Online research in philosophy

The human rights discourse is vitiated by its tendency to reification, a tendency manifest in an ideologically motivated failure to take the reasons for human rights seriously. When a set of rights fall short, in range or strength, of the reasons adduced for them, any claim to the universality and priority of the rights in question is open to the charge of falsification and reification. Such a claim invites immanent critique insofar as a human rights discourse fails to take its own reasons seriously by working out a set of rights commensurate with them. Further critique is necessary if the human rights concept as such can be shown to be incapable of living up to the best reasons for human rights, in the shape, the author argues, of agency-based reasons. These kinds of critique, especially the latter, can serve as an antidote to the reifying tendency of the human rights discourse.

This paper pays special attention to T.H. Green's account of rights as developed in the Lectures on the Principles of Political Obligation. Green's theory can be viewed as having at least two main levels. The first level is his general account of rights, emphasizing the notions of social recognition, of a power or capacity that each right-holder has, and of the common good subserved by proper rights. The second level is that of universal rights; here special attention will be paid to Green's critique of seventeenth-century natural rights and to the theory of human rights that Green evolved to replace and improve upon the old natural rights tradition. In its account of contemporary human rights theory, the paperwill emphasize the special role that social recognition plays in both the moral project of justifying human rights and in the institutionalization that is a necessary feature of any fully constituted human right, functioning at full capacity.

The principal object of Ihis essay is to elucidate some of the story of how a theory that was so entrenched in the minds of intellectuals, namely, natural rights theory, fell so out of favor. This is the story of how the terror, fear, and destruction that became part of the French Revolution was laid at the feet of natural rights theory by three powerful figures: Burke, Bentham, and Hegel. It was these three figures, more than any others, who were responsible for the demise of natural rights theory in the nineteenth century; and their respective criticisms of natural rights theory were made under the omnipresent shadow of, and in response to, the French Revolulion.

Theories of equal human rights have experienced an exponential growth during the past thirty or forty years. From declarations of human rights, such as the United Nations' Universal Declaration of Human Rights, to arguments about the rights of fetuses versus the rights of women, to claims and counter claims about the rights of minorities to preferential hiring, the rights of animals to life and well-being, and the rights of trees to be preserved, the proliferation of rights affects every phase of our socio-political discourse. Hardly a month goes by without a new book appearing on the subject.

Abstract: Many people have lamented the proliferation of human rights claims. The cure for this problem, it may be thought, would be to develop a theory that can distinguish ‘real’ from ‘supposed’ human rights. I argue, however, that the proliferation of human rights mirrors a deep problem in human rights theory itself. Contemporary theories of natural rights to welfare are historical descendants from a theory of rights to subsistence which was developed in twelfth-century Europe. According to this theory, each human being has a special role to fulfil in God's plan and therefore has inalienable rights to subsist. Later theories have secularized this idea by claiming that human beings are purposive agents. Secularization, however, comes at a price. In the case of these theories, the price is a failure to provide satisfactory answers to the most basic questions we would expect of a theory of natural rights to answer. They have failed to provide a basis for ascribing these rights to all and only to human beings. They have not been able to generate a clear and viable criterion for ascribing duties correlative to these rights. And they cannot limit rights-claims in a non-arbitrary way. Hence we should abandon these theories.

PROPOSITION: The Inalienable Rights of We The People TO LIFE, LIBERTY, THE PURSUIT OF HAPPINESS, DUE PROCESS OF LAW . . . TRUMP ANY AUTHORITY (Constitutional or otherwise) ASSERTED BY CONGRESS TO MANDATE UNIFORM NATIONAL LAWS PREEMPTING SUCH INALIENABLE RIGHTS Considered with Regard to the Employee Retirement Income Security Act of 1974.

The Declaration of Independence asserts that human beings are endowed by their Creator with certain unalienable Rights, including Life, Liberty, and the Pursuit of Happiness. But human beings often do alienate life, liberty, and the pursuit of happiness. Recruits serving in the armed forces, for example, have given up both liberty and the pursuit of happiness, and have placed themselves in a position also apt to call for giving up their lives. And if the Declaration charged the Crown with taking unalienable rights, how is it that the Fifth Amendment explicitly contemplates that the federal government may properly take life and liberty? Perhaps even more puzzling, if "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," Planned Parenthood v. Casey, 505 U.S.833, 851 (1992), what supports the notion of natural inalienable rights at all, rights the right holder cannot alienate, however much that may be the holder's well considered desire in exercising this liberty? The present article answers these questions. Ultimately, natural inalienable rights presuppose a transcendent legal order. They presuppose this order formally, because natural inalienable rights are rights against lawless takings of the objects of those rights. More fundamentally, they presuppose a transcendent legal order materially, because they spring from theories resting upon transcendent law. Natural inalienable rights are coherent only when such a legal order is presupposed.

This paper has two purposes. One is primarily (but not exclusively) conceptual and the other is normative. The first aim is to say what inalienable rights are. To explain this, inalienable rights are contrasted with the notions of forfeitable rights and absolute rights. A recent novel analysis of inalienable rights by Feinberg is explained and criticized. The first task is concluded by discussing what duties inalienable rights imply. The second aim is to see what moral principles, if any, justify designating some rights as inalienable. The claim of Nozick and others that inalienable rights must be paternalistically grounded is examined and rejected. After a brief critical discussion of the Lockean and Hobbesean accounts of the basis of inalienable rights, it is argued that the harm principle can serve as an adequate ground for categorizing at least the right to life (and perhaps other rights) as inalienable.