The Orthodox View

The Orthodox View is encapsulated by a deceptively familiar thesis, one open to divergent interpretations:

(N) Human rights are moral rights possessed by all human beings simply in virtue of their humanity.

Orthodoxy does not obviously entail any helpfully determinate position as to the grounds of human rights. However, the following methodo-logical thesis regarding their grounding is plausibly regarded as part of human rights orthodoxy:

(O) The existence and content of human rights is to be determined primarily by or-dinary moral reasoning, assisted and supplemented as may be necessary by empirical, philosophical or legal reasoning.

Oconstitutes one historically pertinent sense in which human rights are naturalmoral rights. They are rights discoverable primarily through the regarding what the requirement that human rights have counterpart obligations involves; see Tasioulas 2007.

8 Nussbaum 2002, 120. And, as I mentioned earlier, Griffin himself is officially an adherent of the Orthodox View, for all the reductivist tendencies of his actual argumentation.

workings of ordinary ‘natural’ moral reasoning, as opposed to both di-vine revelation on the one hand and the myriad forms of ‘artificial’ rea-soning generated by social conventions and institutions on the other. In this section, I will leave O to one side and offer an elaboration of N’s three constituent elements.

(a) “Moral rights …”

One sceptical response toN, to which an undeterred reductivist might be drawn, goes as follows: “The culture of human rights employs the notion of a ‘human right’ in an extremely elastic way, one that cannot without violence be regimented by any philosophically motivated un-derstanding of the general nature of moral rights. By elaborating on the character of human rights as moral rights we risk being drawn into philosophical controversies about rights in general that are alien to the concerns of the human rights culture”. Given the importance I have assigned to the desideratum of fidelity, this objection deserves to be taken seriously. My conjecture is that much is to be gained by elab-orating on at least three important features of moral rights. These are largely neutral as regards divergent philosophical theories, but capture the significance, in ordinary, non-philosophical discourse, of referring to human rights, as opposed to human values, goals, interests, etc.

Counterpart duties. Moral rights – or the paradigmatic manifestation of them, usually referred to as “claim rights” – involve counterpart moral duties or obligations (I use these two expressions interchangea-bly).⁹The existence of a right tox, on the part of A, entails moral duties on the part of others variously to protect, respect, etc. A’s possession, access, etc. to x. Moral duties are reasons for action of a special kind.

First, they are categorical, i. e. their application to the duty-bearer, and their weight or stringency, is independent of the latter’s motivation.

One cannot evade an obligation, or reduce its stringency, just by alter-ing one’s preferences or desires. Second, they are exclusionary in their normative force, i. e. they are not only to be weighed against competing 9 I therefore regard human rights as paradigmatically what, under a Hohfeldian analysis, are called “claim rights”. This is not to deny that human rights may be associated with various other Hohfeldian incidents, such as powers, immun-ities and liabilimmun-ities. For a Hohfeldian analysis of human rights, see Wellman 2011.

reasons but also exclude at least some of the latter from bearing on what all-things-considered the duty-bearer should do (see Raz 1999). So, for example, a society might serve reasons of wealth-creation by depriving its most able members of the right to occupational choice. But the rea-sons to do so are for the most part not to be weighed against the duties arising from that right; instead, they are neutralized by them. Finally, the transgression of duties by a duty-bearer who can be properly held morally responsible, and who lacks any justification or excuse for their conduct, typically justifies a distinctive range of moral responses, e. g. blame on the part of onlookers, resentment on the part of the vic-tim, self-blame (guilt), reparation and repentance on the part of the rights-violator, and in some cases punishment on the part of the relevant political community.

I have given an implicitly pluralistic elucidation of the types of du-ties that may correspond to moral rights: they potentially include not only “negative” duties of forbearance, but also “positive” duties to un-dertake a course of conduct. By contrast, there is a prominent tradition according to which the primary duties associated with natural or human rights – that is, those duties which do not concern the fulfillment of other duties associated with such a right, e. g. the duty to make amends for a previous violation – are exclusively (or overwhelmingly) negative in content. This feature is presented as crucial in demarcating the rights-involving part of morality, often designated as the domain of justice, from the rest of morality. Its acceptance can be motivated by the thought that the violation of a negative duty is, ceteris paribus, morally worse than the violation of a positive duty, because of the active char-acter of the wrong-doer’s will in the first case. To this extent, the re-striction of human rights to negative primary duties ministers to the idea that they are especially important norms. All we need say here is that we have compelling reasons of fidelity not to endorse this as a con-ceptual restriction on what can count as a right, since it is a notable fea-ture of the contemporary human rights culfea-ture that it acknowledges many “positive” human rights. Whether we should ultimately accept deontic negativism about human rights is a substantive question, one not profitably addressed here.¹⁰

10 One important argument for the claim that human rights have exclusively neg-ative duties, defended by O’Neill 1996, turns on the premises that the primary duties corresponding to such rights must be claimable independently of any so-cial or institutional embodiment. For criticism see Tasioulas 2007.

Contrary to a popular misconception then, a morality of rights is not fundamentally opposed to a morality of duties. Instead, the notion of duty is conceptually prior to that of a right. This leaves open the sub-stantive question whether there are any moral duties without corre-sponding rights. My own view is that one perfectly legitimate sense given to the notion of “imperfect duties” properly caters to just this pos-sibility: for example, duties of charity – such as the duty to show mercy in sentencing – do not have corresponding right-holders. On the other hand, it is also worth noting that the significance accorded to duties here is perfectly compatible with acknowledging the important supereroga-tory dimensions of the human rights culture. Those who make heroic sacrifices for the sake of human rights typically do not thereby simply comply with duties associated with human rights, since they would not be blameable for refraining from their heroic conduct. Still, they are properly admired as defenders of human rights because not all of the reasons we have to promote compliance with human rights duties are themselves duty-imposing.

Individualistic grounding. Individual moral rights, of which human moral rights are a sub-species, are not only rights of individuals, they are also grounded in some normatively salient characteristic of the indi-vidual right-holder.¹¹According to some theorists, it is some interest(s) of the right-holder that is capable of generating duties variously to pro-tect, respect, etc. that interest (Raz 1986, ch.7). For other theorists, the proposal to ground moral rights in interests misconstrues their distinc-tive normadistinc-tive role. The appropriate response to interests, they claim, is fully determined by agent-neutral reasons to promote or maximize those interests, which leaves considerable scope for inter-personal trade-offs of interests. Moral rights, by contrast, constitute agent-relative limitations on what anyone may do to others in the name of promoting the general welfare or even enhanced overall compliance with rights themselves. Many of those impressed by this line of thought contend that moral rights are not grounded in the interests of the right-holder but in a special normative status they enjoy, such as that of being an equal and inviolable member of the moral community (Nagel 2004, 11 A consequence of this individualistic characterization of human rights is that supposed collective rights, such as the right to (national) self-determination, do not count as human rights proper. I do not think this constitutes a serious defect of fidelity. Such rights do not, in any case, fit the specification given byN.

ch. 3). For yet others,bothconsiderations pertaining to interests and sta-tus need to be invoked to justify claims about moral rights.Which ac-count should be adopted for human rights cannot be decided at the con-ceptual level of specifying their nature.

The individualistic character of rights offers one strand of explana-tion for the belief, popular among Marxists, conservatives, feminists and non-Western critics that the morality of rights rests on a flawed

“atomistic” conception of human life, one that cuts us adrift from meaningful personal and social bonds with others and imposes a narrow-ly “egoistic” construal of human ends. But the individualistic grounding of moral rights does not justify this negative portrayal. As we have seen, the discourse of rights is inseparable from that of moral duties, and the latter set stringent moral limits on the pursuit of self-interested ends.

Moreover, these duties may require positive action, as opposed to mere non-interference with others. Many rights, such as the right to marry and have a family or to membership of a nation, serve interests in valuable forms of solidarity or altruistic endeavor. They are not rights to goods which a person can enjoy in isolation from others also enjoying them. Beyond this, philosophers who regard rights as grounded in inter-ests may appeal to interinter-ests – for example, in friendship or making a val-uable contribution to one’s community, and so on – that are not straightforwardly “egoistic” but, rather, involve self-fulfillment through an appropriate engagement with the welfare of others. And lastly, of course, advocates of moral rights are ill-advised to regard them as ex-hausting the whole of morality or as occupying a foundational place within it, so that all moral considerations ultimately trace back to them. In addition to moral rights, a sane, pluralistic construal of morality will incorporate imperfect duties, virtues, ideals, and other considera-tions, many of which do not share the individualistic character of moral rights, their content sometimes reflecting the value of forms of solidarity whose moral significance cannot be fully captured by the lan-guage of individual rights. These other moral considerations create space for the possibility that it may be wrong – because, for example, it would be heartless or disloyal – for me to do that which I nonetheless have a moral right to do; and also for the possibility that conflicting, non-rights-based considerations might defeat the reasons for respecting rights in particular cases.

All of the foregoing observations are compatible with acknowledg-ing that many extant philosophical accounts of moral rights are defective in the ways suggested. And of course there is the more general point

that, like all forms of moral discourse, the morality of rights is liable to distortion and abuse, its individualistic character rendering it susceptible to rhetorical appropriation by ideologies that further atomistic or egoist-ic forms of personal life and social organization.

Directed character duties corresponding to rights. Individual moral rights are held by identifiable individuals; violations of the duties correspond-ing to those rights entail the wrongcorrespond-ing of the right-holder. This con-trasts with violations of imperfect duties (those with no corresponding right-holder, such as a generalized duty of charity), which do not con-stitute the wronging of any particular individual. The directed character of wrong-doings that are rights-violations can be seen as following from the first two features of individual moral rights: that they are sources of obligations grounded in some special feature of the individual who pos-sesses the right. It explains the personal sense of grievance, victimization or resentment that is associated with violations of rights as compared with imperfect duties or other moral considerations.

These three features underline the fact that human rights belong first and foremost to the domain of moral principles. They do not simply consist in a schedule of interests or valuable goals, however important, since merely failing to protect, or even acting against, another’s interest or a valuable goal are notper segrounds for moral condemnation. From a third-person perspective, the mere fact that another’s interests will be impacted by a course of action does not entail that there is a duty in the offing; from a first-person perspective, we are largely passive with re-spect to the honoring of our rights whereas the fulfillment of our inter-ests typically requires our active engagement.

(b) “… possessed by all human beings …”

All human rights, at least paradigmatically, are possessed by all human beings. For the purpose of articulating a serviceable concept of human rights, I shall take it that the human beings who possess human rights must at leastinclude rationally competent adult members of the human species.

Does asserting that human rights are “possessed by all human be-ings” necessarily commit one to the claim that they are an invariant set of rights possessed by all human beings throughout history? On this view, whatever the relevant schedule of human rights is, it must be just as imputable to Stone Age cavemen as to denizens of advanced,

twenty-first century societies. Human rights are, therefore, “natural rights”, understood as rights genuinely attributable to humans even in a state of nature, one in which there is not only no state claiming a mo-nopoly on the legitimate use of coercion but also nothing beyond the most rudimentary forms of social organization. Call this the “state of na-ture dogma”, in line with Charles Beitz’s complaint that “the tendency to identify human rights with natural rights represents a kind of unwit-ting philosophical dogmatism”.¹²Perhaps we can intelligibly impute to cavemen a right not to be tortured, but how can we reasonably ascribe to them rights that refer to activities that are barely conceivable, let alone feasible, in their historical epoch, such as rights to a fair trial or to political participation? Orthodoxy, on this view, is deeply unfaithful to the ambitions of the human rights culture, especially in the post-Uni-versal Declaration period.

Orthodox theorists who wish to preserve a trans-historical interpre-tation of human rights whilst meeting the concern about fidelity can de-ploy at least two strategies:abstractionandidealization.The first identifies a comparatively small set of abstractly specified human rights that are trans-historical in scope and treats the great majority of the human rights familiar from international instruments as arising from the application of these abstract rights to specific historical circumstances. Deploying this approach, James Griffin contends that, at the highest level of generality, there are three human rights each of which is trans-historical in cover-age: human rights to autonomy, welfare (“minimum provision”), and liberty.¹³Other, more specific human rights count as human rights be-cause they are derivations from universal human rights in specific times and places (Griffin 2008, 149; see also Wellman 2011, 28 f.). On this view, not all human rights are “universal”, although some of the univer-sal human rights will include more specific rights than the three highest-level rights.

12 Beitz 2003, 38; the rest of the paragraph summarizes a line of attack on con-temporary philosophy of human rights that is concisely developed in that arti-cle. For a persuasive argument to the effect that Beitz over-generalizes in attrib-uting this dogma to contemporary philosophical theorists of human rights, see Buchanan 2008, 55 f.

13 The strategy of identifying a trinity of highest-level, universal rights has, of course, Lockean and Jeffersonian antecedents; see Haakonssen 1991, 50.

Note, however, that Griffin officially eschews the state of nature dogma, insofar as he is prepared to conceive of human rights as “rights that we all have simply in virtue of beinghuman agents in society” (Griffin 2008, 50).

The abstraction strategy, however, carries the unwelcome implica-tion that almost all of the standard items in human rights documents are not bona fide human rights, since they lack the requisite kind of trans-historical universality. To counter this implication, one may de-velop, as Griffin does, an interpretation of thesis (b) that abandons the universality of the lower-level human rights. But then trans-historical universality will cease to be an essential feature of human rights. To this the reply may be that it remains essential, if only indirectly, because the lower-level rights are derived from higher-level rights thatare uni-versal in this sense. This is the strategy that Griffin pursues regarding freedom of expression, which he takes to be a trans-historically applica-ble human right, and freedom of the press, which is an implication of it in specific circumstances (Griffin 2008, 38). But even supposing that derivation from a universal human right is enough to allay the original concern about the status of non-universal lower-level rights as human rights, a problem remains. In order for the strategy to succeed on its own terms, the higher-level universal rights must be truly rights and not just universal human interests. Otherwise, the abstraction strategy would amount to a reversion to the Reductive View, with all the prob-lems it faces. Yet it is hardly obvious that this condition can be met such that, in a sufficient number of cases, the lower-level rights are plausibly construed as derivations from the self-same universal basic right.

Presumably, humans throughout history have had an interest in au-tonomy, liberty, minimum material provision and perhaps even free-dom of expression. But rights differ from the interests on which they are based because they involve counterpart duties. And we determine the identity of rights in key part by reference to these duties.¹⁴ Is there a recognizably unitary right to freedom of expression that applies across the whole range of human history and, in the context of modern-ity, generates the specific rights Griffin supposes it does? If it existed, it would need to have broadly equivalent high-level deontic implications across human history. But it is a tall order to demonstrate that the free expression rights of a medieval serf, let alone a Stone Age caveman, in-volve more specific determinations of the very same high-level duties as the free expression rights of members of modern-day societies. Is it plau-sible, for instance, that roughly the equivalent level of expressive

Presumably, humans throughout history have had an interest in au-tonomy, liberty, minimum material provision and perhaps even free-dom of expression. But rights differ from the interests on which they are based because they involve counterpart duties. And we determine the identity of rights in key part by reference to these duties.¹⁴ Is there a recognizably unitary right to freedom of expression that applies across the whole range of human history and, in the context of modern-ity, generates the specific rights Griffin supposes it does? If it existed, it would need to have broadly equivalent high-level deontic implications across human history. But it is a tall order to demonstrate that the free expression rights of a medieval serf, let alone a Stone Age caveman, in-volve more specific determinations of the very same high-level duties as the free expression rights of members of modern-day societies. Is it plau-sible, for instance, that roughly the equivalent level of expressive