14. Human Rights Pragmatism and Human Dignity 15. Human Rights and Constitutional Law Patterns of Mutual Validation and Legitimation推荐.pdfVIP

14 Human Rights Pragmatism and Human Dignity David Luban I. Human Rights Foundationalism and Human Rights Pragmatism There is a line of argument that I will label human rights foundationalism that runs as follows: human rights are, first and foremost, rights that flow from the fact that we are human. Call them, as Allen Buchanan does, “moral human rights.”1 Whatever fea- tures of our humanity give rise to moral human rights lie at the foundation of human rights. Therefore, philosophical inquiry into those features is an investigation into the moral and philosophical foundations of human rights. Because people of all nations share their humanity, moral human rights are universal human rights, exactly as the title of the Universal Declaration of Human Rights (UDHR) implies. And the reason they are international is straightforward: they’re universal. An important part of human rights foundationalism is the claim that legal human rights should track moral human rights. This is what Buchanan calls the “Mirroring View,” which he rejects. According to the Mirroring View, universal human rights flowing from moral rights should be codified in legal human rights instruments; con- versely, codified human rights disconnected from moral rights don’t belong in the canon. The codifiers got it wrong; they included more rights in their proposals than foundational inquiry can justify. Such overinclusiveness is not harmless error, because rights inflation devalues the currency of human rights. Buchanan, as I read him, has no objection to philosophical inquiry into universal moral rights. But he rejects the Mirroring View. So do I. Further, Buchanan implicitly disagrees with another important step in the foundationalist argument: the seemingly obvious move from universal human rights to inter