THE TERM “HUMAN RIGHTS” conjoins two distinctive concepts—“human” and “rights”—to form what has become a distinctive concept and the basis for a vast set of institutions, practices, and critical debates. Within the now voluminous and multidisciplinary scholarship on human rights, it is the latter of the partner terms, “rights,” that has attracted the most systematic attention. Scholars have long asked and argued about where (human) rights come from, what legitimates them, what counts as a right, what makes for a distinctively human right, what is their goal or purpose, what institutional forms best protect them, and how they operate in practice.1
What about the nature or character of the “human” assumed in human rights theory and practice? Granted, since at least the 1980s, when the Asian values debate was raging and feminist critiques of human rights were gathering steam, the status of the human assumed in human rights has been the subject of reflection and debate.2 Indeed, as we will explore below, critical scholarship contesting the putative universality and neutrality of the human whose rights have (at least formally) been recognized and protected has, in the past twenty years, arisen from many different quarters. Nevertheless, the “human” in human rights has undoubtedly been the minority partner. The purpose of this volume is to have it step into the limelight, with a specific focus on how the subject of human rights, as a discourse, law, and practice shapes how we understand the human and how humanness is experienced, and to illuminate the political and contested nature of these processes.
To bring the human of human rights into sharper focus, we propose a slight but significant shift. Rather than talk about the human per se, the term that binds this volume together is the subject of human rights. The value of this alternative terminology lies in the multiple meanings of the word “subject,” which allow for a multifaceted examination of the nature, limits, and possibilities of the human of human rights. Indeed, this slight shift in language also points to the cogency of expanding the rights traditionally reserved for humans beyond this species boundary. For whereas the term “human” reinscribes a natural unity within (along with a boundary around) a species to whom rights adhere, the term “subject” opens the question of the identity of the rights holder to scrutiny and transformation.
Shifting our focus to the subject of human rights opens up three lines of questioning that organize this book. In this introduction, we will discuss each of them, both to summarize the existing literature and introduce the chapters that follow. To make clear what each line of questioning entails, we commence with a bird’s-eye view.
1. Who is the subject of human rights? One of the claimed strengths of the human rights approach has been its defense of all persons, irrespective of their ascriptive characteristics. This universal conception of the human person has, according to classical human rights theory, provided human rights with normative purchase against alternative conceptions and political practices based on cultural, gender, racial, religious, ethnic, and other forms of particularism and hierarchy. That said, it is clear that human rights theories and institutions have not historically included all human beings within their conception of the human. The questions that needs to be asked, then, are how is the subject of human rights defined today, and who and what does it include and exclude?
2. Who is subjected to human rights? If the first sense of subject concerns those whose rights ought to be protected, the second subject is the one who is the addressee of human rights or, put otherwise, the one whose actions must be subjected to human rights standards. Strictly speaking, in human rights law, the state is the subject of human rights, but this formalism belies the actual operation, which necessarily implicates human subjects who operate within state institutions. In this regard, the “state actor” subjected to the demands of human rights includes a wide variety of subjects: political representatives who make and amend laws; people who act as agents of the state in a range of institutions such as hospitals, welfare, schools, and social service agencies; and, perhaps most importantly, security sector and law enforcement personnel who are authorized to use violent means to implement state law and policy. Questions about how human rights ought to shape and subject the exercise of state authority provoke contentious debates about the tension between democracy and human rights, security and human rights, and efficiency and human rights.
3. How do human rights make subjects? Scholars and practitioners have long recognized that human rights do not simply represent and then afford protection to an already existing subject; in crucial ways, they shape and inform how people see and experience themselves, others, and the wider world. There is, in other words, a formative dimension to human rights discourse and practice, one that, whether intentionally or not, has the potential to establish the very subject it is said to enshrine. How this happens, and what kind of subjects human rights characteristically produce, are central concerns of this volume.
The subject of human rights is, in a sense, the substratum of human rights discourse and practice: it is that “thing” or, better yet, that being to which human rights are attached and owed, that being who is called to recognize and sustain them, and that being who is called into existence by human rights discourses and practices. Naturally, no single volume could hope to settle its meaning or range. That would not be possible, given its plurality. Nor would it be desirable, given its potentiality. Our goal as editors has been to bring the subject of human rights into focus and to systematically lay out the research questions and agenda that this focus suggests. With that in mind, we now take a closer look at each of our three questions.
Let’s begin with an obvious fact: if we take the French and American revolutions as the moment when human rights burst onto the political and constitutional scene, it is abundantly clear that such rights were not—and were not meant to be—universal. The “rights of man” (in France) and “certain unalienable Rights” (in the United States) were, at first, accorded to only a subset of the population, specifically white Christian men, and often only those with some measure of property or formal education.3 Yet, almost immediately after their having been declared, more and more kinds of people began to claim the right to be and, in some cases, came to be counted as subjects of human rights. Naturally, the ripple effect was small to start with, involving, as it did, variations on white Christian men. But then came a series of hesitant (and always potentially reversible) shifts and expansions—in religion, gender, and color—such that defenders and critics of human rights alike came to recognize that the universality of the human rights idea meant that the boundary of who could be included was always open to contestation. The historian Lynn Hunt ties the process to what she calls the universalizing “inner logic” of human rights:
The French Revolution, more than any other event, revealed that human rights have an inner logic. As the deputies faced the need to turn their lofty ideals into specific laws, they inadvertently developed a kind of conceivability or think-ability scale. No one knew in advance which groups were going to come up for discussion, when they would come up, or what the resolution of their status would be. But sooner or later, it became clear that granting rights to some groups (Protestants, for example) was more easily imagined than granting them to others (women). The logic of the process determined that as soon as a highly conceivable group came up for discussion (propertied males, Protestants), those in the same kind of category but located lower on the conceivability scale (propertyless males, Jews) would inevitably appear on the horizon.4
One important amendment that we would make to Hunt’s characterization is that the groups seeking inclusion did not so much “appear on the horizon” as insistently, and often with tremendous opposition and sometimes violence, place themselves there.5 Nevertheless, it is uncontroversial to observe that over the past 250 years, more and more kinds of people have pressed for inclusion and that, at least formally if not fully substantively, more and more groups of people have been acknowledged as subjects entitled to human rights. Reflecting on this historical trajectory, contemporary thinkers and defenders of human rights find themselves confronted with two pressing questions. First, how do we keep the expansion going? How, in other words, should we conceive of and advocate for human rights, and the subject of human rights, so that the inner logic Hunt describes reaches its ultimate conclusion and remains there? Second, how do we ensure that formal advances deliver the actual enjoyment of such rights to those who were not originally imagined as the subjects of human rights?
Several strands of human rights theory have emerged in response to the first question, each of which configures the subject of human rights in a different way, but all with an eye to securing its universality. Hunt’s own position is “sentimentalist.” On this account, the universal subject of human rights is one who is liable to suffering and injustice, and the human rights project is advanced by cultivating a widely, indeed global, felt awareness and sympathy for the suffering of even distant others.6 Beyond the academy, the notion that empathic connection will be the basis for extending rights to those who are currently excluded undergirds a great deal of human rights campaigning, as evidenced by the frequent use of imploring faces looking directly to the camera or of narratives highlighting the hopes, fears, and life projects of people whose humanity has been occluded.7 Another position is “foundationalist,” in that it seeks to identify foundational capacities or interests that all human beings share and have a highest-order interest in protecting. Such a capacity could, for example, be identified in “normative agency” (that is, the capacity to choose and pursue a conception of a worthwhile life), or it could be identified as an interest in “justification” (that is, an expectation that others give us reasons for their actions and beliefs). Either way, the subject of human rights is universal precisely because the capacity or interest in question is said to be universal.8 Further examples of arguments of this kind could be added, and it would be fascinating to see if and how they could be synthesized.9 The point we wish to make, however, is simply that several important strands in the philosophy of human rights converge on the claim that the subject of human rights is universal and inclusive of all human beings and proceed, from that basis, to found programs of human rights norm creation, diffusion, and education on it.
That said, many scholars and advocates who observe that in practice, formal advances in universal recognition have often failed to deliver rights to newly included subjects, push back against this universalist story. Skeptical of the promise that when groups formally become subjects of human rights, this will inevitably result in the realization of rights in their lives, the argument is made that what needs to be highlighted and understood are the sources and points of resistance to the translation of universalism from universalism in theory to universalism in practice. Several bodies of critical literature contend that the impediments to realizing the authentic universalism of human rights are not merely the effect of imperfect attempts at this translation. The criticism at work here is that the persistent particularism and exclusionary effects some groups experience arise from the substance or form of human rights themselves. Indeed, the very universalist rhetoric that has provided human rights discourses with a singular legitimacy and purchase may in fact render invisible the exclusions and hierarchies that they inscribe.
1. See Cruft, Liao, and Renzo, eds., Philosophical Foundations of Human Rights, Etinson, ed., Human Rights: Moral or Political?, Shelton, ed., The Oxford Handbook of International Human Rights Law, Douzinas and Gearty, eds., The Meanings of Rights, and Gearty and Douzinas, eds., The Cambridge Companion to Human Rights Law.
2. On the Asian values debate, see Bauer and Bell, eds., The East Asian Challenge for Human Rights. On feminist critiques, see Peters and Wolper, eds., Women’s Rights, Human Rights, and Charlesworth, Chinkin, and Wright, “Feminist Approaches to Inter national Law.”
3. See Ishay, The History of Human Rights, 108–116.
4. Hunt, Inventing Human Rights, 150.
5. See Dembour, “What Are Human Rights? Four Schools of Thought,” and Stammers, “Social Movements and the Social Construction of Rights.”
6. Hunt, Inventing Human Rights, Rorty, “Human Rights, Rationality, and Sentimentality,” Sliwinski, Human Rights in Camera, and Lefebvre, Human Rights As a Way of Life.
7. See Chouliaraki, The Spectatorship of Suffering, and McLagan, “Introduction: Making Human Rights Claims Public.”
8. See Griffin, On Human Rights, for the argument from normative agency. See Forst, The Right to Justification, with respect to the interest and right to justification.
9. See Joas, The Sacredness of the Person, and Reinbold, Seeing the Myth in Human Rights.