I. The Language of Human Rights

Many philosophers have observed, correctly, that human rights have now become the common language in which an increasing number of important legal and political issues are debated. ^{Footnote 1} Thus, it is all the more curious that so often this common language is used by them to talk past each other. For example, in discussing human rights some philosophers refer to a particular class of moral rights: those moral rights that all human beings possess “simply by virtue of their humanity.” Others refer instead to a group of norms and principles that form the current international human rights practice, whose primary function is twofold: providing standards for assessing how governments behave, and establishing when responses such as military intervention, economic and diplomatic sanctions, or formal censure are warranted. ^{Footnote 2}

This explains, at least to some extent, the different approaches adopted by the so-called “naturalistic” (or “orthodox”) and “political” (or “practical”) approaches to the justification of human rights, with the former primarily interested in the question of which important moral rights can be attributed to human beings simply in virtue of their human nature — call these “moral human rights” ^{Footnote 3} — and the latter primarily focusing on the question of how best to make sense of, and bring coherence within, the practice of international human rights. ^{Footnote 4} What defenders of the political view object to is not the thought that individuals can be said to have certain moral rights simply as a consequence of their status as human beings. (Indeed, this is an idea that prominent defenders of the political view such as John Rawls and Joseph Raz explicitly accept.) What they object to is the idea that this thought can be usefully employed to make sense of the practice of international human rights as we know it, and thus to justify human rights.

On the other hand, philosophers who investigate the justification of the moral rights we possess simply in virtue of our human nature do not believe that answering this question automatically gives us an answer to the question of how we should structure the practice of international human rights. For example, John Tasioulas defends the view that simply in virtue of our status of human beings, we have a moral right not to be pinched or to be betrayed by friends, but he denies that these rights should play a role within the current practice of international human rights. ^{Footnote 5} This is because the question of how this practice should be structured is a separate one and should be informed by a host of different considerations concerning the nature and the functions of political institutions, international organizations, as well as other nonpolitical actors operating at the international level. ^{Footnote 6}

However, the disagreement between naturalistic and political justifications of human rights cannot be reduced to a case of philosophers talking past each other. The disagreement is substantive and concerns the need to appeal to fundamental moral human rights in justifying the international practice of human rights. ^{Footnote 7} Political justifications argue that we should bypass the question of the justification of moral human rights and start instead with the question of which norms and principles should be adopted to regulate the practice. This is because, as Beitz puts it, “[t]here is no assumption of a prior or independent layer of fundamental rights whose nature and content can be discovered independently of a consideration of the place of human rights in the international realm and its normative discourse and then used to interpret and criticize international doctrine.” ^{Footnote 8} Naturalistic justifications deny this and claim that a convincing answer to the second question presupposes some answer to the first. An adequate justification of the system of human rights included in the international practice must ultimately rely on some appeal to fundamental moral human rights, whose binding force depends neither on their being incorporated into the law nor on their being suitable objects of international concern.

This is not to say that there is a one to one relationship between moral human rights and the international rights invoked in the human rights practice, so that our list of international human rights must perfectly mirror our list of moral human rights. Naturalistic justifications acknowledge that this is not always the case. For example, they acknowledge that we might justify the existence of an international human right to X, even if we do not have a moral human right to X, provided that implementing an international human right to X is necessary to implement (or at least greatly contributes to the implementation of) an international human right to Y, where it is the international human right Y that is grounded in a human moral right. ^{Footnote 9} The claim of naturalistic justifications is rather that if the international human rights practice is to be justified, there must be a group of fundamental moral rights that the practice ultimately aims to protect, no matter how indirect the relationship between the two is. Call this view the “Priority of the Moral over the Political” (the “Priority of the Moral,” for short). ^{Footnote 10} To the extent that there is a genuine disagreement between naturalistic and political approaches to the justification of human rights, the disagreement is primarily about whether we should accept this view.

In this essay, I argue that the Priority of the Moral is harder to dismiss than supporters of political theories of human rights suggest, and that they need to say more in defense of their claim that we can dispense with it. This is because if it is true that human rights play the special role that political theories attribute to them (be that of justifying political legitimacy, limiting state sovereignty, or triggering particular responses when violated), there must be something that explains why they can play this role. Naturalistic theories explain this by appealing to the thought that since human rights are grounded in particularly important features of human beings, their protection is urgent and their violation particularly serious. This is why violations of human rights justify interfering with state sovereignty, and other forms of international response. Since political theories intend to reject this strategy, they need to say something about what is instead doing the work within the picture they offer. There must be something special about human rights that explains why their violation triggers reactions that are not warranted when ordinary moral rights are violated or when other wrongs are perpetrated. If it is not the fact that we have a claim to strong normative protections in relation to particularly important features of human nature, what is it?

The essay has six sections and a conclusion: in Section II, I outline the Priority of the Moral; in Sections III and IV, I raise a number of objections against political theories of human rights, and I argue that it is incumbent upon defenders of these theories to show that they do not surreptitiously appeal to something like the Priority of the Moral; in Section V, I consider the two main objections that seem to have motivated the move from naturalistic to political justifications of human rights; in Section VI, I suggest that a variant of naturalistic justification, one that appeals to the notion of basic needs, has the resources to address these two objections.

II. The Priority of the Moral

Theories that accept the Priority of the Moral typically proceed in two steps: first, these theories justify moral human rights by explaining why such rights are particularly important and how they are different from other moral rights; second, these theories justify international human rights by explaining how they help us protect and implement moral human rights. Their arguments normally take the following form:

1. i. Because of their inherent dignity, human beings are entitled to have a minimally decent life;

2. ii. All human beings, qua human beings, have certain distinguishing features;

3. iii. Given the features specified in ii, human beings can have a minimally decent life only if certain conditions are secured;

4. iv. Given i, ii and iii, human beings have moral rights to what is necessary to secure the conditions specified in iii;

5. v. The best way (or a sufficiently good way) to secure the moral rights specified in iv is by incorporating them in the international human rights practice. ^{Footnote 11}

For example, James Griffin argues that the distinguishing feature of being human is the capacity to act as autonomous moral agents (ii), and that in order to act as autonomous moral agents, we need to be able to freely discuss “whatever goes on in society or government that bears on our thinking and deciding autonomously” (iii). ^{Footnote 12} This explains why, according to Griffin, there is a moral human right to freedom of expression (iv). And since we have a moral human right to freedom of expression, there is a pro tanto reason to include this right in human rights documents and, more generally, to incorporate it in the current human rights practice, insofar as doing so contributes to its protection and its promotion (v). Vice versa, according to Griffin, in order to act as autonomous moral agents we do not need to be able to choose where to live (as long as the place where we are made to live is sufficiently comfortable), and this explain why there is no human right to freedom of residence. ^{Footnote 13}

Thus, according to this line of thought, international human rights are justified because they are necessary for (or at least significantly contribute to) securing the fulfillment of moral human rights; and moral human rights are justified insofar as they have a distinctive role that explains their special value: the role of protecting human dignity.

Two main objections can be raised against the Priority of the Moral. One consists in rejecting the view formulated as stating a necessary condition for the justification of international human rights. Allen Buchanan, for example, argues that while something like the Priority of the Moral is “by far the clearest strand of justification” for human rights, ^{Footnote 14} there are a number of further different ways of justifying the existence of a given international legal human right without necessarily relying on moral human rights. For instance, we can appeal to the fact that having such a right prevents great social disutility, or that it contributes to economic prosperity, or that it promotes social solidarity. To take an example, these are all grounds on which, according to Buchanan, we can justify a legal right to health care, without necessarily invoking the existence of a moral right to health care. ^{Footnote 15}

In response, we might wonder what the point of calling the right to health care a human right is. Many international legal rights are justified in the way Buchanan suggests, after all, and yet we would not consider them human rights. For instance, because of a directive of the European Parliament, I have a legal right to return a product I have bought online within seven working days and get a full refund. ^{Footnote 16} Presumably the justification for this legal right is that it contributes to economic prosperity (by facilitating online commerce) and prevents social disutility (by reducing the number of potential conflicts between online buyers and sellers), but we would not want to consider this a human right. This suggests that while it is certainly the case that human rights generally do prevent great social disutility, contribute to economic prosperity, and promote social solidarity, this is not enough to justify their existence.

One way in which we might be tempted to defend Buchanan’s claim is to argue that while the interests protected by the right to health care are particularly important, those protected by the right to return a product bought online within seven working days are not. Thus, the difference between the two is that the former right contributes much more than the latter to reducing social disutility, increasing economic prosperity, and so on. But the risk here is that we end up with the view that human rights are simply particularly important international legal rights. This conclusion is problematic because when we employ the language of human rights we normally think that we are pointing at moral considerations that have a distinctive character. We are not simply signalling that the rights in question are important. ^{Footnote 17} Indeed, if human rights were simply reducible to important legal rights, we could dispense with the notion altogether, as it would be doing no normative work. ^{Footnote 18}

The second line of objection to the Priority of the Moral is more radical, in that it denies that human moral rights play any significant role in justifying international human rights. This is the strategy pursued by political theories. While the latter do not necessarily deny that there are moral rights that individuals have simply by virtue of their humanity, nor do they necessarily deny that international human rights are a subset of this class of moral rights, they do deny that these rights are what we should focus on in justifying international human rights. In justifying international human rights we should not look at special features that human beings possess and that international human rights are supposed to protect. Rather, we should look at the international human rights practice, and in particular at the role of those norms and principles that set limits to state sovereignty and establish when certain types of response to state misconduct (by way of formal censure, diplomatic pressure, economic sanctions and, if necessary, armed intervention) are warranted. In the next two sections I will focus on this view.

III. Can We Reject the Priority of the Moral ?

Let’s start by granting to defenders of the political view that the distinguishing feature of human rights is that when these rights are violated the responses described by the political view are warranted, whereas when other forms of injustice take place, including violations of ordinary moral rights, the same responses are not warranted. The question I intend to raise is this: On which grounds should the appropriateness of these different reactions be established?

Suppose, for example, that we agree with Rawls that the relevant response is triggered when the right to life or the right to liberty is violated but not when the right to political participation is. What we need to know is why the former two rights trigger a different response when they are violated than the one triggered by violations of the latter. Why are violations of the right to political participation to be tolerated in a way in which violations of the right to liberty or the right to life are not? A theory that aims to justify human rights by appealing to the special role that these rights play in triggering the responses at hand, will have to tell us what is so special about human rights that enables them to play this role, which is missing from other rights. But since political approaches want to dispense with the idea that this can be explained by pointing at the fact that there are special features of human nature that human rights protect, what can they appeal to?

An answer we might be tempted to give along Rawlsian lines is this: as long as states respect rights such as the right to life or the right to liberty, they are to be tolerated, even if they fail to respect rights such as the right to political participation, because they are “member[s] in good standing of the Society of Peoples.” ^{Footnote 19} But why should we think that in order to be accepted as members in good standing of the Society of Peoples, a state must respect the former two rights, but need not respect the latter? Again, what is so special about rights like the right to life or the right to liberty that explains why they play a role that cannot be played by the right to political participation?

Rawls’ answer is that while liberal societies could tolerate nonliberal “decent” societies that violate rights such as the right to political participation, neither liberal societies nor decent societies would accept to tolerate states that violate rights like the right to liberty or the right to life. In the original position employed at the international level to derive the principles of the Law of Peoples, parties would choose to include a principle that allows tolerating the former but not the latter. Why? Because tolerating violations of the right to liberty or the right to life would pose a threat to international stability, given that states that violate, or fail to protect, these rights are “aggressive and dangerous [and] all peoples are safer and more secure if such states change, or are forced to change, their ways. Otherwise they deeply affect the international climate of power and violence.” ^{Footnote 20}

However, this argument has little plausibility. As proponents of the political view themselves have noticed, it is by no means obvious that oppressive regimes that violate the right to life and the right to liberty of their subjects, will necessarily behave in an aggressive or dangerous ways toward other states and threaten international stability. ^{Footnote 21} Indeed, typically these states will have particularly strong self-interested reasons to maintain peaceful relationships with other states, if they want to preserve their capacity to perpetrate their unjust regime without interference.

Thus, we still need an answer to our question: assuming that the point of international human rights is to specify when certain responses to state action are warranted, we still need to know why violations of human rights justify such responses, whereas violations of other rights (ordinary moral rights) and other forms of injustice do not. Saying that human rights “express a special class of urgent rights” ^{Footnote 22} or that they protect “urgent individual interests” ^{Footnote 23} is not sufficient, unless we know what makes those rights and those interests particularly urgent. And saying that in the original position representatives of peoples would choose not to tolerate violation of these rights, does not help either because what we need to know is, once again, what is so special about these rights that explains why their violation would not be tolerated, whereas violation of ordinary moral rights would be.

In reply, two strategies are open to defenders of the political view. First, they could refuse to engage with the question and simply point at the practice. They could say: “it just so happens that the current practice of human rights treats violations of a particular class of rights as triggering the relevant response.” According to this reply, there is no need to engage with the more fundamental question of why this set of rights is treated differently. Indeed, there might be no principled reason that explains this fact. It just so happens that this is what the practice is shaped like, and if we want to make sense of the practice as it is, we’ll have to tailor our justification to its features, whatever they are. ^{Footnote 24}

Alternatively, they could reply that there are principled reasons why a particular group of moral rights warrant the relevant response, whereas other moral rights do not, but these reasons have nothing to do with the existence of special features of human beings that the former protect, contrary to what the Priority of the Moral suggests. Rather, they have to do with what our best principles of international justice require of us, given the particular geopolitical situation of the world in which we operate. According to this version of the political view, we first use our best political theory (or, perhaps, our best theory of international relations) to establish, say, when interference with state sovereignty is justified, ^{Footnote 25} and then we simply label “human rights” whichever rights we identify as warranting interference and “ordinary moral rights” those that do not. ^{Footnote 26}

Both replies seem problematic. The worry with the first one is that it ties the justification of human rights too closely to the current state of the international practice, thereby severely limiting the critical role that a theory of human rights can play in revising and improving the practice itself. To be sure, a theory of human rights so construed could play some critical role, but this would be limited to challenging the internal coherence of the practice. For example, it could challenge the capacity of its norms to advance the aims of the practice, or question the way in which certain aims of the practice seem to be at odds with others. ^{Footnote 27} What the theory could not do is challenge the way in which the practice is structured on the grounds of its being unjust, or not sufficiently just. This is because there simply are no external standards by which the justice of the practice can be assessed. ^{Footnote 28}

But isn’t providing this sort of criticism an important role, perhaps the most important role, that a theory of human rights should be expected to play? An adequate theory of human rights should help us in revising international law and the global practice of human rights, not only in order to make them more coherent, but also to make them more just when they are unjust (or insufficiently just). However, no theory can play this role if in establishing what human rights are and which role they should play, the practice has the first and the last word. ^{Footnote 29}

The second strategy does not have the same problem, in that it can appeal to external normative standards to assess the justice of the international human rights practice. These standards are provided by our best political theory and our best theory of international relations, which are used to establish when, say, interference with state sovereignty is permitted and under what conditions. But while it is an improvement over the first strategy, this formulation of the political view also has problems, which I will consider in the next section. (Henceforth, I will reserve the expression “political view” to refer to this particular formulation of the view.)

IV. The Political View

Consider a hypothetical country run a by a tyrannical regime, where fundamental rights such as the right not to be tortured or the right to freely associate are regularly violated. Suppose that this country (call it “Tirannia”) is also a dangerous nuclear power and that any interference with its sovereignty, including formal censure and diplomatic sanctions, would be unjustified on the grounds that the risk of a devastating retaliation would be too high. Should we conclude that the citizens of Tirannia lack the right not to be tortured or the right to freely associate? I take it that we should not. If an important function of a theory of human rights is that of providing grounds on which we can criticize severely unjust practices and institutions, a theory that fails to justify the existence of such rights in cases like the one described in my example falls short of what an adequate theory should do. Such a theory should be rejected as inadequate.

Here defenders of the political view will object that this example misconstrues their position. As both Raz and Beitz make clear, their claim is that human rights violations constitute pro tanto reasons for intervention, ^{Footnote 30} whereas the Tirannia example is premised on the claim that human rights violations constitute all things considered reasons for intervention. And once formulated as a view about the existence of pro tanto reasons for intervention, the political view seems to offer a plausible answer to the Tirannia case: pro tanto reasons for intervention can be occasionally defeated by competing reasons, and this is why we might have all things considered reasons not to interfere with Tirannia, without being thereby forced to conclude that there is no human right to freely associate that is being violated there. Tirannia’s citizens have a human right to freely associate because there are pro tanto reasons to interfere with Tirannia’s violations of the interests protected by this right, even if these reasons in this case are overridden. This however, brings us back to the question raised in the previous section: on what basis can we establish that there are pro tanto reasons for intervention when the right to freely associate is violated, but not when ordinary moral rights are?

The thought underlying the political view formulated as a view about the existence of pro tanto reasons for intervention seems to be something like this: we should consider the weight of the right to freely associate (or perhaps, the weight of the interests protected by the right) and balance it with the weight of national sovereignty. Once we do that, we will see that while the former is greater than the latter, the weight of ordinary moral rights is not. This is why protecting ordinary moral rights does not warrant trumping state sovereignty, while protecting human rights does. The cost of interfering with state sovereignty is such that interference is not justified by the need to protect ordinary moral rights, whereas it is justified by the need to protect human rights. My objection however, is that this view can be defended only if we have a principled way of establishing why the weight of human rights is greater than the weight of ordinary moral rights.

If the political view is formulated as a view about the all things considered reasons to interfere with state sovereignty, it bypasses this problem by dispensing altogether with the idea that there is a way of distinguishing between human rights and moral rights before we know which ones trigger international response and which do not. Within this formulation of the view, we first identify the circumstances in which international interference with state sovereignty is justified, and then we simply label “human rights” whichever rights we have identified as warranting interference and “ordinary moral rights” those that do not. But this is not possible if we need to establish the pro tanto force of human rights and ordinary moral rights before we can establish whether interference is justified. If we need to do that, we are back to the problem of establishing why the class of rights we label as “human rights” are weightier than the class of ordinary moral rights. Once again, the obvious way in which we might be tempted to answer this question is by appealing to the fact that these rights protect especially important features of human beings, but this view is not open to those who intend to reject the Priority of the Moral.

Thus, the political view faces a choice. If we understand it as a view about the pro tanto force of the reasons for intervention generated by human rights violations, we need to explain in virtue of what human rights are capable of generating these reasons (whereas ordinary moral rights are not). Alternatively, we can understand it as a view about the all things considered force of the reasons for intervention generated by human rights violations, in which case we avoid this question but are forced to accept the implausible conclusion that the citizens of Tirannia lack human rights not to be tortured and to freely associate.

Indeed, there is a deeper problem here. I have thus far granted that the idea of a trade-off between the value of protecting the right to freely associate and the value of respecting national sovereignty is unproblematic, but things are not as straightforward. This is because the trade-off in question does not take place in a vacuum, but in a specific context, and the features of the context will affect the result of the trade-off. Beitz acknowledges this point when he writes that in establishing whether the protection of a given interest qualifies as a human right, we need to take into account not only the urgency of the interest to be protected, but also “various other considerations such as the likelihood that the threat protected against will actually occur, the feasibility of implementing the protection in typical circumstances, and the likely cost of making the protection effective.” ^{Footnote 31} But how likely it is that the threat will occur, and how feasible and costly it is to protect against it are contingent features. They are contingent on what we take the “typical circumstances” to be.

In a world where Tirannia is an exception, or one of very few exceptions, the typical circumstances are such that the interests in freely associating or in not being tortured are not normally threatened. In such a world, the cost and the feasibility of protecting the right to freely associate or the right not to be tortured are likely to be such that interference with states that violate these rights will be justified, and thus there are pro tanto reasons to interfere with Tirannia’s sovereignty. This is a world in which, according to Beitz, individuals can be said to have a human right to freely associate or not to be tortured. But that would not be the case in a world in which most states are like Tirannia and only a small number of states respect the right of their citizens to freely associate or the right not to be tortured. For in this other world, the interests in freely associating or in not being tortured are regularly threatened, and the typical circumstances are such that interference with state sovereignty will be costly and unlikely to succeed (unless perhaps the few states respecting the rights in question also happen to be much stronger than the other states). This would be a world in which, given cost and feasibility constraints, there would be no pro tanto reasons for intervention when Tirannia violates its citizens’ rights to freely associate or their right to not be tortured. ^{Footnote 32}

Suppose now that as a consequence of unpredictable events in international politics, more and more states start behaving like Tirannia, so that we end up living in a world largely composed of Tirannia-like states. Should we conclude that now citizens of Tirannia lack the right to freely associate or the right not to be tortured? My view is that we should not. Once again, if an important function of a theory of human rights is that of providing grounds on which we can criticize severely unjust practices and institutions, a theory that fails to justify the existence of such rights in cases like the one described, falls short of what an adequate theory should do. Indeed, we might think that it is all the more important to acknowledge that these rights exist in a world where they are being regularly violated on a massive scale.

But here defenders of the political view could reply along the following lines: “it is a sad fact that given that the geopolitical situation has changed and the “typical circumstances” are now such that no intervention can be justified to prevent, punish, or even simply censure the rights violations committed in Tirannia. But since this is the case, what would be the point of saying that those rights are human rights?” ^{Footnote 33} To be sure, the citizens of Tirannia have moral rights not to be tortured and to freely associate, but why should we want to say that these are human rights? The reason cannot be that doing so would justify any sort of intervention against their violation, since the permissibility of such intervention is ruled out ex hypothesi in the case at hand. Why should we care then, about the fact that those rights are classified as human rights?

The first thing to notice here is that saying that the typical circumstances in the world described are such that interfering to protect the interest to freely associate or not to be tortured will be too costly or unlikely to succeed, is not of course saying that there are no contexts in which interference would be cost-effective and likely to succeed. Suppose that the United Kingdom also violated the right of its citizens not to be tortured or to freely associate, and that the United Kingdom was one of the very few states where interference would indeed be cost-effective and likely to succeed (because the United Kingdom, unlike Tirannia, would not retaliate in an uncontrolled way). It now looks as if we cannot say that violations committed in the United Kingdom are human rights violations, even if they could be successfully addressed by some kind of international response such as economic or diplomatic sanctions. We cannot say that because in establishing whether the protection of the interest not to be tortured and to freely associate qualify as human rights, we need to take into account the feasibility and the costs of implementing the protection of these interests in typical circumstances.

This result seems undesirable. If the value of invoking the language of human rights is that of triggering international intervention, “disabling the defence ‘none of your business’,” ^{Footnote 34} we should regret that our theory does not allow human rights to play this role in those circumstances in which they could successfully do so.

How much of a problem is this for the political view? Perhaps not much. After all, defenders of the political view typically accept that violations of human rights are a defeasibly sufficient ground for intervention. ^{Footnote 35} They normally do not claim that they also are necessary conditions for intervention. ^{Footnote 36} If so, we could say that as long as our theory allows for interference with British sovereignty in order to prevent violations of the right to freely associate or the right not to be tortured committed there, we should not care much about the fact that such intervention is not justified in the language of human rights. But then we might wonder whether we really need the language of human rights at all. Why not simply say that all we need is a good theory of international relations that will tell us when interference with state sovereignty is justified? If nothing of moral significance is lost in dispensing with the language of human rights in the example just discussed, why not also dispense with the language of human rights altogether, even in a world in which the typical circumstances are such that interference will not be too costly and unlikely to succeed?

Alternatively, defenders of the political view might wish to argue that there is some distinctive work that the notion of human right is supposed to do, in addition to telling us when certain international responses are justified. In that case, it is not clear what that work is. Most importantly, we should worry that whatever that work is, it is not being done in the scenario where the right to freely associate is violated in the United Kingdom and the world largely consists of Tirannia-like states.

A second reply can be offered to the challenge that if the typical circumstances are such that interference with state sovereignty will be too costly and unlikely to succeed, there is no point in calling the rights violated in Tirannia “human rights.” This consists in rejecting the claim that the value of human rights is exhausted by their capacity to trigger the sort of responses described by the political view. More generally, we should reject, I think, the claim that the value of human rights can be reduced to the instrumental role they play in protecting important interests of their holders. To be sure, this is an important component of their justification, but not the only one. In addition to that, human rights are justified because of their noninstrumental value: they express the value of rights-holders as beings of a certain sort. As Thomas Nagel puts it, they “express a particular conception of the kind of place that should be occupied by individuals in a moral system – how their lives, actions, and interests should be recognized by the system of justification and authorization that constitute morality. . . . They embody a form of recognition of the value of each individual.” ^{Footnote 37}

Elsewhere, I develop this suggestion by appealing to Jean Hampton’s idea that certain actions “morally injure” their victims by treating them in a way which is precluded by their value. ^{Footnote 38} These actions represent the value of their victims as less than the value that they possess, because the actions in question deny the entitlements that are generated by that value and that express its presence. This is what violations of human rights do. Not only do they harm their victims by setting back important interests of theirs, but such violations also deny that the victims possess the status of human being, to the extent that they treat the victims as if they did not have the basic protections that go with possessing that status. ^{Footnote 39}

If this is correct, there is a point in wanting the rights violated in Tirannia to be recognized as human rights even if, given the contingent circumstances of the geopolitical situation in which they are perpetrated, their violation cannot justifiably trigger the sort of response invoked by the political view. To acknowledge that the citizens of Tirannia have human rights and that those rights are being violated, is to mark the fact that they do have the moral status of human beings, and that this status is being disrespected. Failing to attribute human rights to them is failing to acknowledge this important fact, thereby failing to recognize their value. This wrong is additional to the one produced by the fact that certain urgent interests of theirs have been set back.

V. Two Problems with the Naturalistic Approach

I have argued that in order to assess the plausibility of the political approach to the justification of human rights, we need to know how this approach can justify the claim that human rights can perform the special function that is attributed to them, without relying on the idea that these are moral rights that protect (and give expression to) particularly important features of human beings. It is incumbent upon defenders of the political approach to offer an argument of this sort in order to show that they do not surreptitiously appeal to something like the Priority of the Moral.

My own view is that the naturalistic approach is more promising. Not only does it offer a straightforward answer to the question of why human rights can play the special function that is attributed to them, but it seems better placed to account for the link between human rights and human dignity, which plays a crucial role in many of the most important human rights documents. To name but a few, the Preamble of the Universal Declaration of Human Rights famously refers to the “inherent dignity and . . . equal and inalienable rights of all members of the human family,” stating that “[a]ll human beings are born free and equal in dignity and rights,” whereas both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) explicitly make the point that that human rights “derive from the inherent dignity of the human person.”

Of course, I am not suggesting that these observations are enough to conclude that the practice of human rights is consistently organized around the idea of natural rights that human beings possess simply by virtue of their humanity, and that protect their dignity. Preambles to human rights documents are often seen, no doubt with good reason, as rhetorical exercises, whose wording and content is largely conditioned by political pressure and the need for compromise. ^{Footnote 40} But it would be hard to deny that the idea of human dignity does play a significant role within the practice of human rights, and thus it is hard to see how this idea can be easily dismissed by the political view, given that the main motivation of the latter is to be faithful to the practice.

Similarly, it is puzzling that a view which aims to be faithful to the international practice of human rights would tie the existence of these rights to the presence of reasons for intervention, be those reasons pro tanto or all things considered. When human rights activists campaign against violations of the right to free-speech in North Korea, they take their actions to be justified by the fact that there is a human right to free-speech; they do not believe that the human right exists because their actions are justified. ^{Footnote 41}

These observations seem to support, at least to some extent, the picture of the justification of human rights articulated by naturalistic theories that adopt the Priority of the Moral. We might wonder then why so many philosophers tend to reject the naturalistic approach. A number of objections have been raised against it, but two in particular seem to have motivated the move toward the political view. One is the thought that grounding human rights in human dignity, and in the natural rights that are supposed to protect human dignity, inevitably ties the justification of these rights to a set of controversial metaphysical and moral assumptions about human nature. This is considered problematic because human rights should not be the expression of a particular conception of the good. If they were, it would be harder to resist the objection that the human rights discourse is ultimately a way of imposing Western liberal values on cultures that subscribe to alternative, equally reasonable, conceptions of the good.

For example, if like James Griffin, we ground the justification of human rights in the value of moral autonomy, our account will be unacceptable to nonliberal cultures that do not attribute to this value the importance that is accorded to it within liberal societies. Rawls for one, seems to be moved by this sort of considerations in developing his version of the political view. ^{Footnote 42}

The second main objection that has prompted some philosophers to adopt the political view concerns the potentially overinclusive character of naturalistic accounts with respect to the content of our list of human rights. Raz, for example, points out that there is no reason to expect the human rights that we have simply by virtue of our humanity to be necessarily important rights. ^{Footnote 43} The right not to be pinched, or the right not to be betrayed in personal relations seem to be universal moral rights that all human beings have in virtue of their humanity, ^{Footnote 44} but they lack the importance typical of human rights. If naturalistic theories were committed to the conclusion that these are genuine human rights, they would be incapable of accounting for the common view that only important rights can be human rights.

Defenders of the naturalistic approach have tried to address these objections, but with mixed results. For example, in addressing the first problem, Griffin has defended his claim that a distinctively human life is one in which we can act as autonomous moral agents by arguing that “[a]nyone who thinks seriously about the value of our status as normative [i.e., autonomous] agents . . . will recognize that . . . [it is] highly important;” and that “[e]veryone, on pain of mistake, has to admit that autonomy [is] highly valuable.” ^{Footnote 45} This answer however, can hardly be considered satisfactory. No matter how sensitive we are to the importance of moral autonomy, the claim that anyone who chooses to structure his life around the importance of nonliberal traditions and values, rather than around autonomy, thereby fails to live a distinctively human life, seems too extreme. ^{Footnote 46}

In addressing the second objection, John Tasioulas bites the bullet and acknowledges that we do have moral human rights not to be pinched and not to be betrayed in personal relationships, but he hastens to add that there are obvious reasons not to have corresponding legal human rights for them. In the case of the former, because the right not to be pinched is not sufficiently important to warrant legal recognition; in the case of the latter, because human rights documents “include only those human rights that are genuinely under threat and regarding which preventative and remedial action by the state is both legitimate and potentially effective.” ^{Footnote 47}

However, this move also seems unpersuasive, since what is implausible (and what critics of the naturalistic view correctly object to) is not only the idea that the right not to be pinched or the right not to be betrayed could be legal human rights, but also the idea that they could be moral human rights. While the view that all human beings, qua human beings, have a moral right not to be pinched or not to be betrayed does not seem necessarily implausible, the view that these are human rights does, as we normally think that only particularly important moral rights should qualify as human rights.

In order to be convincing, a formulation of the naturalistic view will have to be able to address these two problems. It must show that it does not rely on the adoption of values that belong exclusively to a particular conception of the good, and it must show that it is not overinclusive with respect to the content of the list of human rights that it generates (that is, that it does not classify as human rights moral rights that all human beings have simply by virtue of their humanity, but that are not sufficiently important). In the next section, I will outline a variant of the naturalistic view that seems promising on both counts.

VI. The Basic-Needs View

Recall the formulation of the naturalistic view introduced above:

1. i. Because of their inherent dignity, human beings are entitled to have a minimally decent life;

2. ii. All human beings, qua human beings, have certain distinguishing features;

3. iii. Given the features specified in ii, human beings can have a minimally decent life only if certain conditions are secured;

4. iv. Given i, ii, and iii, human beings have moral rights to what is necessary to secure the conditions specified in iii.

5. v. The best way (or a sufficiently good way) to secure the moral rights specified in iv is by incorporating them in the international human rights practice.

My aim here is to consider the justification of moral human rights, so I will focus on the first four steps of the argument. The question is how best to account for the relationship between the notion of human dignity, the idea of a minimally decent life, and the distinctive features of human beings that need to be protected in order to have a minimally decent life.

Probably the most influential answer to this question is the one that appeals to the idea that the main constituent of human dignity is the capacity to act as autonomous moral agents. According to this view, whose most prominent defender is James Griffin, the distinctive feature of human beings on which we should focus in order to make sense of the idea of a minimally decent human life is the capacity to autonomously choose a plan of life and successfully pursue it. Thus, human rights are to be justified by appealing to the thought that they protect the capacity to act in this way by protecting the conditions necessary to form and successfully pursue a plan of life.

We have already seen that one problem with this view is that it struggles to account for the idea that human rights should not be the expression of a particular conception of the good. The view however, also presents a second crucial problem, namely its being underinclusive with respect to the class of human rights bearers. The problem here is that insofar as human rights are justified by appealing to the idea that they protect the capacity to act as autonomous moral agents, whoever lacks such capacity, for example children or the severely mentally disabled, cannot be said to have human rights. This conclusion however, is problematic for two reasons. To begin with, there is an issue of internal coherence. Insofar as the view is meant to ground human rights in our nature as human beings, it is puzzling that some human beings would be left out. As Raz puts it, “one abandons the idea that human rights derive from our humanity once one says that babies or people with Down’s syndrome do not have (certain) human rights.” ^{Footnote 48}

Moreover, the view seems inadequate insofar as both common sense morality and the law unequivocally assume that both children and the severely mentally disabled do have human rights. Indeed, not only do both groups regularly appeal to the human rights listed in human rights documents such as the ICCPR and the ICESCR, but there are also special documents, such as the Convention on the Rights of the Child and the Declaration on the Rights of Disabled Persons, which are meant specifically to protect the human rights of these two groups.

Of course the fact that the autonomy-based view fails to account for the existence of these rights would not be a problem if a convincing case could be made as to why children and the severely mentally disabled should not have human rights, but no such argument is offered by the view. The only reasons to exclude these subjects from the class of human rights bearers is that the rationale identified by the autonomy-based view is not able to justify their inclusion.

A more promising formulation of the naturalistic view is the one that instead of appealing to our capacity to act as autonomous moral agents, grounds human rights in certain basic needs that we have as human beings. By “basic needs” I mean things like food, air, water, shelter, a minimum level of health and a minimal level of social interaction. The sense in which these needs are basic is that having the opportunity to meet them is the bare minimum required in order to function as human beings, whereas failing to have this opportunity normally compromises our capacity to have a minimally decent life.

The basic-needs account and autonomy-based accounts share two central premises: first, human dignity is respected when the conditions for a minimally decent life are not undermined; second, the function of human rights is to protect the conditions for a minimally decent life, thereby protecting human dignity. But while the autonomy-based account holds that a minimally decent life is one in which we can act as autonomous moral agents, the basic needs account holds that a minimally decent life is one in which we have the opportunity to fulfill a core group of biological, psychological, as well as social needs. Thus, while for the autonomy-based account, the justification of human rights consists in the fact that they protect the capacity to act as autonomous moral agents, for the basic needs account it consists in the fact that they protect the opportunity to have these basic needs met. ^{Footnote 49}

One advantage of this account is that it avoids the objection of being underinclusive with respect to the class of human rights bearers. For while some human beings lack the capacity for autonomous agency, all human beings, including children and the severely mentally disabled, have the basic needs listed above. But the basic needs account also avoids grounding human rights on a set of controversial metaphysical and moral assumptions about human nature. The claim that human beings need things like food, shelter, a minimum level of health, and a minimal level of social interaction does not depend on some controversial metaphysical view about human nature, nor does it depend on the adoption of a particular conception of the good. Far from it, having the option to meet our basic needs is a precondition for the pursuit of any conception of the good.

Thus, the basic-needs view avoids the first of the two main objections that have been raised against naturalistic approaches. The view however, is also well equipped to deal with the second objection, namely the alleged incapacity of naturalistic approaches to account for the fact that only important moral rights can be human rights. Given that the basic needs view grounds the justification of human rights on those needs which we must have an opportunity to fulfill in order to have a minimally decent life, this automatically rules out any candidate whose importance does not meet this threshold. According to this view, neither the right not to be pinched, nor the right not to be betrayed in personal relationships are plausible candidates for human rights.

Obviously, more needs to be said to develop the basic needs view. ^{Footnote 50} My aim in this section was only to show that the view has the resources to address the two main worries raised against naturalistic theories of human rights. If I am right, some of the pressure to move toward a political justification of human rights will be removed.

VII. Conclusion

The aim of this paper has been to articulate the view I have labeled the “Priority of the Moral,” whose adoption is the main point of contention between naturalistic and political theories of human rights. I have argued that this view is harder to dismiss than political theories suggest, and that before we can assess the plausibility of these theories, they need to say more in defense of their claim that they can do without it. It is incumbent upon political theories of human rights to show that they do not surreptitiously appeal to something like the Priority of the Moral. I then considered the two main objections that seem to have motivated many philosophers to abandon the naturalistic approach to the justification of human rights in favor of the political one. I have suggested that a variant of the naturalistic justification, the basic needs account, has the resources to address these objections. If so, the basic needs account warrants further examination as a promising model for the justification of human rights.