What are Human Rights? Towards a Non-Subjective Ontology of Human Rights
21 Pages Posted: 1 Aug 2011 Last revised: 26 Aug 2011
Date Written: 2011
Many of us passionately believe in universal human rights; however when pressed we cannot justify this belief and may concede that they are simply subjective preferences – little better than “nonsense on stilts”. The justifications we give are inadequate to our beliefs we assert. We could claim that human rights exist because of international conventions. However, if this is so they do not apply to non-signatories, and thus are not universal. Similarly religious justifications cannot create universality unless we assert that people are bound by a deity they do not believe in. Asserting that human rights are just subjective normative evaluations or the cultural norms of one society equally clearly does not create any universal obligation.
What is needed is a theory of how human rights could exist in a way that is objective or at least intersubjective. The social ontology of John Searle creates such a possibility. Searle himself has argued that much work needs to be done to develop a coherent theory of human rights based on social fact. This paper explores this possibility.
Searle argues that while social institutions are socially constructed (and thus ontologically subjective) they are epistemologically objective. They are thus capable of producing objective obligations. Given certain social institutions, it is possible to use a transcendental argument – given these institutions, certain other norms or institutions are inescapable if the first institutions are to be possible. For example we can show that liberal political institutions only make sense in the presence of certain human rights. (Searle’s distinction between “ought” and “morally ought” is important here – we cannot show any unconditional obligation, as it is always possible to morally reject the institution.)
Assuming we can show that human rights are obligatory for liberal societies, the next (far harder) stage is to show in what sense they can be universal. It may well only be possible to show that human rights are obligatory for liberal societies. However, this may be enough to establish a weak form of universality. This would require arguing that liberal societies are obliged to be guided by human rights concerns, even in their dealings with nonliberal societies. This, of course, would require abandoning a strong (Augburgian) conception of sovereignty. It requires a decision to grant standing to foreigners as individuals and not simply as subjects of some sovereign. It can be argued that state already do this in many contexts.
Keywords: human rights, Searle, ontology, sovereignty
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