Four Challenges Confronting A Moral Conception of Universal Human Rights

INTRODUCTIONThe Universal Declaration of Human Rights (UDHR), now sixtyseven years old, was an extraordinarily aspirational document at its inception and remains so to this day.1 Nevertheless, significance of its promulgation can hardly be overstated. Procedurally, it spelled end of Westphalian legal order that left states virtually free to rule their people as they wished.2 Morally, it marked birth of a global ideology of democratic equality that would soon overtake imperial and racial ideals that had endured for centuries. Many governments in 1948 still rationalized colonialism as a civilizing mission, segregation as separate racial development, or caste- and gender-based divisions of labor as natural order of things. Seven decades later, almost all politicians claim to embrace first principle of UDHR, that every human being is born free and equal in dignity and rights,3 and this has left those hierarchical ideologies with few defenders and a limited future.Of course, words are not deeds, and governments freely and frequently use human rights rhetoric to disguise their agendas rather than guide them. But even when deployed hypocritically, human rights rhetoric may have tremendous transformative power in long run that is invisible at moment; 1975 Helsinki Agreement that helped inspire Eastern European democracy movements a decade later is one consequential example.4 Few ideas have mattered more in recent history than idea of universal human rights. Mahatma Gandhi, Martin Luther King, Jr., and Nelson Mandela were able to defeat most powerful and entrenched forces against them on strength of it.The turn to human rights was an obvious and powerful reaction to Hitler's death camps and then to colonialism and apartheid, but human rights conventions reach well beyond such egregious crimes to positive economic rights, spousal responsibilities, and numerous aspects of everyday life.5 The International Covenant of Economic, Social and Cultural Rights (ICESCR) even asserts a human right to the highest attainable standard of physical and mental health.6 But global embrace of human rights has not extended to such maximalist rights, and even conventions that include them hedge to an extraordinary extent.7 Some leading theorists have been moving in precisely opposite direction, formulating minimalist accounts of human rights that focus on kind of extreme violations that may warrant forcible international intervention. No one doubts that a state violates a human right when it actively subjugates people or destroys their lives, but many doubt that it violates a human right when it fails to halt undue neighborhood noise, as European Court of Human Rights ruled in 2004.8 The ideas that inspired so many to resist oppression are ever more secure, but scope and rationale of human rights remain very much in question.This Essay explores nature and parameters of universal human rights idea, conceived in its traditional form as a species of justice rather than law. It discusses four moral claims conveyed by assertion of a paradigmatic human right, specificity and indeterminacy that characterize each claim, and some of primary challenges they confront. Because these underlying claims generate far more uncertainty and skepticism than many of human rights they support, some theorists favor pursuing a different understanding of universal human rights that makes sense without them.9 The more modest aim of this Essay is to help inform that proposal by presenting these claims and challenges as concisely and transparently as possible, rather than make a case for one side. My own assessment of these claims, challenges, and revisionist alternatives is subject of a book-length treatment to follow.I. MORAL, LEGAL, AND POLITICAL CONCEPTIONS OF HUMAN RIGHTSConceived as a species of justice rather than law, all paradigmatic human rights make at least four claims. …