Human Rights Reading: Nussbaum, Sunstein, Morsink, Beitz

A couple of experiences related to human rights recently got me thinking about what the basis is for their existence, and how to think about them as individuals, as political constructs, and his philosophical constructs. I hope to put together an essay that actually makes sense on that topic, but in the meantime here’s my thoughts on four of the books I’ve read as background reading.

Martha Nussbaum: Creating Capabilities (2011)

Of the four books listed here, I think this is the most useful for me personally. Two key concepts I got from this book are:

(1) They can be both a political construct and a philosophical construct.

(2) As a political construct, human rights can be an “overlapping consensus”, as a conclusion that can be arrived at from different philosophical constructs: as an Aristotelian observing humans as animals, a Mill-style utilitarian, from various religious traditions, as a Marxist, et cetera.

Ironically, these are not the two concepts of the book is really about. They’re just two concepts that Nussbaum goes over as she is making her way to her primary thesis, which is to describe her “species” of human rights, which is the Capabilities Approach. The capabilities approach I think is a helpful incremental addition to human rights theory, in that it adapts it slightly to make it more inclusive, especially in dealing with people with disabilities and nonhuman animals.

Nussbaum also gives excellent ripostes to arguments that human rights are a sort of cultural imperialism, partly from the way the Universal declaration as drafted, but also that the overlapping consensus extends to other cultures whose values mirror many of those are found in human rights. More importantly, she points out to the reality that the international adoption of human rights instruments is been stronger and a lot of non-Western countries than it has in Western countries (especially the United States as to social economic rights), with India and South Africa as the two most notable examples, using human rights in part as anticolonial political constructs.

Richard Rorty’s Human Rights, Rationality and Sentimentality (pdf) is also very much worth reading. I don’t really agree with his lack of grounding of human rights in some empirical reality – I think human rights does line up with actual common human needs in most cases – but he makes excellent points about how the purpose of human rights should be more pragmatic and about changing the world, rather than about establishing a perfectly coherent account. In this way I find he lines up a little bit with Martha Nussbaum, in that he prioritizes the political use of human rights over philosophical construction. For another way of saying it would be, that neither one of them is particularly bothered that they can’t give a unified logical explanation for why human rights are what they are, because they actually make people’s lives better. I do think, however, that Nussbaum gives the more coherent account with the use of “overlapping consensus” because for different people there are very real groundings in human rights that cause them to be persuaded that they are worthwhile.

Johannes Morsink: Inherent Human Rights (2009)

The first thing to know about this book is that Morsink has paid more attention to the drafting process of the Universal Declaration of Human Rights than most people. This is very helpful because the UDHR is a watershed moment for human rights, and it’s helpful to understand what the process was that created it. The drafting process may not give all the answers to “why” or give complete philosophical grounding to the document. But it does help to rebut arguments of ethnocentrism of the declaration and enforce a sense of universality, and to understand how the specific words that were in the Declaration ended up there.

There are a dizzying array of philosophers who will give you different answers as to whether human rights are a valid construct, and how they came to be. Morsink’s central thesis is that all humans will have an immediate revulsion to most human rights violations, which forms a “shared conscience of humanity”, and that human rights would exist in all places and for all people, because they are “inherent” as the title suggests. I’m not sure this is ever explicitly stated, but it seems strongly implied here that the Universal Declaration is the best textual formulation of this because of the intent and grouping of its drafters, as approximately representative people who were reacting to the Nazi atrocities, but also trying to create something more permanent and universal.

He also defines himself as a “cosmopolitan”, which essentially means someone who, for the establishment of at least some moral principles (like human rights), groups humanity together first before relations or smaller communities. In Morsink’s words, cosmopolitans “look on the whole world as one unified ethical community, where all members of the human family have both their own inherent rights and the relative duties to respect the same rights of their brothers and sisters around the globe.” In this way he is very similar to Martha Nussbaum, who he discusses pretty extensively; Although Nussbaum is perhaps more careful to indicate that while cosmopolitanism might be part of her comprehensive worldview, it is not at all necessary to be a political supporter of human rights generally, or her capabilities approach, which are political, overlapping-consensus constructs.

Personally, I do buy into the sense of cosmopolitanism and inherence to a certain degree. I think there are historical contingencies to it – to this particular air on and type of civilization that we have – but since when I can be in any other civilizations anytime soon, that’s not such a great omission. I also wish he would’ve spent a little bit more time dealing with humans as animals, as part of inherency. In some cases he alludes to his inherence principle is something that is on the basis of a biological account of what humans are, which I think might bolster his some of his central principles of inherence and cosmopolitanism. But his primary line seems to be more on moral intuitionism, a sense that if you tell somebody about an atrocity, they will immediately condemn it is wrong. In this way seems to be a bit closer to Rorty’s human-rights-as-sentimentalism than Morsink thinks he is.

If you’re going to read several books on human rights, and cosmopolitanism and inherence seem plausible to you, then Morink is well worth reading. He is about par for academics on readability: while he does use some jargon and dive into side debates that seem sometimes of limited import, for the most part the text is straightforward and understandable.

The Second Bill of Rights, Cass Sunstein

This is not explicitly the human rights book, but it really is because it deals with the omission of social economic rights from the culture and law of the United States. Sunstein primary focus is on FDR’s administration, and how the new deal conceived of socioeconomic rights as one of its core projects. FDR was really engaged with a sense of “security” as addressing economic problems that threatened everyday Americans in the course of the Great Depression, but also in connection with the second world war.

I think one of the most remarkable parts of the book is near the beginning, and a section entitled “Roosevelt’s Realism” and summarizing the doctrine of legal realism is applied to property rights in the 1920s. Son Steen deals primarily with the legal scholars Robert Hale and Morris Cohen but also Jefferson, to make the point that property rights are a creature of government, rather than something that is inherent in each individual person. In other words, property rights are delegated by the community as a whole for the community’s benefit. In that account, often that delegation is private ownership and market forces. But it also has shades of Marxism, that those property rights can be withdrawn or at least dramatically limited when they’re no longer in the community interest. Sunstein quotes Roosevelt “the thing that matters in any industrial system is what it does actually teach human beings…”.

It deals with the specifics of the New Deal, and how Roosevelt formed conceptions of rights and freedoms, culminating (for purposes of this book) with his second Bill of Rights that he released to Congress in March 1943. I had never heard of this particular formulation of rights before, but it looks a lot like the economic and social rights that you find in the universal declaration of human rights five years later, like a right to adequate food, clothing, shelter, and medical care, among others. It’s longer than I want to put in here, but it’s worth a read by itself just to see what America could have been if it’d actually integrated fully into our legal system and our conception of ourselves.

The rest of the book, deals with how that didn’t happen. Sunstein deals with the apparent lack of a socialist tradition of the United States, but how nevertheless the Supreme Court seemed poised to accept a lot of these very socialist-seeming rights into the American constitutional order. None of this is explicit, but by slow drift in the same way that rights to privacy and same-sex marriage have been found in the Constitution in ways that more reflect social norms more than the words that are actually in it.

The deathknell for all this was the election of Nixon. (Which, I might add, from having recently partially read Perlstein’s Nixonland, was clearly a racist reaction to the idea that the New Deal and War on Poverty were largely attempts of out-of-touch elites to help blacks at the expense of middle-class whites . . . which all sounds uncannily familiar). Nixon appointed a bunch of conservative justices they quickly put an end to any rights based upon poverty. The the worst and most definitive of these was San Antonio School District v. Rodriguez, in which the court found that the state of Texas had no obligation to give equal quality of education to poor students and wealthy students.

Overall, it mostly seems like a shame that Sunstein’s book was released in 2008 and not in 2016 or 2019. Today Bernie is running essentially as an FDR-style candidate with a platform that strongly mimics the second Bill of Rights, with its emphasis on healthcare, education, and economic security. This book is a helpful reminder that the United States is not as much of an ideological outlier with respect to socioeconomic rights as it might seem from our current state of affairs; it’s just that the combination of racism and reaction combined to become powerful enough to suppress them, for (at least) a few decades.

Charles R. Beitz, The Idea of Human Rights (2009)

While this book was of some use for background reading on various debates around what the title suggests, I found it to be less than satisfactory in terms of helping me conceptualize human rights. I admire the goals that Beitz sets out for himself, and his purposes: in the introduction he says he set off writing this to determine whether skepticism of human rights can be resisted, and because the practice of human rights “is bound to seem puzzling”. I agree with this: the Universal Declaration kick started something that has taken off and become quite large, and it’s hard to figure out why that has happened.

However, I found Betiz’s model lacking, both in scope and effectiveness in addressing his self-imposed task. His conclusion is perhaps indicative: he feels that any theory of human rights should be “modest”,  understood as “responds to contingent historical circumstances”, and is just a way to “interpret the normative discipline implicit in the practice” of human rights. In other words, he seems to seek to describe human rights, especially as in national and international legal system, rather than something that ordinary people can understand is helpful in interpreting their everyday lives. And there’s not much more that a political philosopher can do than that, apparently.

The first 50 pages of the book are a summary of the facts of human rights “practice”, which is to say a description of how governments, NGOs, and international law used human rights.  The next 50 pages or summaries of prior theories of human rights, naturalistic theories (which includes Martha Nussbaum and Morsink, although Morsink’s main work on inherent human rights is not cited because it was concurrently released), agreement theories in which human rights are considered almost a form of social contract.

Not really satisfied with any of these, Beitz eventually gets to his own theory, or rather “model” as he calls it, on page 109, of a 212 page book, which seemed rather like a novel of which the first half is exposition, before the plot starts. Anyway, summarize his summary, the Beitz model has three elements: (1) human rights protect against “standard threats” to humans in a modern nation; (2) human rights apply first to the institutions of states; (3) human rights are matters of international concern.

The main problem I have with this is that it seems more like just a description of what human rights are, rather than an explanation of why we have them any why some people seem to feel they are more “real” than others. In some ways descriptiveness is helpful, but it’s a limited kind of helpful that does not immediate strike me as helpful guidance to making the world a better place.

Secondly I would object to Beitz’s model in that it completely omits individual humans from the picture. They’re only implied implicitly and that they can participate in the political process of the country that they belong in. In introducing his model, he does mention that he wants to consider “evidence of the public culture of international human rights found in its history and in contemporary public expression”, but to me that doesn’t seem like that really shows up in the model itself.

I’m a person coming to human rights with questions like “if I feel like people living in tents in my city have a right to housing, how does that fit in with the idea of human rights?” or “how does Medicare for all fit in with the idea of human rights”?, this book doesn’t really have a lot to offer. It seems almost entirely descriptive, and not in any ways that relate to individuals as they live their lives with respect to human rights; nor does did it give me much insight into why they became a thing in the 19th or 20th century.

Useful as background reading, perhaps, but I don’t feel like I walked away from this book with any conceptualizations that help me understand the world more than I did before.







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