Between morality and law: In defense of a political conception of human rights*
| Date | 01 February 2016 |
| Published date | 01 February 2016 |
| Author | Regina Kreide |
| DOI | 10.1177/1755088215611686 |
Journal of International Political Theory
2016, Vol. 12(1) 10 –25
© The Author(s) 2015
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DOI: 10.1177/1755088215611686
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Between morality and law:
In defense of a political
conception of human rights*
Regina Kreide
Justus Liebig University Giessen, Germany
Abstract
Human rights are currently either seen in a morally exaggerated way as “trump cards”
in political negotiations or they are pruned back to a purely juridical level, absorbed
into legal instances. In contrast to this, the author defends a political conception of
human rights that overcomes the problems besetting both conceptions, but without
having to sacrifice their critical, normative content or a realistic role for human rights
in international politics. The author argues, first, that a political conception of human
rights assumes that human rights grow out of concrete experiences of injustice and are
the product of political struggles. Human rights are, second, placeholders for the public
thematization of oppression, humiliation, marginalization, and despotism. At the same
time, human rights as placeholders not only provide the foil against which criticism of
existing conditions is exercised but are also themselves objects of criticism. And, finally,
the obligations imposed by human rights are not duties of assistance but institutional
duties to realize the conditions for exercising human rights.
Keywords
Critique, global justice, human rights, transnational institutions
The situation surrounding human rights has become confusing. Even at a time when more
and more states are ratifying human rights treaties, the worldwide human rights situation
has actually deteriorated (Hafner-Burton and Tsutsui, 2005: 1373 ff.). And although
human rights are no longer questioned in principle, at least not in public, criticism of them
*Translation from German by Ciaran Cronin.
Corresponding author:
Regina Kreide, Institute of Political Science, Justus Liebig University Giessen, Karl Glöckner Str. 21 E, 35394
Giessen, Germany.
Email: regina.kreide@sowi.uni-giessen.de
611686IPT0010.1177/1755088215611686Journal of International Political TheoryKreide
research-article2015
Article
Kreide 11
persists and has even increased. Finally, in many European cities and in North Africa and
Latin America, citizens are protesting against their governments by appealing to freedom,
self-determination, and other human rights values. At the same time, however, the United
Nations (UN) seems to play an even more marginal role in world politics than at any time
since its foundation.
What do these developments mean for our understanding of human rights? How can
they be understood in an era of global politics? And how can they be defended cogently
against criticism? The current skeptical mood concerning human rights is also rooted—
this is my initial assumption—in two prevailing “traditional” notions of human rights.
Human rights are either seen in a morally exaggerated way as “trump cards” in political
negotiations or they are pruned back to a purely juridical level and are absorbed into
legal instances that accord them at most the rank of constitutional rights. In contrast to
this, I would like to defend a political conception of human rights that overcomes the
problems besetting both conceptions, but without having to sacrifice their critical, nor-
mative content or a realistic role for human rights in international politics.
The assessments of what sets a political conception of human rights apart, however,
are also extremely controversial. Most of these positions ultimately fail to appreciate the
actual political character of human rights, which is, as I will argue, that they are place-
holders for the public thematization of oppression, humiliation, marginalization, and
despotism. As history teaches us, human rights as part of political practice are always
also targets of critics, skeptics, and denigrators. The criticism of politics by human rights
is as much a component of a political conception of human rights as is the critique of
human rights themselves. In an attempt to explain these assertions in greater detail, I will
first use a “traditional” notion of human rights as a backdrop and then outline what I
understand by a political conception of human rights as regards justification and content.
I will then go on to defend them against a range of critics and explain briefly what func-
tion such a conception of human rights could perform in international relations.
Traditional notions of human rights
Two notions of human rights above all set the tone in the discussion in research and poli-
tics. The idea from the natural law tradition that human rights are moral rights—a very
problematic assumption—remains widespread. No less problematic, however, is the idea
of human rights can be understood only in a positivized form and as constitutional rights.
These two almost contradictory ideas exhibit different weaknesses that tend to promote
the present confusion surrounding human rights.
The moral conception of human rights
Let us begin with the moral conception of human rights.1 A commonly held view in this
context is that human rights are moral rights that every human being enjoys in virtue of
her humanity. Human rights on this conception need neither be acquired nor inherited,
nor are they conferred by the state. Instead, they are the birthright of every human being.
According to this view, human beings have rights “by nature.” Those who defend this
moral position point to a historical continuity with traditional natural law. The two
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