Which Rights Should Be Universal? by William J. TalbottReview by: Peter JuvilerHuman Rights Quarterly, Vol. 28, No. 1 (Feb., 2006), pp. 281-284Published by: The Johns Hopkins University PressStable URL: http://www.jstor.org/stable/20072733 .

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2005 Book Reviews 281

Holocaust in History, and The Nuremberg War Crimes Trial, 1945-46. He was a mem

ber of the international Catholic-Jewish his

torical commission to examine the role of the Vatican during the Holocaust.

and "social transformation."2 "[T]he prop

osition that humans should have certain

legally protected basic rights is a partly moral, partly empirical discovery based

on thousands of years of accumulated

experience of human existence."3 That

process includes the fruits of discourse,

contestation, and social movements

emerging from below to overturn opin ions of established moral and political

elites within various societies. Only after

millennia of development, in modern

times, did the process yield the formal ized concepts of rights and then human

rights.

This ongoing process occurs within

what used to be studied as the political community of governors and governed

who share what is to them legitimate

government. Thus, in effect, Talbott's

rooting of human rights development in

social-political processes recalls work of

Karl Deutsch, Ernst Haas, and David

Easton, which pointed to the importance of political communities for integrating, sustaining, and shaping political systems.4 It also lends support to the idea (engag ing this writer) of the interdependence of

mutually sustaining and interdependent human rights and political communities

and their theory and practice in various

political communities.

Talbott's social positivism prompts him to reject any claim to moral or

empirical infallibility for his thinking and choices. He links his conception of the societal origins of human rights with

J?rgen Habermas's emphasis on ongoing social discourse in building political sys tems, including what Talbott terms

Which Rights Should Be Universal?,

by William J. Talbott (New York:

Oxford University Press 2005), ISBN

13-978-0-19-517347-5, 222 pp.

In this book, William J. Talbot argues for the universality of, now, human rights. I

say "now" because for Talbott, philoso

phizing about human rights is a work in

progress. Legal positivists tend to affirm that the much broader international con

sensus underlying human rights declara

tions and conventions (treaties) legiti mizes the claims to entitlement that they spell out. That consensus reflects the

influence of specific countries' progress

toward the rule of law and constitutional

rights.1 Talbott may be called a historical and societal positivist. He rejects theo

ries of human rights as self-evident rev

elations of God-given truths, such as

those affirmed in the Declaration of

Independence, with its famous proposi tion "that all men are created equal and

endowed by their Creator with certain unalienable rights."

Talbott's alternative vision displays a

historical and social positivism. Norms of human rights, he says, were not con

ceived "top-down" by moral philoso

phers and governments alone, but rather

as the end result of a historical "bottom

up process" of "moral development"

1. Louis Henkin, The Ace of Rights xi-xii, 21-22, 141-180 (1996). 2. William J. Talbott, Which Rights Should Be Universal? 5 (2005). 3. Id. at 3.

4. Peter Juviler & Sherrill Stroschein, Missing Boundaries of Comparison: The Political

Community, 114 Pol. Sci. Q. 435-43 (1999).

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282 HUMAN RIGHTS QUARTERLY Vol. 27

"rights-respecting democracy."5 In that

qualification, he recalls the point of Jack

Donnelly regarding the importance for human rights observance of expanding

democracy from majority rule alone to

rule with protection for minority rights.

Scattered throughout the book are

Talbott's terms of art that give familiar

concepts different labels. This can both

clarify, and obscure, connections with

others' thinking. Witness his positivistic

espousal of an "epistemically modest,

metaphysically immodest moral philoso phy."6 Then there is the matter of basic

rights (those that should be universally recognized). Talbott questions John

Rawls' acceptance of autocracies as long

as they preserve a modicum of rights.

This he does for several reasons. Among

them are his concerns with the inad

equacy of such rights for securing indi

vidual autonomy and for continuing the

social quest for fuller meanings of hu man rights. Drawing on Henry Shue,

Amartya Sen, Martha Nussbaum, and

others, Talbott derives his list of nine

basic, universal rights in the course of the

book: rights to physical security, physical subsistence, children's rights, rights to an

education, freedom of the press, and

freedom of thought and expression.

Ninth on Talbott's list are "political

rights," which he defines as "democratic

rights and an independent judiciary to

enforce the entire package of rights."7

Here he departs from the widely em

ployed distinction between civil rights, the rights to due process, privacy, invio

lability, and political rights (to non

discrimination, expression, information,

assembly, association, voting, and other

direct political participation, and a gov

ernment whose authority rests on the

will of the people). That departure from the widely encountered division between

civil and political rights may be a con

fusing use of the term for those unfamil

iar with human rights thinking when

reading this book. The innovative Talbott also uses fa

miliar concepts to reach unusual con

clusions. For example, sharing the social

positivism of the Canadian philosopher Charles Taylor, Talbott links the trans

cultural validity of human rights, as Taylor

does, with a consensus across cultural

and national lines. Unlike Taylor, he

sees that consensus as an evolving one

in a process of re-examination and

change in the content and meaning of

human rights norms.

Talbott's denial that universalism is neither cultural nor moral imperialism

rests on at least two arguments. One

argument is his social positivism: cul

tural differences have not prevented vari

ous societies from recognizing human

rights and adapting them to their own

circumstances. Talbott's second argu

ment is consequential ist. He supports

consequential ism and refers to it in the

thinking of Amartya Sen and others who link collective, societal well-being to

fulfillment of those rights associated with

individual capacity-building and gov ernmental accountability.8 To quote

Amnesty International USA's director,

William Schultz, human rights are "in our own best interest."9 This can be

argued from various viewpoints ranging

5. Talbott, supra note 2, at 9.

6. Id. at 15-16.

7. Id. at 163.

8. Amartya Sen, Development as Freedom (1999). 9. William F. Schulz, In Our Own Best Interest: How Defending Human Rights Benefits Us All

(2002).

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2005 Book Reviews 283

from national interest and stability to

social welfare. Talbott only briefly cites the Universal Declaration of Human

Rights. Talbott makes the point: "The UN Declaration extends human rights to

all human beings . . . because of the

typically human capacities we have."

But he does not stop to note the conse

quentialism in the UDHR's preamble, portraying human rights recognition as

the "foundation of freedom, justice and

peace in the world" and of "the develop ment of friendly relations between na

tions. . . . Whereas contempt and disre

gard for human rights have resulted in barbarous acts which have outraged the

conscience of mankind."10

Talbott's concept of best interest, other

than a general state of social well-being, is the outcome for human beings that his

consequentialism prompts him to see as

essential for well-being; namely, the au

tonomy of the individual. As part of his step-by-step development of his list of nine basic rights, he devotes Chapter 6 to autonomy rights. Autonomy enables

individuals to judge for themselves what is good for them and "to be able to give

effect to those judgments in living their

lives," free of governmental paternalism

and hopefully also of crass self

centeredness.

Talbott is preparing a follow-up to

this book. He has declared himself a

participant in an ongoing discourse, open to rebuttal and rethinking and inviting e-mail responses. So here are other sug

gestions. He may want to rethink his

take on

the fundamental idea behind rights . . .

that all adult human beings with normal

cognitive, emotional, and behavioral ca

pacities should be guaranteed what is

necessary to be able to make their own

judgments about what is good for them, to

be able to give effect to these judg ments . . ., and to be able to have an

effective voice in the determination of the

legal framework in which they live their

lives.11

But distinctions between what is "nor

mal" and qualifies, and what is abnormal

or subnormal and does not, touches on

urgent issues these days as to what is

normal or subnormal, and which dis

abilities might actually strengthen rights to social supports, as the case with some

thinking about capacity building by Sen and others and by advocates of the disabled.

For disabled and able alike, Talbott's list of basic rights does not include the

right to be spared torture, and it fails to live up to such proscriptions as that of

the UDHR Article 5: "No one shall be

subjected to torture or to cruel, inhu

man, or degrading treatment or punish

ment,"12 which is also echoed in inter

national anti-torture treaties. Yes, he avers

that "all sentient human beings should be protected against torture." But what

distinguishes non-"sentient" human be

ings? Which humans are sentient and

which not? This proves to be a tricky question in practice.

Writing about humanitarian interven

tion, Talbott distinguishes between "bad"

violations not calling for international

intervention and "intolerable" violations

meriting that intervention. That ignores the fact that under international law,

most violations of human rights are intol

erable domestically if not internationally,

10. Talbot, supra note 2, at 75.

11. Id. at 11.

12. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 21 7A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, art. 5, U.N. Doc. A/810 (1948), reprinted in 43 Am. J. Int'l L. 127 (Supp. 1949).

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284 HUMAN RIGHTS QUARTERLY Vol. 27

for various reasons, including that those

violations are the responsibility of mem

ber states to eliminate. Talbott refers

briefly to the UDHR: "Cultural relativ ism about human rights was enunciated

even before the United Nations formally adopted its Universal Declaration of Human Rights, in a statement issued by the American Anthropological Associa

tion (1947)."13 But the AAS later recog

nized the universal, cross-cultural rele

vance of human rights, as Talbott might note in his sequel to this book.

The reader may come away with the

idea that organized religion is funda

mentally intolerant of "bottoms up" in

novation in rights thinking. That is often true. But religion has also been a force in

promoting human rights.14 Witness the

part played by the Abyssinian Baptist Church and other churches, and clergy such as Martin Luther King, Jr. During a

recent visit to Israel and Palestine, I was

impressed with the rights-oriented work of Rabbis for Human Rights and some

local church organizations. Admittedly some are relatively small groups, but

they are not the only ones favoring open

and ecumenical cooperation for human

rights.

Perhaps among thinkers to be taken

up in his sequel book, Talbott will in clude John Locke, the foundation thinker on the natural rights of man, who went

all but unmentioned here. Talbott ques

tions social philosophers' debating from fixed positions rather than being open to

re-thinking, as he characterizes himself.

If you disagree with him, he says, you may be right, and he pleads to let him know?and he provides his e-mail ad

dress. If you have some background in

human rights (why otherwise would you be reading this journal?) you should get into Talbott's book and use the e-mail

for yourself.

Peter Juviler Barnard College, Columbia University

Pefer Juviler is Professor Emeritus of Political

Science, Barnard College. As chair of the

Columbia University Seminar on Human

Rights, he has co-edited seminar papers in two books, including the forthcoming Center

Stage: Non-State Actors and Human Rights. Among his other books are the monographs

Revolutionary Law and Order and Freedom's

Ordeal: The Struggle for Democracy and

Human Rights in Post-Soviet States. He co

founded the recently formed undergraduate human rights programs at Columbia and

Barnard Colleges and advises in Columbia

GSAS's Liberal Studies Master of Arts Pro

gram in Human Rights.

Five Uneasy Pieces: American Ethics

in a Globalized World (Rowman

and Littlefield, Mark Gibney ed.,

2005), 203 pp.

In this era of terrorism, when perceived fear and actual exigency have driven

American policies and practices to an

extreme that would have been unthink

able just a short time ago, it is appropri

ate to assess our responses against our

fundamental principles. The urgency of

the review is necessitated to insure that

these principles do not become so shal

low as to lose, via governmental prag

matics, their moral efficacy.

13. Talbot, supra note 2, at 40.

14. Religious Rights in Global Perspective: Legal Perspectives (Johan D. Van der Vyvel & John Witte

eds., 2000); Religion and Human Rights: Competing Claims? (Carrie Gustafson & Peter Juviler

eds., 1999).

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