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What Are Human Rights?
Tim Dare considers how far human rights claims can stretch.
Human rights are, of course, rights of a certain kind, and rights are specific kinds of moral, political or legal claims. Consider the following cases. Suppose I lose my wallet and won’t be able to get home unless I come up with $5.00 for the train. I might ask a colleague for a loan, pointing out that, were he to agree, he would display the virtues of generosity and kindness, and would also promote utility, since his $5.00 would create more happiness in my hand than sitting unused in his wallet for the night. However, I cannot insist he help me, even if I am right about what virtue and utility recommend. He has no duty to make the loan.
Suppose alternatively that discovering the absence of my wallet reminds me that last week I lent $5.00 to another colleague on the condition that she would pay me back today. I go to her office and ask her for the $5.00. Given our agreement, I have a right to the money, and she has a duty to give it to me. On this account, rights-based claims – by contrast with claims based on utility or virtue – are always accompanied by correlative duties. If someone has a right, then some other person or group of persons has a duty to give or allow the rights-holder to have or do that to which the rights-holder has a right.
I was able to demand my $5.00 ‘as of right’ because my colleague and I had entered into an agreement. My right depended upon a convention or practice and we can easily imagine the convention being different. It could have been the case that promises to repay loans, like contracts for the purchase of land in many countries, were only enforceable if written.
If all rights were conventional, then what rights people have would depend upon what conventions particular communities or groups had adopted. What appeared on a list of rights and who had them would depend upon particular and changeable conventions.
“Within a system which denies the existence of basic human rights, fear tends to be the order of the day.” – Aung San Suu Kyi
Picture © Foreign & Commonwealth Office 2016
Champions of human rights aim to avoid this contingency. There are, many of them claim, rights which are not contingent upon conventions, but instead are rights that people have simply by virtue of being human, and so which cannot be removed by contingent practices or institutions.
It is easy to see why this idea is attractive. If such rights exist, they provide a basis for claims on peoples’ behaviour that hold no matter what particular conventions particular communities adopt. These rights will be universal, in the sense that they will apply to all people, no matter where they are or to what conventions they happen to be subject.
Such rights would also provide a perspective from which one could criticize and assess particular conventions. For instance, if there are human rights to education, to the absence of discrimination, to access to adequate health care, or whatever, then any social conventions that deny those things to some members of the communities they govern will fail to respect the human rights of those people, and those people will be able to identify duty-holders and demand that to which they have a human-rights-based claim.
Problems With This Account of Human Rights
There may seem to be an immediate problem with this account of rights and human rights, since it suggests that many of the most familiar and influential examples of human rights are in fact not rights or human rights at all.
Consider the rights set out in the 1948 United Nations Universal Declaration of Human Rights. On the account above, human rights do not depend upon conventions, but the Declaration does seem to ground its rights on a convention – specifically, upon the facts that member states have “reaffirmed” the value of human rights, and upon their “determination” and “pledge” to promote their universal recognition. Further, fulfilment of many of the rights in the Declaration and associated instruments depend upon participation in complex social and economic practices. Other rights in the UN documents assume very specific social and institutional arrangements: rights to work, to paid holidays, and to social security, for instance, are rights that make sense only against the backdrop of particular and contingent social arrangements. These rights seem not to be human rights in the sense sketched above either, since they are not held by people simply by virtue of their being human. Instead, they are held (if they are) because people stand in particular relations to social practices and to one another.
It is also unclear what sort of demands the UN rights allow. In our opening scenario, my right allowed me to insist upon my $5.00, but everyone accepts that realization of the rights in the UN Declaration will take time and be hampered by a lack of resources. Signatory states are often obliged only to take appropriate measures towards the ‘progressive realization’ of many of those rights, subject to ‘available resources’. This obligation can be cast as a duty correlative to a right; but notice just how indeterminate that duty will often be, because of how difficult it can be to specify just what a rights-holder can demand from a duty-holder obliged to the ‘progressive realization’ of a right ‘subject to resources’. It is also sometimes difficult to identify duty-holders for the rights in the UN Declaration. According to Article 23 “Everyone has the right to work” but an unemployed person cannot insist that any given employer take them on. Perhaps their government is obliged to provide employment, but governments might quite properly eschew the role of employer, and moreover, it seems implausible that states that provide support for the unemployed rather than jobs are breaching the human rights of the unemployed.
These concerns connect with a broader feasibility issue. According to our original simple account of rights claims, rights-holders can insist on that to which they have a right. It is acknowledged on all sides, however, that it may not be possible to realize many of the UN’s alleged economic and social rights for all – that at least some of those rights are infeasible. This issue connects with the principle of ‘ought implies can’, which says that we cannot be under a duty to do that which we cannot do. If that’s correct, and a certain duty is infeasible, then there is no such duty, and consequently – at least according to the above account of rights – there is no correlative right.
Furthermore, as a practical matter, allowing infeasible rights might devalue rights claims. Rights are especially powerful claims on behaviour precisely because they allow their holders to insist upon that to which they have a right. If we allow that there are infeasible rights claims, we threaten to surrender a core feature of rights claims, and in particular human rights claims, that made them attractive at the outset.
Much of the considerable recent philosophical literature on human rights is connected to these ideas. Some commentators have tended toward the view of human rights as absolute, and so have been more or less critical of the human rights movement associated with the Declaration (see for instance Maurice Cranston, ‘Human Rights, Real and Supposed’ in The Philosophy of Human Rights ed. by Patrick Hayden, 2001). At the other end of the spectrum, Charles Bietz argues in ‘What Human Rights Mean’ (Daedalus, 132.1, 2003) that in order to “appreciate the real nature of human rights and the reasons why we should care about them” we should “look first at human rights as they actually operate in the world today” – so giving priority to the Universal Declaration of Human Rights and associated documents.
Some commentators who have thought it an error to hold on to an abstract conception of rights have sought ways to explain how a claim could be a human right and not run afoul of the above criticisms. For instance, in ‘Elements of a Theory of Human Rights’ (Philosophy & Public Affairs 32.4, 2004), Amartya Sen relies on Kant’s distinction between perfect and imperfect duties in order to avoid problems based on the absence of clearly specified duties. Perfect duties are precise and absolute. So, for instance, I have a perfect obligation not to torture anyone [see elsewhere in this issue, Ed.]. But the perfect duty not to torture is accompanied by a less precisely speciﬁed requirement to consider the ways that torture might be prevented and to decide what one can reasonably do to implement them. Sen insists that these imperfect duties are not vacuous. And they leave room for just the sort of limited or progressive realization contemplated by the Universal Declaration of Human Rights.
Other writers have defended various types of ‘minimalism’ about human rights, abandoning problematic rights such as that to work and paid holidays. Michael Ignatieff, for instance, argues that the “priority of all human rights activism [is] to stop torture, beatings, killings, rape and assault, to improve, as best we can, the security of ordinary people” (Human Rights as Politics and Idolatry, 2003, p.173). Rights minimalism is a response to the above criticisms because a shorter, well-defined list of rights is straightforwardly less demanding. Not only are there fewer rights, but the realization of negative rights against torture, beatings, killings, etc, is likely to be cheaper than more expansive economic and cultural rights, and so (in theory) easier to fulfil. They are also thought more likely to gain broad support.
The Grounds of Human Rights
It is easy enough to see how conventional rights arise. Conventions are practices that have a certain kind of social traction. Promises work because promisees and promisors take it to be true that they have gained rights or assumed duties, respectively, and observers disapprove of people who promise then fail to act consistently with the convention.
Those things which are true of humans simply because they are human – their reason, their capacity to plan, or to suffer, or perhaps to realize their potential – could generate rights and duties in a similar way, if all or most of us took it to be true that any entity of whom those things were true had a right to, for example, work or equal respect, and disapproved of those who didn’t act consistently with that truth. But that right would then be conventional: it would depend upon its recognition in a practice, and not upon the fact of someone’s humanity. Conversely, it is not easy to see how the things that are true of humans simply because they are human could generate obligations independently of conventions: how a natural fact about me could generate rights and duties if it were not in general taken to do so and accommodated in a sufficiently widespread practice.
“You can chain me, you can torture me, you can even destroy this body, but you will never imprison my mind.” – Mahatma Gandhi
Some human rights advocates have suggested that human rights can be directly grounded in ethics. Sen, for instance, sees “proclamations of human rights… as articulations of ethical demands” (‘Elements’, p.320). On this account, to say that there is a human right not to be tortured is simply to say that there is a good ethical argument, sustainable by open public reasoning, for the claim that the interest against being tortured should be protected by appropriate (perfect and imperfect) duties. This approach, Sen maintains, frees human rights from reliance on legislation, such as the Universal Declaration of Human Rights, and also from reliance on whatever ethical values happen to be popular at the time, since the arguments that survive open public reasoning may shift current views. It needs to be remembered, however, that human rights will often be required precisely in circumstances in which their background ethical justifications are not accepted. So although it may be fine to work out which human rights exist by considering ethical positions, at the ethical coalface those rights must have force independently of those justifications.
Other commentators, such as Beitz, have emphasized the distinctive political function of human rights. Advocates of the political view have tended toward fidelity to existing human rights practices, and to rights minimalism, given the need to find common ground among the variety of political responses to human rights ideas. But because the political view construes human rights as dependent upon political institutions and practices, it is unlikely to satisfy those attracted to human rights precisely because of their independence from particular political practices.
Rights & Flags
We began with an account of rights that portrayed them as having duties attached. If someone has a right, we said, then some other person or group of people has a duty to give or allow the rights-holder to have or do something. Rights understood this way are powerful and important. Unfortunately, the term ‘right’ is used much more widely than this account allows. In particular, it’s common to describe any interest someone wishes to mark as especially important as a ‘right’, regardless of whether or not there are identifiable duties and duty-holders. That is, ‘rights’ are often used to refer not to a narrow class of moral and political claims that are accompanied by duties, but as flags to signal that some interest – to life, to health, to employment – is regarded as morally or politically significant. This broader use of the term ‘right’ is unfortunate because rights understood as moral or political claims correlative to duties and upon which right-holders can insist, are important, and the proliferation of ‘rights’ that inevitably flows from the rights-as-flags strategy undermines their morally-obliging force. We simply cannot insist on all the things considered important by all the people who make rights-as-flags claims, and so we must dismiss at least some, perhaps many, rights claims. And if we know that many rights claims must be dismissed, we are unlikely to think that rights claims are all that important.
The tendency to use rights as flags leads to rights proliferation, which leads to rights inflation. Rights become worth less, if not worthless. The human rights culture is a significant contributor to this rights inflation. Ideally, we should preserve the term ‘rights’ to describe feasible and enforceable claims accompanied by duties. Of course, the horse has already bolted. The expanded human rights culture and practice is so well established that there is little prospect of limiting the expansion of rights claims, but we should at least try to curb rights inflation. Among the alternative groundings for human rights, the political approach probably gives the best opportunity for doing so. If we are to allow ‘human rights’ at all, we should favour a minimal list of rights that rests ultimately on convention.
© Dr Tim Dare 2017
Tim Dare qualified as a lawyer but is now an Associate Professor of Philosophy at the University of Auckland in New Zealand. He has a special interest in legal ethics.