From Human Rights to Human Dignity and Vice Versa

Abstract

It is well known that the Universal Declaration of Human Rights could only be written and agreed upon because their redactors first, and the ratifying states after, did abstract from the reasons why their agreed to the same content. Such a pluralism of reasons is an essential characteristic of international conventions and of democratic states. Rawls speaks here of an “overlapping consensus” on the conclusions of reasonings from premises that are in part different, belonging to different comprehensive doctrines. This applies in Rawls to human rights as part of the constitution as basic structure of a democratic state in his theory of justice. Now there is a Hobbesian conception of the overlapping consensus as a mere modus vivendi that makes it possible for groups of people with an overlapping consensus on human rights to pursue their own good under conditions that are advantageous for them under the circumstances. Such is a prudential political conception. Rawls conception of the overlapping consensus on human rights is not prudential despite being political in the narrow sense, because he has a conception of political philosophy which does not imply universal validity. He thinks that human rights are grounded in public reason, not in universal philosophical reason. Public reason is ethical reason with legal constraints, particularly the constraints imposed by the sources of law, the legislative procedure and the judicial process. But the legal constraints must be ethically justified, or they are objectionable and reasonings based on them disapproved by ethics. In this way public reason encompasses the differences between the various constitutional laws, as the reasonings developing them have in each case some different premises. But as such premises are at some point ethically validated or invalidated, the reasonings based on them are for the good or for the worst accounted for by ethics. All human rights derive from the equal dignity of men, i.e., of their equal value as free and autonomous persons, who give themselves their own law. The democratic principle is the constitutional principle of a society on such an ethical basis. Democratic reason is tantamount both to public reason and to legal reason in a modern constitutional state. It is a requirement of ethics but still not identical with ethical reason, since it is possible to accept democratic reason and to argue against it from an ethical point of view. There is just one good way of reasoning, despite the constraints that the sources of law and the rules of procedure impose on legal reasoning, compared with ethics. Such constraints are based on the democratic principle, which is again based on ethical reason, which at last both grounds and limits the constraints that law imposes on reason. Rawls theory of reflective equilibrium describes however the practice of practical syllogism guided by the Aristotelian virtue of the prudence (phronesis), which must be integrated by the acceptance of the equal value of human beings as a condition of the possibility of ethical reason. Rawls has therefore the philosophical instruments needed for a reinterpretation of his political philosophy as a true political philosophy as a part of philosophical ethics. Such an ethical reinterpretation does not impede but reinforces the overlapping consensus on human rights.