Perry: Human Rights Theory, 3 page 1

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Emory University School of Law

Legal Studies Research Paper Series

Research Paper No. 15-354

HUMAN RIGHTS THEORY, 3:

THE THREE PILLARS OF DEMOCRACY:

THE HUMAN RIGHTS TO DEMOCRATIC GOVERNANCE,
INTELLECTUAL FREEDOM, AND MORAL EQUALITY

Michael J. Perry

This paper can be downloaded without charge from:

The Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract=2610941
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Human Rights Theory, 3:

The Three Pillars of Democracy:

The Human Rights to Democratic Governance,
Intellectual Freedom, and Moral Equality1

Michael J. Perry2

Abstract

This is the third in a series of papers I began posting in late April

2015. Each paper addresses an issue, or a set of related issues, in
Human Rights Theory. The overarching subject of the first two papers:
the morality of human rights. For the first two papers, see “Human Rights
Theory, 1: What Are ‘Human Rights’? Against the ‘Orthodox’ View”
(2015), http://ssrn.com/abstract=2597403; “Human Rights Theory, 2:
What Reason Do We Have, if Any, to Take Human Rights Seriously?
Beyond ‘Human Dignity’” (2015), http://ssrn.com/abstract=2597404. In the
third and fourth papers, I pursue the implications of the morality of human
rights for democracy.

As I explained in “Human Rights Theory, 2,” the “act towards all

human beings in a spirit of brotherhood” imperative is the normative
ground of human rights: Each of the human rights articulated in the
Universal Declaration of Human Rights (UDHR) and/or in one or more of
the several international human rights treaties that have followed in the
UDHR’s wake is a specification of what the imperative, in conjunction with
all other relevant considerations, is thought to forbid or to require. I focus
in this, the third paper on three human rights that are articulated both in
the UDHR and in the International Covenant on Civil and Political Rights

1
c Michael J. Perry, 2015.
2
Robert W. Woodruff Professor of Law, Emory University School of Law; Senior
Fellow, Center for the Study of Law and Religion, Emory University School of Law.
Perry: Human Rights Theory, 3 page 3
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(ICCPR): the right to democratic governance, the right to intellectual

freedom, and the right to moral equality. Each of the three rights is a
compelling specification of what the “in a spirit of brotherhood” imperative
forbids or requires; each is also one of the three pillars of democracy—
“democracy” in the broad modern understanding of the term. Therefore, a
commitment to the morality of human rights—a commitment, more
precisely, to what I described in “Human Rights Theory, 2” as the heart of
the morality of human rights, namely, the “in a spirit of brotherhood”
imperative—not only supports but requires a commitment to democracy—
a commitment, that is, to the three pillars of democracy: the human rights
to democratic governance, intellectual freedom, and moral equality.

As I explain in the fourth paper, which is a companion to this paper,

a commitment to the “in a spirit of brotherhood” imperative—a
commitment, in that sense, to the morality of human rights—requires a
commitment not only to democracy but also to certain limitations on
democracy—certain limitations on what democratic government may do
to, and certain limitations on what democratic government may refrain
from doing for, the human beings over whom it exercises power. See
“Human Rights Theory, 4: Democracy Limited” (2015),
http://ssrn.com/abstract=2610942.

+++++++++++++++

As I explained in an earlier paper,3 the “act towards all human beings

in a spirit of brotherhood” imperative is the normative ground of human
rights: Each of the human rights articulated in the Universal Declaration of
Human Rights (UDHR) and/or in one or more of the several international
human rights treaties that have followed in the UDHR’s wake is a
specification of what the imperative, in conjunction with all other relevant
considerations, is thought to forbid or to require.

I focus in this paper on three human rights that are articulated both in
the UDHR and in the International Covenant on Civil and Political Rights
(ICCPR): the right to democratic governance, the right to intellectual
freedom, and the right to moral equality. Each of the three rights, as I am

3
See Michael J. Perry, “Human Rights Theory, 2: What Reason Do We Have, if
Any, to Take Human Rights Seriously? Beyond ‘Human Dignity’” (2015),
http://ssrn.com/abstract=2597404.
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about to explain, is a compelling specification of what the “in a spirit of

brotherhood” imperative forbids or requires; each is also, as I note in the
final section of this paper, one of the three pillars of democracy—
“democracy” in the broad modern understanding of the term. Therefore, a
commitment to the morality of human rights—a commitment, more
precisely, to what I described in an earlier paper as the heart of the
morality of human rights, namely, the “in a spirit of brotherhood”
imperative4—not only supports but requires a commitment to democracy—
a commitment, that is, to the three pillars of democracy: the human rights
to democratic governance, intellectual freedom, and moral equality.

The Three Pillars of Democracy

“Democracy” has sometimes been understood narrowly, along the

lines of what Andrew Koppelman has called Joseph Schumpeter’s

modest definition of democracy: "the democratic method is that

institutional arrangement for arriving at political decisions in
which individuals acquire the power to decide by means of a
competitive struggle for the people's vote." The people
influence political decisions by voting in elections and "do not
control their political leaders in any way except by refusing to
reelect them or the parliamentary majorities that support them.”5

4
See id.
5
Andrew Koppelman, "Talking to the Boss: On Robert Bennett and the
Counter-Majoritarian Difficulty," 95 Northwestern University Law Review 955, 956-57
(2001) (quoting Joseph A. Shumpeter, Capitalism, Socialism, and Democracy (3d ed.
1950)). Koppelman adds: “The politician is vulnerable to losing his office unless he
continuously manages to attract votes. This creates an incentive for him to pay
attention to what voters want. And this incentive guarantees that, in a democracy, the
government will not act in a way that attracts the wrath of an electoral majority—or, if it
does, that it won't keep it up for long.” Id. According to Koppelman, "Shumpeter is
entirely free of . . . mushy sentimentalism about majoritarianism . . ." Id. at 956. See
also Richard A. Posner, "Enlightened Despot," New Republic, Apr. 23, 2007, at 53, 54:
"Political democracy in the modern sense means a system of government in which the
key officials stand for election at relatively short intervals and thus are accountable to
the citizenry."
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Even in the narrow, Shumpeterian sense of the term, not every

country that advertises (or advertised) itself as a democracy is (was) in fact
a democracy. The official name of North Korea, translated into English, is
the Democratic People's Republic of Korea; the official name of East
Germany, translated into English, was the German Democratic Republic.
In 2008, Kenneth Roth, Executive Director of Human Rights Watch,
reported in his introduction to HRW’s annual report—an introduction titled
“Despots Masquerading as Democrats”—that "[a]s the Burmese junta
rounded up protesting monks and violently suppressed dissent, it spoke of
the need for 'disciplined democracy.' China has long promoted 'socialist
democracy,' by which it means a top-down centrism that eliminates minority
views."6

“Democracy” is now widely understood more broadly than the

Shumpeterian understanding, to include governance that proceeds in
accord with the rights to intellectual freedom and moral equality. What I
mean by “democracy,” when I use the term in this book, is democracy in its
broad modern understanding, which Aidan O'Neill has fittingly named

6
Kenneth Roth, "Despots Masquerading as Democrats," in Human Rights
Watch, World Report 1, 7 (2008). See Associated Press, "Report Says Democracies
Enable Despots," New York Times, Jan. 31, 2008:

Authoritarian rulers are violating human rights around the world and
getting away with it largely because the U.S., European and other
established democracies accepts their claims that holding elections makes
them democratic, Human Rights Watch said in its annual report [today].

By failing to demand that offenders honor their citizens' civil and

political rights and other requirements of true democracy, Western
democracies risk undermining human rights everywhere, the international
rights watchdog said.

Still, Kenneth Roth, Human Rights Watch's executive director,

wrote in a segment of the report called "Despots Masquerading as
Democrats": "It is a sign of hope that even dictators have come to believe
that the route to legitimacy runs by way of democratic credentials."
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“post-Nuremberg democracy.”7 The three rights discussed in this

chapter—the internationally recognized human rights to democratic
governance, intellectual freedom, and moral equality—are the three pillars
of democracy, in this sense: A country is truly a “democracy,” in the broad
modern understanding of the term, if, and only if, and only to the extent, its
government respects and protects all three rights.8 Because each of the
three rights is both a compelling specification of the “in a spirit of
brotherhood” imperative and one of the three pillars of democracy, a
commitment to the imperative—a commitment, in that sense, to the
morality of human rights—not only supports but requires a commitment to
democracy.9

7
Aidan O'Neill, "Roman Catholicism and the Temptation of Shari'a," 15 Common
Knowledge 269, 297 et seq. (2009).
8
The “only to the extent” bears emphasis: Sometimes the serious question is
not whether but to what extent a country is truly a democracy. Cf. Martin Gilens,
Affluence and Influence: Economic Inequality and Political Power in America (2012);
Martin Gilens and Benjamin I. Page, “Testing Theories of American Politics: Elites,
Interest Groups, and Average Citizens” (Apr. 9, 2014),
http://www.princeton.edu/~mgilens/Gilens%20homepage%20materials/Gilens%20and%
20Page/Gilens%20and%20Page%202014-Testing%20Theories%203-7-14.pdf. Gilens
and Page conclude:

Despite the seemingly strong empirical support in previous studies

for theories of majoritarian democracy, our analyses suggest that
majorities of the American public actually have little influence over the
policies our government adopts. Americans do enjoy many features
central to democratic governance, such as regular elections, freedom of
speech and association, and a widespread (if still contested) franchise.
But we believe that if policymaking is dominated by powerful business
organizations and a small number of affluent Americans, then America’s
claims to being a democratic society are seriously threatened.

Id. at 24.
9
For a book-length argument that, worldwide, democracy has been on the wane
in recent years, see Joshua Kurlantzick, Democracy in Retreat: The Revolt of the
Middle Class and the Worldwide Decline of Representative Government (2013). Many
recent op-eds point in the same direction. See, e.g., Steven Erlanger, “Are Western
Values Losing Their Sway?,” New York Times, Sept. 12, 2015; Roberto Foa and
Yascha Mounk, “Across the Globe, A Growing Disillusionment with Democracy,” New
Perry: Human Rights Theory, 3 page 7
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The Human Right to Democratic Governance

Article 21 of the UDHR states:

(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in

his country.

(3) The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and
genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free
voting procedures.

Article 25 of the ICCPR, which is substantially identical to Article 21 of the

UDHR, states:

Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 [i.e., race, colour,
sex, language, religion, political or other opinion, national or
social origin, property, birth or other status ] and without
unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or

through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections

which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of the
will of the electors;

(c) To have access, on general terms of equality, to public

service in his country.

York Times, Sept. 15, 2015. The twelve contributors to the “Is Democracy in Decline?”
symposium published in the January 2015 issue of the Journal of Democracy disagree
among themselves about whether democracy is in fact in decline.
Perry: Human Rights Theory, 3 page 8
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There is, then, as both Article 21 of the UDHR and Article 25 of the
ICCPR make clear, an internationally recognized human right to democratic
governance.10 Moreover, Article 29(2) of the UDHR presupposes that there
is such a right; Article 29(2) states: “In the exercise of his rights and
freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a
democratic society.” (Emphasis added.) Similarly, Articles 21 and 22 of
the ICCPR presuppose that there is a human right to democratic
governance; Articles 21 and 22 state that government may regulate “the
right of peaceful assembly” (Article 21) and “the right to freedom of
association with others” (Article 22) if, and only if, the regulation satisfies
certain strict conditions, one of which is “necessary in a democratic
society.”

Two points bear emphasis. First: As the Siracusa Principles on the

Limitation and Derogation of Provisions in the International Covenant on
Civil and Political Rights, promulgated by the United Nations in 1984, put
the point: “[T]here is no single model of a democratic society.”11 Several

10
See Henry J. Steiner, “Political Participation as a Human Right,” 1 Harvard
Human Rights Yearbook 77 (1988); Thomas M. Franck, “The Emerging Right to
Democratic Governance,” 86 American Journal of International Law 46 (1992).
11
The Siracusa Principles then state: “[A] society which recognizes and
respects the human rights set forth in the United Nations Charter and the Universal
Declaration of Human Rights may be viewed as [being a democracy].” United Nations,
Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination
and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of
Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc
E/CN.4/1984/4 (1984), reprinted at 7 Human Rights Quarterly 3 (1985). See Henry J.
Steiner, “Do Human Rights Require a Particular Form of Democracy?,” in Eugene
Cotran and Adel Omar Sherif, eds., Democracy, the Rule of Law and Islam 1193
(1999); Thomas Christiano, “An Egalitarian Argument for a Human Right to
Democracy,” in Human Rights: The Hard Questions 301, 323-24 (Cindy Holder and
David Reidy, eds., 2013); Jure Vidmar, “Judicial Interpretations of Democracy in Human
Rights Treaties,” 3 Cambridge Journal of International and Comparative Law 1 (2014).
Perry: Human Rights Theory, 3 page 9
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institutional versions of democratic governance—not just one—are

consistent with the right to democratic governance.12 Second: Whether
and to what extent democratic governance can be established in a
particular country depends on whether and to what extent the material and
cultural infrastructure that is prerequisite to democratic governance exists
in that country. “[D]emocracy cannot put down roots in stony ground.”13
The right to democratic governance therefore obviously if implicitly requires
that if in a country the necessary infrastructure does not exist or is
underdeveloped, the government do all that it practically can, as quickly as
it practically can, to nurture the development of the necessary
infrastructure.14

Why is the right to democratic governance not merely a plausible but

a compelling specification of the “in a spirit of brotherhood” imperative? It
is no part of the answer that as a mode of governance, democracy is
faultless. Democracy is painfully far from faultless.15 (Alexis de
Tocqueville wrote, in Democracy in America, that “[i]ts faults strike one at
first approach, but its qualities are only discovered at length.”16) The
answer is that democracy does something that its principal real-world rival,
autocracy, does not do. By “autocracy,” I mean “any society in which
12
Thomas Christiano lists several versions: “consociational democracy,
majoritarian democracy, presidential systems, parliamentary systems, proportional
representation and single-member district representation as well as other non-
representative forms of democracy.” Christiano, n. #, at 324.
13
See “What’s Gone Wrong with Democracy,” The Economist, Mar. 1, 2014:
“[D]isillusioned American neoconservatives such as Francis Fukuyama, an American
political scientist, saw [the failure of democracy in postwar Iraq] as proof that democracy
cannot put down roots in stony ground.”
14
See Allen Buchanan, The Heart of Human Rights 165 (2013): “The right to
democracy, understood in a suitably expansive way, entails very demanding duties that
involve massive social investment in institutions, extensive limitations on the liberties of
many individuals, and large-scale social practices . . .”
15
See “What’s Gone Wrong with Democracy,” n. #.
16
Alexis de Tocqueville, Democracy in America 22 (Harvey C. Mansfield and
Delba Winthrop, eds., 2000 [1835-40]).
Perry: Human Rights Theory, 3 page 10
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leaders do not face open elections and where the free flow in information is
subject to political control. Strictly speaking, autocracy means the self-
sustaining rule of a single individual, though in some cases individuals rule
as part of a small coterie of power holders . . . Some autocracies are
dictatorships and some are not. Some are more authoritarian than
others.”17 Unlike any version of autocracy, democracy—in the broad
modern understanding of the term, which I explain in the final section of this
chapter—gives the (adult) citizenry a meaningful opportunity—at its best,
democracy gives the citizenry as meaningful an opportunity as is
practicable—to determine, indirectly if not directly, what laws and other
public policies (consistent with human rights) shall govern their lives.
Democracy empowers the people themselves rather than “a single
individual” or “a small coterie of power holders” to determine what
laws/policies shall govern their lives. That, in a few words, is the
fundamental reason why democracy is better than any secular or religious
autocracy—better, indeed, than what Winston Churchill called “all those
other forms [of government] that have been tried from time to time”18—at
treating the members of the citizenry “in a spirit of brotherhood.” As John
Paul II put the point, democracy “[affirms] that the human person, unlike

17
David Runciman, The Confidence Trap: A History of Democracy in Crisis
from World War I to the Present xxii-xxiii (2013). According to one definition in the
Oxford English Dictionary, “autocracy” means: “More generally: the controlling
authority or influence of one person or group of people over another.” According to
Merriam-Webster (at merriam.webster.com): “a form of government in which a country
is ruled by a person or group with total power;” also “a country that is ruled by a person
or group with total power.”
18
In a speech before the House of Commons on Nov. 11, 1947, Churchill
famously stated: “[I]t has been said that democracy is the worst form of government
except all those other forms that have been tried from time to time.” The Official Report,
House of Commons (1947), vol. 444. Similarly, John Gardner suggests that “[t]he main
case for democracy is that . . . [i]t has been, as many have said, the least worst option.
Two cheers for it. I am a lot less cheery about the likely consequences of the coming
plutocracy.” John Gardner, “The Evil of Privatization” (2014),
http://ssrn.com/abstract=2460655. But cf. Alexander A. Guerrero, “Against Elections:
The Lottocratic Alternative,” 42 Philosophy & Public Affairs 135 (2014): “[T]here is a
legitimate alternative system—one that uses lotteries, not elections, to select political
officials—that would be better than electoral representative democracy.”
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animals and things, cannot be subjected to domination by others."19 Allen

Buchanan makes what I take to be substantially the same point: “[A]t least
under modern conditions in which the state looms so large in human life, a
proper public recognition of the equal basic moral status of all individuals
requires that competent individuals are to have a legal entitlement to
participate, as equals, in the most important processes by which the laws
governing their life together are created.”20 Similarly, Niko Kolodny argues
that “democracy is a particularly important constituent of a society in which
people are related to one another as social equals, as opposed to social
inferior or superiors.”21

There are other arguments in support of the right to democratic

governance,22 including self-regarding arguments that do not involve, as a
premise, the other-regarding “in a spirit of brotherhood” imperative or any
equivalent or similar other-regarding norm. My goal here, however, is to

19
John Paul II, The Gospel of Life: Evangelium Vitae 33 (1995).
20
Buchanan, n. #, at 164.

21
Niko Kolodny, “Rule Over None II: Social Equality and the Justification of
Democracy,” 42 Philosophy & Public Affairs 287 (2014). (In a related article, Kolodny
criticizes other efforts to justify democracy: Niko Kolodny, “Rule Over None I: What
Justifies Democracy?,” 42 Philosophy & Public Affairs 195 (2014).) There are
countless such statements in the academic literature. See, e.g., Russell Muirhead,
“The Politics of Getting It Right,” 26 Critical Review 115, 125 (2014): “Elections, or
counting citizens equally, are simply the most convincing way of recognizing the
equality of citizens.” Cf. Brian Leiter, “The Case against Free Speech” (2014),
http://ssrn.com/abstract=2450866, p. 37: “Democratic procedures . . . have dignitary
values. . . . Democratic procedures, at least when functioning, register (however
imperfectly) what people want or desire, and doing so has both a kind of dignitary value
as well as eudaimonic value for persons.”

22
See, e.g., Buchanan, n. #, at 164-67 (arguing “that the secure realization of
some other particular legal or moral right requires a legal entitlement to equal
participation.”). But cf. Ludvig Beckman, “The Right to Democracy and the Human
Right to Vote: The Instrumental Argument Rejected,” 13 Journal of Human Rights 381
(2014) (contending that the instrumental argument for the human right to vote does not
work).
Perry: Human Rights Theory, 3 page 12
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explain why the right to democratic governance is a compelling

specification of the “in a spirit of brotherhood” imperative.23

The Human Right to Intellectual Freedom

Article 19 of the UDHR states: “Everyone has the right to freedom of

opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.” Article 20(1) of the UDHR states:
“Everyone has the right to freedom of peaceful assembly and
association.”24 Article 19 of the ICCPR, which amplifies Article 19 of the
UDHR, states:

1. Everyone shall have the right to hold opinions without

interference.

2. Everyone shall have the right to freedom of expression; this

right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any
other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only
be such as are provided by law and are necessary:
23
In the United States, the law of democratic governance is complex and
scholarship concerning the law is specialized. See, e.g., Samuel Issacharoff, Pamela
Karlan, and Richard Pildes, eds., The Law of Democracy: Legal Structures of the
Political Process (4th ed. 2012); “Law and Democracy: A Symposium on the Law
Governing Our Democratic Process,” 81 George Washington Law Review 1783-2145
(2013).
24
Recall that according to Article 29(2) of the UDHR: “In the exercise of his
rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and respect for the
rights and freedoms of others and of meeting the just requirements of morality, public
order and the general welfare in a democratic society.”
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(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order

(ordre public), or of public health or morals.25

Article 21 of the ICCPR states: “The right of peaceful assembly shall be

recognized. No restrictions may be placed on the exercise of this right
other than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national security or
public safety, public order (ordre public), the protection of public health or
morals or the protection of the rights and freedoms of others.” Article 22 of
the ICCPR states, in relevant part, that “[e]veryone shall have the right to
freedom of association with others, . . .including the right to form and join
trade unions for the protection of his interests,” and that “[n]o restrictions
may be placed on the exercise of this right other than those which are
prescribed by law and which are necessary in a democratic society in the
interests of national security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the rights and
freedoms of others. . . .”

The foregoing UDHR and ICCPR provisions articulate rights that

together constitute an overarching right, which we may call, for want of a
better term, the right to intellectual freedom: the right to “freedom to seek,
receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice”—and to freedom to do so not only by oneself but
also in concert with others of one’s choosing.

Again, my goal in this chapter is to explain why each of the three

rights under discussion is a compelling specification of the “in a spirit of
brotherhood” imperative. With respect to the right to intellectual freedom,
the most straightforward such explanation is that because the right to

25
Article 20 of the ICCPR states: “1. Any propaganda for war shall be
prohibited by law. 2. Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
Perry: Human Rights Theory, 3 page 14
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democratic governance is a compelling specification of the imperative, so

too is the right to intellectual freedom: Respecting and protecting the right
to democratic governance—respecting and protecting the political
sovereignty of the people—requires respecting and protecting the people’s
right to “to seek, receive and impart information and ideas of all kinds.”
Indeed, we may fairly regard the right to intellectual freedom as, whatever
else it is, an indispensable aspect of the right to democratic governance.
Listen, in that regard, to an American founder, James Madison, in a
communication to W. T. Barry, Aug. 4, 1822: “A popular Government,
without popular information, or the means of acquiring it, is but a Prologue
to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern
ignorance: And a people who mean to be their own Governors, must arm
themselves with the power which knowledge gives.”26 A contemporary
articulation of the insight:

Democracy . . . has some preconditions. It depends on free

elections that, in turn, require free citizens. They must be
politically free to form and express their opinions, articulate their
interests and associate in order to invigorate their political
influence. Free media are an indispensable condition for
political freedom of the citizens. . . . Democracy itself cannot
guarantee these preconditions. They depend on the protection
of fundamental rights.27

The human right to intellectual freedom is, as I have just explained,

an aspect of the human right to democratic governance. It bears
emphasis, however, that the right is also an aspect of the human right that
is the subject of the next chapter: the human right to religious and moral
freedom, which protects the freedom to live one’s life in accord with one’s

26
http://press-pubs.uchicago.edu/founders/documents/v1ch18s35.html. For a
discussion of reasons why some governments that are not democracies protect, or
should want to protect—at least to a limited extent—the freedoms of speech and of the
press, see Ashutosh Bhagwat, “Free Speech Without Democracy,” UC Davis Law
Review (forthcoming), also available at http://ssrn.com/abstract=2478873.
27
Dieter Grimm, “The Democratic Costs of Constitutionalisation: The European
Case,” 21 European Law Journal 460, 463 (2015).
Perry: Human Rights Theory, 3 page 15
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religious and/or moral convictions and commitments. It would be a stunted

account of religious and moral freedom that did not include the freedom to
deliberate about various possible religious and/or moral convictions and
commitments—indeed, to deliberate even to the point of questioning one’s
own such convictions and commitments. (The ICCPR’s Article 18, which I
discuss at length in the next chapter, protects one’s “freedom to have or to
adopt a religion or belief of his choice.”) To deliberate well about religious
and/or moral convictions and commitments obviously requires that one
enjoy the intellectual freedom to do so.

My assumption in the preceding two paragraphs—not a controversial

assumption—is that a country whose intellectual environment is largely
unregulated by government (e.g., the United States) is generally a country
whose citizens have significantly greater access to accurate information
and ideas than do the citizens of a country whose intellectual environment
is largely regulated by government (e.g., China).28 This is not to deny that
a country whose intellectual environment is largely unregulated by
government can be and often is a country among whose citizens, for
surprisingly and depressingly lengthy periods of time, some plainly
inaccurate information and palpably ridiculous ideas have great currency.29

A final comment. The right to intellectual freedom is not—as a

practical matter, the right cannot be—unconditional (absolute); like many
other human rights—including the right to religious and moral freedom,
which I discuss at length in the next chapter—the right to intellectual
freedom is conditional: Government may regulate the right, but it may do
so, as Articles 19, 21, and 22 of the ICCPR make clear, if, and only if, the
regulation satisfies certain strict conditions. In the next chapter, I discuss
such conditions—conditions of the sort that govern application of the

28
Allen Buchanan’s elaboration and defense of what I take to be substantially
the same point is very helpful: Allen Buchanan, “Political Liberalism and Social
Epistemology,” 32 Philosophy & Public Affairs 95 (2004). On China, see, e.g., Murong
Xuecun, “Scaling China’s Great Firewall,” New York Times, Aug. 17, 2015.
29
Put another way, the assumption I make in the two paragraphs preceding the
paragraph accompanying this note does not deny the points Brian Leiter presses in
“The Case against Free Speech,” n. #.
Perry: Human Rights Theory, 3 page 16
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(conditional) right to religious and moral freedom as well as application of

the (conditional) right to intellectual freedom—in the course of explicating
the right to religious and moral freedom.30

The Human Right to Moral Equality

To say that the right to moral equality, like the rights to democratic
governance and intellectual freedom, is a compelling specification of what
the “in a spirit of brotherhood” imperative forbids or requires is an
understatement: The right to moral equality is an entailment of the
imperative. Article 1 of the UDHR, which is the textual locus of the
imperative, begins by affirming that “[a]ll human beings are born free and
equal in dignity and rights” and then goes on to state that all human beings
“should act towards one another in a spirit of brotherhood.” According to
the imperative, every human being is not only entitled, but equally
entitled—no human being is less entitled than any other human being—to
be treated “in a spirit of brotherhood.” Thus, the imperative entails the right
to moral equality: the right of every human being to be treated as a moral
equal—to be treated, that is, as no less worthy than anyone else of being
treated “in a spirit of brotherhood.”

The most common grounds for imputing moral inferiority to some

human beings, and thereby demeaning or even dehumanizing them31—the
most common grounds for excluding some human beings from the circle of
those equally entitled to be treated “in a spirit of brotherhood”—have been,
30
The law of intellectual freedom—in particular, the law of freedom of speech—
is, both in the United States and elsewhere, complex, and scholarship concerning the
law is quite specialized. There are several collections of cases and other materials on
freedom of speech in the constitutional law of the United States. See, e.g., William Van
Alstyne and Kurt Lash, eds., The American First Amendment in the Twenty-First
Century (5th ed. 2014).
31
See David Livingstone Smith, Less Than Human: Why We Demean, Enslave
and Exterminate Others (2011); David Livingston Smith, “The Essence of Evil,” aeon,
Oct. 24, 2014, http://aeon.co/magazine/society/how-does-dehumanisation-work/;
Richard Rorty, “Human Rights, Rationality, and Sentimentality,” in Susan Hurley and
Stephen Shute, eds., On Human Rights: The 1993 Oxford Amnesty Lectures 111, 112-
14 (1993).
Perry: Human Rights Theory, 3 page 17
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as listed both in Article 2 of the UDHR and in Article 26 of the ICCPR,

“race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”

Understood as, in part, a right against government, the right to moral

equality is the right or every human being not to be treated by government
as morally inferior to anyone else. Therefore, government may not
disadvantage any human being on the basis of the view that she—or
someone else; for example, someone to whom she is married32—is morally
inferior to anyone else. Similarly, government may not disadvantage any
human being on the basis of a sensibility to the effect that she is morally
inferior—a sensibility such as “racially selective sympathy and indifference,”
namely, “the . . . failure to extend to a [racial] minority the same recognition
of humanity, and hence the same sympathy and care, given as a matter of
course to one’s own group.”33 Or, analogously, such as sex-selective

32
See Loving v. Virginia, 388 U.S. 1 (1967). In response to "a now-discredited
argument in defense of antimiscegenation laws"—namely, "that whites can marry only
within their race; nonwhites can marry only within their race; therefore,
antimiscegenation laws do not deny 'equal options'"—John Corvino has written:

Putting aside the problematic assumption of two and only two racial
groups--whites and nonwhites--the argument does have a kind of formal
parity to it. The reason that we regard its conclusion as objectionable
nevertheless is that we recognize that the very point of antimiscegenation
laws is to signify and maintain the false and pernicious belief that
nonwhites are morally inferior to whites (that is, unequal).

John Corvino, "Homosexuality and the PIB Argument," 115 Ethics 501, 509 (2005).
33
Paul Brest, “Foreword: In Defense of the Antidiscrimination Principle,” 90
Harvard Law Review 1, 7-8 (1976). In Brest’s article, the word “unconscious” appears
where I have put the ellipsis, but it isn’t clear to me why the sensibility at issue can’t be
either conscious or unconscious. Nonetheless, the sensibility can be and often is
unconscious. See Robin Bradley Kar and John Lindo, “Race and Law in the Genomic
Age: A Problem for Equal Treatment under the Law” (2015),
http://ssrn.com/abstract=2629819. As Kar and Lindo explain:

Many people who treat each other differently . . . exhibit unconscious

patters of attention, inference and concern, which make it easier for them
to identify the interests of their in-group while overlooking those of out-
Perry: Human Rights Theory, 3 page 18
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sympathy and indifference.34 Government is disadvantaging a human

being based at least partly on such a view or sensibility if but for that illicit,
demeaning view or sensibility, government would not be disadvantaging
her.

The right to moral equality entails not only that government may not
deny to any human being the status of citizenship based on the view (or on
a sensibility to the effect) that she is morally inferior; it also entails the right
to equal citizenship: Government may not disadvantage any of its citizens
relative to any other of its citizens based on the view that the
disadvantaged citizens are morally inferior. Thus, government may not
abridge—it may not dilute much less deny—any citizen’s right to
democratic governance, aspects of which are the right to vote and the right
to run for office, based on the view that the citizen is morally inferior.35

groups. This explains why democratic processes cannot be relied upon to

guarantee the equal treatment of persons under the law.
...

The [Supreme] Court should therefore revise its interpretation of the

Equal Protection Clause so that the Constitution guarantees the actual
equal treatment of persons under the law. This would require, at a
minimum, an interpretation that allows for broader and more vigorous
constitutional protection against disparate [racial] impact caused by either
intentional discrimination or psychological processes that regularly
function to cause disparate treatment . . . It may also require some
extended forms of affirmative action.

Id.
34
In chapter 7, I address the question whether some anti-abortion laws are
based on sex-selective sympathy and indifference.
35
Cf. Mathias Risse, Review of Cindy Holder and David Reidy, eds., Human
Rights: The Hard Questions (2013), Notre Dame Philosophical Reviews 2014.1.27: “[I]t
would not be helpful to appeal to [the human right to democratic governance] under
many of the typical circumstances that prevent the emergence of democracy. In
particular, if there are substantial concerns that the racial or ethnic constellation in a
country would, under the political conditions that one could reasonably expect to obtain,
lead to a kind of excessively populist politics that might generate or exacerbate violent
conflict, the sheer fact that there is a human right to democracy should not be decisive
for anything.” For a concrete example of situation of the sort to which Risse is referring,
Perry: Human Rights Theory, 3 page 19
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As a right against government, the right to moral equality is often

articulated as the right to “the equal protection of the law.” Some
examples:

 Article 26 of the ICCPR: “All persons are equal before the

law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or
other status.”

 The African Charter on Human and People’s Rights states,

in Article 2, that “[e]very individual shall be entitled to the
enjoyment of the rights and freedoms recognized and
guaranteed in the present Charter without distinction of any
kind such as race, ethnic group, color, sex, language,
religion, political or any other opinion, national and social
origin, fortune, birth or other status”; the Charter then states,
in Article 3: “1. Every individual shall be equal before the
law. 2. Every individual shall be entitled to equal protection
of the law.”

 Article 15(1) of the Canadian Charter of Rights and

Freedoms: “Every individual is equal before and under the
law and has the right to the equal protection and equal
benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.”

see Thomas Fuller, “In Myanmar, Democracy’s Euphoria Losing Its Glow,” New York
Times, July 4, 2014.
Perry: Human Rights Theory, 3 page 20
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 Article 9 of the South African Constitution: “1. Everyone is

equal before the law and has the right to equal protection
and benefit of the law. . . . 3. The state may not unfairly
discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture, language and birth.”

The right to moral equality obviously does not require—no sensible

right requires—that government treat every human being the same as
every other human being. Government may deny some benefits to some
people: e.g., a driver’s license to those who have not yet reached a certain
age. Government may grant some benefits to some people: e.g., food
stamps to those living in poverty. Government may impose some costs on
some people: e.g., incarceration on those who have been duly convicted of
a crime. And so on. The examples are countless. But what government
may not do is deny a benefit to anyone or impose a cost on anyone—
government may not disadvantage any human being—based on the view
(or on a sensibility to the effect) that she is morally inferior: less entitled
than someone else, if entitled at all, to be treated “in a spirit of
brotherhood.”36

36
The right to moral equality is not the only norm that governs acts of
discrimination—acts of treating someone less well than someone else. That a particular
discriminatory act does not violate the right to moral equality does not entail that it does
not violate one or more other antidiscrimination norms. For a discussion of various
norms that arguably govern discriminatory acts, see Deborah Hellman and Sophia
Moreau, eds., Philosophical Foundations of Discrimination Law (2013). Of all the norms
that arguably govern discriminatory acts, I have focused in this chapter on one: the
right to moral equality.

I have long been interested in—and have long focused in my scholarship on—the
version of the right to moral equality that is entrenched in the constitutional law of the
United States: the right to the equal protection of the laws. Two of my earliest articles:
“The Disproportionate Impact Theory of Racial Discrimination,” 125 University of
Pennsylvania Law Review 540 (1977); “Modern Equal Protection: A Conceptualization
and Appraisal,” 79 Columbia Law Review 1023 (1979).
Perry: Human Rights Theory, 3 page 21
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_________________________

Again, a commitment to the morality of human rights—a

commitment, more precisely, to the “in a spirit of brotherhood” imperative,
which is the heart of the morality of human rights—not only supports but
requires a commitment to the three pillars of democracy: the human rights
to democratic governance, intellectual freedom, and moral equality.