Human rights, health, the rule of law – why are these concepts inflated to the status of totalising, secular religions?
As political philosophers such as Jürgen Habermas and John Rawls have emphasised, a flourishing democracy has a robust culture of public reason, one in which all citizens are able to participate as equals in collective deliberation and decisionmaking about the common good of society. In recent years, we’ve heard a lot about dire new threats to the quality of our public reason, such as the rise of populist authoritarianism, the creation of ‘filter bubbles’ and ‘echo chambers’ on social media that aggravate political polarisation, or the dissemination online of extremist views and ‘fake news’ by automated bots and other malign agents.
But another kind of threat to the quality of public reason tends to go unnoticed. This is the degradation of the core ideas mobilised in exercises of public reason, not least in the utterances of elite actors, such as bureaucrats, lawyers, politicians and representatives of international organisations and NGOs. These ideas – health, human rights, democracy and so on – are central to the way we formulate and address the main political challenges of our time, from the climate crisis to the COVID-19 pandemic.
One prominent form taken by this degradation of public reason is the phenomenon I call ‘conceptual overreach’. This occurs when a particular concept undergoes a process of expansion or inflation in which it absorbs ideas and demands that are foreign to it. In its most extreme manifestation, conceptual overreach morphs into a totalising ‘all in one’ dogma. A single concept – say, human rights or the rule of law – is taken to offer a comprehensive political ideology, as opposed to picking out one among many elements upon which our political thinking needs to draw and hold in balance when arriving at justified responses to the problems of our time. Of course, we’ll always need some very general concepts to refer to vast domains of value – the ideas of ethics, justice and morality, for example, have traditionally served this function. The problem is when there is a systematic trend for more specific concepts of value to aspire to the same level of generality.
But why worry about conceptual overreach? If ‘human rights’, say, is a phrase that increasingly encompasses more and more things that are genuinely valuable goals, why should we quibble about the label attached to them? Isn’t this mere pedantry? Far from it, I believe.
One danger of conceptual overreach is that we lose sight of the distinctive idea conveyed by a given concept through its immersion in a sea of many other quite separate ideas, a significance that goes beyond the baseline fact that all the ideas in question identify something of value. If, for example, human rights are demands that are generally high-priority in nature, such that it’s seldom if ever justified to override them, then we lose our grip on that important idea if we start including under the heading of ‘human rights’ valuable objectives – for example, access to a high-quality internet connection – that don’t plausibly enjoy that kind of priority. Another danger is that the extraneous ideas that are subjected to a process of conceptual takeover end up being themselves distorted. So, for example, we start regarding modes of treatment that are beneficial to someone, such as mercy towards a convicted offender, as benefits to which they have a right.
As a result, this conceptual overreach leaves us poorly positioned to identify the distinct values that are at stake in any given decision. It also obscures the agonising conflicts that exist among these values in particular cases. But these two large intellectual defects also generate serious practical drawbacks when we seek to engage in deliberation with others. Conceptual overreach in its more extreme forms inhibits constructive dialogue, or even just the brokering of honourable compromises, with those whose political orientation differs significantly from ours. This is because it makes it difficult to find any point of common ground or shared understanding with them. Instead, when we try to reach some kind of reasonable accommodation with them based on, say, fairness or human rights, we find ourselves locked in opposing moral-political worldviews at every turn.
Conceptual overreach might appear rather abstract, so let me give some examples of its real-world presence. A notorious illustration is the definition of ‘health’ in the World Health Organization’s constitution. Health is there described as ‘a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity’. This all-encompassing definition flies in the face of the commonsense view that health is just one ingredient in a life of wellbeing, among others, such as pleasure, friendship, knowledge, accomplishment and so on. What use is this inflated notion of health when we already have the concept of wellbeing at our disposal?
And what are we to say of Marie Curie, who apparently sacrificed her health in the quest for scientific knowledge? Should we conclude that her health was not really sacrificed, since the fatal consequences of her exposure to radiation were outweighed by the contribution made by her scientific achievements to her overall wellbeing? Or, to take a topical example, if the correct response to the COVID-19 pandemic necessitates the curtailment of people’s freedom of movement in order to minimise the chances of infection, what is gained by blandly encompassing both freedom and the avoidance of disease within a bloated understanding of health?
The inflated notion of health as complete wellbeing leads us astray, as such grating implications show. Instead, we need to adopt a more modest understanding of health as one element of a good life among others. Perhaps, as philosophers such as Norman Daniels have suggested, what’s required is a concept of health centred on the effective functioning of bodily and mental capacities rather than on wellbeing in general.
What is true of health also holds of another important value: the rule of law.
Traditionally, this refers to a range of formal and procedural requirements that enable people to comply with the law. Among these requirements are the following: that the law be clear and publicly accessible, that it be promulgated to citizens in advance of its coming into force, that it be relatively stable over time, that it be applied by an independent judiciary in accordance with its true meaning, and so on.
On this traditional view, it is widely understood that the rule of law, although a cardinal legal virtue, doesn’t encompass all the values we ideally hope the law will realise. A law, or a legal system, might comply with the rule of law, yet be seriously defective in other ways. Think, for example, of a tax law that unjustly burdens the poor, but is nonetheless published in advance, set out clearly and accessibly, and enforced by officials according to its meaning – thus meeting the requirements of the rule of law. The injustice might even be so great that disobedience on the part of the poor would be warranted.
Aren’t human rights one thing, the rule of law another?
Equally, legal institutions can sometimes be justified in transgressing the rule of law in the pursuit of justice. Retrospective punishment – punishing people for acts that were not illegal at the time when they committed them – is a paradigmatic rule-of-law violation. Yet many will reasonably conclude that deviation from the rule of law was justified when Nazi leaders were prosecuted at Nuremburg for grave atrocities that, very arguably, weren’t prohibited by law at the time that they were committed.
In recent years, however, this formal-procedural view of the rule of law has increasingly fallen out of favour, with views that pack more and more substantive content into the rule of law gaining prominence. A good example is the account given in the influential book on the topic by the late Tom Bingham, the UK’s former senior law lord. On Bingham’s interpretation, the demands of the rule of law swell to include ‘adequate protection of fundamental human rights’, and other requirements besides.
Why does Bingham feel compelled to incorporate the full panoply of human rights within the rule of law? Aren’t human rights one thing, the rule of law another? Isn’t there, at most, some limited overlap, such as the right not to be subjected to retrospective punishment, but not the right to work? Bingham’s answer is instructive:
A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed. So to hold would, I think, strip ‘the existing constitutional principle of the rule of law’ … of much of its virtue.
But this objection is akin to saying that there’s no point in treating health as a value that contributes to one’s wellbeing unless one also has friends and accomplishments to one’s name. And why stop at human rights? Why not subsume within the rule of law the protection of animals and the natural environment? Or charity or mercy – values to which we don’t ordinarily suppose we have a right? Any value we can think of – equality, freedom, justice – can always be ‘improved’ by conjoining it with another value, but that’s no reason to assimilate one value to another.
Once we embark upon Bingham’s expansionist line of thought, there seems to be no logical stopping-point short of interpreting the rule of law as a general label for all the virtues that make for good law. Indeed, in a lecture delivered towards the end of his life, Bingham went further still, exalting the rule of law as the ‘nearest we’re likely to come to a universal secular religion’. Here, Bingham’s totalising ambitions for the rule of law are laid bare – from one discrete value that can conflict with other legal values, the rule of law is strangely elevated to a comprehensive guide to life in general.
It is the all-conquering idea of human rights, however, that’s the starkest illustration of conceptual overreach. Human rights, even more than the rule of law, have come to play the role of ‘universal secular religion’, purporting to offer a comprehensive ethical framework. Remarking upon this tendency, the late moral philosopher James Griffin wrote in his important work, On Human Rights (2008):
It is a great, but now common mistake, to think that, because we see rights as especially important in morality, we must make everything especially important in morality into a right.
This error plays out in the common belief that the challenges posed by all manner of developments – from artificial intelligence to the climate crisis – can be adequately addressed by a framework that appeals exclusively to human rights. What gets pushed out, or distorted, by this overreach is a range of other values. These include non-rights-based values, such as kindness, loyalty and mercy; and considerations that, unlike human rights, aren’t essentially individualistic, such as solidarity and the common good. Indeed, some of these other values might be indispensable to the survival over time of a healthy, rights-respecting culture, as philosophers such as Martha Nussbaum have stressed. But they also include rights that are not human rights, such as rights we possess as members of discrete groups, such as nations or families, rather than in virtue of our humanity, and also the rights of nonhuman animals.
A key driver of human rights expansionism is the tendency to identify human rights with any morally relevant or legally relevant interest. One upshot of this is the massive proliferation of human rights claims with which we are all too familiar – rights to be loved, rights to world peace, rights not to be offended, rights to a good night’s sleep. But what is perhaps more disturbing is the drastic downgrading of the moral force of human rights that is the flipside of this unprincipled expansion of their range.
When rights become synonymous with just about any morally relevant interest, the vital link between rights and duties is broken. An interest, whether in privacy or health or anything else, doesn’t automatically entail a duty to protect or respect that interest in any way. There are many things that might significantly benefit my health, such as a year’s paid holiday, but I don’t have a right to them simply because of this fact. Rights, unlike interests, are essentially duty-involving, as philosophers such as Onora O’Neill and Amartya Sen have stressed. These duties place stringent moral demands on us. Their violation is wrongful, and they can be overridden only in exceptional circumstances.
Once rights are effectively reduced to interests, however, they’re vulnerable to being regularly traded-off against the innumerable other interests with which they potentially come into conflict. The consequent loss of human rights’ moral force is well illustrated by the doctrine of proportionality adopted in the European system of human rights law. As the human rights lawyer Mattias Kumm, a leading proponent of this doctrine, has candidly written: ‘a rights-holder does not have very much in virtue of having a right … An infringement of the scope of a right merely serves as a trigger to initiate an assessment of whether the infringement is justified.’
Appeal to existing law is not itself the required antidote to conceptual overreach
Yet, contrary to this view, rights have historically been valued precisely because they’re regarded as robust entitlements to certain modes of treatment, such as freedom from attacks on our persons and property. They generate strong protections because they impose duties on others, and it’s seldom justified to override a duty outside of emergency situations. But on the novel, expansive view, possession of a right is just having an interest that can be readily overridden in an overall balancing of affected interests. It’s yet one more item in the overall balancing of costs and benefits carried out by bureaucrats and others. In this way, the language of rights becomes a victim of its own popularity, the distinctive value of rights being lost in the relentless process of expanding their reach.
A backlash against this human rights overreach has already set in, and not only among those who are sceptical about the very idea of human rights. It’s no accident that 2019 saw the publication of a book revealingly entitled Rescuing Human Rights by Hurst Hannum, a stalwart human rights lawyer with impeccable liberal credentials. Hannum seeks to rescue human rights law from the unchecked expansionist tendencies that threaten to undermine its raison d’être. The book is an extended plea to reverse the incursions by human rights law into new domains of regulation, such as the environment, warfare and contested issues of sex and gender. However, this insistence on preserving the legal status quo cannot take the place of a principled account of what genuinely counts as a human right, and when and how such rights should be enshrined in law, which are all ultimately ethical questions. Appeal to existing law is not itself the required antidote to conceptual overreach.
A final, rather more contestable, example worth mentioning is that of democracy.
What is at issue here is the common tendency to use the expressions ‘democracy’ and ‘liberal democracy’ interchangeably. One might well think, as I do, that liberal democracy – a political regime that combines popular self-government together with protections of key liberties, such as freedom of religion or same-sex marriage, many of them human rights – is the best form of government in contemporary circumstances. But is democracy, as a political value, properly interpreted as inherently liberal? ‘Just because something is not liberal,’ said Hungary’s prime minister Viktor Orbán in a notorious speech in 2014, ‘it still can be a democracy.’
When politicians such as Orbán assert that they aspire to create an ‘illiberal democracy’ – leaving aside the doubtful sincerity of their claims – are they in the grip of a conceptual confusion? Is the idea of ‘illiberal democracy’, as some contend, a contradiction in terms, because any democracy truly worth the name will already respect liberal demands? Or is the belief that bona fide democracies must be liberal an instance of conceptual overreach, packing into democracy quite separate values and concerns?
According to Josiah Ober’s book Demopolis (2017), the interpretation of democracy as inherently liberal is a profound error. Drawing on the example of ancient Athens, Ober offers a historical illustration of a real-life society that was democratic – a form of limited collective self-government by citizens who enjoyed political equality and freedom, and not mere majority rule – without embracing liberalism. More generally, Ober argues that democratic self-government has considerable value that warrants marking it out separately from liberalism. This value is partly instrumental, relating to the capacity of democracies to achieve goals such as security and prosperity. But it’s also significantly intrinsic, insofar as democratic self-government involves a radical form of citizen political participation and the ideal of citizen dignity associated with it.
Ober’s thesis is a provocative one, and his elaboration of it is open to various objections. Some will understandably complain that the slave system in ancient Athens, together with the inferior political status of women, disqualifies it as a true instance of democracy. But his more abstract thesis seems compelling: that democratic government incorporates a set of norms ensuring political equality and political freedom that stop short of genuine liberalism, even if it overlaps with liberal requirements in certain respects – eg, in ensuring freedom of political speech or the provision of minimum welfare protections that enable effective political participation.
Democracy, on this view, is compatible with an established religion, capital punishment and certain forms of sex-based hierarchy. Indeed, it’s precisely in these terms that we can make sense of the ambivalence, and sometimes outright hostility, that liberals throughout the ages have displayed towards democratic rule. They have interpreted it as empowering a relatively unenlightened mass that poses a standing threat to personal liberties, property rights, and the maintenance of the high culture needed to foster the liberal ideal of rational and expressive self-development.
At a time when the survival of liberal democracy is under pressure worldwide, it’s all the more important to clarify the relations between liberalism and democracy. Ober’s hope is that preserving the distinctiveness of the idea of democracy better equips us not only to understand its value but to take the measures needed to maintain and promote it both at home and abroad. At home, we aren’t compelled to urge the merits of liberalism to secure buy-in to democratic institutions and procedures from liberalism’s conservative opponents. This offers us the tremendous benefit of a stable political framework for the peaceful containment, if not resolution, of disagreements with fellow citizens who are hostile to many elements of liberalism. Meanwhile, we’re able to advocate democracy in conservative religious societies abroad, for example, without insisting, as part of that, on the fashioning of a recognisably liberal polity.
If, as I have argued, we’re living at a time of conceptual overreach, how are we to understand its origins? One, rather cynical, interpretation is that it provides rhetorical cover for a power grab, for example, by elite actors and institutions. In order to expand their scope of legitimate authority, bureaucrats, judges and lawyers try to fit more and more into the rubrics of health, the rule of law, human rights and democracy. Similarly, some special interest groups deploy the rhetoric of rights to gain political traction for an agenda that benefits their members. This power grab might be motivated by the best of intentions, yet it distorts the very concepts in whose name it’s pursued. Many of the critics of what is pejoratively called ‘juristocracy’ – the ever-increasing tendency of judges to assert authority to resolve controversial political questions – who include among their number the former UK Supreme Court judge Jonathan Sumption in his Reith Lectures, have made this point with respect to expansive interpretations of human rights and the rule of law, regarding which courts are often perceived as the ultimate custodians.
Another factor is the craving for simplicity, for relatively uncomplicated approaches and solutions to complex problems. Rather than recognising that there are many distinct values that sometimes clash, conceptual overreach, especially in its more extreme varieties, offers the illusory comfort that the most difficult challenges that confront us all ‘boil down to’ one factor – such as upholding the rule of law or human rights. One reason that this craving for simplicity is misguided is that it typically offers little more than a cosmetic response to value conflicts that are there anyway. This is because conflicts can arise when only one value is in play, but figures on both sides of the ledger of pros and cons in public decision-making.
For example, it’s a demand of justice that those who are credibly accused of heinous crimes be subject to a trial. But justice also counsels that a criminal trial not take place many years after the crime was committed. The fact that these are both demands of justice doesn’t resolve the difficulties involved in seeking to respect each of them when deciding whether to prosecute John Demjanjuk, the elderly auto-worker in Ohio accused of being the Nazi camp guard ‘Ivan the Terrible’.
Preserving the integrity of our concepts is not the same as ossifying our political opinions or arrangements
Thirdly, conceptual overreach can be interpreted as a dialectical gambit, depriving one’s political opponents of a conceptual place on which to stand. The conservative friend of the rule of law who is sceptical about much of the prevailing human rights orthodoxy can be exposed as conceptually muddled, since the expansionist reading of the rule of law already incorporates this orthodoxy. The populist who lauds democracy but decries liberal decadence is no less confused, because ‘illiberal democracy’ can be dismissed as a contradiction in terms. More worryingly, the accusation of conceptual muddle easily translates into an accusation of insincerity, further justifying treating one’s political opponents as unworthy of serious engagement. This conceptual ‘cancelling’ of one’s opponents can itself be seen as a symptom of our deeply polarised culture, one facilitated by conceptual overreach.
Finally, there is the plain fact that maintaining our concepts in good order isn’t an easy task, and is further complicated by the fact that there might be various equally acceptable ways of specifying the meanings of a range of important concepts. Keeping a concept in good shape requires an attentiveness to its history, the valuable role it plays, and how it might be adapted to changing circumstances, always bearing in mind that it operates within an evolving network of other concepts, each of which makes its own special contribution. It is often far from easy to get this right, as sophisticated philosophical wrangling over notions such as the rule of law, human rights and democracy shows.
It is worth emphasising, however, that nothing I’ve said here rules out the possibility that a given concept might legitimately come to incorporate new demands over time without this constituting a form of conceptual overreach. Take, for example, human rights. For much of the history of thinking about rights, socioeconomic rights – such as rights to health, work and an adequate standard of living – were either off the agenda or subject to extensive scepticism. But a sea-change occurred with the Universal Declaration of Human Rights (1948), which put socioeconomic rights on an equal footing with long-familiar civil and political rights, such as freedom of religion and the right to a fair trial.
Is this expansion of human rights protection to the socioeconomic domain an instance of conceptual overreach? I don’t believe so. One way of justifying the existence of socioeconomic rights is by arguing that, whatever might have been true of the distant past, in the conditions of modernity, with enhanced technological and organisational capabilities, it’s feasible to argue that all human beings, simply by virtue of their humanity, are owed access to certain minimum levels of healthcare, work protection and so on. Preserving the integrity of our concepts, in other words, is not the same as ossifying our political opinions or arrangements.
To explain the prevalence of conceptual overreach in the ways suggested above is by no means to justify it. It remains a source of intellectual confusion, slurring over the distinctive significance of each of the ideas we’ve discussed, and others besides. At a time of political polarisation domestically, during which we’re also witnessing the rise of authoritarianism globally, it’s all the more imperative to keep the concepts on which our public discourse relies in good repair. The responsibility to do so falls on all of us, but especially on the wielders of great public and private power. Not succumbing to conceptual overreach cannot, of course, guarantee success in our political endeavours, but it does remove one important cause of failure.
John Tasioulas is professor of ethics and legal philosophy and director of the Institute for Ethics in AI at the University of Oxford. He is the editor of !e Cambridge Companion to the Philosophy of Law (2020), and his recent articles include ‘Saving Human Rights from Human Rights Law’ (2020) and ‘!e Rule of Law’ (2020).
aeon.co
29 January 2021
