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ABSTRACT
What are the main conditions that any theory of human rights should satisfy to guide action? If agents must take action for a fairer world as human rights discourse suggests, this is a crucial question to reflect upon. In this paper, I make a proposal. I argue that any theory of (moral) human rights that guides action on the basis of correlative duties must satisfy three key conditions. The first condition is focused on the specification of act-types, the second concerns the distribution of correlative duties, and the third is focused on the resolution of (resolvable) conflicts of human rights. I show that this proposal has substantive implications because it implies to reject, challenge and, in some cases, resist ideas that are commonly accepted in the literature on human rights.
Acknowledgements
An early draft of this paper was presented at Manchester Centre for Political Theory Workshop (2021), CJV Visiting Speaker Seminar, Trinity College Dublin (2021) and Seminario Latinoamericano de Filosofía Política (2021). I thank all participants for their extremely valuable feedback. Special thanks to Hillel Steiner, Adina Preda, Julio Montero and Saladin Meckled-García for very useful comments on early drafts. This article is an outcome of a national grant of the Chilean ANID, Project Fondecyt 11230361.
Notes
1 I use the term ‘widely’ (not ‘universally’) because some authors reject this premise (e.g. Cohen Citation2008; Lawford-Smith Citation2010). I cannot settle this complex dispute here, but if we assume the idea that normative theory should supply something valuable to practical reasoning, the idea that it should be action-guiding is quite plausible.
2 Two points. First, I do not assume that these conditions are jointly sufficient to guide action. For this reason, I mention at the beginning of the paragraph that I ‘contribute to filling’ this gap, not that ‘I fill’ this gap. Second, my proposal does not settle the debate between the so-called ‘institutional’ and ‘interactional’ conception of human rights (Pogge Citation2002). This is an important advantage of my proposal because it is useful for any theory that aims to guide action on the basis of duties.
3 Following Collins (Citation2019), I use the term ‘collections’ to portray the difference between them and ‘groups’.
4 Following O’Neill (Citation1996; Citation2007), I understand an ‘act-type’ to be a general ‘act description’ because principles cannot fully define an action in advance but can, at most, specify significant aspects of what is required (see also: Albertzart Citation2014; Steiner Citation1994).
5 However, NC1 is not always satisfied. For example, see: Tasioulas (Citation2007, 94–95).
6 It is an open-question whether Shue’s well-known conception is satisfactory. I use it to exemplify the conceptual point of this passage.
7 The idea that the content of human rights is defined by their correlative duties is recognised in the literature (Cruft Citation2019; Griffin Citation2008). Even if Waldron (Citation1993) holds that rights are dynamic, he seems to suggest that rights are defined by their duties. It is for this reason, I believe, that he says that the ‘right not to be tortured (…) clearly generates a duty not to torture’ (212).
8 The existence of a right may generate a new duty on the basis of certain social (or political) facts. For instance, in my example, facts about administrative aspects of modern states – only in modern states with complex bureaucracies does it make sense to talk about duties imposed on local authorities such as municipalities (this is partly based on Raz Citation1999, 98).
9 I thank an anonymous reviewer for helping me to improve this passage.
10 It could be argued that this threatens to generate an infinite (or excessively long) list of human rights because every time a human right generates a new duty that differs in its level of abstraction and/or content, we must recognise a new human right. However, as noted in the literature, any plausible account of human rights contains a set of necessary conditions to distinguish human rights from other rights (Beitz Citation2009; Donnelly Citation2013; O’Neill Citation1996; Rettig Citation2020). This allows addressing that potential problem. For example, the standard naturalistic approach would hold that even if a human right may generate new duties and, therefore, new rights, only those rights that can be conceptualised in a state of nature are genuine human rights. For a practice-based account, not all rights generated can be labelled as human rights but only those rights faithful to the purpose of human rights within existing human rights practice. For a discussion of these approaches, see: Beitz (Citation2009), and Wellman (Citation2010). In brief, the threat may be blocked by specifying a set of conditions that genuine human rights must satisfy. The list of human rights can be limited more (or less) depending on the conditions that an account of human rights specifies.
11 I thank an anonymous reviewer for helping me to pose this criterion. It is inspired by Hart’s insight that rules should be determinate enough to limit, but not exclude discretion (Hart Citation2012, Chapter VII). For another conception similar to Eide (Citation1999), see: Nickel (Citation1995).
12 As Hope (Citation2013) notes, ‘action-guidance is not simply a matter of specific prescriptions (…) of action’ (90).
13 I explore this point elsewhere (deleted for anonymous review).
14 For example, Griffin (Citation2008) suggests an abilities-based approach for allocating duties among agents.
15 I leave open the question over which possibility is superior.
16 For an elaboration of the idea that human rights are claim-rights, see: Donnelly (Citation2013); Meckled-Garcia and Çali (Citation2006). Wellman (Citation2010) claims that not all human rights are claim-rights; the paradigmatic example would be the right to freedom of assembly (Citation2010, 74). But his view is not consistent because he also suggests that this right ‘confers a claim-right against each state party’ (Citation2010, 74).
17 Schwenkenbecher (Citation2014) suggests that collective duties impose ‘joint goal[s]’ (61), Bjornsson (Citation2019) holds that they assign ‘collective ends’ (23), and Collins (Citation2013) says that they involve ‘shared ends’ (234).
18 I borrow this term from Wringe (Citation2016).
19 I am not interested in unresolvable conflicts but on resolvable conflicts of correlative duties such as the conflicts that Griffin (Citation2008), Kamm (Citation2001) and Smet (Citation2017) have in mind.
20 According to the pro-tanto conception, rights entail pro-tanto reasons for action (pro-tanto duties) that may be overridden by overriding considerations (Frederick Citation2014; Smet Citation2017; Thomson Citation1990; Zimmerman Citation1996). The key opponent of this view is specificationism (e.g. Oberdiek Citation2008). For the purpose of this paper, it is not necessary to settle the debate between these views because my point is conditional.
21 From the pro-tanto conception of rights it does not follow that any conflict of pro-tanto reasons for action can be resolved (see: Raz Citation1999).
22 This idea is not new but based on Smet (Citation2017), whose proposal can be interpreted as an example of this.
23 The denial of the fact that conflicts of human rights are common would be an idealisation in moral theory (i.e. a position that assumes falsehoods [O’Neill Citation1996]) unless specificationism is true – but this section is about the pro-tanto view.
24 I thank an anonymous reviewer for helping me to improve this passage.
25 For example, Smet (Citation2017) proposes a decision-making procedure based on seven recommendations. For the purposes of this paper, it is not necessary to assess if his proposal is satisfactory.
26 I clarify that rights (e.g. human rights) and non-rights-interests are considered asymmetrically if they do not have the same weight (or hierarchical level) in our reasoning oriented to solve a (resolvable) conflict of rights. For different views on this matter, see: Klatt (Citation2021) and Spector (Citation2021).
27 It could be said that John may add more ends to constrain his options, but this would be unfaithful to ordinary moral reasoning which assumes norms, principles and/or our commitments to achieve ends. For an exploration of this point, see: O’Neill (Citation2000).
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Cristián Rettig
Cristián Rettig is an Assistant Professor at the Department of Philosophy, Adolfo Ibáñez University. He got his PhD from University College London. Cristián is interested in rights theory, theoretical foundations of human rights, legal theory, political philosophy, normative methods and meta-ethics. Cristián got the Chilean research grant called “Fondecyt iniciación” (2023-2026) to do research on human rights and practical reasoning. This article is an output of that project: national grant of the Chilean ANID, Project Fondecyt 1123036.