to be betrayed could be legal human rights, but also the idea that they could be
moral human rights. While the view that all human beings, qua human beings, have a moral
right not to be pinched or not to be betrayed does not seem necessarily implausible, the view
that these are human rights does, as we normally think that only particularly important moral
rights should qualify as human rights.
In order to be convincing, a formulation of the naturalistic view will have to be able to
address these two problems. It must show that it does not rely on the adoption of values that
belong exclusively to a particular conception of the good, and it must show that it is not overinclusive with respect to the content of the list of human rights that it generates (i.e. that it does
not classify as human rights moral rights that all human beings have simply by virtue of their
humanity, but that are not sufficiently important). In the next section, I will outline a variant of
the naturalistic view that seems promising on both counts.
6. The basic-needs view
Recall the formulation of the naturalistic view introduced above:
21
i. Because of their inherent dignity, human beings are entitled to have a minimally decent
life;
ii. All human beings, qua human beings, have certain distinguishing features;
iii. Given the features specified in ii, human beings can have a minimally decent life only
if certain conditions are secured;
iv. Given i, ii and iii, human beings have moral rights to what is necessary to secure the
conditions specified in iii.
v. The best way (or a sufficiently good way) to secure the moral rights specified in iv is
by incorporating them in the international human rights practice.
My aim here is to consider the justification of moral human rights, so I will focus on the first
four steps of the argument. The question is how best to account for the relationship between
the notion of human dignity, the idea of a minimally decent life and the distinctive features of
human beings that need to be protected in order to have a minimally decent life.
Probably the most influential answer to this question is the one that appeals to the idea
that the main constituent of human dignity is the capacity to act as autonomous moral agents.
According to this view, whose most prominent defender is James Griffin, the distinctive feature
of human beings on which we should focus in order to make sense of the idea of a minimally
decent human life is the capacity to autonomously choose a plan of life and successfully pursue
it. Thus, human rights are to be justified by appealing to the thought that they protect the
capacity to act in this way by protecting the conditions necessary to form and successfully
pursue a plan of life.
We have already seen that one problem with this view is that it struggles to account for
the idea that human rights should not be the expression of a particular conception of the good.
The view however, also presents a second crucial problem, namely its being under-inclusive
22
with respect to the class of human rights bearers. The problem here is that insofar as human
rights are justified by appealing to the idea that they protect the capacity to act as autonomous
moral agents, whoever lacks such capacity, for example children or the severely mentally
disable, cannot be said to have human rights. This conclusion however, is problematic for two
reasons. To begin with, there is an issue of internal coherence. Insofar as the view is meant to
ground human rights in our nature of human beings, it is puzzling that some human beings
would be left out. As Raz puts it, “one abandons the idea that human rights derive from our
humanity once one says that babies or people with Down’s syndrome do not have (certain)
human rights.”48
Moreover, the view seems inadequate insofar as common sense morality as well as the
law unequivocally assume that both children and the severely mentally disable do have human
rights. Indeed, not only do both groups regularly appeal to the human rights listed in human
rights documents such as the ICCPR and the ICESCR, but there are also special documents,
such as the Convention on the Rights of the Child and the Declaration on the Rights of Disabled
Persons, which are meant specifically to protect the human rights of these two groups.
Of course the fact that the autonomy-based view fails to account for the existence of
these rights would not be a problem if a convincing case could be made as to why children and
the severely mentally disable should not have human rights, but no such argument is offered
by the view. The only reasons to exclude these subjects from the class of human rights bearer
seems to be that the rationale identified by the autonomy-based view is not able to justify their
inclusion.
A more promising formulation of the naturalistic view is the one that instead of
appealing to our capacity to act as autonomous moral agents, grounds human rights in certain
basic needs that we have as human beings. By “basic needs” I mean things like food, air, water,
shelter, a minimum level of health and a minimal level of social interaction. The sense in which
23
these needs are basic is that having the opportunity to meet them is the bare minimum required
in order to function as human beings, whereas failing to have this opportunity normally
compromises our capacity to have a minimally decent life.
The basic-needs account and autonomy-based accounts share two central premises:
first, human dignity is respected when the conditions for a minimally decent life are not
undermined; second, the function of human rights is to protect the conditions for a minimally
decent life, thereby protecting human dignity. But while for the autonomy-based account a
minimally decent life is one in which we can act as autonomous moral agents, for the basic
needs account a minimally decent life is one in which we have the opportunity to fulfil a core
group of biological, psychological, as well as social needs. Thus, while for autonomy-based
account, the justification of human rights consists in the fact that they protect the capacity to
act as autonomous moral agents, for the basic needs account it consists in the fact that they
protect the opportunity to have these basic needs met.49
One advantage of this account is that it avoids the objection of being under-inclusive
with respect to the class of human rights bearers. For while some human beings lack the
capacity for autonomous agency, all human beings, including children and the severely
mentally disabled, have the basic needs listed above. But the basic needs account also avoids
grounding human rights on a set of controversial metaphysical and moral assumptions about
human nature. The claim that human beings need things like food, shelter, a minimum level of
health and a minimal level of social interaction does not depend on some controversial
metaphysical view about human nature, nor does it depend on the adoption of a particular
conception of the good. Far from it, having the option to meet our basic needs is a precondition
for the pursuit of any conception of the good.
Thus, the basic needs view avoids the first of the two main objections raised against
naturalistic approaches. The view however, is also well equipped to deal with the second
24
objection, namely the alleged incapacity of naturalistic approaches to account for the fact that
only important moral rights can be human rights. Given that the basic needs view grounds the
justification of human rights on those needs which we must have an opportunity to fulfil in
order to have a minimally decent life, this automatically rules out any candidate whose
importance does not meet this threshold. According to this view, neither the right not to be
pinched, nor the right not to be betrayed in personal relationships are plausible candidates for
human rights.
Obviously, more needs to be said to develop the basic needs view.50 My aim in this section
was only to show that the view has the resources to address the two main worries raised against
naturalistic theories of human rights. If I am right, some of the pressure to move toward a
political justification of human rights will be removed.
7. Conclusion
The aim of this paper has been to articulate the view I have labelled the “Priority of the Moral”,
whose adoption is the main point of contention between naturalistic and political theories of
human rights. I have argued that this view is harder to dismiss than political theories suggest,
and that before we can assess the plausibility of these theories, they need to say more in defence
of their claim that they can do without it. It is incumbent upon political theories of human
rights to show that they do not surreptitiously appeal to something like the Priority of the
Moral. I then considered the two main objections that seem to have motivated many
philosophers to abandon the naturalistic approach to the justification of human rights in favour
of the political one. I have suggested that a variant of naturalistic justification, the basic needs
account, has the resources to address these objections. If so, the basic needs account warrants
further examination as a promising model for the justification of human rights. 51
25
1
John Tasioulas, “The Moral Reality of Human Rights,” in Freedom from Poverty as a Human Right: Who Owes
What to the Very Poor?, ed. Thomas Pogge (Oxford: OUP, 2007), 75; Charles R. Beitz, The Idea of Human Rights
(Oxford: OUP, 2009), ix; Joseph Raz, “Human Rights Without Foundations,” in The Philosophy of International
Law, ed. Samantha Besson and John Tasioulas (Oxford: OUP, 2010), 321.
2
Allen Buchanan notices this ambiguity in his recent book The Heart of Human Rights (Oxford: OUP, 2013), 10-
11.
3
James Griffin, On Human Rights (Oxford: OUP, 2008); David Miller, National Responsibility and Global Justice
(Oxford: OUP, 2007); David Miller, “Grounding Human Rights,” Critical Review of International Social and
Political Philosophy 15 (2012): 407–27; John Tasioulas, “On the Foundations of Human Rights,” in Philosophical
Foundations of Human Rights, ed. Rowan Cruft, S. Matthew Liao, and Massimo Renzo (Oxford: OUP, 2015),
45-70).
4
John Rawls, The Law of Peoples. (Cambridge, Mass.: Harvard Univ. Press, 2002); Beitz, The Idea of Human
Rights; Raz, “Human Rights Without Foundations”; Joseph Raz, “Human Rights in the Emerging World Order,”
Transnational Legal Theory 1 (2010): 31–47; Joshua Cohen, The Arc of the Moral Universe and Other Essays
(Cambridge, Mass: Harvard University Press, 2010), chap. 9, 10. It is worth mentioning that Rawls does not focus
so much on the practice of international human rights, but on the way in which the foreign policy of liberal
societies should be organized.
5
See below, pp. __
6
Some draw the distinction between naturalistic and political justifications of human rights in a different way.
According to Pablo Gilabert, naturalistic justifications are those that identify human rights with claims that
individuals have against each other, whereas political justifications are those that that identify human rights with
claims that individuals have against specific institutional structures, such as governments or states (Pablo Gilabert,
“Humanist and Political Perspectives on Human Rights,” Political Theory 39 (2011): 439–467, at pp. 439-440).
According to Allen Buchanan, naturalistic approaches are interested in the justification of moral rights, whereas
political ones are interested in the justification of international legal rights (Allen Buchanan, “Human Rights,” in
The Oxford Handbook of Political Philosophy, ed. David Estlund, (New York: OUP, 2012), 279–97, at pp. 2801). Both these characterizations seem to me misleading. In response to Gilabert, it is worth noticing that defenders
of the naturalistic approach do sometimes subscribe to the view that human rights are primarily held not against
individuals but against states or governments (e.g. Miller, National Responsibility and Global Justice). In response
to Buchanan, we should notice that political approaches are not exclusively interested in the question of legal
26
rights. They are open to the idea that certain human rights are justified because they trigger specific responses by
given agents operating at the international level, but should not become legal rights. As Beitz makes clear, the
“repertoire of strategies of action that might be open to these various agents is heterogeneous, ranging from the
legal to the political and from the coercive to the persuasive and consensual” (Beitz, The Idea of Human Rights,
198. See also pp. 38-41).
7
Remember that I am here using the expression “moral human rights” as a term of art to refer to important moral
rights that can be attributed to human beings simply in virtue of their human nature.
8
Beitz, The Idea of Human Rights, 102.
9
James W. Nickel, Making Sense of Human Rights (Malden, MA; Oxford: Blackwell Pub., 2007).
10
Buchanan calls this the “mirroring view” (Buchanan, The Heart of Human Rights; Allen Buchanan, “Why
International Legal Human Rights?,” in Philosophical Foundations of Human Rights, ed. Cruft, Liao, and Renzo,
244-262). I prefer to avoid this label because it suggests that our list of human rights will have to mirror our list
of moral rights. This is not true for the reasons mentioned in the text. I should stress that Buchanan is aware of
the problem and does not intend to invite this misunderstanding. However, the label he chooses seems to
encourage it, as do some of Buchanan formulations (for example, his referring to the existence of a “corresponding
moral right” when discussing a particular human right).
11
This is how theories that subscribe to the Priority of the Moral normally proceed. However, accepting the
Priority of the Moral does not commit one to accept i-v. The Priority of the Moral simply states that human
rights are ultimately grounded in a group of fundamental moral rights that individuals possess simply by virtue
of their humanity.
12
Griffin, On Human Rights, 240.
13
Ibid., 195–6.
14
Buchanan, “Human Rights,” 281.
15
Buchanan, “Why International Legal Human Rights?”
16
Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of
consumers in respect of distance contracts.
17
As Griffin correctly points out, matters of justice can be important without thereby being matters of human
rights. His example (which he brings up in the context of his discussion of fairness) is that of two top executives
who are equally competent and efficient, but receive different pay in virtue of the fact that one of them is related
27
to the company’s CEO. While a significant injustice, this does not seem to be a human rights violation (Griffin,
On Human Rights, 41–2).
18
Of course, saying that the notion of human rights should be abandoned by philosophers is not saying that it
should also be abandoned by human rights activists, lawyers and politicians. To the extent that appealing to the
rhetoric of human rights helps these actors to prevent serious harm and further the cause of justice, they are
justified in doing so, but the existence of human rights could not be vindicated in this way any more than the
existence of the tooth fairy could be vindicated by appealing to the value of tooth fairy talk for the well-being of
children.
19
Rawls, The Law of Peoples, 67. One way to challenge the claim that respect for human rights is the criterion
for membership in the Society of People is to point out that Rawls does not grant membership to what he calls
“benevolent absolutisms,” i.e. regimes where human rights are respected out of the benevolence of the rulers, but
not legally guaranteed. (Thanks to Yann Allard-Tremblay for pressing this point.) Different strategies can be
employed to resist this challenge. Some argue that the exclusion of benevolent absolutisms is unwarranted: to the
extent that benevolent absolutisms respect human rights, they should be recognized as members in good standing
of the Society of Peoples, alongside liberal and decent societies (Kok-Chor Tan, Toleration, Diversity, and Global
Justice (Penn State Press, 2010), 38.). Others explain the fact that benevolent absolutisms should be treated
differently by appealing to the idea that what warrants membership in the Society of Peoples is robust respect for
human rights, i.e. respect “guaranteed by stable institutional constraints” (Laura Valentini, Justice in a Globalized
World (Oxford: OUP, 2011), 82). These complications can be bracketed for the purposes of this paper, but see
David Reidy, “Political Authority and Human Rights,” in Rawls’s Law of Peoples, ed. Rex Martin and David
Reidy (Blackwell, 2006), 169–88, for an interesting discussion of the problem.
20
Rawls, The Law of Peoples, 81.
21
Charles R. Beitz, “Rawls’s Law of Peoples,” Ethics 110 (2000): 669–696, at p. 685.
22
Rawls, The Law of Peoples, 79.
23
Beitz, The Idea of Human Rights, 110.
24
At least at times, Beitz seems to be taking this view (Ibid., 10–2, 104–6).
25
As I mention above, the role that political approaches attribute to human rights within the international practice
is not limited to justifying interference with state sovereignty. It might be argued that the distinctive role of human
rights is rather to set conditions for the legitimate authority of states. (According to this view, states lose their
power to create moral obligations for their subjects when they violate or fail to protect human rights). In the rest
28
of the paper, I will focus on the role of human rights as triggers for international intervention but my arguments
will apply mutatis mutandis to views that understand them as benchmarks of political legitimacy.
26
Raz defends a version of this view.
27
Ibid., 103.
28
Beitz seems aware of this problem and makes clear that we should not simply assume that the human rights
practice should be treated as morally binding. Whether we have reasons to treat it in this way is a question to be
examined in its own right (Ibid., 11).
29
But see Andrea Sangiovanni, “Justice and the Priority of Politics to Morality,” Journal of Political Philosophy
16 (2008): 137–164, for an interesting attempt to defend the idea of a critique “immanent to the practice,” one
that does not presuppose the existence of pre-institutional standards of justice.
30
31
32
Raz, “Human Rights Without Foundations,” 328; Beitz, The Idea of Human Rights, 109, 115–20.
Ibid., 110, italics mine.
For a discussion of how the presence and the strength of pro tanto reasons can be identified in this context, see
Andrea Sangiovanni, “Beyond the Political-Orthodox Divide: The Broad View,” in Human Rights: Moral or
Political?. ed. Adam Etinson (Oxford: OUP, 2015).
33
I am grateful to Joseph Raz for pressing this point in conversation.
34
This is how Raz characterizes the political view in his “Human Rights Without Foundations,” 322.
35
Ibid., 328.
36
Particularly if we follow Raz and Beitz (as I think we should) in understanding human rights as triggers not
only for military intervention but also for weaker responses (such as diplomatic sanctions and acts of formal
censure), the view that violations of human rights are a necessary condition for such responses seems implausible.
Suppose, for example, that Italy decided to allow the torture of non-human animals, or the destruction of all its
art collections. If so, international intervention by way of formal censure would be permissible, although no human
rights would be violated.
37
Thomas Nagel, “Personal Rights and Public Space,” in Concealment and Exposure (New York: OUP, 2002),
31–52, at pp. 33-4. The view that rights can have this sort of non-instrumental value is also defended by Frances
Kamm and Warren Quinn (F. M. Kamm, Intricate Ethics (New York: OUP, 2007), chap.7.8; Warren Quinn,
Morality and Action (Cambridge: Cambridge University Press, 1993), chap. 7).
38
Jean Hampton, The Intrinsic Worth of Persons (New York: Cambridge University Press, 2007), chap. 4.
29
39
Massimo Renzo, “Human Needs, Human Rights,” in Philosophical Foundations of Human Rights, ed. Cruft,
Liao, and Renzo, 570-587. In this paper, I defend the view that human rights in addition to having instrumental
value, also have non-instrumental value. John Tasioulas pursues a similar strategy, since his justification for
human rights appeals both to interests (though these interests for Tasioulas are not limited to the opportunity to
fulfil basic needs) and to the importance of human status; John Tasioulas, “Human Rights, Legitimacy and
International Law,” American Journal of Jurisprudence, 58 (2013): 1-25, at 53-6.
40
The different roles that the notion of human dignity can play as a foundation of human rights are examined in
Jeremy Waldron, “Is Dignity the Foundation of Human Rights?,” in Philosophical Foundations of Human Rights,
ed. Cruft, Liao, and Renzo, 117-137.
41
I should make clear that in my view, naturalistic accounts are also constrained by the requirement of being
sufficiently faithful to the practice of human rights as we know it. However, these accounts can be more
revisionary given that the practice does not play a central role in how they approach the questions of the nature
and the justification of human rights. Since the practice plays such a role within the political view, it is particularly
troubling for this view when its implications are at odds with the practice.
42
Rawls, The Law of Peoples, 68.
43
Raz, “Human Rights Without Foundations,” 323.
44
I borrow these examples from John Tasioulas, “On the Nature of Human Rights,” in The Philosophy of Human
Rights Contemporary Controversies, ed. Gerhard Ernst and Jan-Christoph Heilinger (Berlin: De Gruyter, 2012),
17–59.
45
Griffin, On Human Rights, 133.
46
Renzo, “Human Needs, Human Rights,” 575-6.
47
Tasioulas, “On the Nature of Human Rights,” 40.
48
Raz, “Human Rights Without Foundations,” 323.
49
The reason why the basic needs account require that we have the opportunity to have our basic needs met, as
opposed to requiring that those needs are actually met, is that people can decide not to avail themselves of the
opportunity without failing for this reason to have a minimally decent life. To see this point, contrast the case of
someone who decides to join a religious order that requires her not to live a certain building with the case of
someone who is forced not to leave the same building against her will.
50
I further defend the basic needs view in my paper “Human Needs, Human Rights.” The philosopher who has
done most to develop the view is David Miller (Miller, National Responsibility and Global Justice, chap. 7; Miller,
30
“Grounding Human Rights”). The view overlaps to some extent with the capabilities approach defended by
Martha Nussbaum (Women and Human Development: The Capabilities Approach (Cambridge: Cambridge
University Press, 2000); Creating Capabilities: The Human Development Approach (Cambridge, MA: Belknap
Press of Harvard University Press, 2011) and Amartya Sen (“Elements of a Theory of Human Rights,” Philosophy
& Public Affairs, 32 (2004): 315–56).
51
I am grateful to Alejandro Chehtman, Rowan Cruft, Pablo Gilabert, Simon Hope, Carmen Pavel, Andrea
Sangiovanni, David Schmidtz, Laura Valentini and two anonymous referees for very helpful comments. Thanks
also to audiences at Oxford, McGill, Carleton, Monash, and at the workshop organized by Social Philosophy and
Policy for stimulating discussions. Part of the work on this article was conducted at the School of Philosophy of
the Australian National University.
31