Since their emergence as a specialized field of knowledge, human rights have been studied in either narrowly empirical or exclusively normative terms. In legalistic and historical inquiries, the focus tends to be limited to the enumeration, documentation, or general evolution of human rights norms, laws, institutions, and practices. Normative accounts, in contrast, tend to view practical considerations as second-order concerns stemming from moral-philosophical issues at the very foundation of human rights. This evident bifurcation of knowledge presents contemporary human rights scholars with an especially difficult conundrum: is it possible to develop theories of human rights that are both normative and sufficiently attuned to the empirical realities of rights practices across human societies? In Human Rights as Human Independence: A Philosophical and Legal Interpretation, the scholar-practitioner Julio Montero answers in the affirmative by employing a modified “practice-dependent” method he calls “constructive interpretation.” This approach enables the human rights theorist to act as an interpreter of “practice-dependent facts and practice-independent principles” (p. 14, emphasis in original) that invariably bear on and bring to sharp focus the legitimacy of human rights practices.
Developing a theory of human rights using constructive interpretation requires a clear explanation of where and how foundational principles and context-specific political considerations mutually constitute and exclude each other. Montero takes up this challenge by setting out four interpretative criteria—“fidelity,” “practical orientation,” “value,” and “normative justification”—that any plausible theory of human rights must satisfy. Essentially, any proposed theory must reasonably cover human rights practices as they exist in the real world, demonstrate their moral value as international norms and practice across time and place, and provide a justificatory basis for moral obligations placed on political institutions and practices. Together, these interpretative criteria ensure that human rights theories are both guided by their practical applications in the world as it is, yet also grounded in moral principles that aim to improve the human condition.
Montero’s own attempt at achieving such an equilibrium is provided through what he calls “the independence account,” which combines two distinct but complementary arguments about human rights: that they (1) “set the standards of legitimacy for sovereign political authorities”; and (2) “derive from a more fundamental moral entitlement we enjoy just in virtue of our humanity: the natural right to independence” (p. 21, emphasis in original). Over the course of five chapters, Montero situates his independence account within broader historical debates in philosophy and politics (chap. 2); delineates the conceptual bounds of the natural right to independence in relation to the development of political institutions (chap. 3); considers the implications of his account for understanding the operation of human rights in international society (chap. 4); examines the obligations and entitlements of individuals when rights are violated and institutional protections fail (chap. 5); and concludes with a discussion of specific rights-based cases—human rights to abortion, same-sex marriage, and democratic institutions—under the independence account and offers general proposals for reforming global human rights frameworks.
One way to understand Montero’s interpretive account is to see it as an effort to reframe the normative basis of traditional social contract theories in reference to human rights. Whereas in traditional accounts the object of political theorizing is to establish the grounds for legitimate political authority, in Montero’s account political legitimacy is itself but one requirement toward the fulfillment of a morally prior objective, human rights. As he notes, “in virtue of the unique kind of authority they exert over human persons, sovereign agents bear special moral responsibilities toward them. The normative function of human rights is to articulate the content of such responsibilities and signal the particular sort of moral wrong that sovereign authorities incur when they fail to live up to them” (pp. 47–48). It may reasonably be asked if this account is in fact not that different from existing liberal political theories of legitimacy, wherein constitutional limits on the coercive powers of the state are justified precisely in reference to guarantees of basic rights and freedoms of citizens. Montero’s explication of the “natural right to independence”—that is, “[t]he right to enjoy an equal sphere of personal agency within which individuals can form and pursue their own plans protected from the arbitrary choice of others” (p. 50, emphasis in original)—prompts the same question. Indeed, the Kantian principle at work here, which states that individuals ought to be treated as ends in themselves and not as means to other ends, is at the very core of liberal political conceptions that place a high premium on rights as the ultimate source of political legitimacy.
But as Montero rightly notes, standard liberal conceptions of legitimacy (such as John Rawls’s) tend to confine moral principles such as equal respect for persons to existing constitutional systems or liberal societies that afford their citizens the political protections to assert their rights in terms meaningful to them (if not always justified to others). He argues that an independence-oriented conception of human rights would differ from standard liberal accounts in its “more modest” assertion of four abstract human rights—freedom, equality, political participation, and minimal social justice—at the international level, and according to a different set of justificatory principles commensurate with international law and a set of global and personal duties (which he lays out in chaps. 4 and 5, respectively). All the same, the essentially liberal substance of these provisions cannot be denied: the protection of individual independence against arbitrary state coercion in accordance with agreed-upon international rules, treaties, and legal commitments, and enforceable through justified international action and cooperation. The conception of independence articulated here, and the (inter)national implications stemming from it, require adherence to liberal and liberalizing principles through and through. Indeed, the modest grounds on which Montero distinguishes his account from those of more ostensibly demanding liberal conceptions are the very basis on which political liberal views are distinguished from comprehensive liberal views in political theory. Dwelling more on these existing distinctions, as in the clarifying article by the political philosopher Charles Larmore (1990, Political Theory 18 (3): 339–60), would have enriched and made clearer the normative contours of Montero’s international human-rights-centered view vis-à-vis the influential works of liberal legality and theory (by Charles Beitz, Ronald Dworkin, and Jeremy Waldron, among others) with which this book is in direct conversation.
The lack of conceptual clarity of the independence account in relation to existing standard political liberal accounts of rights is evident in the consideration of two practical rights-based public policy issues: abortion and same-sex marriage. In the (all too) brief discussion of these issues (four pages in total), Montero’s interpretation and prescriptive analysis of state obligations and what is owed to individuals are virtually identical with those of standard liberal normative and practical positions (i.e., bodily autonomy and marriage equality ought to be respected by governments). Similarly, his proposals for global political reforms are very much in line with liberal-democratic tweaks and revisions to existing institutional frameworks. All the same, Montero’s interpretive account does add a valuable dimension, and brings much-needed analytical clarity, to human rights theorizing. Neither a deliverance nor a chimera, human rights merely enjoin us in a struggle over our common humanity.
