By developing the theory “the right to justification” and applying it to human rights, Rainer Forst combines universal and particularistic views by claiming to be universal in theory and still particularistically applicable. (Forst 1999a, p 68) Hereby, he strikes a balance between the two poles of universalism and cultural relativism which dominate the discourse on human rights theory.
First of all, it shall be clarified what the “right to justification” is:
“This basic right to justification is based on the recursive general principle that every norm that is to legitimize the use of force (or, more broadly speaking, a morally relevant interference with other’s actions) claims to be reciprocally and generally valid and therefore needs to be justifiable by reciprocally and generally non-rejectable reasons.” (Forst 2013, p 140)
All norms meant to be enforced, including human rights, have to be reciprocally and generally justifiable. Reciprocity here means that the author must not assert a claim that is denied to others. By generality Forst means that all affected parties of a norm must be able to equally share the reason for the norm in question. (cf. Forst 1999, p 82; Forst 2013, p 140) The criteria of generality is crucial to reject arguments from the cultural relativist side because it implies that a culture has to redefine its norms as soon as the norm is not equally shared by every member of the culture. Consequently, there is no external pressure on cultural change.
Concerning human rights, this means “that human rights are meant to ensure that no human being is treated in a way that could not be justified to him or her as a person equal to others” (Forst 2013, p 39). According to Forst, one has to take as a given that there is only one basic human right: the right to justification. Thereby, this does not mean that the other human rights can be developed from this right – it rather serves as a main guide for the construction of concrete human rights.
“The basic right does not determine from the outset which substantial reasons are adequate, which rights can be demanded, or which institutions or social relationships can be justified. As the universal core of every internal morality, the right to justification leaves this to the members‘ specific cultural or social context.” (Forst 1999b, p 42)
The underlying notion here is that every human being is recognized as a person to whom another person owes a justification of the reasons for their actions. (cf. Forst 1999b, p 44) The only criteria these justifications have to fulfill are reciprocity and generality. These rights shall then be made socially effective in two aspects: Human rights must be a) substantive, meaning here that the formulated rights must express adequate forms of mutual respect, and b) procedural, meaning that everyone who is living under certain rules has to have the possibility to participate in the determination of these rules. (Forst 2013, p 39)
This moral constructivism can lead to an abstract list of human rights – this is why moral constructivism always has to be accompanied by political constructivism, meaning that these rights must also be justifiable in a concrete political order. (cf. Forst 1999b, p 48)
„The right to justification in this legal-political context does not fall prey to Frank Michelman’s reducito ad absurdum according to which any interpretation of human rights would only be legitimate in a state if it could be accepted concurrently in a more or less ‚pure‘ procedure. Rather, it means that in procedures of political justification that exclude no one arbitrarily, no fundamental, reciprocally and generally irrefutable claims are ignored;“ (Forst 1999b, pp 59, note 29)
Concerning the internationalization of this concept, Forst denies the necessity of a “world state”. He rather proclaims that humans – as moral persons and citizens of a state – are “world citizens” who consequently are obliged to not only respect the human rights of others but also to actively support them when they become victims of human rights violations. (cf. Forst 1999b, p 53)
Consequntly, Forst’s approach meets the criteria set by himself: The right to justification is „interculturally non-rejectable, universally valid, and applicable in particular cases“ (Forst 1999b, p 36).
Forst, R 1999a, ‚Das grundlegende Recht auf Rechtfertigung. Zu einer konstruktivistischen Konzeption von Menschenrechten‘ in Recht auf Menschenrechte. Menschenrechte, Demokratie und internationale Politik, eds H Brunkhorst, WR Köhler & M Lutz-Bachmann, Suhrkamp, Frankfurt am Main, pp. 66–105.
Forst, R 1999b, ‚The Basic Right to Justification: Toward a Constructivist Conception of Human Rights‘, Constellations, vol. 6, no. 1 [01 September 2014].
Forst, R 2013, Justification and critique. Towards a critical theory of politics, Polity, Cambridge.