Special Workshop Abstracts

Special Workshop Title:	Politics of Human Rights
Author:	Sten Schaumburg-Müller, University of Århus
Paper Title:	The Pragmatic Challenge to Human Rights
Abstract:	With reference to the Danish philosopher Justus Hartnack one can distinguish four theories of ‘truth’: 1) Correspondence – what we say is true if and only if it corresponds to a real phenomenon , 2) Coherence – what we say is true if it is coherent with other expressions, 3) Consensus – what we say is true if everybody agrees, and 4) Pragmatism – it is true if it works (rather than the other way round: it works because it is true). These categories are interesting also in the field of law and human rights: 1) Law is a real phenomenon, and we can utter true expressions on law if they corresponds to the way law is. As regards human rights correspondence theorists do not have any problem in maintaining that human rights are universal – even though they do have problems in showing a corresponding factor. Correspondence theory tends to end up in natural law. 2) Law has to be coherent, and an expression on law, or a court decision, is not correct if it does not fit into the general pattern. This approach makes it difficult to introduce new law, such as human rights where they are most needed. 3) Law is law if we – or specifically designated people - agree that this is law. If the Supreme Court has ruled and the professors have agreed that the ruling is correct, then “x” is law. Legal realists tend to end up in a consensus kind of thinking: in the end the actual agreement among judges (and others) constitutes law. Consensus theorists have problems with the universality of human rights: if only some part of the world – say mainly Western lawyers – agree that human rights are universal, they cannot be universal, since there is no consensus. 4) Pragmatists do not really care whether law – or human rights - exists. What matters is whether it works. “General rules and principles are hypotheses, needing to be constantly tested by the way in which they work in application to concrete situations …” (Dewey, 1924, p. 26). Accordingly, dealing with human rights does not involve knowledge of an existing legal sphere (correspondence) and must not necessarily fit into pre-existing patterns. Human rights are propositions, attempts to improve the situation for human beings, and their ‘truth’ is not to be tested against any principle or community of lawyers, but by their consequences: Do they contribute to the improvement of the situation for human beings? I do not contend that one of the mentioned categories is better or more true than another (although I tend to consider the correspondence theory to be unacceptably naïve), but I am convinced that the pragmatic approach – to a large extent dismissed in European philosophy and legal thought - does pose some relevant questions, such as: (1) If human rights are seen as an answer to a problem, this problem must surely be the protection of individuals against mighty state power. In this area human rights have been successful to some extent, but in large parts of the world the problem is not strong and mighty state power, but weak and failed states. How do we make similar human rights propositions that can pose an answer to the problems of failed states related human rights violations? (2) If law, including human rights law, is seen as hypotheses that are tested and eventually disqualified or altered, how does this relate to the human rights regime that apparently is only capable of expanding (in number of rules, not necessarily in implementation)? How do we adjust the rules to our experience? (3) If democracy delivers the best solution for human welfare, this will put a double challenge to human rights, firstly because they are not democratically agreed, and secondly because international human rights limit the democracy of the nation states. (4) Are international human rights able to deliver? Do they contribute to the improvement of the situation for human beings, or are they merely in correspondence with natural rights, constitute a coherent set of norms, or are consented to by a part of the global population?