Talk of rights in human affairs has had two functions. The first [...] is theoretical--to explain why certain wrongs are wrongs, and (often) to ground them objectively. The second is moral. It constitutes one of the most noble fictions in our moral thought. Good-hearted people find it intolerable that just treatment of the powerless should depend on the generosity--on the charity, in the old-fashioned sense--of the powerful. Since at least 1789, the refusal to accept it has driven the rhetoric of human rights in a noble attempt to bestow dignity on the powerless by creating the impression that rights are a kind of moral force field, a metaphysical barrier to the indignity of being crushed ruthlessly. "I don't need your charity. I don't need your justice. I stand by my rights and demand that they be acknowledged." That is the spirit of 1789.
It is an illusion.He goes on to quote Simone Weil on how appeals to justice might move someone but asserting your rights sounds contentious, and how a girl being forced into a brothel would not talk about her rights, since such talk would seem hopelessly inadequate to the injustice that was being done. I agree with Weil, but I think Gaita might be collapsing the second, moral use of the notion of rights into the first, explanatory and grounding one. He might be right about the spirit of 1789. I have some sympathy for Bentham's rejection of that kind of rights-talk (he thought it was dangerous as well as metaphysically unsound, and was arguably right to think so: the French Revolution was no picnic, and it is questionable to think that, say, the right to bear arms might be immutable). But isn't there now a use of rights-talk that pretends neither to explain nor to protect? A use of 'rights' to refer to something close to what Mill called "the essentials of human well-being"?
Thinking of cheaply referring to "the spirit of 1989" I googled "rights 1989" and found the Unicef Convention on the Rights of the Child. According to Unicef:
Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. The Convention protects children's rights by setting standards in health care; education; and legal, civil and social services.
By agreeing to undertake the obligations of the Convention (by ratifying or acceding to it), national governments have committed themselves to protecting and ensuring children's rights and they have agreed to hold themselves accountable for this commitment before the international community. States parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child.The first part of this might sound as though it was written by people who think that children can be protected merely by listing things that shouldn't be done to them, but the rest of it makes it pretty clear, I think, that the protection comes from government action. I see no reason why this kind of Convention could not do any good (nor, of course, any guarantee that it will work), and it is clearly intended to work, not to make or encourage any illusory claims about metaphysical force fields.
For this reason I don't think of rights as metaphysical and don't see much point in the question of what grounds them. More relevant would be the question of how we should decide, and how we might hope to agree on, what belongs on a list of rights. Among other things, Biletzki says that, "Theories of human needs, human interests and human agency provide analytical foundations for the idea of human rights." As long as we don't go overboard with the idea of theories or analytical foundations, this seems about right to me. Rights should be identified with reference to human needs, interests, and what it means to be a human agent. You don't need to bring God into the conversation, although it might help with some people (even some secular ones). Indeed, a religious ethic might require the violation of human rights if God commands it (not that He usually does), as Biletzki points out. She goes on to say that, "It is a turn to the human, and a (perhaps axiomatic, perhaps even dogmatic) posit of human dignity, that turns the engine of human rights, leaving us open to discussion, disagreement, and questioning without ever deserting that first posit." I think that's all the foundation we need: a dogmatic posit of human dignity. What grounds that? The short answer is: who cares? The long answer: read some books (a list would be necessary for this to be a really long answer, but since it would probably start with Shakespeare and perhaps the Bible I won't spell it out here).
This reference to the Bible might make you wonder just how secular talk of rights can really be, and Matt addresses this kind of consideration. His concern, though, is with whether a secular view such as Biletzki's can provide a foundation for, or theory of, human rights. My view, which I think is close to Biletzki's, is that we don't need any such thing. Matt concludes with these words:
If all we can point to when explaining human rights is our mere humanity, then what sets the ground rules for the discussion? What will determine whether this or that is a human right, or no right at all? Without answers to these questions, we don't have a theory of human rights at all.I think he's right. But I don't see that we need any such theory.
UPDATE: Biletzki comments interestingly here.