Agential Pluralism: A Philosophy of Fundamental Rights

Abstract

In a battle of words, few weapons are stronger than fundamental rights. Whether we debate wars, climate change, refugees or healthcare, it always seems to boil down to figuring out out who has an important right to what. One would therefore think we have a clear idea of what these crucial rights standards entail - but one would be wrong. We debate the meaning of fundamental rights as much as we debate who actually violates them. Therefore, we need to find out if, and if so, why, fundamental rights matter. This dissertation joins the work of many philosophers, lawyers and activists who have taken up this question, and offers a theory that helps us to grasp how we should think, argue and speak about fundamental rights. The thesis begins by critiquing the work of Jeremy Waldron. It argues that his separation of questions of political authority and moral philosophy is misguided, and that any proper understanding of democracy must be built on strong moral philosophical reasoning. The thesis therefore turns to exploring transcendental moral arguments, in particular those offered by Jürgen Habermas and Alan Gewirth. The thesis then argues we must set Habermas' deliberative approach aside and focus on an adaptation of Alan Gewirth's moral theory of agency, which is called Agential Pluralism. Contrary to Gewirth, it emphasizes both the importance of securing the generic and safeguarding the particular conditions of acting succesfully. This interpretation is then elaborated and applied to the practice of politics, giving rise to an account of fundamental rights. This account is contrasted with Ronald Dworkin's influential work on the meaning of rights. In the end, the thesis defines fundamental rights, quite simply, as rights to those goods that are of great moral importance. This moral importance is established by arguing a good is essential to realizing a person's rational conception of how his or her life should be lived. The thesis provides no conclusive list of rights, but instead illustrates various paths toward arguing a good can serve as the object of a fundamental right. The thesis then applies its theory to debates about the justification of judicial review and to proportionality as the dominant methodology of interpreting fundamental rights. It offers a qualified justification of safeguarding fundamental rights through judicial review and endorses proportionality as the correct method of interpreting rights. Finally, the thesis reflects on some challenging issues related to proportionality testing, such as the incommensurability of moral values.