International Human Rights and the Intuition of Justice: Bergson v. Kant

International human rights, when they are subjected to philosophical scrutiny, are most often framed in Kantian categories of freedom, rationality and individual autonomy. Jurgen Habermas is my Kantian exemplar. In Remarks on Legitimation through Human Rights, Habermas characterizes human rights as a means of creating a realm of private individual liberty. Along with democracy, human rights serve a legitimizing function in modern polities. Democracy anchors political power in individual freedom; human rights limits political power vis-a-vis individual freedom. Furthermore, democracy presupposes rights of speech and participation in its operation. The basic ideas are all Kantian. Liberty is understood in individual terms, being the absence of constraints or moral pressure on the individual, who is permitted to pursue his or her preferred life plan without external impediment. Such individual autonomy is regarded in positive terms. Morality is understood in terms of duties owed by individuals to the social group. Rationality, which informs both liberty and moral duty, is universally present, and operates by universalizing rules. Once one accepts these basic ideas, and enters into the Kantian universe, Habermas' argument becomes highly compelling; one finds oneself in a clean, orderly place without shadows. Human rights appear as a direct manifestation of the Kantian vision of rational, autonomous individualized humanity.The basic Kantian ideas of individual autonomy, moral duty and universal rationality, however, are not the only way one may parse human rights. In fact, recent historical research on the drafting of the Universal Declaration of Human Rights has shown that Kantian categories were far from dominant at the beginning of the post-war human rights movement. The thought of the drafters of the Universal Declaration was philosophically multiform, but the key players in the emergence of human rights at the UN frequently used the language of Henri Bergson to articulate the meaning of human rights. Bergson's influence on the drafting process can be traced to John Humphrey, the Canadian law professor who served as the Director of the Human Rights Division in the U.N. Secretariat throughout the drafting process, and who in fact produced the original draft of what became the Universal Declaration of Human Rights. Although the Bergsonian influence on contemporary human rights has been almost entirely neglected, I contend that Bergson provides a refreshing alternative to Kant with regard to human rights theory today. International human rights are most helpfully understood as the legal transliteration of a Bergsonian intuition of justice. In the end, Bergson provides us not with a radical alternative to Kant, but rather a way to make Kantian categories more supple and responsive to the contours of people’s lived experiences of human rights denied and human rights restored. More specifically, Bergson provides a language for human rights which is profoundly open, in the sense that it encourages a multiplicity of images to simultaneously affirm and render provisional the concepts expressed in human rights instruments. Speaking historically, it was these very features that made Bergson so attractive to the drafters of the Universal Declaration. I conclude that Bergson's philosophy provides a rich theoretical framework in which to think and speak about human rights in contexts of deep pluralism.

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