Why there Cannot be a Truly Kantian Theory of Human Rights

Many human rights advocates seek inspiration in Kant, which explains why references to Kant are legion in the literature on human rights. Indeed, it is commonly argued that the most promising foundations on which to construct a secular account of human rights are to be found in Kant. I shall pose a challenge to this idea, arguing that there can be no truly Kantian theory of human rights. Any careful reading of Kant will reveal him to be not just indifferent to human rights claims but actively skeptical of them. A few preliminaries. First, by ‘truly Kantian’, I do not mean that there can be no philosophical theory of human rights that has Kantian elements, or that grows out of some part of Kant’s opus. What I mean is that there can be no defense of a Kantian theory of human rights that remains faithful to three constituent planks of Kant’s practical philosophy, namely, (1) Kant’s division between the domain of morality and the domain of right, (2) Kant’s arguments for our moral obligation to exit the state of nature, and (3) Kant’s arguments for unitary sovereignty. This leaves open, of course, for a less ‘truly’ Kantian theory of human rights that drops one or more of his arguments for each of these central tenets. But such a theory will not be faithful to Kant, for whom the three tenets stand at the very core of his practical philosophy. In this volume, Katrin Flikschuh writes: ‘it can be genuinely upsetting—philosophically, not psychologically—to see great works in the history of philosophy ransacked for this or that titbit to be used in order to patch up a justificatory gap in some contemporary theory that bears little resemblance to the position from which the item is lifted’.1 This strikes me as a useful reminder that, if we are to draw insights from the history of political thought, we had better try to get that history right, rather than to project our own concerns into it. This is why the question which gives this chapter its purpose is, I believe, an important one to answer. Second, I also need to say something about what I intend by ‘human rights’ to avoid misunderstanding. Whatever else they are, human rights are critical moral standards that (a) are ‘above politics’, (b) track violations of great moral urgency, and (c) (pro tanto) license some form of direct external action or pressure to stop violations from happening or continuing. What I mean by ‘above politics’ is that they are moral standards that any state, regime, or organization must respect whatever they do, whatever their internal organization, and whatever function they happen to have in political and