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Human Rights, Categorical Duties: A Dilemma for Instrumentalism
Published online by Cambridge University Press: 02 March 2016
Abstract
Contemporary theorists tend to think that the basic justification of human rights is instrumental, as efficient means for producing the theorist's preferred ultimate value or values. Contemporary theorists also tend to think that human rights have a distinctive normative force, correlating with categorical duties. This article shows that instrumentalist accounts of human rights face a dilemma. The very structure of any instrumentalist account means that such an account faces extraordinary difficulties accommodating categorical duties to respect the human rights of others. If so, one should either reject instrumentalism about human rights or do away with categorical duties. But doing away with categorical duties comes at a high cost. The dilemma, then, should question the prevalent assumption that instrumentalist accounts of human rights can accommodate categorical duties. The dilemma should serve either to sharpen instrumentalist theories or to motivate non-instrumentalism about human rights.
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References
1 For a discussion of the contrast between instrumentalist and non-instrumentalist accounts, see Nickel, James and Reidy, David, ‘Philosophy’, International Human Rights Law, ed. Moeckli, D. et al. (Oxford, 2010), pp. 39–63 Google Scholar. For similar formulations of instrumentalism, see Cruft, Rowan, ‘On the Non-Instrumental Value of Basic Rights’, Journal of Moral Philosophy 7 (2010), pp. 441–61CrossRefGoogle Scholar; Nagel, Thomas, ‘Personal Rights and Public Space’, Concealment and Exposure and Other Essays (Oxford, 2002), especially pp. 34–5Google Scholar.
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14 See nn. 3–6 above.
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17 I am grateful to an anonymous reviewer for prompting me to clarify in these ways the notion of a categorical duty with which I shall be working.
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21 Cruft, ‘On the Non-Instrumental Value of Basic Rights’, p. 441.
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27 Indeed, the instrumental judgement is contingent in a third sense, depending on whether the end itself is contingent or necessary in practical thought.
28 This case is discussed in Rosen, Michael, Dignity: Its History and Meaning (Cambridge, MA: Harvard University Press, 2012), pp. 104–5CrossRefGoogle Scholar. I am also grateful to Hasko von Kriegstein for separately pointing me to this case.
29 Of course, there is a good question here about the proper specification of the duty not to torture. Does it prohibit only actual torture or the threat of torture as well? We can bypass this question.
30 Griffin, On Human Rights, p. 36.
31 Tasioulas, ‘Human Dignity’, p. 300.
32 I will develop this point in more detail in the last section.
33 Tasioulas, ‘The Moral Reality of Human Rights’, p. 88.
34 Griffin, On Human Rights, p. 36.
35 For the purposes of this article, we can grant the following claim made by Nagel: ‘It is compatible with this conception of rights [as correlated with categorical duties] that they are not absolute and that there may be some threshold, defined in consequential, agent-neutral terms, at which they give way’ (p. 36).
36 This case is discussed in Rosen, Dignity, pp. 105–7.
37 BVerfGE, 115,118, quoted in Rosen, Dignity, p. 106.
38 Nagel envisages a similar case. See Nagel, ‘Personal Rights’, p. 38. Indeed, the cumbersome character of due process and its tendency to produce more evil than good appears as a common trope of ‘cop-shows’.
39 James Nickel makes use of this distinction to formulate a conception of the indivisibility of human rights. See Nickel, James, ‘Rethinking Indivisibility: Towards a Theory of Supporting Relations between Human Rights’, Human Rights Quarterly 30 (2008), pp. 984–1001 CrossRefGoogle Scholar.
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46 Beitz, The Idea of Human Rights, p. 117.
47 Tasioulas, ‘Human Dignity’, p. 296.
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49 Griffin, On Human Rights, p. 80.
50 Griffin, On Human Rights, p. 80.
51 Griffin, On Human Rights, p. 36.
52 Griffin, On Human Rights, p. 36.
53 Griffin, On Human Rights, p. 36.
54 Griffin, On Human Rights, p. 80.
55 Griffin, On Human Rights, p. 80.
56 For this contrast, see Railton, ‘Alienation, Consequentialism, Morality’, p. 124, fn. 32.
57 Zylberman, ‘Why Human Rights?’.
58 This article was written while I was a SSHRC Postdoctoral Fellow in the Department of Philosophy at McGill University. For help with and criticism of earlier drafts, I am extremely grateful to G. Anthony Bruno, Rowan Cruft, Micha Glaeser, Eliot Michaelson, Claire Reid, Arthur Ripstein, Hasko von Kriegstein, Owen Ware, Jacob Weinrib, Daniel Weinstock, and an anonymous reviewer.