Against Human Rights Skeptics

• Published date: 01 December 2023
• Author: Tomáš Sobek
• Date: 01 December 2023
• DOI: http://doi.org/10.1111/raju.12392

Ratio Juris. Vol. 36 No. 4 December (314–332)

Against Human Rights Skeptics

TOMÁŠ SOBEK*

Abstract. The main goal of my text is to generalize Alexy’s explicative argument against human

rights skeptics in order to minimize the overall room for their escape. This argument tries to show

that any attempt to intersubjectively justify the nonexistence of human rights as moral rights nec-

essarily commits the so- called performative self- contradiction. Alexy worries that the effect of his

argument can be weakened by a group reduction of discourse. But I will argue that this worry is

overstated because the price of such a reduction is much higher than Alexy estimates. I will then

turn to the issue of moral relativism. I will try to show that the explicative argument, if suitably

generalized, can cope even with human rights skeptics who think in terms of moral relativism.

1. Introduction

We live in an age of human rights, but that does not mean that the moral ground

of human rights is self- evident. Of course, no one disputes the very existence of

human rights as legal rights. We can observe the life of human rights in the insti-

tutional reality of international law and national legal systems. However, if human

rights as legal rights are based on an intention to “positivize” human rights as

moral rights, then the skeptical question arises: Do human rights as moral rights

really exist?1 I will deal with the so- called explicative argument formulated by

Robert Alexy and directed against human rights skeptics. This argument tries to

show that any attempt to intersubjectively justify the nonexistence of human

rights as moral rights necessarily commits the so- called performative self-

contradiction. But Alexy’s argument can be objected to: What if a human rights

skeptic avoids discursive commitments? Alexy responds that an individual must

make an existential decision to fully realize his discursive potential. But, the

1 Philosophers have been intensely debating the very nature of human rights for more than two

decades now. Some theorists regard human rights as moral (or natural) rights that we have

simply because we are human beings (or persons). Others believe that the distinctive nature of

human rights is best understood by focusing on their function and realization in the practice of

political institutions. My article has no ambition to engage in this interesting and important

discussion. However, the skeptical question I want to address is related to the first approach.

See, e.g., Etinson2018.

* This paper is the result of research activities supported by the Czech Science Foundation

within the framework of Grant GA ČR GA20– 10464S, Contextual Relations of Justification of

Human Rights as a Problem of Legal Philosophy. I thank Martin Hapla, Zdeněk Trávníček, and

two anonymous reviewers for their very valuable feedback.

© 2023 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,

which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial

and no modifications or adaptations are made.

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Ratio Juris, Vol. 36, No. 4© 2023 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Against Human Rights Skeptics

objection continues, What if one doesn’t make that decision? The main goal of my

text is to generalize Alexy’s explicative argument in order to minimize the overall

room for the skeptic to escape.

Prof. Alexy conceptualizes human rights as a kind of moral rights. Human

rights as moral rights belong exclusively to the ideal dimension of law. They can-

not be invalidated by norms of positive law but they are standards for the critical

assessment of positive law. On the other hand, fundamental rights (Grundrechte in

German) are legal rights that have been recorded into positive law with the inten-

tion of transforming (“positivizing”) human rights as moral rights. This intention-

alist approach allows us to conceive the catalogs of fundamental rights of different

constitutions and international agreements as different, more or less successful,

attempts to transform human rights as moral rights into positive law (Alexy2006,

17). Obviously, not all moral rights are human rights. For example, my wife holds

a moral right to my fidelity, but that moral right is not a human right. Fortunately,

I do not need to deal here with the precise definition of human rights as a particu-

lar subset of moral rights.2 My goal is to answer the skeptic about the existence of

something, so if an answer is overinclusive, it cannot be detrimental to this limited

goal. However, even this task presupposes some conception of the nature of

human rights because “[e]ven a skeptic about human rights, like a skeptic about

the existence of unicorns, needs a tolerably clear idea of the nature of the thing

whose existence he is skeptical about, before explaining his reasons for doubting

that anything satisfies the conditions for being a thing of that sort” (Tasioulas2012,

19). Alexy’s approach is Kantian in its foundation. His argument is applicable

against skeptics who recognize that the property of being an autonomous agent is

a sufficient condition for human rights as moral rights. In other words, any con-

ception of human rights that allows inference from “X is an autonomous agent” to

“X is a human rights holder” is in play (Griffin2008, 34).3

First, I will explain Alexy’s explicative argument. Alexy worries that the effect

of his argument can be weakened by a group reduction of discourse. I will argue,

however, that this worry is overstated because the price of such a reduction is

much higher than Alexy estimates. I will then turn to the issue of moral relativism.

I will try to show that the explicative argument, if suitably generalized, can cope

even with human rights skeptics who think in terms of moral relativism. Alexy’s

argument is based on an understanding of the presuppositions of participation in

discursive practice. But this argument will not be applicable in its entirety unless

we also take into account the presuppositions of deliberate avoidance of discur-

sive practice. Under certain conditions, one can implicitly recognize the human

2 Alexy offers such a definition: see Alexy1998.

3 Alexy’s explicative argument does not adhere to the orthodox conception of human rights,

according to which every human being holds human rights. For example, a human being with

severe congenital dementia is not, and never has been, an autonomous being. He is unable to

participate in discursive practice, so the implicit recognition of the explicative argument does

not apply to him. This problem can be treated in at least three ways: (1) The orthodox concep-

tion of human rights is wrong. (2) Nonautonomous human beings hold human rights by virtue

of discursive idealization. (3) The scope of human rights holders is a substantive ethical issue

that is decided by discourse. A thorough analysis of this problem, however, would be a digres-

sion from the main topic of my text.