16. Specifying Human Rights-17. Rescuing Proportionality推荐.pdfVIP

16 Specifying Human Rights Saladin Meckled-Garcia Human rights are typically identified under specific headings: the right to life, to secu- rity of person, to freedom of expression, to freedom from slavery, to due process, and so forth. But beyond those headings, notoriously, the trouble starts. What normative content the rights have, what they mean, for the right-holder and for others in terms of obligations and burdens, is a matter of specification. One could treat this specifica- tion as a legal question, the interpretation of legal provisions in statutes, prior deci- sions, or practices. But there is a question in morality that should influence that legal specification: what is the morally justified content of any human right? What can hold- ers of such rights legitimately claim from others and, correspondingly, what morally justified burdens does this imply for those others? One school of thought, call it the democratic specification tradition, holds that at least in part the specified moral con- tent of human rights, not just the content of legal rights, must be what a democratic political community decides it to be. Specified human rights as moral rights, then, are hybrids: inherently moral in the abstract but inherently political in their specification.1 In what follows I challenge the cogency of the key theses of democratic specifica- tionism on human rights, which I take to be two: (1) Weight-of-Interests thesis: to justify the existence of a moral right a person must have an interest that is sufficiently important so as to imply obligations for others to secure that interest, and that means interests must be weighed against each other to establish their relative importance. (2) Specification thesis: Which interests have the requisite degree of importance to beco