Making Sense of Human Rights

[drug_mentor]

Before beginning a discussion about the nature of human rights, it seems prudent to get clear on the concept of a right. I should here clarify that when I speak of rights, I am speaking about moral rights. Though many are likely to consider rights as a purely legal concept, upon reflection, unless one is prepared to endorse an empty sort of legal positivism, it becomes clear (to me, at least) that rights must be grounded in normative considerations which are antecedent to legal systems.

Due to the length of this post I will break it into sections. In section one I will attempt to clarify the framework I am using to understand the competing conceptions of rights, in section two I will describe the two primary conceptions of rights, in section three I will outline the competing conceptions of human rights, in section four I will explore how the theories of rights can be reconciled with the different conceptions of human rights, finally, in section five I will say which conjunction of these conceptions I think is presupposed by contemporary human rights doctrine.

My understanding of rights presupposes that Hohfeld's analysis of jural positions is correct (the name jural positions is somewhat misleading in this context, as I have explicitly stated that I am speaking of moral rights, not legal rights; though, of course, the two may, and in many cases do, overlap). I will not presently advance any argument in favour of this presupposition, though I am happy to attempt to answer any criticisms of Hohfeld's analysis. It is important to note that the two main theories of rights simpliciter which I will discuss can be conceived of in ways which depart from Hohfeld's analysis, but unless challenged, I will restrict myself to what I see as the most compelling (i.e. Hohfeldian) account of each theory.

1. The Hohfeldian Framework

First-order positions
Claim<-------->Duty
Liberty<------>No-claim

Second-order positions
Power<------->Liability
Immunity<------->Disability

The four positions on the left are called Hohfeldian incidents, the four positions on the right are their correlative constraints. On Hohfeld's analysis, the positions in each row are always correlative, which is to say that the presence of a claim entails the presence of a duty (and vice versa), the presence of a liberty entails the presence of a no-claims (and vice versa), and the same logic of entailment applies to the second-order positions. The positions diagonal from one another are contradictories. Self-evidently, claims and no-claims are contradictory, the same holds for the following pairs: duties and liberties, powers and disabilities, immunities and liabilities.

I take the terms invoked under first-order positions to be fairly intuitive, and without any request for clarification I will let them speak for themselves. Second-order positions are slightly more complicated, as they sometimes determine first-order positions. To hold a power is to be endowed with the ability to waive or enforce some claim or liberty of another person, the person subject to this enforcement or waiver holds a liability. To hold an immunity in connection with some claim or liberty means that no other person is endowed with the power to alter said claim or liberty, to lack the power to alter some persons first-order Hohfeldian incident is to possess a disability.

If anyone finds the preceding remarks unclear a fairly perspicuous account of Hohfeld's framework can be found here.

2. Two Competing Conceptions of Rights

There are two main theories of rights, the Interest Theory and the Choice Theory (there are others which I will not discuss here, though I encourage any adherents of an alternative theory to make their case).

The Interest Theory identifies rights with Hohfeldian claims and states that rights are claims which grant the normative protection of some feature of the right-holders situation, the protection of which is generally (but not always) in the interest of the right-holder.

The Choice Theory identifies rights as a conjunction of Hohfeldian claims and Hohfeldian powers; the Choice Theory posits that a person can only be deemed a right-holder if they possess both a claim and the power to choose whether the correlative duty associated with said claim is enforced or waived.

There are strengths and weaknesses associated with both conceptions, which I will not enter into here for the sake of brevity. I expect some of these are likely to come up as the discussion develops.

3. The Nature of Human Rights

There are two primary ways to conceive of human rights: as Natural Rights, or as Institutional Rights.

Natural Rights is the view that human rights are simply rights which people possess by virtue of nothing more than their being human. On this conception, human rights are pre-institutional and are thus apolitical; they are timeless normative constraints on human action which exist independent of political entities.

Institutional Rights is the view that human rights are normative protections which a political community must necessarily grant to all of its members in order for that political community to be legitimate. On this conception, human rights are inherently political.

Natural Rights might be seen as attractive because it seems to capture the intuitive view that all humans are in possession of human rights. However, at face value it seems this conception cannot readily accommodate the extensive number of rights enshrined in contemporary human rights doctrine. For example, it is difficult to see how one could have a right to "[r]est, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays" in a state of nature, such a right seems to presuppose a certain political structure. (The right just mentioned can be found under Article 7 of the International Covenant on Economic, Social and Cultural Rights, see the end of this post for a link.) Moreover, one might think that the notion of Natural Rights entails some rather mysterious metaphysical commitments.

Institutional Rights is more successful when it comes to accommodating a large number of human rights, but, it seems that on this view human rights would more appropriately be called citizens rights, as anyone who was not a member of a political community would fail to be in possession of them.

4. Reconciling Conceptions of Rights and Human Rights

I think that the Natural Rights view of human rights can only make sense if one adopts the Choice Theory of rights. Interests can be construed very broadly, and it seems quite clear that adherents of the Interest Theory of rights must posit a narrower set of interests which ground rights, in this sense the Interest Theory is committed to normative presuppositions about which interests are important enough to ground rights and which aren't. I don't find it credible to suppose that natural rights could be grounded by these assumptions, it seems odd to suppose that what humans are naturally entitled to could be determined by this kind of social fiat.

The Institutional Rights view can accommodate both the Choice Theory and the Interest Theory of rights. However, the conjunction of Institutional Rights with Interest Theory seems undesirably paternalistic, and is prima facie inconsistent with liberal pluralism. I think the conjunction of Institutional Rights with Choice Theory is quite an appealing view; it amounts to saying that any legitimate political community must necessarily grant each of it's members a particular domain in which they are absolutely free. This latter account is consistent with liberal pluralism.

5. The Commitments of Contemporary Human Rights Doctrine

At first glance contemporary human rights doctrine seems consistent with both the Natural Rights and the Institutional rights conceptions. However, I think it is rather clear that this doctrine presupposes the Interest Theory of rights; it is plainly obvious that people lack Hohfeldian powers to enforce the claims which they are allegedly in possession of. Because I don't think Natural Rights can be reconciled with the Interest Theory, I see the human rights doctrine as being committed to the Institutional Rights conception.

For various reasons, some of which I have touched on here, I think the conjunction of Institutional Rights with the Interest Theory is an undesirable conception of human rights. These considerations have forced me to conclude that the contemporary human rights doctrine posits a larger number of rights than people can correctly be regarded as being in possession of.

This has been a very long post, and there is much to discuss. I created this thread in the hopes of generating some discussion about the best way to make sense of human rights, but there is also scope for discussion of which theory of rights simpliciter is more desirable.

Here are links to the various components of human rights doctrine:
Universal Declaration of Human Rights
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights

 

[Vagina Lover]

Measurement of duty of care seems to be a reflection of this overlap between morals and legal rights.

Morals, on one hand, are a societal construct which can be attributed to environment and ethical principles.

Whilst the law itself is built upon precedent.

However, without duty of care, we, as a collective society, would likely descend into chaos.

So human rights must begin with the human subject themselves, not with the legal definition of what a human right is.

 

[drug_mentor]

Measurement of duty of care seems to be a reflection of this overlap between morals and legal rights.

I am not so sure about this. I don't see how one could determine property rights by measuring duty of care, and it seems self-evident to me that people do in fact possess both legal and moral property rights.

Morals, on one hand, are a societal construct which can be attributed to environment and ethical principles.

How do you conceive of morals and ethical principles being different? I view them as synonymous, and consequently have a hard time seeing how your account of how morals are constructed isn't circular.

So human rights must begin with the human subject themselves, not with the legal definition of what a human right is.

I am having difficulty fully understanding what you are saying here. What do you mean 'begin with'? Do you mean that facts about human rights must be grounded in facts about human beings, or that in order to get an insight into human rights we must first gain insight into the humans who hold them?

 

[Vagina Lover]

I am not so sure about this. I don't see how one could determine property rights by measuring duty of care, and it seems self-evident to me that people do in fact possess both legal and moral property rights.

Duty of care is used both in construction of property and in commercial administration of such properties. There are cases of real estate agents being found liable for injuries of tenants. There are cases of engineers being found liable for catastrophic failure of a property well past the predicted life-span of such a property, as is the case with administrators of companies and financial organisations - even administrators of internet sites are not immune from what may occur due to that site being used by others. We all have a duty of care towards other humans, and that is why we have rights as humans.

If you are referring to ownership of property in general, there is relevance also. For example, the owner of a car has a duty of care towards other drivers, passengers, and pedestrians. The owner of a firearm or knife has a duty of care for responsible ownership. The owner of a banana has a duty of care to not leave the peel on the ground for another person to slip on and injure themselves.

How do you conceive of morals and ethical principles being different? I view them as synonymous, and consequently have a hard time seeing how your account of how morals are constructed isn't circular.

Morals are not ethical principles.

Ethics are more like rules provided by an external source, while morals refer to one's own principles regarding right and wrong.

Ethics come from a social system and may be regarded as external. Morals are more internal to an individual.

Whilst ethics tend to be consistent within certain context, they can vary and be dependent on others by definition.

Morals can also be consistent, but often change if an individual's beliefs change.

Ethics are a function of society, while morals are a function of one's belief in right or wrong.

I am having difficulty fully understanding what you are saying here. What do you mean 'begin with'? Do you mean that facts about human rights must be grounded in facts about human beings, or that in order to get an insight into human rights we must first gain insight into the humans who hold them?

I was summarising.

Law is subjective and built upon precedent.

Humans are objective in reality.

For one to be treated as a human and have these legal rights afforded to all, one should first demonstrate that they can comply with such duties themselves.

Duty of care embodies human rights, because one must do unto others as you would have them do unto you. It is the Golden Rule.

 

[drug_mentor]

Duty of care is used both in construction of property and in commercial administration of such properties. There are cases of real estate agents being found liable for injuries of tenants. There are cases of engineers being found liable for catastrophic failure of a property well past the predicted life-span of such a property, as is the case with administrators of companies and financial organisations - even administrators of internet sites are not immune from what may occur due to that site being used by others. We all have a duty of care towards other humans, and that is why we have rights as humans.

If you are referring to ownership of property in general, there is relevance also. For example, the owner of a car has a duty of care towards other drivers, passengers, and pedestrians. The owner of a firearm or knife has a duty of care for responsible ownership. The owner of a banana has a duty of care to not leave the peel on the ground for another person to slip on and injure themselves.

I see what you are saying about duty of care, and I don't disagree that it is relevant when it comes to understanding many rights. However, I don't think any of the cases you have discussed are properly described as property rights, though they are rights which have some contingent relation to held property. The duties the owner of a car have to others are not property rights, as those duties entail claims held by people who do not own the relevant object (i.e. the car); so, what you are referring to is the right of persons not to be harmed through negligent driving. While I don't deny that such rights exist, these rights are not property rights.

The owner of a car has property rights in relation to the car, by this I mean that they have a claim which places others under a duty not to take their vehicle without permission. I don't think it is plausible to construe this duty as a dutiy of care, as duty of care involves an obligation to ensure the well-being of others, and it is not clear that taking someones car always goes against their well-being. Someone may have a car on finance that they struggle to pay, and stand to gain financially through insurance if the car is stolen. In such a scenario it seems plausible to think that stealing this persons car actually promotes their well-being, but it also seems self-evident that the car owner still has a right against others stealing their car.

Morals are not ethical principles.

Ethics are more like rules provided by an external source, while morals refer to one's own principles regarding right and wrong.

Ethics come from a social system and may be regarded as external. Morals are more internal to an individual.

Whilst ethics tend to be consistent within certain context, they can vary and be dependent on others by definition.

Morals can also be consistent, but often change if an individual's beliefs change.

Ethics are a function of society, while morals are a function of one's belief in right or wrong.

In philosophy the terms ethics and morals are generally used interchangeably. I see what you are saying though, you are using one term to refer to subjective moral codes and another to refer to the shared moral values of a particular political community. I can't say I agree with your meta-ethical claims but that is a topic for another thread.

Duty of care embodies human rights, because one must do unto others as you would have them do unto you. It is the Golden Rule.

I don't think it's clear that the Golden Rule can be reduced to, or explicated by, duty of care (or vice versa). In many cases, 'doing unto others as you would have them do unto you' involves leaving them unhindered to do what they want, and in some of these cases a duty of care could more plausibly be seen as a duty to interfere with an individuals liberty if their exercising it will be detrimental to their well-being.

Ignoring the criticisms just raised for a moment, it seems that you are advocating the Natural Rights conception of human rights over the Institutional Rights conception? Your characterisation of rights as duty of care suggests to me that you are probably more sympathetic to the Interest Theory of rights than the Choice Theory, is that correct?

 

[Vagina Lover]

It seems that we are getting into cherry-picking mental masterbation territory here

It doesn't really matter who owns the vehicle, weapon, or banana. As humans, we have a duty of care towards one another, and it seems to reciprocate humans rights.

I was just pointing that out.

Aside from that, I left all of these little knit-picky bits of philosophy behind when I graduated in my major area like 5 years ago.

I'm not sure what insurance has to do with anything here.

Also, the Golden Rule is not reduced to, or explicated, by Duty of Care. I just quoted the Golden Rule and said what it was.

Hopefully someone else will be interested to continue this discussion with you about making sense of human rights, which is what I thought I was helping you do.

 

[Jabberwocky]

I find that communitarianism is a very nice and not at all mutually exclusive framework when dealing with political liberalism and human rights theory. There is however Human Rights and International Humanitarian Law. I assume we are discussing more the former (the theory) than the latter (the practice)?

I figured I should probably weigh in on this conversation considering I wrote my fucking thesis on the topic, though I addressed it more from the standpoint of Contract Theory (which I see as a significant bedrock to modern political liberalism, and IHL is generally taken to be an apex of political liberalism).

I never liked the golden rule. What about doing unto others as they would have you do unto them? The golden rule always struck me as rather selfish at best, paternalistic at worst.

About time I saw some P&S action, huh drug_mentor?

 

[drug_mentor]

It seems that we are getting into cherry-picking mental masterbation territory here

For me, one of the major roles of philosophy is to get precise and clear on important concepts, and this is often done through discourse. The point is not to just assert some clearly incomplete/problematic account and leave it at that, to each his own I guess... I can't say I understand what you mean by the cherry picking comment, as I did my best to address the majority of substantive comments that you made.

It doesn't really matter who owns the vehicle, weapon, or banana. As humans, we have a duty of care towards one another, and it seems to reciprocate humans rights.

Well it does matter who owns the vehicle insofar as duty of care cannot explain the rights which the property owner holds in relation to their car...

Aside from that, I left all of these little knit-picky bits of philosophy behind when I graduated in my major area like 5 years ago.

That's fair enough, but, if you think philosophy is just nit picky mental masturbation it is hard for me to understand why you bothered engaging in philosophical discussion in the first place.

I'm not sure what insurance has to do with anything here.

It was an example which I think illustrates fairly clearly that the duties entailed by rights cannot always be viewed as duties of care.

Hopefully someone else will be interested to continue this discussion with you about making sense of human rights, which is what I thought I was helping you do.

I hope so. I am sorry you don't care to continue the discussion. Just because I don't agree with everything you say doesn't mean I don't appreciate your contribution, I do, and one can get a clearer idea of their thoughts on an issue by engaging in discussion with those they disagree with. It's a shame that you can't take reasoned criticism of your ideas more constructively, and instead prefer to write it off as mental masturbation. Thanks for the discussion.

 

[Vagina Lover]

I use philosophy as required

Masturbation loses its fun after the first completed university degree in my experience

 

[Vagina Lover]

A driver of a vehicle has a duty of care to others regardless of if they own the vehicle or not - whether you wish to cherry-pick this example only in an attempt to use it as a simple contradiction is your decision. The counter-example was incorrect anyway, because there are cases in which a vehicle driver will not be the owner, but will be regarded as such in the eyes of the law

I'm not sure how this is confusing to you

It is mental masturbation, though, by definition - this is not useful in anyway

Why are you responding to me only and not toothpastedog?

 

[drug_mentor]

A driver of a vehicle has a duty of care to others regardless of if they own the vehicle or not - whether you wish to cherry-pick this example only in an attempt to use it as a simple contradiction is your decision. The counter-example was incorrect anyway, because there are cases in which a vehicle driver will not be the owner, but will be regarded as such in the eyes of the law

I'm not sure how this is confusing to you

I never denied that the driver of the vehicle has a duty of care, in fact, I explicitly acknowledged that they do. However, the owner of a car also has property rights and one cannot make sense of these in terms of duty of care, I already explained why this is the case. I don't see how what you said undermines my counterexample; if the driver of a car is deemed to be the owner then they must have legally recognised property rights, and I have already explained why these cannot be explicated in terms of duty of care. Frankly, I am not sure how this is confusing to you.

Moreover, I explicitly stated in the OP that I wish to understand human rights as moral rights, not legal rights. Perhaps the law sometimes recognises some drivers as the de facto owner of the car they are driving. It isn't clear that this entails the driver having moral property rights in relation to the vehicle.

Why are you responding to me only and not toothpastedog?

I tend to open a lot of tabs/threads at once and work through them, I opened this thread before toothpastedog responded and will be addressing him shortly.

I reject the notion that engaging in serious thought and discussion over issues one deems important is equivalent to mental masturbation; you are entitled to your view, though it seems fairly anti-intellectual to me. Personally, I don't see the fun in making inane, trollish comments in TL/Social. Different strokes for different folks, I guess. Thanks for your contribution.

 

[Vagina Lover]

You're welcome. As for your comment about social, sometimes it's about relating to people, rather than trying to mentor them.

 

[drug_mentor]

You're welcome. As for your comment about social, sometimes it's about relating to people, rather than trying to mentor them.

I am not trying to mentor anybody here. I have no monopoly on an understanding of human rights, and I created this thread with the expectation that the contributions of others would help to inform my views on the issue. Generally speaking, I would rather relate to people through discussing important issues than making off-colour jokes.

I suppose the mentor comment may be an allusion to my screen name. Drug mentor is a nickname I earned when I was younger because I was always reading about HR and used to frequently promote it among my friends who used drugs. I am not very creative and when making my account it was the first candidate for a username that popped into my head. I don't conceive of myself as being a mentor to anyone on this site, whether in relation to drug use or philosophy.

I find that communitarianism is a very nice and not at all mutually exclusive framework when dealing with political liberalism and human rights theory. There is however Human Rights and International Humanitarian Law. I assume we are discussing more the former (the theory) than the latter (the practice)?

I am interested primarily in human rights theory, yes. But I also think it is interesting to use a theoretical understanding to critically evaluate the practice.

I figured I should probably weigh in on this conversation considering I wrote my fucking thesis on the topic, though I addressed it more from the standpoint of Contract Theory (which I see as a significant bedrock to modern political liberalism, and IHL is generally taken to be an apex of political liberalism).

What kind of contract theory did you address it from? My ethical and political views have been fairly heavily influenced by contract theorists such as Thomas Scanlon, Jean Hampton, and, of course, John Rawls. Obviously, I lean much more heavily towards the Kantian contractiarian conception than the Hobbesian one.

Would you say that the contract theory lens through which you understand this issue commits you more to an Interest Theory or Choice Theory conception of rights?

I never liked the golden rule. What about doing unto others as they would have you do unto them? The golden rule always struck me as rather selfish at best, paternalistic at worst.

I see what you mean, though, I tend to view the Golden Rule as rather crudely expressed, but generally capturing the essential spirit of Kantian influenced contract theories. I see it as being about respecting all individuals as rational agents, rather than imposing a subjective set of beliefs or desires on others.

About time I saw some P&S action, huh drug_mentor?

Certainly, it is nice to see you posting here!

 

[Vagina Lover]

I am not trying to mentor anybody here. I have no monopoly on an understanding of human rights, and I created this thread with the expectation that the contributions of others would help to inform my views on the issue. Personally, generally speaking, I would rather relate to people through discussing important issues than making off-colour jokes.

I suppose the mentor comment may be an allusion to my screen name. Drug mentor is a nickname I earned when I was younger because I was always reading about HR and used to frequently promote it among my friends who used drugs. I am not very creative and when making my account it was the first candidate for a username that popped into my head. I don't conceive of myself as being a mentor to anyone on this site, whether in relation to drug use or philosophy.

OK. I suppose it confused me when I was trying to relate to what you wrote in your OP, although I did find it hard to read, then having the OP change after I posted, followed by you seeming to do the opposite with what I wrote by disagreeing and seeming to want to argue.

Then bringing insurance into it?!

I don't mind a good debate, but when the goal posts seem to move, it can be confusing.

Also, I don't see anything wrong with treating others with how one would expect to be treated, especially with regard to philosophy.

And, yes, the drug_mentor handle seems a little overbearing, but mine is vagina lover which was created in the depths of a hotel room GHB fuck rampage, so what good do I know

Good job for HR

 

[drug_mentor]

OK. I suppose it confused me when I was trying to relate to what you wrote in your OP, although I did find it hard to read, then having the OP change after I posted, followed by you seeming to do the opposite with what I wrote by disagreeing and seeming to want to argue.

Then bringing insurance into it?!

I don't mind a good debate, but when the goal posts seem to move, it can be confusing.

I am sorry about the change in the OP. I was pretty fucked up when I originally wrote it, and had trouble expressing things exactly as I wanted. To be fair, I feel I did make it clear from the outset that my intention was to return and revise the OP when I was more clear headed. Also, despite the revision of the OP, my criticisms of your initial response were within the scope of what was said in the unedited OP.

I acknowledged that your idea had merit (though, not in my initial response to you, which was very brief due to having just spent considerable time revising the OP), and simply expressed doubts that it could do all the required work for gaining a comprehensive understanding of the issue. You seem to be familiar enough with philosophy to understand that much philosophical progress is made through argument. I don't mean argument in the bickering sense, but in the sense of reasoned criticism of ideas.

The insurance was an example to show that property rights cannot be understood through the lens of duty of care. The point was simply that there are cases where violating a persons property rights may actually promote their well-being; since duty of care involves an obligation to ensure someones well-being, conceiving property rights in this way leads to the absurd conclusion that someone lacks property rights if the violation of those rights would promote their well-being. I really don't see how this could be regarded as moving the goal posts, the example was relevant to the thread topic and related directly to what you said on the topic.

Anyway, I don't want to take things any further off course. It seems we got off on the wrong foot, and I am willing to accept a good degree of responsibility for that. I encourage you to contribute further to the thread topic, and will respond to you if you do; but, I won't be derailing the thread further over our misunderstanding.

 

[Brendan12]

The preconception of rites...rights etc...is it like doing everything right necessarily?