Sunday, January 17, 2010

Sloane: Human Rights for Hedgehogs? Global Value Pluralism, International Law and Some Reservations of the Fox

Robert D. Sloane (Boston Univ. - Law) has posted Human Rights for Hedgehogs? Global Value Pluralism, International Law and Some Reservations of the Fox (Boston University Law Review, forthcoming). Here's the abstract:
This essay, a contribution to the Boston University Law Review’s symposium on Ronald Dworkin’s forthcoming book, Justice for Hedgehogs, critiques the manuscript’s account of international human rights on five grounds. First, it is vague: it fails to offer much if any guidance relative to many of the most difficult concrete issues that arise in the field of international human rights law and policy - precisely the circumstances in which international lawyers might benefit from the guidance that moral foundations supposedly promise. It is also troubling, and puzzling given Dworkin’s well-known commitment to the right-answer thesis, that his account of human rights renders answers to hard questions about those rights necessarily indeterminate, not only in practice (because of epistemic limits, for example) but conceptually. Second, every account of human rights based on avowedly objective moral foundations is inherently controversial and therefore often divisive. Dworkin’s is no exception in this regard, and in part for that reason, would be ill suited to a global order characterized, empirically at least, by pluralism at multiple levels: cultural, political, legal, and moral. Third, I believe it is a methodological mistake in general to seek to derive international human rights, as Hedgehogs does, from an antecedent conception of human dignity - rather than vice versa. Fourth, in the realm of international human rights, Dworkin’s value monism is neither persuasive nor practicable. Finally, inasmuch as Hedgehogs aspires to show that all values, properly defined, fit together in a coherent, reconcilable, unified whole, it is incongruous and anachronistic for the manuscript to describe sovereignty as a concept in conflict with human rights, such that human rights, at times, must “trump” sovereignty. Many international lawyers would argue to the contrary that the best conception of sovereignty in the modern era is not opposed to, but rather deeply rooted in, respect for international human rights. As an alternative to the account in Hedgehogs, I briefly suggest the basic contours of and justification for a more functionalist account of international human rights, which I have defended at length in a prior work. In short, it is more plausible and constructive, as Michael Igantieff has written, “to build support for human rights on the basis of what such rights actually do for human beings.”