The Relevance of Practice for Human Rights Theory

This paper concerns a disagreement over the methodology of human rights theory. In particular, it concerns whether we should take a ‘practice-independent’ approach (pI) or a ‘practice-dependent’ approach (pD) to theorizing about human rights. The central difference between these two approaches concerns which considerations are relevant in formulating a conception of human rights (Sangiovanni 2007). How this disagreement is resolved therefore has important implications for our understanding and evaluation of appeals to human rights in the discourse on global justice. According to pI, human rights are moral principles that apply universally to all practices, but whose justification is independent of any particular practice (Griffin 2008, Tasioulas 2009). Whereas human rights on pI provide external criteria by which to judge the justice of any practice, according to pD, human rights are principles internal to some particular practice (Beitz 2009, Rawls 1999, Sangiovanni 2007). On pD, the formulation of a conception of human rights must take into account the role that human rights are assigned within the relevant practice. By contrast, such considerations are ruled out by pI because of the alleged independence of human rights. This paper concerns the relationship between pI and pD in human rights theory. I consider and reject three views about this relationship: (1) that pI and pD are mutually exclusive, and that one approach or the other is superior in theorizing about human rights (Sangiovanni 2007, Tasioulas 2009); (2) that pI and pD are not mutually exclusive, but are nevertheless unrelated (Beitz 2009); and (3) that pI and pD are mutually supporting (Gilabert 2011). I reject each of these views in favour of the view that pI is prior to, but not superior to pD, and that indeed both practice-independent and practice-dependent approaches are useful in theorizing about human rights.