The Philosophy of Human Rights

“Even those who agree that rights exist struggle to locate where they come from, what counts as a genuine right, and how to realize them.”

Introduction

Human rights, as a concept, remains among the more ambiguous moral and legal practices of today. During the last century, figures on both the political right (such as Carl Schmitt) and on the political left (such as the critical legal studies movement) denigrated the concept of human rights. They dismissed them as utopian fantasies at best—and screens masking the real operations of power at worst. Even those who agree that rights exist struggle to locate where they come from, what counts as a genuine right, and how to realize them.

Positivists—in the broadly Benthamite tradition—see rights as flowing from concrete legal and constitutional protections. In this reading, one can generate a right to almost anything so long as a legal body chooses to codify it into law. Liberal egalitarian theorists—in the vein of Ronald Dworkin and Martha Nussbaum—believe that rights must flow from a deeper set of principles, such as a commitment to human dignity or the fulfillment of human needs. This suggests that the current set of rights recognized by most states—and some international legal bodies—is highly inadequate and predicated on what Henry Shue might call the false distinction between so-called negative rights and the positive rights that collapse in practice. Others follow Nozick in regarding rights as “side constraints” protecting individuals from coercive political authorities, while defining what the state can do to generate law and order. Individuals who are attracted to these kinds of positions are usually skeptical—or even hostile to—the idea that rights can be generated that entitle people to more than protection from coercion. They tend to dismiss the idea that rights can or should mean anything more than this. Finally, there is a small tradition of individuals who regard rights as “natural,” which typically means they flow from a deeper set of metaphysical commitments about human nature or the good in itself. The most prominent figure who argues for this position is the controversial Oxford scholar John Finnis, who links the argument for natural rights to his claims about natural law and the relationship between the individual and God.

In my forthcoming book Making Human Dignity Central to International Human Rights Law: A Critical Legal Argument, I establish links between a left-wing conception of human dignity and human rights and attempt to rebut objections from critical legal theorists that rights are invariably a mask hiding the exercise of coercive power (and are distractions from hegemonic forces directing the law). In these two articles, I will unpack this position in some detail, beginning with a brief look at the philosophy of human rights leading up to the contemporary age.