Master Theory and Practice of Human Rights
16.9.2014
Oslo
C.Corradetti
Question
 Why do we need a philosophy of human rights?
What are human rights?
 States Constraints
 Enabling conditions
 Minimum Guarantees
 ....
Where do human rights come
from?
 God
 Natural Law theories
 Experiences of Wrongs:
threats from the modern state, experience of injustices
(see Nickel, p.71)
Question: can we agree on wrongs in the absence of an
agreement on «the good and the right?»
Are Human
Normative?
Rights
Descriptive
 Universal Declaration of Human Rights Art.1 «All
human beings are born free and equal in dignity and
rights»
Is this a descriptive or a normative statement?
or
Are Human Rights Descriptive or
Normative?
The concept of Human Rights is problematic since there
is no overall agreement on the criteria connected to valid
uses of the term.
Should we just dismiss the term?
Are Human Rights Descriptive or
Normative?
...Not necessarily since it can be distinguished:
-an intenSional aspect: i.e. «human rights are rights that
we have simply in virtue of being human»
-an extenSional aspect: all the documents connected
with human rights issues, i.e. French Declaration, UN
Declaration etc.
Are Human Rights Descriptive or
Normative?
Nickel (2013) : «human rights are the rights of lawyers not of
philosophers» (p.1)
What does it mean and what justifies human rights laws ?
Nickel «three levels of analysis» (p.3):
Are Human Rights Descriptive or
Normative?
1 first level (normative):
A philosophical account of human rights! Possible candidates:
humanity, dignity, equality, liberty etc...
2 second level (normative and descriptive/intensional and
extensional)
norms following these basic accounts and showing to be
«universal»
3 third level (descriptive)
measures to defend universal norms
Foundations of Human Rights
Two ways of interpreting the normativity of human
rights:
1) Kantian-deontological
human rights have a value independently from the
promotion of its ends: i.e. making life good. Notrade-off with other goods in life!
Foundations of Human Rights
2) Consequentialist: i.e. Utilitarianism
maximization of total happiness, ergo trade among
different goods according to maximization of total
happiness
Utilitarianism: Principle of (Total or Average)
Happiness as Principle of Law (and Justice):
Total Happiness/Utility: maximization of the total
utility by adding individual utilities
Case 1
x2, y6,z4 = tot. 12 preferable to x4, y, 4, z3 = tot.11
Average Happiness/Utility: maximization of average
utility
x4,y4,z4 = tot. 12 preferable to x10,y2, z1= tot.13
Foundations of Human Rights
One property of Human Rights: Directionality!
Teleology of rights: promotion of human rights
admitting also balancing (not trade-off) for
accomplishment of goods in life.
Not to be confused
utilitarianism!
with
consequentialism
or
Foundations of Human Rights
Confront the directionality of rights with Nickel’s
discussion of human rights as goals (p.24)
Rights cannot be reduced to goals («the mandatory
character is missing»), but their potential conflict
should be arranged in a teleological/goal oriented way
Are Human Rights Descriptive or
Normative?
Whichever approach is chosen...problems remain with
the intensional «indeterminateness» of human rights
Therefore
One needs to articulate a philosophical argument to
specify this indeterminateness and add a content.
Why a Philosophy of human rights?
 Let’s see one example of an intensional articulation:
Nickel’s pluralist thesis: the 4-claim framework
- A secure claim to have a life
- A secure claim to lead one’s life
- A secure claim against severely cruel or degrading
treatement
- A secure claim against severely unfair treatement
Why a Philosophy of Human
Rights?
A secure claim to have life
-negative duties not to harm, use violence etc. Generally
as «freedom from violence»
A secure claim to lead one’s life
-protection of agency, freedom from slavery, servitude
etc.
A secure claim against cruel and degrading treatment
- this is highly depeneding on the circumstances
Why a Philosophy of Human
Rights?
A secure claim against severely unfair treatement
-i.e. Duty not to imprison innocents etc.
ALL 4 protects the notion of Dignity! Un.Decl.«inherent
dignity...»
Why a Philosophy of Human Rights
 A second example: Griffin’s proposal
Human Rights are universal simply because they are
possessed by human agents in virtue of their normative
agency, but this condition gets specified within a society.
Why a Philosophy of Human Rights
Human rights as protections of our personhood -normative
agency:
«To be an agent..one must (first) choose one’s own path
through life…‘autonomy’. And(second)...one must have
at least the minimum provision of resources and
capabilities (‘minimum provision’)»…so (third) others
must also not forcibly stop one from pursuing what one
sees as a worthwhile life (call this ‘liberty’)»
Why a Philosophy of Human Rights
First Step of Griffin’s Proposal: Persohood as a ground
for Human Rights
Argument:
 First Step: personhood as autonomy
«Kant thought that one would be autonomous only if
one’s actions came from a purely rational, intentional
centre..the noumenal self…But rationality requires
thought; thought…requires language; and language is a
cultural artefact etc.»
Why a Philosophy of Human Rights
 Second Step: personhood as non-abstract autonomy
«Our aim must be the more modest one of
understanding ….the autonomy of Homo sapiens. So by
the word ‘human’ in the phrase ‘’human rights’ we
should mean, roughly, a functioning human agent. And
human rights cannot therefore be entirely
ahistorical»(p.35)
Why a Philosophy of Human Rights
 Problem: violation of Hume’s is-ought law (Hume, A
Treatise of Human Nature, book III, part I sec.I, 1739):
Descriptive statements «x is y» are inherently different
from normative/prescriptive statements «x ought to be y
(act, behave etc.)»
Why a Philosophy of Human Rights
No identification of moral properties with natural
properties.
i.e. from the fact that it rains it does not follow that it
ought to rain! Or in the case of human rights: given a
certain description of human beings you cannot derive
certain human rights!
Why a Philosophy of Human Rights
Griffin’s strategy:
the solution is to advance a non-naturalistic (not based
on natural sciences) notion of «human nature, agents» !
«I single out functioning human agents via notions such
as their autonomy and liberty…they are expecially
important interests that rights can be derived from
them…»(p.35)
Why a Philosophy of Human Rights
 Therefore:
«So my notions of ‘human nature’ and ‘human agent’ are
already well within the normative circle, and there is no
obvious fallacy in deriving rights from notions as
evaluatively rich as they are» (p.35)
Why a Philosophy of Human Rights
i.e. If I say «I’m in pain» I make both a descriptive and an
evaluative statement
The universality of human rights (and their derivation
from this starting point) is saved!
Agency in J.Griffin On Human
Rights, OUP 2008
 The Three Components of Normative
Agency/Personhood
Autonomy
Liberty
Welfare
Agency in J.Griffin On Human
Rights, OUP 2008
Autonomy: is concept involved
conception of a worthwhile life.
in
forming
the
It refers to the independence of the subject for moral
reasoning. It must not be confused with liberty!
Agency in J.Griffin On Human
Rights, OUP 2008
Liberty: it guarantees the pursuit of a worthy life not its
realization!
It is constructed on two conditions: positive duties («duty to
do something») and negative duties («duty to refrain from
doing something»)
It is defined by Griffin in Kantian terms: my liberty must be
compatible with equal liberty of all.
Suggestion! Read I.Berlin «Two Concepts of Liberty» available online at:
http://www.wiso.uni-hamburg.de/fileadmin/wiso_vwl/johannes/Ankuendigungen/Berlin_twoconceptsofliberty.pdf
Agency in J.Griffin On Human
Rights, OUP 2008
Welfare: there seem to be a strict co-dependence
between liberty rights and welfare rights (indivisibility),
but Griffin says that this is too weak!
One should not defend only an empirical necessity but
also a logical necessity! Normative agency requires the
fulfilment of basic material conditions.
The Problem of Rights
Two types of conflicts:
1)conflicts between human rights
2)conflicts between a human right and welfare
(i.e.redistribution of goods infringing my liberty)
How to solve them?
The Problem of Rights
For Griffin these solutions require trade-offs ! Therefore
in Griffin’s theory human rights are not absolute.
Teleological approach weighting rights in view of the
promotion of the notion of personhood (3 components)
– evaluation of loss/gain in personhood (major/minor
liberties affecting differently the notion of personhood)
The Problem of Rights
 Whose Rights?
Who is NOT included in the category of normative agents as
defined by Griffin through «personhood/agency»?
«Human infants are not normative agents. Neither are
human foetuses, nor the severely mentally handiccapped, nor
sufferers from advanced dementia»p.83
Ergo: for Griffin they don’t have human rights…!
Let’s explain (next time).