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An Instrumental Argument for a Human Right to Democracy
Thomas Christiano
Despite its increasing importance in contemporary political philosophy and its central
role in the international law of human rights there has been significant resistance among
political theorists and philosophers to the idea that there is a human right to democracy.
In John Rawls’s late political philosophy of international justice and in the views of many
who are sympathetic to these positions, the idea that there is a human right to democracy
is vigorously rejected.i Other major recent treatments of human rights have either
rejected the human right to democracyii or shied away from making arguments one way
or the other.iii The key concerns behind many of these arguments revolve around the idea
of collective self-determination of peoples either as a kind intrinsic right of peoples or as
a kind of instrumental right. It is often argued that the existence of a human right to
democracy in the international system would somehow impinge on or violate the
collective right of a people to self-determination. It is claimed that some peoples reject
democracy or the equality on which it is founded so that the recognition of a human right
to democracy would impose upon them a set of norms that are alien to their political
cultures. There has also been a popular spate of writings suggesting that new
democracies often violate basic rights of citizens. This majority tyranny worry suggests a
strong conflict between democracy and other basic rights.
I argue that there are good grounds for thinking that there is a human right to
democracy once we have a grasp of at least some sufficient conditions for human rights
and once we understand the idea of democracy as something more than mere majority
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rule but not necessarily as much as full liberal democracy. And I argue that we can see
how the above worries can be dispelled once we have a proper appreciation of these
grounds. The argument I give here is a fully instrumental argument relying heavily on
empirical studies of the relationship between democracy as I understand it and the
protection of certain very urgent and widely accepted human rights. The right to
democracy, if we are thinking in terms of this argument alone, derives from its central
role in the protection of other fundamental rights.iv I think that there is also an argument
for the human right to democracy that makes democratic rights fundamental but it must
proceed from more controversial premises.v I believe it is worthwhile making out a
separate strong instrumental right to democracy to the extent that democracy is essential
to the protection of very urgent and widely accepted human rights.
In what follows I will define a set of sufficient conditions for the kind of human
right I will be talking about, I do not commit myself to necessary conditions since there
may be a number of different kinds of human rights. I will also explain the conception of
democracy I am working with and the idea of a human right to democracy. I will give a
three step argument for the thesis that there is a human right to democracy: the domestic
peace argument, the international significance argument and a structural argument.
Along the way I will be exploring the relation between this assertion of a human right to
democracy and the idea of collective self-determination. I will close with a fuller
discussion of the self-determination objection to the idea that there is a human right to
democracy.
What Is the Human Right to Democracy?
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In this paper, I will not attempt a general account of the nature or grounds of human
rights. In particular I will not attempt to lay out a set of necessary and sufficient
conditions for the definition of a human right. Instead I will rely on a set of sufficient
conditions, which I believe are particularly salient for my argument. I argue that a
sufficient formal condition for a right being a human right is that there is strong moral
justification for any state to respect, protect and promote the right and there is moral
justification for the creation and/or maintenance of international institutions that respect
and protect the right in all persons and that will assist in the securing of the object of the
right for all persons. These sufficient formal conditions include the ideas of international
institutions, rights and moral justification. It is sufficient for there being a human right to
x that there is a strong moral justification for states securing the right to x and there is
moral justification for having an international institution or convention or perhaps even a
less formal but effective mode of organization that is international that secures the right at
issue.
In this sense, some human rights are artificial rights because they consist in
aspects or parts of morally justified institutions. That is, they depend on the possibility of
an efficacious institution. But they are universal both in terms of the possessors of these
rights and in some respects in terms of the duty holders. To the extent that there is
universal and strong moral justification for states to secure the right and there is moral
justification for an international institution to attempt to get states to do this, all states and
all persons have some share in the duties to bring about and or maintain and comply with
the institution. To be clear, this account does not require the existence of states or
international institutions recognizing the right in question, it requires only that the
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creation of these institutions is strongly morally justified. So in the absence of an
international institution or even of a functioning state, one may still say that the human
right exists since one is saying that the construction of these institutions is morally
justified. And I think one may even say that the right is violated or infringed by those
who block the construction of these institutions.
Some have argued that human rights are essentially connected to the
responsibilities of political institutions either states or international institutions. On these
views a person’s human right to life is not violated by a murder for which we do not hold
the state or state-like institutions responsible. But it is violated when the state does it or
condones it or seriously fails in its responsibility to protect persons from it.vi And there is
no human right unless international institutions are morally justified in being concerned
with them.vii I will not claim that these are necessary conditions for human rights in
order to avoid needless controversy.
By an institution having a strong moral justification I mean that there are
particularly urgent moral goods at stake and the institution is an essential arrangement for
protecting those urgent moral goods.viii An institution has a moral justification when it is
desirable that it be constructed in order to protect morally urgent goods. I will not settle
here for a particular account of the basis of moral justification that holds for international
human rights. I will not rule out the possibility that some human rights are morally
justified by virtue of protecting natural rights. Some human rights may be grounded in
the requirements of a minimally decent human life, others may be grounded in facts
about what kinds of institutions best protect human interests. My inclination is to take a
pluralistic approach to the grounds of human rights. ix
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What I do want to say is that at least some of what we call human rights are rights
of persons, universal in scope, as specified by strongly morally justified institution and
morally justified international political institutions that have the responsibilities to protect
and promote fundamental human interests, other morally urgent concerns among persons
or other human rights. They are well-grounded international standards for defining the
basic rights of persons in political societies. These are the universal rights of persons that
international institutions must try to protect. So not only do we need morally justified
institutions, it must be the case that the institutions specify rights that are to be protected.
There may be morally justified international institutions that help avoid interstate wars or
even civil wars but this does not imply that there is a human right to avoidance of war.
The international institutions must specify the right in a plausible way. If an international
institution protects some good such as environmental protection through various
limitations on producers of pollutants, this is not sufficient for a human right. The
institution that is strongly morally justified must specify a right.
The human right to democracy that I will argue for is of this type. The idea is that
there is a strong moral justification for states being minimally egalitarian democracies.
And there is moral justification for having international institutions that respect, protect
and promote the right of each person to participate in minimally egalitarian democratic
decision-making concerning their society. By “minimally egalitarian democracy” I mean
a democracy that has a formal or informal constitutional structure that ensures that
persons have formally equal votes, equal opportunities to run for office, and equal
opportunities to determine the agenda of decision-making. In such a society there must
be robust competition among parties so that a variety of parties have a significant
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presence in the legislature. And there must be a high level of participation of the
populace in the electoral process. To have a human right to democracy is to have a right
to participate as an equal in such a society.
Such a society need not be fully just by any means nor need it live up fully to the
ideals of democracy. For that reason I call it minimally egalitarian. Such a society need
not be fully liberal either since it may restrict non political activities and violate liberal
rights that are not connected to the democratic process. But this society is not merely
majoritarian with universal suffrage. Minorities must have some protection and a
significant place in the legislature and there must be free and fair competition for power
among a variety of groups that compete on an equal footing.
To have a human right to democracy then is for it to be strongly morally justified
that the state of which one is a member be organized as a minimally egalitarian
democracy in which one has an equal right. And it requires that international institutions
be so organized as to respect, promote and assist in the development of minimally
egalitarian democracies. Through these international institutions all human beings share
in duties to assist in the creation, maintenance and enhancement of democratic collective
decision making in the political institutions of all persons.
This conception of some human rights as strongly morally justified institutions
first at the state level and then morally justified at the international level is supported by
the facts of the international practice of human rights we observe. Many if not most of
the human rights we observe in the international practice have roughly this structure.
They impose upon states the duties to realize certain fundamental moral goods by
protecting various rights and they impose on the international community the duties to
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help states do this. x If we can successfully make an argument to the effect that there is
strong moral justification for states to be minimally democratic and that international
institutions are morally justified in promoting and protecting democracy then we have an
argument for a human right to democracy that fits within the mainstream concept of
human rights.
The Instrumental Argument for a Human Right to Democracy
The main instrumental argument for a human right to democracy comes in three parts. I
employ a set of two empirical arguments for the thesis that there is a human right to
democracy. The first part of the argument is the domestic peace argument. The domestic
peace argument says that democracy is a normally reliable method by which the least
controversial of human rights are protected and non-democratic societies are normally
unreliable in this respect. The second empirical part of the argument is the international
significance argument. It argues that international institutions have good moral reasons
to be concerned with whether a society is democratic or not. It depends on a conception
of the international system and of the capacities of democracies that is empirically based
but controversial. The two arguments together support the thesis that there is strong
moral justification for states to be democratic in the minimally egalitarian sense and that
there is moral justification for international institutions and other states to respect, protect
and assist in the creation of minimally democratic societies.
The third part of the argument goes beyond the claim that democracy is a reliable
means for protecting human rights. It must specify a plausible right. I draw an analogy
with another human right that is largely instrumentally based and that is the right to a fair
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trial. What is important about the right to a fair trial is that fair trials are imperfect but
reliable methods of assessing the guilt and innocence of persons. But the right to a fair
trial gives persons rights to defend their rights against those who would curtail them. Not
only do fair trials protect rights, they do so by giving persons opportunities and choices
by means of which they can defend their rights. It is not just that others have a duty to
help the purported right holder, they have duties to give the purported right holder
opportunities and choices, with which they may defend themselves. And this marks out
the right to a fair trial as a genuine right. And I want to say that something very similar
can be asserted of democracy.
After the elaboration of the basic three part argument, I will provide a fourth
supporting set of empirical arguments that purport to show that democracy is not bad for
other basic rights that individuals hold. Thus the argument for the right to democracy is
not defeated by any highly problematic effects democracy might have for other rights.
The Domestic Peace Argument
The domestic peace argument is based on a number of studies of the impact of
democracy on human rights. They give strong evidence for the thesis that minimally
egalitarian democracies reliably protect personal or physical integrity rights and societies
that are not minimally democratic do not reliably protect these especially urgent rights.
And they argue that democracy is an important cause of this protection. The domestic
peace argument has four main elements: (1) a very strong correlation between minimally
egalitarian democracy and the protection of personal integrity rights and the normal
failure of non-democracies to protect these rights; (2) the identification of democracy as a
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key independent variable in explaining the protection of personal integrity rights; (3) a
sequencing argument showing that newly minted minimally egalitarian democracies
achieve their protection of personal integrity rights fully only after a period of about five
years after they come into existence; and (4) a model that explains how minimally
egalitarian democracies protect human rights and non-democracies do not. These four
elements, I believe, give us good reason for thinking that minimally egalitarian
democracy has the effect of protecting human rights and other societies do not.
Rights of personal integrity are rights not to be murdered or disappeared by the
state, state sponsored agents or state-like agents, rights not to be imprisoned for political
reasons or tortured by the state, state sponsored agents or state-like agents. They are all
rights held against the state primarily. Personal integrity rights are given a special
urgency in the international system and are uncontroversial in international society. They
receive special protection in the International Covenant on Civil and Political Rights.
These rights are described as non-derogable rights in the covenant, which means they
may not be suspended even in times of severe crisis.xi And some of these rights have the
status of jus cogens norms in international law, norms so fundamental that no state can
agree to contravene them.xii Furthermore, these rights are universally accepted among
philosophers as among the minimal list of human rights. Hence, the first empirical
argument establishes that minimally egalitarian democracies are strongly morally
justified state institutions by virtue of the fact that they reliably protect rights of the
greatest urgency while societies that fall short of this standard do not.
Here are the four elements of the argument. (1) A number of scholars have
attempted large-scale statistical studies of the best predictors of the protection of the
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rights to physical or personal integrity, which are the least controversial of all the human
rights. Steven Poe et al. have argued from probably the largest of such studies that
democracy is among the most important predictors of the protection of the human right to
personal integrity behind a previous history of protection or violation of personal
integrity and civil conflict.
The studies have argued that there is a general linear and negative relationship
between democracy and state violence.xiii What this means is that the more democracy
there is, the less repression of the human rights to personal integrity there is. This
conception of greater and lesser democracy is operationalized in two data sets. The first
is the Polity IV dataset and country reports. These datasets attempt to define a continuum
of democratic institutions in particular years from 0 to 10 wherein the United States and
most western European countries come out to be 10 and Russia and Ukraine in 2006 turn
out to be about 7 each along with El Salvador and Columbia.xiv The second is the
Vanhanen Index of Democratization, which measures the proportion of the population
that participates in elections and the proportion of votes received by all minority parties.xv
In both of these sets, democracy is treated as a continuous variable on a scale from quite
weak democracies to very strong ones. And the violations of personal integrity rights are
measured for each country every year in what is called the Political Terror Scale. The
political terror scale is a kind of aggregate measure of the violations of the different rights
of personal integrity described above. The data on which the terror scale is constructed
come from Amnesty International’s yearly country reports and the US State
Department’s yearly reports. The numerical measures are constructed from these
reports.xvi These datasets and the criteria they use deserve greater study and analysis
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than philosophers and political theorists have so far given them.xvii One major result of
this research is that there is a strong inverse relationship between democracy and state
violence such that the more democracy one has the less state violence there is. The other
kind of result is that in multiple regression analyses, democracy emerges as a very
important independent variable explaining the reduction in state violence.
More recent studies have suggested that the picture is more complex and much
more interesting than this. In these studies of the relation between democracy and
repression of the human rights to personal integrity, it has been argued that the
relationship between democracy and human rights violations exhibits an important
discontinuity that has not shown up in previous studies. The idea is that only once
democracy has reached a certain threshold of quality on the scale does the linear negative
relationship between democracy and violations of personal integrity rights emerge and
then it emerges as a very steep inverse relationship. Roughly speaking, the basic
threshold seems to be (i) the constitutional order meets a minimal threshold of electoral
accountability of the legislature to the population and the executive is accountable to the
electorate. (ii) Electoral processes are competitive in the sense that more than one party
contests elections and has a significant presence in the legislature and these contests are
free and fair in the sense that special obstacles are not put in the way of any of the
individuals or parties in the electoral process and (iii) there is a fairly high level of
participation in the populace in elections.xviii These criteria are a combination of the
Polity IV criteria and the Vanhanen index. They match the threshold at which minimally
egalitarian democracy appears. The level roughly at which a serious linear and negative
relationship between democracy and human rights violations appears is at the Polity IV
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level of 7, which Russia and the Ukraine satisfied in 2006. Up to that point the
relationship is roughly that of a flat line, which suggests that differences in regime do not
make much difference to levels of violation of human rights to personal integrity. After
that point a steep downward sloping curve expresses a very strong inverse relationship
between the increasing quality of democracy and numbers of violations of human rights
to personal integrity. (See figure 1 p. 547 and table 1 p. 548 in Davenport and Armstrong)
The very same threshold effect is evident in using the Vanhanen index as in the use of
Polity IV index.
(2) In multivariate analyses, minimally egalitarian democracy turns out to be a
very strong independent variable explaining the protection of human rights to personal
integrity. It is important to remember that there are some other factors associated with a
negative relationship with state violations of human rights. Population size has a small
effect on level of violations of personal integrity rights. Other factors often discussed are
a highly active international civil society movement in relation to the state involved, war
(civil and interstate) and per capita GDP. International nongovernmental organizations
(INGO’s) are thought to be effective against human rights violations.xix This is an
important result, but it must be remembered that the influence of these INGO’s is
generally through the domestic institutions of the societies and thus most often through
democratic regimes.
Per capita GDP has also been associated with lessening of human rights
violations. But it seems to play a significantly smaller role than minimally egalitarian
democracy from the multiple regression analyses.xx Furthermore, one thing that is
important to note is that democracies tend to have a strong positive association with per
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capita economic growth. Here the research by Adam Przeworski and colleagues has
argued quite convincingly that democracies tend to outperform dictatorships in terms of
per capita growth by a very significant margin and this result holds when controlling for
many different variables.xxi Przeworski et al’s argument is different from the human
rights arguments above in that the Przeworski argument relies on a dichotomous
separation between democracy and dictatorship while the others are not dichotomous.
The one similarity is that the threshold point in which democracies start to do much better
than any other form of rule is not very far from the threshold point dividing democracies
from dictatorships in the Przeworski argument.
Another important independent variable explaining human rights violations is war
both interstate and civil war as well as violent resistance to the state. But interstate war
appears not to have as large an impact as minimally egalitarian democracy on the
violation of personal integrity rights. Civil war seems to be the most important factor of
all in explaining human rights violations, even greater than minimally egalitarian
democracy. But, while states tend to increase repressive activity and violations of
personal integrity rights under these conditions, democratic societies tend to do so much
less than other kinds of states. So even under the harshest of adverse circumstances,
democracies have a significant effect in reducing state violations of personal integrity
rights.xxii But the most important point is that when one controls for all of these different
variables in multiple regression analyses, minimally egalitarian democracy emerges as
the most important variable after previous repression and civil war.
Furthermore, (3) there is a clear and measurable effect over time of the effect of
introducing minimally egalitarian democracy in a society on the level of violations of
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personal integrity rights in that society. Violations of personal integrity rights taper off
quite significantly within about 5 years of the introduction of high quality democracy. xxiii
And violations of personal integrity rights increase quite dramatically within five years of
a loss of high quality democracy. This sequencing argument adds some weight to the
argument that minimally egalitarian democracy is a significant cause of the decrease in
violations of human rights to personal integrity. It suggests that it is democracy that is
bringing about the protection of these rights and not vice versa.
The conclusion of the above arguments is that democracy (once it reaches the
level of minimally egalitarian democracy) is a really good bet for the protection of the
human rights to personal integrity, in contrast to other forms of government. To be sure,
it is not a strictly necessary condition nor is it a strictly sufficient condition. But it is
certainly, among different forms of government, the one that is strongly associated with
the protection of human rights to personal integrity. In what follows I want to pause
briefly to discuss some difficulties with this argument and then I want to discuss an
interpretation of the evidence.
Some Worries about the Statistical Arguments
As with any statistical argument, it could turn out that there is another more important
independent variable that explains the importance of democracy in a way that undermines
the causal importance of democracy. For instance this possible variable may explain the
presence of both democracy and low state repression and may suggest that democracy
plays no causal role. Not every possible variable has been considered and some
potentially explanatory variables are very hard to get a grip on. So the arguments
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presented above must necessarily be considered tentative. But no such variable has
turned up as yet and so I think we may say that we have evidence for the causal impact of
democracy on human rights protection.
Another more immediate worry is that what is measured by the Political Terror
Scale may overlap too much with what is measured by the Polity IV measures. For
instance, the PTS counts political imprisonment as a violation of personal or physical
integrity. But surely many and perhaps most instances of political imprisonment would
also qualify as violations of freedom of speech or freedom of association. They would
probably count as undermining the freedom and fairness of the elections (not all since
some opponents of a regime may not be interested in competing in elections). And of
course many instances of torture, killings and disappearances by the state could qualify as
undermining free and fair elections. So we have a danger here of triviality if the two data
sets do not use sufficiently distinct criteria. If the overlap of these elements is too great
then the whole argument is undermined.xxiv This needs to be carefully examined.
Caution is clearly in order here. But there are three mitigating considerations on
this worry. First, the Vanhanen Index of Democratization seems to give us roughly the
same results as the Polity IV index and it does not use anything that might intersect with
the personal integrity rights as criteria. It combines proportion of the adult population
that participates and proportion of total votes to minority parties, to give a measure of
democracy. Second, torture, extra-judicial murder and disappearance is often inflicted by
states for non-political reasons as when suspected criminals are tortured in detention
centers. This is the reason why the United States (which is an outlier in these arguments)
scores a 3 on the Political Terror Scale while being a 10 on Polity IV. And some
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opponents of a regime may not be interested in competing in elections, so political
imprisonment need not be against potential opponents in an election. Third, the five year
lag effect that we noted above suggests that democracies that score 10 on the Polity IV
score go through initial phases where they still engage in violations of physical integrity.
Equal Participation
There have been some efforts at figuring out what it is about high quality democracy that
has this effect. There is empirical support for the thesis that a democratic political/legal
system protects the human rights of persons because it gives equal rights of participation
to each of those persons.
All the features of minimally egalitarian democracy are important in the
protection of human rights, including the kinds of constraints on executive and legislative
power we associate with checks and balances. But the component that seems most
important in explaining democratic protection of human rights to personal integrity is the
variable of free and fair multiparty competition and not constraints on the executive.xxv
The key seems to be the exercise of popular control over the legislature and executive.
The threshold point above which democracies begin to protect human rights very
effectively is one that picks out democracies that are egalitarian in the sense that they
guarantee equality in the vote, equality in the process of party formation and equality of
opportunity to run for office. And these equalities are sufficiently effective that there is
very significant competition among competing groups in the society for power and
influence. This strikes me as an important result that points to the importance of equality
in the protection of the human rights to personal integrity.
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The empirical literature does not refer to equality in the process of decision
making. It focuses on the importance of free and fair elections with robust multiparty
competition as well as the accountability of legislative and executive offices to the
population. I interpret the idea of free and fair competition among a multiplicity of
political parties as a realization of equal opportunity to run for office and to influence
collective decision-making. The reason for this is that the criteria of free and fair
elections are that there are no obstacles set up by the political system to the competition
of political parties for the votes of citizens.
Some have argued that a consultative hierarchical regime that has universal
suffrage but that is corporatist in structure (i.e. politically organized into functional or
religious groups) and that employs highly discriminatory criteria for the holding of
government offices can protect human rights to personal integrity. On John Rawls and
Joshua Cohen’s account, a consultative hierarchical regime has essentially three features.
One, the regime makes decisions in a way that is accountable to all the members of
society. Citizens may be represented functionally or territorially or in some other way
but all must be included. Two, everyone has a right to dissent from or appeal the
decisions of the regime. Three, the regime is committed to giving public reasons for its
decisions in terms of a widely shared common good conception of justice. One thing that
is essential to this picture is that it does not require equality among citizens either in the
opportunity to run for office or to influence collective decisions. An elite is responsible
for running the society though it must consult with the representatives of the citizens.xxvi
Defenders of inegalitarian regimes have little empirical evidence to stand on. On
the scale of democracies that is employed by the Polity IV data set, the closest to a
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consultation hierarchy in John Rawls’s sense is what the Polity IV manual somewhat
tendentiously calls an “incoherent regime.” Such a regime has some important features
of democracy but combines them with features of autocratic regimes. The combination
that seems to correspond to the consultation hierarchy is one in which there is universal
suffrage and an only partially competitive electoral system that employs a very
incompletely competitive system for recruiting executive officers and legislative
representatives. The electoral system gives everyone a vote in legislative elections but it
requires that popularly unaccountable elites rigorously vet candidates in terms of
political, ideological or religious beliefs. So it seriously limits free and fair multiparty
competition. It does allow a plurality of candidates who have genuine disagreements but
within a narrow range. Executive officers are appointed by a process that only partially
includes the people as a whole. The selection process is dominated by persons who are
not popularly elected but hold their positions by virtue of some religious or ideological
qualification.xxvii They do take themselves to be accountable to the people in the sense of
having to give reasons for policies when challenged. And those reasons are given in
terms of the common good and the particular priorities of the regime. But rulers are not
the equals of the people they rule, though they do sometimes come under the rule of law
or at least a common set of duties. They have a privileged relation to the political regime
they rule.xxviii Ideologically based states like China and the Soviet Union as well as
Islamic states such as Iran would seem to qualify as consultation hierarchies on this
account, in terms of the structure of collective decision-making.xxix
It seems very clear from the large scale statistical studies that have been made that
these kinds of regimes simply do not protect human rights very well even of the most
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uncontroversial kind. Indeed, nearly every regime that falls short of minimally
egalitarian democracy is likely to be a serious violator of human rights of the
uncontroversial sort.
There is no conceptual or a metaphysical impossibility here. It is possible for
there to be a decent consultation hierarchy, it is just very unlikely. One suspects that
when a consultative hierarchical regime does not violate human rights, it is because of
some kind of anomalous luck. Oman is sometimes mentioned as a regime of this sort,
though its political system is closer to an absolute monarchy. Its sultan has over the last
forty years been relatively light on political repression and violence and has attempted to
open up some avenues for broad participation in the society.xxx But this seems to depend
on the will of the sultan. In Rawls’s terms it seems that a decent consultation hierarchy is
not a stable well-ordered society.xxxi Rawls’s “decent consultation hierarchy”, a
hierarchical regime with incomplete participation of the members of society that protects
basic human rights, is a kind of social-political anomaly. The normal operation of a
consultation hierarchy is incompatible with the protection of the basic human rights
involved with decency.
Partly this conviction results from the fact that we have a good model for how this
works, which also seems to be borne out by the evidence. This is the last component of
the argument (4). The basic model is that minimally egalitarian political institutions
effectively make rulers accountable to their citizens in an egalitarian way; they constrain
the rulers and give them incentives not to violate human rights as well as incentives to
call out others who are rights violators. The basic assumption behind this is that people
very strongly do not want to be tortured nor do they want those who are close to them to
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be tortured. Furthermore, most people do not want others to be tortured and some people
very strongly do not want others to be tortured. And the same holds for the other rights
of personal integrity. The reason why this has such an impact in an egalitarian
democracy so much greater than in other societies in which there is universal suffrage is
because a minimally egalitarian society in some sense maximizes the number of possible
coalitions that can mobilize against human rights violations and damage the political
fortunes of politicians who violate them. It also encourages competition among different
groups that spurs them to make greater efforts at uncovering rights violations. The
plurality and competition among different groups ensures two things in particular. One it
ensures that the society over time is reasonably transparent, since everyone is making an
effort to reveal problems particularly in the activities of their opponents. So the society is
fairly open. Furthermore, these competing groups have the capacities to mobilize citizens
in such a way as to punish politicians who violate rights egregiously. In autocracies, in
contrast, to the extent that competition among opposing groups is stifled, the facts of
human rights violations are much more difficult to uncover. And so the very existence of
human rights violations often retains the status of hearsay. Furthermore, to the extent that
rulers are independent of popular control, they cease to be accountable and the relative
importance of their other goals may override their concern to protect human rights. In
democracies, politicians have reason to fear losing power when they violate human
rights, in autocracies the sanctions may be quite minimal. And in societies where there
are severe limits to who can politically oppose the regime, the chances of forming
coalitions to fight human rights violations is correspondingly diminished and so the rulers
are to that extent less accountable and thus less apt to fear defeat if they violate human
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rights. The fact that it is the participation and competition elements of democracy that
have the most effect in protecting human rights gives some support to this model.xxxii
Now the four elements of the argument for the instrumental value of minimally
egalitarian democracy are in place. We have seen that (1) minimally egalitarian
democracies are correlated with the protection of personal integrity rights and other
societies are not; (2) minimally egalitarian democracy is an important independent
variable that explains protection of these rights; (3) there is evidence for the idea that
normally one must first introduce minimally egalitarian democracy before protection of
human rights becomes complete; and (4) we have a model for why minimally egalitarian
democracy has these effects and other societies do not.
Now we can see why there is a very strong moral justification for bringing about,
or sustaining minimally egalitarian democracy. That justification is grounded in the
protection of rights that are at the core of the human rights system and virtually
universally recognized as fundamental human rights. Given the threshold effects, the
independent influence when controlling for other variables, the sequencing of democracy
first human rights protection later, and the model that makes sense of how democracies
protect human rights better than other societies, we have good reason to think that
minimally egalitarian democracy is a normally necessary condition for the protection of
human rights to personal integrity.
One thing should be noted before we continue. The regimes that score highest on
the Polity IV measure of democracy are by no means perfectly just societies. They may
be unjust in a variety of ways. They may not fully live up to democratic ideals as when
the influence of money gives disproportionate power to the wealthy. They may not have
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ideal methods of decision making, if for example one regards proportional representation
as more just than single member district representation. They will inevitably pass unjust
legislation since they are characterized by a great deal of disagreement. In these respects
then, these societies may be far from fully just. Their democratic credentials, though
very strong on the various empirical measures of democracy, may only imply that they
meet a minimum threshold of justice.xxxiii
The International Significance of Democracy for Human Rights
I have argued that there is strong moral justification for states to be minimally egalitarian
democracies that is grounded in the fact that democracies are normally necessary for the
protection of the human rights of personal integrity. In this section I will defend the
second step in the instrumental argument for a human right to democracy. I will argue
that there is moral justification for the international community as a whole to attempt to
respect, protect and promote the existence of minimally egalitarian democracies. The
first main premise of this argument is grounded in the idea that the international system
works at the moment primarily as a system of reciprocity. States are willing to perform
their duties under international law to the extent that they can expect other states to go
along as well or to the extent that they think that they will be sanctioned for
nonperformance by other states. This does not imply that states merely act in their selfinterests. They may be willing to reciprocate in certain conditions in which they must
make some sacrifices. And they are often only willing to sanction other states for
violations of international law or norms.xxxiv But in the main, the whole system and most
of its parts have to be working in the long run interests of each political society.
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The main point I want to draw from this conception of the international system is
the idea that (1) the international system (states and international law and organizations)
effectively enforces only reciprocating treaties.xxxv What I mean by this is that states or
international institutions will punish or sanction other states in the international system
for violation of international law when the sanctioning states (either within the
international institutions or independent of such institutions) have some substantial
interest in doing so. The emphasis on the international system in this premise is meant to
allow for the fact that sometimes international law is enforced by states on themselves
through their domestic legal systems. This would not be a case of the international
system enforcing international law; it is a case of the domestic legal system enforcing
international law. This distinction will be of some significance in what follows.
The next premise is that (2) human rights treaties are not reciprocating treaties.
They consist primarily in treaties that say you must not violate the human rights of your
citizens and we must not violate the human rights of our citizens. They usually do not
have the form of “you do something for us and we will do something for you”. The
consequence is that states have a lot less at stake in protecting human rights or at least the
human rights of citizens of other states.
There is an exception to this rule of great interest. At least in form, international
humanitarian law seems to have a kind of reciprocating character. Laws against the
mistreatment of prisoners and sometimes of civilian populations in the context of war do
seem to have a reciprocating character. And this character is often noted in the context of
war. If we mistreat the soldiers of our opponents in war, they will feel less compunction
about mistreating our soldiers in war. If they mistreat our civilian population during war,
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we will feel less compunction about mistreating their civilian populations during war.
The logic of international humanitarian law is quite unclear to me so I will not have much
to say about this here, though further reflection may show that it is more important than I
am suggesting. There is some evidence regarding democracies in wartime and it is quite
mixed. Democracies are not better in following the laws of war than other societies
except when they have ratified treaties concerning the laws of war. Then they are
substantially better at acting in accord with the laws of war than other societies even if
their opponents in war have not ratified the treaties.xxxvi
And all states tend to act in
accord with the laws of war much more when their opponents do and tend to violate the
laws when their opponents do not. But I will not pursue this issue here.
If it is true that the international system only enforces reciprocating treaties and
human rights treaties (at least those that deal with human rights in peacetime) are not
reciprocating treaties, then the international system will not enforce human rights treaties.
It may be useful here to note that while this does not paint a pretty picture of the
international system it does not imply that the system is evil or that states are evil. For
this non-enforcement of human rights treaties may be an implication of the fact that states
are primarily devoted to the establishment of justice within their jurisdictions and act as
representatives of their peoples when dealing with other societies. Ideally, they take
themselves to be advancing justice for their own peoples and to be advancing the interests
of their own peoples. These are good aims in themselves. And we can have some
respect for the restraint that states display when they do not try to advance justice for
other peoples or their interests. This is because states have no obvious mechanisms by
which they can be made accountable to the interests or opinions of those who are not
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citizens, at least none when the state of which those people are members is not
considered. Or if we do not wish to praise states for this restraint we can still see that
there is something desirable in the fact that states, constituted as they currently are, do not
take a deep interest in the citizens of other states except as they are represented by other
states. The desirability of this restraint has its limits, as in the case of neglect of largescale genocide or ethnic cleansing, but there is in the normal case something good about
this.xxxvii
In the last ten years a body of evidence has developed that supports these
contentions about the nature of the international system. Some international relations
theorists and legal thinkers have described what they call the “realist insight” concerning
human rights treaties.xxxviii They have argued that human rights treaties do not generally
make much difference to the human rights performance of the states that have signed on
to them except under special conditions. Oona Hathaway has argued that human rights
treaties do not make much difference to human rights performance. Indeed she marshals
a body of statistical evidence that suggests that the signing of human rights treaties
actually worsens the human rights records of the worst offenders of human rights while
improving the human rights records of those states that already protect human rights
through their domestic legal systems.xxxix Emily Hafner-Burton and Beth Simmons come
to roughly similar conclusions concerning the ability of the international system to
protect human rights.xl
Some have concluded from this type of evidence that in fact human rights treaties
have no impact whatsoever. Eric Posner and Jack Goldsmith have argued this on the
basis of a broadly realist approach to human rights law.xli They argue that international
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law works when it achieves genuine coordination but not otherwise. For them, human
rights law is essentially cheap talk that serves to camouflage bad behavior at worst and
has no effect at best. And this kind of view is probably the norm in international
relations theory at the moment.
But the above observations about the inertia of the international system regarding
human rights leaves open an interesting space in which international human rights law
can have some impact. Indeed, the observations of much current scholarship on human
rights law is that it has an impact on societies but mainly through the domestic
institutions of those societies.
Human Rights Treaties and Domestic Institutions
The argument of much recent work is that human rights law has an impact through the
domestic legal and political systems of societies. And the thought has been that it is
those societies with strong rule of law and democratic institutions that are likely to have
the most impact on human rights performance. The kind of domestic political/legal
system that is effective in enforcing human rights treaties is a democratic political/legal
system. And for societies in which there is little or no democracy or rule of law, the
effect of human rights law is often very little and in many cases there is evidence that the
human rights records get worse.xlii
The basic logic behind this very robust set of results is that international treaties
enable domestic constituencies to bring forth claims against governments in the name of
the human rights treaties. The democratic system ensures that these domestic
constituencies are well organized and have the kind of effectiveness that is necessary to
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make use of the norms of international human rights law to advance their interests. The
perhaps unsurprising conclusion is that those who are most likely to be protected by
human rights norms are the ones who are most likely to try to make sure they are
enforced. But democratic societies also enable other concerned groups effectively to
mobilize against human rights abuses, as we saw in the case of the recent torture scandals
in the United States. And it is in democratic societies that these groups are permitted to
come forward and press their claims and it is in these societies that these groups are well
organized and politically effective. Hence they can mobilize in domestic political
forums for change or for improvements in human rights treatment. Furthermore, it is in
democratic societies where the claims of these groups are respected in courts when they
are brought to court and where they are enforced by courts in a variety of ways.
Beth Simmons states that “stable democracies’” human rights performance is not
affected by ratification of human rights treaties. By a “stable democracy” she means a
democracy that has not fallen below 8 in the Polity IV data set since World War II. She
argues that ratification of human rights treaties has an effect on the human rights
performance of “partial/transitional democracies,” which are defined as all those
countries that are not stable and not autocracies. She argues that stable democracies
protect human rights whether or not they ratify human rights treaties. Partial/transitional
democracies are ones that improve their human rights records as a result of ratification.
Once they make the transition to democracy, constituencies are able to mobilize to
protect human rights and the treaties are a resource they can use to do this as well as a
means of educating the populace to prefer the protection of human rights.xliii Here the
model of a minimally egalitarian democracy seems to come into play. Politicians in
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democracies that are newly minted and reasonably high quality agree to human rights
treaties because they think that this will lock in human rights protections. And the reason
why these might lock in human rights protections is because later politicians will fear
being thrown out of office as a consequence of violating human rights norms that are
enshrined in treaties the state has ratified. Democracies enable a great variety of
constituencies to mobilize and thus maximize the chances that a later politician’s career
will be damaged if he or she ignores human rights standards.
These data look quite similar to the data noted above that give evidence of a
significant increase in human rights protection within five years of a society becoming
high quality democracies. They suggest in a distinct way how democracy of a high
quality sort can improve the protection of personal integrity rights.
There is some complexity here that is difficult to sort out. The categorization of
democracies is troubling. It does not map on easily to the distinction between high
quality and low quality democracies. And it seems to lump together very different
societies. France is one of the partial/transitional democracies as well as Haiti.xliv As a
consequence, some of these societies are high quality democracies at the moment and
others are not. I am tempted to say that recently minted high quality democracies are
principally responsible for the showing that partial/transitional democracies improve on
their human rights treatment when they ratify human rights treaties. But this might be a
tendentious reading of the evidence presented. The conclusion is not as secure from the
data that Simmons has provided given her peculiar division of the relevant cases. So this
particular piece of the argument remains uncertain to me.
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By contrast, in non-democratic societies the domestic constituencies of these
human rights treaties are either repressed or they find it very hard to organize.
Furthermore, I surmise that courts in non-democratic societies are less enthusiastic about
protecting the rights of persons even when they are enshrined in law. There simply isn’t
the pressure to do so and there is every pressure against doing so. This is borne out by
the fact that the human rights treaties don’t have any impact or even have negative impact
in these societies. In these cases, the treaties serve as a kind of “cheap talk” that often
serves to camouflage actual human rights treatment at least in the short run. This is
indeed what is observed in these societies. And since the international system does not
have a great deal of impact because states are largely preoccupied with their own
interests, one key factor in the protection of human rights is democracy.
Democracy and International Institutions
Though human rights generally don’t seem to be particularly well protected by the
international system, there are two reasons to think that democracy can be so protected.
They are the democratic peace argument and the democratic compliance argument.
The democratic peace thesis is the idea that democracies do not go to war with
one another. The definition of war, as I understand it, requires a thousand battlefield
deaths or more. There are very few exceptions to the democratic peace hypothesis and
they are controversial and complex. Most international relations scholars accept the
democratic peace hypothesis, and many describe it as one of the most robust results in
international relations theory. The statistical evidence for it seems to be pretty
overwhelming. The democratic peace hypothesis does not imply that democracies do not
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go to war with other societies. They don’t go to war with each other.xlv The democratic
peace thesis provides support for the thesis that it is a global collective good that
democracy be widespread since war is one of the most damaging kinds of events that can
occur to human societies. Moreover, since war is itself a serious catalyst for human rights
violations, an international system that diminishes the prospects for war diminishes the
likelihood for human rights violations.
Similarly, democracies are more likely to observe treaties than nondemocracies.xlvi Here the idea is that democratic governments are more likely to comply
with international treaties than non-democratic governments and they are also more likely
to create and sustain international institutions than non democracies. Since societies have
interests in international treaties being observed and international institutions being
sustained, and democracy is an important pillar of the stability of these institutions, the
maintenance of democracy is an important global collective good (in this case, perhaps a
public good, since all states benefit from the maintenance of international law and
institutions).
So unlike the standard human rights there are interests in the international
community at large in realizing and maintaining democratic forms of government to the
extent that it can. As a consequence, a scheme of international law that enshrines a legal
human right to democracy and makes efforts to create, maintain and support democracies
not only makes use of the best institutional device known to protect human rights, it also
achieves a certain stability in that protection since most of the members of that system
have a reason to preserve it. From this I think we can conclude that democracy is the
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lynchpin in getting international institutions to be genuinely concerned with human
rights.
From these claims, I think we have a good argument for the second step in the
argument for a human right to democracy. We have good reason to think that the
international community is morally justified in attempting to respect, protect and assist in
the creation of democracies. This is because (1) minimally egalitarian democracies are
normally necessary institutional schemes for protecting human rights of personal integrity
and (2) the international system has a genuine interest in respecting, protecting and
promoting democracy. It is through the promotion of minimally egalitarian democracies
that the international community has the best chance of protecting and promoting the
protection of basic human rights.
The Right to Defend One’s Rights
One might wonder whether the means for promoting a right are always things to which
one has a right. I agree that this would not follow. One problem with this inference is
that it may merely be that more democracy is a good to be promoted for the sake of better
rights protection. In response, the structure of the connection between democracy and
human rights is that minimally egalitarian democracy is normally necessary for the
protection of rights of personal integrity. More democracy is not merely better for the
protection of rights; a certain level is normally necessary. The threshold effect is what
helps make the transition between saying we are talking about a good and saying we are
talking about a right.
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A second concern may be illustrated with the following example. One may have
duties to bring about peace because this is a means by which rights are protected but it is
not clear that there is a right to peace, even though there may be a duty to try to secure it.
In reply to this concern we should say that the thing that is instrumentally important to
the protection of uncontroversial and weighty human rights itself has the institutional
structure of a right. It is a kind of political right. Minimally egalitarian democracy itself
is a system of equal rights the effective capacities to exercise of which are responsible for
the protection of human rights. The thing that protects human rights gives individuals
choices concerning how to protect their rights and those of others. If you want to protect
human rights in a particular society you don’t do it directly; you must normally set up a
system of equal rights to participate in collective decision-making in that society. Then
individuals can protect themselves by choosing how to use these rights. So the duty to
secure the rights to personal integrity in a society must go through the granting of
opportunities and choices to the members of the society in question.
In this respect the right to democracy is similar to the right to a fair trial, which
has a primarily instrumental justification. Democracy and fair trials are not merely
means to protecting one’s rights. They serve this protective function by granting rights to
choose to act in lawful ways in defense of one’s rights and this gives its character as a
right.xlvii
Finally the right of democracy argued for here is essentially a protective right in
that the possession of this right is essential to the protection of other rights. And the
structure of the argument depends on the idea that there is widespread agreement on and
great urgency to the rights of personal integrity; they are fundamental rights in that they
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are not derived from their capacity to assist in the protection of other rights. The right to
democracy may also be fundamental but that is not the conclusion of this paper.
Possible Worries
One worry with the above reasoning is whether the international is generally capable of
bringing about democracy. Charles Beitz has observed that the evidence that shows that
democracy beyond a certain threshold of quality protects human rights also shows that
democracies beneath that threshold are as likely to engage in violations of personal
integrity as other regimes and that civil war and conflict are likely to generate increased
repression. Many regimes get stuck in hybrid and unsatisfactory states in their attempts
to make the transition to full democracy. Furthermore, trying to bring about a high
quality democratic regime from the outside is likely not to be very successful. As a
consequence, he argues that to try to bring about democratic regimes of high quality is
likely to be a highly precarious and problematic activity. As a consequence, he thinks
that it is not morally desirable for international institutions to be engaged in promoting
democracy at least as a general matter. And for this reason he thinks that there may be no
human right to democracy.xlviii
My first response to this reasoning is that it would seem also to cut against
counting the rights against torture, political imprisonment and state murder as human
rights. For it appears that the usual way of achieving the protection of these rights is
through a change of regime, if the above reasoning is correct. And in any case, many
regimes will fiercely resist the push to get them to protect human rights. But, by
hypothesis, such actions will likely bring about violence and human rights violations in
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the process and may not succeed. International institutions can often do very little to
help.
Second, I do not think the objection succeeds. The basic problem here is that we
must distinguish between when a person’s duty to perform some or any particular act to
fulfill a right is overridden or defeated and when the right against that person does not
exist. Consider a case of the police trying to extract a captive from a captor. The captive
has a right that the police do what they can to extract him safely. But there will be
circumstances where the police ought to do nothing lest the captor kill the captive. The
captive does not thereby lose the right against the police to be free. Though the police
ought not to do anything in the circumstances, they still have a genuine duty to help the
captive. Perhaps in the circumstances, they have a duty to think about how to extricate
the captive without harming him.
I would think that something like this could hold in the case of democracy. It
may be the case that the best thing the international community can do to push a nondemocracy in a particular circumstance is nothing because the non-democratic elites
would react with such ferocity or because they could manage to stall the transition in a
highly unsatisfactory and violent middle state. But this would not be a reason for
thinking that the international community was not morally justified in trying to do
whatever it could to bring about democracy.
I do not take the fact that attempts at reform might be met with violence or might
fail to defeat the idea that there are human rights at stake. But I do think that there are
interesting moral questions about what one may risk and what one may not risk in trying
to bring about greater human rights protection. There are circumstances in which the
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magnitude of human rights violations that might arise from trying to make a transition to
a human rights respecting society are such that the efforts at reform are not worth the
moral costs. But this does not defeat the idea that there are human rights at stake.
A second worry is whether democracy does better in some respects but worse in
others. If democracy does better in terms of protection of human rights to personal
integrity but it does worse on other rights, perhaps there is still reason to think that
democracy is not a human right. But it does not appear that there are any respects in
which democracy does worse. In terms of civil rights more generally, democracy seems
to do better. One respect in which some have thought that people are worse off under
democracy is in the avoidance of poverty. This would, in my view, be a serious mark
against democracy if it tended to do worse by the poor than more authoritarian regimes,
particularly in poor countries. But there does not appear to be good evidence for this and
some have argued the opposite.xlix At the moment, one must say that we do not know
whether democracy does better or worse or the same as other regimes in maintaining the
welfare of the worst off in poor societies. The weight of the evidence still favors the
claim that democracies do no worse in this respect.
Another respect in which democracies might be inferior is in terms of overall
crime rates. Some might wonder if protection of human rights to personal integrity,
which are rights against the state, may not be overemphasized here. If, for example, there
are more violent crimes against the person in democratic societies than in non-democratic
societies, one may wonder if the protection of persons from states is worth the cost. I
think this is a serious worry, but I have not seen evidence that violent crime in high
quality democracies is higher than in other societies. Studies need to be made on this
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subject. A cursory look at the United Nations annual statistics on homicides in countries
throughout the world does not suggest that democracies do worse than non-democracies
and even suggests that they may do better, but I am not sure about this.l
There is a third puzzle about the arguments I have made above. This has to do
with the fact that we are making a statistical argument. There are two worries here. One
is that the data may naturally disaggregate democracies into different kinds of
democracies with empirically identifiable features and that we should look at these
smaller subcategories in assessing how we should react to a society. Of course we have
already done that partly by distinguishing between minimally egalitarian democracies and
democracies that fall below that standard. But within the subcategory of minimally
egalitarian democracies, we might decide that some are worth protecting or promoting
and others are not. And then we might not have a general human right to democracy (or
even minimally egalitarian democracy). Indeed we may discard the idea that the human
right has anything necessarily to do with democracy per se.li
But the best empirical evidence we have at the moment suggests no such further
division. Per capita GDP, population and war have been controlled for and these have
not undermined the significant effects of minimally egalitarian democracy. And people
have been looking for further ways to disaggregate the category of democracies. They
have not found them. So we must at the moment go with the idea that in general one
should prefer on the basis of human rights that a society be democratic in a minimally
egalitarian way rather than non-democratic.
Two, since they are statistical arguments, they allow for outliers that do not
conform to the statistical generalization. They allow for individual cases that fall outside
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the norm. So we can at least imagine the following scenario and know that it is not
impossible empirically. Suppose that we live in a minimally egalitarian democracy and
there are major human rights violations taking place on a regular basis and we know that
were we to bring about an authoritarian regime, the human rights violations would
decrease very significantly and no other new human rights violations would arise. This,
again, is a very strange case without a doubt, but it is worth reflecting on since it might
give us some insight into the structure of the right.
My inclination in this case is to say that the human right to democracy would be
defeated in this case. It would be defeated in a particular way. The defeater would be an
undercutting defeater, so that the right would not merely be overridden as might happen
were some weightier consideration to be balanced against it. The defeater would
undermine the ground of the right altogether and thus eliminate it without remainder for
as long as the circumstances obtained. This is the implication of the fact that the grounds
adduced here are essentially instrumental. Once the outcomes of the instrumentally
justified institution are known to be not forthcoming and only alternative institutions can
produce these outcomes, then the instrumentally justified institution is no longer justified
in the circumstances.
This seems to me to be the right approach to democracy at least with respect to
fundamental human rights, but does it undermine the thesis that there is a human right to
democracy? I am not convinced that it does because, one, most (probably all) rights are
defeasible. Even the rights not to be tortured or murdered for political reasons can be
defeated if the moral considerations on the other side are sufficiently weighty.lii To be
sure the rights against torture are not undercut by other considerations, so that makes this
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form of defeat distinct. But a person’s rights to liberty can be undercut if that person has
engaged in serious criminal activity. My second point though is that the comparison with
a right to a fair trial may be of use here. For here too we can imagine a case in which a
fair trial would without doubt get the wrong outcome for an individual for various
reasons and that a trial procedure that was not fair would have a better and more just set
of outcomes. We can even imagine that a system of fair trials more generally would
produce problematic outcomes under certain circumstances. This possibility is more
remote than in the case of democracy, but it is still possible. In this case, it would seem
that the right to a fair trial would be undercut by its loss of instrumental value. So I think
it is no surprise that rights that enable people normally to defend their rights are undercut
in those circumstances where they clearly do not enable people to defend themselves or
even undermine that ability and where alternative arrangements would do better.liii
Self-Determination Objection
The self-determination objection states that the human right to democracy interferes with
the legitimate self-determination of peoples. On one conception of self-determination, a
people is self-determining when (1) their political institutions accord with political ideals
they share and that have survived their critical reflection and (2) when the political
institutions are broadly consultative in the sense that all the different groups in society are
consulted in the making of decisions.liv
The argument is that one must tolerate societies in which the members share
different political ideals and which are responsive to the persons in them just as one must
tolerate individuals that hold different religious beliefs in domestic societies. It is
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claimed that some societies share political ideals that are not democratic because they
reject egalitarian ideas. If there is a human right to democracy, it is argued, then the
international community is morally committed to protecting and promoting minimally
egalitarian democracy. But if the international community is committed to protecting and
promoting minimally egalitarian democracy, then it does not tolerate non-democratic
societies. But non-toleration of non-democracies is a threat to their legitimate selfdetermination. Therefore, the idea that there is a human right to democracy is a threat to
the legitimate self-determination of peoples.
Responses to the Self-Determination Objection
I do not think that a human right to democracy limits a legitimate right to collective selfdetermination. But we must ask what the conditions for legitimacy are here. One,
legitimate collective self-determination usually implies that the society respects
uncontroversial and very urgent human rights. Two, considerations of legitimate selfdetermination are usually thought to require unanimity or near unanimity on the
alternative arrangements. In the absence of unanimity or near unanimity, it is unclear that
many would argue against the need for democracy. In this respect the above conditions
of near unanimity and broad participation are usually thought to be sufficient but not
necessary conditions. We need to explore these two conditions and what our reaction
ought to be when one or both are not met.
In reply then to the objection, the first thing to note is that if the arguments of this
paper are correct then there is substantial reason to think that in tolerating non-democratic
societies citizens of democratic societies are tolerating a very high risk of severe
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violations of uncontroversial and very urgent human rights. If the arguments of this
paper are correct, then toleration of non-democracies amounts in the normal case to
toleration of severe human rights violations. Normally then, the absence of minimally
egalitarian democracy seems to imply the absence of legitimate collective selfdetermination. Furthermore, the second condition is rarely met in societies except if they
are minimally egalitarian democracies. Non-democracies do not have near unanimity on
their non-democratic character, at least in the modern world. Democracies do have near
unanimity on the democratic structure. So it looks like in the usual case in the great
majority of societies that are non-democratic, neither condition holds. Hence, these
societies do not have legitimate collective self-determination.
The severity of this response can be mitigated in a number of different ways.
First, we might accept a weaker conception of collective self-determination and a
correspondingly weaker conception of international toleration, both of which can be
extended to non-democratic societies. We may think that it is important for a variety of
reasons for a society to arrive at democratic institutions on its own for the most part. We
may think that home-grown democratic institutions are much more stable and satisfying
than externally imposed ones. We may think that external intervention to impose
democracy is normally not very likely to succeed in the light of the facts that the
intervener’s interests do not usually coincide fully with the supposed beneficiary’s
interests and the intervener is not accountable to the supposed beneficiary. In this respect
we might have an instrumental argument for the weaker notion of collective selfdetermination as non-intervention. And we might have a correspondingly weaker notion
of toleration as non-intervention. We might reserve the stronger notion of toleration for
An Instrumental Argument for a Human Right to Democracy T. Christiano
41
democratic societies, where this consists in treating the society with a full kind of
equality in the international realm.
There are a number of other ways to act on the basis of a human right to
democracy than external intervention against contented non-democratic societies
(assuming that there are any). We can offer nonessential assistance to other societies
only on condition that they take steps to democratize. We can step in, in a variety of
ways, when an elite attempts to take over a democratic society by force or by fraud. We
can offer assistance to societies struggling to achieve democratic institutions.lv
Furthermore, my arguments for the human right to democracy do not require
perfect democracy or perfect justice. They defend minimally egalitarian democracy.
Hence they do leave significant room for local variation among societies in terms of the
kind of democratic system they adopt as well as the justice of the political system they
create. They do not resolve all issues and allow for room in which significant
disagreement can be expressed and different views can be realized. Minimally
egalitarian democracy is compatible with consociational democracy, majoritarian
democracy, presidential systems, parliamentary systems, proportional representation and
single member district representation as well as other forms of democracy. Furthermore,
democratic systems in also have authority to make decisions on issues relating to justice
as long as the decisions respect certain limits most notably the fundamental rights of
persons. In this sense, the argument I have provided for democracy leaves substantial
room for the self-determination of peoples. It does limit that room but so will any
conception of human rights.
An Instrumental Argument for a Human Right to Democracy T. Christiano
42
But I think that there is some interest in briefly thinking about the kinds of pure
cases of collective self-determination that Rawls and Cohen seem to have in mind.
Suppose it is true that the society in question nearly unanimously accepts both nondemocratic rule and the sorts of human rights violations we described and these occur.
Or suppose that the society in question nearly unanimously accepts non-democratic rule
but not the other kinds of human rights violations and these do not occur (anomalously).
What should we think in this case? Must the argument for a human right to democracy
imply that these societies must not be tolerated in the weak or the strong sense?
It is not clear to me that it does. There are at least two plausible political
principles that might be invoked here in support of the right of collective selfdetermination that do not conflict with the human right to democracy. The first principle
is the volenti principle: that one does not do injustice voluntarily to oneself. This
principle is often used to limit the impact of principles on persons. And if the near
unanimity for non-democracy holds perhaps we can say that the people involved are not
doing injustice. The second principle may attach to the human right to democracy and
may attach to many rights. It says that many rights come with normative powers that
permit one to waive the right in question. If we have near unanimity, perhaps we can say
that the members of the population of the non-democratic society are exercising the
normative powers attached to their rights to democracy to waive the right to democracy.
Either of these theoretical alternatives could explain why despite there being a human
right to democracy, a particular society need not be democratic. Furthermore, both of
these theoretical alternatives explain why the defenders of non-democratic societies
maintain the condition of near unanimity. The absence of unanimity would undermine
An Instrumental Argument for a Human Right to Democracy T. Christiano
43
the use of either one of the two principles to support non-democratic regimes. But it
would take us beyond the scope of this paper to explore these ideas further.
Conclusion
I have argued that there is a human right to democracy understood as a minimally
egalitarian democracy on the basis of three claims. One, there is strong moral
justification for states to realize minimally egalitarian democracy because of the fact that
such democracies are normally quite reliable in protecting fundamental human rights of
personal integrity. Societies that fall short of minimally egalitarian democracies are
normally reliable in not protecting such human rights. Two, there is moral justification
for the international community to attempt to protect and promote these democracies
because they protect fundamental human rights to which virtually all are committed and
because democracies ensure stability and reduce violence overall in the international
system. Three, the moral justification is accords an equal right to all members of the
society to defend their rights and hence what is justified has the appropriate structure of a
right.
The argument offered is relentlessly instrumental and mostly empirical. Many
might think that there is also a more intrinsic justification for democracy. I do not
disagree. But the instrumental argument is of particular importance because, one, it ties
the justification of the human right to democracy to rights that are especially urgent and
universally recognized. Two, it supplies an argument for democracy on the basis of
considerations that are normally beyond the authority of democracy. As I see it, no
democracy no matter what the quality has the right to authorize torture, state murder or
An Instrumental Argument for a Human Right to Democracy T. Christiano
44
disappearance, or political imprisonment. These acts fall outside the authority of
democracy (though there may be some legitimate role of democracy in defining the exact
boundaries of these rights for a particular society). Democracy loses its authority to the
extent that it systematically violates these rights.lvi The only moral relationship
democracy could have to these rights is a protective one. So it is of great interest to see
that in fact minimally egalitarian democracy is the best kind of institutional setup we
know of for protecting these rights.lvii
i
See John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999)
pp. 71-81. See also Joshua Cohen “Is There A Human Right to Democracy?” in The
Egalitarian Conscience, ed. Christina Sypnovich (Oxford: Oxford University Press,
2006); and see Jon Mandle, Global Justice (Cambridge: Polity Press, 2006), pp. 54-55;
and see David Reidy, “Political Authority and Human Rights,” and Allysa Bernstein, “A
Human Right to Democracy? Legitimacy and Intervention,” in Rawls’s Law of Peoples:
A Realistic Utopia? ed. David Reidy and Rex Martin (Oxford: Blackwell, 2006).
ii
See, for example, Charles Beitz, The Idea of Human Rights (Oxford: Oxford University
Press, 2009), pp. 174-186 and Andrew Altman and Christopher Wellman, A Liberal
Theory of International Justice (Oxford: Oxford University Press, 2009) pp. 31-2.
iii
For a sample of some recent work, see James Griffin, On Human Rights (Oxford:
Oxford University Press, 2008), p. 255.
iv
See Allen Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations
for International Law (Oxford: Oxford University Press, 2004), pp. 145-47 where he
points to the possibility of this kind of argument. I think something like this kind of
argument is also made in part in Henry Shue’s Basic Rights: Subsistence, Affluence and
U. S. Foreign Policy rev. ed. (Princeton: Princeton University Press, 1996), pp. 74-8.
v
I am working on this kind of argument in my “An Intrinsic Argument for a Human
Right to Democracy,” ms. See also Carol Gould, Globalizing Democracy and Human
Rights (Cambridge: Cambridge University Press, 2004) and James Bohman’s Democracy
An Instrumental Argument for a Human Right to Democracy T. Christiano
45
Across Borders (Cambridge, MA: MIT Press, 2007) for other distinct attempts to provide
intrinsic arguments for democracy.
vi
See Thomas Pogge, World Poverty and Human Rights (London: Polity Press, 2002).
vii
See Charles Beitz, The Idea of Human Rights for this two level (states and then
international institutions) view of human rights. Beitz’s view is one of necessary and
sufficient conditions, I only assert a set of sufficient conditions for a human rights here.
viii
See L. W. Sumner, The Moral Foundation of Rights (Oxford: Oxford University Press,
1987) pp. 144-5 for the distinction between weak and strong moral justification of a
convention.
ix
A natural way of thinking of human rights as protecting fundamental human interests is
to say that human rights are necessary conditions of a minimally decent human life. But I
do not think this will do because not all human rights have this character. This
widespread view may give a good account of the right to adequate material subsistence
but I doubt that it covers such rights as the right not to be tortured or the right not to be
enslaved. Unless “minimally decent” human life is understood in a highly moralized way
it is hard to see how having been tortured will necessarily undermine such a life and it
seems to be the case that slaves have been able to make decent lives for themselves
despite the profoundly oppressive treatment they receive. The attempt to connect all
human rights to a minimally decent human life ignores the resilience of human beings in
the face of extremely oppressive treatment. In any case, it seems that if we think that
human rights are necessary conditions for a minimally decent human life, it seems clear
that there is no human right to democracy (unless we have a highly moralized conception
of a minimally decent human life). For the view of human rights as necessary conditions
for a minimally decent human life, see Allen Buchanan, Justice, Legitimacy and SelfDetermination (Oxford: Oxford University Press, 2004), James Nickel, Making Sense of
Human Rights rev. ed. (Oxford: Blackwell, 2006), Jon Mandle, Global Justice (London:
Polity Press, 2006) and David Miller, National Responsibility and Global Justice
(Oxford: Oxford University Press, 2007) for accounts of human rights of this sort.
x
See Charles Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009)
for
xi
See International Covenant on Civil and Political Rights (December 16, 1966, 999 U.
N. T. S. 171) Art. 4
xii
See Vienna Convention on the Law of Treaties (May 23, 1969, U. N. Doc. A/CONF.
39/27), Arts. 53 and 64, which say that any treaty that conflicts with a peremptory norm
of international law is void even if the peremptory norm emerges after the treaty is
ratified. See also Barry Carter, Phillip R. Trimble and Curtis Bradley, International Law
4th ed. (New York: Aspen Publishers, 2003), p. 107-8.
xiii
Steven C. Poe; C. Neal Tate; Linda Camp Keith, “Repression of the Human Right to
Personal Integrity Revisited: A Global Cross-National Study Covering the Years 19761993,” International Studies Quarterly, Vol. 43, No. 2. (Jun., 1999), pp. 291-313
xiv
See Polity IV Project: Political Regime Characteristics and Transitions, 1800-2007
http://www.systemicpeace.org/polity/polity4.htm
xv
See Tatu Vanhanen, “A New Dataset for Measuring Democracy, 1810-1998,” Journal
of Peace Research Vol. 37, n. 2 2000, pp. 251-265 for an account of the Vanhanen
method of measuring democracies.
An Instrumental Argument for a Human Right to Democracy T. Christiano
xvi
46
Here is a brief description of the political terror scale that is used by Poe et al. as
described in Davenport. “Regarding the indicator itself, (Poe, Tate, and Keith 1999, 297)
state that, "(t)he application of the criteria to information about... the coding categories
and their criteria are: '1'-Countries (within this category are) under a secure rule of law,
people are not imprisoned for their views, torture is rare or exceptional (and) political
murders are extremely infrequent." Examples include the US, Venezuela 1977 and 1981,
and Senegal 1976-1981; '2' (Within this category) "(t)here is a limited amount of
imprisonment for nonviolent political activity. However, few persons are affected, torture
and beating are exceptional political murder is rare." Examples include Mexico 1976 and
1983 as well as Gambia 1982; '3' (Within this category) "(t)here is extensive political
imprisonment, or a recent history of such imprisonment. Execution or other political
murders and brutality may be common. Unlimited detention, with or without trial, for
political views is accepted." Examples include Cuba 1976, Cameroon 1979, and Poland
1976-1977; '4'-(Within this category) "(t)he practices of (Level 3) are expanded to larger
numbers. Murders, disappearances are a common part of life. In spite of its generality, on
this level terror affects primarily those who inter- est themselves in politics or ideas."
Examples include El Salvador 1978-1992 and Rwanda 1990-1991; and, '5'-(Within this
category) "(t)he terrors of (Level 4) have been expanded to the whole population. The
leaders of these societies place no limits on the means or thoroughness with which they
pursue personal or ideological goals." Examples include Haiti 1991, Sudan 1988,
Rwanda 1994-1996, and China 1989.” See Davenport n 11 below, pp. 544-545.
xvii
See Political Terror Scale 1976-2008 at http://www.politicalterrorscale.org/ for more
discussion. And see Reed Wood and Mark Gibney, “The Political Terror Scale (PTS): A
Re-introduction and a Comparison to CIRI” Human Rights Quarterly (forthcoming) for a
discussion of the methods of measurement.
xviii
Christian Davenport and David A. Armstrong, II, “Democracy and the Violation of
Human Rights: A Statistical Analysis from 1976 to 1996,” American Journal of Political
Science, Vol. 48, No. 3 (Jul., 2004), pp. 538-554. See also, Bruce Bueno de Mesquita, G.
W. Downs, A. Smith, and F. M. Cherif, “Thinking inside the Box: A Closer Look at
Democracy and Human Rights,” International Studies Quarterly 49 (3) 2005: 439-57.
For a fuller discussion see, Christian Davenport, State Repression and the Domestic
Democratic Peace (Cambridge: Cambridge University Press, 2007).
xix
This is the main distinctive contribution of Hafner-Burton and Tsutui in footnote 2.
xx
See Davenport and Armstrong, p. 548 and Bueno de Mequita, p. 448.
xxi
See Adam Przeworski Michael E. Alvarez, Jose Antonio Cheibub, and Fernando
Limongi, Democracy and Development: Political Institutions and Well Being in the
World 1950-1990 (Cambridge: Cambridge University Press, 2000) for the most extensive
statistical studies of the relationships between democracy and development that I know
of.
xxii
See Christian Davenport, State Repression and the Domestic Democratic Peace chap
5 for an in depth examination of the statistical evidence of democratic violations of
personal integrity rights under wartime conditions.
xxiii
Bueno de Mesquita et al. p. 452.
xxiv
I thank Gary Goertz for making me less complacent about this issue.
An Instrumental Argument for a Human Right to Democracy T. Christiano
47
This is emphasized both in Bueno de Mesquita et. al.’s paper and in Davenport, State
Repression and the Domestic Democratic Peace, chaps 4 and 5.
xxvi
See See John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press,
1999), pp. 77-78 and Joshua Cohen, “Is There A Human Right to Democracy?” in The
Egalitarian Conscience, ed. Christina Sypnovich (Oxford: Oxford University Press,
2006), pp. 226-248, esp. 233.
xxvii
See Joshua Cohen, “Is There A Human Right to Democracy?” for this kind of view.
xxviii
The one element that is missing is the corporatist structure in which groups are
represented in the assemblies. I haven’t found a regime that has these qualities among
contemporary regimes. I have assumed that popular elections of the legislature and some
executives can stand in for this. But this may make an as yet undetected difference.
xxix
See Monty Marshall and Keith Jaggers, Polity IV Data Set User’s Manual (2000)
Addendum for a discussion of the different regime types. See also the Polity IV Data Set
for country descriptions of China and Iran. These features of high quality democracies
are emphasized in Davenport, State Repression and the Domestic Democratic Peace
chap. 4 as well as in Bueno de Mesquita et al. “Thinking inside the Box,” p. 453.
xxx
For Oman’s political system, see the country reports of the Polity IV data base and the
Freedom House data base. For an account of its relatively light repression of personal
integrity rights, see the Political Terror Scale country report for Oman. But see also the
significantly less positive country report of freedom house on civil rights in Oman. It is
clearly an outlier and this seems to depend on the will of the particular sultan in power.
xxxi
This seems to satisfy Rawls’s requirement for the case for liberal democracy. He
says, “Should the facts of history, …show that hierarchical regimes are always or nearly
always, oppressive and deny human rights, the case for liberal democracy is made.”
Rawls, The Law of Peoples, p. 79. Joshua Cohen seems to say the same: “If democracy
is a requirement for avoiding unacceptable circumstances, we do have a case for it…” (p.
245)
xxxii
Further confirmation of this can be seen in David Cingranelli and Mikhail Filippov’s
“Electoral Rules and Incentives to Protect Human Rights,” The Journal of Politics Vol
72, no. 1 January 2010, Pp. 1-15, where they argue that systems with proportional
representation and individual accountability score better on physical integrity rights than
single member district representation.
xxxiii
In this respect, the human right to democracy that I am giving is not maximalist in
Joshua Cohen’s sense and leaves ample room for the collective self-determination of
peoples. See his “Is there a Human Right to Democracy?” pp. 232-233.
xxxiv
See Gary Goertz, International Norms and Decision-Making: A Punctuated
Equilibrium Model (New York: Rowman and Littlefield, 2003) chap. 11.
xxxv
See Beth Simmons, Mobilizing for Human Rights (Cambridge: Cambridge University
Press, 2009) chap. 4.
xxxvi
See James D. Morrow, “When Do States Follow the Laws of War?” American
Political Science Review Vol. 101, N 3, August 2007, pp. 559-572.
xxxvii
In addition, it should be noted that states do in effect take the citizens of other states
into account when they negotiate with those other states. This will play a role in the
second main argument of this paper.
xxv
An Instrumental Argument for a Human Right to Democracy T. Christiano
48
xxxviii
See Beth Simmons, Mobilizing for Human Rights (Cambridge: Cambridge
University Press, 2009)
xxxix
See Oona Hathaway, “Do Human Rights Treaties Make a Difference?” Yale Law
Journal June 2002, pp. 1935-2042
xl
Emily Hafner-Burton and Kiyoteru Tsutsui, “Human Rights in a Globalizing World:
The Paradox of Empty Promises” American Journal of Sociology Volume 110 Number 5
(March 2005): 1373–1411. See also Linda Camp Keith, “The United Nations
International Covenant on Civil and Political Rights: Does It Make a Difference in
Human Rights Behavior?” Journal of Peace Research 36 (1) 1999: 95-118.
xli
Jack Goldsmith and Eric Posner, The Limits of International Law (New York: Oxford
University Press, 2006).
xlii
See Simmons and Hafner-Burton and Tsutui as well as Hathaway above in footnotes 2
and 3. See also Eric Neumayer, “Do International Human Rights Treaties Improve
Respect for Human Rights? Journal of Conflict Resolution Vol. 49 No. 6, December
2005 925-953 and Oona Hathaway, “Why Do Countries Commit to Human Rights
Treaties? Journal of Conflict Resolution Volume 51 Number 4 August 2007 588-621
xliii
See Simmons, Mobilizing for Human Rights, p. 276.
xliv
See Simmons, Mobilizing for Human Rights, Appendix 2, pp. 396-7.
xlv
There is a mountain of evidence in favor of this thesis. Probably the most prominent
defender is Bruce Russett and Harvey Starr, “From Democratic Peace to Kantian Peace:
Democracy and Conflict in the International System,” Handbook of War Studies II ed.
Manus Midlarsky (Ann Arbor: University of Michigan Press, 2000): pp. 93-128.
xlvi See Beth A. Simmons, “Compliance with International Agreements,” 1 ANN. REV. POL.
SCI. 75, 77, 83–85 (1998).
xlvii
Allen Buchanan has suggested to me that the right to participate as an equal in
collective decision-making might be thought to be distinct from the right to a fair trial in
one respect. The latter right can be exercised effectively merely as an individual right.
But the democratic right requires for its effectiveness that every citizen have this right
and that the rights be equal. In this sense the right to democracy has an essentially
collective dimension. To illustrate, if I am the only person of a particular group that
shares important distinctive interests to have the right to vote, my right to vote will not be
exercised effectively because I need others to go along with me for the exercise of my
right to be effective. In this respect, one person’s possession of a democratic right
depends on others’ possession. But this aspect of the democratic right is also an essential
part of the protective capacity of democracy. It is only the minimally equal possession of
this right that gives the fullest protection to the other human rights people have.
In fact however, the rights to a fair trial also have an essentially collective
dimension. For, it is not clear that one can receive a fair trial in a society in which no one
else has a fair trial. The others will be frightened by the prospect of arbitrary criminal
prosecution. It is true that I can effectively exercise my right to a fair trial without others
also exercising their rights but I cannot possess such a right without many others
possessing it. The only rights that are genuinely deeply individual are the rights of
personal integrity. My right not to be tortured can be protected even while no one else’s
is and the same goes for my right to life. In contrast, the rights to freedom either do not
An Instrumental Argument for a Human Right to Democracy T. Christiano
49
exist or cannot be exercised effectively without many others having the same rights. My
rights to free expression and free association simply cannot be effectively exercised if
many others like me do not have these rights. They all have a collective dimension.
xlviii
See Charles Beitz, The Idea of Human Rights, 178-180 for this argument.
xlix
See Przeworski et al. Democracy and Development for a powerful set of arguments
that democracies do not do worse than non-democracies in terms of overall growth and
that in fact they do significantly better than non-democracies in terms of per capita
growth. See also Morton Halperin, Joseph Siegle and Michael Weinstein, “Why
Democracies Excel,” Foreign Affairs September/October 2004 pp. 57-71. See also their
book The Democracy Advantage 2nd ed. (New York: Routledge, 2010). And Amartya
Sen has also argued for the economic virtues of democracy, especially regarding the poor
in Development as Freedom (New York: Knopf, 1999).
l
See the United Nations Crime Trends Statistics on Homicides.
li
I think this is the gist of Beitz’s objection on p. 179.
lii
Of course these rights are non-derogable in international law (see ICCPR Article 4
section 2) and I think that makes sense but that is compatible with there being
circumstances in which the rights are morally overridden.
liii
Here we can see that the human right to democracy has a quite different ground from
Shue’s basic right to participation. Shue thinks of such a basic right as constitutive of
other rights, not merely instrumental to their protection. Of course, Shue also does not
defend a right to democracy since he nowhere argues for a right to equal participation.
liv
This is roughly the conception Joshua Cohen endorses in his “Is There A Human Right
to Democracy?” in The Egalitarian Conscience, ed. Christina Sypnovich (Oxford:
Oxford University Press, 2006), pp. 233-234. I compress his three requirements into the
second of mine above. The first requirement is expressed on page 234 when he says that
since, “ democratic ideas lack substantial resonance in the political culture, or the history
and traditions of the country….the value of collective self-determination itself
recommends resistance to the idea that the political society should be required to meet the
standard expressed in a principle of equal basic liberties…” (234) Rawls seems to think
that self-determination is an important consideration underwriting the toleration of decent
consultation hierarchies. See The Law of Peoples, p. 61. Another defender of something
like a self-determination argument for toleration is Jon Mandle in Global Justice. See
also the essays by David Reidy and Allysa Bernstein in Rawls’s Law of Peoples ed.
David Reidy and Rex Martin (Oxford: Blackwell, 2004). David Miller is also a defender
of the idea of national self-determination, but he seems to think that liberal democracy is
an important though not necessary condition of national self-determination. See his On
Nationality (Oxford: Oxford University Press, 1995), pp. 89-90.
lv
For the many ways in which international institutions can act on a human right to
democracy see Thomas Franck, Fairness in International Law and Institutions (Oxford:
Oxford University Press, 1996).
lvi
I defend these theses in my The Constitution of Equality: Democratic Authority and Its
Limits (Oxford: Oxford University Press, 2008) chap. 7.
lvii
I would like to thank Jerry Gaus, Allen Buchanan, David Schmidtz, Loren Lomasky,
Gary Goertz, Kathryn Sikkink, Andrew Williams, Houston Smit, Katherine Barnes,
Suzanne Dovi, Louis-Phillipe Hodgson, Alex Verhoeve, David Gibbs, James Nickel,
An Instrumental Argument for a Human Right to Democracy T. Christiano
50
Margaret Gilbert, Cindy Holder, Jeremy Webber, Colin MacLeod and others for very
helpful discussion of earlier drafts of this paper and its ideas.