Philosophers and lawyers have expended a lot of intellectual energy thinking about questions of what rights really are, about when a right is genuine, what the nature of a right is, what the value or the purpose of a right is, who possesses this or that other right, and so on.
Lawyers have a good reason to think and argue about such questions: they get paid to! But why do philosophers get involved as well?
The answer, I take it, is that when you encounter a knotty and contested concept, it is your job, as a philosopher, to try and make some sense of it, to clarify what the term designating it means.
I’m not sure philosophers have been doing the job very well. This year we mark the centenary of the publication of Wesley N. Hohfeld’s seminal contribution to the topic. This venerated and much-cited work established, as its most basic insight, that there is no point at all asking ‘what is a right’ if you expect thereby to find some unified defining answer. In the intervening hundred years, several generations of philosophers have persisted in attempting the impossible, and, ironically, very often deploying ‘Hohfeldian’ conceptual schemata in doing so!
This matter would be of merely scholarly concern except for one big thing. Some of the confused ideas about rights could be an obstacle to achieving global justice and even the very ends that talking about human rights is intended to achieve.
In some parts of the world, the discourse of human rights is regarded with suspicion and even disdain, considered to be a part of a distinctively western and individualist ideology. That (mis)apprehension could be allayed with a very simple expedient: recognize the simple fact that a human right is not a ‘thing’ that an individual ‘possesses’.
The entire content and normative force of human rights talk can be conveyed without using the countable noun ‘a right’. What is right and wrong, what people ought and ought not do, are terms that suffice.
Some benefits of doing so:
• If we get back to talking about what is right and wrong conduct, it may also be easier for e.g. China to agree to some of the moral sentiments the UDHR is intended to convey.
• It would generally serve to defuse criticisms of the UDHR as too individualistic in its assumptions. Individuals can be the focus of moral concern without needing to be deemed possessors of supposed things called rights.
• A benefit for scholars as well as practitioners would be to undercut a lot of equivocal agonising over what kind of ‘thing’ a right is and what it means to ‘possess’ one, and get attention back to what matters: what should we expect one another to do or refrain from?
To say that a person ‘has’ a right is a shorthand way of conveying the point that the person is in a certain normative position in relation to other human beings. Speaking of being rather than having pre-empts too possessive an understanding of ‘what rights are’.
Some astute political philosophers have queried whether human rights are really a species of right at all. My own suggestion is that we should be sceptical about whether there is even a genus.
Rights talk will continue for a while yet, I am sure. But some of the confusions and equivocations attending it need not! My own more worked-out thoughts on the subject are still a work-in-progress – a work that has been put on hold during 2013 due to pressures of managing Edinburgh University’s Politics & International Relations department on top of everything else! The version I shall finally publish differs appreciably from this working paper, but the basic idea is conveyed here. So with the Global Citizenship Commission coming to town this week to talk about renewing the UDHR, the time seems opportune to reflect on what people really mean when using the term human rights.
For a flawed, but hopefully still interesting argument along the above lines see Tim Hayward, ‘The Sense and Significance of Rights Talk’, SSRN Working Paper (2013). For a spin-off paper that ended up seeing the light of published day first, see also Tim Hayward, ‘On Prepositional Duties’, Ethics 123(2) (2013): 264-91. This latter paper looks at how, if we are to apply some conceptual hygiene to the notion of a right, we should probably re-examine some of our thinking about the related idea of a duty too!
Tim Hayward 