On Human Rights

"The last book is the most sophisticated philosophical treatment of human rights since the Universal Declaration and that is James Griffin’s book On Human Rights (2008). When I was a doctoral student he supervised me for one term when my official supervisor, Joseph Raz, was on leave. Some years later, I became a friend and colleague of his at Corpus Christi College, Oxford, where he held the White’s Chair of Moral Philosophy. During that time he was writing On Human Rights and we would often talk about human rights and give classes together on political and legal philosophy. So I feel I enjoyed privileged access to this book compared to the other four on my list. It probably does, especially insofar as I feel I have a grasp of the wider philosophical agenda that animates his project. If there’s any book where I feel I really know what’s going on, then it would be Griffin’s book, although he inevitably disagrees with my interpretations of some of the things he says. The reason this is such an important book is that Griffin, unlike Nickel and Rawls, really does try to connect human rights to moral philosophy. The danger in doing that is that you simply impose some pre-existing grid, some favourite general moral theory, onto human rights and distort the subject in a top-down way. Griffin, however, is very sceptical about contemporary moral theory, especially the aspiration to systematic unity that it embodies. In his book Value Judgement , he is very sceptical about the three leading contemporary moral theories: consequentialism, deonology and virtue ethics. He has an attractively pluralist and ‘bottom-up’ approach to ethics and this enables him to deal with human rights in a much more compelling, interesting way because it’s not distorted by these prior commitments to the idea that, really, ethics comes down to virtue or, really, it’s all about maximising welfare. The value of this ‘anti-theory’ approach emerges most forcefully in his chapter on conflicts of human rights, which is one of the best in the book. Among other things, that chapter helps to inoculate us against one very widespread misconception. This is the mistaken idea that only a utilitarian can believe that emergency situations may arise in which a human right may be justifiably overridden. This is a profound error, because the avoidance of disaster is not to be equated with the maximization of welfare. The potential need to trade-off at least some human rights in emergency situations does not show the ultimate correctness of utilitarianism. That’s right. In Nickel’s book there is a focus on human rights understood as rights that ought to be embodied in law. In Rawls there is a focus on rights performing certain political functions — triggering intervention and operating as benchmarks for legitimacy. By contrast, Griffin has the more classical view—closer to the discussions that Tierney describes—of human rights as natural rights. Human rights may be legalized, and they may perform certain political functions, but this is not part of what makes them human rights. There are two ways that one can articulate the continuity between human rights and natural rights. One is to say that they’re universal moral rights: rights that are possessed by all human beings simply by virtue of their humanity. Second, the way we discover them is by engaging in ordinary moral reasoning. We don’t discover them by examining the law, or by some special process of public reason that does not aspire to objective truth, as Rawls would insist, but by whatever normal forms of moral reasoning we engage in to establish duties to keep promises and to refrain from killing people. That’s the same form of moral reasoning you use to identify human rights primarily as moral concerns. Then, of course, there would be further questions about the extent to which these moral concerns now identified should be embodied in law; which institutions might best be able to realise them; whether we need judicial review or some other process, how they bear on political legitimacy, when their violation justifies some kind of external response, and so on. The answers might vary from society to society, but one of the things that I find refreshing about Griffin’s book is that he doesn’t believe there’s a shortcut from affirming the existence of a human right to any immediate prescription regarding these other questions. That’s a further step that would have to be made and not a logical conclusion from the existence of the right. I think he is correct to conceive of human rights as fundamentally moral rights in this way. Yes, he is. Griffin contends that human rights are protections of the value of personhood, and he breaks down the value of personhood into a number of values: autonomy , that is being able to choose a conception of the good life from a range of options and liberty , which is being able to pursue the choices that you’ve made without interference from others. He also identifies some kind of minimum material provision in order to enable you to be in a position to choose and to pursue the choices that you’ve made. He argues these three values are the three super-human rights, and they apply across human history to all human beings who qualify as agents capable of choosing and pursuing their conception of a good life. That is the problem of cultural variation in the face of putatively universal moral demands. There’s a very powerful contrast here with Rawls. Rawls tries to deal with the problem of cultural variation by retreating to minimal foundations, to the common ground between true liberal democracies and the decent non-liberal societies they ought to be prepared to tolerate. Griffin, by contrast, gives the traditional response to ethnocentrism: namely, that it is a misnomer if human rights principles are objectively justified . They may have been first discovered in the West—and Griffin accords great significance to an Enlightenment tradition of thought about natural rights—but that does not prevent them from being universally valid. Using a somewhat strained analogy, it’s akin to the way that medieval Arab mathematicians made important discoveries which are not only valid for Arabs. They are universally valid. Griffin’s response is that personhood is a valuable quality, exemplified by all human beings, meriting certain kinds of protection through rights. This is what our ‘human dignity’ consists in for Griffin, the capacity for normative agency that elevates us above non-human animals. The first thing to say to a culture that disagrees with that idea, and the respectful thing to say is, ‘You’re mistaken. Here are the reasons you’re mistaken. Now show me why you think I’m wrong.’ But, again, there’s a further step. From having seen that the other culture is mistaken in not acknowledging the rights that flow from human dignity, nothing automatically follows about what we may permissibly do to get them on the right path. It might be that there’s very little, or perhaps nothing, that we can do. The way I would characterise it is that Rawls is a functionalist. He sees human rights as performing defining political functions and that they can and should perform these functions without resort to a foundation that claims to be objectively correct. Griffin, by contrast, is a foundationalist. He wants to tie human rights to certain foundational ethical values, in particular this overarching value of personhood which, of course, gives him problems because it’s not clear that human rights are always or exclusively about protecting personhood. This becomes especially apparent when you’re dealing with human beings who do not have the capacity for choice, or may never acquire it, or have it, or have irretrievably lost it. Such humans—infants, people suffering from the advanced stages of senile dementia—nonetheless appear to be fully-fledged holders of at least some human rights, such as the right not to be tortured. This is a conclusion that Griffin contests in his book, pointing out that we can criticise the bad treatment of humans who are not agents without resorting to the language of human rights. I am not persuaded. In my own work, I have argued that the values that ground human rights go beyond the value of personhood, they include values such as freedom from pain and certain kinds of humiliation. When we expand the values protected by human rights in this way, we can legitimately speak of human rights possessed by humans who are not agents. Get the weekly Five Books newsletter I agree this is an area that readily lends itself to application, partly because people are receptive to discussions in terms of human rights. But we need to put that receptiveness under some scrutiny because often people will deploy the rhetoric of human rights, because it sounds good, because it makes what a government or international organization is doing sound admirable. But when you start pressing them on what exactly is going on here beyond saying that it is achieving outcomes they value, often they’re not able to tell you. People seem to be committed to the rhetoric of human rights, and this can provide leverage to get them to think hard about what a human right really entails. Recently, I attended an event at the World Bank in Washington DC and it became very clear that many present thought of human rights in predominantly economic terms, terms which are deeply influenced, whether they realise it or not, by utilitarianism. It’s very challenging within that sort of framework to make sense of human rights. That’s precisely why Bentham tried to jettison the idea and he has many followers today who say that human rights thinking should be replaced by the tools of development economics. Again, what is true of economists is also true of some lawyers. It becomes clearer, once you subject it to scrutiny, that when they’re talking about rights they are really talking about interests – which is why they’re so ready to countenance trading off one right against another. Well, you trade off one interest against another, but the idea that you have a right that is regularly, rather than exceptionally, subject to trade-offs is self-defeating. Because of the great vogue for human rights as a rhetoric in our culture, it provides an opportunity for philosophers who have something to say about the normative significance of human rights, how to establish their content, and how they relate to other moral concerns. The world has given philosophers a convenient entry point to introduce greater rigour and reflectiveness into how one reasons about these important questions."