The nation-state operates on a logic of exclusion: no state can offer citizenship and rights to all people in the world. In The Human Rights State, Benjamin Gregg proposes ways to decouple rights from citizenship, preserving the nation state, in modified form, and allowing human rights to become part of its domestic constitution.
2016 | 296 pages | Cloth $59.95
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Table of Contents
Introduction. A Project for the Free Embrace of Human Rights
Part I. THE HUMAN RIGHTS STATE: POLITICS BY METAPHOR
Chapter 1. Human Rights as Metaphor
Chapter 2. Human Rights in a Backpack
Chapter 3. The Body as Human Rights Boundary
PART II. THE HUMAN RIGHTS STATE THROUGH PERSUASION, NOT COERCION
Chapter 4. Teaching Human Rights as a Cognitive Style
Chapter 5. Developing Human Rights Commitment in Post-Authoritarian Societies
Chapter 6. Digital Technology as Resource for the Human Rights Project
PART III. DEFENSE OF THE HUMAN RIGHTS STATE IN THE FACE OF CHALLENGES
Chapter 7. Human Rights Patriotism
Chapter 8. A Human Right Not to Democracy but to the Rule of Law
Chapter 9. Human Rights and Humanitarian Intervention
Coda: A Community of Nation States Practicing Domestic Cosmopolitanism
A Project for the Free Embrace of Human Rights
The playwright Bertolt Brecht spent fourteen years in exile. He was officially stateless for twelve. He fled Germany in February 1933, one month after the Nazis took power. After shorter stays in various cities, including Prague, Vienna, Zürich, and Paris, he spent a longer period in Denmark and then in Sweden. When the Germans occupied Denmark and attacked Norway in 1940, and neutral Sweden allowed Germany transit routes for its Norwegian campaign, Brecht fled in April to Finland by ship. He remained in Finland until May 1941, when he left by train for Leningrad, then Moscow, then Vladivostok and, only nine days before the Nazis invaded the Soviet Union, by Swedish boat to Los Angeles, which he reached in July. He returned to Europe in 1947.
While he and his companions struggled to get visas to the United States, Brecht started a play in rural Marlebäck, four hours outside Helsinki, in 1940, and worked on it intermittently until 1944, in Los Angeles. He sets his Flüchtlingsgespräche, or Conversations in Exile, in a bar at the Helsinki Railway Station where two German refugees, Ziffel, a physicist, and Kalle, a laborer, while away their time sparring in a loosely connected series of meandering exchanges. "These encompass memories of childhood and school years as well as of exile, some of which . . . are recognizable as Brecht's own" (Parker 2014:421). At one point Ziffel says to Kalle, "The passport is the noblest part of a person. It isn't generated in the plain and simple way people are. A person can be begotten anywhere in the world, in the most frivolous of ways—but not a passport. That's why a passport, so long as it's a good one, is recognized—whereas a person can be ever so good yet still be denied recognition." Brecht captures in this passage the topsy-turvy world of rights: what matters is not the human being but rather his or her legal status. Thus the person is reduced to an epiphenomenon of a formal document issued by a nation state. And a passport assumes some of the qualities usually attributed instead to human beings: nobility; grounds for social and legal recognition; the bearer of "goodness" and "badness."
This book offers a critique of this topsy-turvy logic. It then develops an alternative logic. This "inclusionary logic" is a vision not of rights in general but of human rights in particular. It has several core features. Consider each in turn.
Social Construction as Method
This book takes forward a project I began in Human Rights as Social Construction. There I argue for human rights as worldly social constructions. Human rights in this context may take any number of overlapping forms, from the "human rights idea" to the "human rights project," from "human rights thinking" to "human rights communities," as well as human rights themselves.
To say that human rights are socially constructed is to regard them wholly as products of human imagination. It is to regard them as this-worldly products of human hand, as distinguished from otherworldly givens, whether theological or metaphysical.
This is a rather optimistic view. It is the conviction that we humans can pull ourselves up morally by our own normative bootstraps. It is the belief that communities can assume the stance of active producers of their fate rather than regarding themselves as passive "consumers" of otherworldly givens.
To say that human communities invent moralities is to say that moralities are cultural claims. In this sense I regard human rights as political phenomena, as a matter of political agency, toward social justice. Ideas of justice, behaviors that create and reinforce justice, and institutions that provide justice—for example, by treating all members of society as legal and moral equals—do not start out as universals. They start out as particular expressions of agency. They begin as historically and culturally particular. And they are always embedded in socially constructed structures: cultural traditions, philosophical schools, social mores, legal systems. This book seeks to show how, in the longue durée, human rights as political phenomena can aspire to eventual universal purchase. The idea of a human rights state is a means of advancing a realistic cosmopolitanism.
As social constructions, human rights are contingent norms. That is, their validity depends on humans regarding them as valid. To construe the validity of human rights as relative to the humans who construct them is to view human rights in their element of moral relativism. It is to view them in their medium of historical and cultural perspectivalism. It is to view them as essentially "political" in nature. A specifically political social construction is a contingent, this-worldly idea. Its moral potential cannot be harvested unless it is always open to contestation, reinterpretation, and adaptation. Its moral potential needs a community open to negotiation and compromise in the effort to achieve agreement among participants on matters of human rights. The forging and reforging of agreement on human rights can still lead to a nonidiosyncratic perspective. In a postmetaphysical landscape, a nonidiosyncratic perspective replaces what religion and metaphysics regard as perspectives true or valid universally or a priori or eternally.
A nonidiosyncratic perspective is true or valid because it is held consensually, not because it is inherently neutral or acultural or transcendent. And if the validity of human rights is contingent, fallibilistic, and locally embedded, truth and justice at any given time refer to a temporary report from the field of experience and inquiry, a "snapshot" for current orientation, always revisable. Understood in this relativist sense, truth and justice are neither impossible nor drained of their capacity to motivate behavior. Rather, both truth and justice are driven not by some epistemological imperative for objectivity but by a pragmatic imperative for desired results. As social constructions, human rights are not some absolute or timeless cornerstone for moral theory. They are a "rhetorical vehicle" that can convey various meanings under different circumstances and can serve multiple purposes in different contexts. Among these meanings and purposes are elements of justice, such as rights to life, safety, and personal liberty; to belief, expression, and conscience; to privacy and property.
On this approach, human rights are one more example of what human culture can imagine. While their historical achievement would be an extraordinary event in human history, human rights are not themselves something special or extraordinary. They are not the work of extraordinary individuals or groups, and the most common people in the most ordinary of circumstances can imagine and create them. They do not require any special way of thinking. They work with readily understandable intuitions, such as the moral usefulness of putting oneself in the other's shoes. They work with well-known ideas such as "prudential reciprocity," which motivates behavior along the lines of mutual benefit. Such mundane characteristics mark potential for beginning to develop a human rights consciousness in almost any community in which people can be motivated to practice reciprocity and are capable of putting themselves in the other's shoes.
Yet social construction is not just one more comprehensive view. It can coexist with a wide range of competing comprehensive doctrines. For example, it can cooperate with persons of faith who share the goal of advancing human rights. Regardless of its empirical, secular orientation within the social sciences, my proposal in no way seeks to dissuade the faithful from their faith. Even as I reject "theological and metaphysical foundations of human rights as counterproductive," I dismiss neither insofar as either offers an "important way for some people in some communities to access human rights language" (Wolfsteller 2014:496).
To dismiss any particular motivations to an embrace of human rights would defeat my pragmatic orientation. That orientation emphasizes the search for resources for advancing human rights. Resources might be found in some elements of local culture and experience. Further, human rights are best implemented from within the local community. And the local community best implements them. They are best implemented in terms that resonate as much as possible with that community—even as human rights also challenge the community to reimagine beliefs and practices in ways more human rights friendly.
Non-social-constructionist presuppositions, such as religious faith, can work in tandem with the social constructionism they reject, and that I advocate as more practicable and generalizable. They can work in tandem toward the same goal: to encourage a free embrace of human rights. Social construction does not require addressees of the human rights project to adopt a social-constructionist standpoint. (By human rights project I mean the project of advancing human rights globally, through persuasion. As for addressees, I focus on the citizens of nation states, as I explain below.) Social construction can reach individuals and communities without having to abandon, wholesale, their thick normative commitments. After all, most persons invested in supernatural revelation also accept claims of a very different sort—for example, those that lead to standard medical diagnosis and treatment.
One might argue that if transcendental norms can only be the product of imagination, then I am no less dogmatic than my adversaries, for example, the legal philosopher Michael Perry (2007). One might argue to the same conclusion if, as I assert, the moral self-ennoblement of human beings is precisely that of humankind giving itself norms of social and political behavior. Perry asserts that human rights are only coherent given a belief in God and in the "sacredness" of human beings. I counter that social constructions are not necessarily exclusive whereas every religion is. Even as it is hardly acultural, or presuppositionless, or unembedded in history and culture, social construction is never as particular as any argument grounded in revelation. It can work with rival approaches to human rights.
A Wholly Naturalistic Conception of Human Beings
I approach the human in the phrase human rights in terms of a wholly naturalistic conception of humanity. That conception takes human nature as biologically understood. It eschews supernatural explanations, whether theological or metaphysical. To be sure, human nature biologically understood guarantees nothing in a political way or otherwise in a value-driven sense. It entails nothing normative. Human rights, for example, cannot be derived from natural facts. That the genome of any one human individual can represent the genome of the species entails no moral norms, and the similarity of one person's DNA to another's entails no moral or legal obligations of one to the other.
A naturalistic approach to the human of human rights proceeds along several dimensions. Consider two. Consider the fact that all humans share the same genome. No one should be surprised if someone were inspired to give this fact a cultural overlay, perhaps in ways suggestive for the social construction of norms. For example, most human rights abusers identify their victims in terms of their membership in particular groups (religion, race, or caste, among others). In this context, the human rights idea could be advanced if at least some abusers come to realize that such memberships are in fact constructions. By contrast, the species-wide genetic identity of all individuals is not. To be sure, this biological "is" generates no normative "ought." But it opens up a human rights-friendly vantage point that will resonate with some people.
Second, cultural agreements on human rights can draw on natural emotional dispositions as a resource. That is, "natural" altruism can be fostered and institutionalized by cultural means, in various forms of socialization. Elsewhere I draw on research in neurobiology to suggest that mutualism and altruism are biological dispositions. They can be harnessed by various kinds of socialization. In this way they encourage sympathy and understanding for the idea of human rights. One kind of socialization, supported by a kind of "sentimental education" found in European intellectual history, encourages solidarity. It could buttress rationally motivated practices of solidarity based on human rights.
To be sure, some emotional dispositions are incompatible with human rights thinking. And most dispositions are complex enough to go in more than one direction. For example, sympathy for one's own tribe hardly entails barbarism toward other tribes—but it could serve such a basis. Where dispositions are compatible or even supportive of human rights thinking, they provide a standpoint—an internal standpoint, not imposed from outside—from which to identify human rights abuses. They provide a standpoint for identifying these abuses as they occur in behavior allowed or even encouraged in other areas of the same religion, culture, or tradition.
Such dispositions will never do the work that human rights advocates might hope for. Nor will another possible resource for advancing human rights thinking that I mentioned earlier: prudential reciprocity. But the fact that a particular resource cannot guarantee success, or that it might be deployed contrary to human rights, is a fact about the limitations of resources. To abandon resources if they cannot guarantee success, or guarantee against misuse, would be self-defeating.
Human Rights Advanced Through Persuasion, Not Coercion
Because human rights, like all moral norms, are social constructions, they can only be valid for their addressees if those addressees freely, self-reflexively come to embrace them. A free embrace is truly free only if it occurs not only at a communal level but at the level of individual members as well. Embracing human rights in this way requires institutionalized socialization. If these norms become entrenched in a community's social institutions—such as the legal order and public education—they in turn reinforce the development of individual human rights personalities. They will do so by socializing people into a solidarity based on the mutual expectation: local participants grant themselves human rights, and they mutually recognize each other's self-grants. Some cultural and psychological processes of cultural socialization offer resources here. For example, socialization into assertive selfhood is a cultural and historical process that endows addressees with the psychological wherewithal and self-confidence to claim human rights for themselves.
Socialization into assertive selfhood does not entail homogeneity. It does not lead to homogeneity as a homogeneous identity shared by all members of a political community. It generates no homogenizing, universally shared belief in some particular cultural construction of "human nature." It requires no world state unifying the plethora of competing cultures any world state would encompass. (I evaluate the idea of a world state, and alternatives to it, in the Coda.) On the contrary, members of a highly individuated society are integrated through "difference" rather than "identity." Georg Simmel showed as much more than a century ago. Social integration in complex modern societies involves individuals constantly weaving themselves into multiple "webs of affiliation" through interaction with members of a range of different social groups. Webs raise awareness for the interests and feelings of others as "others" and, despite all their differences, both group-based differences and differences among individuals. Simmel shows that webs of affiliation increase difference among persons rather than decreasing it. The individual increasingly differentiates him- or herself as the number of affiliations increases.
Someone socialized into assertive selfhood acquires the capacity to author his or her own human rights. To claim rights is the first step toward eventually gaining them, and assertive selfhood both reflects and motivates this moral autonomy. The human rights project facilitates the development of a personality structure of assertive selfhood. That project is one of collective political action. As such, it is one more resource for helping individuals develop assertive selfhood and a human rights personality. In part, the individual develops by recognizing others in their self-granting activity. And he or she develops by collectively challenging nation state- authorities to recognize and respect the self-granted human rights. This book is an extended argument for developing these kinds of activities, collectively, in a human rights state.
A human rights state would remedy the topsy-turvy world of rights that Brecht captures so well in Flüchtlingsgespräche. One element is the participant with his or her human rights personality able (in concert with others) to authorize and grant him- or herself human rights independently of a nation state's legal and political institutions. Such a personality is not necessarily "based on inner consistency, rational insight into the primacy of moral norms as well as a high level of self-reflexivity" (Wolfsteller 2014:496). A pragmatist approach can work with the cognitive and moral inconsistencies of real human beings. A localist approach is sensitive to the "historical specificity of political events and institutions" (ibid., 496). It is attuned to the power that inflects social institutions and relations.
Brecht makes the point that humans do not possess rights independently of nation states. He makes the point that nation states not individuals determine who is worthy of legal status, deserving of rights. He employs the Marxian trope of people reduced to behaving like things and things elevated to behaving like people: the person is reduced to an epiphenomenon of a formal document issued by a nation state. The passport, not the passport bearer, has status and influence on the border between two states.
But the point is not that laws are bad as such but that good law is law that serves human beings by empowering them rather than abusing human beings by excluding them from legal status. The notion of the human rights state is a way to solve the problem that Brecht captures in the case of the exile, the refugee, and the stateless person. And the device of the human rights state solves the problem for citizens of nation states that do not recognize human rights as well. For the idea of a human rights state is the idea of transforming nation states that do not recognize human rights into ones that do. Transformation proceeds through the political advocacy of common people who together would form a particular human rights state. The ultimate goal of political advocacy is a type of juridification just the opposite of Brecht's topsy-turvy world.
The ultimate goal is for these self-granted human rights to find recognition by nation states. They need state recognition to realize their aspiration to stable, consistent, and permanent validity that is effective in practical ways. The goal of juridifying human rights within a nation state (a topic I return to in the Coda) is the opposite of fetishizing law to the detriment of humans. Juridified, human rights will do the most to help people at the bottom of social hierarchies and oppressed minorities and socially marginalized groups to find or create protection from mistreatment. Activists who deploy human rights as a moral language to win for themselves the human rights they want is a primary step along this path. The ultimate step, to be reached in the distant future and only after much hard work and not inconsiderable good fortune, is to win, in part through the role played by the human rights state advocated in this book, human rights within a nation state.
Toward a Universal Embrace of Human Rights as a Contingent, Historical Achievement
To locate the validity of human rights in their addressees rather than in some global institution (if not in some otherworldly source) might seem to forfeit the aspiration of human rights to universal validity. But I argue that universal validity so construed does not forfeit that aspiration. I argue that it circumvents the metaphysical limbo of intractable debates over nature, source, contents, and entailments of human rights. That limbo generates puzzlements, not answers. It offers no techniques for application in the field of advancing human rights across national borders and across the globe. In fact, it works against the human rights project by leading to positions that exclude some groups of people from human rights.
Approaches across a wide spectrum of understandings of social justice all deploy exclusion as one means of identifying those who qualify for social justice or fuller forms of social justice. Consider five examples. The sociological theorist Niklas Luhmann (1998:1023) asserts that two people who are cognitively unequal—because one can reason better than the other—are, as a consequence, morally unequal as well. He who reasons better is, by virtue of superior reasoning, better able to guide his life by the normative principles of human rights. For the most prominent theorist of political liberalism in the late twentieth century, John Rawls (1993:41, 70-73), "outlaw regimes" exclude themselves from the rule of "reasonable and just law" and are justly vulnerable to intervention by liberal peoples. Jean-François Lyotard (1993:135, 141-142), who defines postmodernism as a "fatigue with grand narratives," regards freedom of expression as the single most fundamental human right. Man excludes himself from this right until he frees himself from "his animal nature" by subjecting himself to the civilizing formation of culture. Amitai Etzioni (2010), a prominent advocate of communitarianism, identifies people within liberal democratic communities who exclude themselves from human rights, indeed from all normative insight, because they are mentally ill or incline to the ideological distortions of popular culture or of fermented liquors or other chemical substances.
By contrast with these various approaches, my social-constructionist method follows a logic of inclusion. It renders human rights more accessible than anything offered by these alternatives. Social construction can do so because it allows local participants, by their own best lights, to develop human rights, and to do so locally. One chronic barrier to advancing human rights—abiding differences within and among communities, traditions, economies, political regimes, and ways of thinking—falls away for a method that begins locally and expands outward toward partial overlaps with other locally originating projects for human rights.
For what could be more inclusive than recognizing the human rights project as one in which, in principle, any person, anywhere, at any time, can participate? A project of potentially universal participation is a project of (socially constructed) universal content, a project of (socially constructed) universal validity—universal at least in potential. But this universal project is not universal because it is in any sense otherworldly. On the contrary, it advances human rights in ways entirely this-worldly. This-worldly are social constructions that can be undertaken by the participants themselves. Participants first need to be persuaded that they are capable of authoring their own human rights. Then they need to mutually recognize, within the group, their self-granted rights. At that point participants seek to expand those rights into the corresponding nation state. Self-authorship and expansion outward proceed through persuasion, not coercion. Persuasion takes many forms. This book emphasizes socialization, especially different types of education.
Participants Need Not Agree on All Aspects of Human Rights
Persuasion to freely embrace human rights does not require participants to overcome all their differences in belief and perspective. Complete agreement is empirically unlikely anyway, given the sheer complexity of the human rights idea. It is doubtful given the deep interpretability of so many of its terms and presuppositions. More important, persuasion need not place hurdles in the way of adherents of very different traditions who nonetheless might be persuaded to embrace one or the other idea of human rights. I agree with the spirit captured in a well-known characterization of the various members of the committee that drafted the United Nations' Universal Declaration of Human Rights: "we agree about the rights but on condition no one asks us why" (Glendon 2001:77). Agreement on some rights, in some applications, is enough to make progress; agreement on possible foundations is not necessary.
My project is not motivated by some prior commitment to human rights. It begins with the bare idea of human rights, at first quite indeterminate in meaning. Nor does it start with some agreed-on basis for human rights. It couldn't because the idea of human rights, as long as it is indeterminate in meaning, cannot involve bases. My project is guided by a pragmatic imperative for desired results. The pragmatist goal is not for everyone to agree on a foundation for human rights; the goal is for participants to be able to freely embrace and practice human rights on whatever basis, directed by whatever theory, given whatever presuppositions. This approach generates commitment rather than presupposing it.
Drawing on the spirit of a social scientific account of human rights, I do not believe that a commitment to human rights must be grounded in anything further than an intuition about justice, an interest in justice, a motivation to do justice. I do not believe that ultimate justification for people's normative convictions need lie outside and beyond human imagination and agency. Entirely unnecessary is divine intervention or metaphysical landscape, in either case waiting to be discovered by special minds. I seek a view compatible with social science, one that views human rights as something made not found. Social construction is such a standpoint. It investigates the ways that humans invent their normative grounds and have always invented their normative grounds. It assumes that any normative grounds whatsoever can only be invented by particular groups in particular cultures and contexts over time, usually modified and remodified and reinterpreted by successive groups as long as those norms have current purchase and have not become relegated to no more than an entry in history books. From a social scientific perspective, when it comes to practical guidelines for moral behavior—including human rights-oriented behavior—humans can rely on nothing but their own collective constructions.
All addressees of any human rights whatsoever can and should participate in the articulation, interpretation, and deployment of human rights. Doing so involves constructing, discussing, interpreting, and vernacularizing the human rights idea. It is the work of ordinary people, in democratic communities as well as in nondemocratic communities, influencing public culture. As I have already emphasized, participants are unlikely to agree on all points. They are more likely to generate a range of variation in their understandings, definitions, interpretations, and ideas about deployment. But consensus is not necessary for participants to form a group that is coherent in its self-understanding and adequately motivated. These very differences, generated by the participants themselves, are signal aspects of a self-determining political community that recognizes as legitimate both the process and the nonconsensual outcome. A process involving free expression and free association is, of course, much easier to realize in democratic communities. But sometimes it can also be possible in some nondemocratic communities. It does not require that all political communities be the same. It does not presuppose a world community. It does not undermine the current world system of nation states. But it certainly challenges all nation states from a human rights perspective.
Disharmony and disagreement can, in some cases, be useful and productive. The human rights project, like any nondogmatic normative project, must be fallibilistic, hence an open-ended quest, anticipating a more just world to come even as it can never completely or quickly realize that which it anticipates. For reassurance and guidance as to what rights are and justice is (rather than to anything not socially constructed), this project can only refer to humans themselves, not to gods or transcendental principles.
To be sure, it always matters a great deal if participants disagree about how best to identify, define, and apply human rights and about how to reconcile competing rights. (Thus Chapter 8 argues against construing democracy as a human right but is open to working alongside other human rights advocates who insist that democracy must be a human right.) The human rights project makes progress wherever participants can forge overlaps among competing belief systems. It achieves progress with each enlargement, however limited, of overlapping beliefs and commitments to human rights. Andrew Koppelman (2014:380) well grasps this point:
People with different metaphysical assumptions can and sometimes do converge on the same principles of human rights, but each of them gets there by reference to her own comprehensive view. This is what John Rawls had in mind when he argued for an "overlapping consensus" on the principles of political cooperation. In an overlapping consensus, [participants] may disagree about the ultimate foundations of the political principles that govern them, but they agree upon the principles, those principles are moral ones, and they are affirmed on moral grounds.The Human Rights State
Human Rights as Social Construction ends with a proposal for a "human rights state." It seeks to replace the nation state with a human rights state. By contrast, The Human Rights State does not propose an alternative to the nation state but rather its modification, namely the diminution of its territorial sovereignty to an extent necessary to make human rights possible as a domestically anchored institution, indeed as an aspect internal to its national constitution. This shift has two motivations. First, replacing the nation state with an alternative is exceedingly unlikely empirically. Correspondingly, doing away with nationalism (as Human Rights as Social Construction proposes) would be more difficult that modifying nationalism into a human rights-nationalism (which The Human Rights State attempts). To be sure, only some nation states might be capable of this modification, and such a development would represent a great advance in the human rights project even if that development were hardly universal. Second, the nation state need not intrinsically preclude human rights if it can be modified in the extent of its sovereignty. So The Human Rights State views the nation state, and several of its core features, as resources for advancing the human rights project, if those features might be modified in various ways, many of which I detail throughout the book.
In this book, by human rights state I mean a metaphorical polity constituted by interested, self-selected members of a corresponding nation state. Members constitute themselves as a human rights state by authoring their own human rights and mutually recognizing that authorship among themselves. A human rights state seeks to advance a free embrace of human rights in the corresponding nation state. It seeks to advance human rights as an internal feature of the nation state, in short, to encourage local political and legal systems to generate domestic legal obligations to abide by human rights. By way of introduction to this notion, I first distinguish a metaphorical human rights state from the state and the nation state. Then I sketch the tense relationship between a human rights state and the corresponding nation state. Finally, I characterize the human rights state in terms of practical strategies toward justice without borders.
A Metaphorical Human Rights State as Distinguished from the State and Nation State
By metaphor I mean a polity of the imagination, a polity without territorial component because it exists in the minds and behaviors of the participants. They practice their self-granted human rights among themselves as a model and example for the corresponding nation state. While one cannot be a member of a metaphor, one can be a member of a political initiative or social movement, one guided by principles. I do not advocate a metaphorical understanding of human rights; I advocate metaphor as a device for practical effect. I propose a metaphorical understanding to be realized in the world, in relation to a state.
Neither political institution nor legal system, a human rights state constitutes a critical moral standard. As a critical moral standard, the human rights state is more than an idea; it is political initiative. Its makeup is unusual: activists united in promoting human rights within the corresponding nation state, activists who mutually recognize each other's human rights, activists who practice human rights among themselves and in their relations with others. It is a social, indeed political, organization that displays patterned behavior and is guided by certain rules.
By state, as distinguished from a nation state in particular, I mean an apparatus primarily bureaucratic-administrative: the legally defined organization of divided powers and formal procedures for deciding everything from political representation to public policy to tax collection. By contrast, a nation state embraces the pre-political solidarity generators of blood and ethnicity, or language and religion, or beliefs about a shared fate, or some combination, perhaps with other generators as well. The correspondence between a territorialized state and a population geographically bounded defines membership in a nation state. That correspondence constitutes a "nation." Many members belong to a particular nation on the basis of their territorial nationality. To belong means not only to identify with that territory, individually and together with others, but also, in some cases, to derive specific rights and duties from it. Inclusion in a nation always entails the exclusion of nonmembers.
A human rights state aspires to global institutions that leave a great deal of administrative and other matters to sovereign states, while internationalizing the recognition and defense of human rights even against offending sovereign states. A community of human rights states (which I sketch in the Coda) could one day culminate in the creation of global institutions that would leave a great deal of administrative and other matters to sovereign states but that would internationalize the recognition and defense of human rights.
The Tense Relationship Between a Human Rights State and the Corresponding Nation State
Ideally there would be one human rights state corresponding to each nation state in the world (or corresponding to other forms of governance where the nation state is not the primary locus of power, such as tribes or corporations). But the possibility of even one human rights state does not require that every last state embrace human rights.
A state that already observes human rights is not itself a human rights state. Such a state does not need a human rights state precisely because it already observes rights. The human rights state is a means to encourage a nation state to adopt these rights.
I imagine many different human rights states. Each would have its particular membership. Each, its distinct range of understandings of human rights. Each, embedded in its local cultural contexts. Each, a critical moral standard by which to measure the corresponding nation state with respect to human rights recognition and adherence. Thus the members of any particular human rights state do not include all of humanity. But if all nation states embraced the human rights advocacy of the corresponding human rights states, all of humanity would be members of a human rights community.
A human rights state stands in tense relation to a nation state. Tensions persist between a nation state and a human rights state as long as the nation state resists the human rights state's efforts to get the nation state to adopt cosmopolitan human rights as one of its regular, internal, domestic features.
A given human rights state is formed primarily of citizens of a corresponding nation state, and a given human rights state stands in the greatest tension with a corresponding nation state that rejects human rights altogether. Citizenship in the corresponding nation state is no requirement for membership in the human rights state. But for practical reasons most members of the human rights state likely will be citizens of the corresponding nation state.
The Human Rights State in Terms of Practical Strategies Toward Justice Without Borders
I support my proposal for human rights states with an array of practical strategies of solidary groups within a nation state seeking to diminish nation state sovereignty to the extent necessary for human rights to become valid across and despite national boundaries. I sketch these strategies in the chapter-by-chapter overview below.
To be sure, a human rights state cannot deliver anyone, or any nation state, directly from the myriad, often-intractable problems of modern political community. It cannot create conflict-free political communities or untroubled trans-state relations. It cannot end the constant need for social, political, and legal struggles, or for negotiations and compromises at all levels of political community. But it can contribute to making human rights more widely available in a world of nation states. It can do so even as it implies no single modality of membership in political community, nor a uniform one. It contributes to an abiding aspiration of a realistic utopia of universal human rights.
That utopian vision begins with the hunch that human rights can be a mundane, everyday political movement of ordinary persons in many places (if not everywhere equally, and not at all times). To be sure, some political environments make human rights advocacy very dangerous; others suggest its utter futility. This book works this hunch into an insight by reimagining state sovereignty as compatible with sovereignty-defying human rights. It decouples the having of rights from the territory that today is generally the condition of having rights. It displaces to the individual the bordering functions of the nation state. The ultimate goal of what could eventually become an international movement of human rights states is justice without borders, an aspect of universal justice. This book adumbrates elements of one path to that goal. But justice without borders is not a world without borders. It is a world of borders modified to permit human rights within nation states.
The three chapters that make up Part I develop key features of a human rights state. Chapter 1 urges an idea of human rights that members of a group would grant to themselves within or alongside a particular nation state. Chapter 2 frames human rights as deterritorialized in a way historically unprecedented: they would obtain in the person of a human being rather than, as now, because he or she happens to stand on a particular territory that happens to embrace human rights. Chapter 3 renders human rights, now reconceived, as a protective boundary displaced from the nation state to the human body.
Consider now each of these chapters in detail. Chapter 1 develops the notion of a human rights state along six dimensions: first, as a metaphor; second, as plural in number, with different human rights states overlapping with each other; third, each human rights state is capable of constructing human rights as "status functions" with "deontic power"; fourth, these functions and powers effectively deterritorialize human rights; fifth, each human rights state exists alongside a corresponding nation state and alongside international organizations; finally, different human rights states together form an international political community, not a world state but a kind of Kantian federation.
Chapter 2 unfolds one of the ways in which the members of a human rights state constitute it. It displaces the locus of rights from national territory to individual participants. This chapter transfers the basis of human rights from national, territorial belonging to human action and political performance. Then it explains how individuals would be motivated to participate in a human rights state. Third, it explicates participation in part as the donning of a "human rights backpack." It ends by analyzing citizenship in a human rights state as the nonformalized power of its participants, a power not tied to the nation state.
Chapter 3 examines the failure of territorialized citizenship to protect against enslavement and the nonterritorial alternative. Then it considers the single most important route to diminishing slavery—namely, reducing poverty—and considers various difficulties involved in poverty reduction. To facilitate progress in the face of these difficulties, it develops a procedure parallel to the backpack of Chapter 2. It proposes construing the human body (and the bodies of slaves, in particular) as analogous to political territory and it proposes displacing boundaries from nation state to the body of the human rights bearer. It proposes construing the body as its own bordering capacity. It deploys this model by criticizing nation state territory that cannot or does not prevent slavery. It criticizes nation state territory on the basis of a different kind of territory: the moral territory of the self. It then works out three respects in which the body as symbol challenges nonprotective citizenship. And it shows how this model can internationalize domestic opposition to slavery.
Three chapters compose Part II. They deploy the metaphor of a human rights state as a politics of persuasion, not coercion. They deploy this metaphor in three widely divergent venues: Chapter 4, in a university curriculum; Chapter 5, in post-authoritarian Eastern Europe; Chapter 6, in the rapidly developing digital technology. In greater detail: Chapter 4 explores ways in which Western youth at university can develop and deploy thinking about human rights as a cognitive style. A cognitive style oriented on human rights rests on two presuppositions: that human rights are social constructions and hence that they are morally relativist and perspectival. The chapter shows how human rights, in terms of a cognitive style, might approach the practice of child labor in general and child-labor-encouraging aspects of poor agrarian communities in particular. Then it specifies normative bases of a human rights style, bases that emerge from its analysis.
Chapter 5 turns to informal, political education in the newly democratizing countries of Eastern Europe. Emphasizing the importance of path dependency for the possible success of a civic education driven by a human rights cognitive style, it analyzes the role of several institutions in developing potential for a human rights culture. First it develops an approach to human rights advocacy by building on the notion of cognitive style introduced in the previous chapter. Then it situates that notion in the context of civic education. Third, it considers forms of civic education toward encouraging active civic participation. Finally, it sketches three models that deploy this approach in diverse educational settings in liberalizing communities today.
Chapter 6 extends the concern with how the human rights project can be advanced by examining the human rights potential of uncoupling, in cyberspace, the individual's social and political identity from his or her social and political voice. First it identifies the Internet's general potential to advance human rights, as well as some of the problems that discourage that potential. In particular, the Internet can advance the cause of human rights by changing civil society by means of digital abstraction from human bodies and national borders. It can advance human rights also by facilitating critical public opinion. The chapter then limns the parameters of possible Internet contributions to the human rights state. The last section examines the intersection of culture and nature in digital technology.
Part III, made up of the last three chapters, addresses several of the challenges faced by the human rights state. Chapter 7 asks: How can someone swear allegiance to both a national identity and the cosmopolitan identity of human rights? Chapter 8 asks: If democratic communities are distinctly friendlier toward the human rights idea than are nondemocratic communities, is democracy itself a condition for the possibility of human rights—in a world much of which is decidedly nondemocratic? And Chapter 9: Can human rights ever be advanced through humanitarian military interventions, even in cases of grave human rights abuses?
Consider each in greater detail. Chapter 7 rejects arguments that regard human rights and patriotism as somehow naturally or internally compatible. It combines the conviction that human rights require a political, territorial space with the conviction that motivation in political community is unlikely absent emotional affect. It combines these convictions by making the human rights point of view integral to a citizen's point of view as a citizen. It does so first by developing human rights patriotism as a politics of metaphor that, second, leads to a transnational patriotism that, third, is a constitutionally supported attachment both national and cosmopolitan.
Chapter 8 shows how the rule of law advances human rights globally more effectively than democracy. It shows that, however ambitious it is in some nation states, it is less ambitious than the development of democracy. To determine what might best be constructed locally as a human right, it proposes the capacity of the candidate norm to be freely embraced by its addressees. It then argues that the rule of law is the better alternative to constructing democracy as a human right. Third, it examines the noncosmopolitan quality of democracy, as well as the rule of law and the possibility of self-determination even in the absence of democracy. Finally, toward advancing the human rights project, it proposes the legalism not of democracy but of the rule of law.
Chapter 9 asks: From a human rights standpoint, what conditions of brutality and oppression justify coercive intervention in a sovereign nation state? To answer this question it addresses the goal of humanitarian intervention as well as the paradoxical status of state sovereignty. Then it argues that sovereignty is necessary for human rights and suggests a realistic understanding of state sovereignty in the context of humanitarian intervention. It then advocates a human rights minimalism, one neither value neutral nor nonpartisan: the minimalist goal of intervention is to stop the killing, nothing more. For intervention cannot do the work that only domestic politics can do, including the work of a human rights state. The chapter argues for unilateralism rather than multilateralism in most cases. It finds no universal a priori responsibility to protect.
A brief coda sketches one urgent area for future work: the problems and prospects of a community of nation states, each member having constitutionalized human rights domestically. An association of members sharing a domestic commitment to human rights revises contemporary notions of both national sovereignty and political territoriality. And, not least, it reworks the normative grammar of statehood in terms of domestic cosmopolitanism.