At the dawn of the modern human-rights era, the role of human rights in the international legal order was rather minimal. The rights listed in the Universal Declaration of Human Rights (UDHR, 1948) were not legally binding; they were largely aspirational. The situation is different today: the international legal order is beginning to take human rights seriously. The Security Council has authorized military interventions to stop massive violations of human rights in Bosnia and Somalia. A permanent International Criminal Court has been established to prosecute persons accused of war crimes, crimes against humanity, and genocide. There is growing acceptance of the idea that conformity to human-rights norms is a necessary condition of the legitimacy of governments and even of states, at least in the context of new states emerging from secession.Footnote 1 Taken together, these developments signal the transition from an international legal system whose constitutive, legitimizing aim was peace among states (and before that merely the regulation of war among states) to one that takes the protection of human rights as one of its central goals.
I. A FUNDAMENTAL LEGITIMACY ISSUE
When international legal institutions authorize military interventions, prosecute state leaders for war crimes, or judge states or governments to be illegitimate, they justify such actions by appealing to the special status of certain norms. These norms are thought to be capable of grounding enforcement efforts and legitimacy assessments because they are human-rights norms, norms that identify rights that all human individuals have, independently of whether their own governments acknowledge them.Footnote 2 Only such universal rights could justify the kinds of restraints on sovereignty and even on the self-determination of democratic peoples that the international legal order now attempts to impose. So when international legal institutions justify their most important and controversial functions by appeals to human rights, the rights they appeal to not only must be justifiable; they must be justifiable as human-rights norms.
For this justification to succeed, it must include a credible response to a perennial challenge to the very idea of human rights: the parochialism objection, according to which what are called human rights are not really universal in the sense of being rights of all individuals but instead merely reflect (1) an arbitrarily restricted set of moral values; or (2) an arbitrary ranking of certain moral values. According to this objection, both sorts of arbitrariness are due to cultural bias: supposedly universal values (or rankings of values) are merely the expression of a mistake—the mistake of thinking that what happens to be valued from the perspective of some particular culture or type of society is universally valuable. A culturally biased view is parochial in the pejorative sense: it suffers from limitations that indicate a failure to appreciate different, equally valid perspectives, a kind of evaluative myopia.
A justification responsive to the parochialism objection is nowhere to be found in the texts of the conventions that list putative human rights. The preambles of these documents content themselves with vague references to the dignity of the individual without saying anything about what dignity is and without sketching the supposed argument from dignity to particular human rights.
Until recently, silence on the question of justification was a virtue. For those who found themselves in a world devastated by World War II and the Holocaust, the urgent priority was to get as much agreement as possible on a set of minimal standards for how states should treat their own peoples, and this appeared to require three things: a highly abstract set of rights, avoidance of potentially divisive debates about their foundations, and assurance that these ‘rights’ were not enforceable against states.
This rationale for avoiding the issue of justification is no longer cogent.Footnote 3 The very success of the institutionalization of human rights makes the issue of legitimacy and hence of justification inescapable. The more seriously the international legal system takes the protection of human rights and the more teeth this commitment has, the more problematic the lack of a credible public justification for human-rights norms becomes. In this paper I make no attempt to provide a full justification for human rights. My focus is on only one important aspect of the problem of justification: providing a plausible answer to the parochialism objection.
The parochialism objection may seem weak in the case of what are sometimes called basic human rights, such as those against enslavement, torture, and religious persecution and the rights to subsistence and physical security. These rights, at least, are clearly valuable for people generally, not just for “Westerners” or “liberal-individualists.” The objection cannot be met so easily, however. There can be serious disagreements, rooted in different cultural views, about the specific content of even the most basic human rights, about how they ought to be balanced against one another in cases of conflicts of rights, and about what conditions, if any, would have to be satisfied if they were to be permissibly abrogated to avoid a moral catastrophe. The right against cruel and inhumane treatment is an obvious example among many. Does it prohibit corporal punishment in all forms or only some, and if so, which?
The point is that even the most uncontroversial human-rights norms are not self-specifying, nor do they come with their relative weights stamped on their foreheads. The more an intuitively plausible, highly abstract human-rights norm becomes legalized, the more vulnerable it can become to the charge of parochialism, because legalization involves, among other things, greater specificity of content and in some cases the establishment of rules for weighing conflicting rights. If enforcement mechanisms are to be legitimate, the law must be reasonably clear and the legal consequences of actions must be reasonably predictable. But efforts to achieve clarity and predictability create their own problem of legitimacy in the absence of a credible justification. The proper target of the parochialism objection, then, is the modern conception of human rights (MCHR for short), which consists of the norms listed in the major human-rights conventions as they have been interpreted and specified over time through complex institutional processes that encompass not only international courts, treaty bodies, and other international institutions but also national and regional courts so far as they attempt to apply and enforce international human-rights law.Footnote 4
Once it is understood that what requires justification is not simply some very abstract norms that are found in the more important human-rights conventions but the more determinate norms that are required to make the idea of human rights an effective force in the international order, it becomes clear that one popular strategy for answering the parochialism objection is inadequate. Some theorists have tried to respond to the parochialism objection by showing that all of the major religious and/or cultural traditions contain ideas that can be given expression in the language of human rights.Footnote 5 Call this the overlapping-consensus approach.
The overlapping-consensus approach is inadequate, both as a reply to the parochialism objection and as a strategy for providing a full justification of human rights. It is hard to see what justificatory force the mere presence of human-rights-friendly ideas within a particular culture should have for those who belong to the culture, if the same culture also contains ideas that are hostile to human rights. Unfortunately, for at least some of the major religious cultural traditions, including Islam, Christianity, and Judaism, there are some ideas that might be expressed in terms of human rights and others that seem to be in opposition to them. Further, even if a particular tradition contained a preponderance of ideas that were consonant with a very abstract formulation of a human-rights norm, it might also contain elements that were quite at odds with the more determinate norms that are increasingly structuring the international order. But if this were the case, how could the existence of the human-rights-friendly elements of the tradition be an adequate justification for human rights?
If the underlying rationale of the overlapping-consensus approach is contractualist, then its inadequacy is all the clearer: the fact that someone could accept (or could not reasonably reject) a certain norm if she focused only on elements of her moral view that are consonant with it while ignoring elements that repudiate it does not show that requiring her to comply with the norm is either respectful or tolerant.
Similarly, establishing that the idea of human rights can be seen as an expression of some of the values of a particular religious or cultural tradition would not rebut the charge that human rights are parochial. Human rights might be consonant with some values in a particular religious or cultural tradition, but if they were in conflict with other values in that tradition or if they reflected a ranking of values that was clearly repudiated by important elements of that tradition, they could still be parochial. Those who make the charge of parochialism hold that human-rights norms are parochial precisely because they seem systematically to ignore some of the values or rankings of values that are present in a number of traditions. If human-rights norms represent an arbitrary selection of values that is rooted in a cultural bias that finds in other traditions only what it already values and ignores the rest, that is, indeed, a kind of parochialism. So the existence of human-rights-friendly ideas or values in wide range of religious or cultural traditions does not rebut the parochialism objection.
The relationship between parochialism and cultural acceptability warrants further comment. It is simply a misunderstanding of the concept of the parochial to think that if a norm is not acceptable from the standpoint of some cultures, then it is parochial. To be guilty of parochialism is to have a view that is limited by a narrow perception or partial understanding and to be unaware of the fact that one's view is thus limited. Consider the case of cultural views that foster gender discrimination. The claim that there is a human right against gender discrimination may be rejected by people whose beliefs about natural differences between men and women are distorted by a parochial social experience, the kind of experience that is generated by systematic discrimination against women. Where there is systematic discrimination, women will not have the opportunity to show that they are as rational as men. In these circumstances, a claim about the existence of a universal right against gender discrimination may not be universally acceptable precisely because those who reject it have parochial views. To elaborate: a person growing up in a deeply sexist culture who has uncritically imbibed false factual beliefs about natural differences between men and women may be unable—given those beliefs—to accept a norm against gender discrimination. Parochialism can be the cause of lack of universal acceptability, but lack of universal acceptability does not imply parochialism.
The results of the argument so far can be summarized. Some who have attempted to rebut the charge of parochialism have tried to show that human rights are acceptable to all major cultures in the sense that in all such cultures there are some ideas or values in the culture that can be expressed in terms of human rights. But cultural acceptability in this very weak sense does not refute the charge of parochialism. If human rights are consonant with some ideas or values in a culture but at odds with others, the dissonance could be the result of the human rights in question expressing parochial values. Nor does limiting the imposition of human-rights norms to those that enjoy cultural acceptability in the weak sense demonstrate tolerance or respect; it may involve focusing only on the areas of consonance and arbitrarily ignoring those where there is dissonance. Finally, lack of cultural acceptability, far from implying parochialism, may be the result of it; human rights may be unacceptable from the standpoint of a particular culture because that culture includes values that are based on beliefs or social experience that is parochial in the pejorative sense. So the idea of cultural acceptability seems incapable of showing either that human rights are parochial or that they are not.
A New Way of Framing the Issue
At least among political philosophers, there seems to be a growing conviction that a justification of human rights is needed to answer the parochialism objection and to resolve conflicts among rights. While agreeing that a legitimate human-rights-informed international legal order must rest on a sound philosophical conception of human rights, I show here that this is not sufficient, because the justification of human rights is in part an institutional matter. I argue that on a proper understanding of what human rights are, there is a risk that the specification of various rights may be distorted by parochialism but that this risk can be reduced if the institutions through which human rights norms are articulated have certain epistemic virtues. I show that the justification of human rights, properly understood, is a dynamic process in which a provisional philosophical conception of human rights both guides and is fleshed out by public processes of practical reasoning structured by legal institutions.
My conclusion is that whether the modern conception of human rights (henceforth the MCHR) can answer the charge of parochialism depends not only upon the content of human-rights norms as set out in the major conventions and the arguments philosophers can marshal to justify them but also upon the epistemic virtues of the institutions through which the norms are specified, contested, and revised over time. My more fundamental aim is to reframe the issue of the justification of human rights. If my analysis is correct, neither those who doubt that human-rights norms are justified nor those who have attempted to justify them have understood the nature of the task of justification.
II. SORTING OUT PAROCHIALISM COMPLAINTS
The parochialism objection takes many forms. What they all have in common is the charge that human rights are expressions of either an arbitrarily limited set of values or an arbitrary ranking of values. In what follows I sort out various forms of the objection and critically evaluate them.
Is the Concept of Rights Itself Parochial?
It is sometimes said that the very notion of rights is parochial because some cultures either do not contain it at all or do not give it the moral preeminence that the MCHR accords it.Footnote 6 We have already seen why this particular form of the claim that the idea rights is parochial is mistaken: from the fact that a moral norm or a concept is not found in a particular culture, it does not follow that it is parochial. On the contrary, as the case of the concept of a right against gender discrimination indicates, the best explanation of why a concept is absent in a particular culture may be that the culture contains parochial views.
To show that the concept of a right is parochial, then, it is not enough to point out that this concept is not present in some societies or cultures.
Establishing even that much would be difficult, however. The concept of rights appears to have penetrated into every society. Even if it were true that this concept initially emerged only in Western societies (itself a contestable claim), it is now accessible to people the world over. Indeed, people in whose cultures the concept of a right may not be indigenous nonetheless have found it to be extremely valuable for protecting their vital interests.Footnote 7
The real issue is not whether the concept of a right is accessible in all cultures but rather whether it reflects an arbitrarily narrow set of values or rankings of values due to cultural biases. Whether a particular concept is parochial may depend upon what its function is supposed to be; the fact that a concept does not reflect the full range of moral values may be no indication of parochialism if the narrowing of normative focus is appropriate, given the use to which the concept is to be put. Asking whether the concept of a right is parochial may not be precisely the right question to ask; instead, we should ask whether the use to which the concept is put in the MCHR involves parochialism.
The concept of a right has certain characteristics that make it peculiarly well suited to expressing the notion of the inherent dignity of human beings, a notion that has played a prominent role in the modern human-rights movements from its beginning and which is explicitly invoked in some of the major human-rights conventions.Footnote 8 The concept of a right, at least that of a claim-right (in Hohfeldian terms), conveys not only the idea of obligation but also that of the right-holder being entitled to be treated in certain ways. Because the concept of a right allows us to distinguish between merely having an obligation toward or regarding an individual and the obligation being owed to her, it can effectively convey the idea that individuals have inherent dignity—an idea that, as I note above, finds forceful expression in the preambles of major human-rights conventions.Footnote 9 The notion of dignity implies that individuals have a moral status on their own account independent of their worth to others or their contribution to social utility and even independent of whether God commands us to act toward them in certain ways. So if the aim is not only to list important obligations regarding all individuals but also to make it clear that they are owed to individuals on their own account, then recourse to the language of rights is highly appropriate.
Given that the concept of a right has this advantage and in addition is both accessible to and valuable for individuals across a wide range of cultures, it is not parochial to employ it in the articulation of the most fundamental standards for how individuals should be treated on their own account. The reasons just stated for expressing the notion of human dignity in terms of rights are reflective and well considered and they can acknowledge that other moral concepts have a valuable role to play in other contexts; there is no reason so far to think that they evidence a parochial outlook.
Of course, the domain of rights is only one part of morality, and in some of the most valuable forms of interaction among human beings, the concept of a right typically is not nor should be invoked. This does not show that the conventional conception of human rights is parochial, however, because from the beginning the MCHR has acknowledged that human rights are not coextensive with morality but play a more limited role.Footnote 10
Parochial Inputs versus Parochial Outputs
The familiar complaint that the rights included in the MCHR are reflections of peculiarly Western liberal values suggests that the concepts and norms that are employed in the major human-rights conventions were introduced by people who uncritically internalized these supposedly parochial values. There is much evidence, however, that the actual processes by which the major human-rights conventions were created were not, in fact, so culturally or ideologically one-sided nor so unreflective.
Mary Ann Glendon documents that credible efforts were made to reduce the risk of what might be called input bias in the drafting of the UDHR by the initial UN Human Rights Commission. First, there was an extensive inquiry to inform the Human Rights Commission of the full range of existing bills of rights and other relevant constitutional provisions from around the world.Footnote 11 Second, a multicultural UN “Philosophers Committee” was convened to address the question of whether or to what extent it was possible for the UDHR itself to articulate the moral, religious, or philosophical foundations of the rights it was to list.Footnote 12 Third, the composition of the Human Rights Commission itself was remarkably inclusive.Footnote 13 Two of its most forceful members were non-Europeans, ably representing Chinese and Arab-Muslim philosophical and religious traditions, respectively. Two other especially articulate and assertive members were a woman from India, who pressed the issue of women's rights, and a representative from the Philippines, who voiced concerns of colonized peoples. Fourth, the draft document that the Commission eventually produced was approved by the UN General Assembly, which then represented states from every geographical area and most major cultural traditions in the world, with no negative votes and only eight abstentions (including Saudi Arabia because of its rejection of equal rights for women and the U.S.S.R. because it viewed the very idea of human rights as an unacceptable constraint on state power).Footnote 14
As UN membership expanded—chiefly through a process of decolonization mobilized in part by the discourse of human rights—the institutionalized procedures within which the original human-rights conventions were interpreted, as well as those through which new conventions were created, became increasingly inclusive and to that extent less prone to parochialism. This institutionalized commitment to inclusiveness has been consistently reflected in administrative rules and procedures governing the composition of judicial and quasi-judicial bodies tasked with monitoring compliance with human-rights conventions as well as in the composition of bodies to draft new conventions.Footnote 15
None of this is to suggest that the MCHR is free of parochial distortions. The point is that from the beginning, the design of the human-rights institutional framework has included significant provisions for reducing the risks of parochialism. In addition, as human-rights nongovernmental organizations (NGOs) have come to play a larger role in the processes that specify the content of human-rights norms for purposes of monitoring compliance, the deficiencies of the original state-centered system have been ameliorated to some extent. One of the key functions of such organizations is to help insure a more inclusive representation of interests by giving voice to the concerns of the disempowered. Greater inclusiveness is one obvious way to avoid or at least minimize the risk of parochialism.
Whether a conception of human rights is parochial, then, can depend in part upon the institutions through which it is articulated. Even if a conception of human rights is damagingly parochial in its origins, this defect can be ameliorated over time through the working of properly designed institutions. Here there is a clear analogy with the evolution of constitutional rights in domestic systems. The individual rights added to the U.S. Constitution were at first interpreted as having quite narrow application—only to white men—but through complex legal and political processes that spanned two centuries, the domain of right-holders was expanded to include women and people of color and more recently people with disabilities. Two factors made this transformation possible: (1) the conceptual instability of attempts to restrict rights said to be grounded in very general human characteristics, such as rationality, to only a subclass of people; and (2) a legal system that empowered people to expose this inconsistency and that provided resources for helping to translate the conceptual shift toward greater inclusiveness into institutional reality.
This U.S. constitutional example illustrates two points that are of crucial significance for the task of justifying human rights. The first is that a parochial conception of rights can be replaced over time with one that is not parochial and that institutions can play a critical role in this transformation. The second is that we should not assume that legal processes are merely mechanisms for translating independently justified moral rights into legal ones; they can constitute modes of public practical reasoning that contribute to our understanding of moral rights and to their justification.
The question at this point in my argument is whether, in spite of impressive institutional efforts to avoid parochialism in “inputs,” the “outputs” of the institutional processes through which human rights norms are interpreted and applied—the actual content of the rights as they are now understood in international human-rights practice—is damagingly parochial. To begin to answer this question it is first necessary to examine the different ways in which the content of human-rights norms could be said to be parochial.
The Excessive-Individualism Objection
Some complain that the MCHR is too individualistic, that it reflects and helps perpetuate the distorted liberal conception of human beings as egoistic, atomistic beings.Footnote 16 The liberal conception of human beings is said to be parochial either because it excludes certain important values, including, preeminently, the goods of community, or because even when it does not exclude such values entirely, it ranks them too low compared with individualistic values.
There are two distinct lines of response to this version of the parochialism objection. The first focuses on the character of human rights as they were initially conceived in the first decades of the modern human-rights era, in the three documents that together comprise what is sometimes called the International Bill of Rights: the UDHR, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Social, Cultural, and Economic Rights (ICESCR). The point I make in this regard is that even though the majority of the rights in these documents are individual in the trivial sense that they are attributed to individuals, this does not show that they are excessively individualistic, because they are of great value for protecting the life of communities and to that extent reflect a clear recognition of the social nature of human beings.
The second line of response focuses on the development of the MCHR as it has occurred within the changing social, political, and institutional context of the decades following the drafting of the major documents. Here, I argue that over time a more “community-friendly” conception of human rights has emerged.
How Rights Ascribed to Individuals Protect Communities
Both the UDHR and the ICCPR contain the civil and political rights that are associated with liberalism, and liberalism, at least in some of its forms, can be excessively individualistic. Nevertheless, these rights provide powerful protections for communities. This is most obviously true of the rights of freedom of association, thought, expression, and religion. It is equally true of the rights of equal treatment and due process under the law, because these rights, too, make it more difficult for those who control the state to use its power to harm national, ethnic, or religious minorities.Footnote 17 Political-participation rights, even when ascribed exclusively to individuals, protect communitarian values as well because they make it harder for government to harm minorities.
The effectiveness of civil and political rights in protecting communities is significantly enhanced by the addition of social, economic, and cultural human rights, both in the UDHR and, in greater detail, in the ICESCR. In the UDHR these include rights to work and to an adequate standard of living (Articles 22 and 25) and the right to participate freely in the cultural life of the community (Article 27). The UDHR also includes specific rights designed to support two types of community that play a vital role in human life in our world: the right of every person to a nationality and the right against being arbitrarily deprived of one's nationality or denied the right to change one's nationality (Article 15, 1 and 2); and the right to “found a family” (Article 16, 1).
How Human Rights Have Become More Community-Friendly
Further, it is simply not the case that the conventional conception of human rights is individualistic in the sense of ascribing rights only to individuals.Footnote 18 Both the ICCPR and the ICESCR assert a “right of self-determination of peoples,”Footnote 19 without any suggestion that this right is reducible to the rights of individuals who make up peoples. Further, the Genocide Convention (1948), generally regarded as a cornerstone of international human-rights law, is an explicit and forceful assertion of the value of community insofar as it recognizes as a distinct international crime various acts that are intended to destroy groups.
Finally, two other developments make even less cogent the claim that the conventional conception of human rights is excessively individualistic. The first is the emergence in international customary law of norms recognizing the rights of indigenous peoples, understood as including some rights that are ascribed to groups, not individuals.Footnote 20 The second is the tendency to interpret some of the human rights ascribed to individuals in the International Bill of Rights in a more communitarian fashion. For example, in the Lubicon Lake Band case, the International Human Rights Committee interpreted the right of the individual to enjoy culture (Article 27 of the International Covenant on Civil and Political Rights) as supporting the protection of collective land rights.Footnote 21
Here it might be objected that the recognition of the right of self-determination, the Genocide Convention, and emerging customary norms recognizing collective rights of indigenous peoples do not fall under the heading of human rights properly speaking, because human rights by definition are rights of individuals. The latter claim is vigorously contested by a number of international legal scholars.Footnote 22 Be that as it may, whether an international legal order that takes human rights seriously is thereby excessively individualistic can only be determined by evaluating the overall institutional framework in which the rights ascribed to individuals are located. Even if the foregoing international legal “group rights” are not included in the human rights properly speaking, they nevertheless provide some corrective to whatever tendencies to excessive individualism might exist if human rights ascribed to individuals functioned in isolation.
A worry persists, however. The right of self-determination in international law applies only to populations subject to colonial rule or to military occupation.Footnote 23 As such, it fails to address the concerns of indigenous peoples and national minorities embedded within states. The Genocide Convention covers only the most extreme cases of oppression against groups, while existing customary norms regarding indigenous peoples' rights are arguably inadequate for those groups and are of dubious applicability to the plight of national minorities.
Here a distinction ought to be made between two questions: (1) is the existing normative structure of international law adequate for addressing the valid concerns of groups? and (2) is the MCHR excessively individualistic? Above I provide the outlines of an argument to show that the answer to the second question is negative, but this is quite compatible with the answer to the first question being negative as well. The chief reason for a negative answer to the first question is that current international law does not adequately address all of the valid concerns of indigenous peoples and national minorities. But from this it does not follow that the MCHR is excessively individualistic. A more accurate description of the current state of affairs is that the existing normative structure for the international legal order is incomplete, not that human-rights law is defective because it does not supply the whole normative structure that is needed.
The situation would be quite different if the current human-rights law or practice could be shown to be somehow thwarting the development of a more complete normative structure that would do justice to the claims of indigenous peoples and national minorities or if it could be shown that human rights, as now conceived, are conceptually incompatible with due recognition of group rights.Footnote 24 Neither of these hypotheses seems plausible, however, and to my knowledge, no one has made the case for them. On the contrary, better protection of the human rights of members of oppressed groups is generally a precondition of the effective exercise of group rights. So even if an international legal order that takes human rights seriously does not thereby provide adequate protection for groups, it does not follow that human rights themselves are excessively individualistic or that efforts to enforce human rights are illegitimate. The fact that human rights do not by themselves adequately protect all the interests that ought to receive protection in the international legal order does not imply that they represent a parochial moral outlook.
The Biased Abstractness Objection
A second version of the parochialism objection, like the first, takes its inspiration from Marx and is voiced in some contemporary feminist critiques as well.Footnote 25 The charge is that rights generally, or at least some human rights, perniciously abstract from crucial class or gender differences among human beings in ways that undercut their value for the oppressed. This abstractness is seen as a kind of parochialism, because the rights in question are supposedly modeled on and only responsive to the peculiar, limited experience of males, or of property-owning males in capitalist societies. The idea here is that human rights are parochial because they express a set of values that are limited because they are rooted in a limited kind of human experience.
The first response to this version of the parochialism objection is to acknowledge frankly that any conception of rights possessed by all humans is necessarily abstract, and that this abstractness inevitably results in a failure to address fully the concerns of groups or individuals with special needs. The reply then goes on to note that a world in which human rights are taken seriously is better, from the standpoint of the most vulnerable, than one in which scruples about abstractness result in the rejection of the human rights project.Footnote 26 Further, abstractness has benefits as well as costs: It allows for a degree of diversity in the specification and application of human rights norms, in order to take into account differences among societies.
The second response is institutional. International institutions have served as venues for the development of specialized human-rights conventions to supplement the highly abstract major conventions. The Convention on the Elimination of All Forms of Discrimination Against Women,Footnote 27 the Convention on the Rights of the Child,Footnote 28 and the Convention on the Rights of All Migrant Workers and Members of Their FamiliesFootnote 29 were created to address the special needs and vulnerabilities of these groups. The more recent ratification of the Convention on the Rights of Persons with Disabilities is another case in point.Footnote 30 Whether such specialized conventions can be improved and supplemented is a complex question warranting more attention than I can give it here, but the point is that they are direct and impressive responses to the worry about biased abstraction.
Excessive Emphasis on Autonomy?
Some complain that the MCHR reflects an overestimation of the value of individual autonomy, that it arbitrarily privileges autonomy over other values, thereby expressing cultural bias. To determine whether this version of the parochialism objection is cogent, it is necessary to do two things. First, we must determine both whether there are in fact some rights in the MCHR whose justification depends upon a culturally biased overestimation of the value of autonomy and how central these rights are to the MCHR. Second, we must ascertain whether the institutional framework within which the MCHR is articulated has adequate resources for detecting and correcting whatever bias exists in favor of autonomy.
It is clearly beyond the scope of this essay to undertake a systematic evaluation of all the more than two dozen rights in the major human-rights documents in order to determine whether they exhibit a bias toward autonomy. Instead, my strategy is to focus on the rights that are the most likely candidates for being biased in this way. These include (1) the right to freedom from discrimination (in economic activity and political participation) on grounds of gender or race; (2) the right to freedom of association; (3) the right to freedom of religion, thought, conscience, and expression; (4) the right to freedom in the choice of an occupation; and (5) the right to consensual marriage and to found a family. These rights might be thought to reflect an undue emphasis on individual autonomy at the expense of communal values of the sort sometimes associated with “traditional societies.”
The first thing to notice is that each of these rights can be justified by appeal to its value in protecting values other than autonomy. For example, as my consideration of the excessive-individualism objection suggests, to justify inclusion of the right against discrimination on grounds of gender or race and the right of freedom of religion, conscience, and expression, it is not necessary to assume that a high degree of autonomy is a necessary condition for a decent human life. These rights provide valuable protections from much more tangible harms than diminution of autonomy by shielding individuals and groups against persecution, marginalization, and other threats to important basic human interests, including the interest in physical security and in achieving an adequate standard of living. Similarly, to make a strong case for the right to political participation as a human right, one need not show that political participation is itself an important, much less preeminent, form of autonomy or that if it is, this form of autonomy is in itself a constituent of a decent or dignified life for humans generally. Instead, one can argue that political-participation rights help ensure the political accountability upon which the protection of other human rights, including those that protect communal goods, generally depends. So from the fact that certain rights in the MCHR promote individual autonomy or would be especially attractive to those who value autonomy highly, it does not follow that they reflect a bias in favor of autonomy.
Second, like all other human rights in the major conventions, these autonomy-promoting rights are so abstract that it is difficult to argue that they exhibit an inflated valorization of autonomy. Efforts to articulate and implement the MCHR have generally proceeded on the assumption that a degree of abstractness is necessary for universality and that specification and implementation can and should vary, to some extent, across different social contexts and cultures.Footnote 31 So whether a particular right exhibits a bias toward autonomy cannot be determined in the abstract. The question is whether the complex web of international, national, and regional institutions through which sufficient specification for implementation is achieved promotes a bias toward autonomy and whether it includes adequate resources for detecting and correcting such bias. To the extent that this complex web of institutions includes provisions for increasing inclusiveness and is responsive to voices that contest the importance of autonomy relative to other values in securing the conditions for a decent human life, the problem of autonomy bias looks both less serious and more tractable. My aim here is not to refute the autonomy-bias version of the parochialism objection conclusively but only to use a consideration of it to make a more general methodological point: whether the MCHR is parochial cannot be determined without an examination of its institutionalization, because “institutionalization” here means much more than giving legal form to antecedently specified and justified norms.
The False Universality or Institutional Relativity Objection
Even if the MCHR is not excessively individualistic, has sufficient conceptual and institutional resources for avoiding biased abstractness, and is not guilty of giving too much weight to autonomy, it might still be parochial in the sense that its validity is restricted to conditions in which certain kinds of institutions exist. The argument would go like this:
(1) Human rights are by definition rights that apply to all persons regardless of the sort of society they live in; in that sense human rights are preinstitutional.
(2) But many putative human rights presuppose certain types of institutions, such as the welfare state (in the case of social and economic rights) or a fairly developed legal system (as in the case of various due-process rights)—institutions that have not always existed in human societies.
(3) (Therefore) many putative human rights do not apply to all persons, regardless of the sort of society they live in.
(4) (Therefore) many putative human rights are not human rights. (Rawls raises this objection in The Law of Peoples and suggests that a much leaner list of human rights can avoid it.)Footnote 32
Mistaking the rights that human beings have under current conditions for the rights of human beings as such would be a kind of parochialism. However, this objection confuses the MCHR with the traditional conception of natural rights.Footnote 33 Premise 1 need not be accepted by a proponent of the MCHR, and there is considerable evidence that it was not held by those who helped create the first major human-rights documents.Footnote 34 Although natural rights have sometimes been conceived as applicable to all persons regardless of the kind of society they live in, human rights typically are not and need not be understood in this way. In the mainstream of contemporary theorizing about human rights, they are conceived as rights that individuals have in the kind of social world in which human beings now find themselves. In the next section I explore a philosophical underpinning for the conventional human rights, a version of the interest-based approach that I call the modest objectivist view (MOV), which makes sense of the idea that human rights are grounded in our common humanity without assuming that they are natural rights in the sense of being preinstitutional and derivable solely from our humanity.
The core idea of the MOV is that human rights provide protections of basic human interests against standard threats to those interests. The character of the standard threats and what serves as adequate protections against them both reflect the nature of the kind of social world in which human beings now find themselves. If human rights accurately reflect the conditions under which human beings now live, then the fact that those conditions did not always obtain does nothing whatsoever to show that human rights are parochial.
The Need for a Philosophical Conception of Human Rights
So far I have shown that the MCHR, as it is institutionally embodied, has considerable resources for responding to the parochialism objection. However, worries about parochialism will no doubt persist in the absence of a satisfactory philosophical account of human rights that goes beyond the evocative but obscure idea that they are grounded in the inherent dignity of persons. I now outline an account that appears to be capable of doing this. For reasons that will become clear as I proceed, this outline is not intended as a full justification of human rights. Instead, it is an attempt to begin the process of justification in a way that is responsive to the parochialism objection.
III. THE MODEST OBJECTIVIST VIEW OF HUMAN RIGHTS
Moral and Factual Assumptions
According to the MOV, assertions about human rights rest on three assumptions:
(1) Every person counts equally in some morally fundamental sense, and this basic equality of moral worth grounds an entitlement to conditions needed to secure the opportunity to live a decent or dignified life (the equal regard assumption).Footnote 35
(2) Certain things can be done to human beings or certain deprivations they can suffer that generally undercut the opportunity for their living a decent life (the standard threat assumption).Footnote 36
(3) Feasible and morally acceptable social institutions and practices can significantly reduce these standard threats (the institutional response assumption).Footnote 37
Assumption 1 is one way of capturing the idea that the obligations in question are owed to individuals on their own account, and to that extent it is consonant with the idea that human rights are grounded in the inherent dignity of human beings. Assumptions 2 and 3 make it clear that this view of human rights has a substantial empirical component and that a list of human rights cannot be derived from a concept of human nature alone. More precisely, the MOV implies that sound justifications for assertions about the existence of human rights will rely significantly on factual premises, both about standard threats to basic human interests and about how these threats can be countered. According to the MOV, human rights are bundles of normative relations, primarily entitlements and duties.Footnote 38 When these normative relations are realized—when human rights are respected—human beings enjoy powerful protections against the standard threats to their basic interests, the constituents of a decent human life.Footnote 39
Basic Human Interests
The modesty of the MOV's conception of basic human interests is perhaps most apparent when it is formulated in a negative fashion; the idea is that we can make justified judgments about what sorts of actions and policies generally undercut human beings' opportunities to live a decent or dignified human life. Given human history, there is quite a lot of reliable information about what makes for human misery and degradation.Footnote 40
For example, we know that being tortured or enslaved or lacking physical security generally undercuts the opportunity to live a decent, dignified life.Footnote 41 We also know that because they possess cognitive and emotional capacities that other animals seem to lack, human beings can suffer intensely when they are humiliated, that certain forms of punishment and the more serious types of discrimination are humiliating, and that severe humiliation has severe effects on our psychological well-being as well as being an assault on dignity in its own right. We know, too, that when individuals do not enjoy rights of due process, they are especially vulnerable to being harmed by the state, that women and racial and ethnic minorities are liable to serious harms where rights against discrimination are not respected, and that when free speech is not protected, government is more likely to persist in acting in injurious ways.
The Equal Regard Assumption
To my knowledge, those who say the MCHR is parochial do not reject the assumption that all human beings ought to have the opportunity for a decent life. To claim that equal regard in this sense is a parochial moral notion would be an especially poor strategy for those who tend to assume that broad if not universal acceptability is a necessary condition for the legitimacy of a conception of human rights. For whether it is a cause or an effect of the modern human rights movement, the belief that everyone ought to have the opportunity for a decent life appears to be the focus of a rather broad “overlapping consensus,” if anything is. Instead, it appears that those who say that the MCHR is parochial are best understood to be implicitly rejecting either the conception of a decent human life that is presupposed by human-rights norms or the factual assumptions about what the standard threats to basic human interests are or about what the standard threats to those interests are.
I indicate above why I think the complaint that the underlying conception of a decent human life is parochial looks much less plausible once we recognize that human rights norms acknowledge the deeply social character of a decent human life and that individual autonomy is not the only value served by the protection of human rights. I also argue that the institutional processes within which human-rights norms are articulated include substantial provisions for reducing the threat of parochialism by ensuring an inclusive representation of interests and moral points of view. So I will now concentrate on the question of whether it is credible to say that the factual presuppositions of human rights norms are parochial.
The Real Risks of Parochialism
There are three ways in which a conception of human rights grounded in the MOV could be parochial as a result of having false factual presuppositions:
(1) A conception of human rights would be parochial if it were based on an unduly narrow understanding of the conditions that typically undercut a human being's opportunities for a decent life. For example, it might include only civil and political rights, omitting key economic rights and the rights to basic education and health care, due to a failure to appreciate the fact that without these latter rights, people may be unable to exercise their civil and political rights effectively. To the extent that such a restricted understanding of the threats to human well-being is rooted in a particular class perspective and sustained by a limited social experience that either does not include acquaintance with poverty or encourages the illusion that poverty can always be overcome by hard work, it could properly be called parochial. Some conceptions of natural rights may have been parochial in precisely this way, but the MCHR is not. It includes economic, social, and cultural rights.
(2) A conception of human rights would be parochial if it were based on an unduly restricted view about which institutional arrangements can effectively counter a particular standard threat to basic human interests. For example, someone who is acquainted with only the Anglo-Saxon legal systems and ignorant of the sorts of systems found in most European countries might falsely assume that adequate due-process protections require trial by jury in all criminal cases. The MCHR is not guilty of this sort of parochialism. It recognizes that due-process rights can be realized in a plurality of institutional arrangements.Footnote 42
(3) A conception of human rights would be parochial if it incorporated a one-sided understanding of the effects on basic human interests of the enforcement of some of the rights it encompasses. For example, the MCHR encompasses economic liberties, including the right to property as an individual.Footnote 43 To justify the inclusion of such economic liberties in a list of human rights, it is not enough to show that they can serve to protect basic human interests. One must also consider whether the exercise of these rights under certain conditions can have a negative impact on basic human interests, or at least the basic human interests of some people, such as those who lack effective property rights in land in a predominantly agricultural society or those who lack access to the sort of education needed to operate effectively in the marketplace.Footnote 44 A conception of human rights would be parochial if it failed to reflect a proper appreciation of the fact that a given right can have negative as well as positive impacts on human interests.
It would be difficult to argue, however, that the MCHR is seriously flawed in this way. After all, the UDHR and various human rights treaties include economic, social, and cultural (claim-) rights, as well as economic liberties. One could argue that the protection of economic liberties has been more zealously pursued than the protection of economic, social, and cultural rights and that this is unjust; but from that it does not follow that the inclusion of economic liberties in the list of human rights exhibits a parochial understanding of the conditions needed to protect basic human interests or is in any way erroneous.Footnote 45
We can now take stock of the argument up to this point. From the perspective of the MOV, whether a conception of human rights is parochial depends importantly on the accuracy of its factual presuppositions about what threatens basic human interests and about which combinations of rights and institutions provide effective protections against those threats. This focus on the crucial role of factual premises in the justification of human rights is a consequence of the MOV's rejection of the view that human rights are natural rights, that is, timeless and preinstitutional. Once we appreciate the importance of factual premises, it becomes clear that the task of specifying human-rights norms is ongoing: as conditions change, new threats to basic interests may present themselves and new institutional arrangements for countering them may be needed. This means that the institutions that formulate, interpret, and apply human rights norms must be able to identify and take into account changing factual information and do so in a way that makes credible the claim that the norms they produce are not parochial.
So the capacity for making explicit and critically revising the factual presuppositions of claims about human rights is one important epistemic virtue that human rights institutions must have if there is to be a convincing reply to the parochialism objection. At this juncture we move to the terrain of social epistemology, which, I shall argue, has been curiously neglected by human-rights theorists.
IV. THE NEED FOR A SOCIAL EPISTEMOLOGY OF HUMAN RIGHTS
Social epistemology, as I understand it here, is a normative, not a purely descriptive enterprise; it is the comparative evaluation of alternative institutional arrangements according to their tendency to foster true or justified beliefs. The guiding premise of the enterprise of developing a social epistemology is the anti-Cartesian insight that knowledge—and justification—are to a great extent social achievements.
The institutions that specify and apply human rights norms, as well as those that formulate new norms in specialized conventions, have important epistemic functions. They include mechanisms for accessing relevant empirical information by drawing on various “epistemic communities,”Footnote 46 including experts from NGOs and academic researchers. Such testimony has been conspicuous in proceedings of the European Court of Human Rights in a wide range of cases where violations of individuals' rights have been alleged. To take only one example of many, in Salah v. Netherlands (2006), an individual alleged that his right against inhumane treatment had been violated by the conditions of a maximum security prison in which he was held. The Court agreed, relying heavily on a 2003 study by the Free University of Amsterdam, according to which prison conditions caused damage to inmates' cognitive functions, increased rates of depression, and involved humiliation.
Other instances of the epistemic functions of human-rights institutions are not hard to find. Earlier I noted that the abstract rights of the UDHR, ICCPR, and ICESCR have been supplemented in specialized conventions with more determinate rights for women, children, and others who have special needs and vulnerabilities. The content of these new norms depends on factual assumptions about the character of these special needs and vulnerabilities. The bodies that formulate specialized institutions have developed procedures for gathering relevant factual information and have also provided forums for contesting claims about the validity of various factual claims.Footnote 47
Whether international human-rights norms are justifiable and whether the actions of international institutions that appeal to these norms are legitimate depends in part, then, on the reliability of such institutionalized fact-finding mechanisms. To the extent that we can come to know which sorts of institutional arrangements are more epistemically reliable, we can reduce the risks of parochialism and thereby address the concerns about legitimacy that they raise.
In some cases, making sure that the content of human-rights norms is informed by reliable factual information may require the creation of new knowledge, for example, about the comparative effectiveness of alternative due-process mechanisms or about which social and economic rights must be realized if political participation is to be meaningful. In others, it will require more effective dissemination of knowledge that is already available or organized attempts to correct misinformation, for example, about natural differences between men and women, about the supposed fertility-enhancing effects of female genital cutting, or about whether certain ways of treating prisoners are deeply humiliating, given their culture.
Other important epistemic institutional virtues, beyond the ability to identify and properly utilize factual information relevant to ascertaining standard threats to basic interests and reliable ways of reducing those threats, can be described abstractly but are perhaps even more difficult to characterize in concrete terms capable of guiding institutional design. At least this much can be said, however: institutions that contribute to the articulation of human-rights norms ought to provide venues for deliberation in which the authority of good reasons is recognized, in which credible efforts are made to reduce the risk that strategic bargaining or raw power will displace rational deliberation, in which principled contestation of alternative views is encouraged, in which no points of view are excluded on the basis of prejudicial attitudes toward those who voice them, and in which conclusions about human rights are consonant with the foundational idea that these are moral rights that all human beings (now) have, independent of whether they are legally recognized by any legal system. Such arrangements could significantly reduce the risk that the underlying conception of a decent life would be subject to serious distortions of parochialism.
Principled, Authoritative Specification of Rights
Institutions can perform another more subtle but equally crucial epistemic function: they can help states, nonstate private and public groups, and individuals come to know what respect for human rights requires by authoritatively specifying the interpretation of a particular human right when there is a plurality of reasonable interpretations.Footnote 48 An analogy with the state's role in specifying property rights is helpful here. Justice requires respect for property rights. A conception of justice narrows the range of acceptable alternative property-rights systems but it does not pick out one arrangement as uniquely correct. Under these conditions, individuals cannot know what justice requires of them regarding property rights, until some legitimate governance institution creates a normative coordination point by authoritatively specifying one arrangement from among the acceptable alternatives.
The selection of such a normative coordination point, unlike the decision to drive on the right, is not morally arbitrary. The institution in question must provide public reasons of the right sort through the right sorts of processes. The public reasoning process must be morally coherent—in particular it must be consonant with the equal regard for individuals that grounds the idea of human rights—and it must be informed by reliable, relevant, factual information.
The need for principled, authoritative specification of norms to achieve normative coordination points is one of the principal reasons for the effort to move from highly abstract moral human-rights norms to international legal human-rights norms.Footnote 49 Calling this institutional function mere “legalization” underestimates both its importance and its epistemic character. Legal processes do not achieve normative coordination by flipping a coin; they do it by complex modes of practical reasoning in which both moral values and responsible fact-finding play a prominent role.
The argument so far can now be summarized. The legitimacy of an international order grounded in the commitment to human rights depends in part upon whether there is a credible public justification for human-rights norms. A credible public justification requires a response to the parochialism objection, the charge that what are called human rights reflect an arbitrarily restricted set of moral values or an arbitrary ranking of values due to cultural biases. Properly designed institutions can reduce the risk of parochialism in the articulation of human rights norms and thereby contribute to establishing the legitimacy of an international legal order that is centrally committed to the protection of human rights in at least the following ways:
(1) They can access and utilize reliable factual information crucial for the justification and/or specification of human rights norms.
(2) They can achieve a more inclusive representation of interests and viewpoints than is likely to be available at the domestic level and to that extent can mitigate the risk of culturally biased understandings of basic human interests, of what threatens them, and of what institutional arrangements are needed to counter the threats.
(3) They can help us know what our obligations are regarding human rights by providing principled, authoritative specifications of human rights when there is a range of reasonable alternative specifications.
It is important to emphasize that I am not unwittingly sliding from moral human rights to legal human rights. I am saying that institutional processes that articulate international legal rights can play a valuable role—and I venture to say an indispensable role—in fleshing out the justification and specification of moral human rights. The point is that the process of “legalizing” moral rights does not leave our understanding of moral rights unaffected; it contributes to both the specification and the justification of those moral rights. Once it is admitted that justified moral belief, like justified belief generally, is in significant part a social achievement in which institutions play an important role, this claim looks less radical than it may at first appear to be.
Institutions and the Parochialism Problem
I note above that the refusal to acknowledge that there is a human right against gender-based discrimination can be the expression of a parochial point of view. People can come to have and to sustain false beliefs about women's capacities for rationality because they are told that women are inferior in this regard by their parents, clergymen, and teachers and because the sexist institutions within which they live shape their experience in such a way as to seem to confirm these beliefs. In brief, sexist institutions can promote a parochial conception of human rights, one that indefensibly limits certain human rights to men. From a social epistemology perspective, the obvious question to ask at this point is this: Under what social conditions is such a parochial conception of human rights likely to be prevalent and sustainable? A plausible answer is: other things being equal, under conditions in which the human rights of women are systematically violated.
Whether people have access to experience in which the capabilities of women can be appreciated will depend upon the character of the institutions that shape their experiences and the beliefs in light of which they interpret their experiences. If those institutions uphold equal educational rights and equal opportunity for economic advancement for women and the right to participate in governance, then false beliefs about the natural inferiority of women will be harder to sustain and promulgate because people's experiences of women will be more likely to exhibit the true capacities of women.Footnote 50 So implementation of certain human-rights norms—preeminently those that prohibit discrimination and protect the free exchange of information and opinions but also those that protect economic liberties and social rights for all—can help create social conditions that reduce the risk of parochialism in how human rights are conceived.
There is another, less obvious way in which the protection of human rights reduces the risk of parochialism in how we conceive of human rights: where human rights are protected, people are more likely to have the physical and economic security and the freedom to conduct sound social-scientific research relevant to the specification and justification of human-rights norms and to disseminate the results of their inquiries to others, including those who will play important roles in the institutions that articulate human rights. Once we understand that the justification of human rights is an ongoing process in which institutions play an important role, there is nothing paradoxical about the claim that the protection of human rights can help guard against parochial understandings of which rights are human rights. This is simply another illustration of my general theme: the character of institutions can either exacerbate or reduce the risk of having a parochial conception of human rights.
V. IS THE SOCIAL-EPISTEMOLOGY APPROACH VICIOUSLY CIRCULAR?
So far I argue for three conclusions:
(1) The more central the protection of human rights becomes in international law, the more the lack of a credible public justification for human-rights norms calls into question the legitimacy of the international legal system.
(2) One key element of a credible public justification is a plausible answer to the parochialism objection—the charge that human rights reflect an arbitrarily restricted set of values or an arbitrary ranking of values due to cultural biases.
(3) A plausible answer to the parochialism objection must show that the institutions that articulate legal human-rights norms have certain epistemic virtues.
I now want to state a potentially lethal objection to my third conclusion and then show how rebutting it helps to explain the complex relationship between philosophical argumentation and institutionally embedded practical reasoning in the justification of human-rights norms.
In order to determine whether the complex web of international, regional, and national institutions that articulate human-rights norms has the epistemic virtues needed for the publicly credible specification and justification of these norms, it is not enough to have an accurate description of what might be called the general epistemic virtues of these institutions—their arrangements for inclusiveness of diverse perspectives, for facilitating principled deliberation, for accessing reliable empirical information, for correcting false beliefs, and so on. Merely knowing that these institutions include processes that are generally conducive to specifying and justifying norms, though necessary, is not sufficient; they must have what it takes for the task of justifying and specifying human-rights norms. In other words, their epistemic adequacy depends in part upon the particular character of the norms they are supposed to articulate. Thus we need further assurance if we are to conclude that their “norm outputs” are likely to be credible candidates for being specifications of human-rights norms.
Yet to determine whether existing institutions are adequate for contributing to the task of justifying and specifying human-rights norms as such, it seems that we must already have at hand a conception of human rights. Furthermore, it must be possible to articulate this conception of human rights independent of a description of the “norm outputs” of the institutions if it is to provide a standard by which to evaluate the institutions' specific moral-epistemic virtues.
But if this so, then this seems viciously circular. How can an appeal to the epistemic virtues of the institutions that articulate human-rights norms help to establish the credibility of claims about human rights and hence the appropriateness of giving the promotion of human rights a prominent role in the international legal order if we must already be able to identify valid human-rights norms in order to assess the specific epistemic virtues of those institutions?Footnote 51
There is no problem of vicious circularity if the process of specifying and justifying human-rights norms is understood to be a matter of ongoing mutual adjustment between our provisional core conception of human rights, our standards for the epistemic performance of the institutions that articulate human-rights norms, and our judgments about the existence and content of particular human rights. The core conception of human rights we bring to this complex institutional process must be (1) rich enough to ground a provisional list of human rights and to guide the design of institutions for further specifying their content in ways that are suitable for legal implementation; and (2) of sufficient initial moral credibility to justify the creation of such institutions.
My surmise is that some version of the MOV satisfies these two conditions for a provisional core conception of human rights. The MOV's idea of generally effective protections against standard threats to basic human interests provides guidance for constructing a provisional list of human rights and for the initial design of institutions for articulating human rights. More precisely, the MOV makes it clear that these institutions must be designed so as to mitigate the risks of parochial specifications of the rights in question by utilizing reliable factual information about standard threats and adequate protections against them and by facilitating the inclusion of diverse cultural perspectives on what count as basic human interests in the deliberative processes by which norm specification occurs. The MOV also has considerable initial moral plausibility because it provides a coherent, attractive interpretation of the idea of equal moral regard, namely, the notion that the basic interests of all people deserve serious protections. It appears, then, that we already have a provisional, initially credible core conception of human rights that can get us started on an account of what sort of features institutions must have if they are to contribute to the credible specification and justification of human-rights norms.
If, after carefully examining the relevant institutions and implementing appropriate reforms to remedy their defects, we were to gain greater confidence in their epistemic virtues, we might revise our initial understanding of the content of a particular human-rights norm. More radically, the deliberative processes that occur in these institutions may lead us to modify our current list of human rights, either by addition or (in my opinion, more likely) by subtraction. So the fact that we need a provisional substantive conception of human rights in order to be able to make an initial assessment of the epistemic adequacy of the institutions that articulate human-rights norms is not inconsistent with the claim that such institutions can contribute to the credible specification and justification of those same norms.
If we were to gain sufficient confidence in the epistemic virtues of the institutions that articulate human-rights norms, we might eventually come to have reason to revise the core conception itself. Whether this is likely to happen will depend, inter alia, on how contentful we take the core conception to be. Suppose, for purposes of illustration, that the core concept's understanding of basic interests is limited to a few very abstractly characterized interests—for example, the interests in physical security, in having access to resources sufficient for subsistence, and in avoiding the most dire restrictions on personal liberty, such as slavery. Each of these interests is, on the one hand, so obviously generally important for a decent or dignified human life and, on the other hand, so highly abstract that it is unlikely we will come to doubt that they are an important part of what grounds claims about particular human-rights norms. Instead, it is much more likely that what will change is our understanding of what particular rights must be realized in order to protect these basic interests.
To take the MOV as our provisional starting point is not to assume that it can provide by itself a fully adequate justification and specification of human-rights norms. Instead, the idea is to use the core conception to make a provisional assessment of the plausibility of the lists of human rights that are contained in the major international human-rights treaties. Once this is accomplished, we can then begin to make provisional assessments of the epistemic adequacy of existing institutions in their role of specifying and supplementing these rights, without any vicious circularity—so long as we take seriously the possibility that the workings of these institutions may in turn require revisions in our initial conception of human-rights norms and even in the core conception itself.
Vicious circularity is avoided, then, if two conditions are satisfied:
(1) We have a provisional core conception of human rights that is both morally plausible and sufficiently contentful to guide the formulation of a list of rights and an initial evaluation of the epistemic adequacy of the relevant institutions.
(2) We have reasons to be confident in the epistemic virtues of these institutions, reasons that are independent of the congruence between their specification of human-rights norms and our initial core conception of human rights.
I argue above that some version of the MOV will satisfy condition 1. With respect to condition 2, what sort of epistemic virtues might we reasonably expect the institutions that articulate human-rights norms to have, given provisional acceptance of the MOV? At the very least, they should have provisions for accessing reliable factual information and correcting errors regarding the facts when they make them, given how crucial reliable factual information is to the justification and specification of human rights according to our core conception of human rights, the MOV. As I argue above, relevant factual information here includes information about what the standard threats to basic human interests (as these interests are provisionally characterized in the core conception) are and what combinations of rights and institutional arrangements to implement them are generally needed to counter those threats.
The crucial point is that whether the institutions have this epistemic virtue can be assessed independently without assuming that the particular conception of human-rights norms we are now operating with is the correct one. What matters is whether the institutions have what it takes to produce or access reliable factual information of the sort that is likely to be relevant for specifying and justifying claims about human rights from the perspective of something like our provisional core conception of human rights.
VI. CONCLUSION
Human rights play an increasingly central role in the international legal order. Without a publicly credible justification for human rights, the legitimacy of such a legal order is dubious. A necessary condition for such a justification is a convincing response to the parochialism objection—the charge that human rights reflect a set of moral values or a ranking of moral values that is culturally biased.
Both those who have advanced the parochialism objection and those who attempt to meet it proceed as if the answer to whether human rights are parochial can be determined in a purely discursive manner—by inspecting the textual meaning of putative human-rights norms and evaluating the quality of philosophical arguments that can be given in support of them.Footnote 52 They fail to consider the possibility that whether the modern conception of human rights is parochial depends in part on the epistemic virtues of the institutions within which human-rights norms are articulated, contested, specified, supplemented, and revised over time.Footnote 53
In contrast, my strategy has been to conceive of the modern conception of human rights as institutionally embodied rather than as a list of abstract norms to be supported or debunked by free-floating philosophical argumentation. I argue here that whether human rights as they actually function in the international legal order can escape the objection of parochialism depends in part upon whether the institutions within which they are articulated possess the epistemic virtues that are relevant to the task of justification, given what I take to be the most plausible core philosophical conception of human rights currently available. I show that these institutions already include a variety of measures for reducing the risk of parochialism. In effect, international human-rights institutions have recognized the relevance of social epistemology to the justification of human rights and, by implication, to the legitimacy of a human-rights-based international legal order, even if philosophical theorists of human rights have not.
I conclude that whether an international legal order that takes human rights seriously is legitimate does not depend upon whether attempts to formulate human-rights norms are at risk for being parochial (they clearly are) or whether such formulations have been tainted by parochialism (they almost certainly have been). The issue, rather, is whether the risks of parochialism can be reduced to tolerable levels by feasible institutional arrangements for helping to ensure that the beliefs upon which the justification and specification of human-rights norms depend are sufficiently reliable to make efforts to secure compliance with these norms legitimate. To answer that question requires a careful examination of the epistemic virtues and deficiencies of the complex web of international, regional, and national institutions that articulate international legal human-rights norms in the light of a plausible provisional philosophical conception of human rights.
The bad news, for those who view the increasing role of human rights in the international legal order as progress, is that absent such an inquiry, there can be no fully satisfying reply to the parochialism objection—and that, therefore, the legitimacy of the international legal order will remain deeply questionable. The good news is that until the epistemic virtues of the institutions that articulate human rights are more thoroughly evaluated, the objection that the modern conception of human rights is parochial cannot be conclusive.Footnote 54
