Are Moral Rights Necessary for the Justification of International Legal Human Rights?

Allen Buchanan’s The Heart of Human Rights powerfully challenges philosophers writing on human rights to clarify the relation between moral rights and international legal human rights. He claims that the dominant perspectives on human rights are committed to, though they never explicitly avow, what he calls the “Mirroring View,” namely, the view that the existence of an individual moral right is both necessary and sufficient for the justification of any international legal human right (ILHR). Such individual moral rights serve as necessary and sufficient conditions for justifying ILHRs in one of three ways: either (1) ILHRs have exactly the same content as correspondent moral rights (for example, ILHRs against torture might be justified because there are underlying moral rights against torture); (2) ILHRs are a specification of a moral human right (in the same way as freedom of the press is a specification of the more general right to freedom of expression); or (3) ILHRs are instruments for serving or protecting moral rights (for example, a right to democratic participation might serve to protect or realize an underlying moral right to equal status). He then argues that the Mirroring View is false: an underlying moral right is neither a necessary nor sufficient part of the justification of a corresponding ILHR in any of these three senses.

In this essay I will not assess whether Buchanan is right to attribute the Mirroring View to any particular contemporary writer on human rights. I will also grant that the existence of a moral right—even a general moral right—is not sufficient to justify a corresponding ILHR. This is because the sufficiency claim strikes me as self-evidently false: not every individual moral right ought to be legally protected. Among my moral rights, I have a general moral right not to be lied to. But it would be absurd to claim that I therefore ought to have an ILHR not to be lied to. The necessity claim—the other half of the Mirroring View—is much more interesting. If Buchanan is right, then it becomes very unclear whether philosophers should continue spending so much time focusing on the moral rights that are often claimed to undergird human rights practice. They ought instead to focus on the ILHR system and keep an open mind about what considerations might best justify it.

I argue here that Buchanan is wrong to reject the necessity claim, and that the existence of an underlying moral right is a necessary part of any successful justification of an ILHR or set of ILHRs. This underlying moral right need not have precisely the same content as the ILHR it aids in justifying, but it must serve as an essential part of the rationale for the implementation of the ILHR. I will call this claim the “Grounding View” to distinguish it from the much stronger “Mirroring View.”

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