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The Epistemology of Human Rights

Published online by Cambridge University Press:  13 January 2009

Alan Gewirth
Alan Gewirth
Affiliation:
Philosophy, University of Chicago
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Extract

Human rights are rights which all persons equally have simply insofar as they are human. But are there any such rights? How, if at all, do we know that there are?

It is with this question of knowledge, and the related question of existence, that I want to deal in this paper.

1. CONCEPTUAL QUESTIONS

The attempt to answer each of these questions, however, at once raises further, more directly conceptual questions. In what sense may human rights be said to exist? What does it mean to say that there are such rights or that persons have them? This question, in turn, raises a question about the nature of human rights. What is the meaning of the expression “human rights”?

Within the limits of the present paper I cannot hope to deal adequately with the controversial issues raised by these conceptual questions. But we may make at least a relevant beginning by noting that, in terms of Hohfeld's famous classification of four different kinds of rights, the human rights are primarily claim-rights, in that they entail correlative duties of other persons or groups to act or to refrain from acting in ways required for the right-holders' having that to which they have rights.

It will help our understanding of this and other aspects of human rights if we note that the full structure of a claim-right is given by the following formula:

A has a right to X against B by virtue of Y.

There are five main elements here: first, the Subject (A) of the right, the person or persons who have the right; second, the Nature of the right; third, the Object (X) of the right, what it is a right to; fourth, the Respondent (B) of the right, the person or persons who have the correlative duty; fifth, the Justifying Basis or Ground (Y) of the right.

Type
Research Article
Information
Social Philosophy and Policy , Volume 1 , Issue 2 , Spring 1984 , pp. 1 - 24
Copyright
Copyright © Social Philosophy and Policy Foundation 1984

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References

1 Hohfeld, Wesley N., Fundamental Legal Conceptions (New Haven: Yale University Press, 1964), 36ffGoogle Scholar.

2 Bentham, Jeremy, A Critical Examination of the Declaration of Rights, in Bentham's Political Thought, ed. Parekh, B. (New York: Barnes and Noble, 1973), 271Google Scholar.

3 Marx, Karl, On the Jewish Question, in The Marx-Engels Reader, second edition, ed. Tucker, R. C. (New York: W. W. Norton, 1978), 43Google Scholar.

4 Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974), ixGoogle Scholar.

5 For this argument, see Perelman, Ch., The Idea of Justice and the Problem of Argument (London: Routledge and Kegan Paul, 1963), 15–16Google Scholar; Benn, S. I. and Peters, R. S., Social Principles and the Democratic State (London: George Allen and Unwin, 1959), 110–11Google Scholar; Frankena, W. K., “Some Beliefs about Justice,” in Freedom and Morality: The Lindley Lectures, ed. Bricke, J. (Lawrence: University of Kansas, 1976), 66–68Google Scholar.

6 Feinberg, Joel, Rights, Justice and the Bounds of Liberty (Princeton, N.J.: Princeton University Press, 1980), 167.CrossRefGoogle Scholar A similar principle was set forth by McCloskey, H.J., “Rights,” Philosophical Quarterly 15 (1965), 126CrossRefGoogle Scholar.

7 Frankena, W. K., “The Concept of Social Justice,” in Social Justice, ed. Brandt, R. B. (Englewood Cliffs, N.J.: Prentice-Hall, 1962), 19Google Scholar.

8 See the acute criticism by Vlastos, Gregory, “Justice and Equality,” in Brandt, Richard, Social Justice (Englewood Cliffs, N.J.: Prentice-Hall, 1962), 52–53Google Scholar (note 45).

9 Okin, Susan Moller, “Liberty and Welfare: Some Issues in Human Rights Theory,” in Nomos XXIII: Human Rights, ed. Pennock, J. Roland, Chapman, John W. (New York: New York University Press, 1981), 235Google Scholar.

10 Hart, H. L. A., “Are There Any Natural Rights?,” Philosophical Review 64 (1955), 175, 189–91CrossRefGoogle Scholar.

11 Rawls, John, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), 11ffGoogle Scholar.

12 Maritain, Jacques, The Rights of Man and Natural Law, trans. by Anson, D. (New York: Charles Scribner's Sons, 1951), 65Google Scholar.

13 I. Kant, Foundations of the Metaphysics of Morals, sec. 2 (Akademie ed., 434–36).

14 I have tried to show this elsewhere with regard to utilitarianism. See Gewirth, Alan, “Can Utilitarianism Justify Any Moral Rights?” in Nomos XXIV: Ethics, Economics, and the Law, ed. Pennock, J. Roland, Chapman, John W. (New York: New York University Press, 1982), 158–178Google Scholar.

15 Rawls, A Theory of Justice, 20–21, 48–51, 120, 579.

16 Gewirth, Alan, Reason and Morality (Chicago: University of Chicago Press, 1978)Google Scholar, chs. 1–3.

17 See Reason and Morality, 82–102; “Appendix: Replies to Some Criticisms,” in Nomos XXIV: Ethics, Economics, and the Law (see above, n. 14), 178–190; “Why Agents Must Claim Rights: A Reply,” Journal of Philosophy 79 (1982), 403–410.

18 I have previously discussed this specific point in Reason and Morality, 77–78, 81–82.

19 See Reason and Morality, 66, 73, 79, 95.