Academic

The modern international human rights regime needs an ideological transplant. Such is the diagnosis of Professor Eric Posner in his recent essay, Human Welfare, Not Human Rights. Posner considers several striking symptoms that characterize a moribund system of international cooperation. He discussed the paper and the symptoms with the Law and Philosophy Workshop.

Though the paper details several important points, two lines of argument were of particular interest to Workshop participants. First, Posner reports that there is no consensus among scholars as to the philosophical justification for protecting human rights, much less for any enumerated list thereof. Worse, those scholars that do engage in debate on this front largely ignore the structure of the existing international human rights regime. Second, in many cases the international regime mandates expenditure of resources to secure the protection of a particular right irrespective of competing demands for those scarce resources. At the same time, where such tradeoffs are permitted, the regime fails to indicate how to evaluate the merits of competing legitimate demands.

The prescription? Posner suggests that where there is only largely superficial agreement about human rights, nobody denies that states have a responsibility to increase the welfare of their populations. An international treaty regime that focused on requiring states to maximize the welfare of their populations would achieve a broad philosophical and international consensus, where human rights cannot. Furthermore, a regime focused on welfare would provide better guidance for pursuing and evaluating compliance by providing a single metric for maximization.

A recurring theme from Workshop participants was a skepticism that the general goal of welfare could actually command a more robust international consensus than human rights. Is there a compelling reason to imagine that a welfarist regime could work out the details of implementation without sacrificing consensus in a way directly analogous to the devolution of the consensus enjoyed by the abstract concept of human rights? As a data point against such a conclusion, one participant noted that the International Covenant on Economic, Social, and Cultural Rights (ICESCR) gives voice to welfarist concerns, yet the United States has not joined an international consensus on its goals, and its requirements are rarely the source of concerted international action.

As a first point, Posner suggested that the ICESCR was poorly designed as a way to promote a welfarist ideal. In adopting the rights framework, the ICESCR largely fails to provide a basis to evaluate different allocations of state resources to achieve a welfarist goal. Posner agreed, however, that it is easier to get broad agreement on an abstract concept than on any specifically worked-out elaboration of the concept. But the merits of the welfarist approach are not exhausted in framing it as an abstract principle. Unlike a system of largely incommensurable human rights, a welfarist approach provides a unified scale, where tradeoffs can be assessed against a single principle. Where a state might not know whether to dedicate resources to investigating reports of torture among local police or intimidation of local political candidates by rival officials under an international regime that identifies both as violations of human rights, a welfarist regime would direct the state to pursue the policy that would provide the greatest increase in welfare.

Further concern arose at this point, however. Though Posner discussed a number of metrics that might be used to measure welfare in a way that would actually provide this type of guidance, a number of questions focused on the extent to which any of these measures allowed us to evaluate welfare with an acceptable degree of moral accuracy. In the paper, Posner suggests a number of metrics such as gross domestic product (GDP), happiness surveys, or a list of objective social goods. While GDP is a widely reported and relatively easily verified set of data, the objective list candidates tend to comport more closely to widely held moral intuitions. GDP might be readily available and might often show a correlation with more refined measures of human welfare, but many in the Workshop felt that it was not a particularly well-tuned metric to assess the moral considerations underlying a commitment to a welfarist goal. While most agreed that an objective list of social goods could give a more rigorous connection to a philosophical justification, an interesting point of disagreement was whether an objective list of social goods could be credibly merged into a single metric. Posner thought this could be a tempting solution, but others in the Workshop remained concerned that the list of objective social goods, as a list, retains its intuitive moral accuracy specifically because the independent goods are not readily valued against one another, much like rights.

This discussion helpfully oriented the paper. Posner emphasized that his argument was not to suggest that welfare or any specifically calibrated system of measurement would be a morally superior system. His argument is explicitly pragmatic and institutional. That is, the hope is for a framework with a better chance to be effective in delivering the kinds of goods we care about to the people we most want to receive them.