Theoretical Foundations for Human Rights
| Author | Vittorio Bufacchi |
| Published date | 01 August 2018 |
| Date | 01 August 2018 |
| DOI | 10.1177/0032321717723510 |
| Subject Matter | Articles |
research-article2017
Article
Political Studies
2018, Vol. 66(3) 601 –617
Theoretical Foundations
© The Author(s) 2017
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https://doi.org/10.1177/0032321717723510
DOI: 10.1177/0032321717723510
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Vittorio Bufacchi
Abstract
This article explores an alternative to the established dichotomy between philosophical (natural
law) accounts of human rights, characterized by a foundationalist tendency, and political (practice-
based) accounts of human rights, which aspire to be non-foundationalist. I argue that in order to
justify human rights practice, political accounts of human rights cannot do without the support of
theoretical foundations, although not necessarily of the natural-law variety. As an alternative to
natural-law metaphysics, a deflationary theory of human rights, based on a deflationary account
of truth, is put forward. Starting from a distinction between ‘extreme’ and ‘moderate’ forms of
deflationism, this article defends a constructivist theory of human rights grounded on the Humean
notion of conventionalism. This innovative approach to human rights provides political conceptions
of human rights with the foundations (or quasi-foundations) they need, but are currently lacking.
Keywords
human rights, foundations, truth, deflationism, Hume, conventionalism
Accepted: 5 June 2017
The only consensus about human rights is that there is no consensus on the nature and
justification of human rights. Some argue that human rights are essentially moral rights
since the idea of human rights denotes a moral concept. Others argue that human rights
are a political concept; therefore, human rights are primarily legal or political rights. This
underlying rift in theories of human rights is the reason why the literature on this idea is
currently divided between those who defend a traditional, ethically driven vision of
human rights, which is practice-independent (Buchanan, 2010; Gewirth, 1984; Griffin,
2008; Tasioulas, 2009), and those who reject it in favour of a political approach, allegedly
free from metaphysics, where human rights are strictly practice-dependent (Beitz, 2009;
Rawls, 1999; Raz, 2010).
The aim of this article was to find a synthesis between these two dialectically opposed
positions. I argue that the received view of a dichotomy between political and
Department of Philosophy, University College Cork, Cork, Ireland
Corresponding author:
Vittorio Bufacchi, Department of Philosophy, University College Cork, Cork, Ireland.
Email: v.bufacchi@ucc.ie
602
Political Studies 66(3)
metaphysical conceptions of human rights is to some degree misleading and potentially
detrimental to the idea and aspirations of a human rights agenda; therefore, it should be
resisted. Notwithstanding their best efforts, political conceptions of human rights are not
immune from metaphysical considerations, and in some cases even draw on natural-law
arguments whenever questions of a justificatory nature arise. More specifically, I put
forward and defend a different metaphysical approach to the theoretical foundations of
human rights, one that is ideally suited to political conceptions of human rights. This
approach explores the relationship between ‘human rights’ and ‘truth’.
Section ‘Human Rights: With or Without Foundations’ compares and contrasts the
political and metaphysical accounts of human rights; while natural-law provides the
wrong type of foundations for human rights, the political approach cannot do without
foundations. Section ‘Human Rights and the Metaphysics of Truth’ argues that a robust
conception of truth lurks behind natural-law accounts of human rights, which suggests
that an alternative way to theorize the foundation of human rights is by starting from a
different conception of truth, to be precise a deflationary theory of truth. Section ‘Two
Types of Deflationism’ distinguishes between an extreme and a moderate interpretation
of deflationism about truth, recommending moderate deflationism as an attractive propo-
sition for theories of human rights seeking an alternative to the natural-law paradigm.
Section ‘Human Rights: Political and Metaphysical’ argues that by abandoning moral
foundationalism, the political theories of human rights of Charles Beitz and Joseph Raz
struggle to give a justification for the practice of human rights, a problem that could be
solved with the help of a moderate deflationary view about truth. Section ‘How to Be
Deflationist about Human Rights’ puts forward the backbone of a deflationary theory of
human rights; this theory is constructivist but not Kantian; instead, it appeals to David
Hume’s conventionalism.
Human Rights: With or Without Foundations
The tide is turning against traditional, metaphysical accounts of human rights. The sharp
distinction between ‘political’ and ‘metaphysical’ justifications in political philosophy
has a long history, although in recent years this division bares the mark of John Rawls
(1985: 223), who maintained that it is possible, indeed desirable, to promote a conception
of justice as fairness without needing to refer to philosophical or metaphysical claims ‘to
universal truth, or claims about the essential nature and identity of persons’. While Rawls’
concerns were directed towards issues of social justice, since then his vision regarding the
task of political philosophy has been adopted more widely, including matters regarding
human rights. In the last analysis, the disagreement between ‘political’ and ‘metaphysi-
cal’ theories of human rights rests on the question whether human rights necessitate a
foundational basis or not.
There are many reasons why an account of human rights is said to need foundations,
but two in particular stand out: for the sake of ‘deep understanding’ and/or ‘justification’.
First, foundations provide us with what Jeremy Waldron (2015) calls ‘deep understand-
ing’. Foundational inquiries help to deepen and enrich our understanding of human rights.
There are always going to be aspects of international human rights law that remain
obscure and ambivalent; when faced with uncertainty over the correct interpretation of
human rights law, the only way forward is by inspecting the philosophies that shaped the
law in the first place. Second, foundations offer a justification for human rights, in gen-
eral, and human rights law, in particular. Without foundations, human rights lack
Bufacchi
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authority or, as Jerome Shestack (1998: 202) says, ‘one furthers fidelity to human rights
law by understanding the moral justifications that underlie that law’.1
Seeking foundations for human rights may be desirable, perhaps even necessary, but
there is no guarantee that everyone will be convinced. The prevailing or orthodox type of
philosophical foundations of human rights remains highly problematic, still being domi-
nated by the logic of natural-law theory. In particular, the natural-law approach to human
rights is vulnerable to three lines of attack: for lacking universality, for being overly con-
servative and for lacking political expediency.
First, any reference to a basic moral concept or principle is inevitably going to have a
narrow appeal, undermining the universal reach of human rights. This is in part why
Rawls was sceptical of political theories grounded on a comprehensive moral doctrine:
they will only convince those who already buy into the doctrine, but will not make any
difference to those who do not. Second, foundational theories can have conservative ten-
dencies; this is certainly the case with natural-law theories, particularly the non-secular
interpretation within this tradition.2 Third, foundational theories fail to bridge the gap
between moral ideals and political reality; issuing recommendations that the global politi-
cal order should be reformed so that it falls in line with certain philosophical views is, at
best, a long-term strategy and at worse an intellectual pastime with no political impact of
any substance.
For all these reasons, over the last few decades, the political approach to human rights
has gained momentum, at the detriment of the more traditional, philosophical approach.
By focussing on human rights ‘practice’, and therefore distancing itself from the meta-
physical quagmire that inevitably comes with foundational debates, the political approach
to human rights claims the advantage of presenting an alternative to the ‘natural-law’
approach while fulfilling a role in real-world politics. There are, however, some problems
intrinsic to this political approach.
First, the line between political and metaphysical conceptions of human rights is more
blurry than often assumed. As Laura Valentini (2012: 181) rightly points out, endorsing the
‘political view’ is no guarantee that we do so without metaphysics, since the political view of
human rights still needs to engage in the sort of abstract moral reasoning that one associates
with the natural-law approach: ‘the most plausible political approach to human rights is
closer to natural-law theories than proponents of the political view typically acknowledge’.
Second, strictly political accounts of human rights can be more politically conserva-
tive than its advocates like to admit, and conservatism is precisely what we do not want
from a theory of human rights. Invoking the value of stability (as...
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