The justification of human rights is perhaps the most important problem in human rights theory. Why do we need human rights? Why should people respect human rights? Why are these rights so important? Or are they? I think there are essentially three ways to try to answer these questions.
- There’s the non-philosophical way of pointing to tradition: you could argue convincingly that human rights or at least the values embedded in human rights have always been a part of the world’s major cultural traditions, implicitly or explicitly. I’ve looked at that option here. However, this approach is fraught with problems. For example, it’s not obvious that you can escape Hume’s naturalistic fallacy: you can’t simply go from “is” to “ought”. It’s not because something is the case that it ought to be the case. Hence, you’ll end up with a pretty weak justification of human rights if you go about it this way. That’s why I’ll focus here on the two other options.
- Human rights can be justified using a consequentialist approach: rights should be respected because that brings about good consequences, for example respect for rights brings about peace, prosperity and truth.
- Or they can be justified using a so-called status approach: human beings have certain attributes that make it necessary to ascribe rights to them. For example, a person’s body and mind are hers and hers alone. Therefore, it’s up to her to say what may be done to them. Allowing anyone else to decide would be a grave indignity to her. A right to free speech is the only respectful way to treat people with a mind of their own. Status theories say that rights should be respected, not because of the consequences, but because it is fitting to do so. Rather than focus on the consequences that rights can bring about, rights are constraints on the types of consequences we can pursue. Robert Nozick is a well-known proponent of this approach. The status approach is linked to the tradition of natural rights (certain aspects of human nature make certain rights appropriate) and is evident in the famous Jeffersonian phrase about “men being endowed by their Creator with certain unalienable rights”.
I’ve personally used the consequentialist approach in some previous posts on the justification of human rights:
- there’s one here focusing on the role of rights in the pursuit of truth
- here is one about political rights
- here about free speech
- here about property rights
- here on rights in general and
- here on religious liberty.
The consequentialist justification of human rights views these rights not as goals but merely as means. It’s instrumentalist in the sense that it justifies rights as particularly good instruments or means for the achievement of some other goals (peace, truth, prosperity etc.).
The main disadvantage of this approach is that it only provides a weak and contingent justification. If it turns out that, in certain circumstances, other means are more appropriate for the stated goals, then rights may be violated according to the consequentialist approach. The main disadvantage of the status approach is exactly the opposite: it may prove too much. The status approach makes it difficult if not impossible to limit certain rights or balance rights against each other. It’s hard to see how you can argue for limitations of certain rights or tradeoffs between rights without pointing to certain consequences. Because the status approach grounds human rights in attributes that are fundamental to human beings, it’s likely that limitations of rights have to be seen as attacks on fundamental attributes of human beings, and that’s obviously out of the question. And yet, we limit rights all the time in everyday life. We have to, since different rights are regularly in conflict with each other. Hence, a theory that can’t accommodate this normal feature of morality seems incomplete, to say the least.
A combination of the two approaches is therefore more promising. There’s no reason why human rights can’t be means and goals simultaneously.
More posts in this series are here.