The Heart of Human Rights by Allen E. Buchanan (review)

This is a massive book that covers so much ground that nothing of review length could do it justice, so I’ll focus on what I believe is the most interesting and fruitful aspect of the book—its assessment of whether the legal order of international human rights is, at present, capable of anything more than a diagnosis of global problems. Put otherwise, can this system to which so many look for remedies actually offer remedies, or is something more needed to fix the world’s more entrenched forms of injustice?

Before we dive into that question, let us glance at the book’s broader ambitions. Allen Buchanan does a good job taking the reader through many of the dominant schools of philosophical thought about human rights, asking whether any offer adequate justification for their positions. He does justice to what each position asserts but ultimately argues for taking international human rights as a legal practice to be viewed instrumentally for its usefulness rather than as a “mirror” to any one set of original principles. Concerns that rights discourse is too individualistic are overstated, Buchanan insists, because human rights always focus on the social setting in which conditions for leading a good life must transpire. We just do live with others, and rights discourse is one way we have found to manage conflicts that inevitably arise between persons and groups. Many who argue for rights for individuals on a priori grounds of human dignity worry that any other approach threatens to sacrifice individuals to consequentialism, but Buchanan contends that one can recognize the importance of securing public goods without denying protection to individuals. He also reminds us that protecting individuals does not solve every problem of injustice, as rights regimes can coincide with systemic discrimination. One must look at the small and large pictures simultaneously in order to do justice.

That is why Buchanan argues for an “ecological” view of the legitimacy of human rights legal institutions: “it is often not possible to determine the legitimacy of an institution in isolation; instead, its legitimacy may be a function of how it fits into a network of institutions.”¹ If we think of the legitimacy of international human rights law in this way, the question is not only whether the United Nations Security Council, treaty-making bodies, or the International Criminal Court are legitimate, but how all these parts of the larger whole operate together to provide what constituents need and expect. And if that is how legitimacy is created, then there is also room for nongovernmental organizations (NGOs) in international human rights law, even though they are, as Buchanan puts it, “reliable external agents to gather and integrate the information and make it available in understandable form to relevant stakeholders.”² So, though NGOs are external to states, and must be in order to be legitimate, that legitimacy also depends on how their work serves the legitimacy of states by offering neutral judgments about states’ human rights records.

The worry remains that a robust international system is not compatible with individual states’ constitutional democracies. Buchanan visits both sides of the problem and argues that, though international human rights law may modify constitutional democracies’ policies, at times without democratic authorization, the risk may not be more weighty than that posed by the kind of indeterminacy that always is part of law. He adds, however, that one should not blithely dismiss concerns about loss of self-determination when international law is not treated carefully by domestic jurisdictions. Instead of posing the problem as a false dilemma—international rights or domestic constitution—Buchanan recommends judgment: the common practice of balancing competing values.

That leads us back to his main idea: human rights as they are practiced at present are largely a legal phenomenon (which means we escape the need to agree on a moral foundation for them), and the legal system created to express them may not be up to some of the...