James W. Nickel. Making Sense of Human Rights. Second edition, revised. Malden: Blackwell, 2007. 267 pp. $79.95 (cloth), ISBN 978-1-4051-4534-3; $29.95 (paper), ISBN 978-1-4051-4535-0.
Reviewed by Daniel J. Whelan (Assistant Professor of Politics and International Relations, Hendrix College)
Published on H-Human-Rights (December, 2008)
Commissioned by Rebecca K. Root (Ramapo College of New Jersey)
The Indispensable Middle Game
In this substantially revised and expanded edition of the 1987 book of the same title, James Nickel provides a compelling and thorough justification for most of the core human rights that have gained international recognition over the past half-century. His focus is not on the abstract nature or philosophical/historical origins of human rights, nor on the political and legal challenges of translating human rights into policies and remedies.
Rather, Nickel carefully examines what he calls the "middle game" of human rights: how can we think of abstract, universal rights with reference to the world as we find it-in all its diversity. He fully acknowledges and is willing to take the risk, as he puts it, that his approach will be insufficiently theoretical for philosophers and insufficiently practical for political scientists. In staking out this space, Nickel's approach is indispensable and necessary within the contemporary literature on human rights.
I say "indispensable" because this edition of Making Sense of Human Rights will only be unsatisfying to the theoretical and political purists. For the rest of us, it is a welcome approach. I was only slightly disappointed to see nearly all discussions of real-world standard setting and historical perspectives on the political development of the concepts and practices of human rights notably absent from Nickel's account. I felt that the first edition of the book was more theoretically satisfying, taking as its focus the text of the Universal Declaration as exemplary of a political instantiation of a moral vision of universal rights, yet politically protected, given the Universal Declaration of Human Rights' legal status as a declaration (claims that it has become customary international law notwithstanding). Nevertheless, this revised edition of Making Sense provides a satisfying account and justification for most of what we call "human rights" without particular reference to jurisprudential standard-setting or contemporary state practice. He does this by providing criteria and a number of tests for evaluating and justifying particular human rights.
The first half of the book lays out this foundation for identifying defensible human rights--a framework he engages in the second half of the book to examine particular classes of rights in particular contexts: due process rights in the context of "terrorist emergencies," economic liberties as rights, social rights, and minority rights. He also addresses relativist critics and offers a (perhaps overly) succinct conclusion.
Many human rights proponents have a proclivity to consider any "good" as ultimately amenable to being secured through rights-claims. I find many of these approaches to be unsatisfying, because so many of them seem to be convoluted justifications for everything that might possibly be claimed as a "right." Nickel's balanced and sober approach to understanding the nature and limitations of human rights is indeed refreshing. While Nickel is skeptical of some human rights as promising or expecting too much, he also believes that other accounts--those of John Rawls and Henry Shue in particular--are too minimalistic.
Nickel sees human rights as minimal standards--not the whole story. Human rights "aim at avoiding the terrible rather than achieving the best" (P. 36). In seeking to identify defensible human rights, Nickel walks the fine line between human rights maximalism and minimalism very carefully and deftly. Human rights (for example, social rights) are not merely "goals" or even simple entitlements, but "entitlements-plus." Defensible human rights not only identify a good, goal, or benefit (entitlement), but create duty-bearers and identify preferred or appropriate measures for redress or implementation (plus). Making sense of human rights, thus, requires a serious discussion about political and social institutions and their normative dimensions in light of the existence of human rights.
While Nickel only sometimes refers to specific enumerated rights found in the panoply of human rights declarations and treaties, he defends four secure but abstract claims from which more specific rights can be derived. First, all people have rights to have a life, and second the right to lead one's life.
Next, all people have rights against severely cruel or degrading treatment, and, finally, rights against severely unfair treatment (P. 62). To qualify as a human right, the object of a right must be subject to substantial and recurrent threats-indeed, the raison d'etre of rights-based approaches to justice. Here Nickel effectively borrows from the formulations of Henry Shue, Alan Dershowitz, and Jack Donnelly. Furthermore, the object of the right must be important for the realization of the four "secure claims" mentioned above. Finally, the right must be subject to universalization.
Another part of Nickel's formulation of what constitutes a defensible human right is whether the object of the right--a good or benefit--might be equally or more effectively secured through non-rights-based norms and practices. These include self-help, social aid, or structural changes (for example) in the global economy. Finally, and perhaps most importantly, Nickel considers whether the burdens necessary for the realization of a human right are justifiable (for example, taxation for securing welfare rights) and whether institutional developments to foster human rights are feasible in a majority of countries (emphasis mine; this is important also for the test of universalization).
It is the inclusion of these last three tests that I believe is novel to Nickel's approach--the necessity of fairly robust political, social, and economic institutions for the protection, promotion, and realization of human rights. Again, he might have relied on the scores of legal materials that amply describe and enumerate state obligations of conduct and result that are evident in the semi-jurisprudential standard-setting work of the various human rights treaty monitoring bodies. Had Nickel relied on those foundations alone, he would have been left only with international law as a source of the obligations, rather than the far more prudential and practical justifications
that Nickel highlights as just as important. Some might see this oversight as a weakness in his approach, as I did initially. After all, why come up with an alternative formulation when there are already many others out there that are well-argued and formulated? Nevertheless, I ultimately found Nickel's approach to be quite useful as an excellent foundation for the justification of human rights.
Nickel's overall account will sound familiar to readers of the first edition of the book. The second edition expands significantly on the approach, most notably in the areas of economic and social rights and minority rights. It also brings the argument up-to-date with reference to some of the more contentious challenges to the idea of human rights. Nickel has added, for example, a sober chapter entitled "Eight Responses to the Relativist." In keeping with his commitment to balance, his goal in that chapter is not to completely refute relativist critiques of universal rights, but "to get them to moderate their views and endorse at least some human rights" (p. 168).
Ultimately, Making Sense of Human Rights allows us to do just that-in a coherent, balanced, and sober manner. Nickel takes human rights seriously without taking them too seriously. He equally defends sound reasons for rejecting certain rights as too ambitious, along with justifying core rights as human rights. While fitting into a grander scheme, many of the chapters can stand perfectly well on their own. This edition of Making Sense of Human Rights is appropriate for human rights scholars, practitioners, and graduate and advanced undergraduate students. Like the first, this revised second edition is an essential resource for the human rights bookshelf.
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Citation:
Daniel J. Whelan. Review of Nickel, James W., Making Sense of Human Rights.
H-Human-Rights, H-Net Reviews.
December, 2008.
URL: http://www.h-net.org/reviews/showrev.php?id=23558
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