Prof. Dr. Dr. h.c. mult. Robert Alexy, Christian-Albrechts University of Kiel
Date TUE 16 Aug 2011
Time 20.00 h – 22.00 h
Location HZ 1/2
Human rights are considered, worldwide, as the basis of the normative order of society. This broad agreement is found not only in philosophy but also in politics and law. Numerous human rights covenants can be read as an expression of a triumphant march of human rights in the period after the Second World War. Their existence seems to be beyond question.
Nevertheless, there are doubts about whether the belief in the existence of human rights is anything more than a collective error or illusion. Fundamental criticism, directed to the assumption that human rights exist, is to be found not only in the dark regions of political, ideological, and religious extremism but also in highly respectable philosophical writings. Alasdair MacIntyre’s claim that ‘there are no such rights, and belief in them is one with belief in witches and unicorns’ is an example. This along with the fact, often corroborated in the history of ideas, that widespread consensus is by no means a guarantee of truth, is reason enough to raise the question of the existence of human rights, in short, the existence question.
It makes no sense to talk about the existence of something without explaining what it is that is claimed to exist. For this reason, a definition of human rights has to be elaborated. According to this definition human rights are, first, moral, second, universal, third, fundamental, and, fourth, abstract rights that, fifth, take priority over all other norms. For the question of the existence of human rights, the first defining element is of special importance. According to it, human rights are moral rights. Rights exst if they are valid. Positive rights are valid if they are duly issued and socially efficacious. In contrast to this, moral rights are valid if and only if they are justifiable. For this reason, the existence of human rights qua moral rights depends on their justifiability, and on that alone.
The question of whether human rights are justifiable has far-reaching consequences for legal
philosophy, for the theory of constitutional rights, and for politics. In legal philosophy, the answer to the question of what law is, that is, the question of the concept and the nature of law, essentially depends on whether human rights exist. If it should prove to be the case that human rights do not exist, then non-positivism would not be an acceptable alternative to positivism. The consequences for the theory of constitutional rights concern the basic character of constitutional rights. If human rights do not exist, constitutional rights would be nothing more than what has been written down in the constitution. They would have an exclusively positive character. If, however, it should be proven that they exist, the picture would change fundamentally. Constitutional rights would be understood as attempts to positivize human rights. This would imply that catalogues of constitutional rights can be assessed as more or less successful efforts to positivize human rights, and that the ideal character of human rights has to remain present in the interpretation of human rights. With respect to politics, finally, the main consequence concerns the problem of cultural relativism. The non-existence of human rights would count as a strong argument for cultural relativism, whereas the existence of human rights would be a good reason against cultural relativism. All of this shows that the question of the existence of human
rights is of very real theoretical and practical significance.
The theories about the justifiability of human rights, as well as the theories about the justifiability of moral norms in general, can be classified in many different ways. The most fundamental distinction is that between approaches that generally deny the possibility of any justification of human rights and approaches claiming that some sort of justification is possible. The first approach may be termed ‘scepticism’, the second ‘non-scepticism’. Scepticism will have its roots in forms of emotivism, decisionism, subjectivism, relativism, naturalism, or deconstructivism. Non-scepticism may well include one or more of these sceptical elements, but it insists that there be a possibility of giving reasons for human rights, reasons that lay claim to objectivity, correctness, or truth.
In order to defend non-scepticism, eight non-sceptical approaches may be considered. This list
comprises, first, the religious, second, the intuitionistic, third, the consensual, forth, the biological, fifth, the instrumental, sixth, the cultural, seventh, the explicative, and, eighth, the existential approach. The first six approaches have more defects than strengths. For this reason, the justification of human rights is based on the seventh and the eighth approaches, that is, on explicative and existential arguments.
A justification of human rights is explicative if it consists in making explicit what is necessarily implicit in human practice. If the practice is the practice of asserting, asking, and arguing, the justification obtains a discourse-theoretic character. The practice of asserting, asking, and arguing presupposes rules of discourse that express the ideas of freedom and equality. The ideas of freedom and equality, however, are the basis of human rights. To recognize another individual as free and equal is to recognize him as autonomous. To recognize him as autonomous is to recognize him as a person. To recognize him as a person is to attribute dignity to him. Attributing dignity to someone is, however, to recognize his human rights.
The explicative argument provides, indeed, a necessary part of the justification of human rights, but it is, by itself, not sufficient. Two problems are easily identified. The first concerns the necessity of the discourse rules. It is possible to circumvent this necessity by avoiding any participation in the practice of asserting, asking, and arguing. The price one pays for this, would, however, be high. Never to assert anything, never to ask any question, never to give any reason would be to forbear from participating in what essentially belongs to the form of life of human beings qua discursive creatures.
The second problem stems from the difference between discourse and action on the one hand and capabilities and interests on the other. Having discursive capabilities does not imply an interest in making use of them. This might be called the ‘interest problem’. The interest in making use of discursive capabilities solely in the sphere of argument might be called a ‘weak interest in correctness’. By contrast, the interest in making use of discursive capacities not only in the sphere of argument but also in the realm of action can be characterized as a ‘strong interest in correctness’. The strong interest in correctness comprises taking seriously the implications of the discursive capabilities in real life, that is to say, in taking seriously human rights. In this way, the interest in correctness makes it possible for us to arrive at the object of our justification.
It might be objected that this is no justification at all. It has lost its character as a justification, so the objection runs, once the premise concerning the interest is introduced. Indeed, this objection is not without merit. The objection must, however, be qualified. As with any interest, the interest in correctness is connected with decisions. This decision concerns the fundamental question of whether we accept our discursive capabilities or possibilities. It is the question of whether we want to see ourselves as discursive or reasonable creatures. This is a decision about who we are. It might be called ‘existential’. Still, to talk about justification or substantiation seems to be warranted, for this decision is not based on groundless or arbitrary preferences, drawn, so to speak, from nowhere.
Rather, the decision has the character of an endorsement of something that has been proven, by
means of explication, to be a capability necessarily connected with human beings or, in other words, a necessary possibility. As an endorsement of a necessary possibility the existential argument is intrinsically connected with the explicative argument. One might call this connection the ‘explicativeexistential justification’.
The explicative-existential justification connects objective with subjective elements. Objectivity
connected with subjectivity is, to be sure, less than pure objectivity, but it is also more than pure
subjectivity. If one adds to this the assumption that a purely objective justification of human rights is not possible, one has good reasons to qualify the explicative-existential argument qua objectivesubjective argument as a justification of human rights. This justification suffices to establish the validity of human rights as moral rights, which is to say that human rights exist.
Robert Alexy, born in 1945, studied law and philosophy at the Georg-August-University in Göttingen.
He wrote a dissertation entitled “A Theory of Legal Argumentation”, published in 1978, for which he received the award of the philologico-historical class of the Academy of Sciences in Göttingen. In 1984, he qualified as university lecturer in the faculty of law at the University of Göttingen. His thesis, submitted as his Habilitationsschrift, was entitled “A Theory of Constitutional Rights”. Since 1986, he has been Professor of Public Law and Legal Philosophy at the Christian-Albrechts-University in Kiel.
From 1994 to 1998, he was president of the German section of the IVR. Since 2002, he has been a member of the Academy of Sciences in Göttingen. In 2008, he was awarded a honorary doctorate, honoris causa, by the University of Alicante, the University of Buenos Aires, and by the University of Tucumán, in 2009, by the University of Antwerp, in 2010 in Lima (Universidad Nacional Mayor de San Marcos and Universidad Ricardo Palma). In 2010 he was awarded the First-Class Distinguished Service Cross of the Order of Merit of the Federal Republic of Germany.