The language of human rights is pervasive both in academic literature and international legal practice. We often take the satisfaction of human rights to be a necessary condition for a state’s legitimacy, and the failure of a state to respect human rights as grounds for international intervention. However, providing an account of the nature of human rights—figuring out what exactly it is for something to be a human right—is quite a difficult task. Here I want to present two problems I’ve been thinking about recently with ‘top down’ approaches to determining the nature of human rights.[1]
A top down approach to determining the nature of human rights is one that begins with a normative principle or framework that has been developed apart from an attempt to defend human rights and then applies that principle or framework to debate about human rights. The methodological worry I have in mind for such accounts is that they will either lack sufficient means for getting started or they will be question begging.[2] The former occurs when nothing about the nature of human rights is presupposed in developing an account, the latter when the opposite is the case. I’ll address each in turn.
Top Down Approaches and Getting Started
In order to see the force of this objection, I think it’s important to stress that we are discussing accounts that are attempting to explain the nature of human rights. This can be separated from the question of what human rights, if any, we possess. It is possible that the best account of the nature of human rights that we can give will lead to the conclusion that we don’t, in fact, possess any. Similarly, it is possible that the best account of the nature of human rights will leave the question of which rights there are still open to debate. For example, we could all agree that human rights are the set of rights that protect our basic needs while disagreeing on what counts as a basic need. So, questions about the nature of human rights, and what human rights (if any) there are come apart.
As mentioned above, the concern that top down accounts of human rights will lack sufficient means for getting started is a result of not presupposing anything about human rights in developing a view. The concern is that if the normative principles or framework have been developed aside from any consideration of human rights, and are being employed to generate an account of the nature of human rights, then they will lack direction. It seems like a Meno’s paradox style worry is lurking here. Recall that according to Meno’s paradox a person cannot search for what she does know, because she already knows it, or what she doesn’t know, because then she doesn’t know what to look for. It is the latter of these that relates to our discussion here. If we are assuming that the account being developed is free from influence concerning the nature of human rights, then principles employed that were not articulated in order to address human rights cannot, by themselves, be useful.
Top Down Approaches and Begging the Question
If the problem articulated above is to be taken seriously, then we might advocate a method whereby something of the nature of human rights is assumed. By taking this approach, the concern with getting started disappears; the assumptions we make about the nature of human rights provide a starting point for our account. We can then see if the principles or framework that we bring to the discussion are capable of defending that account.
As I hope is clear, the problem with this is that it will be question begging. Recall that the task I’m discussing here is that of developing an account of the nature of human rights. Thus, to assume something of the nature of human rights in getting started would be to presuppose part of the answer the account is meant to provide.[3]
So it seems we have a problem. In developing a top down account of the nature of human rights, we must either begin with some assumptions about the nature of human rights or with no such assumptions. If we begin with no assumptions, it’s difficult to see how principles that are themselves neutral about human rights could guide us in developing an account of the nature of such rights. If we begin with some assumptions about the nature of human rights, then we are begging the question by presupposing exactly what the account is meant to provide.
[1] I should say before starting that I’ve been having trouble articulating these worries, but haven’t managed to shake them. Comments, therefore, are very appreciated.
[2] ‘Bottom up’ accounts of the nature of human rights have their own problems, but I won’t address those here.
[3] We might think that there is a further (psychological) worry here: namely that if we have come to the discussion with a set of principles or theoretical framework, then we might end up selecting those aspects of human rights that best cohere with our beliefs. This is, I think, less interesting—at least philosophically, that the problem above.
There are ways of avoiding begging the question. You could work from a kind of reductio method–assume there are no rights, and then see if you can reach conclusions that are unacceptable. Of course, what we deem “unacceptable” is colored by prior assumptions, so you might think this is just a way of smuggling rights into the equation. But moral theorizing has to start with something, just as math and science have their axioms.
For a more thoroughly foundationalist account, you might look to Julia Markovits’ recent book, “Moral Reason”. She discusses moral reasons, and argues that a proper account of what reasons are can also tell us what reasons _there are_, that is, what reasons we have. In the end, she does derive reasons to recognize rights, in particular, a Kantian right not to be used as a means. Though these aren’t purely human rights, because she argues they apply to animals as well. And to that point I think she is correct; I don’t think there is any plausible non-arbitrary way to ground purely _human_ rights.
Thank you for this fascinating post!
Question 1
I don’t understand what it means to say that possibly, human rights have no bearers. Here is my recipe for working out human rights:
1. We start with a description of the normative role of the concept of a human right, i.e. of what should be protected by human rights specifically given one’s basic conception of morality.
2. We work out the logical features (i.e. we want something that relates all possessors to one other), meta-normative features (i.e. we want that relation to be grounded in natural features of possessors) and normative features (i.e. we want this relation to have absolute normative force) of whatever is to fulfil the role delineated in (1) for that role to be fulfilled with respect to what human rights should protect.
3. We check whether the features worked out in (2) are compatible, compossible, and would identify something able to fulfil the desired normative role if those features were exemplied in the actual world.
4. If that is not the case, we go back to (1-2) and improve until we get something that satisfies (3).
And voilà! Hand over the hot and crunchy human rights!
The recipe overtly presupposes that human rights are not things for us to discover, but to stipulate in light of reasons and natural facts. Thus this recipe rules out human rights without possessors. So as I said, I don’t understand the claim that there could be rights without possessors.
Question 2
What’s wrong with my recipe?
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