Agency and Human Rights
I. Griffin’s Agency Account of Human Rights
What grounds human
rights? How do we determine that
something is a human right? In his new
book, On Human Rights, and in a
series of recent articles, James Griffin has argued that the notion of agency should
determine the content of human rights.[1] Griffin
writes,
What seems
to me the best account of human rights is this.
It is centred on the notion of agency.
We human beings have the capacity to form pictures of what a good life
would be and to try to realize these pictures.
We value our status as agents especially highly, often more highly even
than our happiness. Human rights can
then be seen as protections of our agency - what one might call our personhood.[2]
By agency, Griffin means our autonomously choosing a
conception of a worthwhile life (autonomy), our being at liberty to pursue this
conception (liberty), and our having minimum material provision and
education. As Griffin writes,
To be an
agent, in the fullest sense of which we are capable, one must (first) choose
one’s own course through life – that is, not be dominated or controlled by
someone or something else (autonomy).
And one’s choice must also be real; one must (second) have at least a
certain minimum education and information and the chance to learn what others
think. But having chosen one’s course
one must then (third) be able to follow it; that is one must have at least the
minimum material provision of resources and capabilities that it takes. And none of that is any good if someone then
blocks one; so (fourth) others must also not stop one from pursuing what one
sees as a good life (liberty).[3]
Griffin argues that this
agency account of human rights enables us to derive rights such as the right to
life and to minimum welfare (because human beings cannot be agents if they are
not alive and if they cannot sustain themselves), the right to some basic
education (because human beings must be informed in order to be able to
determine their life choices), the right to freedom of expression, freedom to
worship, freedom to form personal relationships (since these rights promote
liberty), the right not to be tortured (because torturing undermines one’s
capacity to decide and stick to one’s decision), and so on.[4]
There is much to be said in favor of Griffin’s agency account of human
rights. For one thing, agency is clearly
of great importance to human beings.
Without some of it, human beings would not be able to bring about any
actions at all, let alone actions necessary for a moral and purposeful
life. Given this, it seems highly
appropriate to protect it with human rights, which offer strong protections for
its possessors.[5] Also, the agency account does appear to be
able to help us determine which human rights are real. Indeed, Griffin’s
derivation of rights such as the right to life and the right to freedom of
expression from the notion of agency seem plausible.[6]
That said, Griffin’s
account of human rights also faces a number of questions.[7] In this paper, I am particularly interested
in an issue that has been raised against Griffin’s
agency account, namely, whether agency should be the sole ground for human
rights.[8]
To understand this concern, it is useful to begin
by pointing out that Griffin
has what might be called a wide
notion of agency, as he
holds that agency is valuable only in the context of a good, flourishing
life. In contrast, a truly narrow notion
of agency would regard agency as being valuable in and of itself regardless of
how it might contribute to a good, flourishing life. As he says, autonomy and liberty, the two core values that
make up his notion of agency, are “elements of a good life . . . features that
characteristically enhance the quality of life,” but they do not exhaust all
the elements of a good life – other elements include freedom from great pain,
accomplishing something in the course of one’s life, understanding certain
moral and metaphysical matters, deep personal relations, and so on. [9] Indeed, owing to the fact
that Griffin has a wide notion of agency, in
response to the challenge that positive rights interfere with one’s liberty, Griffin is able to argue
that liberty is not merely “doing what one wants to do” but involves “actions
that matter to one’s pursuit of a valuable
life.” He is also able to argue that
there can be positive rights such as a right to minimum welfare, because
typically the duties that welfare rights impose on others need not interfere
with a person’s pursuit of a valuable life.
As Griffin points out, on a truly narrow notion of agency, human rights
would protect only “our autonomous choice of a course of life and our not being
stopped from pursuing it; nothing else is contained in the essence of agency,”
and such an account would see itself as “justifying liberty rights, but giving
no support at all to welfare rights.”[10]
However, given that Griffin holds that agency is valuable only in
the context of a good, flourishing life and given that he accepts that in addition
to agency, there are other elements of a good life such as freedom from
great pain, understanding, deep personal relations, and so on, which can be
used indirectly to shape agency, this raises the question of whether agency
should be considered the sole ground for human rights. For example, consider the paradigmatic human
right not to be tortured. The fact that
torture undermines one’s agency by undermining one’s capacity to decide and to
stick to the decision is certainly an important factor in deciding that torture
violates a human right.[11] But it seems that another important factor in
deciding that torture violates a human right is that it causes great pain. If so, can Griffin’s notion of agency by itself
adequately explain such human right as the right against torture?[12] To put matters differently, since Griffin
already has a wide notion of agency in which agency is one element, among many,
in a good life, and since Griffin already allows other elements of a good life
to influence and contribute indirectly to the determination of the content of
human rights, why does he not allow these other elements to contribute directly
to this task as well? Has Griffin offered a
plausible explanation as to why one should not broaden the ground for human
rights to include these other elements?
This question has been put to Griffin’s
account, but in his new book, On Human Rights,
Griffin offers
new arguments in support of this theory.[13] In this paper, I shall examine whether these
new arguments provide a successful defense of Griffin’s key claim: that the notion of
agency alone is sufficient for determining the content of human rights. I argue that Griffin
does not show that notion of agency can by itself adequately explain the human
right against torture, and that, ultimately, Griffin still fails to offer a plausible
explanation as to why one should not broaden the ground for human rights to
include other elements of a good life.
II. The Human Right against Torture: A Test Case for the Agency Account
According to Griffin,
Torture
has characteristic aims. It is used to make someone recant a belief, reveal a
secret, ‘confess’ a crime whether guilty or not, abandon a cause, or do someone
else’s bidding. All of these characteristic purposes involve undermining someone else’s will, getting
them to do what they do not want to do or are even resolved not to do (my
italics).[14]
Griffin offers two new arguments to support
his claim that the human right against torture can be adequately explained by
the notion of agency alone.
First, Griffin
accepts that when asked what is wrong with torture, the obvious response is
that it causes great pain. However, he
argues that causing pain cannot be why torture violates a human right, because
there are many cases of one person’s gratuitously inflicting great pain on
another that are not a matter of human right violation. For example, consider what might be called
The Callous Partner Case: There is an
unsuccessful marriage in which the first partner treats the second partner callously,
and the suffering endured by the second partner over the years is arguably
worse than a short period of physical torture.[15]
Griffin argues that in this case, the first
partner, simply by gratuitously inflicting great pain on the second partner, does
not thereby violate the second partner’s human right. Or, consider what might be called
The Jealous Sibling Case: An older
sibling beats a younger sibling about the head from time to time out of
resentment of being displaced by the younger.[16]
Griffin argues that even if painful for the
younger sibling, this case would hardly be a case of human right
violation.
Secondly, Griffin
argues that undermining someone else’s agency without causing great pain is
sufficient for there to be a human right violation in other cases. For example, consider what might be called
The Truth
Drug Case: Instead of torture, one uses truth drugs to extract secrets.[17]
Griffin argues that while the Truth Drug Case
does not involve inflicting pain, it does involve undermining an individual’s
agency, which he believes amounts to a human right violation. As he says,
We could
not call [the Truth Drug Case] ‘torture’ because it is essential to ‘torture’
that the infliction of great pain be the means.
But what concerns us here is whether the painless chemical destruction
of another person’s will raises any issues of human rights. And it does. It does because painless
domination is still a gross undermining of personhood.[18]
Since causing great pain is
not sufficient for the existence of a human right against torture, and since
undermining agency in, for example, the Truth Drug Case is sufficient for the
existence of a human right violation, according to Griffin, this shows that the
notion of agency, and not, e.g., causing great pain, is what explains the
existence of a human right against torture.
Let me start with Griffin’s
second argument. The Truth Drug Case may
show that undermining agency sometimes violates a human right, but it does not
seem to show that undermining agency always violates a human right. Consider another example: Suppose that I
entice you with the possibility of great pleasure in order to get you to do
something you do not want to do or are even resolved not to do. For instance, I offer you lots of money so
that you would eat large worms. In such
a case, I may have undermined your agency – in particular, your ability to
decide and to stick to your decision – but this would hardly constitute a case
of human right violation. If so, while causing great pain may not always be a
sufficient condition for the violation of a human right in all cases, neither
is undermining an individual’s agency.
However, suppose I am wrong and enticing you with the
possibility of great pleasure in order to undermine your agency is a case of a
human right violation. Still, this does
not seem to be the same kind of human right violation as torture is, which
involves inflicting great pain. In other
words, the agency account faces the question of explaining how undermining
agency through extreme pain might be significantly different from undermining
agency through great pleasure.
Griffin’s
first argument at best shows that causing great pain is not a sufficient
condition for the violation of a human right.
It does not undermine the idea that causing great pain is necessary for
explaining why torture violates a human right.
One significant difference between torture and the Callous Partner Case
is that in the latter, the second partner typically can leave the marriage, whereas
in the case of torture, the individual being tortured typically cannot leave
the torture chamber. That the second
partner can leave the marriage may explain why in this case, there is not a
human right violation, despite the psychological torment the second partner has
to endure. Suppose instead the second
partner could not leave the marriage (as for example in some cases of forced,
arranged marriages), and the second partner was still being subjected to a long
period of psychological torment by the first partner. In such a case, one might begin to wonder
whether it did not involve a human right violation.
Similarly, a significant difference between torture and
the Jealous Sibling Case is that the younger sibling typically can fight back
(even if not very successfully) or can get the parents to intervene, and so on,
whereas in the case of torture, the individual being tortured typically cannot
fight back. Indeed, suppose instead the
older sibling tied up the younger sibling in order to inflict great pain on the
younger, and suppose there was no one else to intervene on behalf of the
younger. One might also wonder whether this would not involve a human right
violation.
Moreover, the kind of torture that Griffin has in mind, where one causes great
pain in order to undermine the victim’s capacity to decide and to get the
victim to give up information, is what might be called Instrumental
Torture. Another kind of torture, call
it Intrinsic Torture, involves causing extreme pain just for the sake of
causing extreme pain. Since Intrinsic
Torture does not aim at undermining the victim’s capacity to decide and stick
to a decision, it involves less agency-related violations. Even so, it would still be a human right
violation. If this is right, it seems
that causing extreme pain would play an even more significant and necessary
role in explaining why there is still a human right violation in Intrinsic
Torture.[19]
To be clear, I am not suggesting that causing great pain
is generally a necessary condition for the violation of a human right. That claim would obviously be false, since I
could imprison you without causing you great pain, but I could be violating
your human right to freedom. However,
the Callous Partner Case and the Jealous Sibling Case do not seem to undermine
the idea that at least in the case of torture, causing great pain is a necessary
part of the explanation of why torture violates a human right. If all this is right, Griffin has not yet shown that the notion of
agency can by itself explain the human right against torture.
III. The Redundancy Objection
Griffin has resisted
allowing the other elements of a good life to ground human rights because he
worries that permitting these elements directly to determine the content of
human rights would lead to the case that all the necessary elements of a good
life would determine the content of human rights, which Griffin believes, would
cause the language of rights to become redundant, diluting the discourse of
rights. As Griffin writes,
If we had
rights to all that is needed for a good or happy life, then the language of
rights would become redundant. We
already have a perfectly adequate way of speaking about individual well-being
and any obligations there might be to promote it.[20]
Call this the Redundancy
Objection.
Griffin
is certainly correct that there is no human right to everything necessary for a
good life. Suppose that sailing is my
passion in life, and, hence, having a yacht is a necessary condition for me to
have a good life. It would not follow
that I have a human right to a yacht.
However, those who are proposing to expand the ground for human rights
need not make such an implausible claim.
For example, John Tasioulas has proposed that one
might employ Joseph Raz’s influential definition of a right, and have an
account of human rights according to which human rights arise just in case
there are universal human interests sufficiently important to justify imposing
correlative duties on others.[21] Call this the Universal Interests
Approach. According to Tasioulas, this
approach could allow human interests other than autonomy, liberty and minimum
provision to ground human rights. At the
same time, it could impose the constraint that only those universal human
interests that are sufficiently important to justify the imposition of duties
on others are valid grounds for human rights.
If so, on the Universal Interests Approach, it could be argued that my
interest in having a yacht would not justify imposing a correlative duty on others
to provide me with a yacht, and therefore I do not have a human right to be
given a yacht. If this is right, it
would appear that the Universal Interests Approach would have resources to
block the Redundancy Objection.
Or, consider another approach, what I call the Primary
Essential Conditions Approach, which I favor, and which may in fact complement
the Universal Interests Approach.[22] On the Primary Essential Conditions Approach,
human beings have human rights to what might be called the primary essential conditions for a good life. Akin to (but not exactly the same as) Rawls’s
primary goods, the primary essential conditions for a good life are what human
beings need whatever else they might need in order to pursue a good life.[23] For example, human beings need certain basic
goods such as food, water, and air in order to sustain themselves
corporeally. And they need to have
certain minimum conditions of health including freedom from extreme pain. In order to be able to pursue the good life,
they also need certain basic capacities such as the capacity to think, to be
motivated by facts, to know, to choose an act freely (liberty), to appreciate
the worth of something, to develop interpersonal relationships, and to have
control of the direction of one’s life (autonomy).[24] Finally, in order to exercise these
capacities, they need to have some opportunities for social interaction,
acquiring further knowledge, evaluating and appreciating things, and
determining the direction of their lives.[25]
As I understand it, the Primary Essential Conditions
Approach would include all the essential agency considerations in Griffin’s agency account
of human rights. In addition, it would
allow primary essential, but non-agency, considerations such as freedom from
great pain, accomplishing something in the course of one’s life, and so on,
also to determine the content of human rights.
This approach would also exclude as being a valid human right claim my
need to have a yacht, because such a need is not what human beings need
whatever else they might need. If so, it
would appear that the Primary Essential Conditions Approach also has the
resources to block the Redundancy Objection.[26]
Griffin
has offered replies to these kinds of approaches. According to him, one
assumption that these approaches share is that the interests or the primary
essential conditions at issue must be important, major or urgent. Griffin
argues though that not all important, major or urgent interests can ground
human rights:
Things can
be of great importance to our lives—indeed greater than a lot of issues of
human rights—without themselves thereby becoming grounds for human rights.[27]
To support this idea, Griffin points out that while
distributive justice may be very important, there is not a human right to
distributive justice.[28] In his example, if you free-ride on a bus,
you act unfairly, but you do not violate someone’s human rights.
In addition, Griffin
argues that human rights need not always be very important, and that some acts
can be worse than certain human rights violations without there being a human
right against these acts.[29] For example, Griffin argues that in the Callous Partner
Case, the first partner’s inflicting the cold and callous treatment on the
second partner can be worse than certain human right’s infringement, e.g., a
minor infringement of one’s human right to privacy. However, according to Griffin, the first partner is not thereby
violating the second partner’s human right.[30]
Thirdly, against the Universal Interests Approach, Griffin argues that in
the Callous Partner Case, the suffering endured by the second partner as a
result of the callous treatment of the first partner is sufficient to justify
imposing a duty on the first partner to stop.
But the second partner still does not have a human right that this be done.[31] Griffin
accepts that if and when the cruelty on the part of the first partner begins to
undermine the second partner’s ability to function as an agent, then there may
be a case for claiming that the second partner has a human right against this
kind of treatment. However, Griffin argues that in
such a case, the human right would stem from agency considerations and not from
considerations about the other primary essential elements of a good life such
as freedom from pain.
In response to Griffin, it is useful to point out that he
himself relies on the notion of importance to explain why agency should ground
human rights. As he says,
I single
out functioning human agents via notions such as their autonomy and liberty,
and I choose those features precisely because they are especially important
interests. It is only because they are
especially important interests that rights can be derived from them; rights are
strong protections, and so require something especially valuable to attract
protection.[32]
Given this, it seems that Griffin has to admit that
the notion of importance is relevant, at least to some extent, for determining what
counts as a human right.
In addition, it could be argued that Griffin has yet to show that something can be
very important without there being a human right to it, because his example of
free-riding seems to be a trivial case of distributive injustice, and, as such,
may not amount to something very important.[33] But even if one were to accept the
free-riding example and Griffin’s
conclusion that there is not a human right to distributive justice, the way in
which the primary essential conditions for a good life are important is
arguably different from the way in which distributive justice is
important. In particular, someone’s
free-riding on a bus may be unjust, but one could still have a good life
despite having to endure such free-riding.
But if one did not have the primary essential conditions for a good
life, then one could not have a good life.
If so, the Primary Essential Conditions Approach could still rule out
distributive justice as being a ground for human rights.
Moreover, Griffin’s claim that in
the Callous Partner Case, the first partner’s inflicting the cold and callous
treatment on the second partner can be worse than certain human right’s
infringement, e.g., a minor infringement of one’s human right to privacy is
questionable. In particular, it is not
clear that a minor infringement of a right to privacy does amount to a human
right violation, as Griffin
suggests that it does. For example,
suppose that my sibling had read my diary without my consent. It is not clear that my sibling would have
thereby violated a human right of mine.
Furthermore, Griffin’s
argument against the Universal Interests Approach is also problematic. Even if one were to follow Griffin and accept
that the second partner’s interest does justify holding the first partner to be
under a duty not to treat the second partner in a callous manner, arguably, a
defender of the Universal Interests Approach could respond that this interest
is not a universal human
interest. That is, it could be argued
that the second partner’s interest in not being treated in a callous manner is
not an interest that human beings have whatever other interests they may
have. If so, the Universal Interests
Approach could explain why the second partner does not have a human right
against the first partner.[34]
Lest Griffin wish
to criticize the notion of ‘primary essential conditions,’ and argue that one
cannot draw a meaningful distinction between these conditions and all the
necessary elements of a good life, I shall now argue that Griffin’s agency
account too requires something like a notion of ‘primary essential conditions,’
if it is to be plausible.
Recall that Griffin’s
main concern against broadening the ground for human rights is that he believes
that there is no human right to everything necessary for a good life. For example, I do not have a human right to a
yacht, even if having a yacht is a necessary condition for me to have a good
life. But a similar worry could be
applied to Griffin’s
own agency account, namely, there is no human right to every agency consideration that is necessary
for a good life. Continuing with the
yacht example, developing the agentic capacity to sail a yacht may be necessary
for me to have the necessary agentic capacity for a good life, but I do not
have a human right that someone help me acquire this capacity. To prevent the agency account from having
such an implication, it seems that Griffin would need something like the notion
of ‘primary essential conditions,’ which would restrict agency considerations
to only those that human beings need whatever else they might need.
In other words, we can distinguish between agency interests and non-agency interests, where the former
kinds of interests are derived from considerations such as autonomy and
liberty, and the latter kinds of interests are derived from other elements of a
good life such as freedom from pain, understanding, and so on. In addition, we can distinguish between primary interests and secondary interests, where primary
interests are interests that human beings need whatever else they might need in
order to have a good life (that is, they are the primary essential conditions
for a good life), and secondary interests are interests that human beings need
in order to have a good life. These two
sets of distinctions give us four kinds of interests: primary agency interests, primary non-agency
interests, secondary agency interests, and secondary non-agency interests.
|
|
Agency interests
|
Non-agency interests
|
|
Primary interests
|
primary agency interests
|
primary non-agency
interests
|
|
Secondary interests
|
secondary agency
interests
|
secondary non-agency
interests
|
On this typology, Griffin’s claim is that
only primary agency interests should ground human rights, whereas on the
Primary Essential Conditions Approach, primary non-agency interests could also
ground human rights. Also, one should
see that Griffin’s
Redundancy Objection need not apply to the Primary Essential Conditions
Approach because the Primary Essential Conditions Approach can exclude secondary
non-agency interests as grounds for human rights. More pertinently, the point I am making here
is that if Griffin
were to criticize the notion of primary essential conditions, then he would be
unable to block secondary agency interests from grounding human rights. Accepting that secondary agency interests
could ground human rights would run counter to Griffin’s aim to restrict the content of
human rights.[35]
IV. Conclusion
Griffin’s agency account of human rights provides
a plausible way of giving substantive content to human rights, but it faces the
question of whether agency should be the sole ground for human rights. In this paper, I argued that despite his
recent efforts in On Human Rights, Griffin has not shown
that the human right against torture can be adequately explained by the notion
of agency alone, because he fails to show that the experience of great pain is unimportant
for explaining why torture violates a human right. Also, I argued that both the Universal
Interests Approach and the Primary Essential Conditions Approach have the resources
to block Griffin’s Redundancy Objection, and that Griffin’s arguments against
these approaches are not convincing. If
I am right, Griffin’s
new arguments do not rule out the possibility of a wider account of human
rights, which would draw on the notion of agency as well as other elements of a
good life.[36]
NOTES
[1] Griffin, J. (2008) On
Human Rights (Oxford, Oxford University Press); Griffin,
J. (2000) ‘Welfare rights’, The Journal
of Ethics, 4, pp. 27-43; Griffin,
J. (2001) ‘First steps in an account of human rights’, European Journal of Philosophy, 9, 3, pp. 306-27; Griffin, J. (2001) ‘Discrepancies between the best
philosophical account of human rights and the international law of human
rights’, Proceedings of the Aristotelian
Society, CI, pp. 1-28.
[2] Griffin, ‘Discrepancies’, p. 4.
[3] Griffin, ‘First steps’,
p. 311.
[4] For a fuller list, see Griffin, ‘Discrepancies’,
op. cit.
[5] Griffin, ‘First steps’, p. 313.
[6]
See Griffin, On
Human Rights, Chs. 12 and 13.
[7]
For an excellent discussion of some of the problems that Griffin’s account might face, see Tasioulas, J. (2002) ‘Human rights, universality
and the values of personhood: Retracing Griffin's steps’, European Journal of Philosophy, 10, 1, pp. 79-100.
[8]
Lest this lead to confusion, let me note that Griffin does mention a second ground for
human rights, what he calls practicalities, which, as he explains, help to make
the content of a particular human right “determinate enough to be an effective
guide to behaviour . . .” (On Human
Rights, pp. 37-39). For my purpose, we can leave this aside, because I am
interested in standalone grounds for human rights, that is, those grounds that
are not parasitic on other grounds for human rights. For example, since the role of practicalities
is to make human rights that are grounded in some other way, e.g., agency, more
determinate, practicalities are parasitic on other grounds for human rights,
and are therefore not standalone grounds for human rights. In fact, the requirement of practicalities
seems to be a reasonable requirement for any standalone ground for human
rights, since any standalone ground for human rights should be determinate
enough to be an effective guide to behavior.
Hence, when I claim that Griffin believes that ‘agency is the sole ground
for human rights,’ I am taking him to be holding the view that agency is the
sole standalone ground for human rights, which I believe he does. Also, when I investigate whether there could
be other grounds for human rights, I am interested in whether there could be
other standalone grounds for human rights.
To save words though, I shall leave out the word ‘standalone’ throughout
the rest of the paper.
[9] Griffin, On Human Rights, p. 36.
[10] Griffin, ‘Welfare rights’,
p. 29.
[11] Griffin, On Human Rights, pp. 52-53.
[12]
As another example, while education is important for autonomy, it seems that
the value of understanding is also sufficiently important to human life that it
could provide its own independent contribution to the existence of a human
right to education. If so, it could also be asked whether Griffin’s notion of agency should be the sole
explanation for such human right as the right to education.
[13] See,
e.g., Tasioulas, ‘Human rights, universality
and the values of personhood’, op. cit., who has made such an objection.
[14] Griffin, On Human Rights, p. 52.
[15] Griffin, On Human Rights, p. 52.
[16] Griffin, On Human Rights, p. 52.
[17] Griffin, On Human Rights, p. 53.
[18] Griffin, On Human Rights, p. 53.
[19]
For an insightful account of why torture is wrong that combines an agency
perspective with the fact that torture causes extreme pain, see Sussman, D. (2005)
‘What's wrong with torture?’, Philosophy
and Public Affairs, 33, 1, pp. 1-33.
[20] Griffin, On Human
Rights, p. 34; Griffin,
‘First Steps’, p. 312.
[21]
Tasioulas, ‘Human rights, universality and
the values of personhood’, p. 96; Tasioulas, J. (2006) ‘The moral reality of
human rights’ in T. Pogge (ed.) Freedom
from Poverty as a Human Right: Who Owes What to the Very Poor (Oxford, Oxford University
Press). Note that Raz himself
does not endorse this approach; instead, he defends something like a Rawlsian
account of human rights. See Raz, J. (forthcoming)
‘Human rights without foundations’ in S. Besson
and J. Tasioulas (eds.) Philosophy of
International Law (Oxford, Oxford University Press); Rawls, J. (1999) The Law of Peoples, 2nd ed. (Cambridge,
Mass., Harvard University Press).
[22]
Liao, S. Matthew (2006) ‘The right of children to be loved’, Journal of Political Philosophy, 14, pp.
420-440.
[23]
For other similar lists, see, e. g., Raz’s Basic-Capacities Principle [ (1994) Ethics
in the Public Domain: Essays in the Morality of Law and Politics (Oxford, Clarendon Press), pp. 16-17]; or
Rawls’s list of primary goods, which are goods that all individuals are
presumed to want, whatever else they may want [(1971) A Theory of Justice (Oxford, Oxford University Press)]. See also Gewirth, A. (2006) The Community of Rights (Chicago, University of Chicago); Nickel, J.
(2006) Making Sense of Human Rights (Oxford, Blackwell); Sen, A.
(2004) ‘Elements of a theory of human rights’, Philosophy and Public Affairs, 32, 4, pp. 315-56.
[24]
See Sen, A. (1985) ‘Rights and
capabilities’ in T. Honderich (ed.) Morality and Objectivity: A Tribute to J. L.
Mackie (London,
Routledge & Kegan Paul), pp. 130-148; Sen, A. (1992) Inequality
Reexamined (Cambridge, Mass., Harvard University Press).
[25]
See Raz for an argument regarding the importance of having an adequate range of
valuable options for well-being [(1986) Morality
of Freedom (Oxford,
Clarendon Press), pp. 373-377].
[26] Let
me briefly explain why the Primary Essential Conditions Approach may complement
the Universal Interests Approach. Raz’s definition of a right is a formal,
rather than a substantive, criterion for a right. As such, by itself, it cannot tell us what
rights we have substantively. In any
case, what is doing the work on the Universal Interests Approach is the notion
of a universal human interest, which marks out the interests that human beings
have whatever other interests they may have.
But exactly what are these universal interests? To identify them, it seems that the Universal
Interests Approach may need to appeal to something like the primary essential
conditions for a good life. If it did,
the Universal Interests Approach would be the same in substance as the Primary
Essential Conditions Approach, and the two approaches would complement one
another.
[27] Griffin, On Human Rights, p. 54.
[28] Griffin, On Human Rights, p. 41.
[29] Griffin, On Human Rights, p. 54.
[30] Griffin, On Human Rights, p. 54.
[31] Griffin, On Human Rights, p. 55.
[32] Griffin, On Human Rights, p. 35.
[33] I
would like to thank Nick Ferreira for this point.
[34]
In personal communication, John Tasioulas suggests that he would take a
different tack by noting that it is not so obvious that being callous to one’s
partner cannot be a human rights violation. According to Tasioulas, it might
seem odd to describe it as such, but that need not undermine its truth.
[35]
There may be a different way of specifying the kind of non-agency interests
that could ground rights, which does not rely on the notion of primary
essential conditions, but which relies instead on our ability to make pairwise
comparisons. Call this the Pairwise
Comparisons Approach. First, we can
again distinguish between agency interests and non-agency interests. Secondly, since there is no human right to
every agency consideration that is necessary for a good life, we can further
specify that only certain kinds of agency interests are appropriate grounds for
human rights. Thirdly, whatever these
kinds of agency interests may be, we could then suggest that non-agency
interests that are as urgent as these kinds of agency interests are also
appropriate grounds for human rights. I
do not have a specific metric for comparing the relative urgency of various
interests. But as an illustration,
consider again the paradigmatic human right against torture. The kinds of agency interests at issue such as
being able to stick to one’s decision and not being coerced to go against one’s
will seem important enough at least partly to ground a human right against
torture. Since the non-agency interest
in not being subjected to the kind of extreme pain typically involved in
torture seems as urgent as these agency interests, this kind of non-agency
interest should then also be an appropriate ground for a human right against
torture. By contrast, consider again the
Callous Partner Case. While the
non-agency interest of the second partner in avoiding the cold treatment is
urgent, it does not seem as urgent as the relevant kind of agency interests
that can ground human rights, especially if the second partner can avoid the
cold treatment by leaving the marriage.
If so, on the Pairwise Comparisons Approach, this kind of non-agency
interest would not be an appropriate ground for a human right. If the Pairwise
Comparisons Approach is a plausible way of specifying the kinds of non-agency
interests that can ground human rights, then we have two ways of excluding the
necessary elements of a good life from grounding human rights and blocking Griffin’s Redundancy
Objection.
[36] I
would like to thank James Griffin, John Tasioulas, John Broome, Adam Etinson, Nick
Ferreira, the late Geoffrey Marshall, Roger Crisp, Nick Bunnin, Joe Shaw, Wibke
Gruetjen, an anonymous reviewer, and audiences at the Oxford Moral Philosophy
Seminar for their helpful comments on earlier versions of this paper.