Whither and Whether with the Formative Aim Thesis

By Sreenivasan, Gopal | Vanderbilt Journal of Transnational Law, November 2019 | Go to article overview

Whither and Whether with the Formative Aim Thesis


Sreenivasan, Gopal, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS     I. INTRODUCTION                                            1332   II. THE FAT                                                 1332  III. AVOIDING LABELING ERRORS AND OTHER GROUNDWORK           1336   IV. TASIOULAS'S RECIPE FOR CARVING DOMAINS                  1340    V. Two DEVIATIONS FROM THE FAT                             1343   VI. THE MORAL DEPENDENCE THESIS                             1348  VII. WHETHER? OR, BENTHAM FLAUNTED AND A SWEATER UNRAVELED   1350 VIII. CONCLUSION                                              1356 

I. INTRODUCTION

In recent work, including in this Journal, John Tasioulas has advanced and defended the "formative aim thesis" about international human rights law. (1) According to this thesis (FAT, as he styles it),

(FAT) international human rights law is primarily concerned with giving  effect to universal moral rights, insofar as it is appropriate for  international law to do so, through the technique of assigning a  uniform set of individual legal rights to all human beings. (2) 

The objectives of this Article are twofold. First, to examine Tasioulas's defence of the FAT, asking in particular what point is served, in his view, by embracing it. It will be argued, among other things, that the point of the FAT can only be achieved if one accepts a further thesis, to be called the "moral dependence" thesis. Second, it will be argued that the moral dependence thesis is false. On that basis, this Article concludes that insofar as the FAT is committed to something false, it should be rejected. (3) To put the conclusion more constructively, international legal human rights have (much) greater moral independence from moral human rights than either Tasioulas or the FAT allow. As a result, moral evaluation of international legal human rights can pay less attention to moral human rights than Tasioulas and the FAT require. Indeed, in principle, it can proceed without paying any attention to moral human rights.

II. THE FAT

The FAT features in two of Tasioulas's works. These works constitute a coordinated ensemble--something like a two-step, a jab and upper cut, or a parry and riposte, depending on whether one's preference runs to dancing, to boxing, or to fencing. Roughly speaking, in the earlier chapter, Tasioulas articulates the FAT and details the case for accepting it, whereas in the later Article, he wields the FAT to criticise international human rights law. Now this is not to say that Tasioulas's critique is a rejection of human rights law. Rather, it is a partisan internal critique, one that attempts to save human rights law from itself, as it were. Witness his second title.

To begin at the beginning, consider the context in which the FAT is introduced. Tasioulas introduces his thesis in the course of some decidedly sharp criticism of Allen Buchanan's book, The Heart of Human Rights. (4) Thus, it stands to reason that the FAT is meant to constitute an alternative to Buchanan's approach, an alternative to the position Buchanan rejects as well as to the one he endorses. For present purposes, the former contrast is the more important one to grasp. (5) Buchanan calls the position he rejects the "Mirroring View" (MV). (6) So the first thing to understand is the difference between the FAT and the MV.

Tasioulas discusses various formulations of the MV, but his summary formulation runs as follows:

what is primarily at issue in the Mirroring View is a conjunction of  two claims: (1) for any given right in [international human rights law]  there is typically a counterpart right in human rights morality with  the same or substantively equivalent content, and (2) that the latter  right is typically either necessary or sufficient to justify the  enactment of the former. (7) 

Following Buchanan, let the expression "corresponding moral human right" designate a moral human right that has the same or substantively equivalent content to a given international legal human right (and is therefore the counterpart to that legal right, in the sense employed in [l]). …

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