Critical Theory in Critical Times

A CRITICAL THEORY OF HUMAN RIGHTS—SOME GROUNDWORK

RAINER FORST

The concept of human rights comprises an array of different aspects. They have a moral life, expressing urgent human concerns and claims that must not be violated or ignored, anywhere on the globe; they also have a legal life, being enshrined in national constitutions and in lists of basic rights, as well as in international declarations, covenants, and treaties; and they have a political life, expressing standards of basic political legitimacy.

For a comprehensive philosophical account of human rights, all of these aspects are essential and need to be integrated in the right way. Yet, when doing so, one must not overlook the central social aspect of human rights, namely, that when and where they have been claimed, it has been because the individuals concerned suffered from and protested against forms of domination that they believed disregarded their dignity as human beings. They viewed the acts or institutions that they opposed as violations of the basic respect owed to human beings. Human rights are, first and foremost, weapons in combating certain evils that human beings inflict upon one another; they emphasize a status of nondomination that no human being could justifiably deny to others and that should be secured in a legitimate social order.

My thesis in what follows is that if it is true that human rights are meant to ensure that no human being is treated in a way that could not be justified to him or her as a person equal to others, then this implies—reflexively speaking—that one claim underlies all human rights, namely, human beings’ claim to be respected as autonomous agents who have the right not to be subjected to certain actions or institutional norms that cannot be adequately justified to them. That kind of subjection I call domination.1 The reflexive argument has three dimensions. First, human rights have a common ground in one basic moral right, the right to justification. Second, the legal and political function of human rights is to make this right socially effective, both substantively and procedurally. The substantive aspect consists in formulating rights that express adequate forms of mutual respect the violation of which cannot be properly justified between free and equal persons; and the procedural aspect highlights the essential condition that no one should be subjected to a set of rights and duties—to a political-legal rights regime—the determination of which he or she cannot participate in as an autonomous agent of justification. Thus, human rights do not just protect the autonomy and agency of persons; they also express their autonomy politically. Third, the reflexive argument claims that this way of grounding human rights is not open to the charge of ethnocentrism haunting so many justifications of human rights, for that charge itself demands a right to adequate justifications that do not exclude those subjected. I call that approach to human rights one of critical theory, because it starts from the participant’s perspective in social struggles and reconstructs the basic emancipatory claim of human rights.

In philosophical debates, we encounter a plurality of perspectives on human rights that accord priority to one of the above-mentioned aspects.

(a) A primarily ethical justification of human rights focuses on the importance of the human interests they are meant to protect. There are some, like James Griffin in his recent book On Human Rights, who argue that core values such as autonomy and liberty are essential to what it means to be a “functioning human agent,” and that rights can be derived from the basic interests persons have in realizing these values.2 There are others, such as James Nickel and John Tasioulas, who defend a pluralistic conception of such essential human interests.3 What these ethical justifications of human rights share, however, is their focus on substantive notions of well-being or the “good life” and their view of human rights as the means of guaranteeing essential minimal conditions for such forms of human life. The “human being” here is one who has an interest in leading a good life, and “rights” are the means to make this possible for everyone.

There have been numerous debates over such ethical justifications, over whether their notion of the good life is inextricably context-bound, so that it cannot be universalized, or whether it might be too “thin” rather than too “thick,” and thus lacking in sufficient content. In addition, there are worries about the derivation of normative rights claims from basic human interests. There are many such interests in the first place—think of the interest in being loved—but how do we single out those that qualify for grounding human rights? Furthermore, how does a claim of subjective importance translate into a binding general claim to rights? What is the mediating factor that generates that kind of normativity?4

(b) In recent discussions, a radical alternative to ethical views has been developed that stresses the political-legal aspect or function of human rights, though in a very specific sense. According to such accounts, the main function of human rights is the role that they play in the area of international law, the basis being, as in John Rawls, a philosophical account of “the law of peoples” or, as in Joseph Raz’s or Charles Beitz’s view, international legal and political practice. And that role is, in Rawls’s formulations, “to provide a suitable definition of, and limits on, a government’s internal sovereignty” or “to restrict the justifying reasons for war and its conduct” and to “specify limits to a regime’s internal autonomy.” Furthermore, according to Rawls, a conception of human rights can be justified only as “intrinsic” to a conception of the law of peoples that is acceptable to liberal as well as “decent hierarchical peoples.”5 For Rawls, this is based on a reflection on the “reasonable pluralism” of peoples in the international arena. It suggests that there is not a single normative ground for a conception of human rights but that there are liberal grounds for liberal conceptions of human rights and other grounds for other conceptions, and because the role of human rights is such that their violation places sovereignty in question and justifies an intervention, the result of that construction is a minimal list of human rights as part of an “ecumenical” account of a law of peoples for an international order of peace.

Others have followed and radicalized this approach, which, as I will explain, introduced a major shift of perspective in political philosophy. Favoring a “practical” conception of human rights over an “orthodox” one, which holds that “human rights have an existence in the moral order that is independent of their expression in international doctrine,” Beitz’s view “takes the doctrine and discourse of human rights as we find them in international political practice as basic.”6 Whereas Rawls relies on a philosophical “political” conception of the law of peoples, Beitz takes current doctrine as well as practice to be authoritative. He follows Rawls, however, in defining the function of human rights as “justifying grounds of interference by the international community in the internal affairs of states.”7 Although he takes a broad view of the forms that such interference may take (and of the agents of such interference), Beitz shares Rawls’s idea that the content of human rights is determined by their role as grounds for external interference.8

(c) Alternative approaches search for political-moral justifications that can be the focus of an international “overlapping consensus.” Thus, a contest of modesty, so to speak, has developed about the most “minimal” but nevertheless sufficient normative justification for human rights. Some, like Michael Ignatieff, focus on rights that protect bodily security and personal liberty as the minimal core of human rights,9 and they presuppose only a “minimalist anthropology” that provides reasons for the avoidance of grave evils. Others fear that such a “lowest common denominator” approach10 runs the risk of mixing, in Joshua Cohen’s words, “justificatory minimalism” with “substantive minimalism.”11 Whereas the former form of minimalism is seen as a justified “acknowledgement of pluralism and embrace of toleration” in the international realm, the latter form is to be avoided, for, according to Cohen, “human rights norms are best thought of as norms associated with an idea of membership or inclusion in an organized political society.” And that kind of inclusion requires, first and foremost, having the right “to be treated as a member,” i.e., to “have one’s interests given due consideration” politically.12 Human rights claims, then, are essential for securing social and political membership, whereas the moral agnosticism—or “unfoundational[ism]”13—that Cohen proposes leaves open the normative reasons for the claim to membership. The hope is that such a conception of rights can win support “from a range of ethical and religious outlooks” in “global public reason.”14 From that angle, Cohen argues, no human right to democracy will be seen as justifiable, for an “acceptable political society” needs to respect certain membership rights, though not a right to democracy in a fuller sense.15

How is it possible to navigate among these different ways of highlighting particular aspects of human rights, namely, their normative core as protecting basic human interests, their role in international law and political practice, and their claim to be universally justifiable across cultures and ethical ways of life? No doubt, human rights have a certain substance, function, and justification, but have the three views addressed them in the correct way? I think not.

For, in a nutshell, using the distinction between morality and ethics, I believe that a conception of human rights needs to have an independent and sufficient moral substance and justification, though not one of an ethical kind that relies on a conception of the good life. The moral basis for human rights, as I reconstruct it, is the respect for the human person as an autonomous agent who possesses a right to justification—a right to be recognized as a subject who can demand acceptable reasons for any action that claims to be morally justified and for any social or political structure or law that claims to be binding upon him or her. Human rights secure the equal standing of persons as nondominated equals in the legal, political, and social world, based on a fundamental moral demand of respect. This demand does not depend on the claim that it contributes to the good life of either the person showing or the person receiving respect; rather, mutual respect is owed independently of that.

From this, it follows that the main function of human rights is to guarantee, secure, and express each person’s status as a nondominated equal, given his or her right to justification. The political meaning of human rights locates their legal and political role in that protection and in the grounding of political autonomy.

A moral justification for human rights has to be a universally valid and, as I argue, reflexive one. “Reflexive” here means that the very idea of justification itself is reconstructed with respect to its normative and practical implications. The argument states that, because any moral justification of the rights of human beings must be able to redeem discursively the claim to general and reciprocal validity raised by such rights, such a justification presupposes the right to justification of those whose rights are in question. They have a qualified “veto right” against any justification that fails the criteria of reciprocity and generality and that can be criticized as one-sided, narrow, or paternalistic, as the case may be. “Reciprocity” means that no one may make a normative claim (such as a rights claim) that he or she denies to others (call that “reciprocity of content”), and that no one may simply project one’s own perspective, values, interests, or needs onto others such that one claims to speak in their “true” interests or in the name of some truth beyond mutual justification (“reciprocity of reasons”). “Generality” means that the reasons that are used to ground general normative validity have to be shareable by all affected persons, given their (reciprocally) legitimate interests and claims.

Thus, the reflexive approach manages to build the logic of the arguments against “false” (for example, ethnocentric) universalizations, as well as against false critiques of false universalizability, into its own structure. The very basis for the first critique—which says that ethnocentric definitions of human rights violate the rights of participants to live in a social structure they see as legitimate—as well as the basis for identifying illegitimate forms of such criticism, which might veil authoritarian cultural arguments, is taken up and identified as the right to justification.

I leave out at this point a discussion of the ethical justification of human rights and turn to the functionalist approaches. As it seems to me, it is generally misleading to emphasize the political-legal function of such rights within international law (or political practice) of providing reasons for a politics of legitimate intervention, for this is to put the cart before the horse. We first need to construct a justifiable set of human rights that a legitimate political authority has to respect and guarantee, and then we will ask what kinds of legal structures are required at the international level to oversee this and to help ensure that political authority is exercised in that way. Only after we have taken that step will it become necessary to think about and set up legitimate institutions of possible intervention (as measures of last resort). The first question of human rights is not how to limit sovereignty from the outside; it is about the essential conditions of the possibility of establishing legitimate political authority. International law and a politics of intervention have to follow a particular logic of human rights, not the converse. Such a logic is not a simple one, one must add, for a number of additional factors need to be taken into account when it comes to the issue of legitimate intervention.16

Human rights do not serve primarily to limit internal “autonomy” or “sovereignty” (Rawls uses both terms) but to ground internal legitimacy. The claim to external respect depends on internal respect based on justified acceptance; however, that does not mean, to repeat, that one can infer the legitimacy of intervention—or the lack of “external legitimacy”17 or international “recognitional legitimacy”18—directly from a lack of internal acceptance. Violations of human rights place the internal legitimacy of a social and political structure in question, but they do not automatically dissolve the independent standing of that state in the international arena. To be sure, violations of human rights can provide a strong reason for taking external action, and Beitz is right to point out that this can take several forms,19 but this does not mean that the point of human rights can be defined as that of generating interference-justifying reasons, as Beitz and Raz argue. Rather, human rights provide reasons for arranging a basic social and political structure in the right way; hence, the primary perspective of human rights is from the inside. Otherwise, their moral point of not just protecting but also expressing the autonomy of free and equal persons is not sufficiently taken into account. The main perspective is not that of the outsider who observes a political structure and asks whether there are grounds for intervention. In thinking about human rights and their justification, one must be careful not to assume the role of an international lawyer or judge who presides over certain cases of human rights violations and who, at the same time, wields global executive power.

In particular, because one important worry that drives “political-legal” views of human rights is to avoid a broad list of human rights that could serve to justify a wide range of interventions, reducing the list of core human rights accordingly is not the right conclusion.20 Rather, the right conclusion is to devise legitimate international institutions with justifiable procedures for assessing and deciding cases of necessary external action.

A similar mistake of misplaced perspective is made in “minimalist” normative justifications for human rights. The most obvious one is a “lowest common denominator” approach, which would run the risk of being, to use a phrase Rawls coined in a different context, “political in the wrong way.”21 In looking for a possible universal consensus on human rights, one opts for a minimal justification and, all too often, a minimalist conception of human rights. And even if Rawls, in The Law of Peoples, was not guilty of locating the justification of human rights in a presumably existing or possible universal consensus, he was willing to restrict the list of human rights so that certain important rights, such as equal liberties for persons of different faiths or a right to equal political participation, were not included.22 One reason for this is the assumed connection between human rights and intervention just criticized, and another is the aim to respect nonliberal but “decent” peoples as worthy of being agents of justification when it comes to a common law of peoples (and to avoiding Western ethnocentrism). But the question of whether “decent hierarchical peoples” can or should be expected to conform to a “liberal” conception of human rights that is foreign to their cultural self-understanding, if asked from the perspective of the “ideals and principles of the foreign policy of a reasonably just liberal people,”23 is misguided. For the essential question, from a perspective that puts human rights first, would be whether such peoples—or their governments—had legitimate reasons to deny their members equal liberties or the claim to political participation. This is what it means to say that we need to take “their” point of view properly into account in “our” perspective, assuming that we want to speak in this way.

Joshua Cohen’s argument for the “toleration” of nondemocratic societies in the international sphere, as long as they exhibit a certain level of political self-determination, which allows for the assignment of special weight to “some social groups,” attempts to do justice to the problem of reasonable pluralism in a global society and to avoid overly strict standards for “external reproach,” which may take the form of sanctions and intervention.24 But it shares the problems of Rawls’s view. Cohen rightly stresses that the primary reason to argue against a narrow-minded “liberal” way of judging the legitimacy of a society’s basic structure, and possibly to infer external permission to intervene, is the respect for the collective self-determination of such a society. But to then express that respect by narrowing the human right to political self-determination (as expressed, for example, in the Universal Declaration of Human Rights), such that, if some of the politically marginalized groups in such a society were to claim a human right to equal representation, “we”—and not just those who are in power there—would say that they have no such right, seems to run the danger of contradiction. It is right to “resist the idea that the political society should be held to a standard of justice that is rejected by its own members”25—but only if that rejection is not the result of political pressure and domination. It is thus unwarranted to infer from this that these members do not have a human right to resist unequal and undemocratic forms of organizing political government. As with every other human being or collective, a political community can decide to settle for different forms of political organization, but the point of human rights is to strengthen those who dissent from certain “decisions” for unequal representation that have not been and cannot be reciprocally justified. One cannot limit the right to democracy by appealing to the principle of collective self-determination, for that is a recursive principle, with a built-in dynamic of justification that favors those who criticize exclusions and asymmetries. The right to democracy, as I conclude, is an undeniable right to full membership in a society, but it need not be claimed in a “liberal” sense if “liberal” means conformity to current social orders in the West.26

At this point, I should at least sketch what a comprehensive picture of human rights would look like, given their many dimensions as stressed at the outset, namely, moral (rather than ethical), legal, social, and political dimensions. The normative basis for a conception of human rights is the right of every moral person to be respected as someone who has a moral and political right to justification, such that any action or norm that claims to be morally justified, as well as any social order or institution that claims to be legitimate, has to be justifiable in an adequate way. This means that moral actions or norms have to be justifiable with moral reasons in moral discourse (free from coercion or delusion) and that political or social structures or laws have to be justifiable within appropriate legal and political structures (and practices) of justification. The criteria of justification for moral norms are those of reciprocity and generality in a strict sense, for, recursively speaking, such norms claim to be strictly mutually and universally binding. The criteria for legal norms are those of reciprocity and generality within political structures of justification, thereby presupposing the possibility of free and equal participation and adherence to proper procedures of deliberation and decision making.27

Hence, the notion of “dignity” that lies at the heart of such a conception of human rights is not a metaphysical or an ethical one, combined with a doctrine about the good life. Rather, dignity means that a person is to be respected as someone who is worthy of being given adequate reasons for actions or norms that affect him or her in a relevant way. And this kind of respect requires us to regard others as autonomous sources of normative claims within a justificatory practice. Each person is an equal normative “authority” in the space of reasons, so to speak.28 Dignity is thus a relational term; its concrete implications can be ascertained only by way of discursive justification.

With respect to human rights, we need to distinguish between what I call “moral constructivism” and “political constructivism” (using Rawls’s terminology in a different way).29 Both are forms of discursive constructivism, in contrast to the idea of “deriving” rights from the basic right to justification. Every content of human rights is to be justified discursively, yet one needs to be aware of the twofold nature of human rights as general moral rights and as concrete legal rights. At the moral level, the construction leads to a list of those basic rights that persons who respect one another as equals with rights to justification cannot properly deny each other. It is important to emphasize that the basic right to justification is not only conducive to rights that secure the political standing of persons as citizens in a narrow sense; it is also the basis of rights to bodily security, personal liberties, and secure equal social status. To put it in negative terms, human rights are those rights that cannot be rejected with reciprocally and generally valid reasons, and this requirement opens up the normative space for claims that secure a person’s status as a nondominated agent with equal social standing. This implies rights against the violation of physical or psychological integrity as well as rights against social discrimination and exploitation. The right to justification is not just a right to political justification; rather, it is a right to be respected as an independent social agent who, at the same time, codetermines the social structure of which he or she is a part.

Using the right to justification as an anchor does not involve any narrowing of focus of human rights, as one may fear, for there are two ways to substantiate human rights on that basis: first, by spelling out the requirements—and powers, so to speak—attached to the status of a socially and politically recognized agent of justification; and second, via a consideration of the aspects of human life to be protected or enabled by basic rights that no person can morally deny to equal others with good reasons. At this point, claims about the importance of certain goods and about basic social interests reappear, though not as ethical values or interests from which certain rights claims can be derived but as discursively justifiable claims to reciprocal respect among persons who recognize one another as autonomous and, at the same time, vulnerable and needy social beings. Human rights materialize and protect that status, and it is by way of procedures of reciprocal and general justification that claims based on human interests can be transformed into rights claims.

Hence, the political point of the right to justification is especially important, for there is a particular institutional implication of this moral argument for human rights. They are moral rights of a specific kind, which are directed to a political-legal authority and have to be secured in a legally binding form; hence, they are an important part of what I call “fundamental justice.” A fundamentally just basic political and legal structure is a “basic structure of justification” in which the members have the means to deliberate and decide in common about the social institutions that apply to them and about the interpretation and concrete realization of their rights. Human rights, in that sense, have a reflexive nature; they are basic rights to be part of the processes in which the basic rights of citizens are given concrete and legally binding shape. They are rights of a higher order, namely, rights not to be subjected to social institutions or legal norms that cannot be properly justified to those affected, and rights to be equal participants in such procedures of justification. Political constructivism thus has moral constructivism as its core, for there can be no legitimate interpretation and institutionalization of basic human rights that violates their moral core, as explained above, but it is also an autonomous discursive practice of citizens who are engaged in establishing a legitimate social and political order. There are certain core rights presupposed by that political construction—hence the idea of fundamental justice in a “basic structure of justification.” But an essential point of the construction is to establish a contextualized structure of rights and institutions worthy of acceptance by a political community. The ultimate aim, ideally speaking, is maximal justice, that is, a “fully justified basic structure.”

It must be added that human rights are more wedded to fundamental than to maximal justice; the task of establishing a justified—and just—basic structure is more comprehensive and complex than that of establishing an acceptable and legitimate structure of basic human rights. Human rights are an essential part of the full picture of social and political justice, but they are only a part. As the realm of moral rights is larger than that of moral human rights, so too is the realm of political and social justice larger than that of legally established human rights. It is important to stress in this connection that political constructivism is not simply a “realization” of fixed moral human rights; rather, it is a discursive exercise within proper procedures of justification.

Human rights, to sum up, are those basic rights without which the status of a being with a right to justification is not socially secured. They entail the essential personal, political, and social legal rights necessary to establish what I call a social structure of justification, and, second, they entail those substantive rights that no one within such a structure of justification can reasonably deny to others without violating the demands of reciprocity and generality. Recursively speaking, and that is my central idea, the point of human rights is that persons have the basic right to live in a society where they themselves are the social and political agents who determine which rights they can claim and have to recognize as nondominated equals. This is the autonomous agency highlighted by human rights, today as well as in earlier times.30 To put the double, reflexive character of human rights in a nutshell: they are rights that protect against an array of social harms the infliction of which no one can justify to others who are moral and social equals, thus presupposing the basic right to justification. But, above that, such rights protect against the harm of not being part of the political determination of what counts as such harms.

NOTES

This paper is partly based on Rainer Forst, “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach,” Ethics 120, no. 4 (2010): 711–40. I develop my views further in Forst, “The Point and Ground of Human Rights: A Kantian Constructivist View,” in Global Political Theory, ed. David Held and Pietro Maffettone (Cambridge: Polity, forthcoming).

1. I explain the difference between my view and that of Philip Pettit in Rainer Forst, “Transnational Justice and Non-Domination: A Discourse-Theoretical Approach,” in Domination and Global Political Justice: Conceptual, Historical, and Institutional Perspectives, ed. Barbara Buckinx, Jonathan Trejo-Mathys, and Timothy Waligore (New York: Routledge, 2015), 88–110.

2. James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), 35.

3. James Nickel, Making Sense of Human Rights, 2nd ed. (Oxford: Blackwell, 2006). See also John Tasioulas, “The Moral Reality of Human Rights,” in Freedom from Poverty as a Human Right, ed. Thomas Pogge (Oxford: Oxford University Press, 2007), 75–101; Tasioulas, “Taking Rights Out of Human Rights,” Ethics 120, no. 4 (2010); and William Talbott, Human Rights and Human Well-Being (Oxford: Oxford University Press, 2010).

4. I develop this further in Rainer Forst, “The Justification of Basic Rights: A Discourse-Theoretical Approach,” Netherlands Journal of Legal Philosophy, forthcoming.

5. John Rawls, The Law of Peoples (Cambridge, MA.: Harvard University Press, 1999), 27, 62, 79.

6. Charles Beitz, “Human Rights and the Law of Peoples,” in The Ethics of Assistance. Morality and the Distant Needy, ed. Deen K. Chatterjee (Cambridge: Cambridge University Press, 2004), 196–7. See also Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), 7–12 and 102–6, where the idea of a “practical conception” is laid out in detail.

7. Beitz, “Human Rights and the Law of Peoples,” 202ff. See also Beitz, Idea of Human Rights, 41ff., 65, and 143.

8. See Beitz, Idea of Human Rights, 33–40.

9. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001).

10. R. J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), 48ff.

11. Joshua Cohen, “Minimalism About Human Rights: The Most We Can Hope For?,” The Journal of Political Philosophy 12, no. 2 (2004), 190–213, 192.

12. Joshua Cohen, “Minimalism,” 197; emphasis in original.

13. Joshua Cohen, “Minimalism,” 199

14. Joshua Cohen, “Minimalism,” 210.

15. Joshua Cohen, “Is There a Human Right to Democracy?,” in The Egalitarian Conscience: Essays in Honour of G. A. Cohen, ed. Christine Sypnowich (Oxford: Oxford University Press, 2006), 226–48.

16. For a comprehensive treatment of these issues, see Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004). A more skeptical view is expressed in Jean Cohen, “Whose Sovereignty? Empire Versus International Law,” Ethics & International Affairs 18, no. 3 (2004), 1–24.

17. Jean Cohen, “Rethinking Human Rights, Democracy and Sovereignty in the Age of Globalization,” Political Theory 36, no. 4 (2008): 578–606, 591, following Michael Walzer, “The Moral Standing of States: A Response to Four Critics,” Philosophy & Public Affairs 9, no. 3 (1980), 209–29, 214.

18. Buchanan, Justice, Legitimacy, and Self-Determination, chapter 6.

19. Beitz, “Human Rights and the Law of Peoples,” 203. See also Beitz, The Idea of Human Rights, 33–40.

20. Even though Beitz criticizes minimalist views of human rights (see Beitz, The Idea of Human Rights, 106, 142), his own critique of the human right to democratic institutions (185) attests to the reductivist tendency in “practical” approaches.

21. John Rawls, “The Domain of the Political and Overlapping Consensus,” in Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 491.

22. Rawls, Law of Peoples, 65, 71.

23. Rawls, Law of Peoples, 10; italics in original.

24. Joshua Cohen, “Is There a Human Right to Democracy?,” 233–34.

25. Joshua Cohen, “Minimalism,” 211.

26. On this point, see also Seyla Benhabib’s argument based on the idea of a “right to have rights.” Benhabib, “Is There a Human Right to Democracy? Beyond Interventionism and Indifference,” in Dignity in Adversity: Human Rights in Troubled Times (Cambridge: Polity, 2011), 77–93.

27. On the notion of democracy implied here, see Rainer Forst, “The Rule of Reasons: Three Models of Deliberative Democracy,” Ratio Juris 14, no. 4 (2001), 345–78.

28. This also holds true for persons who cannot use their right to justification in an active sense, such as (to some extent) children or mentally disabled persons; the passive status of having that right does not depend on its active exercise.

29. In making this distinction between moral and political constructivism, I differ from Benhabib, Dignity in Adversity, chapters 4 and 5.

30. In an important sense, I share Habermas’s idea of the “equiprimordiality” of personal and political autonomy as well as of human rights and popular sovereignty, as explained in Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996), especially chapter 3. In another sense, however, I diverge from it, for my notion of equiprimordiality sees the right to justification as one source for both, whereas Habermas sees different sources at work. In addition, none of these has the moral status of the right to justification for which I argue. For a discussion of this, see Rainer Forst, “The Justification of Justice: Rawls’s Political Liberalism and Habermas’s Discourse Theory in Dialogue,” in The Right to Justification: Elements of a Constructivist Theory of Justice, trans. Jeffrey Flynn (New York: Columbia University Press, 2012).