An Evaluation of the Core Controversies in Contemporary Western Human Rights Theory
 
— A Study Based on the Examination of the Criterion of Fidelity to Practice

LI Dan*

Abstract: The development of theories on human rights with Chinese characteristics and China’s engagement in global human rights governance cannot be separated from attention to contemporary Western human rights theory. The debate between naturalistic and political conceptions of human rights has a long history, but discussions on the basic criteria for evaluating human rights theories have been insufficient. This article, focusing on the criterion of fidelity to practice, attempts to identify the development trajectory and direction of human rights theory. The universal claims of naturalistic human rights perspectives and the human rights catalog they propose have been criticized for deviating from practice. On the other hand, political conceptions of human rights, while emphasizing domestic human rights practices, have been criticized for their occasional nature and perceived loss of criticality. The broad-way practice theory seeks a third way that goes beyond the divide between these two perspectives.On the one hand, the theory itself faces limitations and the need for reshaping, while on the other hand, the traditional singular practice theory is also undergoing self-renewal. It can be said that the “internal critique” of contemporary Western human rights theory is already underway and will continue.

Keywords: human rights practices · naturalistic conceptions of human rights · political conceptions of human rights · the broad-way practice theory · singular practice theory

I. Question Raised

In contemporary Western human rights theory, there is a multitude of complex perspectives, and the debate between naturalistic and political conceptions of human rights can be seen as one prominent theme running through it. Many scholars have discussed the dispute between these two major views. Scholars such as S. Matthew Liao and Adam Etinson argue that naturalistic conceptions of human rights are not only compatible with political conceptions but can also provide theoretical resources to enhance the theoretical integrity of political conceptions of human rights.¹ Erasmus Mayr advocates for a moderate version of the political conception of human rights, which can be seen as a hybrid or blended version that incorporates elements from both the political and naturalistic conceptions of human rights.² Cristina Lafont argues that the arguments put forth by Etinson and Mayr regarding the compatibility of the two conceptions of human rights are not sufficiently persuasive. According to Lafont, it is difficult to establish a genuine complementarity between the naturalistic and political conceptions of human rights.³ Kenneth Baynes advocates for the improvement of the political conception of human rights based on Joshua Cohen’s notion of “membership rights⁴”.⁵ Violetta Igneski maintains a stance in favor of naturalistic human rights theory and argues that it already encompasses sufficient political dimensions.⁶ Yan Hailiang advocates for a shift toward a functional perspective on human rights that is grounded in human dignity.⁷ This can be seen as an improved version of political human rights theory that incorporates elements from naturalistic human rights theory.

How to view the debate between naturalistic and political conceptions of human rights? This requires in-depth research and evaluation of the theoretical foundations of these two approaches, and the assessment of human rights theories relies on establishing basic criteria for evaluation. John Tasioulas proposes three necessary conditions for a good theory of human rights: first, it must provide a distinct account of human rights; second, it must be faithful to the human rights culture that emerged after 1945; and third, it must be non-narrow or non-localist in its approach.⁸ Andrea Sangiovanni, on the other hand, puts forward four necessary conditions: First, a theory of human rights must explain how human rights are a subset of moral rights. If human rights cannot be distinguished from moral rights, then the concept of human rights becomes redundant. Second, a theory of human rights must be faithful to the human rights culture and major human rights conventions that have emerged since 1945. Third, a theory of human rights must provide normative reasons for people’s actions, focusing on the normative aspect rather than the explanatory aspect. Fourth, a theory of human rights should provide a set of standards that help determine the scope of human rights.⁹ Yan Hailiang has also proposed his criteria for evaluating human rights theories.¹⁰

The evaluation criteria proposed by Tasioulas and Sangiovanni overlap to some extent. The basic criteria for assessing the quality of human rights theories can be summarized as follows: the criterion of differentiation (subset criterion), the criterion of fidelity to practice, the criterion of non-narrowness, the criterion of normativity, and the criterion of determinacy. These criteria are more or less involved in the confrontation between naturalistic human rights theory and political human rights theory. This article argues that the criterion of fidelity to practice serves as a link that not only connects other criteria but also helps to delineate the debate between naturalistic human rights theory and political human rights theory. The reason why the criterion of fidelity to practice can bridge the debate between the two perspectives lies in its involvement with methodological issues. Clarifying the methodology allows human rights theories with different emphases to focus on genuine and underlying disagreements.¹¹

A. The criterion of fidelity to practice is the methodology of human rights theory

Human rights theory generally focuses on four main aspects: the nature of human rights, the foundation of human rights, the content of human rights, and the methodology of human rights theory. Human rights scholars often overlook the importance of methodological considerations, leading to self-referential discussions and misunderstandings among different perspectives.¹² In essence, the issue of methodology is a highly significant meta-theoretical question.¹³ The “fidelity to practice” can be understood as the methodology pursued by both naturalistic and political conceptions of human rights. Both conceptions claim to be loyal to human rights practice, yet they have been criticized for deviating from actual human rights practice. Etinson attempts to address this criticism by exploring the reasons behind fidelity to practice, in order to untangle the excessive reliance of human rights theory on practice and respond to the critique of deviating from practice.

First, it is important to clarify the specific meaning of “human rights practice.” Different scholars use different terms to refer to human rights practice, such as human rights movement, human rights culture, or human rights discourse. Supporters of the naturalistic conception of human rights often avoid using the term “human rights practice.” For instance, Griffin mentions the need to be loyal to the “human rights discourse,” while Tasioulas advocates for loyalty to the post-1945 “human rights culture.” Etinson adopts James W. Nickel’s definition to analyze the aforementioned terms. Nickel’s definition is highly integrative, as he believes that human rights practice encompasses moral beliefs and attitudes, actions and activism, legal and political practices, public opinion, and scholarly work. Etinson argues that the academic discourse on human rights practice is semantically biased and often interpreted in political and legal terms. Griffin’s concept of “human rights discourse” indicates that his understanding of human rights extends beyond contemporary political and legal practices to encompass the moral and scholarly traditions since the Enlightenment. Tasioulas’s notion of “human rights culture” suggests that his perspective on human rights goes beyond the realms of politics and law and emphasizes the importance of moral sensitivity. Etinson argues that although there may be variations in the understanding of “human rights practice,” when discussing the standards of fidelity to practice, each theorist acknowledges that international human rights law and relevant political practices form the core of human rights practice.¹⁴

B. Why does human rights theory need fidelity to practice

Human rights theory aims to provide a normative framework for evaluating contemporary human rights practices while ensuring fidelity to practice in that framework. Why is fidelity to practice such an important theoretical goal? Etinson offers two explanations. First, it is related to semantics. Human rights theory can only be considered as such if it aligns to some extent with the “common understanding of human rights” rather than being construed as something else entirely. This “common understanding of human rights” often derives from human rights practice. Second, it is relevant to the focus of attention. When determining which rights in practice can be recognized as human rights, it is necessary to consider human rights practice and maintain fidelity to it. Otherwise, a theory may be deemed irrelevant if it deviates too far from practice.¹⁵

Human rights theory requires fidelity to practice, but the weight of practice in human rights theory should not be overemphasized. First, practice itself cannot generate genuine theory. Human rights practice has both fixed elements (its political and legal attributes) and variable elements (responses to human rights violations and their corresponding outcomes). The main problem with a political approach to human rights is that it transforms these variable factors into fixed ones, rendering them immutable. This prevents political approaches from questioning, critiquing, and reshaping human rights practice.¹⁶ Second, while semantic alignment is necessary for human rights theory, there is no need to pursue maximal semantic alignment. It is sufficient to achieve substantive alignment or interpretive alignment. The concept of “common understanding of human rights” is highly ambiguous, making it difficult to determine which theoretical concept of human rights aligns more closely with the commonly understood interpretation in practice. Etinson argues that human rights practice is not a singular domain but rather heterogeneous.¹⁷ It can be observed that Etinson’s analysis has taken on a broad approach, reminiscent of the concept of a “broad way” of understanding practice.

II. Is the Naturalistic View of Human Rights Faithful to Human Rights Practice?

A. The universality advocated by naturalistic human rights view is inconsistent with practice

1. The universality violates the criterion of fidelity to practice

Waldron has raised doubts about the universality of human rights. For most of human history, it is difficult to imagine humans as rights holders, and even if humans had rights thousands of years ago, they were fundamentally different from rights in the modern sense. Even in the present, human rights cannot universally apply to diverse social, cultural, economic, political, and legal contexts. In modern society, human rights also cannot be equally applicable to all individuals, particularly when considering infants, disabled individuals, and those with mental impairments.¹⁸

The political conception of human rights argues that the cross-temporal universality or eternity advocated by the naturalistic view of human rights does not align with contemporary human rights practice. Beitz points out that the drafters of human rights conventions would not attempt to apply social security and education rights to ancient Greece or medieval Europe; human rights can only be effective in specific societies. Raz states that it is absurd to claim that Upper Cave Man had the right to education and the notion that everyone has human rights at any time and any place does not correspond to contemporary human rights practice. Raz further argues that human rights have a synchronic universality, meaning that all individuals in the present time have human rights.¹⁹

The naturalistic view of human rights responds to the criticism raised by the political conception of human rights. In response to Raz’s notion of “synchronic universality,” Liao and Etinson argue that it does not fully align with contemporary human rights practice either. There are still hundreds of uncontacted tribes in the world today, whose members do not have the right or access to basic education. Regarding Beitz’s argument that human rights only function in modern society, Liao and Etinson question whether members of non-modern tribes, who lack modern characteristics, do not have human rights.²⁰

2. Efforts to align universality with human rights practices

To reconcile cross-temporal universality with human rights practice, the naturalistic view of human rights proposes three strategies: the abstraction strategy, the idealization strategy, and the modernity strategy. The abstraction strategy, represented by Griffin, suggests abandoning the eternal nature of lower-level human rights and argues that lower-level rights derive from higher-level rights, which alone possess eternity. Tasioulas criticizes the abstraction strategy by emphasizing that it must ensure that higher-level rights are genuinely human rights and not merely universal human interests. Otherwise, it would lead to redundancy in the concept of human rights and violate the criterion of differentiation.²¹ The second strategy is the idealization strategy. The general idea is that communities have an obligation to provide each person with the corresponding rights to the extent that it is feasible in an ideal scenario. Even Upper Cave Man would have the right to a fair trial, although the circumstances necessary for the realization of this obligation may not be present. Tasioulas identifies two shortcomings of the idealization strategy. First, it distorts the relationship between rights and corresponding obligations. The essence of human rights practice is that rights generate obligations, not that rights depend on the feasibility of fulfilling obligations. Second, it leads to high uncertainty regarding the existence and content of human rights, as they become contingent on future technological developments.²² The third strategy is the modernity strategy, represented by Tasioulas. He abandons the requirement of cross-temporal universality as a necessary condition for human rights. Instead, he argues that human rights are grounded in human nature and also rooted in the structure and needs of modern society. Based on this, Tasioulas proposes a set of conditions that satisfy modernity. He suggests that the modernity strategy has two advantages. First, compared to the idealization strategy, it provides a more precise and feasible understanding of the content of human rights, thus avoiding accusations of utopianism. Second, it offers a reliable explanation for the continuous growth of human rights since the 17th century, demonstrating how the content of human rights has reasonably evolved with changing social and historical conditions.²³

The three strategies are, more or less, subject to various criticisms and challenges. Beitz discusses the failure of the abstraction strategy. He introduces the distinction between first-order rights (basic rights or high-level human rights) and second-order rights (derivative rights or low-level human rights). Beitz argues that supporters of this strategy face a dilemma: On the one hand, in order to free first-order rights from the contingency of society or institutions, supporters would need to narrow down their normative content as much as possible. However, the more the core content is narrowed down, the narrower the scope of second-order rights derived from it. On the other hand, in order to maintain fidelity to practice, second-order rights should closely align with contemporary human rights documents, which requires broadening the core content of first-order rights as much as possible.²⁴ Raz also discusses the failure of the abstraction strategy. He argues that the distinction between basic rights and derivative rights is erroneous because it assumes that moral rights are derived from other moral rights. However, Raz advocates that rights should be proved in values and interests.²⁵ Tasioulas critiques the drawbacks of the idealization strategy and proposes the modernity strategy as an alternative. This strategy, similar to Beitz’s view that human rights only function in modern society, still falls under the criticism raised by Liao and Etinson.

Liao and Etinson propose an improved version of the abstract strategy. The general idea is to distinguish between the goals of rights and the objects of rights. The goals of human rights are eternal, while the objects of rights can vary with time, place, and society. The right to receive basic education, for example, is only an object of human rights and therefore appears in specific times, places, and societies. Its goal of ensuring necessary knowledge for human beings to live a fulfilling life in their respective environments applies to both modern individuals and Upper Cave Man, resulting in corresponding rights objects such as the right to acquire hunting and gathering skills.²⁶ Liao and Etinson argue that Raz’s critique of the abstraction strategy does not apply to the improved version of the abstraction strategy. This is because the objects of human rights no longer derive from other moral rights but rather from the goals of human rights, namely values.²⁷ Additionally, naturalistic human rights theories would not face the dilemma described by Beitz. The empirical evidence is that Griffin’s list of human rights based on the normative agency theory closely aligns with the rights enumerated in the Universal Declaration of Human Rights.²⁸

B. The human rights list issued by naturalistic views does not align with practice

The human rights lists proposed by naturalistic human rights theories are often criticized for not aligning with contemporary human rights practice and international human rights documents. However, this criticism also applies to certain proponents of political human rights theories. One notable example is John Rawls and his limited list of human rights, which does not match human rights practice. On the other hand, Raz has not explicitly put forth his list of human rights.²⁹ The following discussion revolves around the human rights lists proposed by naturalistic human rights theories. These lists either fail to include the rights enumerated in international human rights documents or introduce rights that are not found in these documents. The concepts of human rights put forth by proponents of naturalistic human rights (normative agency/N/N*) all fail to meet the requirement of fidelity to practice.

1. The human rights list provided by Griffin

Griffin argues that human rights are those moral rights that are crucial for protecting normative agency. This definition satisfies the criterion of differentiation. However, the question arises: How do we define normative agency? If the normative agency is defined as the ability to choose and pursue one’s life path, then all moral rights can be interpreted as contributing to this ability. For example, do we have a right to demand that others not evade taxes? Do we have a right to demand that others not steal from us? Do we have a right to demand that others honor their promises to us? These issues are all important to whether a person can lead a good life. The broad interpretation of normative agency fails to meet the criterion of differentiation and does not align with human rights practice. On the other hand, an extremely narrow understanding of normative agency, which associates it solely with being an agent of action, also leads to an overly limited scope for the human rights list and does not align with human rights practice. Even individuals who are enslaved or subjected to torture can still be considered agents of action, albeit under extremely difficult circumstances, and their agency is not rendered meaningless.³⁰

Griffin attempts to address the aforementioned issues by invoking the concept of “feasibility.” According to Griffin, for a right to qualify as a human right, it not only needs to possess normative agency reasons but also social feasibility. This requirement implies that human rights must be “minimal” in nature; otherwise, they would impose burdensome obligations on others and lack feasibility. Human rights protect the basic conditions of human life rather than an ideal state of happiness or perfection. Griffin distinguishes between a “sub-normative agency” state (barely maintaining physical and mental well-being) and a state “beyond normative agency” (having material resources and practical rationality) to further elucidate the concept of basic life.³¹ Associating human rights with a modest or basic standard of living has been a longstanding assertion in traditional human rights theory because linking human rights to a perfect or ideal life would render the concept of human rights redundant.³² Griffin argues that this approach satisfies the principle of distinction and is consistent with human rights practice. However, there are three criticisms to consider. First, does the notion of “minimal” truly align with human rights practice? The International Covenant on Economic, Social and Cultural Rights, for instance, does not seem to reflect a minimalist perspective on human rights. Second, feasibility does not fulfill the criterion of distinction. Griffin acknowledges that certain morally justified rights that are feasible may not be considered human rights, such as rights based on distributive justice or rights based on corrective justice.³³ Griffin argues that these are issues of justice and fairness, rather than human rights issues. Third, the theory of agency also does not meet the criterion of determinacy. How can we establish a threshold for being “minimal” that makes the human rights list relatively determinate? Even Griffin himself acknowledges that the boundary between states below the threshold of agency and states above the threshold of agency is not entirely clear. Factors such as social wealth unavoidably influence the positioning of this boundary, and its determination unavoidably involves an element of arbitrariness.³⁴ In conclusion, Griffin’s use of normative agency as a criterion to distinguish human rights from general moral rights does not fully satisfy the criterion of fidelity to practice, differentiation, and determinacy.

2. The human rights list provided by Tasioulas

Tasioulas argues that human rights are moral rights that individuals possess based on their human nature, and defines human rights as follows (N): Human rights are moral rights that all individuals possess solely by virtue of their humanity.³⁵ This definition encompasses three aspects: First, human rights are moral rights. Second, human rights are enjoyed by all individuals. Third, individuals possess human rights solely based on their human nature. Being based solely on human nature means that human rights do not require legal or social recognition. It also means that the enjoyment of human rights is not conditional upon the rights holder’s special relationship or membership in a particular group, nor is it conditional upon a specific action or behavior by the rights holder. However, the content of corresponding obligations to a particular human right can be subject to conditions. For example, the obligation to provide fair wages may be conditioned upon the individual’s performance of work, the obligation to provide a fair trial may be conditioned upon the individual being charged with a crime, and the obligation to allow political participation may be conditioned upon the individual being a member of a group.³⁶ Nicholas Wolterstorff’s opposition to attaching any conditions to human rights is based on his belief that doing so would undermine the distinction between human rights and general moral rights. Tasioulas argues that Wolterstorff’s view would lead to an overly restricted version of the human rights list, which would contradict human rights practice. This is because without conditions, many human rights, particularly positive rights, would be impossible to enjoy. For example, individuals with severe dementia would not be able to exercise their right to education or political participation. The content of these positive rights needs to be specified through “conditions.”³⁷

Tasioulas proposes that to satisfy both the criterion of differentiation and the criterion of practice, conditions can be set for the content of obligations, but these conditions must be limited in the following ways. First, formal names or titles should not be used when specifying the content of obligations. Second, the conditions that make obligations concrete should reflect the social and historical context in which human rights exist at present. Tasioulas further distinguishes human rights from more specific rights derived from them by using Raz’s concepts of “core rights” and “derivative rights.” In this way, he distinguishes between human rights and the more specific rights derived from them (which are not themselves human rights). For example, the right to participate in political processes belongs to human rights, while the right to vote in the United States is a derivative right that does not belong to human rights. Similarly, the right to a decent standard of living belongs to human rights, while the right to receive monthly social security assistance from the US government is a derivative right that does not belong to human rights.³⁸

Sangiovanni’s criticism of Tasioulas can be summarized in two points. First, human rights are rights that all individuals possess solely based on their humanity. If we exclude the rights that are deprived of criminals, the resulting human rights list would be much smaller than the one advocated in the human rights movement, which does not meet the standard of practice. The types and content of human rights would be constrained by the scope of rights that cannot be deprived of criminals according to the law, which is illogical and does not meet the normative standard.³⁹ Tasioulas’s concept of “conditions on conditions” still fails to explain certain rights, such as the right not to be offended. This right appears to possess universal characteristics and can easily be subject to conditions that meet the limitations set by Tasioulas.

Tasioulas does acknowledge the mentioned issue. His broad definition of human rights (N) might inappropriately encompass “trivial rights”⁴⁰ (such as the right not to be offended or the right not to be slapped) as well as “private rights” (such as the right not to be betrayed). Regarding “trivial rights,” Tasioulas explains them by employing the distinction between fundamental/derivative rights mentioned earlier. The right not to be offended is derived from the right to personal security, which is recognized as a human right in international human rights instruments. As for “private rights,” Tasioulas first points out that international human rights instruments do not exhaustively enumerate all human rights, and “private rights” fall under the category of rights not specified in international human rights instruments. Tasioulas further provides two restrictive revisions to his definition of human rights: Human rights are moral rights that all individuals enjoy solely based on their human nature, and there is always a reason to provide them with social protection (N*). Human rights are moral rights that all individuals enjoy solely based on their human nature, and there is always a reason to make them legally enforceable rights (N**).⁴¹ Tasioulas accepts only N* and does not accept N**, as he believes that incorporating the legal dimension into the concept of human rights is an improper restriction, which would create artificial distinctions between public and private and be misleading.⁴²

Sangiovanni’s response to Tasioulas raises two points of contention. First, Tasioulas may argue that trivial rights and private rights are indeed human rights, but this may contradict the current practice of the human rights movement, as no human rights practitioner would adopt such a broad understanding. Second, if Tasioulas does not consider trivial rights and private rights as human rights, is it possible to find a standard that includes rights such as the right to education and the right to a fair trial in the list of human rights while excluding rights such as the right not to be offended and the right to trust, in line with current human rights practice?⁴³ Sangiovanni questions whether Tasioulas’s human rights definition N* achieves such an effect.

III. Is the Political Theory of Human Rights Faithful to Human Rights Practice?

A. The political theory of human rights overlooks the domestic practice of human rights

1.Waldron’s critique of the separation between international and domestic practices

In his book The Law of Peoples, John Rawls presents a significant distinction between human rights and constitutional rights. He argues that constitutional rights impose legal constraints on government actions and provide judicial remedies when rights are violated. These domestic rights differ significantly in function from rights classified as human rights. The former involves domestic legal proceedings and judicial enforcement within a country, while the latter entails international attention or even military intervention from external countries.

Waldron points out that human rights practice does not recognize this gap between human rights and constitutional rights. Fundamental rights are actualized as constitutional rights, which, through legal means, restrict government actions within a country to protect individuals’ basic needs, such as freedom and well-being. These actualized fundamental rights align broadly with the rights stipulated in international human rights conventions. The purpose of these international conventions is to guide national constitutions to better protect fundamental rights.⁴⁴ Although Raz criticizes the disconnect between naturalistic human rights theories and human rights practice, asserting that human rights theory is solely concerned with human rights practice,⁴⁵and Beitz advocates for a “practice-based approach” to human rights theory, claiming that examining the functions of human rights in practice captures the essence of human rights,⁴⁶ the approach of political human rights perspectives that separate human rights from constitutional rights also fails to grasp the essence of human rights practice and deviates from it.

Waldron uses external condemnation as an example to attempt to bridge this artificial divide. When domestic remedies have been exhausted, formal condemnation from external sources may seem appropriate. This relationship resembles an appellate review process, with typical examples being regional human rights decisions made by the European Court of Human Rights and international human rights decisions made by the United Nations Human Rights Council. The International Covenant on Civil and Political Rights establishes a formal mechanism for member states to condemn a member state for human rights violations. The European Convention on Human Rights allows member states to file lawsuits with the European Court of Human Rights against other member states for human rights violations.⁴⁷ Waldron points out that international attention includes not only public criticism and condemnation but also the international assistance mentioned by Beitz. When a country cannot meet human rights standards, other countries and international institutions can assist. International assistance can help the country establish more appropriate human rights standards or more effective human rights mechanisms. In summary, human rights and constitutional rights largely overlap in scope, and domestic and international human rights practices are interconnected.

The attempt to close the gap poses theoretical challenges to the political conception of human rights. The first point of this article’s conclusion is that integrating domestic responses to human rights violations with international attention means that international attention is no longer the distinguishing criterion for defining human rights. The theoretical characteristic of the political conception of human rights will no longer exist. Any violation of rights in a country, such as property rights or other general legal rights, can be subject to external condemnation. If a country fails to adhere to the rule of law principle, it may face condemnation from other countries for not protecting the rights enshrined in its legal framework. However, not all of these rights are human rights.⁴⁸ The second point is that the political conception of human rights does not provide a true alternative to traditional human rights views.⁴⁹ When a right is violated, the reason it incurs international condemnation is because the international community considers that right to be a human right, not because the international community deems condemnation to be appropriate. The United Nations Human Rights Council already has a rough list of human rights that serves as a basis for examining the actions of governments. Waldron acknowledges that this does not imply the correctness of naturalistic views of human rights. However, international institutions and government bodies do share a common set of standards to assess the protection of individual rights in different countries, as if there were a universal checklist of rights that every individual should have in any contemporary context or location.⁵⁰ Waldron believes that this is the truth of contemporary human rights practice.
 
Waldron’s analysis has some validity, but it needs to address the two criticisms raised in this article. First, is it appropriate to use external condemnation as an example to discuss the theoretical challenges of the political conception of human rights? The core idea of the political conception of human rights is the “sovereignty of human rights” function, and external condemnation has a very weak effect on this function and is not typical. Waldron’s attempt to bridge the gap between domestic and international human rights practices focuses on remedies and assistance while selectively overlooking the “interference” function emphasized by the political conception of human rights. One possible reason is that Waldron believes that the “interference” is the main cause of the disconnect between domestic and international human rights practices, and the reason why the political conception of human rights neglects domestic human rights practices lies in its excessive emphasis on the “interference” function. Second, although Waldron seems to provide a conclusion that human rights have synchronic universality, he does not provide a sufficient argument for it. As mentioned earlier, the synchronic universality of human rights and its compatibility with contemporary human rights practices are also subject to debate.

2. Besson’s attempt to connect domestic practice with international practice

How to connect domestic human rights practice with international human rights practice? Samantha Besson’s discourse on the legality of human rights offers a possibility. Besson argues that legality is an essential characteristic of human rights, as human rights possess both moral and legal dimensions.⁵¹ The legality of human rights implies that human rights must go through the process of legalization. Besson argues that the legalization of human rights encompasses both domestic and international dimensions. The process of legalizing human rights primarily takes place at the domestic level. At the international level, international human rights law should adhere to the principle of minimalism. The rights established by international human rights law can only be considered human rights when they align with the rights recognized in the domestic laws of each country. If there is no corresponding right recognized in domestic laws, then the only international legal human right is the “right to have rights.”⁵² Furthermore, it can be argued that international human rights law is abstract and requires concretization through domestic human rights laws of each country. This involves not only the concretization of corresponding obligations to rights but also the concretization of the rights themselves.⁵³ The domestic and international dimensions of legalizing human rights are complementary. The various rights enshrined in international human rights instruments require the acceptance, incorporation, and concretization of domestic laws of each country. Besson argues that the advocacy for minimalism in international human rights law does not lead to redundancy in international legal human rights. On the contrary, this integrative theory of human rights legalization can bridge the gap between domestic and international human rights practices, preventing artificial disconnections that are inconsistent with contemporary human rights practices.⁵⁴

The integrative legality theory of human rights has its appeal, but its theoretical starting point remains highly controversial. Supporters of naturalistic theories of human rights explicitly oppose the idea that legality is an essential attribute of human rights. Griffin argues that the timing for the transformation of certain moral rights into legal rights is still not ripe, such as the “right to rescue.” These rights are theoretically contentious and do not meet the requirement of legal certainty. The legal codification of certain moral rights can be destructive, such as specifying in law the right of children to autonomy and freedom from parental interference. Due to the existence of non-legal mechanisms, the law should be the last resort for human rights remedies. Therefore, not all human rights require the protection of legal mechanisms, and the corresponding public resources should be allocated to more valuable goals.⁵⁵ Tasioulas indeed argues that human rights should not be contingent on legality and opposes incorporating the dimension of law into the concept of human rights.⁵⁶ Besson argues that both naturalistic⁵⁷ and political⁵⁸ conceptions of human rights have “legal blind spots.”

The theoretical and practical gap faced by both naturalistic and political conceptions of human rights lies in their “legal blind spots.” The reason human rights theories overlook the legal dimension is rooted in a fundamental distinction: the juxtaposition of concrete human rights practices against abstract human rights standards. The political conception of human rights asserts that its theory pertains to political and legal practices, employing practice-oriented or bottom-up approaches, but it fails to find a moral basis for critiquing these practices.⁵⁹ The naturalistic conception of human rights also denies the top-down approach and claims to adopt a bottom-up approach,⁶⁰ but in essence, it merely regards human rights practices as the target of criticism and guidance for human rights theory. The political conception of human rights faces the challenge of how to construct a human rights theory from legal practices and critique them from an abstract moral standpoint. The naturalistic conception of human rights faces the challenge of how to focus on abstract standards that are distinct from human rights practices while remaining faithful to legal practices.⁶¹ Besson argues that through the legal dimension of human rights, there can be a communication between the moral theory and political theory of human rights.⁶²

Besson’s theory of integrating human rights into the legal framework provides some insights into linking domestic and international human rights practices. However, it may have limitations in fully addressing the challenges faced by the two major theories of human rights. The question of why human rights possess legality and why legality is crucial in bridging the gap between theory and practice is indeed important. Besson may not have provided a satisfactory answer to these questions.

B. Excessive reliance on contingency of practice in political conceptions of human rights

Political conceptions of human rights argue that human rights are moral rights with specific functions in international affairs, namely rights that can generate international attention. Beitz distinguishes six types of international attention in his analysis.⁶³ This definition distinguishes human rights from general moral rights, satisfying the criterion of differentiation. However, it also leads to an excessive reliance on the contingency of practice in defining human rights, which alienates the standard of practice.

Waldron uses armed intervention as an example to illustrate the issue of contingency. He argues that the decision of one country to engage in armed intervention in another country is primarily driven by geopolitical factors rather than considerations of rights. Additionally, many factors run parallel to considerations of rights and collectively influence the decision of whether or not to intervene. Therefore, the concept of human rights becomes associated with international intervention and is consequently linked to the factors considered in making decisions about international intervention.⁶⁴ Waldron distinguishes between two scenarios: the “comprehensive consideration” conception of human rights and the “partial consideration” conception of human rights. The comprehensive consideration conception of human rights is counter-intuitive. For example, the invention of drones makes humanitarian intervention easier. Does this mean that certain rights that were not considered human rights before the invention of drones now become human rights? (Does technological convenience transform non-intervention into intervention?) Another example is the decision-making process in military interventions, which always takes into account the expectation of success and the possibility of protracted warfare. Does this imply that certain rights are human rights when dealing with weak governments (because the expectation of success is high and the possibility of protracted warfare is low), but cease to be human rights when dealing with governments with military resistance (because the expectation of success is low and the possibility of protracted warfare is high, resulting in a non-intervention decision)? The partial consideration conception of human rights refers to a situation where, even if the costs or potential harm to individuals and their property far outweigh the benefits of preventing a certain right, the right in question (R) is still associated with potential humanitarian intervention. Therefore, it is considered a special right, namely a human right.⁶⁵ Waldron further extends the issue of contingency to general types of international concern. The comprehensive consideration conception of human rights remains counter-intuitive. For example, if country X and country Y both violate right R, country Z may display significantly different levels of concern toward the violations based on its trade partnership with country X or its significant economic or diplomatic interests. Does this imply that right R is a human right in country Y but not in country X?⁶⁶

Sangiovanni further distinguishes the partial consideration conception of human rights into two categories: the frictional ordinary case and the frictionless ideal case. He argues that even in the frictional ordinary case, there are challenges similar to those faced by the comprehensive consideration conception. Therefore, Sangiovanni focuses on discussing the frictionless ideal case. The ideal case represents a frictionless scenario in which armed intervention has no cost and is guaranteed to succeed. However, if this were true and there were no other considerations, any violation of moral rights could be justified as armed intervention, rendering human rights indistinguishable from general moral rights and becoming a redundant concept. This holds true for other types of international concern beyond armed intervention.⁶⁷

The issue of contingency and the criteria for differentiation are two opposing ends of a balance. The more emphasis is placed on the practical costs and expectations of international intervention, the more prominent the issue of contingency becomes in the concept of human rights. Conversely, the less emphasis there is on practical factors, the more redundant the concept of human rights appears. Waldron discusses the partial consideration conception of human rights from the perspective of sovereignty. He first raises the question: Does a threshold need to be established for a right that is associated with humanitarian intervention to be defined as a human right? If the answer is negative, then almost any right could be considered a human right, which fails to meet the criteria for differentiation. If the answer is affirmative, then the threshold should at least reflect how important the right R is to the extent that it can supersede sovereignty. However, sovereignty is not a purely abstract concept; it has real-world implications. Sovereignty must respond to factors such as the international environment and inter-state conditions.⁶⁸ It can be said that the determination of sovereignty to some extent is based on practical considerations.⁶⁹ Therefore, the concept of human rights tied to the threshold of sovereignty has shifted toward contingency.

IV. The Broad-way Practice Theory — Transcending the Divide Between Naturalistic and Political Conceptions of Human Rights

A. The third path: Human rights concept under the broad-way practice theory

Rainer Forst summarized the dialectical development of human rights theory. He proposed an alternative approach (political conception of human rights) as a replacement for the traditional theory (naturalistic conception of human rights) and then put forward a third path that is more truthful than the alternative approach, aiming to achieve transcendence.⁷⁰ Forst believes that the broad-way practice theory proposed by Sangiovanni is exactly such a path.

Sangiovanni proposed the concept of human rights under the broad-way practice theory: Human rights are moral rights that, when systematically violated, attract universal moral, legal, and political attention. The human rights concept, combined with the broad-way practice theory, has the following four characteristics. First, this concept has a broad scope, encompassing the contemporary usage of most human rights. Particularly for protest scholars,⁷¹ this definition can provide conceptual support for many rights defended by protest organizations. Second, this concept is not so broad as to be meaningless. It satisfies the criterion of differentiation, as the uniqueness of human rights lies in their universal moral, legal, and political concern. Third, this concept does not rely on a particular shared human characteristic (such as human nature, dignity, or normative agency) to distinguish human rights from general moral rights. Consequently, certain subjects that may be excluded by naturalistic conceptions of human rights (such as disabled individuals, children, or collectives) can be included in the concept of human rights. Fourth, this concept does not treat the political function of human rights as a unique function but rather understands it as a specific instantiation within the framework of the broad-way practice theory. Therefore, it does not face the contingent challenges posed by the political conceptions of human rights.⁷² Sangiovanni’s concept of human rights attempts to integrate naturalistic and political conceptions of human rights. On the one hand, it adopts the argumentative framework of the political side (that human rights are a certain kind of moral right that generates attention when systematically violated). On the other hand, it incorporates moral considerations to enhance its normativity.

B. The context-sensitive broad-way practice theory

The core of the broad-way practice theory is to oppose the assumption of a single practice. Sangiovanni, starting from the rejection of a comprehensive list, puts forward the context-sensitive broad-way practice theory. Sangiovanni points out that the broad-way practice theory offers different paths, one of which is the creation of an “expanded list” that is claimed to be superior to the lists presented by naturalistic and political conceptions of human rights. Sangiovanni argues that the path of a comprehensive list is mistaken because it presupposes a single, coherent practice of human rights.⁷³ Naturalistic conceptions, political conceptions, and the expanded list version of the broad-way practice theory all assume a moral unity (unified in human rights practice) that can give rise to a single comprehensive list of human rights. But why assume such a list? Why assume that diverse practitioners such as the UN High Commissioner for Human Rights, judges of the European Court of Human Rights, activists from Amnesty International, and domestic activists in Asia all apply to the same list? Why not embrace the diversity and pluralism of fidelity to practice?⁷⁴

Sangiovanni proposes another approach to the broad-way practice theory called the context-sensitive broad-way practice theory. Sangiovanni uses the example of “tallness” to explain this concept. For instance, the statement “Michael Jordan is short” could be true when discussing basketball players but false when discussing ordinary people. Therefore, without specifying the specific context, “tallness” does not indicate any particular characteristic. The same applies to human rights. The concept of human rights held by international human rights activists, drafters of the European Convention on Human Rights, and members of parliament may not be consistent. For example, the human rights concept in the European Convention on Human Rights leans toward a political nature because it authorizes the European Court of Human Rights to make judgments on matters of sovereign intervention. On the other hand, the human rights concept in the “Black Lives Matter” movement leans towards a naturalistic perspective as it aligns with the movement’s goals. When considering the human rights concept in the Universal Declaration of Human Rights, its political nature is less clear. On the one hand, the Universal Declaration of Human Rights does not authorize acts of sovereign intervention, but on the other hand, it plays a broad role in political activities globally.⁷⁵ In conclusion, there is no single concept of human rights or unified list of human rights that applies universally to all contexts.

Sangiovanni identifies two divergences regarding the concept of human rights. Taking the interpretation of the concept in the Universal Declaration of Human Rights as an example, the first divergence lies in the differing views on the specific role the Universal Declaration of Human Rights should play in the international system and the particular goals it should achieve, which consequently leads to divergent conceptions of human rights that align with these views. The second divergence arises when there is agreement on the specific goals of the Universal Declaration of Human Rights, but disagreement exists regarding the conceptions of human rights that correspond to these goals.⁷⁶ The concept of human rights can be divided into intermediate concepts and final conceptions. Intermediate concepts involve specific contexts, and different situations lead to different intermediate concepts, which in turn give rise to different final conceptions of human rights.⁷⁷ Sangiovanni’s model of the generation of human rights concepts can be summarized as follows: specific situations lead to specific roles and objectives, which in turn give rise to specific moral, legal, and political concerns/intermediate concepts, leading to the formation of final conceptions of human rights.

The context-sensitive broad-way practice theory aligns with the fidelity to practice criterion because it acknowledges the diversity of practices. The universal moral, legal, and political concerns within human rights definitions vary with different contexts. A possible critique of the broad-way practice theory is that different practitioners of human rights genuinely believe they are engaged in a human rights practice. In response, Sangiovanni points out that abandoning the assumption of a single practice does not imply abandoning the idea of a single project. We all participate in a shared project of realizing human rights while having different and non-competitive understandings of what constitutes human rights and how to achieve them. Judges at the
European Court of Human Rights and activists in human rights organizations can perceive themselves as participating in the same human rights project, even though their understandings of human rights may differ depending on specific contextualizations. It can be said that the terminology of human rights is diverse but still unified.⁷⁸

V. Response to the Broad-way Practice Theory

A. Weaknesses and reshaping of the broad-way practice theory

1. Critiques of Sangiovanni’s broad-way practice theory

Forst’s position is that the broad-way practice theory does not align with the criterion of fidelity to practice. According to Forst, human rights are a discourse invented to unify different interpretations in various contexts. The purpose of inventing human rights is to establish a conception that no one can reasonably reject from any perspective. Therefore, Sangiovanni’s context-sensitive broad-way practice theory does not correspond to the essence of human rights practice, and his idea of a single project cannot overcome this drawback.⁷⁹ This article also argues that Sangiovanni’s context-sensitive broad-way practice theory can easily slide into the “discourse approach.”⁸⁰ It holds that human rights exist solely within people’s discourse and discussions. The proponents of this approach fear human rights imperialism and emphasize the moral limitations of human rights. They are skeptical of the efficacy of human rights and place their hopes in higher forms of liberation.⁸¹

The different conceptions of human rights discussed by Sangiovanni essentially pertain to the interpretation and application of human rights. The so-called conceptual differences in human rights revolve around how to ensure and achieve human rights, rather than whether a particular right is considered a human right or not.⁸² Forst argues that the notion of “universal moral, legal, and political concern” is too broad. For human rights to transcend various types of scenarios, it requires a certain moral unity, which needs to have more normative content than the moral concern advocated by Sangiovanni. The use of more substantial moral language, such as dignity or normative status, is inevitable; otherwise, the concept of human rights would become empty. The concept of human rights should provide normative justifications for the “universal moral, legal, and political concern,” and these justifications should not have sources other than morality, as otherwise, they would face issues of contingency.⁸³ From this perspective, it can be seen that Forst particularly emphasizes the moral essence of human rights theory.

2. Forst’s reconstruction of the broad-way practice theory

Forst does indeed propose his alternative approach. Like Sangiovanni, Forst also acknowledges the relevance of relating the concept of human rights to social contexts. Therefore, Sangiovanni might find Forst’s alternative approach acceptable.⁸⁴ Forst advocates for a non-foundational theory of human rights construction through deliberation. His argument starts with the premise that every person has a claim to justified rights. His definition of human rights is that they are a set of fundamental rights that are socially protected to ensure their justification.⁸⁵ In any particular context, the concept of human rights needs to be established through discursive deliberation. The process deliberation must adhere to the standards of generality and reciprocity⁸⁶ (including the mutuality of content and the mutuality of reasons⁸⁷). The process of constructive deliberation includes both moral construction and political construction. Moral construction provides a general but somewhat ambiguous list of human rights, which is then made more specific through political construction. Political construction does not simply reflect fixed moral human rights but rather interprets basic rights within a specific political community to make them more definite. Moral construction is essential as it provides the moral unity that Forst has consistently emphasized.⁸⁸ Political construction is the autonomous practice of people in constructing a legitimate social and political order through deliberation. It is centered around moral construction, and if a particular interpretation or institution violates the moral core of basic rights, it lacks legitimacy.⁸⁹ The relationship between moral construction and political construction can be described as follows: Moral construction without political construction is “hollow” and abstract, while political construction without moral construction is “blind.”⁹⁰ Forst believes that this theory of human rights grants “normative power”⁹¹ to actors within social and political orders. It allows them to express themselves and become norm-setters rather than just recipients of norms, enabling them to collectively determine the norms that govern their normative order.⁹²

Forst’s theory can indeed be seen as a reshaping of the broad-way practice theory. It shares some degree of similarity with Sangiovanni’s context-sensitive approach, as it involves the political construction of basic rights through the specificity of different social and political orders (i.e., different contexts). In this regard, the article suggests that Forst’s theory of deliberative construction supports a form of moral pluralism that is compatible with universality.⁹³ This point is similar to what Stephen C. Angle argues.⁹⁴ This morally pluralistic approach compatible with universality faces two challenges. First, on the one hand, universality demands a relatively fixed list of fundamental rights. On the other hand, moral pluralism suggests that specific social contexts generate specific claims of rights, and the human rights list is not fixed or determined. There is a tension between these two positions.⁹⁵ Forst’s argument seems to suggest that specific contexts should yield to the demands of universality (political construction based on moral construction as its core). Second, moral pluralism cannot establish universality.⁹⁶ In conclusion, Forst proposes the theory of deliberative construction of human rights as a response to the challenges posed by Sangiovanni’s “broad-way practice theory.” However, Forst’s theory also faces theoretical difficulties.

B. Reshaping the singular practice theory

1. Campos’s attempt to reshape the singular practice theory

Andre Santos Campos attempts to reshape the singular practice theory using H.L.A. Hart’s “rule of recognition” as a theoretical tool. Campos argues that a series of features inherent in the rule of recognition can be applied to the perspective of political conceptions of human rights in international human rights practice. He elaborates on the following six characteristics of the rule of recognition⁹⁷: First, the rule of recognition is a social norm, and the efficacy of social norms derives from society itself. Similarly, international human rights practice is also a social norm. The existence and content of international human rights practice originate from specific social facts. This social fact is that members of the international community adopt a certain behavioral paradigm regarding human rights as an internal perspective for evaluating the efficacy of human rights norms. Second, the rule of recognition possesses ultimate normative force, meaning its validity derives solely from general social practice and not from any other norm. Similarly, in the political conception of human rights, international human rights practices do not presuppose a particular authority, and their efficacy does not stem from any external value. Their existence is solely the result of recognition by the international community. Third, the rule of recognition is secondary, meaning it is a rule about rules. Similarly, international human rights practice can be seen as a secondary rule, providing basic standards for domestic human rights norms. International human rights practice serves as a normative source for the legitimacy of a government’s actions. When a state violates human rights, international human rights practice provides a legitimate justification for international intervention. The analogy between primary rules and secondary rules here aligns with Lafont’s concept of primary responsibility and the concept of reserve responsibility,⁹⁸ as they both emphasize the protection of human rights. Fourth, the rule of recognition includes the obligation of the legal entity to respect the effectiveness of the official legal system. Similarly, international human rights practice entails similar obligations. Each member has an obligation to comply with primary rules, which are effective due to the adherence to secondary rules, such as international human rights norms. International intervention in response to a state’s human rights violations can be understood as a punitive mechanism for breaching common obligations. Waldron has raised the question of whether international intervention should be seen as a “responsibility” rather than just a right or permission.⁹⁹ Campos provides an affirmative answer here. Fifth, the rule of recognition only applies to public subjects. Similarly, international human rights norms as secondary rules also apply to such subjects, including states and international institutions. It is only the domestic human rights norms as primary rules that apply to individuals as citizens. Sixth, moral justification is not a necessary condition conceptually within the rule of recognition. However, the rule of recognition does not exclude moral reasoning, and moral values can be combined with the rule of recognition. The inclusion of moral standards as part of the rule of recognition is based on their intrinsic recognition within practice, rather than being an external element.¹⁰⁰ Similarly, international human rights practice can also incorporate moral standards that justify different conceptions of human rights. These moral standards are included in the concept of human rights solely because they are recognized as essential components of international human rights practice.

Campos attempts to find similarities between international human rights practice and Hart’s rule of recognition through the six characteristics mentioned above. International human rights practice is considered a social norm, and its ultimate source of effectiveness lies in social facts. It sets obligations for international actors and functions similarly to secondary rules. Most importantly, the moral elements derived from international human rights practice itself have a critical impact on the practice.

2. Response from the singular practice theory to the broad-way practice theory

The broad-way practice theory asserts that different actors, in different contexts, reveal different uses of human rights, thus highlighting diverse human rights practices. However, the view that different human rights practices can coexist fails to fully explain potential conflicts within the practice, such as conflicts between different standards or conflicts within the same standard regarding different modes of application. The broad-way practice theory considers human rights as context-bound, but it does not seek a “meta-practice” that can address conflicts arising from different practices. The problems brought by the context-sensitive broad-way practice theory include the inability to facilitate communication between different human rights practices and the failure to meet the expectation of interaction among human rights practitioners. Hart’s model includes multiple criteria for identifying legal sources, which can be conflicting. The rule of recognition does not resolve all conflicts but establishes a system of precedents to provide final decisions for each specific conflict. Campos suggests that the perspective of Hart’s model can be used to reinterpret the singular practice theory. International human rights practice is a heterogeneous but unified practice that includes different criteria determined and ranked by precedents to address potential conflicts in various human rights claims. These criteria all originate from the same social norm, which is the unified human rights practice. Therefore, international human rights practice is a heterogeneous yet singular practice that allows for conflicts among different “sub-practices” within the same normative domain.¹⁰¹

The broad-way practice theory argues that a fixed human rights list is a mere fantasy. The singular practice theory, on the other hand, always accompanies the notion of a human rights list, deriving it from some moral core to guide practice, and positing that the list should not easily change. However, practice is dynamic and evolving, and a human rights list should be open and expandable. The fixed nature of a comprehensive list contradicts the openness of human rights practice. Therefore, the broad-way practice theory suggests that different actors can provide different justifications for their actions, resulting in different lists. Campos argues that there is no need to resort to the broad-way practice theory to understand the openness of human rights practice. Instead, by employing Hart’s model of the singular practice theory, it is still possible to explain. Hart’s model envisions a unified social norm that can evolve, indicating its evolutionary nature. Additionally, Campos suggests that the singular practice theory does not seek a comprehensive list but rather a subset called the basic human rights list. The comprehensive human rights list includes rights that vary in their importance. Therefore, it is necessary to identify a basic human rights list that encompasses the most important rights.¹⁰² In other words, the comprehensive list of rights is contradictory to the openness of human rights practice, but the basic list of human rights is compatible with the openness of human rights practice because the fundamental content does not change over time.

How to determine “human rights violations” in context-specific human rights practices? For example, Saudi Arabia stipulates that obtaining the consent of a male guardian is a necessary condition for women to get married. Western countries argue that this infringes upon women’s autonomy and equality rights in marriage. Saudi Arabia, on the other hand, believes that this regulation aligns with its religious autonomy and cultural traditions, which it considers the most important human right. The broad-way practice theory does not provide a strong explanation for this issue. It argues that in one practice, a country violates human right R (women’s autonomy in marriage), while in another practice, it does not violate human right R. The singular practice theory, with the help of Hart’s model, can respond to this problem. The rule of recognition does not offer a definitive, binary rule, but rather a complex network of norms that include obligations and powers. If international human rights practice only recognizes human right R (women’s autonomy in marriage) and does not specifically authorize a country S (Saudi Arabia) to recognize new rights, then country S would be violating the human rights practice. However, if international human rights practice encompasses human right R (religious freedom and cultural heritage rights) or allows space for recognizing new right R, then country S would not be violating the human rights practice. Since the content of international human rights practice is constantly evolving, the resolution of each instance relies on specific norms at that time.¹⁰³

3. Reexamination of the issues of contingency and critical loss

The problem of contingency is a major challenge faced by the political conception of human rights. As Waldron argues, suppose that a country, S, systematically abuses a certain group within its borders. Initially, the existing international order does not provide reasonable grounds for international intervention. However, changes in the international order create conditions for intervention. Does this mean that the same group, which previously did not enjoy human rights, now possesses them? Hart’s model can address this problem. Even in the absence of international conditions for intervention, there are still reasons to intervene in country S, indicating that the group does indeed possess human rights. However, the reasons for non-intervention outweigh the reasons for intervention, resulting in a decision not to intervene. The reasons for intervention, non-intervention, and other decision-making factors are all different components of the social norm of international human rights practice.¹⁰⁴ This is an embodiment of the heterogeneous nature of international human rights practice.

Loss of criticism is another major challenge faced by the political theory of human rights. The application of the rule of recognition can make international human rights practice both evolutionary and self-critical. As mentioned earlier, the rule of recognition does not exclude moral standards. Moral standards can provide reasons for the effectiveness of other norms, and these moral standards ultimately originate from social facts. Some moral facts hold a higher level than other social facts, providing moral justifications for not adhering to those lower-level social facts and offering critical sources of evaluation. However, these moral facts are still ultimately grounded in a final social fact. Moral justifications and other normative experiential reasons are all different components of international human rights practice. As different elements of human rights practice, they may conflict with each other rather than being opposed, allowing for ongoing self-criticism within international human rights practice.¹⁰⁵ In conclusion, the heterogeneity of international human rights practice can better address issues of contingency and critical loss.

It should be noted that Campos emphasizes that he only uses Hart’s model as an inspirational tool rather than a theoretical interpretation of international human rights practice. This is because the application of the rule of recognition relies on the existence of a stable legal system, which includes mechanisms for enforcement. The rule of recognition serves as a theoretical tool to explain the efficacy of different legal norms within a legal system. Therefore, Hart explicitly states that the rule of recognition does not apply to international public law, which lacks a systematic enforcement mechanism.¹⁰⁶ However, Campos’s discourse still provides the potential for the reshaping of the singular practice theory.

VI. Conclusion

In contemporary times, human rights can be undoubtedly deemed as a universally pursued endeavor of global significance. They are also a locally contextualized undertaking that varies in richness and diversity across countries, taking into account their development needs and specific circumstances. As part of the human rights endeavor, the study of human rights theory follows the same pattern. A broad theoretical perspective is necessary to ensure grounded progress. In the development process of human rights in China, it is essential to strive for the construction and continuous improvement of a human rights theory with Chinese characteristics. This will promote the healthy and rapid development of the human rights cause and fulfill the aspirations of the Chinese people for a better life. Constructing a human rights theory that is suitable for Chinese social development also requires actively engaging with and reinterpreting mainstream Western human rights theories and practices. In the context of unprecedented changes occurring in the world, it is crucial to adopt an open and inclusive mindset to understand the evolving global human rights governance system and its practices. In China, some scholars have provided insightful discussions on China’s unique human rights theory. They have proposed perspectives such as the development-oriented theories of human rights¹⁰⁷ and the community-oriented theories of human rights.¹⁰⁸ Additionally, some scholars have attempted to put forth non-Western universal human rights theories, such as the prepayment perspectives on human rights.¹⁰⁹ These explorations have generated significant reactions within the theoretical community and demonstrate the conscious efforts of Chinese scholars to integrate human rights with China’s practical development, forging a distinct path for human rights in the country. The attention given to and criticism of Western human rights theories are necessary steps to deepen human rights research in China and enhance the level of scholarship in this field.

The fact that the concept of modern human rights originated in the West and that human rights theory first flourished in the West teaches us an important lesson. Whether we are proposing a human rights theory with Chinese characteristics or developing a non-Western universal human rights theory to guide global human rights governance, attention to and research on Western human rights theories are indispensable. This article analyzes and comments on the core controversies within contemporary Western human rights theory, specifically the debate between naturalistic and political conceptions of human rights. The Western debate on naturalistic and political conceptions of human rights holds significant theoretical importance as it reflects the mainstream theoretical tendencies among Western scholars regarding the fundamental concepts and theories of human rights. Exploring and taking positions on the foundational theories of human rights have guiding and inspiring implications for our understanding of the practical issues surrounding human rights in reality. The theoretical positions that individuals hold regarding human rights are closely related to their understanding and perspectives on practical human rights issues. To truly comprehend and appreciate Western human rights theories, it is necessary to delve into their internal dynamics through internal examination and critique. In the context of this article, the focus is on using the criterion of fidelity to practice as a guiding principle to reexamine the mutual debates and inherent logic surrounding naturalistic and political conceptions of human rights. This is followed by introducing the broad-way practice theory and offering responses and commentary on the issues raised by this theory. The internal critique presented in this article represents a preliminary attempt to understand the core controversies within contemporary Western human rights theory.

(Translated by LI Donglin)

* LI Dan ( 李聃 ), Doctoral candidate at the Renmin University of China Law School. This article is a phased result of the research project “Study on Contemporary Chinese Human Rights Theory and Discourse” funded by the Scientific Research Fund of the Renmin University of China (Approval No. 22XNA006).

1. S. Matthew Liao and Adam Etinson, “Political and Naturalistic Conceptions of Human Rights: A False Polemic?,” Journal of Moral Philosophy 9 (2012): 352.

2. Erasmus Mayr, “The Political and Moral Conceptions of Human Rights — A Mixed Account,” in The Philosophy of Human Rights: Contemporary Controversies, Ernst, G., and Heilinger, J. eds. (Berlin: De Gruyter, Inc., 2011), 78.

3. Cristina Lafont, “Are Human Rights Associative Rights? The Debate between Humanist and Political Conceptions of Human Rights Revisited,” 25 Critical Review of International Social and Political Philosophy 1 (2022): 30.

4. Joshua Cohen, “Minimalism About Human Rights: The Most We Can Hope For?,” 12 The Journal of Political Philosophy, No. 2 (2004).

5. Kenneth Baynes, “Discourse Ethics and the Political Conception of Human Rights,” 2 Ethics & Global Politics 1 (2009).

6. Violetta Igneski, “A Sufficiently Political Orthodox Conception of Human Rights,” 10 Journal of Global Ethics 2 (2014).

7. Yan Hailiang, “Current Evolution of Human Rights Conceptions: Towards a Human Dignity-Based Functional Human Rights Theory,” Global Law Review 4 (2015).
 
8. John Tasioulas, “On the Nature of Human Rights,” in The Philosophy of Human Rights: Contemporary Controversies, Ernst, G., & Heilinger, J. eds. (Berlin: De Gniyter, Inc., 2011), 18-19.

9. Andrea Sangiovanni, “Beyond the Political-Orthodox Divide — The Broad View,” in Adam Etinson ed., Human Rights: Moral or Political (London: Oxford University Press, 2018), 176.

10. Yan Hailiang, Human Rights in the Age of Globalization — Exploring from the Perspective of Joseph Raz(Beijing: Law Press · China, 2015), 24-25.

11. James W. Nickel, Assigning Functions to Human Rights — Methodological Issues in Human Rights Theory,”in Human Rights: Moral or Political? Adam Etinson ed. (London: Oxford University Press, 2018), 157-158.

12. Adam Etinson, “On Being Faithful to the ‘Practice’ — A Response to Nickel,” in Human Rights: Moral or Political? Adam Etinson ed. (Beijing: London: Oxford University Press, 2018), 160.

13. Ibid., 164.

14. Ibid., 164-165.

15. Ibid., 167-168.

16. Ibid., 172.

17. Ibid., 170.

18. Jeremy Waldron, “A Critique of the Raz/Rawls Approach,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 117-118.

19. S. Matthew Liao and Adam Etinson, “Political and Naturalistic Conceptions of Human Rights: A False Polemic?,” 333-334.

20. Ibid., 337-338.

21. John Tasioulas, “On the Nature of Human Rights,” in The Philosophy of Human Rights: Contemporary Controversies, Ernst, G., & Heilinger, J. eds. (Berlin: De Gniyter, Inc., 2011), 33.

22. Ibid., 34-35.

23. Ibid., 35-36.

24. S. Matthew Liao and Adam Etinson, “Political and Naturalistic Conceptions of Human Rights: A False Polemic?,” 342.

25. Ibid., 341.

26. Ibid., 339.

27. Ibid., 341.

28. Ibid., 342-343.

29. Huang Jinrong, “Reconstruction of the Concept of Human Rights Under the Trend of Human Rights Inflation: A Perspective from International Human Rights Law,” Zhejiang Social Sciences 10 (2018): 30.

30. Andrea Sangiovanni, “Beyond the Political-Orthodox Divide — The Broad View,” in Adam Etinson ed., Human Rights: Moral or Political (London: Oxford University Press, 2018), 177.

31. James Griffin, “Human Rights and the Autonomy of International Law,” in The Philosophy of International Law, Besson, S., & Tasioulas, J. eds. (London: Oxford University Press, 2010), 348.

32. James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), 34.

33. Andrea Sangiovanni, “Beyond the Political-Orthodox Divide — The Broad View,” in Adam Etinson ed., Human Rights: Moral or Political (London: Oxford University Press, 2018), 178-179.

34. James Griffin, “Human Rights and the Autonomy of International Law,” in The Philosophy of International Law, Besson, S., & Tasioulas, J. eds. (London: Oxford University Press, 2010), 349.

35. John Tasioulas, “On the Nature of Human Rights,” in The Philosophy of Human Rights: Contemporary Controversies, Ernst, G., & Heilinger, J. eds.(Berlin: De Gniyter, Inc., 2011), 26.

36. Ibid., 37.

37. Ibid., 38.

38. Ibid., 39.

39. Andrea Sangiovanni, “Beyond the Political-Orthodox Divide — The Broad View,” in Adam Etinson ed., Human Rights: Moral or Political (London: Oxford University Press, 2018), 180.

40. Mayr discusses the issue of trivial rights from the perspective of the political conception of human rights. He points out that trivial rights fail to provide legitimate reasons for international attention. The definition of human rights provided by naturalistic theories does not align with the role human rights play in current practice, failing to meet the fidelity to practice standard and thus being deemed irrelevant (“irrelevance objection”). To address this problem, naturalistic theories of human rights introduce thresholds in the definition of human rights to exclude trivial rights. However, these thresholds are influenced by the weight of sovereignty, leading to a shift towards the political conception of human rights (“threshold objection”). It is worth noting that this argument is entirely based on the perspective of the political conception of human rights, which may be subject to circular reasoning. For more details, see Erasmus Mayr, “The Political and Moral Conceptions of Human Rights — A Mixed Account,” in The Philosophy of Human Rights: Contemporary Controversies, Ernst, G., and Heilinger, J. eds. (Berlin: De Gruyter, Inc., 2011), 84-89.

41. John Tasioulas, “On the Nature of Human Rights,” in The Philosophy of Human Rights: Contemporary Controversies, Ernst, G., & Heilinger, J. eds. (Berlin: De Gniyter, Inc., 2011), 41.

42. Ibid., 42-43.

43. Andrea Sangiovanni, “Beyond the Political-Orthodox Divide — The Broad View,” in Adam Etinson ed., Human Rights: Moral or Political (London: Oxford University Press, 2018), 181.

44. Jeremy Waldron, “A Critique of the Raz/Rawls Approach,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 130.

45. See Joseph Raz, “On Waldron’s Critique of Raz on Human Rights,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 144.

46. Charles R. Beitz, “From Practice to theory,” 20 Constellations 1 (2013): 29.

47. Jeremy Waldron, “A Critique of the Raz/Rawls Approach,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 134.

48. Ibid., 135.

49. For similar ideas, see S. Matthew Liao and Adam Etinson, “Political and Naturalistic Conceptions of Human Rights: A False Polemic?,” 346-351.

50. Jeremy Waldron, “A Critique of the Raz/Rawls Approach,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 136.

51. About the legality of human rights, see Samantha Besson, “Human Rights: Ethical, Political...or Legal? First Steps in a Legal Theory of Human Rights,” in The Role of Ethics in International Law, Childress, I. D. E. eds. (Cambridge: Cambridge University Press, 2011), 236-240.

52. Ibid., 245.

53. Ibid., 242.

54. Ibid., 243-244.

55. James Griffin, “Human Rights and the Autonomy of International Law,” in The Philosophy of International Law, Besson, S., & Tasioulas, J. eds. (London: Oxford University Press, 2010), 354-355.

56. John Tasioulas, “On the Nature of Human Rights,” in The Philosophy of Human Rights: Contemporary Controversies, Ernst, G., & Heilinger, J. eds. (Berlin: De Gniyter, Inc., 2011), 37 and 42.

57. On the “legal blind spot” of naturalistic conceptions of human rights, see Samantha Besson, “Human Rights: Ethical, Political...or Legal? First Steps in a Legal Theory of Human Rights,” in The Role of Ethics in International Law, Childress, I. D. E. eds. (Cambridge: Cambridge University Press, 2011), 219-222.

58. Ibid., 223-230.

59. Ibid., 215.

60. James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), 29; Also see John Tasioulas, “Are Human Rights Essentially Triggers for Intervention?” 4 Philosophical Compass 6 (2009): 939.

61. Samantha Besson, “Human Rights: Ethical, Political...or Legal? First Steps in a Legal Theory of Human Rights,” in The Role of Ethics in International Law, Childress, I. D. E. eds. (Cambridge: Cambridge University Press, 2011), 216.

62. Ibid., 218.

63. Adam Etinson, “On Being Faithful to the ‘Practice’ — A Response to Nickel,” in Human Rights: Moral or Political?, Adam Etinson ed. (Beijing: London: Oxford University Press, 2018), 31.

64. Jeremy Waldron, “A Critique of the Raz/Rawls Approach,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 124.

65. Ibid., 126-127.

66. Ibid., 133.

67. Andrea Sangiovanni, “Beyond the Political-Orthodox Divide — The Broad View,” in Adam Etinson ed., Human Rights: Moral or Political (London: Oxford University Press, 2018), 183-185.

68. Jeremy Waldron, “A Critique of the Raz/Rawls Approach,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 127.

69. Ibid., 133.

70. Rainer Forst, “Human Rights in Context — A Comment on Sangiovanni,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 200.

71. For more details, see Marie-Benedicte Dembour, “What Are Human Rights? Four Schools of Thought,” Human Rights Quarterly 32 (2010): 3.

72. Andrea Sangiovanni, “Beyond the Political-Orthodox Divide — The Broad View,” in Adam Etinson ed., Human Rights: Moral or Political (London: Oxford University Press, 2018), 186-187.

73. Ibid., 188.

74. Ibid., 190.

75. Ibid., 194-195.

76. Ibid., 195.

77. Ibid., 191-193.

78. Ibid., 197.

79. Rainer Forst, “Human Rights in Context — A Comment on Sangiovanni,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 203.

80. The discourse approach has no relation to the concept of discourse as discussed by Habermas and Forst. For more details, see Marie-Benedicte Dembour, “What Are Human Rights? Four Schools of Thought,” 12.

81. Ibid., 4.

82. Rainer Forst, “Human Rights in Context — A Comment on Sangiovanni,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 203.

83. Ibid., 202.

84. Ibid., 204.

85. Rainer Forst, “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach,” Ethics 120 (2010): 737.

86. Rainer Forst, “The Basic Right to Justification: Towards a Constructivist Conception of Human Rights,” 6 Constellations 1 (1999): 44.

87. Rainer Forst, “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach,” 719-720.

88. Rainer Forst, “Human Rights in Context — A Comment on Sangiovanni,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 205-206.

89. Rainer Forst, “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach,” 736.

90. Kenneth Baynes, “Discourse Ethics and the Political Conception of Human Rights,” 6.

91. Rainer Forst, “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach,” 740.

92. Rainer Forst, “Human Rights in Context — A Comment on Sangiovanni,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 207.

93. Forst’s statement on cultural integration and Constructivist Conception of Human Rights, see Rainer Forst, “The Basic Right to Justification: Towards a Constructivist Conception of Human Rights,” 37-50.

94. Huang Jinrong, “The Chinese Characteristics of Human Rights and Their Universality — A Book Review on Stephen C. Angle’s Human Rights and Chinese Thought: A Cross-Cultural Inquiry,” Tsinghua University Law Journal 6 (2014).

95. For detailed statement on this tension, see Kenneth Baynes, “Discourse Ethics and the Political Conception of Human Rights,” 6.

96. Specific arguments about the inability of moral pluralism to justify universality, see Eun-Jung Katherine Kim, “Justifying Human Rights: Does Consensus Matter?” Human Rights Review 13 (2012).

97. Andre Santos Campos, “The Political Conception of Human Rights and Its Rule (s) of Recognition,” 35 Canadian Journal of Law & Jurisprudence 1 (2022): 102-105.

98. Cristina Lafont, “Are Human Rights Associative Rights? The Debate between Humanist and Political Conceptions of Human Rights Revisited,” 36.

99. Jeremy Waldron, “A Critique of the Raz/Rawls Approach,” in Human Rights: Moral or Political?, Adam Etinson ed. (London: Oxford University Press, 2018), 123.

100. Here, the notions of moral justification, moral reasoning, moral values, and moral standards are synonymous with Forst’s concept of the unity of morality.

101. Andre Santos Campos, “The Political Conception of Human Rights and Its Rule (s) of Recognition,” 106-108.

102. Ibid., 109-111.

103. Ibid., 112-113.

104. Ibid., 114.

105. Ibid., 115-116.

106. Ibid., 101.

107. Chang Jian, “The Developmental Approach to Human Rights Theory and Its Basic Construction,” Academics 12 (2021).

108. Qi Yanping, “The Formation Mechanism of the Outlook on Human Rights Development in Contemporary China,” The Journal of Human Rights 2 (2022).

109. Zhao Tingyang, “‘Credit’ Human Rights: A Non-Western Theory of Universal Human Rights,” Social Sciences in China 4 (2006).