Human rights as thought experiments.

• Author: Mann, Itamar
• Position: Response to article by Michael Ignatieff in this issue, p. 1

In his inaugural lecture as Munk Fellow, Michael Ignatieff offers a productive answer to one of the most fundamental questions of international legal theory: what are human rights? The urgency of his answer stems not only from what he has to say, but also from his perspective. Rather than writing from a God's-eye point of view, he situates the question in time and space. Ignatieff writes from Hungary, a country that has introduced some of the cruelest measures towards asylum seekers and that has for the last few years spearheaded European xenophobia. Since his address, legislation has gone forward in the Hungarian Parliament to grossly restrict the academic freedom of the important institution he heads, the Central European University. He is thus located at one of multiple epicenters of a contemporary global upheaval. And he writes from an expressly practical point of view. What is to be done?

Ignatieff's lecture is tremendously insightful, and I am grateful to the Journal of International Law and International Relations for giving me the opportunity to respond. To consider his answer, one might first distinguish between three traditional families of human rights theories: (1) human rights as legal norms; (2) human rights as moral norms, and; (3) human rights as social norms.

These are broadly generalized ideal-types--most commentators often cross between them. Yet it is helpful to analytically separate them and restate concisely the relative strengths and weaknesses of each. A clear view of the three suggests a fourth option Ignatieff only obliquely gestures towards: human rights as thought experiments. By transcending the three traditional paradigms Ignatieff makes a considerable contribution. Ultimately, however, his program is exposed to significant objections. I propose a different way of understanding the thought experiment of human rights.

THREE GENRES OF HUMAN RIGHTS

Understood as legal norms, human rights are composed of a more-or-less familiar toolbox of positive legal instruments--most importantly treaties. A legal answer is based on state consent, regarded as binding in a wide variety of contexts beyond human rights alone. Ignatieff only brushes by this type of answer, implicitly rejecting it as disappointing. The crux of the matter, it seems, is an age-old concern that without some grounding in an extra-legal source (moral imperative or social norm), human rights are unenforceable.

As moral norms, human rights consist of a vocabulary for "global justice," often articulated by philosophers and other theorists. The sought-after advantage here is that moral norms transcend the mere formalism of legal norms. A set of principles is expected to give reason to human rights standards and policies. Yet even when armed with a moral vocabulary, human rights do not necessarily enjoy increased enforceability. Rules and standards seldom promise more political acceptability simply by being morally desirable.

Yet another set of answers is that human rights are essentially social norms. According to this third view, human rights may be reflected in treaty provisions and/or the reasoned arguments of philosophers. More importantly, they express widely-accepted conventions of decent human behavior, upheld by ordinary people everywhere. If this is the case, we are set free of the enforcement limbo! Human rights rules reflecting globally held intuitions will be politically embraced and easily enforceable.

At the outset, Ignatieff finds this third option most...