by James Griffin. New York/Oxford: Oxford University Press, 2008. 360pp. Cloth. £25.00/$50.00. ISBN: 9780199238781.
Reviewed by Rory O’Connell, Senior Lecturer, Human Rights Centre, Law School, Queen’s University of Belfast. Email: r.oconnell [at] qub.ac.uk.
This books makes a useful contribution to the theory of human rights, and importantly makes links between philosophical theory and the law of human rights, whether this be in international law or at the constitutional level. It is written in an engaging, even forceful style, and is very carefully structured, and generally extremely clear. A certain basic familiarity with some terms in moral and political philosophy is presupposed (e.g. deontology, teleology).
The book is an exercise in moral philosophy, not specifically political philosophy, and certainly not human rights law. James Griffin regularly makes the point that there is a difference between the list of rights offered by a theory in moral philosophy, and the list of human rights found in law (p.191). Nor does he insist that there should be an exact match between the two: society may well have good reason to make something a legal right and even insert it in a human rights document. For instance, Griffin prefers the term “legal group rights” to human group rights, seeing no difficulty with society deciding to grant rights in law to groups, though believing group rights are not properly human rights (p.276). The moral philosophy of human rights remains relevant nevertheless to the practice of human rights law; in particular it becomes relevant when we need (or courts need) to decide on the content of rights (p.206; see also O’Connell 2005).
Griffin believes that the most philosophically defensible notion of human rights is one grounded in “personhood,” the status of a person as a normative agent, the possibility of “deliberating, assessing, choosing and acting to make what we see as a good life for ourselves” (p.32). Griffin distinguishes this approach to an account of human rights from one based on the language of human needs (p.88). This basic ground of personhood is supplemented by a second one, practicalities, where this refers not to particularly concrete exigencies, but to general information about human nature, society, and knowledge of the type of being humans are (p.38).
Griffin limits himself to these two grounds; in particular he rejects Dworkin’s notion that equality is a ground for human rights (pp.39-44). This is not because equality is unimportant; on the contrary, it is extremely important. One of the major themes in this book is that the concept of human rights does not subsume every other important category in moral theory: there are important issues of fairness, justice and equality that should not be reduced to questions of human rights (p.43). This point, that there is more to moral theory than human rights, seems right. However, I am not entirely [*835] convinced that equality does not deserve a more exalted place in Griffin’s analysis. If we look at international human rights texts, these tend to stress equality and non-discrimination, usually providing that all rights should be enjoyed without discrimination, and that people have a right to equality (e.g. Universal Declaration of Human Rights, 1948, Article 2 and Article 7; International Covenant on Civil and Political Rights, 1966, Article 2 and Article 26). Further Griffin agrees that equality is important to human rights and that certain forms of discrimination violate human rights (pp.42-43).
These two grounds of human rights (personhood and practicalities) are fleshed out in three higher order rights: autonomy, liberty and “minimum provision of resources and capabilities” (p.33). These three higher order rights are then used to specify more specific rights, which include many but not all of the rights that figure in international human rights texts. Most importantly these two grounds and three high order rights allow Griffin to address one of his major concerns: the danger in the over-inflation of rights. Autonomy and liberty do not mean being allowed to follow one’s whim (e.g. driving the wrong way down a street because it is more convenient, or failing to wear academic dress when required to do so) or engage in any practice merely because it is enjoyable (e.g. smoking) (p.170). Rather they expressly refer to the autonomy and liberty needed to pursue a life as a normative agent, making decisions about how to lead a worthwhile life. Similarly, the higher level right of minimum provision, later called welfare (p.176), is a right to the minimum resources needed to live a life as a normative agent, but does not include the right to the “highest attainable standard of physical and mental health” (p.208, referring to Article 12 of the International Covenant on Economic, Social and Cultural Rights).
That this book is an exercise in moral philosophy, and not political philosophy or human rights theory, has an interesting consequence. Human rights and constitutional law tend to assume that human rights obligations fall on the state or other public authorities, though there are important exceptions in the constitutional law of Ireland, South Africa (Article 8.2 of the Constitution) and Namibia (Article 5 of the Constitution). In recent decades, lawyers have sought to deal with human rights violations by non-state actors. This they do frequently indirectly, by imposing duties on the state to prevent non-state actors from violating human rights. As an exercise in moral philosophy, this is not such a concern for Griffin. His theory can be applied to impose obligations on all persons, or at least negative duties of non-interference.
Where it becomes interesting is where one deals with what Griffin calls welfare rights (social and economic rights) and in particular the positive obligations commonly associated with welfare rights (though Griffin does not believe in a sharp distinction between rights having positive and negative obligations). Griffin believes these positive obligations can be kept within manageable limits by restricting the right’s content to that required by his theory of rights, the personhood account, and also allowing for the reasonable capacities and motivations of human [*836] beings (pp.98-101, 103). Griffin also addresses an objection to the universality of such rights. The objection is that these rights are not universal as they are owed only to some people and only by a particular duty bearer, their national community (p.102). Griffin solves this problem by introducing the notion of ability (p.102). The obligation to assist or help another, though a general obligation, depends on identifying someone able to help. In most cases this will be a national government, but if this is not possible, then positive obligations may shift to those better able to help, such as richer foreign states or trans-national corporations (pp.104-107).
The concluding chapters of the book apply the personhood account of human rights to some specific questions in human rights – the right to life, the right to privacy, the relationship between human rights and democracy and group rights. Griffin appears to be unflinching in following where this autonomy centred account leads him: “If one has a right to anything, one has a right to death” (p.221) (earlier Griffin concludes that infants have no human rights, though there are no doubt good reasons to protect them, p.91). This though needs to be qualified. Griffin also believes that practicalities have to be addressed and that most rights are subject to qualifications, so “The right to suicide seems especially vulnerable to being overridden” (p.222). Similarly when discussing privacy, democracy and group rights, Griffin is happy to challenge the prevailing language and jurisprudence in human rights law. He believes the right to privacy has been overextended, to include issues better treated as matters of liberty (e.g., sexual freedom, abortion, and so on). There is no good argument for group rights, at least as human rights, apart from those rights that are reducible to individual rights. This is not because Griffin is opposed to the types of claims groups make, but he believes we need language other than that of human rights to deal with them (e.g., rectificatory justice for indigenous peoples dispossessed during colonialization).
These are certainly thoughtful contributions to human rights theory, and Griffin does an excellent job of connecting theory to concrete human rights issues. I am not absolutely convinced by his description of his project as a “bottom up” one taking as its starting point how rights are discussed by politicians, activists, and the like, rather than a top-down approach that moves from abstract principles to concrete implementation (p.29). The political struggles from which human rights emerge (Klug 2005), and which would surely be central to any bottom up approach, take second place to Griffin’s project of understanding personhood as autonomous agency. In the actual struggle for law’s interpretation in the courts and beyond, there is a clear reason why rights are interpreted expansively. Terms like the right to privacy or a private life are interpreted to include matters that might be thought to fall under a right to health, or indeed might be thought to be important matters of environmental policy rather than human rights at all (on Griffin’s approach). The right to respect for a private and family life, and home in the European Convention on Human Rights has been interpreted to give rise to protection in relation to some environmental issues (e.g. pollution, noise pollution, and the like) in cases like GUERRA and [*837] HATTON. If these interests are not adequately protected elsewhere in the law, then this right can be interpreted to protect them. Similarly, Griffin’s suggestion that questions of sexual freedom should be dealt with as liberty and not privacy rights, though convincing philosophically, encounters a problem in Article 5 of the European Convention on Human Rights, or even the Fifth Amendment to the US Constitution. In these texts, the notion of “liberty” seems a narrower one than can be made to deal with sexual freedom. For this reason, both the European Court of Human Rights and the US Supreme Court have recourse to the right to privacy.
Griffin is concerned to protect an austere (though by no means impoverished) theory of rights, a view that sees human rights as the minimum level of protection needed to protect normative human agency. Human rights form a floor beneath which no society should fall. In setting this as his agenda, Griffin is standing against a particular trend in modern human rights law which sees human rights not as minimum entitlements, but as goals that should be progressively better realised. Griffin’s is a view of human rights that could be recommended to constitutional courts, but probably not to the many bodies whose job is to protect, promote and fulfill human rights, such as human rights commissions or even politicians. This more expansive view of human rights would appear to raise the question of the difference (if any) between human rights and politics more generally. In contrast, Griffin’s book offers a clear vision for demarcating human rights from other moral and political goals.
Klug, Francesca. 2005. “Human Rights: Above Politics or a Creature of Politics?” 33 (1) POLICY AND POLITICS 3-14.
O’Connell, Rory. 2005. “Do We Need Unicorns When We Have Law?” 18 (4) RATIO JURIS 484-503.
GUERRA v. ITALY (1998) 26 European Human Rights Reports 357.
HATTON v. UNITED KINGDOM (2003) 37 E.H.R.R. 611.
© Copyright 2008 by the author, Rory O’Connell.