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The Languages of Rights and of Human Rights
Published online by Cambridge University Press: 23 June 2010
Abstract
In an attempt to control the ‘ballooning’ of (discourse about) human rights James Griffin proposes a theory of them grounded in their presumed aim of protecting what he calls ‘normative agency’. This paper criticizes the resulting theory's restriction of those thereby deemed to possess human rights only to functioning human agents, and does so in part through special attention to cases of human beings trapped in non-functioning bodies. The need for a less stringent account of the conditions necessary for possession of human rights is suggested, and is defended against the claim that adoption of such an account would continue to favour debasement of the language of human rights.
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- Copyright © The Royal Institute of Philosophy 2010
References
1 UNESCO, Human Rights: A Symposium (London and New York: Allan Wingate, 1949); amongst many other places, quoted in Feinberg, Joel, Social Philosophy (Englewood Cliffs, New Jersey: Prentice-Hall, 1973), at 94–95Google Scholar.
2 See, amongst others, Amartya Sen, ‘Rights and capabilities’, and Wiggins, David, ‘Claims of need’, both in Honderich, Ted (ed.), Morality and Objectivity (London: Routledge & Kegan Paul, 1985)Google Scholar.
3 J. Griffin On Human Rights (Oxford: Oxford University Press, 2008), 92.
4 Estudios Constitucionales (Mexico City: UNAM, 1983), 63.
5 Cp. Griffin, op. cit., note 3, 41.
6 See, e.g., Coleman, Jules, ‘Negative and positive positivism’, now in his Markets, Morals, and the Law (Oxford: Oxford University Press, 1998), 3–27Google Scholar.
7 ‘Bentham on legal rights’, in Simpson, A.W.B. (ed.), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1973), 200Google Scholar.
8 Griffin, op. cit., note 3, 54; for Raz's views see his The Morality of Freedom (Oxford: Clarendon Press, 1986), ch. 7.
9 Op. cit., note 3, 55.
10 Ibid., 52.
11 Ibid., 55.
12 Ibid.
13 Ibid., 58.
14 Ibid., 90.
15 ‘It was very good of God to let Carlyle and Mrs Carlyle marry one another and so make only two people miserable instead of four’, Letters Between Samuel Butler and Miss E.M.A. Savage 1871–1885 (1935), 21st November 1884.
16 Op. cit., note 3, 14.
17 Ibid., 18–20.
18 Ibid., 33.
19 Ibid., 37.
20 Ibid., 50.
21 Ibid., 38.
22 Ibid., 68.
23 Ibid., 67.
24 Ibid., 48.
25 Ibid., 44–45, but see also 47–48. My emphasis on perhaps is also needed in view of the possibility that Griffin might reject the idea of a threshold used, for example, by Beauchamp, Tom L. and Childress, James F. when commenting upon the concept of competence (Principles of Biomedical Ethics (5th ed., Oxford: Oxford University Press, 2001), at 72)Google Scholar:
For practical and policy reasons, we need threshold levels below which a person with a certain level of abilities is incompetent. Not all competent persons are equally able and not all incompetent persons equally unable, but competence determinations sort persons into two basic classes, and thus treat persons as either competent or incompetent for specific purposes. Above the threshold, we treat persons as equally competent; below the threshold we treat them as equally incompetent.
An alternative is, I think, exemplified in one of our usual usages of ‘bald’ and ‘not bald’: above the threshold all are equally not bald, but below it we can register degrees of baldness. Note that Griffin's remarks focus upon anyone ‘who rises any degree above the threshold’ and so precisely not upon those who fall any degree below it. So, with this model in mind, it could be claimed that all those above the threshold are equally agents without its thereby following that all those below that threshold are all equally and utterly, so to say, non-agents.
26 Op. cit., note 3, 50.
27 Ibid., 67.
28 Ibid., 95.
29 Ibid., 67.
30 Ibid., 74. Griffin draws here on a distinction marked in different terms by Petit, Phillip in his ‘Consequentialism’ in Singer, Peter (ed.), A Companion to Ethics (Oxford: Blackwell, 1991)Google Scholar; a similarly pointed distinction is to be found in a slightly more complicated context in Platts, , Moral Realities (London and New York: Routledge, 1991), 96–97Google Scholar.
31 Op. cit., note 3, 223.
32 Ibid., 60.
33 Ibid., n. 10 at 290.
34 Ibid., 223.
35 Ibid., 222.
36 Ibid., 224.
37 Ibid., 223.
38 Ibid., 67.
39 Ibid., n. 2 at 291.
40 Ibid., 35.
41 Ibid., 101.
42 Ibid., 51.
43 See Griffin, ibid., 52.
44 Ibid., 56.
45 It is difficult to see how recourse to some notion of ‘promoting’ (the value of) agency – see Griffin's remarks quoted above at the beginning of section 6 – could fill the gap at this point in Griffin's account without carrying with it clearly implausible consequences.
46 Carpizo, op. cit., note 4, lumps together needs, aspirations and ideals; of these I think the notion of needs to be much the best fitted and much the most important for grounding human rights. In a similar vein I am disconcerted by Griffin's tendency (within these terms) to attach greater (theoretical) weight to the ‘aspirations’ of the fittest than to the needs of the most vulnerable. See again, e.g., his remarks upon children and the elderly quoted above at the beginning of section 7.
47 ‘Claims of need’, in its modified version in Wiggins, , Needs, Values, Truth (Oxford: Blackwell, 1987), 1–57, 31–32Google Scholar.
48 Ethics and the Limits of Philosophy (London: Fontana/Collins, 1985), n. 20 at 216.
49 Cp. Wiggins, op. cit., note 47 above. Perhaps we have here the explanation of any plausibility there might be within contractual theories, properly understood, of rights.
50 Larry Laudan and Anthony O'Hear have tried to help make this paper better; I hope they have succeeded.