ࡱ>  {bjbjT~T~ .66Q9!%JJooo8wd."(%% &A.C.C.C.C.C.C.$x03zg.og.oo%%|.'''o%o%A.'A.''**%p?_$*-..0.*,3%3**P3oA+.'6...g.g.^'j....3.........J S: THE POINT OF HUMAN RIGHTS: FURTHER THOUGHTS ON THE CENTRALITY OF SUFFERING A. T. Williams Abstract: This article presents a perspective on what should be (and indeed it is argued what is) the central appeal of human rights. It contends that the collective and individual response to known suffering is and should be the immanent theme of human rights. By developing further the philosophy of human rights that was begun in an earlier article, it revisits some questions about the relationship between human rights and suffering to both clarify the main proposition regarding the moral foundation of human rights and to address certain predictable critiques of this proposition. This is intended to act as a prelude for further work on restructuring human rights law (whatever the particular national jurisdiction) for the fulfilment of the immanent theme of relief of suffering. Some reference to this is made at the end by way of conclusion. Key words: Human Rights; suffering; philosophy I. INTRODUCTION What is the point of human rights? For some reason we do not seem to be able to escape this question. When we think about them as concepts and why we should adhere to them, when we start to plan how to implement them, when we consider what value they should be accorded in comparison with other political and social demands, this is the question which does not go away. Of course, activists in particular can find such an enquiry irritating. Why discuss the obvious? We know what human rights are? We have them listed in texts which enough countries have signed up to suggest we are wasting our time questioning their purpose. All we need to do is find a way of implementing them. This instrumental position, where we do not question the point of human rights, only talk about how they can be realised, can be quite persuasive. But I still see it as a problem. This becomes clear all too often. When we are faced by apparently competing rights claims, when one persons right seems to conflict with anothers or with the interests of us all as articulated by government, or when we are looking at how to distribute our resources fairly, or when we see the conditions of suffering in which so many people live through circumstance or human design, the failure of human rights to do something meaningful in response, to solve the problem or address the injustice we see, invariably causes us to ask what point they really serve. Faced with such issues we have to base our judgment or attachment to human rights on something. We need some idea of foundational philosophy of human rights if we are to respond to these difficult situations. Otherwise, the tendency must surely be for power (however that might be manifest, whether governmental or economic) to determine the issue. In other words, the default position is going to be that those who have power (measured frequently in wealth or political position or frequently both) will ensure that the application of human rights does not affect that power/wealth in any significant way. This applies at the global as much as at the national level. Consequently, when we are entering a period of fiscal crisis in the North as we are, something which seems to be a permanent condition in many regions of the South, the challenge to human rights becomes not only evident but perpetual. Determining the point of human rights, in order to decide when and where to resist power and, more instrumentally, when and where to intervene in challenging the distribution of wealth nationally and globally, is essential. Failure to be clear on this question will inevitably mean failure to coordinate resistance and action for human rights. Their usefulness and indeed their allure become jeopardised. This is a dangerous trajectory to follow if we adhere as I do to the notion that human rights should have a role to play in changing peoples lives for the better. The purpose of this article is to present my perspective on what should be (and indeed what is in my view already) the central appeal of human rights. It is provoked by a number of preliminary questions I have asked myself. The first is: if there was no suffering in the world, would anyone help another? What would induce us to sacrifice our time, our resources, our lives even, to meet with and come to the assistance of others? Would we work towards everyone having exactly the same benefits? Would we search for those conditions that made the lives of others more enjoyable? Would we intervene in other systems with ideas about how they should live, how they should organise their societies? Would we even listen to others and their complaints about injustice? Perhaps if we worked hard we might be able to come up with some justification for answering all these questions with a yes, we would. Indeed, some political philosophies could no doubt be based on ideas about equality and community which make a virtue of striving to render everyones lives uniformly good. They might not be premised on addressing the real world at all but simply attempt to imagine a utopia. But such philosophies invariably founder when we know we have to start with what exists. Rehearsing a hypothetical even fantastical environment, one which really does not connect with us intuitively, empirically or indeed with our common-sense, is ultimately unsatisfactory. Instead, those ideas which are grounded in changing what is wrong with our world now, transforming peoples lives where clear suffering is a permanent condition, are the ones that have immediate appeal. They may be spoken of in terms of achieving justice, they may ultimately look to the good to be attained, but the starting position is dealing with injustice and suffering first. When we look to the specific subject of human rights we face a similar problem. The main philosophical foundations traditionally offered for their value seem to rest on concepts of equality (all persons are to be treated equally in the organisation of society), of freedom (where all persons should be enabled to live their lives without the unreasonable interference of others whether individual or institutional), of democracy (where all persons in a particular society should be engaged in collective decisions that affect their lives), and of fairness (where people in a community should be treated fairly in the distribution of benefits and burdens associated with living in society with others). However, these do not seem to me to offer sufficient cause for the ubiquitous emotional common appreciation and attachment to, and advocacy for, human rights in the contemporary era. These philosophical foundations each suffers from indeterminacy and a breadth of definition which undermines claims that they may have to universal appreciation as a moral basis for human rights. Their liberal credentials make them appealing in many instances, but that does not mean that they have general appeal or indeed application. In each case it is difficult to conclude that they take us to any root or foundation of human rights. They always seem to speak of something prior, something previous to their construction to give them sense and indeed make possible the imposition of power to resolve disputes in such a way that justice for those who suffer is less likely. And as a result it is very difficult to see how they can be used to resolve problems associated with known injustice and suffering in the world today. The inability of these arguments to understand and make useful human rights has caused me to look elsewhere for a suitable and grounded basis. I have argued that we need to look for a deeper commitment inherent in human rights. My response has been to contend that the collective and individual response to known suffering is and should be the immanent theme of human rights. This is an argument I have raised briefly before. However my focus was primarily on the relationship between human rights and law. In an article published in the Law Quarterly Review in 2007 I advanced a number of propositions concerning the state of the relationship between human rights and law. At heart, I argued that the immanent theme of human rights was the developed acceptance of a collective obligation to respond to the suffering of others. In other words, human rights discourse was focused around the promise of a meaningful (or reasonable) response to suffering. My argument continued then to suggest that modern law was structurally predisposed to fail in its translation of that response into effective action. Through its structures, its fundamental principles and its processes, modern law tended towards sufferance rather than insufferability when faced with demands for action in the face of proven suffering. I concluded that in order to construct a system capable of privileging the relief of suffering as a social and legal endeavour, we would need to address these aspects of law through a re-conceptualisation of jurisdiction, forms of adjudication, access to legal processes, the orientation of evidence, notions of locus standi and the public interest, and the link between human rights and political responsibility. This present article builds on my previous work. It develops further the philosophy of human rights that was begun in my earlier article. Specifically I want to revisit some questions about the relationship between human rights and suffering to both clarify my original proposition regarding the moral foundation of human rights and to address certain predictable critiques of this proposition. This is intended to act as a prelude for further work on restructuring human rights law (whatever the particular national jurisdiction) for the fulfilment of the immanent theme of relief of suffering. I will make some reference to this at the end of this article to show the direction I am heading. Before I reach that point, I first look again in section II at trying to understand the common ideas that accompany the phrase human rights. By assuming that together these words construct a concept with two inter-related parts is hardly contentious. However, showing why they create a concept that is in not separable in its operation but rather has independent although related meaning is an essential realisation in my view. It might even be sensible to start referring to human rights as human-rights. The hyphen would thus indicate a unified idea rather than one which provides a collection of various sub-sets (i.e. those individual rights which make up the key international conventions etc). Working then with what I have argued is common for human rights appreciations, (indeed what makes human rights meaningful) but at the same time of course dismissing the foundational theories that are generally produced, I reiterate my alternative vision of human-rights. My proposition is that understandings of suffering should provoke (and indeed has provoked) human rights meanings rather than is currently the case, namely that lists of human rights seem to provoke the mainstream understanding of acknowledged suffering. Section III will explore some of the questions that arise from this proposition. I look to provide some justification for its acceptance. The first and perhaps most obvious challenging question will be: what is meant by suffering? The crucial concern in this respect I suggest is prompted by the objective/subjective divide. It is here that difficulties in acknowledging suffering as the key to understanding of human-rights appear. I do not think it is a valid distinction, however. Indeed, I go so far as to say it is a false one. Second, although we may appreciate a wide definition of suffering, this does not mean that, when we come to considering what we do in response there are not plausible exceptions that need to be considered. The key ones that may be imagined are in relation to: unmerited as opposed presumably to merited suffering; consensual or self-inflicted suffering elicited by life-style choice, religious or spiritual conviction, or cultural heritage; levels of suffering that are relatively less significant than others; suffering that is seemingly incapable of being addressed by on-lookers; and virtuous suffering. However my claim will be that none of these potential exceptions need to be considered at the definitional stage. They are correct matters to consider when determining the nature and scope of the response that is explicit in both my foundational proposition and in my interpretation of the relational nature of human rights. By clarifying my thinking on these points I hope then to provide the foundations for further work on how human rights may be realised through law. This will be for further work. II. COMMON GROUND FOR FOUNDING HUMAN RIGHTS? What are human rights? It is perhaps remarkable that this question continues to be central to such a deeply explored subject. After all the conventions, declarations, judgments and pronouncements one might be forgiven for thinking some certainty must have been reached by now. And there is no doubt that in many instances we can probably identify some key demands that most if not all of us would agree was a human right. The right not to be tortured, the right to a fair trial, the right not to be arbitrarily detained and several others would most likely figure on any list we cared to make. But of course, the list approach to this subject will never answer the question properly. We will always be tempted to say in response, Yes, thats all very well, but what else could be a human right? We might go further and ask, And by the way, when is a right not a human right? There is no escape from philosophy and politics here, nor should there be. If we are to provide some kind of meaningful explanation then we cannot ignore the element of choice at work: choice as to the underlying principles of human rights that would enable us to look at particular instances and say with some degree of confidence, that is a human right; and choice as the essential political characteristic of any social determination to interpret when a human right is to be treated as such. The politics can wait for the moment. It is the first of these set of choices that I want to examine in this section. And the relevant questions I want to answer are: what distinguishes human rights from any other kind of rights; what foundations are presented as the basis for determining what should be a human right; and finally, are these sufficiently convincing? Are Human Rights Special? In talking about human rights there is a tendency to assume we are dealing with a notion that is different. Whatever range of rights we might care to entertain, and there is no end of analysis of this very question, the addition of the word human surely creates something special or distinctive. But what is that? To my mind the human categorization connotes a certain transcendence. It allows us to think of the subject as unconfined by time or location. It can in theory apply to all human life that has existed, does exist and will come into existence. The practical use of such a description is perhaps beside the point. In theory, it would make little sense if the subjects were restricted to those who were alive at any relevant time. Indeed, in classic human rights dilemmas, such as abortion and human embryo experimentation, the definition of a human being is at least debatable. Of course the nature of specific rights applicable to those no longer alive or yet to be born might alter. And we might only be considering the application of rights in so far as it leads to some kind of response in law or otherwise (for instance by way of compensation). But from a general perspective, it would not appear correct to bar such people from human rights language altogether. Such an expansive possibility neednt imply an undue self-defeating indeterminateness. Although we might in practice apply limits to our acknowledgment of all possible members there is ample precedent for accepting that both past and future lives might benefit from human rights. From those identifiable individual dead to less easily identifiable members of a class or group to those in gestation but not yet considered alive and beyond to future generations, there are many instances when acknowledgment has been made of the possibility that human extends beyond the here and now. This does not feel particularly contentious philosophically although the law might grapple with distance in time (back or forward) as a restriction on those who might be the subject of a legal claim. Of course, the term human is still not without its definitional problems. What it is to be human (outside time issues) throws up a number of significant ethical questions particularly at the margins of life from conception to death. But these matters should not disguise the vast set of subjects that can be identified with relative ease as human. Indeed, such general recognition is vital if we are to refute those claims, which it is hardly controversial to say we must, restricting the definition of humanity made on the basis of some deep-seated racism, nationalism, or psychology of pseudospeciation as Erik Erikson called it. Provided we reject the spurious arguments of those who deny humanity to those who are different, who inject hate into their belief that those not of their group are less than human and worthy of destruction or rule, the word human gives us a good sense of the first element of our subject. It clearly is not to be restricted to citizens or members of any particular state or community or geographical territory. That would only make a mockery of the adjective human in this context. With this appreciation we can then move to the second element. The term rights, here, suggests some sense of demand and some sense of response, a connection between people, perhaps between peoples. Whatever various categories we might otherwise care to ascribe (which Hohfeld influentially provided, with rights appearing as claims, liberties, immunities, and powers), this is the central characteristic. John Finnis described this as a three-term relation between one person, one act-description, and one other person. More specifically Tom Campbell defines rights as claims to entitlements that individuals (and perhaps groups) can justifiably make on other people and organisations. What the nature of that demand or claim and the nature of that response might be remains open. Both could depend on the link we make between rights on the one hand and the identity of those who might make the demands. So, we can think about citizens rights, for instance, or the rights of corporations and limit the field or sub-field of people/groups concerned. Nonetheless, still the key element of rights is the sense of relationship they conjure. Their assertion or articulation entails a beneficiary (who doesnt have to be a claimant others can claim for them), a benefit (the subject matter of the demand) and a benefactor (who could be the State, another person, or some other agency, institution, or organisation) who it is claimed should provide the benefit sought. There has of course been a huge amount of literature on the subject of rights over the centuries. All sorts of distinction have been made. And various theories have been espoused. Many see these as divided between interest theories and will theories. The former theories look to make rights protect the interests of the individual against others. The latter represent those philosophical positions that focus upon ensuring the autonomy of individuals in society. Within these theories we also have differences highlighted between positive rights on the one hand, where the benefactor has to do something in response, and negative rights on the other, where he/she must refrain from doing something. This has often provided the basic divide when it comes to assessing the nature of the relationship entailed. Although this is clearly important when it comes to determining the obligations of a benefactor I do not want to become embroiled in exploring the intricacies of the arguments that have been made at this stage. For my purposes the sense of the three elements (beneficiary + benefit + benefactor) will serve as the basis for moving forward. There may well be considerable restrictions on the operation and scope of each of these elements but for now we can leave these to one side. Undoubtedly, such limitations will emerge in my specific concern of human rights but perhaps in different ways and with different impacts. The important consequence for me is that the tripartite equation promotes the topic into the moral domain. It requires a sense of relation to be embraced that acknowledges relationship as the central quality of human rights. Indeed, when we come to link human with rights, we move well beyond simple categorisations and create the implication of a moral dimension. In effect, we are put on notice of a crucial relationship-in-being, a connection between those who demand and those who (should) respond that is unlimited by geography or some other means of separation. We are speaking of a core aspect of humanity in terms of the acknowledgement of a bond between all human beings. As James Griffin has put it, a human right is a right that we have simply in virtue of being human. It suggests that whatever content we give rights they have to apply to all human subjects. And that by attaching rights to all human subjects we invest in them power to persuade/force other subjects and institutions constructed by them to realise those rights, either for themselves or others. Whatever specific rights we are talking about and wherever we are looking to have them enforced they have to have application indiscriminately, at least as a primary position. It would be, in the first instance, antithetical to suggest that certain human beings were not entitled to certain human rights on the basis of peoples membership of a particular group. Otherwise we would be back with the discrimination and hatred of pseudospeciation again. This is not to say that we cannot deny rights in certain circumstances or grant greater rights to some people on certain grounds. But these would have to be morally justifiable exceptions that would not undermine the basic understanding. It would not necessarily follow that we would be repudiating the premise of human rights by doing this. David Luban expressed the necessary relationship in the following terms. A human right will be a right whose beneficiaries are all humans and whose obligors are all humans in a position to effect the right. His limited notion of obligor is perhaps unsatisfactory given that it leaves the third element of my equation (the obligor or benefactor) open to some kind of unstated empirical evaluation. Being in a position to do something about a right creates an evaluative condition that can always be contested. That seems unnecessarily indeterminate at this early definitional level. It is an underlying problem experienced by many theorists. Amartya Sen, for instance, although acknowledging the distinction between a reason to do something to prevent a violation of a human right and a duty to do something, is still trapped by the need for one to be in a position to do that something. I will return to the usual way out of this conundrum through law and its predilection for the test of reasonableness. For now though we still have to resolve the matter of what unifies things which might plausibly be classified as human rights. It might be preferable to retain a sense of all-embracing totality as a starting point. Indeed, Luban acknowledges as much in his following sentence: Human rights are the demands of all of humanity on all of humanity. This maybe a pithy statement but it is at least one that is not immediately made indeterminate through qualification, as with his previous claim. Of course, the qualification process will undoubtedly be necessary when we consider the practical aspects of realisation but that is not best served by inclusion in a primary statement of principle. It is more a matter of how claims are made and who or what structures or institutions are necessary to give effect to them. However, knowing that all human beings should be encompassed within human rights, as both beneficiary and benefactor (in theory) is a useful first step. It helps in making a distinction with other forms of rights that are limited according to some personal characteristic or other qualification. As I have already intimated, human rights cannot be restricted to particular categories of human beings. This does not mean different types of rights will not overlap. There is no reason why a certain type of right-beneficiary could not fall into many types of rights designation. Indeed, that is what we will come to expect when we talk about the specific relationship between state law and human rights. But as a point of departure this need not concern us. What we must focus on is the idea that human rights apply to all human beings wherever they are and, at least arguably, whenever they might live or might have lived. Whether we realise those rights is quite another matter. Of course, some of this might jar with the critique of human rights offered by Hannah Arendt, amongst others. Her identification of the most crucial right being the right to have rights underpins a view that without recognition as a member of a community, human rights do not have any real purchase. The stateless can call for their rights to be respected but without some citizenship attaching to them, some authority accepting responsibility vis--vis rights, the likelihood is any claim will not be heard and no respondent will emerge. All they have left is their humanity with empty content in their rights attached. This is a powerful argument. It is based on a realist account, in effect, of the nature of human rights as rights. In that sense it does not take exception to the possibility of a moral foundation to the notion of human rights. And of course we know by now that we do not have to look far to see all states guilty of presiding over human rights abuses (according to human rights texts at least) to some degree or other. Given that Arendts critique is based on empirical observation, in effect, then it may no longer have force if processes are devised to remedy the failure. Etienne Balibar, for instance, suggests that the recognition and institution of citizens rights, which practically command the development of human rights, have to be organized beyond the exclusive membership to one community; they should be located, so to speak, on the borders, where so many of our contemporaries actually live. He concludes that the important question is permanent access to rather than simply entitlement to citizenship, and therefore humanity. The matter, he says, is one of process. In other words, it isnt one of principle. The humanity that is implied in human rights requires a way to be found for their realisation not a surrender to the practical barriers put in their way by legal jurisdiction and political partiality. That, it could be said, is part of the promise of human rights, their transcendence of the political at least at the level of their conceptual recognition. In that sense, Arendts powerful critique of human rights only impacts at a certain practical level. In the abstract, there is still purpose to be gained in looking to humanity as a whole possessing in theory rights that are directed towards humanity. Despite these initial observations it seems clear that much human rights discourse really cannot make up its mind whether we are talking about rights or about what it is to be human. The confusion manifests itself in many philosophical works, where there seems to be a presumption, perhaps not unreasonably, that human rights are a sub-category of rights. Of course, this presupposes that the words reflect the substance. But we should know that this is not always the case. The use of phrases over time can distort their meaning and can develop a life of their own which can provide a substance that may be hard to credit to any identified original author, assuming one or a number exist. My point in this respect is that we should be sceptical about the phrase following the idea. It could just be that the idea has evolved and now follows the phrase. In other words, common usage and practice can inhabit the terminology so as to alter meaning. Then we end up in the terrain of myth. Extricating any essential meaning from the discourse may be nigh on impossible. Nonetheless, once we have established the theoretical all-inclusive nature of both beneficiary and benefactor, the key issue for human rights then becomes the nature of the benefit claimed and/or provided. This is where the bulk of work in the field takes place. Establishing who can and should make a claim and who can and should respond may still be significant questions requiring philosophical justification but determining what the claim can and should be for and what can and should be responded to (and to what extent) will be of prior importance. This is where the need for providing a foundation for human rights has real vitality. An inability to provide a sense of value which will underpin what human rights are for will leave us adrift when confronted by new claims, new contexts, new voices. Unfortunately, many influential critics and institutional human rights workers avoid this realisation. Michael Ignatieff, for instance, says it would be [f]ar better to seek to build support for human rights on the basis of what such rights actually do for human beings rather than construct some all-encompassing foundational claim for human rights. In other words, he is making a presupposition that we already know what human rights are and what they are for or at best he is saying it doesnt matter. This may have considerable practical merit but it is exclusionary. Philosophically it denies any differing development of human rights possibilities because it assumes the subject field to be a closed one. Jack Donnelly goes one step further, in effect, by suggesting that there is no point in looking for human rights justifications. The general international consensus is sufficient for us to look at the reality and practice of human rights without having to rationalize them first. The attraction of this argument is that questions of why we have human rights can be side-stepped and our attention can be focused firmly on perceived needs or more likely abuses. For those who believe that the latter are blatantly obvious, at least to the extent of egregious violations, this can mean attention can be paid exclusively to the insistent call to do something. Stop philosophising and get on with the business of doing something to help would be the resulting call. It is difficult to argue with such a position for anyone concerned with the plight of others. For surely the call to arms provoked by evident violence inflicted upon the innocent will always tempt us to refrain from diverting any attention to matters of philosophical consistency. The activist always seems to hold the moral ascendancy in such situations. But this understandable position and tendency causes problems that if ignored will, perhaps ironically, further undermine the human rights idea. To my mind there are three difficulties that should not be forgotten. First, it really plays into the hands of the positivist who will only recognise specific human rights if they are itemised and written down, if they are listed somewhere and can be followed with some degree of certainty. It reifies the human rights text as though they represented the real world. But even the greatest and most authoritative texts in the world, were about dreams, not real life, dreams conjured up by words. The texts are not practical in the sense that they have direct worldly application without mediation. This presents two associated difficulties. It can ensure that the recognition of texts is prone to political manipulation which is ardently antagonistic to certain types of human rights. The whole debate about civil and political rights on the one hand and economic social and cultural rights on the other is emblematic of such a politics of recognition. It also assumes that even with those texts embraced there is conceptual clarity on the nature and scope of particular human rights. But of course the notion of certainty in this context is a myth. Interpretation is similarly at the whim of politics (witness the sickening vacillations over whether the killings in Rwanda in 1990 should be defined as genocide or not) as well as jurisprudence. The general experience of legal interpretation relating to human rights tells us that the authoritative texts are ingrained with uncertainty, even to the point of indeterminacy. The ability of some benefactors to avoid responsibility on the basis of a strict application of a human right text highlights the difficulty in countering their position without some form of argument about the fundamental character of human rights. So, for instance, if a person suffering from a degenerative disease wanted to claim a right to die in a way they chose, an authority could respond that this was not a human rights issue at all. It could be argued that it did not fall within the compass of a listed human right, say the right to life. Many of us, I believe, would find this difficult to accept, at least as a starting premise. Those lists of rights with which we are readily familiar really do not lend themselves to simple reading. They encourage, in fact, interpretation. The response deemed necessary then might be better informed if such interpretation is made on the basis of some basic principles. Otherwise, particular hard cases are likely to rest in a sort of legal limbo, awaiting the relevant political institution to ponder the particular matter and effect a change in the list. This in turn renders human rights forever in abeyance, awaiting authoritative clarification, and subject to adjudication that is severely constrained. We need some sense of foundation then if we are to reach acceptable judgments about the development and application of particular human rights articulations or claims. Second, the evidence of what human rights do is far from clear. For all the self-evidence of respect for human rights that might be presented by commentators like Ignatieff, we can easily produce counter-evidence that shows that human rights do not work. Often that can be shown in the very societies that might be used to illustrate how human rights can operate. This is one of the underlying problems with human rights that has provoked, or so I suggest, the crisis of confidence in their ability to help people in need. Too frequently the failure to respond to the demands made by people (as individuals or in groups) are clear to see, further emphasising the impotence of human rights in directing action to fulfil those demands. Whether or not a right is listed as such, the plight in which some people find themselves is rarely intuited as an explicitly rights matter. Rather the language of injustice has greater weight. Third, the call to action without clarity of philosophy can prompt arguments based on very simplistic utilitarian principles. Adopting an approach based on the medical concept of triage may persuade us that short term responses are inherently more valuable than long term approaches, which seek to change systems and underlying conditions. The immediate relief for particular victims, although a priority, can be justified on the basis of numbers saved or assisted in comparison to perhaps an unquantifiable number who suffer when structural violence is allowed to go unchecked. Making these evaluations regarding action-choices really needs some better and more plausible foundation than the imperative to act. For these three reasons, therefore, the pragmatic activist position (as it might be called) should be resisted. Whatever the merits of practical action there is still very good cause to look for plausible foundations for whatever we wish to identify as being the subject matter (the benefits) of human rights. This is demanded by the special nature of human rights. Only then can we be helped in the first task associated with human rights: deciding when a so-called human right should be included within human-rights. The next part of this section considers some of the more conventional approaches to this question. I will say at the outset that however valuable these values may be they do not convince, in their own right or taken as a collective whole, as governing foundations for human rights as a universal concept. In each case, I shall argue, they are reducible to a more fundamental value. Although each may be good in their own right, they do not therefore provide us with sufficient grounding for understanding what human rights should be and how conflicts between them might be best resolved. What are the Foundations of Human Rights? There are a number of liberal values presented by theorists which have been used to answer this question. I want to review briefly two which I think underlie many of the human rights articulations of recent times. I do not intend to go too deeply into any of the claims made on their behalf over the years and across philosophical traditions. Im not interested in producing a complete history of human rights foundations here. However, my aim is to suggest that even though each may be considered persuasive (of course with varying levels of strength) in each case they seem to rest on a prior value, one that will give the principle some degree of substance. I argue that this is the notion of a commitment to respond to suffering, a suffering provoked by the failure in obtaining a particular value. The two foundations I will explore are: equality, freedom, and democracy (or representation). There are undoubtedly others but my aim is to give a flavour of their collective failure to get to the roots of the appeal of human rights. In each case, I find myself asking the question: to what end are these values pursued? Can they be foundational when they require prior concepts to make sense of them? Is there always an and implicit in the articulation of each value? Freedom and equality and Is there always a question that is immediately to be asked when we talk about any of these values in terms of human rights? Freedom Under this heading quite a spectrum of interpretation has developed. At one end there are those who wish to promote a social vision that places an emphasis on the individual and his or her ability to determine their own destiny, to make their own life-choices, to act in their own interests as they see fit. The extreme version of this is libertarian in nature, where the individual is pre-eminent, a subject whom should not be subject to the dictates and desires of others subject perhaps only to the principle that in acting so they do not do harm to others. But what do we mean by harm? If this is the principle which overrides liberty, imposes on it constraints, then it is to harm that we must look for a proper and full appreciation of what human rights might mean in this perspective. As I will attempt to show, suffering is the concept that captures this underlying imperative. The underlying question here might be: is it harm not to respond to suffering when it is within our reasonable power to do so? At the other end of the spectrum of freedom, there is the belief that human rights are emancipatory: for individuals qua individual human beings and as members of social collectivities, peoples in other words. Freedom comes through human rights. But the main question to ask in this respect is: freedom from what? And emanicipation from what? Can freedom and emancipation be ends in themselves? Or do they have to refer to deeper values which they aim to fulfil? If human rights are to have meaning in this context some clarity of thought on these issues is necessary. To some extent the libertarian approach appears more persuasive. Although we might question its desirability from a social perspective, if we define human rights on the basis of their ability to maintain individuals liberty to pursue their own interests then standards and collective means of enforcement can be constructed. But of course the dangers of a truly libertarian approach are manifest. Although the harm principle might impose certain constraints, the areas of doubt arise when we actually try to define harm. The concept of freedom does not and probably cannot provide an answer on its own. Much depends first on the place on the spectrum that one assumes for freedom. But that leaves the territory extremely ambiguous. A political determination is needed, one which inevitably attracts political philosophical perspectives rather than any general value that can transcend place and indeed time. For this reason freedom fails to provide any grounding for human rights which can escape the moment. With each change in attitudes towards the scope and depth of freedom will come a change in how human rights will be viewed. This is unsatisfactory making human rights appear wholly at the whim of politics. Equality I said above that one of the possible attributions to human rights was the sense that all human beings should benefit from them, at least as a starting assumption. The principle of non-discrimination is the best expression we have perhaps for this underlying position. On the face of it this seems a good value to espouse. Few would surely disagree that if particular rights are to be expressed as human then all humans should be their beneficiaries. But this in turn presupposes that the word human is the descriptor in the relationship with rights. In other words, the notion of rights is the key subject and we are then describing them in terms of humans rather than any other type of rights. This is all very well but it hardly takes us to the roots of human rights and their aim or purpose. Indeed, non-discrimination has more the feel of a virtue than a fundamental value in this context. It is a secondary principle. Once we can provide a plausible understanding of human rights then we can apply a principle (seen as a universal virtue if we wish) of non-discrimination to their application. Can we extract from the concept of equality something more in this context, something more, that is, than merely the practice of non-discrimination? The concept of equality is hardly settled sufficiently to help us render the indeterminate notion of human rights more determinate. [see Williams and Clayton etc to demonstrate the difficulties of founding a concept on another that is so contested.] T. M. Scanlon makes a convincing argument that the concept can be traced back to fundamental values other than equality itself (p41 Clayton & Williams). In other words, equality does not possess sufficient determinateness to be the non-reducible conceptual core of itself. Some other purpose or concern is at work. Scanlon suggests a key underlying aim of equality as follows: the elimination of inequalities is at base a humanitarian concern a concern, for example, to alleviate suffering. (42) This makes the notion complicit with one more fundamental. Although it might be vital in the realisation of the basic value to alleviate suffering, on its own it does not provide sufficient clarity to be a credible foundation for human rights. Perhaps we can see more of this virtue of equality in Seyla Benhabibs work. For her discourse ethics provide the means for constructing an account of the foundation of rights that depends in part on a notion of equality. Rights are only valid in theory if they are capable of justification through discourse or dialogue with others, convincing them of their validity. This requirement means that basic rights are those norms that would undergird and enable the exercise of your personal autonomy. In essence, rights then become imbued with the notion of respect, autonomy, and equality, intermingling so as to create a process by which rights are to be justified. It is this process of justification which, according to Benhabib, is the fundamental right. She puts this as follows: Basic rights or human rights are conditions that enable the exercise of personal autonomy; first and foremost as a moral being you have a fundamental right to justification. Your freedom can be restricted only through reciprocally and generally justifiable norms which equally apply to all. In the sphere of morality, generality means universality; universality refers to what would be valid for all human beings considered as beings equally entitled to respect and concern what I have named in Situating the Self (1992) egalitarian reciprocity. She calls this in short the basic right to communicative freedom. Later it is further refined as the principle of right, i.e., of the recognition of the individual as a being who is entitled to moral respect, a being whose communicative freedom we must recognise. But she then continues to draw attention to the historically formed, culturally generated, and socially shaped specificities of existing juridico-civil communities which might not gel with the abstract formulation above. Her response is to say that the moral (abstract) and political (real? concrete trends and transformations) have to be considered together. It is not clear why this should be so, other than perhaps a recognition that the political world must represent some empirical evidence of discourse and dialogue having been undertaken on issues of rights that then find expression in agreed schedules of rights as Benhabib calls them. None of this really comes to grip with the matter of values as opposed to virtues. To what end, is not an important question here. It is more a matter of ignoring the ends and focusing on the means. Provided respect is paid to individual autonomy and all people are treated equally the question of ends is not of great importance. The danger in this approach (as with all virtues of process) is represented by the inevitability of flaws. In other words, there is no process in practice that can live up to the demands implicit in the virtues expressed. So, the abstract dialogue imagined by Benhabib (as opposed to the internal imagination of the original position, which eschews the practical realisation in effect) will never be possible in a world of power (Foucault) that impacts on individual voice. Representation is the great evil in the world of virtue ethics. Are these Foundations Lacking? With good reason, these key justifications for human rights are framed by a belief in the inherent preference for human agency. The subject, the individual being, is the focal point for concern. Those seeking to value the community over the individual (such as has been advocated in the name of Confucianism for instance) deny this, setting up what has become known as the Asian challenge to the western model of human rights. And it is easy to see how these critiques can gain ground. Merely by associating the term human rights with the imposition of a western view of society that is fundamentally Eurocentric and antithetical to traditions emanating from other cultures has disabled the discourse. It can hardly be touted convincingly as a universal concept when so many can claim that they are not for us. Nor can it expect to receive acceptance when other interests are considered more important than those of the lone individual. Communicating across cultures on such matters has become extraordinarily difficult. No surprises, then, that the proposed foundations above have hardly helped resolve matters. Each concept has been so steeped in western liberal thinking that the impression of a form of colonialism through ideas and basic premises for society means they can be automatically dismissed, or at least they are considered flawed because they do not take into account different contexts, different traditions and different cultures. Richard Rorty makes a strong claim that all defences of human rights based on a notion of an understanding of rationality are flawed. They do not travel well and are invariably tainted by western liberal conceptions of the good. Even if these have induced considerable affection around the globe, basing human rights on these notions cannot take into account the different cultures and social values practised by non-liberal societies. The critique of cultural imperialism attached to these justifications for human rights is, as a result, quite inhibiting of the human rights movement. At the very least, it seems to set dilemmas that a discourse premised on foundational values that are not necessarily universal cannot resolve. Joseph Raz has added his voice to this anti-foundational stance. But his approach is that human rights require rational justification.(18) They lack a foundation in so far as they are not grounded in a fundamental moral concern but rather depend on the contingencies of the current system of international relations.(19) This political realist approach (as it might be called with all the dangers of mis-association with other authors), whereby human rights reflect the practice of human rights and their recognition on the world stage, has some strength by acknowledging that the present is a good time for human rights as Raz calls it (1). In other words, the success of interference in the internal affairs of sovereign states in the name of particular human rights, and the benefits individuals have received purportedly as a result, provide the rationale for continuing with human rights in this vein. But what is missed here is any sense of value beyond the limited interpretation provided within the international human rights movement. It provides no basis upon which the politics of human rights (something to be distinguished from the politics for human rights, which Upendra Baxi makes plain) can be judged. When a state makes statements about the human rights of citizens other than its own, more particularly when it doesnt make such statements even with evidence of individual human suffering, how do we judge that response? This is the problem of focusing on practice. We become dependent on an official version, whether from states, international institutions (of human rights or otherwise) and civil society organisations, for making judgments on our behalf. That might be fine most of the time. But when voices of suffering are not heard and more importantly not acted upon because the shape of international relations (19) do not recognise particular sufferings, then we have to fall back on something else. Raz would presumably suggest that this would take us back to whatever moral position we happen to take and be able to defend. Presumably we are not then in the territory of rights at all. And that is where we lose the power of the human rights discourse. And we become subsumed within the power of institutions (through practice) that determine what rights are recognised and thought authentic. But does this fault line inhibit us from searching for a more plausible universal foundation? Is it not possible to consider another justification that can capture the power of human rights that is evident over the last half century or more of political development world wide? Can we not identify a better basis that might allow for variation in applied process but still provide a language that builds on the force of human rights without being consumed by the western interpretation? I believe we can. This is the subject matter for my next section. III. HUMAN RIGHTS AND SUFFERING Look at Sen on human rights he tests each right as though they are capable of separation and parcelling leading to the endless debate about each right and their legitimacy. But taking such a stance undermines rights it removes their collective character by making them independent. Almost as a reflection of the distinction drawn between individual rights and collective rights. This seems to go against the easy way in which the term human rights is used to conjure up notions of justice for so many. Surely the power of human-rights is that it conveys something that cannot be separated, hence the term indivisibility. We therefore have to construct a theory capable of understanding and managing this condition. It is my contention that the collective response to suffering is the immanent theme of human rights. Although I recognise the candidate claims to moral foundation resting on concepts of equality (all persons are to be treated equally in the organisation of society), of freedom (where all persons should be enabled to live their lives without the unreasonable interference of others whether individual or institutional), and others I havent covered such as democracy (where all persons in a particular society should be engaged in collective decisions that affect their lives), and fairness (where people in a community should be treated fairly in the distribution of benefits and burdens associated with living in society with others), these do not seem to me to offer sufficient cause for the ubiquitous emotional attachment to and advocacy for human rights in the contemporary era. Their individual indeterminacy and breadth of definition undermine claims that they may have to universal appreciation as a moral basis for human rights. As an alternative reading, my proposition remains that our understanding of suffering provokes human. My perspective is, therefore, a reversal of contemporary human rights discourse and, for my future purposes, human rights law. It suggests that any proposals for realigning a legal system to do justice to this core theme must acknowledge that insufferability not sufferance should be reflected in its ethos. By ethos here I mean something akin to Hans-Georg Gadamers interpretation, following Aristotle, denoting a sphere of developed institutions, attitudes and practices. It reflects a system based on the set of sentiments and attitudes in virtue of which its normal practices, and informal pressures, are what they are. Max Schelers definition of ethos as the experiential structure of values and their immanent rules of preferring, which lie behind both the morality and ethics of a people, resonates here, suggesting that our concern has to be with the moral foundations of both the concept of human rights and the law that brings them into effect. The matter of the ethos of a legal system vis--vis its approach to suffering is my ultimate concern thus eschewing the tendency of investigation to examine the philosophy of law and the philosophy of human rights as separate and separable constructs. No doubt my preliminary statement concerning the immanence of suffering could provoke the question: why talk about human-rights at all then? Given the philosophical and political confusion of the concept, the indeterminacy in Griffins words, what is to be gained by making human-rights rather than suffering our referrant subject heading? There are two reasons. First, in talking about human-rights I am assuming we are dealing with a concept that should be distinguished from other types of rights. Of course, much rights discussion has been concerned with whether such a distinction is valid. But the human categorization connotes a certain transcendence. It allows us to think of the concept as unconfined by time or location. It can apply to human life that has existed, does exist and will come into existence. Of course, the term human is not without its definitional problems. What it is to be human throws up a number of ethical questions if not dilemmas particularly at the margins of life: from conception to death. But these marginal matters, which carry with them significant ethical dilemmas, should not disguise the vast set of subjects that can be identified with relative ease as human. Indeed, such recognition allows us to refute absolutely and permanently those claims that have been made on the basis of some deep-seated racism that certain members of the human species should not be considered human. Second, the term right suggests some sense of demand and some sense of response. The nature of the demand and the nature of the response remains to be defined but the link between human and right notifies us of a crucial characterised relationship-in-being, a connection between those who demand and those who (should) respond, a jural correlative in Hohfelds terms. It speaks of a core aspect of humanity in terms of its reflection of a bond that is a product of socialisation. That bond is between us all as individuals and between all individuals and institutions we provide with a requisite political responsibility. It also suggests that howsoever we define right it has to apply to all human subjects. As James Griffin has put it, a human right is a right that we have simply in virtue of being human. Thus whatever rights we are talking about they have to have application indiscriminately at least as a primary position. It would be, in the first instance, antithetical to suggest that certain humans were not entitled to certain human rights. If categories of humans were created, such as citizens or property holders or people of a particular age or sex or race etc, which attracted different rights then this would wholly undermine the very concept from within. Whatever else these rights might be called, citizens rights or civil liberties etc, and whether or not they fulfilled whatever criteria we set for human rights, they could not encompass human rights as a definitional entirety. This does not mean that all rights are to be attached to all humans unconditionally. There must be some process for determining resolution of conflicts between human rights demands and indeed responses. And that will mean that as a secondary position some humans may be denied some human rights on the basis of some criteria that we can justify. To be sufficiently plausible, that justification would have to be grounded in human rights terms rather than political or even economic considerations. In other words, at this foundational level issues of social choice or cost-benefit are not engaged. Such matters may well come into play as a secondary issue but that would move us on to the adjudicative level rather than the moral. For these two reasons, therefore the term human-rights (and from here on in I hyphenate the term to indicate my particular conception is different from the international terminology) seems at first blush to be a reasonable term to employ then what moral foundation can be plausibly presented? I have already dismissed two candidates. I argue that the response to human suffering provides a strong alternative. It suggests that we can move from immanent theme to identify the core human-right that flows from this position as the right to a collective response to known suffering for the purpose of its alleviation. Such a core right is indeed reflected in (although certainly not captured by) the catalogue of human rights that have been developed over the past 60 years or so and that have been termed international human rights norms. Each item of this catalogue can be reduced to the appreciation that people, whether individually or collectively, are entitled to a response to their suffering. The nature of that response will vary but two basic forms, one negative, the other positive, will be dominant. They can be called, at the risk of confusion given their meaning in English law, the injunctive relief and the relief of specific performance. The former requires any party, including the State and public authorities, to stop any action being undertaken by them (or prevent an action by others) that causes human suffering. Such is the classic focus of human rights on abuses known already to have occurred or an inevitable consequence of a specific law or regulation. The latter requires particular parties, invariably the State or public authorities, to take specific action either to prevent the possibility of suffering arising in the future or to construct conditions that will reduce suffering. This frequently relates to those claim rights that seek to improve the conditions within which people live. Of course these two forms of response overlap. They have been analysed with vigour over the years. But they provide a slightly different flavour when it comes to the prevention of abuses or the promotion of observance of human rights. Any right which does not carry with it some kind of commitment for a response in these terms I suggest would be an empty vessel in my understanding of human rights. The adoption of a core right such as this will of course be considered problematic for some. Two objections at least have been made, one that holds little weight in my view, the other is more substantial. First, would it not suggest, the argument could go, that some respected human rights norms, such as the right to form Trades Unions or the right to education do not lend themselves to interpretations based on suffering? I do not take such an objection too seriously. The thesis I advanced previously put the case that all human rights that have found expression through international consensus of some kind are the product of recognition of the suffering of others. Of course, we might argue indefinitely about the scope of a particular right, for instance whether the right to form a trade union precluded government interference in the management and financing of such an organisation. But fundamentally, the human right expressed was an acknowledgement that the suppression of workers acting collectively, thus preventing them from exercising any counterweight power to that exercised by capital or state, would inevitably induce suffering for those workers. That suffering could be, and has been, articulated from time to time, as the restriction of liberty. Whether or not one agrees with the rightfulness of such a liberal understanding of the connection between suffering and freedom, human rights as they have developed internationally are all infused with the same connectivity at heart. Whatever ideological origins or interpretations, my claim is that suffering has been the motivating factor behind human rights norms in the contemporary era. This brings me to the second, more substantive objection. Notwithstanding the manner of construction of existing international human rights norms, which find their expression also in municipal systems, will not the identification of suffering as the subject and object of human rights (rather than the positive expression of particular human rights we are used to) lead to a breakdown in the realisation of human rights in any ordered manner? In other words, does not the reliance on suffering to frame our understanding of human rights open the door to an impossible task? For whose suffering are we to be concerned with? And what will be the nature of that suffering to be recognised? Is it to be subjectively determined? If so, could any experience considered by an individual to be suffering require some kind of response promoted through law? If not, what is to stop the imposition of a world view that could actually impose rather than relieve suffering? And how are we to deal with collective suffering as it may be called, those matters of identity that cannot be individualised and are often referred to as group or third generation rights? These are significant questions. But they emerge from pre-conditional thinking about human rights that permeates their construction and articulation over the past half century or more. The most important of these is the individualist interpretation of human rights articulations that has gained ground in the contemporary era. It is considered common ground that individuals are the beneficiaries of expressed human rights. States are to hold obligations to avoid or prevent abuses, remedy breaches and generally promote the value of human rights. But ultimately every human being is deemed the recipient and subject of these rights. Of course, there seems little point in arguing that individuals should not be so endowed. But it does not follow that the interpretation of human rights should rest purely with the individual. Indeed, as I discussed in my previous essay, law operates to impose a collective approach to human rights that directly prevents such a possibility. The individuals appreciation of their own suffering is a factor that can be taken into account (and in some human rights articulations there is scope for this to be embraced) but invariably an objective assessment is made. Even when individuals are invited to express how they have suffered this is only taken seriously if an adjudicating tribunal believes the accounts of those individuals. This is a matter often of evidence or credibility, something which places even subjective tests within an objective environment of adjudication. This sense of objectivity that arises out of a sense of universal experience is evident in international human rights texts. The Universal Declaration of Human Rights was made with all members of the human family in mind. It is the peoples of the United Nations that affirm their faith in fundamental human rights. The rights and freedoms expressed are the product of a common understanding. In the ECHR a common heritage underpins the rights outlined and provide the basis for their collective enforcement. The International Covenant on Economic, Social and Cultural Rights is constructed in recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family. And so on. These are all expressions of collective appreciation that are by their very nature objective. But of course that objectivity is a product of an assumption that people know what it is to be human, what it is that will detract from being human. This is a matter of sympathy, which can be literally translated as with suffering in this instance. It is not just a question of hearing about suffering related by others, it is also understanding that suffering to be genuine. For good reason, therefore, I find it difficult to be sympathetic towards those corporations that claim they have had their human rights abused by governments. This has been the hallmark of much legal adjudication of human rights in the context of EU law, for instance, where principles established have been applied to legal persons quite liberally. However, only when the human element is realised in the form of members of that corporation does the human designation really take any shape. As the appreciations of humanity have developed over the past few decades, releasing the desire to protect those who may well have been excluded from these articulations of objectivity (such as women, gay and lesbians, transsexuals, children, issues arising from biological experimentation etc) what it is to be human and therefore what is to suffer in that humanity, has developed. But underlying those evolving appreciations has been the belief that such suffering newly or now traditionally appreciated demands our response. This raises the question, nonetheless, as to the limits of suffering, if there any, in my conception of human rights. Although we can rely on human rights traditions to apply an objective approach to claims of suffering, does this help when determining whether those claims can expect, legitimately, a collective response? Would the most trivial degree of suffering, I cut my finger on a rusty nail whilst undertaking some DIY, require a response if only in theory? Yes, is my short answer. Of course on the face of it this looks ludicrous and implausible. But let us examine this a little further. If the suffering does not require a response, if the body will heal itself without attention, then in practice the human right to a response would be nonsensical. This would be a matter of known fact. But if the cut warranted minor treatment with the threat of infection and no preventative medicine or inoculation was made available by the State, then there might be cause to claim that some general response was required. It does not obviate the personal obligation to take necessary steps to alleviate the suffering. Depending on my capabilities, as a member of the society that might be charged to respond to suffering, I too hold a responsibility. Whether I choose to exercise that responsibility can be a determining factor in deciding whether a collective response should be made. We do not need to get into the impact of a concept of liberty here but my scheme does not preclude a social determination to respect an individuals wish not to receive a response to experienced suffering. Nonetheless, the determination of whether a demanded response to suffering has been attended to collectively is a matter of practicalities, of course, but from a base of reasonableness in response. In my example of a minor cut, if any society had in place a clear provision of medical facilities, which were open and affordable to me, then demanding a response from any public authority would also be nonsensical. I will return to this vital issue of reasonableness in later work when I consider the relationship between law and its governing principles with regard to the realisation of my core human right. However for the moment I will state that this is not a question of assessing the reasonableness of a demand for a response but the reasonableness of any response or lack of one that concerns me. For some this will have the appearance of a consequentialist position. In other words, judgment on whether a right arises depends on the consequences of an act or a failure to act. But this would be an incorrect interpretation. The initial engagement of a human right in my scheme appears as soon as suffering has taken place. Howsoever this has been caused, whatever shape it might take (and I have more to say about this below) the human right to a due social consideration of response to that suffering takes form. From that simple basic position we then can see how a tree of complex questions emerges. But these are for practical solution. The philosophical underpinning of human rights remains suffering as an a priori condition. That others might see the proper route then to be a specific cataloguing of suffering which should be addressed does not undermine this position. Indeed, it might support it. For, as with all the formulations of a list of basic needs, a minimum core of obligations, a quality of life established through minimally adequate levels, all do not obviate the appearance of suffering in peoples lives. My proposal however is to move beyond these catalogues and the structures of law that currently inhibit response to suffering. Before I do that, however, I wish to distinguish between the identification of suffering, as the crucial component of human rights, and harm. The latter is the recent focus of concern of the humanitarian strategy towards human rights adopted by David Miller. Harm in this context is inextricably linked to needs. These Miller refers to as intrinsic, those items or conditions it is necessary for a person to have if she is to avoid being harmed. Once we identify what those needs are, and Miller relies on the conditions for minimal decency that incorporate not only physical-cum-biological attributes, as he terms them, but also conditions of social existence, we can set the parameters for deciding on a catalogue of human rights. Harm is therefore associated with the deprivation of needs. Whatever the merits of this approach, it is apparent that it depends on a particular vision of what makes a minimally decent life. Miller acknowledges that this will vary from location to location, although the underlying need which he wishes to capture within his theory of human rights, he suggests should be identifiable. He retreats to the objective approach for this purpose in order to determine what is actually necessary for people to lead decent lives in different cultural contexts, as opposed to what people in those cultures may believe is necessary. Thus harm becomes a product of a vision and an understanding that is constructed in isolation of changing experiences. It lacks the acknowledgement of plurality and change (in geography, climate, economics, technology etc) as key influences on our perceptions of suffering. And it tends to disallow the development of human rights through experiences shared or appreciated. Sympathy is made objective, something I suggest is contradictory by definition. Relying on an objective notion of basic needs, the lack of fulfilment of which is the measure for assessing harm, risks objectifying suffering to too great a degree. If we have learnt anything about the suffering of people over the last half-century or so it is that our sympathies can only be engaged if the voices of those who suffer are allowed to be expressed and heard. Whether or not sympathies are then provoked sufficiently, so that a collective response is seen as possible and necessary, is a matter of process. Nonetheless, there is good reason to suppose that basic needs as described by Miller and others would provide important indicators as to suffering that can be appreciated. So too those capabilities advocated by Martha Nussbaum and Amartya Sen in so far as their denial causes suffering. But there is a certain reification at work here. Neither the basic needs approach, nor the capabilities approach, inspires confidence that they will encourage the subjective view as to what might constitute harm or suffering or indeed the good life. These formulations do not provide sufficient account of the desirability of meaningful participation of people in advocacy regarding the suffering (or harm) they might wish to have addressed. My notion of suffering, although closely related to harm as promoted by Miller, does not require the assessment of needs before it can operate as the basis of human rights articulation. A claim that there must be a collective response will require justification, of course. It would require evidence of suffering that demanded such a response and a determination that a response was reasonable or not. The suffering would thus be subjective in nature but appealing to objective appreciation. So too would the fact or extent of response by a body responsible. Thus, it is not intended that suffering can be limited according to a predetermined catalogue of needs, desires, capabilities or written rights. Rather it is open to interpretation. Such catalogues can still provide useful guidance but they should not construct the boundaries of suffering that demand our response as they do at present. This might suggest that suffering cannot provide a plausible foundation for a theory of human rights because it remains too uncertain. But this would be an incorrect reading. As with the needs approach we can, I suggest, agree with little difficulty many dimensions of suffering that we would accept have been experienced and warrant a collective response. Physical-cum-biological harm, as Miller suggests, would of course be incorporated. But it would also allow in principle for deeper conceptions to be applied. This would reflect developing social appreciations of suffering. Provided we adjust the limits of adjudication to avoid questions of victim, perpetrator, and causation we can legally address suffering that is attributable to a class of people, or to a condition that provokes reasoned sympathy. This also opens the possibility for determinations of responsibility beyond state borders. There is a danger here, I admit, that an expansion of the meaning of suffering could also take the form of a restriction if the adjudication process was wholly at liberty to adjudge whether an experience or condition amounted to suffering and thus worthy of a response in any particular society. For instance, we need to ask whether the US governments lawyers who attempted to redefine torture so as to preclude anything other than organ failure or permanent mental illness, could reflect a valid revision of a social appreciation of suffering. Similarly, we could conceive of a case where a scientific evaluation of the minimum requirements for daily food intake could be down-graded, suggesting that those above that threshold were not suffering. But the possibilities of such determinations should be precluded by the process of adjudication itself provided it is founded on principles that focus on alleviating suffering in realisation of the core human right. Although these principles need further work for now, I make the point that the danger only materialises in practice if the process is not predicated on the core human right, that suffering should provoke collective responses to alleviate that suffering. We may still have the age old problem of matching resources to the suffering to be adjudged, or in considering hard cases where the alleviation of suffering of one person will increase the suffering in another. But these are questions for the process of adjudication rather than ones solvable by reference purely to some abstract and generalised formula. My overall approach does not lay claim to solving all the ethical dilemmas of our or any other time. If we accept, therefore, that understanding of suffering is fundamentally a collective appreciation, objective in character, albeit changing with a developing appreciation of what it is to be human, what it is to suffer and what it is we must respond to, then making the relief of suffering the core right is hardly opposed. Indeed, it is reinforced. Suffering as a concept should not cause us difficulty. It becomes an entirely practical matter as to whether any particular articulated suffering is recognised as such and prompts a response. The practicalities concerned I will have to leave to another time. IV. CONCLUSION: RESPONSE AND RESPONSIBILITY If, as I claim, suffering is a priori for human rights, and if the core right is to a collective response to suffering, how should that response be governed? In my earlier article I suggested that responses currently tend to be through law. The juridification of human rights, whereby law has acquired considerable influence in establishing the content and application of human rights, indicates that societies have come to trust the law, rather than our political institutions, to provide both a response (through court decisions) and judgment on the responses of others. The others in question here are not restricted to government. Public authorities, for instance, have embraced a wide catalogue of institutions in an attempt to allow the law to judge whether rights have been violated. Corporations have also been included as bearing a responsibility. Nonetheless, there remains a sense of a public/private divide when it comes to the specific application of human rights. However, I made the case in my previous work that such trust in the law, as presently understood and constructed, was ill-founded. Through the structures, principles and processes of modern law I claimed that there was a tendency towards sufferance, meaning the active toleration of acknowledged suffering, rather than insufferability. In short, I suggested that law was failing systemically to respond to suffering and thus to the core of human rights. Even though many victories for human rights have been recorded in courts internationally and nationally these remain exceptions that prove the rule. Notwithstanding this analysis, I did not dismiss the law as inherently anathema per se to the core of human rights as I conceive it. This is by no means uncontentious. The position is based on an assumption that law is not incapable of allowing responses to suffering to be adjudicated without prejudgment. In other words, law can reflect the moral commitment to insufferability. Although as Scott Veitch has pointed out, law can be irresponsible and, it should be said, anti-responsible it does not follow axiomatically that it cannot be responsible for this commitment. Unless law is entirely autonomous it must and can be changed to honour the demand for insufferability and therefore the core demand of human-rights. It may need to shed its shackles that have developed in modern law (which I have suggested are formed around structure, principle and process) but those shackles are not wholly self-constituted. They are a product and a reflection (a metaphor I previously suggested) of the society within which it operates. The demand for a response through judgment therefore must focus on adjudication on the basis of hearing in its fullest sense. It requires a sophistication of such hearing, an openness and a willingness to hear the voices of suffering. I have to acknowledge here that there is a counter argument that law is inherently defensive in nature. It is therefore inherently antithetical to insufferability. If it is understood as defensive of the State and the powerful interests the State has come to represent then we can never expect it to be anything other than tending towards sufferance. For any other condition of law would be tantamount to the rejection of laws role to protect or defend the interests of power. But perhaps this comes down to an issue of faith. Faith, that is, in the sense that there does not have to be an inextricable link between power and law. In other words, there is scope for law to be associated with justice as a counterbalance to private or public power as supported through the State. That is at least my position. It accords with Hegels vision of law as a means by which private and state power can be curtailed. In pursuing this challenge further, I make two underlying presumptions. First, that law rather than politics alone, if such a distinction is valid in any case, has a necessary and desirable role to play in the realisation of the human right to a meaningful collective response to suffering. Law, in this respect, I take to provide a plausible register of objective public commitment to act that can transcend political differences. It provides an arena for holding institutions to account for their decisions to act or not to act. And, if organised in such a way as I propose in this article, it can demand not only accountability (in the sense of requiring those who represent us to provide intelligible accounts for why or to what extent any suffering has or has not been responded to) but also enforceable action all within a legitimating context of a rule of law. Second, that in the first instance the realignment of structure, principal and process has to be undertaken in the context of the traditional nation-states boundaries (in our case, the UK). At this stage, this is a matter of practicality and realism. As I will demonstrate later the possibility of looking beyond the confines of jurisdiction, a key principle of modern law that I previously critiqued for its tendency to induce sufferance, remains open. There are possibilities to embrace insufferability as a prelude to accepting responsibility beyond state borders without defeating the aims I have set myself here. All this will look to two fundamental appreciations. First, the key attribute of law (through adjudication and regulation) is in facilitating a dual accountability vis--vis responsibility. This has a particular meaning in my context. It alludes to the need to hold public actors to account for their response to known suffering but it also necessitates an account of such suffering to be heard. The structuring of what might be termed adjudicative justice is thus first to be based on the necessity for both society and individuals directly affected by suffering to hear their account and second to then hear those of responsible individuals or authorities on whether, how and to what extent they have responded to known suffering. I recognise here that this opens a number of subsidiary questions that need to be resolved. Who or what is responsible and encompassed by this injunction? How is the requirement of double-accounting to be provoked? And who can provoke that process? Throughout I still maintain that the binary logic of modern law is an unnecessary attribute for a legal embrace of insufferability. Sufferance does not have to represent a truism of legal ordering. Rather, adjudication can move focus from designations of legal or illegal to gradations of reasonableness. In other words, if in holding to account those bodies or institutions, political or otherwise, which we have charged to act as our agents for the collective response to suffering, a judgment is reached on the reasonableness of any chosen action or inaction, the all or nothing (with the prevailing tendency towards nothing) determination of legality is not a naturally induced conclusion. It is not the full sum of adjudication. This would allow for the development of more precise judgment whereby the minutiae of responses could be adjudged rather than simply the totality. Questions of enforcement may follow and engage a variety of possibilities but these are relatively straightforward in comparison once responsibility has been attributed These are all very general indicators to suggest a practical way forward to changing the dimensions of modern state law to embrace my understanding of human-rights. Much work remains to be done.  LQR refrence This article is part of a continuing project inspired by the work of Professor Upendra Baxi. His position is best set out in his book The Future of Human Rights (OUP 2000x). However, my approach develops the initial argument advanced by Baxi and specifically attempts to locate a redirection of a philosophy of human rights law in the UK context.  Ibid at  Lost love is often cited as pain that cannot be addressed by spectators. See  HYPERLINK "http://philpapers.org/autosense.pl?searchStr=Kerri%20Woods" \o "View other works by Kerri Woods" Kerri Woods,  HYPERLINK "http://www.springerlink.com/content/1240875t0l356712/fulltext.pdf" \t "_blank" Suffering, Sympathy, and (Environmental) Security: Reassessing Rorty's Contribution to Human Rights Theory (2009) Res Publica 15 (1) 53-66. As we will see, I dispute this in the terms of my proposition.  Although also contained within cultural acceptance of certain kinds of suffering, we might also identify the virtues of sacrifice, endurance, experience, courage etc as all embracing suffering as essential elements. But as we will see this does not mean that they merit no response in my terms of human rights.  There are though many instances where human rights have been used to relate to past victims or potential future victims. The abuses visited on the victims of the Holocaust, war, colonialism, slavery, have all been the subject of accepted human rights based claims, although admittedly it has never been easy to bring them to fruition.  When a foetus becomes a human or when a person ceases to be such as a result of brain-death, for instance are critical questions for all societies. But this does not detract from the general identification of humans.  Erik Erikson coined the term to describe the process of denying a persons designation as a human on the grounds that they did not belong to a particular ethnic or other group. In other words, what amounted to the human species was always contingent on the determination by particular groups that all who were not members were not a member of that species. For more on this idea see Konrad Lorenz, On Aggression (London: Routledge, 1996) 67-69 and Kai Eriksen, On Pseudospeciation and Social Speciation in Charles B. Strozier and Michael Flynn (eds.) Genocide, War and Human Survival Rowman and Littlefield Publishers: London, 1996) 51-57.  The influential American jurist W. Hohfeld produced a typology of rights at the turn of the 20th Century. See Finnis, Natural Law and Natural Rights (Clarendon: Oxford, 1980) at 199.  Tom Campbell, Rights: A Critical Introduction (London: Routledge, 2006) at xi.  John Finnis extracted from Hohfelds scheme the central requirement of a three-term relation between one person, one act-description, and one other person for any right to be such. See Finnis, Natural Law and Natural Rights (Clarendon: Oxford, 1980) at 199.  Which might amount to a jural correlative in Hohfelds terms. See, W.H. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning at 65.  Griffin at 2.  David Luban, Just War and Human Rights (1980) 9:2 Philosophy and Public Affairs 160-181 at ?  Ibid.  The seemingly irrelevant inclusion of those who are not alive but were once and will come to be is however important for a number of reasons when we come to think about such issues as compensation of past human-rights violations or the protection of human rights (such as might be linked to the quality of the environment) in the future. These are matters I consider later in the book.  The possibility of owing a duty to persons from the past has been the subject of specific questions of justice. The debates on these cases, such as relate to the historical crime of slavery in the USA, the harm done by reason of colonialism etc, have provided the basis for considerable argument without any resolution. Nonetheless, the point is that there is the possibility that human rights can attach to people who have passed away and also people yet to be born. In law, this might be troublesome but from a global or restorative justice perspective an argument for the application of such rights could be made.  The Origins of Totalitarianism.  Hannah Arendt, The Origins of Totalitarianism  Etienne Balibar, Outline for a Topography of Cruelty: Citizenship and Civility in the Era of Global Violence in We the People of Europe? Reflections on Transnational Citizenship (Princeton University Press, Princeton, 2004) 115-132 at132.  Ibid.  A classic example of this presumption can be found in L.W. Sumner, The Moral Foundation of Rights (Oxford: Oxford University Press, 1987) at 3 where the discussion on rights moves seamlessly from the municipal arena (where the human descriptor is not employed) to the international (where suddenly it is).  Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001) at 54.  Richard Rorty seems to agree with this although still looks for a foundational premise despite saying there is none.  Orhan Pamuk, The Black Book 82.  See Philip Gourevitch  Paul Farmer makes a strong intuitive claim for the acceptance of triage in Pathologies of Power at 230-231. It is also evident in the work of certain humanitarian NGOs. See Peter Redfield, Sacrifice, Triage, and Global Humanitarianism in Michael Barnett and Thomas G. Weiss, Humanitarianism in Question: Politics, Power, Ethics (Cornell University Press, Ithaca 2008) 196-214.  I will address this aspect of humanitarianism, the imperative to act, in the next chapter.  See in particular, Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (CUP, 2004)  Ibid, at 133.  Benhabib relies on (Forst Constellations 1999)  At 133.  136.  141-2.  146.  Richard Rorty  Joseph Raz, Human Rights Without Foundations  Upendra Baxi The Future of Human Rights  Hans-Georg Gadamer, Truth and Method (London, Sheed and Ward:, 1979) at 279.  G.A. Cohen, Where the Action is: On the Site of Distributive Justice, Philosophy and Public Affairs 26 (1997) 3-30 at 28.  I am substituting institution for people here. Max Scheler, Formalism in Ethics and Non-Formal Ethics of Values (Evanston: Northwestern University Press, 1973) at 302.  W.H. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning at 65.  Griffin at 2.  I need here to reiterate the distinction between human rights, which I reserve for the international articulation of rights, and legal rights or what has been called civil liberties. The latter grouping may be the product of a basic contractualism at play. Through either legal imagination or political settlement (constitution) governments have agreed to accept types of claims against the State. Such agreed provisions, howsoever they may have arrived, are particular and based on territory to give them substance. They do not have the claim of extraterritoriality usually (there are minor exceptions) and thus cannot appear as human rights. The epithet human dictates that such designated rights are by and for all people. Nationally agreed rights may well and often do have their inspiration in international articulations but they do not create them. At best they can only be a subset of human rights. And even then, in many circumstances, the agreed rights at national level will not necessarily have any evident relevance for appreciations of suffering.  It is difficult to think of a so called right that does not provide some kind of commitment. But there are some that are ambiguous in this respect. For instance, art. 26 EU Charter of Fundamental Rights includes the following: The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. This appears to be a right wholly contingent on the prior introduction of measures. No commitment is made to introduce such measures. Thus there is no commitment to address any suffering of those with disabilities as regards their integration and particpation. In my view this would qualify as a non-right empty of the immanent theme I propose.  David Miller refers to the assessment of what can be reasonably demanded from others as the basis of practical considerations in giving effect to human rights. See Miller at 186.  Miller at 179.  Miller at 184.     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