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.