Human Rights Law Without Natural Moral Rights

The Heart of Human Rights, Allen Buchanan (New York: Oxford University Press, 2013), 336 pp., $45 cloth.

In this latest work by one of our leading political and legal philosophers, Allen Buchanan outlines a novel framework for assessing the system of international human rights law—the system that he takes to be the heart of modern human rights practice. Buchanan does not offer a full justification for the current system, but rather aims “to make a strong prima facie case that the existing system as a whole has what it takes to warrant our support of it on moral grounds, even if some aspects of it are defective and should be the object of serious efforts at improvement” (p. 173).

The book is brimming with new ideas and insights, and I see three main claims that have particularly interesting implications. First, Buchanan argues against what he calls the “Mirroring View”:

To justify an international legal human right typically involves defending the claim that a corresponding moral human right exists. The qualifier “typically” is designed to accommodate the fact that some who hold this view acknowledge that in some cases a justified international legal human right does not mirror a moral human right, but rather is either (a) a specification of a moral human right . . . or (b) something that is instrumentally valuable for realizing a moral human right (p. 17).

Buchanan makes a plausible case that many philosophers working on the moral foundations of human rights assume the Mirroring View, including James Griffin, Joseph Raz, and John Tasioulas. He could equally have targeted Carol Gould, Martha Nussbaum, Amartya Sen, or Carl Wellman. Buchanan’s main argument against the Mirroring View starts from the premise that any moral right has to be “solely subject-grounded,” that is, it has to be justified by what it does for the individual right-holder—where this might involve serving the rightholder’s interests, protecting her freedom or needs, or the like (p. 59). But many international legal human rights have “corresponding duties the fulfillment of which requires large-scale social investment and limitations on the liberty of large numbers of people” (p. 62). As examples, Buchanan mentions the legal human right to health, which requires governments to set up vaccination programs to deliver herd immunity, and the legal human right to democracy, which entails duties on governments to hold fair elections with appropriate nationwide logistics in place (pp. 61–62). Such legal human rights, with their demanding corresponding duties, cannot be justified simply by what they do for the individual subject. As he writes, “To put the point bluntly: No matter who you are, you are not important enough to justify a set of duties that correlate with the panoply of legal rights [protected by international human rights law]” (pp. 63–64). Buchanan concludes that international legal human rights must in most cases be justified by how they serve “the interests and autonomy of large numbers of people” (p. 64), and this means that they cannot be grounded as reflecting or operationalizing prelegal moral rights. Thus, the Mirroring View is false.

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