Hayman on Kao, 'Grounding Human Rights in a Pluralist World'

Grace Y. Kao
Paul Hayman

Grace Y. Kao. Grounding Human Rights in a Pluralist World. Washington DC: Georgetown University Press, 2010. 239 pp. $29.95 (paper), ISBN 978-1-58901-733-7.

Reviewed by Paul Hayman (Open University, UK) Published on H-Human-Rights (November, 2011) Commissioned by Rebecca K. Root

Navigating between Maximalism and Minimalism: An Alternative Path for Human Rights

Human rights is becoming a dominant discourse in world politics. It shapes domestic and foreign policy, and it is taking intellectual shape as academics from several disciplines add insights and methods to aid our understanding of what these rights are and what role they play. Underlying all of this is an unresolved issue--justification. This issue consists of two related parts. Firstly, what grounds human rights? Is it something metaphysical, spiritual, or perhaps consensual? Secondly, why does this fundamental debate not grind the discourse to an under-theorized halt? Grace Y. Kao's Grounding Human Rights in a Pluralist World faces this problem head-on, in a rigorous attempt to clear some cluttered ground, put some fallacies to rest, and offer clarity in a field often compromised by fuzzy thinking.

And this book most certainly is clear. Kao's prose, it is worth noting up front, is exceptionally readable. The text deals with potentially very complex positions, yet manages to be eloquent and to the point, so that students and experts alike should find much here to satisfy curiosity and, perhaps, stoke controversy. Kao addresses one of the fundamental questions that still hangs over the thinking and practice of human rights--how to reconcile a particular formulation of what rights are with a plurality of cultural difference. How, in other words, do we make sense of universalism and relativism with regard to the promotion of equal moral worth?

The challenge is to navigate between maximalist and minimalist approaches, both of which treat human rights as important. Maximalists offer a reason for believing in the transcendent universality of rights, whereas minimalists offer a hardcore of basic rights with which we might get on with the job of protecting the immediately vulnerable. Kao is convinced by neither of these positions in their polarized forms, but is interested in sketching a way to link the general ideas they represent, if not their present content. The key issues are that human rights need to have universal legitimacy, and we need a set of minimal provisions within this for practitioners to act, free from the shackles of interminable theorizing.

Maximalist approaches embed the human rights discourse within either a religious or philosophical framework. Kao addresses the former relatively briefly in the opening sections of the book. At its heart, a theological justification rests on the belief that only a religious vision that describes human worth can be said to justify human rights. Variations on exactly how this works--either by having rights conferred on humanity by God, or by finding inherent worth in human beings by virtue of God's equal and universal love for mankind--provide ways of making sense of rights.

Kao discusses key figures in the theological study of rights, namely, Michael Perry, Max Stackhouse, Hans Kung, and Nicholas Wolterstorff, and comes to a fairly swift conclusion that a rigid reliance on religion is an unsound and unreliable basis for a human rights regime. Notwithstanding our inability to prove or disprove matters of faith, there remain deep and affecting questions regarding the plurality of religious views across the globe; the considerable suffering that has been historically wrought in the name of God; and specific provisions of the International Bill of Rights dealing with religious freedoms (to include freedom from religion). Kao leaves the reader in no doubt that she is not swayed by theological arguments for human rights, instead urging that "human rights proponents would be wise to marshal their energies into overcoming it" (p. 54).

The assessment of philosophical claims to offer a firm grounding for human rights begins with John Rawls. Critical of Rawls's thinking, which presupposes a certain political infrastructure, Kao notes the more common problems that critics generally have regarding his conception of peoples and how this perpetuates a Westphalian myth of bordered segregation. She goes further, though, and questions whether Rawls actually has an adequate conception of justification. Liberalism casts a shadow from West to East (and also, one might presume, from North to Global South) which takes the form of ethnocentrism. Rawls's universalism, in other words, has a geographical (and historical and cultural) source, which might claim justification, but fundamentally lacks a sustainable universality.

The two other analytical chapters in the book are occupied with the minimal position--obtaining agreement on actual rights. Here, Kao critiques the consensus and capabilities approaches. Generally, her tone is more buoyant when the task is one of populating lists from the ground up. A preference for a broader type of consensus is expressed, as opposed to the narrow approach that looks at what provisions are already in place within specific polities. Broad-based consensus on what human rights we can meaningfully be said to hold is reached when the norm or standard is "minimally consistent with each culture's preexisting values or commitments" (p. 82). This is an area where it might be argued that Kao does not delve deeply enough into precisely what this would entail. However, it opens up a potentially significant and rewarding avenue for further research.

The capabilities-based approach, and Kao's treatment of it, shifts the argument somewhat. Occupying the same intellectual space as human rights, the capabilities approach expands this space by examining how individuals can "live" their human rights by giving them purchase on the real world. Kao lists Martha Nussbaum's own concept of what capabilities we should have, which include "bodily health," "emotions," and "play" (pp. 105-106). Those viewing the capabilities approach as an addendum to the human rights regime miss the point. Yes, the angle of approach is different, but as Kao points out, a focus on the opportunities that we are entitled to and not the processes leaves open the possibility of a refreshed and revitalized approach to the latter, and how it might be designed to better aid the former.

Nussbaum, among others including Amartya Sen, is the main focus of Kao's critique, and is subjected to charges that her approach demands a metaphysical conceptualization of human dignity (as justification for the capabilities we ought to have) which is not clarified. Where, and on what grounds, is a recourse to "human dignity" found, in order to hold it up as justification for investing ourselves with rights, or in this case, capabilities?

The point we have reached in Kao's account is the reversal of the theological assumptions. And so we have the maximalist-minimalist divide. On the one hand, we have a justification-heavy approach (which still holds little water) unable to speak meaningfully across distances and cultures. On the other, we have ideas as to what form universal agreements could take, but without a solid and durable reason for their existence.

Kao's proposed solution blends the two positions by occupying ground related to, but not entwined, with either. The source of good that maximalists need to refer to is found in an ethically realist understanding of "the objectivity of value and to the idea that the good refers to real properties of things," which is to say, the actual good brought about by relieving suffering (p. 154). The minimalist requirement for achievable goals is satisfied by a non-prescriptive acknowledgement that cultures locate and recognize good in a variety of sources. These sources may be positive, constructive, or even religious, but in Kao's thinking, they share common ground in being potentially receptive to a consensus of standards. The crux of Kao's reasoning is that the metaphysics of all this cannot, and should not, be refuted, inasmuch as any justificatory premise should not be refuted. Rather, she would like to see more theorists and intellectuals rise to this challenge and engage with a broader spectrum of human rights justification and facilitation.

The philosophical points Kao makes are central to the contemporary human rights discourse. As such, they do not lend themselves to glibness or brevity. Kao, though, manages to package them in a thoroughly accessible and logical appraisal. Whether Kao can convince those who sit at either pole to consider relocating is debatable. What is certain is that she has presented a clear statement of the spectrum, combined with a logically worked out position of her own, that must be priority reading for any student or scholar of human rights.

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=33491

Citation: Paul Hayman. Review of Kao, Grace Y., Grounding Human Rights in a Pluralist World. H-Human-Rights, H-Net Reviews. November, 2011. URL: http://www.h-net.org/reviews/showrev.php?id=33491

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.