The Concept of Human Rights

Jack Donnelly

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9781032807812
• eBook ISBN:
  9781000704730
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

First published in 1985. In this study, Donnelly distinguishes between "having a right" and "being right" and elaborates the distinction with great subtlety to show that rights have to be understood as action and not as a possession. This is done with such clarity and good sense that he is able to cast light on all aspects of the often confusing discussions of the natures and usages of "right". He illuminates an astonishing range of issues, from the limitations of Thomist and utilitarian conceptions of right to the confusions of many present-day defenders of rights, both in the West and the Third World. As importantly, Donnelly is centrally concerned with the human aspect of "human rights". He is thus able to rest his discussion of rights on a plausible philosophical anthropology as well as an appreciation of an historical dimension to human rights, and, at the end of his book, is able to open the door towards potential new developments in the discussion of human rights. Down the path he points us lies a reconciliation of the notion of individual rights with that of political community. This title will be of great interest to students of politics and philosophy.

1 INTRODUCTION: BEING RIGHT AND HAVING A RIGHT

Introduction and Overview

What are human rights? Literally, they are the rights of humans. More precisely, human rights are the rights one has simply because one is a human being. This book is devoted to exploring the dimensions and implications of this deceptively simple answer.

Three major levels or parts can be distinguished in the theory of human rights:

(1) the nature of human rights (What kind of a ‘thing’ is a human right and how does it ‘work’?);

(2) their source (From what or where do we get human rights?); and

(3) their substance or specification (What are the particular things to which we have human rights? What is on the ‘list’ of human rights?).

While the third level certainly is the ultimate theoretical objective, I shall concentrate on the first two because of their logical priority as well as my inability to provide an adequate philosophical justification of a particular list, for reasons that should become clear after the discussion of the source of human rights in Chapter 3.

Everything that is on a list of human rights — any list — is a human right. Our concern will be with the meaning, source and implications of inclusion on such a list, with what it means, not only logically but behaviourally, to be able to say x’ is a human right’ or ‘I have a human right to x’ What sort of obligations do human rights impose? How, and on whom? How are claims of human rights related to other claims that may be made on persons and institutions in a position to provide or deny x? What is their moral foundation? How would the world be different if they were not available?

The literal definition of human rights as the rights of humans provides the structure for the first half of the book. In this chapter, following this very brief overview, we will begin to clarify the meaning of ‘rights’ by distinguishing two important senses of the term ‘right’. The distinction between something being right and someone having a right provides the conceptual core around which the book revolves. Chapter 2 then explores some of the ways rights ‘work’, both in general and, in its final section, with special reference to human rights.

In Chapter 3 we turn to the source of human rights; roughly, to the meaning of ‘human’ in ‘human rights’. I argue that socially shared moral conceptions of the nature of the human person and the conditions necessary for a life of dignity are the source of human rights. What distinguishes human rights from other moral ideals, however, is that they take the form of rights, a particular kind of institution and instrument.

Combining these accounts of the nature and source of human rights yields what I call the ‘constructivist’ theory of human rights: the underlying moral vision of human nature, if expressed and implemented in the form of human rights, will actually create the envisioned person, so long as it lies within the psycho-biological and social limits of human possibility. Thus human rights represent a special sort of self-fulfilling moral prophecy and provide a plan for the construction of a political regime in which a truly human being can lead a life of dignity, developing and expressing the moral possibilities of human nature.

While this account of the nature and source of human rights is essentially original, I prefer to stress its descriptive character. People do claim human rights, and have done so for at least two or three centuries. Such claims, I am painfully aware, have been subject to an incredible variety of abuses, both vicious and innocent. None the less, the still deep resonances of a document such as the French Declaration of the Rights of Man and the Citizen, the remarkably wide acceptance, in word and aspiration if not in deed, of more recent documents such as the Universal Declaration of Human Rights, and the persistent use of claims of human rights, despite theoretical dismissals and widespread political violations, suggest a core of meaning beyond abusive misappropriations of the rhetoric of human rights.

I believe that most of us have an intuitive grasp of this meaning and some of its most important political implications, in spite of our difficulty in making it explicit. My goal here is to explicate this understanding; this is what conceptual analysis, as I understand it, is about. The real test of the constructivist theory, then, is its ability to capture and elucidate our intuitive sense of ‘human rights’. Therefore, the theory is ‘descriptive’: although about one of our most important and politically profound moral notions, it aims to describe the way ‘human rights’ function in our language and political practice, how people use ‘human rights’, and what they mean when they claim them.

Needless to say, human rights represent but one of many ways that have been or might be tried for organising political life. Although there is neither space nor reason to explore all the alternatives, a consideration of some of the more prominent ones — natural law, utilitarianism, prescription, Marxism, and syncretic Third World conceptions of ‘human rights’ — is offered in Chapters 4 and 5. The purpose of these. comparisons is to elaborate the distinctive nature of the human rights approach to human dignity and political organisation, and provide a limited and partial argument for preferring the human rights approach. Finally, in a brief postscript, I touch on the problem of lists of human rights.

Being Right and Having a Right

For all their differences from other types of rights, human rights are rights. Therefore, the first order of business, which will occupy us through most of this and the following chapter, is to analyse the concept of rights. The starting point for this enterprise is the distinction between something being right and someone having a right to something.

The word ‘right’ encompasses at least two concepts of great political and moral significance. On the one hand, ‘right’ refers to moral righteousness, as in ‘It’s just not the right thing to do!’ On the other hand, ‘right’ may refer to entitlement, as in the claim ‘I have a right to …’ This second sense of entitlement distinguishes rights, human or otherwise.

These two senses of ‘right’ have very different philosophical ‘grammars,’ indicative of important differences in these two concepts that share a single word. When we talk of righteousness, the verb generally used is ‘to be’ — for example, ‘It is right for you to help him’, ‘What is it right to do here?’ ‘It wouldn’t be right to leave now’. Therefore, I will refer to this sense as ‘right in the sense of “what is right”’ and speak of something being right. When speaking of entitlements, however, ‘to be’ is rarely if ever used. Instead, we talk of ‘having’ or ‘holding’ rights, and of various ways of using the rights one ‘has’. I will refer to this as ‘right in the sense of “having a right”’.

To say that something is right points to conformity with a standard of righteousness; ‘xis right’ is a judgement of x’s rectitude, as defined by established standards. As a result, right in the sense of ‘what is right’ is used primarily as an adjective or adverb. In contrast, right in the sense of ‘having a right’ is almost always used as a substantive, and only in this sense do we speak of ‘a right’ or ‘rights’ in the plural (except for relatively rare locutions such as ‘the rights and wrongs of capital punishment’). Rights are ‘things’ that one ‘has’, ‘holds’ and may ‘exercise’ or otherwise put to use. One cannot possess, but only be in accord with, the (standard of) right, whereas having a right is crucial.

While ‘right’ in both senses expresses or imposes obligation, who is obliged, the type of obligation, and the relationships between the parties depend largely on the sense in question. Consider the paradigmatic claim ‘It is right for A to do x (with respect to B)’. Here A is obliged by the righteousness of doing x, and the obligation associated with x being right is primarily an obligation to perform an act (because it is right). A’s obligation is to do x; the rectitude of doing x, in itself, creates the obligation. That it is done in relation to B (rather than C or D) is largely incidental. Thus we characteristically speak of something being right.

But when A has a right to x with respect to B, B is obliged by the ‘right’, and his obligation is primarily to a person (to A). Here the intrinsic nature of x is a secondary consideration; B’s obligation arises primarily from the fact that A has a right to x, and therefore is owed x. For example, contracts and promises may establish (prima facie) obligations by conferring rights to actions or holdings that have no intrinsic moral relevance. Thus we characteristically speak of someone having a right.

These contrasting emphases on the action and on the person arise primarily from the entitlement provided by rights. Being right establishes duties, but nothing more. However, to have a right to x is to be entitled to x, to be owed x. Therefore, to fail to respect someone’s rights is not just bad or wrong and a failure to discharge a duty; it is a special and particularly serious affront to that person.

Titles serve as proof or justification. Having a right/title to x provides (prima facie) justification for having, doing or enjoying x, independent of considerations of what is good or right. We can see this in claims such as ‘It’s mine; I’m entitled to it’ or ‘You’re entitled to do it whether he likes it or not’.

To capture this prima facie priority of rights over other justifying principles, Dworkin (1977: xi, 90) speaks of rights as ‘trumps’. Rights are not just one type of moral or social goal, on an equal footing with others. Neither are they merely interests, or even just important or protected interests. Rights are ‘interests’ that have been specially entrenched in a system of justifications and thereby substantially transformed, giving them priority, in ordinary circumstances, over, for example, utilitarian calculations, mere interests, or considerations of social policy. In fact, a central function of rights is precisely to insulate right-holders from claims based on principles such as utility, which otherwise would be not only appropriate, but decisive, reasons for public or private action. This priority is not absolute — rights are ‘defeasible’; in some circumstances they may be justifiably overridden — but it is essential to the way rights ‘work’.

Furthermore, rights can be claimed. Rights/titles provide a warrant for making and pressing claims that have the special force of trumps. While one may claim that something is right — ‘That’s not the right thing to do’ is a very important type of claim in moral discourse — claims of righteousness are quite different in force and function from rights-claims.

‘That’s wrong’ (‘That’s not right’) is more like a claim of knowledge — compare ‘That’s not the right answer’ — even though it is a moral claim made to influence behaviour. For example, both share the characteristic use of the verb ‘to be’, reflecting their primary reference to standards of rectitude, whether moral or factual; what is claimed is (lack of) conformity with established standards, and this (lack of) conformity is the source of the claim’s force.

‘I have a right to that’ is more thoroughly and immediately performative. While on its surface ‘informational’, such a rights — claim is a demand for action that initiates a regularised process or social practice for bringing about the duty-bearer’s compliance. As Feinberg (1980:150) puts it, claiming a right makes things happen, and making a claim is essential to many of the most important uses of rights. This brings us back to the fundamental fact of having a right: a right is held by a person, who is entitled to assert or otherwise exercise it, thereby bringing his entitlement into play and controlling the development of the relationship with the duty-bearer.

In many instances, something will be right in both senses. For example, if you owe me £10,1 have a right to receive £10 from you and the right thing for you to do is to repay me. The two senses may even be genetically linked. For example, the contractual conferral of rights usually will make a morally indifferent act right in the sense of ‘what is right’. Conversely, social welfare programmes often seem to have emerged when certain benefits, protections or services came to be seen to be so right that they demanded that rights/entitlements be created.

In many instances, though, there is a fundamental disjunction between the two senses. For example, it may not be right to respect a right established by an unjust law. Such disjunctions are especially interesting and important to us here.

Simply because x is right it does not necessarily follow that anyone has a right to x. For example, even if it is right to perform acts of benevolence, such as assisting the needy and hungry, a hungry person does not, ipso facto, have a right to receive food from me, or from anyone else. He is not thereby entitled to my food or my money to buy food: it is my food and my money; I have a right to it. Therefore, we stand in quite a different relationship than we would if he had a right to receive food from me. I have duties to him but he has no rights against me.

Given that this is a book about human rights, one obvious reaction to this example is that it ignores the (human) right to food. In one sense this is true: the example is defined without human rights in mind, but rather in order to illustrate the disjunction between what is right and rights. In another sense, though, human rights are not being ignored, or at least not in a way that significantly alters the case. As I will argue below, human rights are held, or at least exercised, primarily in relation to the state. Therefore, they would enter into the personal relationship in this example only indirectly if at all (primarily as a critique of the regime that allows or establishes the distribution of legal rights postulated in this example). However, until the end of Chapter 2 my focus will be on the nature of rights of all types, rather than the special features of human rights.

I do not wish to deny that there are unusual circumstances where we might say that someone is morally ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Half Title
• Original Title Page
• Original Copyright Page
• Contents
• Epigraph
• Acknowledgements
• 1. Introduction: Being Right and Having a Right
• 2. The Nature of (Human) Rights: ‘Having’ a Human Right
• 3. The Source of Human Rights: Human Nature and Human Rights
• 4. Human Rights and the Limits of State Action: Competing Theories and Approaches
• 5. Individualism and Human Rights: Further Challenges to Human Rights
• 6. Postscript: The Problem of Lists
• Bibliography
• Index