This is a slightly polemical piece written with two aims: to explain why so many philosophers are sceptical of the notion of human rights but also to show how we can argue for the need to legislate to recognise various important rights, if we are clearer about the relationship between morality and politics, and about the relationship between morality and the law. This sounds a bit paradoxical. I hope it will sound less paradoxical as these themes are developed.
There are two ways of thinking about human rights. The first is to think of these rights as independent of any particular legal framework. In this way, human rights are considered as the independent standard by which we judge legal systems. The preamble to the UN Universal Declaration of Human Rights of 1948 embodies this conception, proclaiming these rights to be fundamental. It has been said we need to think of rights this way to allow us to criticise particular legal systems. For example, in this way racist laws may be held to violate fundamental human rights and therefore be criticisable as laws. On this understanding, the law should be consistent with the antecedently existing human rights. The goal of the legislator is to create legal rights which march in step with antecedently existing human rights.
A second way of looking at human rights is to see them as dependent upon the particular legal institutions which exist in a state or as arising from treaties and covenants the state has entered into. On this conception, rights don’t exist independently of the laws which create them, so if the law does not recognise some right, it simply does not exist. Of course the law can be inconsistent. One law may call a legal right into being. Another piece of legislation may explicitly or implicitly contradict that. Resolving that issue is not so straightforward. Considerations which are not simply legal are paramount in such situations.
This much is uncontentious for legal rights: they exist simply as far as the law decrees. To align human rights with legal rights in this way is much more contentious and makes them less able to criticise existing legal frameworks. For this reason, people have tended to plump for the first conception. I want to suggest that this first conception is incoherent and want to defend a view, much closer to the second than the first, which while sceptical about the independent existence of rights, nevertheless allows us the critical purchase we need on legal and political institutions.
The first understanding of human rights makes them a species of the genus moral rights. Let us therefore look directly at the notion of moral rights. What is the problem with this notion? Well there are two types of problem. The first is that this notion blurs the important difference between morality and legality. This is not a telling problem. You can indeed keep your mind focussed on the difference between morality and legality. Thinking through a notion like tolerance is a good one for focussing the mind on this difference. I may think that it is morally wrong of someone to tell their child that evolutionary theory is a lie made up by scientists, that in doing so they are abusing their child. In fact I do think that. Thinking all that is quite consistent with the thought that the law should not stop this person acting this way. I may think that this sort of immorality should not be legislated against. Or at least not as our society actually is, perhaps if the social situation changed significantly, I might think that tolerating such behaviour is now not politically desirable. So even if we believed in moral rights, moral rights may not march in step with legal rights. (It is important to remember that toleration is not indifference. You don’t tolerate what you are indifferent to. You tolerate what you find wrong, distasteful, or mistaken. There is much more to say here.)
Talking of morality in terms of moral rights however gives a legalistic flavour to our understanding of morality. Is it obvious that the legal model is the correct one on which to base our moral understanding? There are other approaches which promise a richer understanding of the moral landscape.
The second sort of problem with moral rights has to do with their actual character. Not so much whether this or that right exists, but rather what it means to say that rights of this nature exist at all. In one way, talking of moral rights is a shorthand way of talking about interests. So if we were to say that a right to access to health services exists then what we are really saying is that these people have an interest in, or that it is in these people’s interest that, they have access to health services. Now interests run up against each other, and we are used to weighing these up. We know that we must be sensitive to who has what sort of interest in what. When we think of rights as shorthand for interests, to understand what is going on we need to peel away the rights talk and look at the interests underneath. So talk of rights would have the potential of being misleading. Some might be misled into thinking of the rights as fundamental. They might become rights fetishists.
But also on this understanding of rights as not fundamental, rights are not trumps. To claim a right, even if recognised, is to bring to bear one consideration, not always the overriding consideration. But rights, as they tend to be used in debate, do look like people want to use them as a trump card. To get people to accept that you have a moral right to this or that is to bring to the table an overriding consideration. To be safeguards against other considerations, rights must be trumps.
Thinking of rights as trumps, that is, as fundamental and irreducible to other considerations such as interests which may be weighed up against each other, brings its own problems. Rights can and do come into conflict. How are we supposed to deal with that? Look the other way? Just state in louder and louder terms that no conflict between rights is possible? But if we can resolve this sort of conflict, however we do it, rights are not going to be trumps. So here is the dilemma: either rights are not trumps or there are irresolvable conflicts between them. For this sort of reason, most moral theory is carried out in terms other than rights. And when rights are used, such as in Judith Jarvis Thompson’s classic ‘A Defence of Abortion’ (Thompson, 1971), these are not thought of as trumps, so they do not have the key feature required by moral rights as safeguards.
What is at issue here is how we should understand our moral world. Should we be thinking of our moral obligations as deriving from fundamental rights or should we be thinking of morality in some other way? Perhaps with Aristotle we could think in terms of human flourishing? Or with utilitarians we could think about the distribution of happiness and suffering? Or with some moral aesthetes we could think about the achievement of great works? Choosing among these approaches is not straightforward. If it were, ethical theory would be a much simpler enterprise.
Each of these approaches to ethics has a characteristic understanding of the location and character of value in the world. By understanding where value is to be found, we act in appropriate ways.
Jeremy Bentham said that rights are nonsense and that absolute rights are ‘nonsense upon stilts’ (Bentham, 1843). The consequences of this scepticism about fundamental rights is profound and should allow us better to see the relationship between our moral views and socially constructed political and legal institutions. At a time when the nature and purpose of these institutions are under threat we do well to consider why they are there, what role they play for us.
The 1948 UN Universal Declaration for Human Rights was a wonderful achievement. A political achievement we, perhaps, could not repeat today. Getting so many states to agree was astounding and was in no small measure a sign of the outrage of ordinary individuals at the sheer barbarity and scale of the atrocities of the 1939 – 1945 war. The attempt to encourage domestic legislation which gives legal protection against such behaviour is morally admirable and has been politically very important. It does not bring moral rights into existence and does not depend on the existence of moral rights. There seem to be cases of legal rights with no correlated moral right. There may, for example, be legislation underpinning the legal right to vote for various local officials. There need not be any human right to vote for these officials. Different political arrangements that do not involve voting for these particular types of official might equally well (from a moral point of view) solve the problem of organising a society.
We have to distinguish between moral rights, of a notion of what morality demands couched in terms of rights and duties on the one hand, and the legal rights conferred by particular legal arrangements on the other.
So in summary, moral rights are either trumps or not. To get a rights claim accepted either ends the debate or it does not. If rights are trumps then we don’t have any understanding of their real nature since rights can conflict and how can both trumps be successful? If they are not trumps, if a successful rights claim can be overridden by another claim, then we need to understand how to resolve these conflicts among rights. We need to appeal to some other non-rights based approach to resolve conflict among rights. But then it seems that this other approach is the more fundamental one and that rights are not a part of what is really going on, that rights talk is simply shorthand for what is going on at some other level. This other approach really describes what is going on; this way of thinking makes talk of moral rights is at best a heuristic, a rough and ready principle we can act on.
In this way of thinking, moral rights are an inadequate framework for moral theory. There are no moral rights. None, not even the right to life. The very notion of a moral right is a chimera. So if human rights are supposed to be moral rights then there are no such things. The situation is very different with legal rights. These really do exist. They are not fundamental: they depend for their existence on particular legal institutions, which may involve a body of practise as well as legislation.
Even if we don’t accept moral rights at all, as most philosophers do not, we can still think that one of the social instruments we use to order our lives, the law, ought to limit interactions among us in certain ways. That ‘ought’ is a straightforwardly moral term. We can say ‘There ought to be a law!!’. We can also use our moral views to criticise laws which entrench racial or cultural inequalities. The criticisms we would then offer would not be that the law does not march in step with moral rights, for on this understanding there are no such things. Our criticism would be that these laws are immoral, not that they violate non-existent rights. We can defend the need for legal recognition of human rights without believing in independently existing human rights. It is plausible that because power is not vested equally amongst actors, we want legal protection against actors using their power in ways which we think are immoral. Atrocities are morally wrong but not because they violate moral rights. They are acknowledged as wrong on all sides. The idea of a moral standpoint from which to assess acts morally does not need to involve the dubious notion of a moral right. Indeed if we do not believe in independently existing human rights but do have a moral standpoint, the need for legislation becomes much clearer: the law brings these rights into existence.
Dr Michaelis Michael is a Senior Lecturer in the School of Philosophy at the University of New South Wales. His research interests include logic, ethics, philosophy of science, philosophy of biology, epistemology and metaphysics.
Jeremy Bentham (1843), ‘Anarchical Fallacies’, The Works of Jeremy Bentham, vol II, William Tait
Judith Jarvis Thompson (1971), ‘A Defense of Abortion’, Journal of Philosophy and Public Affairs, 1