Human Rights, Human Nature, and the Feasibility Issue

Abstract

Arguments from human nature are not only used to justify fundamental rights; human nature is also an instance of critical evaluation as to whether an idea of rights is feasible or not. The different ambitions that are connected with the very idea of rights, especially in the modern natural right tradition, can often be traced back to divergent anthropological assumptions on human dispositions and conduct. In his contribution “Human Rights, Human Nature, and the Feasibility Issue” Jörn Reinhardt explores how the feasibility requirement applies to fundamental rights. Even though the idea of a “natural right” (in its many variations) and post-1945 human rights are two highly distinct phenomena, a central premise in both discourses is that a concept of rights must be realistic (or rather realizable). Reinhardt explores to what extent arguments from human nature are helpful to deal with the feasibility issue.

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1 Introduction

In the opening chapter of The Social Contract, Jean-Jacques Rousseau describes his own undertaking that is, at the same time, the task of political philosophy as he conceives it: “to consider if […] there can be any legitimate and sure principle of government, taking men as they are and laws as they might be” (emphasis added) (Rousseau 1762, 49). Rousseau’s famous statement contains an important caveat in its final clause according to which principles of government must not only be legitimate, but also feasible, i.e., realizable politically (“laws as they might be”). In order to meet this requirement, they must start from realistic premises and not from idealized or abstract assumptions based on human nature and ability (“taking men as they are”). It is not without irony (although it shows how difficult the task is) that Rousseau – despite his awareness of the problem – is widely regarded as someone who failed to comply with this standard.

This chapter explores the relevance of arguments from human nature for dealing with the feasibility issue. The focus is on questions of fundamental rights. Feasibility concerns are not only relevant for contemporary debates on international human rights and constitutionalism; they have already shaped natural right thinking in its various traditions. The first two sections deal with the natural right tradition. As the short quote from Rousseau above indicates, here the function of reflections on human nature is twofold. “Human nature” does not refer only to a standard of legitimacy. It is also a reminder that normative projects must not go beyond human ability. Arguments from nature are used to justify and, at the same time, to specify and limit substantial rights positions. Regarding the range of possible arguments from human nature, I will start out with some clarifying remarks (Sect. 10.2). For the sake of clarification, I will make use of the common distinction between “classic” and “modern” natural right concepts and distinguish them further from contemporary naturalistic approaches. It is no accident that questions of feasibility became particularly important for the modern natural rights tradition. To the extent that the dimensions of “is” and “ought” are differentiated, the relation of “ought” and “can” needs clarification. While classic natural law theory could still make use of a perfectionist understanding of human nature and a rather stable anthropocentric teleology, the teleological premises became questionable in the course of critical enlightenment thinking.

The role that human nature plays in Kant’s concept of right is exemplary in this respect (Sect. 10.3). Kant offers a reason-based justification for the principle of right. At the same time, he makes use of a teleological perspective on human nature. From the Idea for a Universal History with a Cosmopolitan Aim onward, Kant elaborates on a philosophy of history that draws on the idea of a “natural goal” or a “natural plan” (Naturabsicht) in order to support his constitutionalist aspirations. It serves as a self-assertion that the concept will eventually be brought about. Even though arguments from nature are widely used to deal with the problem, it became evident that the answers were to be found not so much in human nature, but in society and history. With these reflections Kant points to the space, as it were, that will eventually be taken up by social theory.

The feasibility issue is also central to the contemporary discourse on human rights (Sect. 10.4). The ideas of a “natural right” (in its many variations) and post-1945 human rights are two quite distinct phenomena. However, the problem that modern natural rights theory treated as a question of human nature and abilities reappears in the context of contemporary debates on human rights and international constitutionalism. A central premise in both discourses is that a concept of rights must be realistic (or rather realizable). Here, too, the debates on political feasibility, realism, and utopianism veer away from the “last questions” often linked to meditations on human nature and treat the problem in a more piecemeal and pragmatic way. Apparently the feasibility issue requires a more complex set of argument than the recourse on “human nature” can provide. Nevertheless, characteristic traits of the argument from human nature prevail in the debate over what is sometimes referred to now as the “realistic utopia” of human rights.

2 From Natural Right Theory to Naturalism

Notwithstanding the scientistic connotations that the term ‘natural’ has adopted in the context of modern natural science, ‘naturalistic’ conceptions of human rights inherit their main features from natural rights in the classic and modern natural right tradition (cf. Beitz 2009, 48–72). Despite the common intuition, the tradition itself is heterogeneous to a degree that it is not clear as to whether all the relevant, more or less related concepts can be traced to a core of common assumptions. Since the concept of a natural right is often presented in rough and distorting sketches, which portray it as something completely incompatible with modern legal thought, I will first try to exclude some unproductive interpretations. Exclusion does not mean that these interpretations are unmotivated or that there is no evidence to be found in the vast body of material detailing natural right thinking. But they appear as neither essential for nor particularly characteristic of the concept. First, natural right theories do not necessarily claim that a conflict with the natural law renders the positive law invalid. The natural right sets a standard of legitimacy for the political order. But this standard has no necessary implications for the law’s validity. It is also important to note that the idea of a natural law, already in its classic variations, is not identical to the conventional way of life of the community. It does not rely on the idea that all men and women agree upon the right path either. On the contrary, reason is required to perceive it. Therefore, everyone will not necessarily know the natural law and mere authority cannot determine its content (Strauss 1953, 84). The idea of a “natural right” provides the conceptual space necessary to articulate a difference that can hardly be ignored. It is always possible (and meaningful) to ask whether the positive law is right or wrong, whether it is legitimate or not. Judgments of this kind refer to a standard that is not identical to the positive law as it is. In the language of “natural right”, demands on the social and political order can be formulated. It is a starting point for critique. It can come in a revolutionary or in a gradual reformatory mode. It has a foundational as well as a subversive component.

Finally, the natural right does not need to be understood as unchangeable and ahistoric, even though it is often presented that way. In fact, the natural right standard can be articulated in various ways. It was the ambition of dogmatic metaphysics to bring these standards into a coherent system that gave rise to this idea. But the interpretations that are closer to the Aristotelian origins of the idea of natural right allow for changeability and variation.¹ Natural rights are standards that every political system must respect (or promote). Therefore, the idea of a natural right is related to (but obviously not coextensive with) the modern idea of human rights.

2.1 Classic and Modern Natural Right Theory

Important differences in the natural right tradition are often brought under the rubric of both classic and modern natural rights approaches. The distinction is the result of a generalization in order to highlight certain important conceptual differences. It must be understood more in an analytic than a historiographic sense.² These differences concern the different models of political freedom, the role of the individual, and the basic methodological question of how to identify the human species in its “natural” state.

What is characteristic for natural right theories in their classic variations is a comprehensive conception of human life. The idea of a natural right is derived from the natural law that signifies – in its most abstract designation – a human life-form that is “in order”.³ Since the human life-form is – in contrast to other animals – characterized by its capacity for reason, the cultivation of reason is considered to be an essential aspect for the development of human nature. As human nature can only be realized within the social and political order, the polity or polis is of particular importance. “Reason” and “polis” are the main coordinates of this thinking. While the latter refers to the actual constitution, the mode of life and the actual practice and conduct as the starting point of natural right thinking, the former indicates that it cannot remain there. The human life-form provides the standards that are essential for individual self-fulfillment and intact social relations, but practical reasoning goes beyond their contingencies and possible deficits. Political theory as practical philosophy is a reconstruction of actual practices and practical realities. The relevant sources of normativity lie in actual human practices. Therefore, it was important for Aristotle, in thinking about the right structure of the polis, not to start from scratch, but instead from the actual constitutions and written laws of the Greek world (see Ritter 1963, 148–52 with reference to Eth. Nic. X 1181 b 6 and 17). The standards are not deduced from an abstract notion of human nature. As a practical philosophy (in the Aristotelian sense), political theory has to develop its principles from the given political situations.⁴ However, the approach must not be confounded by a mere comparative approach that chooses the best among the existing concepts. It includes a critical evaluation of the established practices and does not result in the acceptance of the given situation.

Classic natural law concepts – to a wider or lesser degree – presuppose a “perfectionist” understanding of human nature. While the standards (or basic goods) might vary with the respective understanding of the natural right, the assumption is common that non-compliance with these standards leads to distortions in social life.⁵ The anthropocentric teleology has two important implications: On the one hand, human nature appears as a source of normativity from which authoritative standards can be derived. On the other hand, it ensures that these normative standards will eventually be realized. Of course, classic natural right conceptions did not assume that the world would develop according to philosophical thinking. Discrepancies were obvious and had to be dealt with. But the presupposition of a teleological structure of human nature was a powerful scheme through which these discrepancies could be understood and explained.

The formation of critical modern thinking has called the teleological premises into question. In the absence of a natural teleology not only does the status of arguments from human nature change, but the feasibility issue becomes relevant. On the assumption of an anthropocentric teleology the question of feasibility could hardly arise. But if it is essentially up to human efforts to bring about a social or political order, then the question of whether it is realizable or not becomes an essential component for the justification of a political conception. Therefore, the problem of feasibility is high on the agenda of modern natural right thinking.

Modern natural right theories still rest on the knowledge of human nature, and the term nature refers to what is not a mere product of practical reasoning, but its condition. Yet this condition is now interpreted in a different way. “Nature” does not refer to the perfect form of human life, but the imperfect matter that has to be dealt with in imposing the form upon the world (cf. also Korsgaard 1996, 3–5). The human condition, natural impulses, and the natural dynamic of the human species are understood as the relevant factors in the process of realizing the form. The notion of human nature is not only detached from the metaphysical presuppositions, but also from the social and institutional embedding. Human nature refers to the “state of nature” as a state of life anteceding civil society, or, more or less, independent of social relations and political institutions.

The outcome of these reflections could not be more divergent. The two extremes are probably Hobbes and Rousseau. In the outline of the Social Contract, Rousseau holds that a community of equals can dispense with a dimension of fundamental rights altogether (“aliénation totale”); Hobbes, on the contrary, insists on fundamental guarantees against the sovereign but reduces these to a core concept that could hardly be more minimalist. Hobbes’ narrow notion is already an expression of a reflection on the problem of feasibility (cf. Strauss 1953, 182–187). In contrast to the perfectionist interpretations of human nature, he explicates the idea of a natural right from the natural impulse of self-preservation.⁶ This narrow notion of human nature leads to a narrow understanding of the natural right. The result is a core concept of a defensive right. Even though contractualist on the outset, participation in political power is not even within the horizon of the concept. The motivation for this restriction is methodological: The standard is deliberately lowered to make it more attainable. The less ambitious the anthropological premise, the more probable that the concept will eventually be brought about. But if human nature is understood along these lines, one seems to gradually cut off the resources needed to formulate a coherent concept of rights altogether. Not that the animal conditions of the human being, bodily needs, and the capacity for suffering could not play a role in justifying subjective rights positions, but there is no direct way from a “disenchanted” nature to the concept of a right.

James Griffin observes anxiously:

Natural law began as part of a teleological metaphysics capable of supporting strong interpretations of how morality is rooted in nature, and it ended up at the close of the eighteenth century in something approaching vacuity. It is not that the strong, non-vacuous conceptions of natural law do not have their own considerable problems. Still, many scholastic conceptions of natural law gave us at least something to go on in deciding what natural rights there are. Once the metaphysical and epistemological background that they provided is abandoned, as it was in the course of the Enlightenment, what is left? Is enough left? [emphasis in the original] (Griffin 2008, 14).

Torn between these two alternatives, the issue of human rights and human nature seems to present itself, as Leo Strauss put it, “as a matter of party allegiance”. On one side stand the “Catholic and non-Catholic disciples of Thomas Aquinas” (Strauss 1953, 7). On the other side stand those who have accepted the perspective of modern natural science all the way down, and are thus always in danger of cultivating nihilism as a practical consequence.

2.2 Arguments from “Second Nature” and Anthropology

Already the set up of this alternative is challenged by contemporary versions of naturalism and Neo-Aristotelianism. These accounts do not leave the concept of human nature to the natural sciences, but insist instead that human nature cannot be reduced to its physical determinants. Therefore, nature is largely re-incorporated into the realm of the logos. Naturalistic theories in this sense start from a broad notion of human nature. On the basis of our natural capacity for moral experience and judgment, they develop an understanding of the capabilities and potentials of the human being that can provide arguments for general norms and standards including human rights.

The ontological background of these theories is a “second nature”-naturalism as introduced by John McDowell; McDowell’s concept tries to avoid the fallacies of traditional empiricism (“myth of the given”) without giving way to the suggestions of idealism or mere social constructivism. His central motivation is to develop a realistic account of intentionality and perceptual experience (McDowell 1998). The concept explicitly includes the perception of fundamental values and ethical properties of a situation or action. “Nature” on this account refers to what is not merely a product of our practical reasoning, but is instead its object, namely the fabric of the world, including the social world that makes our judgments true or false. But it begs the question of whether – as McDowell himself states – it is not merely the “rhetoric” of ethical realism that is being used.⁷ Despite a different façade, Neo-Aristotelians seem to be in the grip of the very same difficulty that plagues all other positions. This difficulty begins when the immediate perceptions of something as good or valuable are called into question. Not that natural law theories could not account for diverse, plural, and even incommensurable interpretations of the basic good and the value and telos of the human life-form. As we have seen, natural law positions are not committed to the idea that each and everyone perceive the common good in the same way. But the repertoire of a “second nature”-account does not seem adequate to deal with the problem: If the self-evidence of propositions is called into question, the lost evidence cannot be restored by pointing to common experience, because this is what is missing. In the face of lacking accordance in the evaluation of even the most basic human rights issues (see e.g. Cassese 2012b, 138 on criminal law provisions in Sudan), a common understanding of the human life-form and its telos (on which an argument for human rights can be based) is hard to identify. This affects the presupposition of a shared and stable basis for our moral judgments. In the same way that perceptions and anthropological arguments lose their status as evidence once they are seriously contested.⁸ As an essentially contested category human nature is not a stable source of normativity anymore. As Charles Beitz correctly observed, “inferences drawn from naturalistic conceptions about the contents and basis of international human rights are normative positions requiring a defense; it is a mistake to regard them as analytic” (Beitz 2009, 72).

This does not mean that arguments from nature are irrelevant for the idea of human rights and the defense of particular human rights positions. Claims for the recognition of human rights rely on ideas of the value of the human person and draw on ideas of the integrity of the human life-form as it is spelled out by anthropology in general and its philosophical variations in particular. But anthropological findings – even if they are widely shared – cannot be used without mediation for the justification and interpretation of fundamental rights. Rather they must be understood as political claims in need of a political justification. For example, if anthropological findings suggest that working is an essential aspect of individual self-fulfillment, then it does not follow that there is or should be a right to work. The extent to which anthropological arguments can be transferred into a subjective right (evoking a corresponding obligation) is a juridical-political question and no longer a question of anthropology; part of the juridical-political justification is to provide answers to the question of feasibility.

3 The Role of Nature in Kant’s Concept of Right: Social Theory avant la lettre

In order to further clarify the interdependency of the justification of rights and feasibility considerations, I will now turn to the role of nature in Kant’s concept of right.⁹ Despite his reason-based approach, feasibility considerations shape the form and content of Kant’s concept of right. Because Kant cannot entirely separate the justification of a concept of right from the question of realizability, he makes use of human nature as an argument to support the claim to feasibility.

Like most of his enlightenment contemporaries, Kant’s aim was to detach natural law theory from dogmatic metaphysics and to re-establish it as a science. Since the very foundation of dogmatic metaphysics was challenged, simply renewing the untrustworthy sources of metaphysical speculation was not plausible. Neither was it possible to simply depart from tradition and example, since this approach was, to a large extent, brought against the established traditions and, moreover, positive examples were missing. In this situation, the recourse to reason was a useful invention. Sufficiently abstract, it could have appeared to be a promising medium through which political philosophy could be reoriented in order to arrive at valid legal and political principles. The Rechtslehre (the first part of The Metaphysics of Morals) introduces the universal principle of right as an expression of practical reason. According to this principle, “every action which by itself or by its maxim enables the freedom of each to coexist with the freedom of everyone else in accordance with a universal law is right [Recht]” (RL, VI, 230/133).¹⁰ At the centre of this conception lies “the one sole original, inborn right belonging to every man in virtue of his humanity” (RL, VI, 237), the right of freedom insofar as it is compatible with the freedom of all others (autonomy).

Kant’s concept of natural right is not based upon an idea of human nature, but on reason and rationality. That Kant still refers to it as a “natural” right cannot conceal that it is more a right of reason than a right of nature.¹¹ This qualification is necessary. It does not mean, however, that reflections on human nature and ability are of no importance to Kant.

The Kantian concept of rights contains important specifications that are already an expression of feasibility considerations. This concerns the content of the right and the institutional framework in which the right is to be realized. The understanding of freedom that is characteristic for the modern natural rights tradition differs from the ancient notion of freedom. The autonomy it promises is different from the notion of the classics. It contains an irreducible dimension of negative freedom and, therefore, implicitly accepts a fundamental change in the formation of society.¹² With the emphasis on subjective rights, Kant completes a central change from classic to modern natural right, “the shift from the metaphysics of natural law to that of natural rights” (Haakonsen 2006, 280). Kant insists on the difference between legality and morality, leaving individual motives and motivations, to a large extent, aside. Even though the structural similarities of the categorical imperative and the principle of law are obvious, because both originate from practical reason Kant does not derive his conception of rights from moral theory. The idea of autonomy is central not only for morality but also for the principle of law, but it takes on a very different form. It is only concerned with the compatibility of the outer spheres of individual freedom. The regulative idea of the law is not the “kingdom of ends” (cf. Reinhardt 2009, 57–78). Consequently, it does not promise happiness, only peace. It might not be as attractive as other enlightenment ideas of emancipation, but it is, according to Kant, realistic.

Feasibility considerations also affect the institutional context for the realization of the concept of right. The basic right is not understood as a human right in an international sense, but as a domestic right. It does not mean that Kant renounces the claim to universality. The formulation of the right is absolute, but as to the possible options that exist to protect the fundamental right, Kant opts for the domestic and not the international possibility. He does not extend the demand for a constitutionalization beyond the nation state. Beyond the sphere of the nation state, individual rights come down to a right to visit.

Of course, this picture can be made much more complex. While Kant’s modified account can escape some of the problematic aspects of dogmatic metaphysics, it certainly brings its own difficulties. These difficulties concern the question of whether a “universal principle of right” can be justified through a reason-based approach and – if presented as a mere requirement of reason – whether it has sufficient content. Regardless of these difficulties, however, Kant could have left it at that. According to his own premises, he had deduced a universal normative standard of legitimacy that every legal system must respect and that is neither affected by the non-compliance of empirical governments nor the actual course of history. He could have treated the problem of whether this normative standard will actually be realized or not as an open empirical question.

However, besides this reason-based deduction, Kant is following a very different line of argument. From his early articles in the Berlinische Monatsschrift onward, Kant tries to sketch a universal history along the lines of a natural teleology, portraying mankind in progress. It was the contrast, or rather the gap, between theory and practice that prompted him to deal in further detail with human nature and the course of history. The discussions of the relation of ‘ought’ with ‘can’ show how much Kant was aware that doubts concerning the viability of political and legal concepts can easily lead to a disintegration of the normative concept itself.¹³ The appeal to nature is supposed to “stabilize” the normative expectations in the face of constant backlashes and disappointments.

The idea of a natural teleology is significant for Kant’s theory of rights because it provides an idea of progress in terms of a possible development of mankind towards a civil state of law. Kant attempts to understand the conflicted development towards a republican constitution as the unfolding of a natural potential.¹⁴ The notion of nature that Kant relies on does not denote the natural disposition to act reasonably. The driving force behind this movement is the natural instinct of self-preservation. The medium of progress is the “unsociable sociability” (Idea VIII 20/13) of human beings. Rivalry, greed, vanity, and antagonisms of all kind, even simple violence are supposed to further the slow development towards public or cosmopolitan law. In Idea of a Universal History nature operates as an “invisible hand” that harmonizes the destructive activities of individuals “behind their back”. Kant portrays it as an unconscious, almost mechanical force.¹⁵ Kant uses this argument in many variations and contexts, but the general theme is always the same: The destructive potential of human nature and the actual experience of destruction bring to mind how vitally important is the idea of a constitutional state that secures individual rights. Kant tries to detach the possibility of progress from individual reasoning, motivation, and an optimistic anthropology. This concept relies on the effectiveness of the institutional framework, and, as such, the force of institutions is a decisive factor for a positive development.¹⁶ From this perspective, even the struggle of all against all can have a moralizing force. Out of mere self-interest, the members of a polity will eventually regulate their conflicts by establishing a republican constitution.

Kant’s assumption is not that historical progress is a gradual process. He concedes that regression is always possible and that enlightenment and reason have to stay involved if the mechanism is take effect in the long run. But whether it reaches its potential or not remains dependent upon collective efforts and subjective dispositions.

Even with these reservations in mind, Kant’s account of a nature-driven progress can easily look like an expression of pre-critical thinking. Already the word “idea” in the title of the article raises the question of how such a concept fits into Kant’s critical philosophy (Allison 2008, 24). One has to remember that Idea of a Universal History is a relatively early work and Kant reconsidered his argument several times. As many commentators have noted, the work has to be examined through the lens of the Third Critique (see Allison 2008, 25; Yovel 1980). Read in this way, the idea of purposiveness is not a full-fledged metaphysical statement about the course of history. Instead, Kant takes up a view of history “as if” there was a teleology at work, a continuous development (though not free from reversals) towards a constitutional state. The presupposition of a natural teleology of human nature has come to an end within critical enlightenment thinking, but it reappears simultaneously as an applied idea for practical purposes. In the absence of a substantial anthropocentric teleology, the evolution of the law and the gradual constitutionalisation of the domestic and international sphere can only be consolidated in a continuous practice. The idea of historical progress is a narrative used to support it. This is a visible flaw in the idea of a “natural” teleology.

Still, the (counterfactual) reconstruction of the course of history along the lines of progress remains difficult. The difficulty of such a presupposition is that the actual course of history shows little evidence of such a telos. As Kant himself puts it:

Since human beings in their endeavors do not behave merely instinctively, like animals, and yet also not on the whole like rational citizens of the world in accordance with an agreed upon plan (as e.g. of bees or of beavers) appears to be possible. One cannot resist feeling a certain indignation when one sees their doings and refraining on the great stage of the world (Idea VIII, 18/10).

This observation seems valid even today, more than 200 years after Kant’s diagnosis and despite the development of international law and the “evolution” of human rights law.¹⁷ The reconstruction of history along the lines of progress remains, to a considerable extent, auto-suggestive. As Kant suggests, the history of human rights-progress must be brought about, and writing the history is one way of doing just that. Kant explicates this mechanism in the ninth proposition of Idea of Universal History: “A philosophical attempt to work out a universal world history according to a plan of nature that aims at the perfect civil union of the human species, must be regarded as possible and even as furthering this aim of nature [emphasis added]” (Idea VIII 29/231).

The narrative of a natural teleology is supposed to further the development that it is simultaneously describing. But Kant is not advocating a mere exercise in speculative thinking. In order to not remain on the level of the “as if”, a history of progress of humanity must “start from some sort of experience” (CoF VII, 84/181).¹⁸ It needs support in the actual course of history. Therefore, Kant is looking for “historical signs” (CoF VII, 84/181), like the French Revolution, that could support and further the narrative of a moral tendency in human history. The normative criteria and the narrative of progress refer to each other: the historical signs are never unequivocal and they can only be identified in light of the normative perspective that they are supposed to support. In a circular process the description of the possible development will eventually help to bring it about. This theme of a speculation that is never fully counterbalanced by reason is not only of importance for Kant’s critical thinking; it is of equal importance for contemporary debates on international constitutionalism and possible developments in international human rights law.

4 Realizing Human Rights

Human rights, which are largely a post-1945 phenomenon, have subjected international law to the perspective of the individual. After the disintegration of all broader promises, arguably the “last utopia” (Moyn 2010), human rights have gradually transformed the parameters of transnational and international law. Even though it would be an oversimplification to place the modern concept of human rights in an unbroken continuum of what has been the natural rights tradition, the concepts share important structural features. Human rights have become the language with which to articulate experiences of injustice and, at the same time, claims for a political order that benefits the individual human being. They occupy to a large extent the idealist dimension of international law. The project of mastering power through law is in and of itself an ambitious enterprise, but the idea of human rights points beyond the conventional approach to “civilize” the conduct of sovereign nation states by binding them to general rules. Human rights take a prominent place in most long-term projects of global or international constitutionalism (Gardbaum 2008). These projects aim to realize a legal order that has not been realized before. In some form or another, they are engaged in imaginative thinking (Cassese 2012a, XXI; Delmas-Marty 2004).

At the same time, feasibility concerns are relevant. Human rights transgress the sphere of the sovereign nation state. The step beyond the nation state is as necessary as it is difficult. States were not only responsible for the most severe infringements of individual rights, but could also guarantee these rights as domestic rights. For their effective realization, human rights presuppose institutional conditions that to a large extent have to be brought about.

In the following I will try to analyze in further detail how feasibility concerns apply to human rights and to what extent arguments from human nature are relevant to specify them. In order to do so, I will first have to explicate what it means to “realize” human rights. If the feasibility requirement – as I have suggested so far – is recognized as the requirement that the respective conception of rights must be “realizable”, then it begs the question of how this requirement fits with normative concepts such as rights, in particular, human rights, because human rights will – in important aspects – always remain unrealized. Therefore, the notion of feasibility itself needs specification.

Subsequently, I shall turn to the methodological implications. An institutional agenda that is to a certain degree idealistic or even utopian will have to take the realist objections into account systematically. The advocacy for ambitious ideas and the call for institutional reforms necessarily go along with reflections on the method of norm-building. The notion of a “realistic utopia” is – often tentatively – used to describe this perspective whereas human nature arguments are used to sharpen it.

4.1 Human Rights Unrealized

As Christian Tomuschat notes, “human rights protection is a process which cannot be finalized once and for all at some point in time” (Tomuschat 2003, 319). This structural incompleteness of human rights has two aspects. On the one hand, human rights protection cannot be finalized because a violation of human rights remains a permanent threat. As a consequence, the effective realization of human rights remains a continuous task. On the other hand, the idea of human rights cannot be finalized because the concept, as such, is incomplete. What has been said above about the idea of natural right also applies to human rights. Human rights discourse provides a language that makes it possible to articulate claims for basic standards and a legitimate social order. It is a “re-opener” of the necessary formal closures inherent to national and international law (cf. Reinhardt 2009, 41–47; 250–252). In this process a reformulation and specification of particular human rights and even a revision of central aspects of the concept are always possible.

Beyond these structural reservations the “realization” of human rights is measured in degrees. First, it is important to note that human rights in a juridical sense apply only directly against government actors or actors exercising public authority. Even though the language of human rights is increasingly applied within moral discourse, it does not capture the common juridical sense of the concept. That does not mean that human rights do not regulate relations between private actors, but they do so only indirectly, namely insofar as they impose duties on governments to enact legislature or other measures (“horizontal effect”). Of course, this view is not undisputed, and the attempts to broaden the picture or, rather, to reframe it, are perfectly understandable.¹⁹ Still one has to remember that this concept of human rights “emerged as a minimalist, hardy utopia that could survive in harsh climate” (Moyn 2010, 121). Alternative proposals will have to stand the same test.

In order to come to terms with the feasibility problem, it is important to further distinguish between different dimensions of human rights. Despite the affirmation that human rights are “interrelated, interdependent, and indivisible” (reaffirmed at the 1993 Vienna World Conference), there are obvious differences – regarding the political feasibility – between civil liberties that grant negative freedoms and social, welfare, or labour rights. The realization of the latter is more ambitious. That does not disqualify them as human rights. Especially limitations of economic resources alone are not arguments against the human rights character of the respective positions (cf. for the discussion Griffin 2008, 176–189). But a right is an entitlement. It gives rise to a corresponding obligation. Therefore, the question must be answered who can be held liable and who shall protect the right effectively against possible infringements (cf. Alston 2005 for the discussion on labour rights).

Realizing rights requires effective remedies against infringement as well as a functioning legal framework and enforcement mechanisms. Of course, a right can be formally adopted and incorporated into a charter or multilateral treaty. But the formal incorporation of a right in the body of law is only a condition necessary for its realization, but is not itself sufficient. If it remains without noticeable consequences, then it will only nurture the persistent doubt as to whether international human rights law makes a difference at all. It is just the gap between international human rights treaty law and human rights reality that is often the starting point of a fundamental critique of the whole idea of international human rights (cf. Burchill 2008). Even though questions of feasibility and justification have to be distinguished, they cannot be treated independently. There might be reasonable grounds to deny a position the status of a human right for reasons other than infeasibility. But failures of feasibility impact the possible justification of a right. Whether a concept of human rights is politically feasible is not merely an empirical aspect that leaves the justification as it is.²⁰

The dilemma of international human rights results from the limits of a state-centered legal order and national governance on the one hand and the insufficiency of existing mechanisms to fill this gap on the other. Apart from the different dimensions of rights, it is important to distinguish between the different levels from which human rights can be realized. On each of the various levels (national, transnational, international), particular enforcement problems arise.

On the international level, the possible enforcement mechanisms differ to a large degree from those available at the nation state level. Further, the degrees to which the rights are enforced diverge greatly (ranging from a committee’s competence, or lack thereof, to make only general and non-binding comments after the examination of national reports to the competence of courts to make legally binding and enforceable decisions to address individual petitions or complaints). Despite the monitoring and reporting systems that examine to what extent the treaty parties comply with their obligations, the UN human rights treaty system presupposes that the member states will eventually incorporate the agreed upon standards into domestic law.²¹ The reluctance of states to fully implement their treaty law obligations (or to ratify the respective treaty in the first place) lastingly hinders the effective realization of human rights.

The functioning nation state ensures human rights as domestic rights vis-à-vis its own citizens. It can extend its jurisdiction to non-citizens, but this extension often proves problematic.²² Not only are there obvious enforcement difficulties, but even if sanctions can be applied effectively, the particularity of the enforcement measures is likely to contravene the universality of the human right in question.

The ambivalence of human rights enforcement often provokes two opposite reactions. Human rights advocates take the existing shortcomings and institutional deficits as an incentive to reform in order to bring the given situation closer to the ideal of human rights. They point to the potential inherent in the emerging forms of the global legal order.²³ Human rights skeptics, on the contrary, understand the deficits as an expression of the misconception of the respective idea of international human rights. For them, the allusion to potential and possible developments is no more than an uncovered check on the future.²⁴

4.2 The “Realistic Utopia” of Human Rights

In order to further illuminate this controversy and the unsolved problem of feasibility, it is productive to turn to the concept of a “realistic utopia” that is increasingly deployed in political theory and in the context of international law (Rawls 2001, 12; Habermas 2010; Cassese 2012a). The concept is directed against an idealism that does not reflect upon or simply marginalizes the given conditions. Ideals, even attractive ones, might raise false expectations or even have negative or counterproductive effects if their feasibility is not taken into account (cf. Reinhardt 2007, 231–233). Therefore, a “realistic utopia” introduces a twofold perspective designed to express that the normative goals pursued are ambitious, but not utopian in a pejorative sense. Even though the goals are unlikely to be realized at the given moment, they are supposed to indicate a possible development because they are based on realistic assumptions.

In the debates on international constitutionalism and human rights, feasibility concerns are usually implicitly acknowledged, but they are hardly ever explicitly analyzed. It is widely acknowledged, for example, that the parameters of modern constitutions that have been formed in the context of the nation state cannot simply be implemented on a transnational or global level. They are usually reformulated or even replaced by functionalist equivalents. While it is conceded that constitutional aspirations have to be lowered in a global context, the degree to which this is necessary is highly disputed and the very terms of the dispute often remain unclear.

The concept of a “realistic utopia” tries to spell out the relationship of idealistic to realistic elements in more general terms. It was John Rawls who made the term popular, using it in Political Liberalism and The Law of Peoples. It is doubtful though, whether the choice of words was a fortunate one. From its original literal meaning, utopias point to the impossible (“no-where”). It seems only of limited use to demarcate a state of affairs that is, at the same time, supposed to be realistic and politically feasible (cf. also Cassese 2012a, XXI: “oxymoron”). Not that utopias could not have a critical dimension (cf. Forst 2013), but they are nothing that can “realistically” be expected to be achieved. However, the aim of the concept is clear. It affects both the method and the criteria employed by political theory and legal scholarship. Like in natural right discourse arguments from human nature come into consideration to specify the perspective.

4.2.1 A Question of Method: Interpretation vs. Invention

Methodological reservations concern the model of critique and the ways of norm-making. The demarcations that are being used to capture the conceptual differences are, notably, “inventive” versus “interpretative” or rather “constructivist” versus “reconstructivist” approaches.²⁵ Behind these simplified headings a bundle of complex problems awaits. While a constructivist approach, to a large extent, abstracts from the given conditions to arrive at justified principles for the social and political order,²⁶ a reconstructive model of critique departs from the historically formed institutional framework. Since the former necessarily retains an “ideal” dimension, it seems promising, in order to ensure the “realism” of the project, to begin in a more interpretative or hermeneutical manner. In this spirit, Martti Koskenniemi writes that a “realistic utopia can only begin with the critique of present institutions” (Koskenniemi 2012, 3). Instead of “inventing” human rights regimes and conceptions of international constitutionalism, a reconstructive critique formulates normative ideals in light of the structural problems and inadequacies of the present social and political order.

Despite the differences, neither of these models can escape the feasibility issue. As we have already seen in the discussion of Aristotle above, a normative reconstruction of actual practices and institutions necessarily goes beyond the status quo.²⁷ The different approaches might influence the degree of realism of the respective conception, but the problem of feasibility could only be avoided if the normative standards were completely adapted to the given conditions. Even a critique that starts from the present institutions cannot bind the interpretation to the state of affairs as it actually is. The point seems almost obvious in the context of human rights. The various claims to human rights are reactions towards experiences of injustice and humiliation. Hence, the desirable institutional arrangement may be quite different from the state of affairs as it stands. While trying to avoid expanding into the realm of mere wishful thinking, reconstructive models of critique also aim at extending the limits of practical political possibility – and are, eventually, lead back to the problem of whether the normative standards are realizable and whether they provide practical orientation.

4.2.2 From Human Nature to Social Science

Therefore, further criteria would be necessary to draw a line between an “abstract” and a “realistic” utopia. For conventional expositions of political realism arguments from human nature are central. According to such a conventional exposition (that is attributed to thinkers in the line of Machiavelli, Hobbes, or Schmitt), human nature is violent, humans act according to power interests, and humans cannot be made perfect. Relations between nation states are modeled along these same lines. While it might be possible to tame the destructive forces within the framework of the state, the relations beyond the state are understood as necessarily destructive. Nation states appear like individuals incapable of regulating their relations in the absence of a higher force. In The Concept of the Political Carl Schmitt claims that every political theory can be traced down to an “anthropological confession of faith”:

One could test all theories of state and political ideas according to their anthropology and thereby classify these as to whether they consciously or unconsciously presuppose man to be by nature evil or by nature good (Schmitt 2008 [1932], 58).

The former view is, according to Schmitt, the realistic view. The implications for political theory are obvious, especially for those with a universalistic ambition and the idea of human rights. Already the attempt to ameliorate the situation must appear as abstract and utopian.²⁸

Since the categories of good and evil, the doctrine of the fall, and other theological dogmas are too airy to answer concrete questions of political feasibility, the discussion moved away from those “last questions” that C. Schmitt dwells upon. That does not mean, however, that one necessarily leaves considerations of human nature behind. John Rawls, for example, shares the assumption that arguments from human nature are highly relevant to account for the realism of a political conception. But he attempts to minimize the perception that the question of realism comes down to a matter of party allegiance, in other words a case of which side to choose. In order to provide criteria that an “utopia” must fulfill to be considered realistic, Rawls goes back to the quote from Rousseau’s Social Contract according to which principles of government must take “men as they are and laws as they might be” (cf. Rawls 2001, 13). Just like Rousseau, his aim is to show that his concept of political justice is not only ambitious, but also realizable. The possibility that Rawls is aiming at “is not a mere logical possibility, but one that connects with the deep tendencies and inclinations of the social world” (Rawls 2001, 128). Regarding his aim, Rawls’ criteria remain, somewhat colorless.²⁹ In the end, he offers a pragmatic solution of the feasibility problem. The assumption that “we can to a greater or lesser extent change political and social institutions and much else” (Rawls 2001, 12), is already a careful option for progress. Whether things will eventually move in the normatively envisaged direction is, according to Rawls, an open empirical question. Like his numerous critics, he stresses the importance of the institutional embedding of human efforts. Those who argue partly against Rawls (who is not only an advocate of a “realistic” utopia, but one of the favorite targets of a realist critique) and in favor of a “real-world approach” to political and legal theory (Brennan and Pettit 2005, 278) start out with more modest assumptions on human conduct, rationality, and individual dispositions for compliance to normative standards. Their approach is more “realistic”, not in the sense that it is pessimistic or that it would categorically exclude the possibility of significant social or institutional change, but that it appears to phrase the ideal institutional setting in more moderate terms. As a consequence, it will, for example, include more incentive-compatible elements in the institutional design. Here it is not significant to deal in further detail with this discussion (that would lead us back to questions regarding method and the relation of ideal and nonideal theory). It is important to note only that the kind of argument remains relevant for the feasibility of human rights because it informs about the actual conduct of political actors and the way “how nations behave” (L. Henkin).

At the same time the limits of arguments from human nature become visible. Political theories that emphasize feasibility concerns equally emphasize the importance of taking the results of the social sciences (in a large understanding) into account (see Swift and White 2008; Feichtner 2012, 1155). However, the necessary integration of the social sciences must not lead to the supposition that the realism of a project could be deduced from its findings or justified in a strong sense with recourse to it. The various concepts of international constitutionalism and human rights rely on narratives that are complex enough to integrate possible setbacks. Therefore, they need to be understood as projects and as an essential part of a constitutionalist practice. They contain normative elements, but are not merely prescriptive in character. Rather they have a creative role. They are shaping the terms of the development to come and, by doing so, contemporaneously further the envisaged development.

5 Conclusion

Feasibility considerations have shaped natural right thinking from the very beginning and are of equal importance for contemporary human rights discourse. An essential element in the justification of fundamental rights as legal rights is to account for their feasibility. Modern natural right theory especially drew largely on arguments from human nature to substantiate their claims: the need for fundamental rights including their scope and content. In order to come to terms with the feasibility problems of international human rights, the conceptual scheme of human nature arguments had to be extended significantly. However, characteristic traits of the debate about human nature prevail. The concepts involved are – to a certain extent – auto-suggestive. They indicate the way towards constitutionalizing the world community and are, at the same time, part of the movement towards it.