by Michael J. Perry. New York and Cambridge: Cambridge University Press, 2006. 270pp. Cloth. $70.00/ £40.00. ISBN: 9780521865517.
Reviewed by Kevin R. den Dulk, Department of Political Science, Grand Valley State University. Email: dendulkk [at] gvsu.edu.
While transnational “human rights” have been a heartening symbol to millions, the uneven (and in some cases non-existent) enforcement of such rights diminishes their substantive power. To be sure, a majority of states have signed on to various human rights statements and covenants, especially in the wake of the appalling violence of World War II and other armed conflicts. The United Nations Universal Declaration of Human Rights, with its claim that every individual has “inherent dignity” and “inalienable rights,” is the most often invoked of these international efforts. Yet the practical mechanisms for implementing human rights-claims have often been undermined by the interests of individual states or regions, and there appears to be no sustained international consensus about the underlying reasons for a modern commitment to human rights.
Michael Perry’s TOWARD A THEORY OF HUMAN RIGHTS is properly read as a reflection on both the theory and practice of human rights – or, more precisely, how the “morality of human rights” might bear on the legal (particularly constitutional) practice of defending them. Perry divides the discussion into three parts: (1) an exploration of the religious and secular grounds for the morality of human rights, (2) a series of case studies that connect the morality of human rights to law, and (3) a proposal for a deferential role for constitutional courts in adjudicating human rights claims. Perry is ambitious in his goals, and the primary text, which runs a mere 142 pages, is densely packed with myriad arguments and illustrations. Indeed, I came away from the book wondering about the indefinite article in the title: Had Perry begun to develop a theory, or does the book address multiple theoretical questions with no necessary interrelationship among them? I tended to read Perry as accomplishing the latter rather than the former. Still, his answers to these questions were incisive, insightful, and marked by impressive clarity and erudition. They ought to be widely read and further developed.
Part 1 of the book is a survey of the religious and secular arguments for the morality of human rights. Echoing the UN Declaration, Perry argues that morality is two-dimensional: Every human being has inherent dignity and is inviolable (i.e., ought not have his or her dignity violated). His way of talking about the morality of human rights, then, entails both a dignitarian assumption about human nature and a normative expectation of what human nature requires. Perry does not provide a precise and straightforward explanation of what “dignity” means in the human rights context, but to do so is perhaps beside his point. His goal in this part of [*616] the book is to compare two categories of reasons – religious and non-religious – for any claim about the morality of human rights, dignitarian or otherwise.
He is clearly sympathetic to religious grounds for the morality of human rights, as epitomized in “Sarah,” his (presumably) fictional archetype of a religious believer. Sarah is motivated by a conviction to love her “neighbors,” which she construes to include every human being around the globe. Her commitments are linked to a belief in a loving God, who has created a universe that manifests the dignity of human beings. One cannot help but hear Perry’s voice in Sarah’s – a voice that becomes more emphatic in discussing the non-religious grounds for the morality of human rights. For Perry, any school of thought that rejects religion or a “metaphysical order” is “deeply antithetical” to that morality (p.29).
Perry’s skepticism about non-religious grounds for the morality of human rights clearly puts him at odds with many contemporary versions of pragmatism, as his rejection of Richard Rorty’s “ethnocentrism” illustrates. Yet his skepticism extends to some unlikely suspects as well. In a mere eight pages, he dispatches John Finnis (Finnis’ non-theological argument for natural law does not convincingly address egoism), Ronald Dworkin (he “assumes a [dubious] consensus among human agents” about the value of every human being [p.21]), and Martha Nussbaum (she relies on a “phantom” notion that human beings generally “feel disturbance when bad things” happen to others). He also takes on advocates of evolutionary biological arguments in the same section (though there is no mention of E.O. Wilson), whom he says fail to account for how their “ad hoc” explanations of human morality are consistent with the assumption that human behavior is little more than a “cosmic process bereft of ultimate meaning” [p.24]).
It goes without saying that these are controversial claims, but they are not surprising. They fit into a class of arguments in moral theory about what it could mean to “be good without God” – what Perry describes as the Nietzschean imperative, i.e., “the serious question [about] whether the morality of human rights can survive the death – or deconstruction – of God” (p.29). For Perry, while the morality of human rights could not survive God’s death (or deconstruction), the point is that God has not yet succumbed. It is beyond the scope of a brief review to do justice to the deep philosophical waters Perry is swimming in this part of the book. Suffice it to say that Perry’s brief – even cursory – discussion of major non-religious arguments and his fundamental “metaphysical” assumptions will raise an eyebrow or two, especially among those observers of international conflict who see religion often acting as a threat to human rights. Nevertheless, what is especially interesting about Perry’s discussion of these matters is not the type of theoretical argument he makes per se, but his application of the theory of morality to human rights.
Perry puts theory into practice in Part 2, in which he applies his argument for the morality of human rights in three of the [*617] most controversial areas of public policy in the United States: capital punishment, abortion, and same-sex marriage. He explicitly acknowledges that this part of the book is principally written for those readers who already accept his general contention that there is a morality of human rights. Perry also contextualizes Part 2 by addressing it to citizens in liberal democracies, where there is some opportunity for ordinary persons to shape policy decisions.
His treatment of these policy issues is a whirlwind of claims and counter-claims. In his fifteen-page discussion of capital punishment, he asserts that human dignity is inherent and therefore inalienable. Still, he leaves open the possibility that there may be “weighty” reasons to use capital punishment (a “conditionalist” view), but then suggests that the value of the strongest of these reasons – deterrence – is sufficiently unsettled to err on the side of caution and seek a legal abolition of capital punishment. He addresses abortion in thirteen pages, building from a bedrock claim that a human fetus, especially at the point of viability, has inherent dignity; to say otherwise, he maintains, would be arbitrary (that is, the arbitrary fact of whether the viable fetus has been born would determine dignity). This leads him to insist that the justifiable grounds for abortion rights are very limited. Finally, in a dozen pages on same-sex marriage, he argues that “government’s refusal to recognize . . . same-sex unions betrays the non-discrimination ideal to which we who affirm the morality of human rights should be committed” (p.76).
These arguments, which are couched in terms of human (not merely constitutional) rights, are as provocative as those in Part 1. But as a practical legal matter, perhaps the most challenging ideas are in Part 3, where Perry takes up the role of constitutional courts in protecting human rights. The focus here is the United States Supreme Court, though he offers some comparisons to courts of last resort in other countries. It is ultimately unclear why Perry places his focus on such national-level courts rather than international human rights tribunals; he does not compare the effectiveness of one type of court to the other. He does seem to acknowledge – rightly, of course – that constitutional rights are defined for persons (often only citizens) within particular political communities, and hence do not necessarily reflect what he terms the “constitutional law of [transnational] human rights.” Still, he sees constitutional courts as well-situated to adjudicate (albeit in limited ways) human rights claims.
His argument for empowering constitutional courts is a familiar one rooted in the independence of non-elected constitutional courts. Electorally accountable institutions, he asserts, “frequently have insufficient political or institutional . . . incentives to attend to a claim . . . that government has violated . . . an entrenched [human] right” (p.95). This assertion is presented as an empirical fact, and it is undoubtedly true. But that fact does not necessarily establish that courts are therefore independent, or at least as independent as Perry seems to suggest. At the very least Perry should nod toward the [*618] literature that calls into question judicial independence as conventionally understood (which is how Perry understands it). In fairness, though, his argument does turn on probabilities: constitutional courts, because of their relative independence, are more likely to protect human rights than other institutions.
In any event, at this point in the book Perry introduces a central comparison that would severely limit the judicial role. He suggests there are profound democratic concerns about systems in which judicial independence entails judicial supremacy – or “ultimacy” – compared to systems of judicial “penultimacy” (e.g., Canada), in which constitutional courts do not have the final word on constitutional meaning. For Perry, the former violates the democratic conviction that “citizens are the ultimate sovereign” (p.104) by ceding that authority to elites without electoral accountability. In a constitutional framework of judicial ultimacy, Perry contends that constitutional courts, while empowered to render decisions on human rights, ought to show great deference to legislative and executive power. Indeed, the only instance the Supreme Court would be justified in invalidating a law or other governmental decision would be when government makes a “clear mistake” that lacks any reasonable basis.
His plea for judicial deference, which echoes James Bradley Thayer and Alexander Bickel, among others, leads Perry to take some counterintuitive positions – at least in light of his arguments in Part 2 – on the role of courts in adjudicating conflicts over capital punishment, abortion, and same-sex marriage. For example, Perry argues that even though he believes capital punishment violates the Eighth Amendment, the Supreme Court should not overrule legislators who “reasonably conclude” that such punishment is warranted. He also contends that, even if some citizens believe pre-viability abortion bans violate the Fourteenth Amendment, they should not wish the Court to overturn such bans because it is “not unreasonable” to suggest that they serve the common good. Finally, Perry suggests that, even if some citizens (including Perry himself) believe that there ought to be state recognition of same-sex marriages, it does not follow that the Court should declare bans on that recognition unconstitutional.
A key point of contention here is clearly Perry’s use of a reasonability criterion in each case study, which would require courts to defer to legislators or other governmental officials when their actions are “reasonable,” according to some standard. But what counts as reasonable? And who gets to decide? Perry’s sketch does not fully address the former question, but it strongly implies an answer to the second: The Supreme Court itself would determine what is or is not “reasonable.” That is not a shocking claim – courts by definition must exercise judgment, and they often use a reasonability standard in doing so – but it does seem to afford courts a great deal of opportunity to be non-deferential.
Whatever one might think of his conclusions, however, TOWARD A [*619] THEORY OF HUMAN RIGHTS achieves its primary aim of nudging readers toward a greater attentiveness to the arguments for both the existence and enforcement of human rights. It is true that Perry’s call for judicial deference, along with his other arguments, are, as he fully admits, “conspicuously controversial” (p.142). They are also not fully developed, as the title of the book implies. But Perry, who writes with an effective combination of passion and directness, succeeds in clearly framing the issues, giving tentative yet thoughtful answers, and inviting the reader to continue the conversation.
© Copyright 2007 by the author, Kevin R. den Dulk.