The ECHR and Human Rights Theory

Reconciling the Moral and the Political Conceptions

Alain Zysset

• Publisher: Taylor & Francis
• Year: 2016
• Print ISBN: 9781138641037
• eBook ISBN: 9781317248125
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

The European Convention of Human Rights (ECHR) has been relatively neglected in the field of normative human rights theory. This book aims to bridge the gap between human rights theory and the practice of the ECHR. In order to do so, it tests the two overarching approaches in human rights theory literature: the ethical and the political, against the practice of the ECHR 'system'. The book also addresses the history of the ECHR and the European Court of Human Rights (ECtHR) as an international legal and political institution.

The book offers a democratic defence of the authority of the ECtHR. It illustrates how a conception of democracy – more specifically, the egalitarian argument for democracy developed by Thomas Christiano on the domestic level – can illuminate the reasoning of the Court, including the allocation of the margin of appreciation on a significant number of issues. Alain Zysset argues that the justification of the authority of the ECtHR – its prominent status in the domestic legal orders – reinforces the democratic process within States Parties, thereby consolidating our status as political equals in those legal and political orders.

1 Introduction

Human rights theory and the challenge of the ECHR

The ordinary discourse on human rights is premised on the claim that those rights are inherent in our condition as human beings. The “inherence view”¹ suggests that those rights capture something that is fundamentally binding, “dignity”. In the words of Perry, “the inherent dignity has a normative force for us, in this sense: we should live our lives in accordance with the fact that every human being has inherent dignity”.² At first sight, it seems as if “dignity” requires no theoretical defence. It is obvious. “Dignity” is used not only to identify human rights among other rights and values; it also allows us to justify them normatively. “Dignity” illuminates the binding force that human rights have upon us.

One implication of “dignity” as a grounding concept for human rights immediately follows. If being human entails having dignity, then human rights are rights we owe to every single human being. As such, human rights matter to both political and interpersonal moralities. As Valentini puts it, “on this view, if Sarah gets mugged on her way home and is badly injured as a result, she can be said to have suffered a human-right violation”.³ Another implication follows from the premise of “dignity” as a grounding concept for human rights: if human rights bind us just because of our inherent “dignity”, then human rights are independent for their existence from any conventional norm (social, political, legal). As Pogge puts it, they have a normative existence “whose validity is independent of any political or legal authority”.⁴ In particular, legal recognition and enforcement may be ways of making those rights effective, but are not necessary for their conditions of existence.

The inherence view of human rights has other attributes that may be captured intuitively. One is their minimal character. Human rights seem to differ from other moral values in that their provisions do not go beyond a core of basic entitlements. As Nickel explains, “human rights aim at avoiding the terrible rather than achieving the best. Their modality is ‘must do’ rather than ‘would be good to do’”.⁵ This premise is also explicit in Shue’s seminal account of “basic rights”:

“Security” and “subsistence” are equally essential basic entitlements that secure the enjoyment of other, non-basic rights such as freedom of expression: “basic rights” are “the morality of the depths. They specify the line beneath which no one is to be allowed to sink”.⁶

Human rights are not elaborate moral goods such as justice or virtue. They capture a “core” of the values we ascribe to human life, those that are “fundamental” or “essential” to a “decent” human life.

In the same vein, human rights strike us with an idea of urgency. Human rights are not long-term social and political goals to contemplate. Given the stringency of “human dignity”, it is urgent that human rights are respected. As Nussbaum suggests, human rights are conceived as “a list of urgent items that should be secured to people no matter what else we pursue. . . . We are doing wrong to people when we do not secure to them the capabilities on this list”.⁷ Human rights refer to a set of urgent, minimal and pre-institutional rights stemming from the “dignity” of human beings that should be given priority against other normative considerations. This intuitive characterization suggests that human rights are not just a semantic creation. They capture a fundamental moral category.

1.1 The need for determinacy

Pre-institutional, urgent, minimal. These are just intuitive attributes of the inherence view of human rights underlying the ordinary discourse. How do we move from this basic concept to a conception?⁸ We may all understand the basic concept of human rights but strongly disagree about its underlying normative content. As Griffin puts it:

The term “human right” is nearly criterionless. There are unusually few criteria for determining when the term is used correctly and when incorrectly – and not just among politicians, but among philosophers, political theorists, and jurisprudents as well. The language of human rights has, in this way, become debased.⁹

This is also what Buchanan terms the “justificatory deficit”¹⁰ of human rights. The grounding concept of “dignity” pervading lists of international human rights¹¹ is particularly concerning. We often hear worries about its ontological and epistemological status: is “dignity” an inalienable property of human beings? If so, how can we lose it and thereby have our rights infringed? Surely, the “fact” of human “dignity” cannot be understood as the regularity of behavioural patterns or dispositions. Its binding force lies somewhere in the normative realm. We may agree that it is a normative status entitling rights-holders to be treated in certain ways independently of institutional relations,¹² but to what extent do human rights overlap with the broader Kantian concept of autonomy? A number of prominent legal and political theorists have also incorporated “dignity” into their concept of rights,¹³ but to what extent does it overlap with “human” rights? On pain of infinite regress, such a special moral status needs to be specified. We may also agree that “dignity” grounds our rights, while disagreeing about what these rights are rights to. Rosen rightly notes that:

Where John Paul II, for example, believes that dignity requires the inviolability of all human life from the moment of conception to the expiration of all vital functions, the well-known Swiss organization Dignitas is famous for assisting those who wish to “die with dignity” to end their own lives.¹⁴

The room for disagreement is exponential. It may arise in the middle of our ordinary rights claims. Does the right against inhumane or cruel treatment prohibit corporal punishment in all of its forms or only some? Should human rights lists include a right to free elections? As Letsas suggests, “we cannot inflate the concept of human rights so much that it covers the whole realm of justice. Human rights would then lose their distinctive moral force”.¹⁵ Furthermore, human rights are not just the rights of human beings. They are also rights. How do we understand the concept of rights within the concept of human rights? Are we justifying rights or just values or interests? As Nickel explains, “the fragment of intension we have – namely, a claim that we have on others simply in virtue of our being human – holds of moral claims in general and not all moral claims are rights-generated”.¹⁶ The concept of rights is expected to preserve a certain structure. Finally, one may draw on the history of ideas to fill the normative vacuum. However, the inherence view has a long and controversial history and may be justified by antagonistic conceptions of the deeper reasons for having and protecting rights.¹⁷ Indeed, the concept of “dignity” may find a place in Christian theology, in early liberal thought or later in Kant.

The philosophical task before us is significant. In this introductory chapter, I want to present two distinct and predominant ways in which this task has been envisioned in the recent literature in normative human rights theory: the moral conception of James Griffin, on the one hand, and the political conception of Charles Beitz, on the other. To construct the distinction, I present how each of those theorists understands the role of normative facts and practices associated with human rights in the enterprise of normative theorizing. Roughly put, normative facts and practices are the actions for which human rights give reasons for in the social world. I argue that this role differs radically in Griffin and Beitz: while the structure and content of human rights can be attained by moral reasoning in Griffin, that structure and content can be apprehended only through an interpretation of political facts and practices in Beitz. On the basis of that distinction, I suggest a way to move forward.

1.1.1 Griffin and the conception of personhood

In On Human Rights, James Griffin makes a seminal contribution to the field of normative human rights theory in arguing that human rights protect our status of normative agents. Griffin defends an account of human rights based on the value of “personhood”,¹⁸ understood as the inherent capacity for normative agency. This conception best captures the binding force of human rights and thereby justifies them. As Griffin explains:

Anyone who has the capacity to identify the good, whatever the extent of the capacity and whatever its sources, has what I mean by “a conception of a worthwhile life”; they have ideas, some of them reliable, about what makes a life better or worse.¹⁹

The value of personhood specifically aims to remedy the justificatory deficit of human rights.

The exercise of this distinctively human capacity for agency requires three things:

• first, an autonomy condition: one must “choose one’s path through life – that is, not be dominated or controlled by someone else”;²⁰

• second, a minimum provision condition: one must “at least have a certain minimum education and information; and, having chosen one’s path, one must be then able to act – that is, one must have at least the minimum provision of resources and capabilities that it takes”;²¹

• third, a liberty condition: “others must also not forcibly stop one from pursuing what one sees as a worthwhile life”.²²

If those three conditions are fulfilled, the value of personhood is realized. Further, personhood helps to determine in a ...

Table of contents

• Cover Page
• The ECHR and Human Rights Theory
• Routledge Research in Human Rights Law
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Abbreviations
• Chapter 1: Introduction: Human rights theory and the challenge of the ECHR
• Chapter 2: Ethical theories of human rights and their practice-independence
• Chapter 3: Political theories and their practice-dependence
• Chapter 4: Theorizing human rights: A constructivist proposal
• Chapter 5: The ECHR in historical perspective
• Chapter 6: The normativity of ECHR law
• Chapter 7: Interpretation at the ECtHR: Setting the stage
• Chapter 8: Balancing and justification at the ECtHR: The pivotal concept of “democratic necessity”
• Chapter 9: Conclusion: Constructing the normative foundations of the ECHR
• Bibliography
• Index