Human Rights and Legitimacy

I wanted to say something theoretical, briefly, because it vindicates my life's work (at least the last five years of it). I attended a human rights symposium yesterday at the university in honor of a departing professor. There were three speakers: one from the European Council of Human Rights, one from the prosecutor's office at the International Criminal Court (which America is doing all it can to derail, we are so forward thinking!), and finally the professor in whose honor the symposium was held. My issues are with the third speaker, and he was the only speaker that did not offer a Q&A after his lecture!

He addressed attacks on "universal human rights" from three different sources; international actors (states, i.e., the United States), religious groups, and philosophers. I will only deal with the third. The criticism laid out by philosophers goes as follows: in order for there to be "universal human rights" there must be some way that these rights can be said to have universal validity, or derive from something universal. The lecturer reduced this to a "search for universal essences."

I will take that for argument...they must derive from a universal source or themselves be universally valid. An example of a universally valid statement is the old logic example: "All men are mortal. Socrates is a man. Therefore, Socrates is mortal." This is a judgment that moves from the universal to the existential/particular...this is a logically valid step. What cannot be done in logic is move from the particular to the universal. Such a judgment lacks validity.

The lecturer conceded that the search for universal essence poses a problem to a conception of universal human rights protection, and then he went on to defend a universal conception of human rights on consensual or intuitionist grounds. "We can all agree on the protection of some human rights, like the right to be free from torture, right? So we can conceive of some kinds of universal human rights." This is a logical fallacy! You cannot derive the universal from the particular, and no matter how many people he includes in his "we can all" he is still dealing with an existential or particular set of people and not a universal set. This has been my problem for years, and it grows worse everyday as my study of Nietzsche makes "universal" look less like a mistake and more like a dishonest joke.

Now here is the problem. In a post-Nietzschean world, where, if anything, we must question the connection between our devices and their universal sources...maybe both...then how do you have a valid global human rights theory. We do not want human rights to be purely subjective or relativistic (for similar reasons intuitionism is not enough), but we cannot with a straight face give them universal validity. Can there be a middle ground? Theoretically, the answer is yes. The theoretical solution, I believe, is found in Immanuel Kant's 3rd Critique on aesthetic judgment and the subsequent work Arendt did to begin to move this theory of reflective judgment into the realm of political legitimacy.

Kant was trying to find something akin to universal validity in aesthetic judgments while acknowledging that aesthetic judgments deal with particulars. So he meets head-on the problem of moving from the particular to the general. This is the "reflective judgment," judgment which moves from reflection on the thing to its rule.

Kant gave a famous example of the problem of validity with aesthetic judgments and it goes as follows: "All roses are beautiful, this flower is a rose, hence this flower is beautiful." One can immediately see the problem with this judgment. Its simply not the case that "all roses are beautiful" so the judgment lacks a universal foundation to make a deductive judgment, one cannot make a "cognitive" judgment about aesthetic value. Yet, why is it that when we see a beautiful thing we feel as though others should share this feeling? We feel that our judgments are "communicable" and not merely private.

Ok, I have class and that is enough off the cuff discussion of Kant for one morning. The issue is clear in human rights theory...they have not been able to deal with their modernity problem yet. Human rights theory still believes it is part of some universally valid teleology even when it acknowledges that it is not. There is a good Nietzsche quote that refers to this kind of foolishness:

"What is dawning is the opposition of the world we revere and the world we live and are. So we can abolish either our reverence or ourselves. The latter constitutes nihilism."
F. Nietzsche

This quote is all-too-true about human rights theory, a worthy pursuit that is at risk of abolishing itself to save its reverence for universality and the upward teleology of the Enlightenment myth. I propose to abolish reverence, or I will abolish both and then we will really see nihilism!