When international human rights organizations like Amnesty International and Human Rights Watch emerged in the 1960s and 1970s, they limited their efforts according to a rough division-of-labor logic. They would monitor government abuses on the assumption that governments would remain vigilant against ordinary crimes. Only later did human rights organizations recognize the need for a wider focus, given that insurgencies commit human rights atrocities of their own, that women suffer pervasively from violence in their homes and communities, and that national and multinational corporations subject workers to inhuman and degrading conditions. Though it is not plausible to view governments as the sole violators of human rights, we remain partly under the spell of the classic model of human rights activism, understandably so in view of the massive violence and terror that governments continue to unleash.
Another factor is the influence of legal discourse, specifically, our tendency to associate human rights with international human rights treaties and the judicial enforcement of constitutional bills of rights, both of which place primary responsibility on governments. Traditionally, international treaties are addressed to states and assign obligations only to states. Most human rights treaties follow this tradition. A telling example is the Convention on the Elimination of All Forms of Discrimination Against Women. While recognizing that sex discrimination is rooted in cultural prejudices and stereotypes, the treaty assigns the obligation of eliminating harmful prejudices and stereotypes only to states (art. 5). At the same time, when domestic courts enforce constitutional rights provisions, they almost always address their rulings to legislative and executive officials. They do so not only when the immediate agents of the harm are identified as government officials but also when they are identified as nonstate actors. In the latter, so-called horizontal rights cases, it is government officials who are given responsibility for ensuring that the nonstate actors desist from the harm.
Another factor (one that encourages institutional conceptions in general) is that institutions are undeniably important and require our sustained attention. Many scholars properly devote their careers to understanding the ways in which institutions cause or prevent personal harms. Because of the huge importance of institutions, we may feel that we can exert greater leverage—that is, achieve broader and more lasting results—by seeking to improve institutions than by seeking to improve the behavior of individuals as individuals. It is easy to slide from the thought that “institutions are important” to the thought that “institutions alone are important.” But to think that institutions alone are important is to obscure the large role that individual agency plays in our lives.
Why prefer the inclusive conception of human rights? Notice, in the first place, that the state-centric conception produces odd distortions and displacements when nonstate actors are the primary agents of harm. Consider domestic violence against women. On the state-centric conception, we must adopt one of two implausible views—either that no human rights are violated, or that they are violated not by the batterers but by the government agents who fail to take appropriate preventive action. The sad fact is that the state-centric conception of human rights has contributed to the invisibility of violence against women. Note, too, that the state-centric conception encourages the view that government is the solution to our problems. To be sure, sometimes government is the solution, but sometimes it forms only part of the solution or no part of the solution at all; we should not prejudge the question. African NGOs such as Tostan have discovered that female genital cutting (FGC) is more successfully combated through education and consciousness-raising than through legal sanctions.51 Imagine someone who combats FGC or domestic violence through education and who decides that, given the circumstances, her efforts will be most successful if undertaken without government participation or support. Surely she does not cease, by virtue of her preferred strategy, to be a human rights activist. We can emphasize the responsibility of governments to respect, protect, and promote human rights without claiming that this responsibility belongs to government alone. To reserve the term “human rights” for government’s responsibilities while using other language to designate the responsibilities of nonstate actors produces an unnecessary linguistic complication, one with the potential to sow moral misunderstanding.
I believe confusion also arises under the broader institutional conception of human rights. One danger of viewing human rights as claims against institutions but not individuals is that individual responsibility may be effaced. While the man who beats his wife may be an agent of patriarchy, he is also an individual who fails to respect the dignity of his victim. And certain harms are plausibly viewed as human rights violations even in the absence of institutional complicity. A beating is a beating whether delivered by a random stranger or a police officer: the wrongness of either act is ultimately based on the same set of reasons, an impermissible disregard for the status and interests of the victim.52 Thus classic rights thinkers like John Locke and Thomas Jefferson plausibly assumed that unaffiliated individuals can violate one another’s human rights outside an institutional setting (in a “state of nature”).
I suggest that the proper perspective for thinking about human rights is as individuals with responsibilities toward one another, on the assumption that institutions are an important but not the only means by which those responsibilities are honored or betrayed. (Of course, many interpersonal responsibilities, like many institutional responsibilities, do not involve human rights.) Institutions are human creations, dependent on human choices, whether acknowledged or not. The values that should govern institutions cannot be divorced from those that properly govern individuals in their relations to one another, and we ought to preserve a flexible attitude regarding which mix of institutional and noninstitutional approaches is best suited to protecting individuals from grave injuries and indignities. The risk of an institutional conception of human rights is a kind of alienation, in which institutions are seen as leading an existence separate from that of individuals and are invested with a kind of moral responsibility from which individuals feel personally exempt. A wiser approach is one in which individuals feel simultaneously responsible for their institutional and personal choices. An inclusive conception that broadens responsibility for human rights directs our attention to more diverse sources of harm; it helps avoid the backlash that can arise when individuals harmed by entities that are not institutions feel that their experience is left out of the language of human rights; and it gives us a richer understanding of the contributions that civil society can make to the protection of human rights, as a watchdog of government and potential replacement for some of its functions as well as an agent of social change outside government and the institutional sphere more broadly conceived. The inclusive conception I have defended here bears affinities to the theory of “concurrent responsibility” for human rights to be explored later in this book.
The Right to Have Rights
Human rights form an organized whole. They are related to each other in a particular way, and their mutual relations form a particular structure, or architecture, of internal support. Some rights take the form of primary entitlements. They include, among others, life, freedom from torture, freedom from assault, adequate nutrition and health care, education, and freedom of religion. A second category of rights exists to protect primary entitlements. Consider the right to a fair trial. The primary entitlement at stake is the presumption of innocence: the right of innocent individuals not to be imprisoned, fined, or otherwise punished. The elements of the fair trial—publicity, the right to counsel, the right to summon witnesses, cross-examination of witnesses, no coerced confessions, possibility of appeal, the reasonable doubt rule—are all designed to save innocent individuals from erroneous convictions, even at the price of letting some guilty people go free.53
The redundant character of these protections may try the patience of some citizens, but their very redundancy is integral to the idea of due process. A large package of overlapping protections is needed because any smaller package could fail. It is a crucial feature of this arrangement that higher-level protections improve the effectiveness of lower-level protections. Police may be trained to respect the due process rights of criminal suspects, but even so they are less likely to infringe these rights when they know that suspects have competent counsel, enjoy a right to habeas corpus, and can appeal convictions. Similarly, public officials are less likely to abuse
