- Which Rights Should Be Universal?
In this book, William J. Talbot argues for the universality of, now, human rights. I say "now" because for Talbott, philosophizing about human rights is a work in progress. Legal positivists tend to affirm that the much broader international consensus underlying human rights declarations and conventions (treaties) legitimizes the claims to entitlement that they spell out. That consensus reflects the influence of specific countries' progress toward the rule of law and constitutional rights.1 Talbott may be called a historical and societal positivist. He rejects theories of human rights as self-evident revelations of God-given truths, such as those affirmed in the Declaration of Independence, with its famous proposition "that all men are created equal and endowed by their Creator with certain unalienable rights."
Talbott's alternative vision displays a historical and social positivism. Norms of human rights, he says, were not conceived "top-down" by moral philosophers and governments alone, but rather as the end result of a historical "bottom-up process" of "moral development" and "social transformation."2 "[T]he proposition that humans should have certain legally protected basic rights is a partly moral, partly empirical discovery based on thousands of years of accumulated experience of human existence."3 That process includes the fruits of discourse, contestation, and social movements emerging from below to overturn opinions of established moral and political elites within various societies. Only after millennia of development, in modern times, did the process yield the formalized concepts of rights and then human rights.
This ongoing process occurs within what used to be studied as the political community of governors and governed who share what is to them legitimate government. Thus, in effect, Talbott's rooting of human rights development in social-political processes recalls work of Karl Deutsch, Ernst Haas, and David Easton, which pointed to the importance of political communities for integrating, sustaining, and shaping political systems.4 It also lends support to the idea (engaging this writer) of the interdependence of mutually sustaining and interdependent human rights and political communities and their theory and practice in various political communities.
Talbott's social positivism prompts him to reject any claim to moral or empirical infallibility for his thinking and choices. He links his conception of the societal origins of human rights with Jürgen Habermas's emphasis on ongoing social discourse in building political systems, including what Talbott terms [End Page 281] "rights-respecting democracy."5 In that qualification, he recalls the point of Jack Donnelly regarding the importance for human rights observance of expanding democracy from majority rule alone to rule with protection for minority rights.
Scattered throughout the book are Talbott's terms of art that give familiar concepts different labels. This can both clarify, and obscure, connections with others' thinking. Witness his positivistic espousal of an "epistemically modest, metaphysically immodest moral philosophy."6 Then there is the matter of basic rights (those that should be universally recognized). Talbott questions John Rawls' acceptance of autocracies as long as they preserve a modicum of rights. This he does for several reasons. Among them are his concerns with the inadequacy of such rights for securing individual autonomy and for continuing the social quest for fuller meanings of human rights. Drawing on Henry Shue, Amartya Sen, Martha Nussbaum, and others, Talbott derives his list of nine basic, universal rights in the course of the book: rights to physical security, physical subsistence, children's rights, rights to an education, freedom of the press, and freedom of thought and expression.
Ninth on Talbott's list are "political rights," which he defines as "democratic rights and an independent judiciary to enforce the entire package of rights."7 Here he departs from the widely employed distinction between civil rights, the rights to due process, privacy, inviolability, and political rights (to non-discrimination, expression, information, assembly, association, voting, and other direct political participation, and a government whose authority rests on the will of the people). That departure from the widely encountered division between civil and...