Human rights are not ultimately about reason. They are about a conviction that albeit the exclusionary nature of political community, there are some circumstances in which one must defend the value of membership in humanity despite the will of her own community. And this does not mean that the laws and customs given by one’s community are somehow inferior or cast aside. The personal experience that characterizes human rights is an experience of being deeply divided by two sources of obligation: community and humanity are never fully reconciled. The relevant thought experiments, such as the encounter with what I have called the universal boatperson, help us imagine and conceptualize this divided political agency.
There is a certain affinity between human rights as existential commitments and human rights as legal norms. Existential commitments are a type of legal norm, inasmuch as what we mean by “legal” is the experience of binding duty. Yet human rights as existential commitments are not dependent on state consent. They therefore differ from their vast environment of public international law, and come closest to what international lawyers are accustomed to thinking of as jus cogens. Perhaps the most important concern about legalistic understandings of human rights is that they invite bypassing obligation by legal craftsmanship, e.g. invoking jurisdictional limitations and / or deliberately narrow interpretation. Existential commitments are an obstacle for such (otherwise inevitable) legal processes.
Human rights as existential commitments can surely also be confused with human rights as moral norms, but they are not the same. Moral philosophy typically sets out to answer the question, “what would be the most desirable definition and scope of human rights if one could choose it ex-nihilo?” Human rights as existential commitments take a situated and embodied perspective: one is acting in the context of an imperfect world, and must decide what to do. This genre of human rights emphasizes one’s minimal duties toward all humans within the context of unchosen realities, dire as they may be.
(Human Rights as Thought Experiments)