Discourse ethics and the political conception of human rights

Article English OPEN
Baynes, Kenneth (2009)
  • Publisher: Co-Action Publishing
  • Journal: Ethics & Global Politics (issn: 1654-6369, eissn: 1654-4951)
  • Related identifiers: doi: 10.3402/egp.v2i1.1938

This article examines two recent alternatives to the traditional conception of human rights as natural rights: the account of human rights found in discourse ethics and the ‘political conception’ of human rights influenced by the work of Rawls. I argue that both accounts have distinct merits and that they are not as opposed to one another as is sometimes supposed. At the same time, the discourse ethics account must confront a deep ambiguity in its own approach: are rights derived in a strong sense from the conditions of ‘communicative freedom’ or are they developed from the participants’ own reflection upon their ongoing and continuously changing practices and institutions? The political conception recently proposed by Joshua Cohen can, I argue, contribute to the resolution of this ambiguity, though not without some modifications of its own.Keywords: human rights; discourse ethics; The ‘political conception’ of rights; Seyla Benhabib; John Rawls; Rainer Forst; Michael Ignatieff; Thomas Pogge; Joshua Cohen(Published: 10 March 2009)Citation: Ethics & Global Politics. DOI: 10.3402/egp.v2i1.1938
  • References (44)
    44 references, page 1 of 5

    See, for example, Maurice Cranston, What are Human Rights? (London: Bodley Head, 1973), 1; Maurice Cranston, 'Are There Any Human Rights?' Dadaelus 12 (1983): 1 17; and A. John Simmons, 'Human Rights and World Citizenship', in Justification and Legitimacy; Essays on Rights and Obligations (New York: Cambridge University Press, 2001).

    See, for example, James Griffin, 'Discrepancies Between the Best Philosophical Account of Human Rights and the International Law of Human Rights', Proceedings of the Aristotelian Society CI (2001); 1 28, On Human Rights (Griffin, New York: Oxford University Press, 2008), chap. 11. (reprinted).

    See, for example, Alistair Macleod, 'The Structure of Arguments for Human Rights', in Universal Human Rights, ed. D. Reidy and M. Sellers, 17 36 ( Totowa, NJ: Rowman and Littlefield, 2005), who proposes a 'fairness' test and the 'public reasons' test recently proposed by Amartya Sen, 'Elements of a Theory of Rights', Philosophy and Public Affairs 32 (2004): 315 56. See also, William Talbott, Which Rights Should be Universal? (New York: Oxford University Press, 2005).

    For Seyla Benhabib, see especially, The Rights of Others (New York: Cambridge University Press, 2004), 'Another Universalism: On the Unity and Diversity of Human Rights', Proceedings and Addresses of The American Philosophical Association 81, no. 2 (2007): 7 32; for Rainer Forst, see 'The Basic Right to Justification: Toward a Constructivist Conception of Human Rights', Constellations 6, no. 1 (1999): 35 60. For two other attempts to provide an account of human rights from a discourse-theoretic perspective, see James Bohman, Democracy Beyond Borders (Cambridge, MA: MIT Press, 2007); and Eva Erman, Human Rights and Democracy (Ashgate, 2005).

    The source of this concern is Habermas's rejection of Kant's account of 'morally laden individual rights, which claim normative independence from, and a higher legitimacy than, the political process of legislation' (Ju¨ rgen Habermas, Between Facts and Norms (Cambridge, MA: MIT Press, 1996), 89); see also his 'Remarks on Legitimation Through Human Rights', in The Postnational Constellation (Cambridge, MA: MIT Press, 2001). As Habermas also notes, this claim is 'not so obvious' for classical human rights (117).

    See, Benhabib, The Rights of Others (New York: Cambridge University Press, 2004), 132f; and Forst, 'The Basic Right to Justification: Toward a Constructivist Conception of Human Rights', Constellations 6, no. 1 (1999): 40.

    See Benhabib, The Rights of Others, (New York: Cambridge University Press, 2004), chap. 2; see also Frank Michelman, 'Parsing 'A Right to Have Rights', Constellations 3 (1996): 200 9.

    Benhabib, The Rights of Others, (New York: Cambridge University Press, 2004), 67 and 132; see also, 'Another Universalism: On the Unity and Diversity of Human Rights', Proceedings and Addresses of The American Philosophical Association 81, no. 2 (2007): 7 32.

    See Benhabib, 'Another Universalism: On the Unity and Diversity of Human Rights', Proceedings and Addresses of The American Philosophical Association 81, no. 2 (2007): 18.

    Recently, see especially, Charles Beitz, 'Human Rights and the Law of Peoples'; Joshua Cohen, 'Minimalism About Rights'; and Peter Jones, 'International Human Rights: Political or Metaphysical?', in National Rights, International Obligations, ed. S. Caney, D. George, and P. Jones, 183 204. (Boulder, CA: Westview, 1996); for earlier political conceptions of rights see Attracta Ingram, A Political Theory of Rights; Claude Lefort, 'Politics and Human Rights', in The Political Forms of Modern Society (Cambridge, MA: MIT Press, 1986); and Kenneth Baynes, 'Rights as Critique and the Critique of Rights', Political Theory 28 (2000): 451 68.

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