In this post I will make three points. 1. I will describe the ontology (mode of existence) of human rights and try to define the concept of rights clearly. 2. I will argue that universal human rights imply universal human obligations. 3. I will argue that human rights exist independently from rights that are granted by an institution like the state.
Defining Human Rights
Human Rights are rights that a person has in virtue of being human. As such they exist independently from any system of laws enacted by any institution such as a state or government. Some argue that universal human rights do not exist. Jeremy Bentham called the idea of human rights, "rhetorical nonsense". Bentham thought that because we do not discover human rights in the same way that people have noses, then there must not be any rights "out there" to be found. While it is true that we do not discover human rights in the same way that we discover that water is H2O, it does not follow that human rights do not exist. The reason is because human rights are not observer-independent facts; they are observer-relative facts. The difference between these two types of facts is that observer-relative facts depend on the beliefs and attitudes of human beings while observer-independent facts exist regardless of what human beings think or believe.
An example of an observer-relative fact is money. When one has a $5 bill, he/she is entitled to buy $5 worth of goods. On a $5 note, we read the words, "This note is legal tender for all debts public and private." If one only believed that observer-independent facts existed, they would naturally want to ask, "How do they know that it is legal tender?...Did they perform some chemical test to see if the $5 bill really was money?" Of course these questions miss the point. We do not discover that a certain piece of paper is money. We declare it to be money. The piece of paper and the ink stains that constitute the $5 bill are NOT sufficient to make it money. We need the actual piece of paper PLUS something else to make it money. That something else is the collective recognition that those pieces of paper count as money.
Human rights are the same way. When one is a human being, he or she has the right to perform certain actions, but the mere existence of a certain biological organism that we call a human being is not sufficient to ensure that person has rights. You need a certain biological organism (a human being) PLUS collective recognition that they have those rights.
I think that the concept of human rights will be clearer when one understands how institutional facts are created in general. I describe how they are created in more detail in my post about Social Ontology which is influenced by the philosophy of John Searle. Here I will summarize some of those ideas:
Summary of Social Ontology
There are at least three things that are needed to create institutional facts. You need status functions, collective recognition, and constitutive rules.
Humans are different from all other forms of animal life because humans can impose functions on objects where the objects cannot perform the function solely in virtue of their physical structure. To continue using the example of money, we can assign the function of money to little green pieces of paper. These pieces of paper have the status of money in virtue of the function that we collectively assign to them. There is nothing about the intrinsic physical structure of money that makes it money. It is only money because people collectively recognize it to be money. When we create a function by collective recognition of an assigned status, we are creating a "Status Function". Status functions are everywhere. Examples of status functions include money, marriages, touchdowns, sacraments, driver's licenses, presidents, private property, holidays, etc.
Status functions exist as part of a system of "constitutive rules" that are created by language. Constitutive rules create the behavior that they regulate. For example, the rules of chess create the possibility of playing the game of chess. Similarly, status functions are constitutive rules that create observer-relative facts. Constitutive rules of status functions have the logical form "X counts as Y" in context "C". Here are a few examples:
- A certain area of the field (X) counts as an end zone (Y) in the game of football (C)
- Such and such a sound wave (X) counts as a sentence (Y) in the english language (C)
- This piece of paper (X) counts as money (Y) in the United States (C)
The "X counts as Y in context C" formula is not intended to show how people explicitly think about institutional facts. In most cases institutional facts are not explicitly stated. The formula is just a useful way to think about how people are prepared to regard things or treat them as having a certain status.
Status functions are always associated with social power. This power is simply the ability to get people to behave in a certain way. There are positive social powers such as rights, permissions, authorizations, certifications, and entitlements. There are also negative powers such as obligations, duties, and requirements. These powers provide us with reasons for acting that are independent of our inclinations and desires. For example, if I recognize something as your property, then I am obligated not to take it or use it without your permission. Likewise, if I have the status the president of the United States, then I am authorized to command the military.
Status functions are always associated with social powers that lock into human rationality by creating "desire-independent reasons for action". In the game of American football, the end zone creates a conditional power, such that when a player makes it to the end zone with the ball, his team is entitled to 6 points while the opposite team is required to recognize that they have 6 points even though the opposite team would rather not recognize those points.
With this brief foundation in place, I can now more precisely describe universal human rights. A universal human right is described by an observer-relative constitutive rule such that:
- A certain biological organism (X) counts as a human being (Y) in the context of the whole universe (C) or, it can also be said more religiously:
- A certain creation that is made in the image of God (X) counts as a human being (Y) in the context of the whole universe (C).
The power associated with this constitutive rule is that any organism that satisfies the conditions of the Y term has certain powers (rights and entitlements) such as the right to life or the right to free speech.
Universal Human Rights imply Universal Human Obligations
This analysis reveals some very interesting implications. It shows that all universal human rights imply universal human obligations. Rights are always rights against somebody. If I have a right to walk in a park, then everyone else has an obligation not to interfere with that activity. If A has a right against B, then B has an obligation to A. For example, the bill of rights are rights against Congress, they place congress under an obligation not to interfere with the rights articulated in the Bill of Rights such as the right to free speech.
Put more precisely:
- if a human being (H) has a right to perform action (A), then other people (P) have an obligation (O) not to interfere with (H) performing action (A)
Positive & Negative Rights
There are two main classifications of human rights—positive and negative. The formulation of rights above is an example of a negative right. The type of rights found in the Declaration of Independence and the Bill of Rights are negative rights. The rights laid out in the founding documents of America impose an obligation on everyone not to interfere with certain human activities such as the establishment or exercise of religion, or free speech, etc. In other words negative rights are rights that people have to be left alone.
Positive rights require more than just non-interference. They require positive action in ensuring that everyone receives those rights. The logical form of a positive right would look something like this:
- If a human being (H) has a right to (B), then other people (P) have an obligation (O) to ensure that (H) obtains (B)
A formulation of human rights that can apply to both positive and negative rights can go something like this:
- A Human Being (H) has a human right (R) which generates an obligation (O) for other people (P)
In some situations, the distinction between positive and negative rights is blurred. Nevertheless, I think these concepts can help us to avoid confusion in many cases. For example, if I have the right to life and that right is a negative right, then it is implied that other people are obligated not to harm my life, but it does not imply that people are obligated to provide me with food or expensive healthcare so as to prolong my life as long as possible. Similarly, people in remote parts of the world have a right to life, but since it is a negative right, I have no obligation to provide them with food and healthcare. I think that the right to life can only be properly understood as a negative right in this context. (I will write more on this later.)
Universal Human Rights are Institution-independent
But what happens when other people (P) do not want to fulfill their obligations(O)?
When other people do not want to fulfill their obligations to other human beings, and those human beings are not in a position to guarantee that their own rights are not infringed, then it becomes necessary for some third party to protect human rights by ensuring that other people fulfill their obligations. That third party could be the government which has the obligation to protect human rights by enacting civil laws that are enforceable because the government can use brute force. Therefore our logical formula that describes human rights can be expanded as follows:
- A Human Being (H) has a human right (R) which generates an obligation (O) for other people (P) which right creates a different obligation (O2) for a third party (G) to protect (H) and his/her rights.
An application of this formula would be something like this:
- A human being (Gavin Jensen) has a human right (right to life) which generates and obligation (do not murder Gavin) for other people (everyone in the world) which right creates a different obligation (protect Gavin's right to life) for a third party (the United States government) to protect (Gavin Jensen's) right to life.
When the government creates laws, they are obligated to ensure that those laws respect human rights. If human rights are really universal then that means that governments that protect those rights cannot have a system of pure democracy. If they want to protect human rights, then they must enforce certain laws that cannot be changed by popular vote.
What happens when government (G) does not fulfill their Obligation (O2)?
This is the primary problem with government. You cannot have a G2 with an O3 that ensures that G1 fulfills its O2 because that would create an infinite regress. The framers of the United States Constitution understood this problem and solved it by creating a government that had different branches that each had different interlocking sets of powers that would keep each branch in check.
For human rights to be universal, they must exist outside of the scope of any government. They do not come from a constitution or any other legal document. Constitutions and laws are attempts to protect pre-existing human rights. The purpose of civil law is to implement human rights. Thomas Paine wrote in The Rights of Man that
"Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not in all cases, sufficiently competent. Of this kind are all those which relate to security and protection."
Citizens can sometimes create state recognized rights that do not depend on universal human rights. In these cases the obligations created by those rights should only apply to the citizens of that institution. For instance, if same-sex marriage is not a universal human right and a state wants to grant the right of marriage to same-sex couples, then they can do that but that right would only create an obligation for the citizens of that state. But people outside of that institution would not be obligated to recognize that institution-relative right.
Human rights must be justified
There is one last crucial point about human rights that I want to mention here and address more thoroughly in subsequent posts. Even though status functions exist because of collective recognition of those status functions, it does not mean that anything goes. Some claims to human rights are valid if they can be justified, while other claims are invalid because they cannot be justified. In this post, I have not tried to justify any specific human right. I have only tried to outline what human rights are and explain the nature of their existence. In subsequent posts, I intend to offer justifications for specific human rights. It is my opinion that it is much easier to justify human rights that are negative rights than it is to justify positive human rights. In fact, I will argue that almost all claims of positive human rights are unjustified. Also, I will argue that human rights could not exist if moral relativism were true, nor could they exist if there was no such thing as human nature.
Summary of main points
- Human rights exist just as money exists. Both are observer-relative phenomenon meaning that we do not discover human rights (or money) in the same way that we discover that water is made of H2O.
- Because human beings have a recognized status function, they have social powers that include rights to perform certain actions.
- Analyzing human rights in this way makes it very clear that human rights imply human obligations.
- There are two types rights—positive and negative.
- Human rights exist independently of laws created within any institution and apply universally.