I am fortunate to have such a distinguished, analytically astute, and fair-minded group of thinkers as contributors to a symposium on my recent book, The Heart of Human Rights. It was once said of Hegel that he was like a man who had built a magnificent mansion and thereafter lived a life of servitude as the handyman tasked with maintaining and repairing the structure. It would be a bit grand to characterize my book as anything like a mansion, but, nonetheless, I want to make clear that I reject the role of trying to patch it up and protect it against assaults by critics. To do so would be to forget that the important thing is not to have been right, but to be right. Further, my main goal in writing the book was to try to get philosophers to address some fundamental issues concerning moral and legal human rights that they have so far neglected—in particular, the justification (or lack thereof) of the international legal human rights system and the relationship between moral and legal rights (which they have avoided by using the term “human rights” without distinguishing between legal and moral human rights, as if everything that is true of the one is true of the other). Thus, in the space allotted to me here, instead of trying to defend the book against all comers, I will pursue a more modest aim: I will briefly summarize a few of what I believe to be the most important contributions of the book. In doing so, I will also respond to some of the interesting points made by each of the contributors to the symposium, without pretending to have “answered” them in a comprehensive fashion.

The book is grounded in two theses: first, that international human rights law is the heart of the modern human rights enterprise in that it provides a kind of authoritative lingua franca for the practice of human rights in all its manifold forms; second, that philosophers who have written about human rights have generally failed to appreciate the first claim and have had very little to say about the international legal rights system. More specifically, they have tended not to take seriously the obvious point that the international legal human rights system needs to be justified.

I also offer a hypothesis to explain this neglect, apart from the fact that many philosophers prefer to exercise their analytic skills without having to learn anything about the law or, more generally, about institutions (or about the world for that matter). Some of the most prominent recent philosophers working on human rights have tacitly or explicitly subscribed to what I call the Mirroring View, and this has led them to concentrate almost exclusively on developing an account of moral human rights to the neglect of a consideration of legal human rights and their institutional embodiment. The Mirroring View holds that the standard adequate justification of an international legal right requires showing that there is a corresponding, antecedently existing moral right of the same scope or content.

This hypothesis helps to explain the failure of these philosophers to engage with the moral assessment of international human rights law in its doctrinal and institutional aspects. Suppose it were true that international legal human rights (when they are justified) are simply moral human rights in international legal garb, and that the correct way to justify including a legal right in the international legal rights system is to show that it gives international legal status to a corresponding moral right. On that supposition, one might conclude that most of the serious work involved in justifying international legal human rights is already done if one has succeeded in developing a plausible theory of moral human rights. Drawing that conclusion would be a mistake, however, even if the supposition is granted. For even if one had a plausible theory of moral human rights in hand, one would still need to show why the rights it contains should be mirrored in international law, and not just in domestic constitutions. But the supposition, I argue at length in the book, is false: justified international legal human rights need not (and often do not) mirror antecedently existing moral human rights. I will not attempt to recap those arguments here, for two reasons: first, several of the contributors to this symposium accurately outline my arguments against the Mirroring View and, second, the contributors who address those arguments agree with me in rejecting the Mirroring View.

I also advance a different hypothesis about the relationship between moral rights and international legal human rights: that adequate justifications of international legal human rights not only need not appeal to corresponding moral rights of the same scope or content but they need not appeal to any moral rights at all. Near the end of the book, however, I acknowledge that this latter, bolder claim may not be correct, and I entertain the possibility that adequate (or at least optimal) justifications of at least some and perhaps many international legal human rights may need to rely on the existence of some very small set of general moral rights—something like the more austerely conceived traditional natural rights. I stop short of endorsing this view mainly because I worry that I and most other contemporary philosophers tend to assume, without good reason, that it is impossible to have a moral view that takes individual human beings to be of great moral importance on their own account without characterizing them as having moral rights. To the contrary, I see nothing conceptually impossible or normatively defective in a moral view that recognizes the great value of the individual human being and asserts that there are weighty obligations regarding their treatment, but which lacks the concept of a moral right—so long as that moral view fully appreciates that legal individual rights are in most circumstances vitally important for protecting and affirming the value of the individual and for ensuring that obligations regarding her treatment are fulfilled.

More specifically, I simply do not think it is obvious, contrary to what Andrea Sangiovanni assumes in his contribution, that if the justification for a legal human right appeals, inter alia, to the interests of the individual right-holder, then it follows that the justification must be relying on the existence of a moral right possessed by that individual. One of my main points in the book is that it is difficult to justify attributing to an individual a moral claim-right to something, unless one can make the case that the interests of that individual are themselves sufficiently important to ground the correlative duties. The duties are said to be owed to the individual who has the right, and it is hard to see how one can explain this “directed duty” feature without making the assumption that the interests of the individual right-holder are themselves sufficiently important to ground the directed duties. If, however, the grounding of the duties appeals not just to the right-holder's interests but to other considerations, including the interests of many other people who have no special connection with the individual right-holder, it is difficult to explain why the duty is morally owed to her. I think—and here Sangiovanni and also Jesse Tomalty agree with me—that the same result follows if one adopts a “will theory,” according to which a duty is owed to a right-possessor because she has moral control over it.

I think it is therefore important to emphasize that I make two distinct claims about the relationship between moral human rights and international legal human rights. The first is that the simplest understanding of the relationship, the Mirroring View, is false. The second, much bolder claim is that international legal human rights can be adequately justified without appealing to any of the moral rights of those to whom they are attributed. As I mentioned above, however, I am not thoroughly wedded to the latter view. In fact, I consider the possibility that an adequate justification for international legal rights, or at least the most satisfying justification, might rely at the deepest level on the existence of a very small set of natural rights.

I believe that Sangiovanni's contribution to this symposium constitutes the most serious challenge yet to my view about the relationship between moral and legal human rights. Sangiovanni assumes, if I understand him correctly, that the legal right to health should include the right not to be subjected to chemicals that cause serious bodily harm, and that when the latter right is violated, it is obvious that the moral right to health—or an element of this right—has also been violated. I am not convinced, however, that the most plausible legal right to health will include a right against every sort of harm that damages health, and I am even less convinced that the moral right to health includes the right against every harm that damages health. The example he uses—the case of workers subjected to toxic chemicals—seems to involve violation of a “negative” moral right, that is, one for which the corresponding duty is only to refrain from certain actions, in this case inflicting bodily harm through exposure to chemicals over which one has control. I do not believe, however, that the right against being subjected to physical harm is an element of the right to health. Many actions that inflict bodily harm are damaging to health (such as murder and mutilation), but that is not to say that they are all violations of a right to health. I think it is worth considering the possibility that the legal right to health, properly conceived as a legal right for which the state is the duty-bearer, is a right to certain public goods that contribute to health and to certain health-care services, and is not a right to be free from every physical harm. (This is compatible, of course, with saying that the state, like everyone else, has duties to refrain from causing physical harms to people and thereby damaging their health.) If that is correct, then my conclusion still holds: it is implausible to say that the interests of any one individual are in themselves of such moral weight as to justify the duties to provide those public goods and services that are reasonably encompassed by a legal right to health (at the domestic or international level). This is especially true given that providing these services requires a great expenditure of social resources and restrictions on the liberty of many people (for example, as in the case of providing public goods such as herd immunity through compulsory vaccinations). Further, by appealing to various morally important interests of many people, one can justify such a legal right to health without requiring the existence of a moral right to health. One might argue, of course, that an international legal right to health ought to encompass not only the provision of certain public goods and healthcare services but also a duty on the part of the state to ensure that employers provide safe work environments. But that would not imply that when workers are injured as a result of an unsafe work environment their employers have violated a moral right to health. Rather, they have violated a “negative” moral right not to inflict harm.

In spite of my misgivings, I hope Sangiovanni and Tomalty will flesh out their arguments and attempt to show that sound justifications for all or most international legal human rights must include premises not just about the existence of some small set of basic moral rights (a possibility I have cheerfully acknowledged) but about the existence, in each case, of corresponding moral rights that are importantly similar to the legal rights even if they do not strictly “mirror” them. I will be happy to be proven wrong if this advances the philosophical discussion of the justification of international legal human rights.

I now want to emphasize as forcefully as possible that most of my thinking in the book is independent of whether the bolder thesis—the claim that sound justifications can be given for international legal rights without any premises referring to moral rights—is true. (In fact, most of what I have to say is independent of my critique of the Mirroring View as well.) So even if Tomalty's probing thoughts on the matter are correct, there are no negative consequences for the rest of the book and its fundamental task: the moral assessment of the system of international legal human rights. The book's main goal is to call attention to the need for a critical assessment of the system of international human rights law, including its institutionalization, and to begin the neglected task of developing a justification for having a system of international human rights law like the one that currently exists. This task is complex and daunting and involves much more than conceptual analysis and a priori normative reasoning about moral rights. It is not enough to show that there is a moral justification for having certain legal rights in some sort of legal system or other; one must show that there should be a body of international law distinct from domestic constitutional law that includes these rights. Doing this will require an account of the legitimacy of international human rights institutions, including those that create human rights conventions and those that monitor compliance with them. The issue of legitimacy is both crucial and difficult for the modern human rights enterprise, not only because there is much disagreement among philosophical theories of legitimacy but also because these theories have tended to focus on the legitimacy of the state. The problem is that the standards of legitimacy for international institutions may be, as I argue in the book, significantly different from those for the state.

In beginning to develop a justification for something like the existing international legal human rights system, I argue that, on its best reconstruction, such a system can be seen as an attempt to use international law (mainly through the ascription of legal rights to individuals) to perform two functions or serve two moral goals. The first of these is to ensure that all individuals have effective access to the resources needed to lead a “decent” or adequate life (the basic wellbeing function). The second is to publicly affirm and protect the equal basic status of each individual vis-à-vis other members of her society. I argue that the common assumption among philosophers that human rights only serve the basic wellbeing function, at least if it is applied to international legal human rights, is incorrect. It is descriptively incorrect in that there are several robust status egalitarian features of the international legal human rights system that cannot plausibly be seen as only performing the wellbeing function; and it is normatively inadequate, because no sufficient reason has been given for excluding a status egalitarian function, given how morally important the public affirmation and protection of equal basic status is.

David Miller takes exception to both of these claims. He argues that most, if not all, of the features of the system that I say can best be explained as promoting status equality can actually be seen as promoting wellbeing only; and further, that those features that cannot be explained this way ought not to be there at all because they represent an inappropriate universal imposition of Western ideas about equality. I find Miller's first claim implausible: if the features of the international legal human rights system that I say promote equal status were designed only to serve the welfare function, then they would be seriously and obviously ill-designed. They would constitute, in effect, a costly kind of overkill, since it is easy to imagine systems that do not include them but that do an adequate job of fulfilling the basic wellbeing function. I am more concerned, however, about Miller's rather quick rejection of the idea that a system of legal human rights ought to protect and affirm equal status, over and above promoting access to the conditions for a decent life.

As I have already suggested, I think such a limited view of the international legal human rights enterprise is morally implausible, given the moral importance of the public affirmation and protection of equal basic status. I am also unimpressed by the familiar charge of Western moral imperialism. It may be that, as a practical matter, it is not currently feasible to implement the more demanding international legal rights against discrimination on grounds of gender, race, or religion in some states, but that is not a good reason to conclude that these rights should not be included in the system. After all, many of the rights in the founding documents of the modern human rights era probably could not have been feasibly implemented at the time in many states. Further, I reject the tacit assumption that certain moral cultures are incapable of moral progress regarding the recognition of basic equal status, and, as I have argued elsewhere, I believe that effective legal prohibitions on gender and racial discrimination help to dissipate the false beliefs about natural differences among groups of humans that shore up discriminatory practices. For example, when discrimination against women is pervasive, women are unable to develop or freely exercise their natural capacities and thus their social role in such an environment seems to confirm beliefs about the natural inferiority of women vis-à-vis men—the very beliefs that are invoked to justify the discriminatory practices. But when the legal prohibition of gender discrimination occurs, women are able to develop and exercise their natural capacities and it becomes harder to sustain ideologies of inferiority. Arguing for the passive acceptance of discriminatory social practices is a misguided understanding of tolerance.

Nonetheless, Miller raises an important set of issues by suggesting that the realization of a robust conception of equal status may not be an appropriate goal for a system of international legal human rights because it may be incompatible with proper respect or tolerance for the plurality of reasonable moral views. But I think that his line of argument overlooks an important point: unless robust status egalitarian rights have been effectively implemented in a society, it is implausible to say that “the society” or “the culture” has rejected such rights or that rejecting them is a genuine expression of collective self-determination. Unless and until such rights are implemented, the moral consensus against them may be the result of repression or at the very least a product of defective social epistemic conditions that make genuine collective self-determination impossible. My suggestion is that in general it is only in societies where a number of international legal human rights—including rights of equal political participation, freedom of expression and association, and rights against gender discrimination—are already substantially satisfied that we can be confident that popular opposition to status egalitarian human rights constitutes an exercise of collective self-determination.