Joint Commitment-Based Legal Human Rights: With and Against Gilbert
In the latter half of her monograph, Rights and Demands (2018), Margaret Gilbert argues that in light of her foregoing rejection of many common rights theories in favour of her joint commitment view, the demandingness of her account suggests that “there is less reason to think that the individual human inhabitants of the world are in a position to address authoritative demands to states that oppress them.” Despite the existence of contemporary human rights frameworks which attempt to provide a transnational ground for such demands, Gilbert concludes that the existence of such frameworks is not sufficient to grant citizens standing to demand states’ compliance, as the legal systems by which such agreements are made do not draw their authority from a joint commitment of the state’s members to the legal system itself. I reject this thesis, and in this paper use Gilbert’s earlier work on both population common knowledge and political obligation to show why a joint commitment account of demand rights in fact helps make sense of individual citizens’ demand-rights against a state.
In reply to Gilbert’s worry about the state of human rights in Rights and Demands, I return to Gilbert’s account of members’ obligation to a political society to argue that where members of political societies make a Gilbertian commitment to uphold that society’s legal system, the operative members of the political institutions in that society (including those institutions tasked with upholding citizens’ human rights) become specific duty-bearers to this end. Where such a society exists, members of the political society in question hold demand-rights against the specific duties state actors carry. I then use Gilbert’ account to show that citizens’ will have demand rights against the violation of their legal human rights by their state on the basis of (1) citizens’ joint commitment to upholding a Hartian rule of recognition in their legal system, and (2) through the legislation of human rights frameworks. Given (1) and (2), members of such a state will have the standing to demand intervention by state actors given such actors’ designated duties.
To make this argument requires treatment of Gilbert’s view of joint commitment in large populations, with special attention to her notion of the development of population common knowledge. The key problem for establishing the existence of a joint commitment across a geographically disparate and largely anonymous society under Gilbert’s framework, I argue, is establishing sufficient common knowledge among members of the population of (1) a shared conception of the population itself, and (2) the readiness of their fellow citizens to join together in accepting a commitment of this kind. On Gilbert’s model, the creation of population common knowledge is minimally demanding in a political society which socializes its members commitment to public values in legislation, public speeches, judicial decisions, and the like, given such expressions of public value contribute to the creation of value-based social conventions supportive of members mutual comprehension of commitment to an abstract notion like a rule of recognition.
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