This workshop with examine different aspects of human rights and their connection with democratic values, including a commitment to equality. The connection is far from clear: on the one hand, rights in general and human rights perhaps especially are supposed to block or at least tame the general good, as potentially decided by a democratic majority; on the other hand, human rights are supposed to express the idea of the equality of all human, which may be seen to include their equal claim to participate in the political decision-making process.
Our workshop will critically examine these assumptions and clarify the links between human rights, equality, and democracy.
The first paper, entitled ‘Legal human rights and democratic legitimacy’, will challenge the first assumption at least for some human rights.
Many contend that entrenching domestic legal rights against revision by later majorities is undemocratic. But Ronald Dworkin (1996) famously defends this practice, at least for some rights, by arguing that certain rights are actually preconditions for majority rule’s having moral force. Since any rights that play this role are thereby exempt from the criticism that their entrenchment is undemocratic, we can call them ‘exempt’ rights.
The paper argues that not all legal human rights are exempt rights. It follows that entrenching some legal human rights remains subject to the criticism of being undemocratic. At a minimum, this causes difficulties for Dworkin’s ‘fantasy’ of international law (2013), in which legal human rights are enforceable by a global Supreme Court.
More specifically, it argues that legal rights worthy of being called human rights are fundamentally distinct from exempt rights because the grounds that warrant a legal right’s status as exempt differ sharply from those that constitute its worthiness to be called a human right. As we shall see, this cleavage holds on either of two very different ways in which this worthiness can be conceived.
The second paper examines the content of a putative human rights to democracy and asks ‘If there is a human right to democracy, what is it a right to?’
It has long been thought that if there is a human right to democracy, that right involves, or can even be equated with, a right to have one's political representatives chosen by free, fair competitive elections. In recent years, however, political philosophers have questioned whether democracy should be equated with elections. For some, elections are actually democratically sub-optimal relative to other selection mechanisms, such as sortition. Others have questioned the democracy-representation nexus, and have argued for the democratic superiority of (among other procedures) mini-publics and referenda. Defenders of the traditional view are presented with a choice. Defenders of a human right to democracy are presented with a trilemma: they can either defend the traditional view by arguing for the democratic pre-eminence of elections; they can identify the right with one or the other of the competing democratic alternatives proposed by contemporary democratic theorists (or for that matter democratic theorists of the past); or they can identify higher-order criteria that might account for the purported diversity of mechanisms through which democratic criteria might be instantiated. This paper will devote most of its attention to the first and third prong of this trilemma, and will explore arguments, first, for the democratic specificity of elections, and second, for the plausibility and operationalizability of meta-democratic criteria such as the “voice of the people” or “majority rule”.
Finally, the third paper will criticize current philosophical justifications of human rights and propose an alternative one that grounds human rights in equality.
There are two main types of justifications in the literature: an instrumental kind of justification and a status-based one. For instrumentalists, human rights are tools that protect valued aspects of human life, such as personhood or the components of a (minimally) good life. Status-based justifications, by contrast, claim to ground human rights in the worth of the human being rather than certain valuable features.
This paper argues that neither of these types of justifications succeed and more specifically they don’t succeed in justifying rights. Their focus is on justifying why humans (and only humans) have rights in virtue of their humanity; but, even if they were to succeed in that, which is far from clear, they fail in justifying duties that are directed to each and every human being.
The paper then proposes an alternative justification according to which the equality of human beings is the basis of human rights.
A fourth paper may be added at a later stage.