Making Sense of Human Rights

"James Nickel is an American philosopher. When he wrote this book he was based at the University of Colorado’s philosophy department and he’s currently in the law school at the University of Miami. A lot of people would trace their first philosophical engagement with human rights back to this book. I have always used it as a kind of foil with my students. There is always a tendency amongst graduate students to work on fashionable topics, in particular what the leading philosophers of the day are writing about. When James Nickel conceived the idea of writing philosophically about human rights, he was told by many in the profession that it was a waste of time. Despite getting this advice, including from Jules Coleman, a famous legal philosopher, he was undeterred. I like that aspect of it: the sheer independence of mind, the willingness to work on an important area that was shunned by his peers. Nickel has been hugely vindicated since. The other aspect I want to stress is the methodology, as revealed in the title: Making Sense of Human Rights. By ‘human rights’ Nickel means that culture inaugurated by the Universal Declaration of Human Rights . So, although there are many things you might mean by ‘human rights’, what Nickel means for the purposes of this book is the Universal Declaration and the ethical-political-legal culture to which it has given rise. His question is: how we can make philosophical sense of this, rather than thinking of it purely as some kind of political compromise or merely as a matter of rhetoric or a move in power politics . I still think, to this day, that this book is the best introduction to the philosophy of human rights. It’s extremely clear and it approaches the subject matter in a spirit of critical sympathy. He doesn’t want to show you how smart he is compared to the drafters by making fun of particular human rights in the UDHR, like the right to rest and leisure. He’s doing his best to find the kernel of good sense in the Universal Declaration . I think he does a great, pioneering job of this. It’s partly the principle of charity, but it’s also partly a matter of what your ethical instincts are. Are your instincts that the concept of human rights has been a valuable one that helps to articulate important demands that individuals may have against the state and against others? Or do you think it’s a matter of ideological window-dressing? Clearly, Nickel belongs to the former category. He believes that it’s a valuable ethical idea. That is his starting-point, and the book is an attempt to unfurl exactly what this idea is in as attractive a way as possible so as to clarify and guide our thinking about human rights in the future. We have got to distinguish between justifying something and persuading someone. There may be a perfectly good justification and yet we know that, despite having a perfectly good justification for a given proposition—for example that climate change is happening or that astrology doesn’t accurately predict your future—there will be people who remain unpersuaded. I think that’s part of the story. The other part of the story, though, is that the first person you need to justify something to is yourself. You find yourself commitments not to torture people and so on, but can you justify to yourself why you believe these things? That’s the first step. One of the interesting things that we find in Nickel’s book is that there isn’t a single, privileged form of justification for these rights. There’s been a tendency to suppose that if you’re going to engage philosophically with human rights, you’re simply engaging with them as a by-product of some commitment to a broader moral theory, such as utilitarianism or deontology or whatever. Nickel challenges that. He says, ‘Look, here are some rights that have achieved a great deal of traction and many of us believe in them. There’s no need for a privileged philosophical account of their justification. There may be overlapping strands that go towards justifying each right.’ He pioneered that approach, and I guess, if you follow him, one of the things you have to take less seriously is the philosophical desire to reduce everything to a system where everything follows from some small, elegant set of principles. Yes, I think what he might say is that there may or may not be the one correct way of justifying human rights, according to the correct moral theory, but we don’t need to be in possession of that theory in order to proceed responsibly with human rights. There are a number of justificatory strategies that we can bring to bear. It’s important to remember that he was, in a sense, more concerned with those rights that end up being incorporated into law. I think it’s true that if you’re thinking about the rights that belong in law, often there isn’t one particular justificatory route to something getting into law. So, maybe some rights that are in law—for instance the right not to be tortured—might map fairly directly onto a background moral right. There is a moral right not to be tortured, if there is any moral right. But there might be other legal rights that don’t bear quite this direct justificatory relationship with another moral right. They might be justified on the basis of considerations of the common good, for example, or considerations to do with the current state of the world. You might say, ‘Look, if you’re examining this from a purely moral perspective, then maybe the death penalty isn’t always a violation of human rights. But, given the reality of how the death penalty is used, there’s a good case for legally enshrining a right to not be subjected to the death penalty.’ So he could have more of a pragmatic, ecumenical approach to justification because his primary focus is on those rights that end up being legally enacted. That’s right. As far as I know, his current project is to examine relationships between rights. It was a good investment, back in 1987, to publish this book because it’s one thing to establish the existence of the rights. Then you’ve got to get into questions about what exactly their content is and how the content of one right relates to other rights, and how the content of any given right relates to non-rights-based considerations. At that point, the possibility of conflict or trade-offs or balancing can come into the picture. It’s one of the many fundamental questions about human rights that needs deeper investigation."