Kant’s Juridical Idea of Human Rights

Abstract

What is it for you to have a human right? And what justifies your claim to bear such a right? It is common to suppose that human rights possess such a unique, normative character that they cannot fit into the juridical mold of a right in a strict sense. James Nickel, for instance, claims that forcing human rights into the “narrow conceptual framework” of rights (strictly construed) does not serve well “the human rights movement and its purposes.” 2 Perhaps the most distinctive feature of a Kantian conception of human rights is precisely the opposite. We comprehend the nature and justification of human rights only by fitting them into the strict juridical mold of a right. My aim in this paper, then, is to begin to articulate and defend what I shall call Kant’s juridical idea of human rights. For Kant, a right in a strict juridical sense bears three distinguishing marks. It is a relational claim against another, a claim that is logically correlated with the other’s duty. A right is non-instrumentally justified as a first-order claim to independence against others. And a right is attached necessarily to a second-order power to enforce the right, a power that need not be exercised by the right holder. 3 The last two features of a Kantian right (and perhaps even the first) set apart the Kantian concept of a right from standard Will theories of rights, which conceive of rights as necessarily requiring a power of enforcing or waiving the other’s duty correlative to the right. 4 The first two features of a Kantian right set it apart from standard Interest theories of rights, which conceive of rights instrumentally as protections of an aspect of your welfare. 5 Kant’s juridical idea of human rights, then, is the view that human rights are those rights which play a unique logical role: they are constitutive conditions of any claim of right. A human right is noninstrumentally justified as an enforceable, direct requirement of your original right to independence. In order to articulate and defend Kant’s juridical thesis about human rights, I shall focus exclusively on the normative structure of a human rights claim, leaving out crucial questions about which human rights there are and what exact institutional structure is required by human rights at the domestic and international domains.